Date:
20120911
Docket:
T-1678-11
Citation: 2012
FC 1073
Ottawa, Ontario,
September 11, 2012
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
|
|
CHIEF WILBUR DEDAM, IRENE
DEDAM, RONALD SOMERVILLE and
JASON BARNABY
|
|
|
|
Applicants
|
|
and
|
|
|
THE ATTORNEY GENERAL OF CANADA
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review under sections 18, 18.1 and 18.2 of the Federal
Courts Act, RSC 1985, c F-7 of a decision by the Honourable John Duncan,
Minister of Aboriginal Affairs and Northern Development Canada (the Minister)
dated September 14, 2011 whereby the applicants, Wilbur Dedam, Irene Dedam,
Ronald Somerville and Jason Barnaby were removed from their elected positions
as Chief and Band Councillors of the Esgenoopetitj First Nation pursuant to
subparagraph 78(2)(b)(iii) of the Indian Act, RSC 1985, c I-5. The
Minister’s decision was based on his finding that the applicants had
participated in, or been sufficiently connected to, corrupt practice in
relation to the Esgenoopetitj First Nation’s general election held on May 25,
2010.
[2]
The
applicants seek an order quashing the Minister’s decision, restoring Wilbur
Dedam to the position of Chief of Esgenoopetitj First Nation and restoring
Irene Dedam, Ronald Somerville and Jason Barnaby as Band Councillors of
Esgenoopetitj First Nation.
[3]
In
the alternative, the applicants seek a declaration that the Minister’s decision
is invalid and an interim order, pursuant to section 18.2 of the Federal
Courts Act, restoring Wilbur Dedam to the position of Chief of
Esgenoopetitj First Nation and Irene Dedam, Ronald Somerville and Jason Barnaby
as Band Councillors of Esgenoopetitj First Nation, pending the final
disposition of this application.
[4]
Finally,
the applicants seek an order that this motion be dealt with on an expedited
basis pursuant to Rule 385(1) of the Federal Courts Rules, SOR/98-106
and the cost of the proceedings.
Background
[5]
On
May 25, 2010, the applicants were elected in the Esgenoopetitj (Burnt Church) First Nation general election. Applicant Wilbur Dedam was elected as Chief of
Esgenoopetitj First Nation and applicants Irene Dedam, Ronald Somerville and
Jason Barnaby were elected as Band Councillors of Esgenoopetitj First Nation.
These positions became effective on June 19, 2010, with expiry on or about June
18, 2012.
[6]
On
June 29, 2010, Curtis Bartibogue filed an appeal to the Assistant Deputy
Minister pursuant to paragraph 12(1)(a) of the Indian Band Election Regulations,
CRC c 952 (the Regulations). Curtis Bartibogue was an unsuccessful candidate
for Chief of Esgenoopetitj First Nation in the May 2010 election.
[7]
After
receiving Curtis Bartibogue’s appeal, the Minister, acting pursuant to section
13 of the Regulations, designated Mr. Jacob Hes to investigate the allegations
of corrupt election practices raised by Mr. Bartibogue. Mr. Hes, a former Royal
Canadian Mounted Police (RCMP) member with over thirty five years experience
and prior experience investigating First Nation election appeals was retained
on March 5, 2011. He was mandated to investigate the election appeal
allegations and to complete a report of his findings by March 31, 2011.
[8]
On
March 16, 2011, Mr. Hes visited the Esgenoopetitj First Nation Band office to
inform the Chief and Band Manager of his mandate. As Chief Wilbur Dedam was
unavailable at the time, a meeting was held with Chief Executive Officer Ashley
Dedam, Band Comptroller Alex Dedam and Director of Education Simon Dedam. Mr.
Hes left his contact number for the applicants.
[9]
Subsequently,
all four applicants met jointly and/or individually with Mr. Hes and provided
statements on the election appeal allegations. Mr. Hes also interviewed other
Band members and officials, some of whom he also obtained written statements.
On March 21, 2011, Mr. Hes met with members of the RCMP Fredericton Commercial
Crime Section (the local RCMP) on the criminal investigation into the 2010
Esgenoopetitj First Nation election.
[10]
Mr.
Hes compiled his findings and recommendations in a report dated March 23, 2011
(the Hes Report).
Hes Report
[11]
In
the Hes Report, Mr. Hes considered two of the grounds for appeal identified in
the election appeal. Both grounds alleged that on May 8, 2010, electors Patrick
Leon Somerville and Sylvia Arlene Martin were given money by one or more of the
applicants in exchange for their votes. On the first ground, Patrick Leon
Somerville was allegedly paid $260 by applicants Jason Barnaby, Wilbur Dedam
and Irene Dedam in exchange for his vote. On the second ground, Sylvia Arlene Martin
was allegedly given money by applicant Jason Barnaby in exchange for her vote.
This latter transaction was allegedly depicted on a DVD submitted by Curtis
Bartibogue in his election appeal.
[12]
On
May 8, 2010, Doris Abrams had invited various family members and guests to a
lobster dinner at her home. Mrs. Abrams is Jason Barnaby’s aunt. Jason Barnaby
brought the lobsters to his aunt’s residence. The applicants’ affidavits
indicate that Jason brought the lobsters either or in part as cultural gifts to
share amongst friends and relatives, as a personal gift to Mrs. Abrams for
Mother’s Day and/or as a gesture of appreciation for continued electoral
support from Mrs. Abrams’ family members.
[13]
In
support of the first ground regarding Patrick Leon Somerville’s alleged vote
buying, Mr. Hes noted evidence from Patrick Leon Somerville that Jason Barnaby
told him who to vote for and paid him $260 for his vote. Patrick Leon Somerville
alleged that he had been paid upwards of $300 in the previous four elections
for his vote. Mr. Hes also noted Electoral Officer Kevin Brian Dorey’s evidence
that mail-in ballot packages for six non-resident band members were sent to
Doris Abrams’ mailing address and that the Voter Declarations completed by Doris
Abrams’ family members were all witnessed by one of three individuals.
[14]
Turning
to the evidence contradicting this first ground, Mr. Hes noted evidence from
Mary Ann Somerville, Doris Abrams and all the applicants that some
conversations were held at Doris Abrams’ home about the upcoming Chief and
Council elections. These individuals also recalled that some voters were
assisted with completing their ballots. However, they stated that there were no
exchanges of money for their votes.
[15]
Wilbur
and Irene Dedam noted that Sylvia Arlene Martin requested $500 for her vote
while on a telephone call with her mother, Doris. However, Wilbur responded
that in that case, Sylvia Arlene Martin did not have to vote. Wilbur also noted
that this was the second election in which Sylvia Arlene Martin had requested
payment for her vote. Mrs. Abrams explained that she arranged for the
applicants to come visit so that her children did not have to travel to Burnt Church to see the Chief. She also stated that she believed the whole reason for the
appeal was to seek welfare.
[16]
Based
on this evidence, Mr. Hes concluded on the first ground that:
In
reviewing the interviews and statements it is quite clear that the real focus
was not in compaigning [sic] for the election but rather the completion
of the ballots and Voter Declarations.
[17]
Turning
to the second ground regarding Sylvia Arlene Martin’s alleged vote buying, Mr.
Hes noted Sylvia Arlene Martin’s statement that her mother called her on the
evening of May 8, 2010 and advised her that Jason Barnaby and his sister were
going to pick her up. On arrival to her mother’s house, Jason gave her the
mail-in ballot package and she checked off the name of Curtis Bartibogue.
However, upon doing so, Jason said “No, No, No” and scratched off the mark,
replacing it with a mark beside Wilbur Dedam’s name. When Sylvia Arlene Martin explained
that she could not see, Jason marked the rest of the ballot, gave her money and
then drove her home. Sylvia Arlene Martin stated that she had her son record
the event with a video pen. She also stated that she had been paid for her vote
in the past seven elections.
[18]
Conversely,
Jason Barnaby indicated that upon request, he helped Sylvia Arlene Martin fill
in her ballot according to what she had previously told him she wanted. A
little while later, when Sylvia Arlene Martin told him that she was “Rum-Sick”,
he gave her some money. Mr. Hes noted Doris Abrams’s statement that her
daughter Sylvia Arlene Martin no longer wanted to be involved in this matter.
Mr. Hes also noted the information he received from the local RCMP officers
involved in the related criminal investigations. These officers informed him
that on July 8, 2010, a Constable met with Sylvia Arlene Martin. She gave
details of her meeting with Jason Barnaby and handed over the $260 she had
allegedly received from him. Mr. Hes observed:
In
meeting with Arlene at her residence it was very obvious to me that this is a
person of very limited financial resources and not using the $260 for herself
but instead turning the money in as evidence was a great financial sacrifice.
[19]
With
regards to vote buying, Mr. Hes noted that:
In
speaking with the different witnesses and community members it became quite
obvious that the practice of buying votes is an accepted community practice
that has been going on for many of the previous Chief and Council elections in
Esgenoopetitj FN. Chief Wilbur Dedam, Irene Dedam, Mary Ann Somerville, Ronald
Somerville, and Jason Barnaby readily admit to travelling to go visit non-resident
band members to campaign when in all reality it is to secure their votes.
[20]
Mr.
Hes also drew negative inferences from: Wilbur Dedam’s written statement in
which he did not appear shocked about Sylvia Arlene Martin’s request for $500
to vote for him; the DVD as translated by Arthur Bartibogue; and subsequent
contact by Jeff Narvey indicating that he witnessed his son receive $200 from
Jason Barnaby on May 20, 2010.
[21]
After
Mr. Hes filed his report, copies were distributed to all the candidates. Responses
were initially invited within two weeks. Time extensions were subsequently
granted, with responses accepted until June 14, 2011.
Election Appeal Report
[22]
On
August 12, 2011, Nathalie Nepton, Director of Band Governance of Indian and
Northern Affairs Canada (INAC), completed the Esgenoopetitj First Nation
Election Appeal Report (the Election Appeal Report). The Election Appeal Report
noted that only the two grounds of appeal investigated in the Hes Report were
relevant; the three other grounds raised in the election appeal were dismissed
for various reasons, including lack of information.
[23]
The
Election Appeal Report noted that Wilbur Dedam was the sole applicant to file a
responding affidavit to the Hes Report. However, this affidavit did not
challenge any of the facts on which the conclusions and recommendations in the
Hes Report were made, nor did it present any new evidence.
[24]
On
the first ground, the Election Appeal Report noted that although it could not
be established that the applicants paid Patrick Leon Somerville $260 for his
vote, the events of May 8, 2010 supported the allegation that corrupt practices
had taken place. Voters were offered lobster in return for their vote and not
afforded the privacy needed to complete their ballot in secret. It was
therefore deemed reasonable to conclude that these circumstances would have
created substantial pressure on voters to vote in favour of the candidates in
attendance at the Abrams’ residence on May 8, 2010.
[25]
On
the second ground, the Election Appeal Report noted that the video of the
alleged transaction between Sylvia Arlene Martin and Jason Barnaby was
unreliable due to: the poor quality audio track; an unreliable translation; and
apparent edits to the video. However, the Election Appeal Report concluded
that:
Regardless
of the intent, and the amount of money provided, having a candidate who
completes a ballot for an elector, particularly one who is intoxicated and may
or may not be able to verify that the ballot reflects their true intentions,
and then offers money or goods in return constitutes corrupt practice. Arlene
Martin was denied the right to vote in secret, and Jason Dean Barnaby paid her
in return for her vote.
[26]
Based
on its review, the INAC Band Governance Directorate recommended that the Minister
exercise his authority under subparagraph 78(2)(b)(iii) of the Indian Act to
remove the applicants from office. This recommendation was based on the
applicants’ connection with corrupt election practices through their
participation in the exchange of lobster for mail-in ballot votes on May 8,
2010 at Doris Abrams’ residence.
[27]
The
Election Appeal Report recommended that applicants Wilbur Dedam, Irene Dedam
and Ronald Somerville be ineligible as candidates of the Esgenoopetitj First
Nation Chief and Council for two years as this was the first finding of corrupt
practices against these individuals and the value of goods involved was low.
The report also recommended that applicant Jason Barnaby be ineligible as a
candidate of the Esgenoopetitj First Nation Chief and Council for fours years
as he was connected to two instances of vote-buying and the amount of money or
goods involved was low.
Minister’s Decision
[28]
Upon
review of the Hes Report and the Election Appeal Report, the Minister reported
to the Governor in Council pursuant to subsection 14(1) of the Regulations.
Subsequently, on September 14, 2011, Ministerial Declarations were issued for
all four applicants, disqualifying them as candidates for the offices of Chief
and Council of Esgenoopetitj First Nation. These declarations were based on
there being sufficient cogent evidence to support a finding of corrupt practice
in relation to the election held on May 25, 2010 and sufficient cogent evidence
connecting the applicants to that corrupt practice. Wilbur Dedam, Irene Dedam
and Ronald Somerville were disqualified from running in Esgenoopetitj First
Nation elections for two years, while Jason Barnaby was disqualified from
running in Esgenoopetitj First Nation elections for four years.
[29]
The
applicants were notified of the Minister’s decision in a letter dated September
16, 2011.
Issues
[30]
The
applicants submit the following points at issue:
1. What is the
appropriate standard of review to be applied to the Minister’s decision of
September 14, 2010?
2. Were the
applicants’ rights to procedural fairness and/or natural justice violated given
that a parallel criminal investigation was being conducted by the Commercial
Crime Branch of the RCMP?
3. Was the evidence
provided to the Minister sufficient to authorize the removal of the applicants
from elected office?
4. Was the
imposition of a period of disqualification from running for office order by the
Minister reasonable under the circumstances?
[31]
I
would rephrase the issues as follows:
1. What is the
standard of review?
2. Was there a
breach of procedural fairness and/or natural justice?
3. Was there
sufficient evidence before the Minister to justify his decision?
4. Was the
Minister’s order disqualifying the applicants from running for office for a set
period reasonable?
Applicants’ Written Submissions
[32]
The
applicants raise three main points at issue in this case:
1. The issuing of
Mr. Hes’ mandate concurrently with an ongoing RCMP criminal investigation was a
breach of procedural fairness and/or natural justice;
2. There was
insufficient evidence to authorize the applicants’ removal from office; and
3. The Minister’s
order disqualifying the applicants from running for office for a set period of
time was unreasonable.
[33]
The
applicants submit that the appropriate standard of review is correctness.
[34]
On
their first point, the applicants note that throughout the duration of Mr. Hes’
mandate, there was an on-going investigation by the local RCMP. This
investigation revolved around video evidence obtained by Curtis Bartibogue that
allegedly depicted Jason Barnaby passing money to Sylvia Arlene Martin. The
applicants submit that due to this parallel criminal investigation, their
lawyer advised them not to discuss issues pertaining to the exchange of money
for votes that allegedly occurred at the home of Doris Abrams as it may result
in an exchange of information with the local RCMP leading to the pursuit of
criminal charges against them. The applicants therefore were constrained from
providing full and candid statements to Mr. Hes.
[35]
The
applicants submit that the Minister failed to observe a fundamental principle
of natural justice by ordering Mr. Hes’ investigation while there was an
on-going criminal investigation. This denied the applicants the opportunity to
provide full and frank statements to Mr. Hes without fear of possible criminal
prosecution.
[36]
The
applicants also note that Mr. Hes never provided any indication that the
information he collected during his investigation may be used against them in a
possible criminal prosecution. However, the Hes Report included an attachment
evidencing the fact that he was communicating with members of the local RCMP.
[37]
On
their second point, the applicants note that neither the Indian Act nor
the Regulations define what constitutes corrupt practice. However, they submit
that in Wilson v Ross, 2008 FC 1173, [2008] FCJ No 1456, this
Court explained that what is relevant to this determination is the motive or
intent behind the impugned conduct and whether the conduct was directed to
improperly affecting an election.
[38]
The
applicants submit that the Hes Report contained several factual errors and
material facts requiring further clarification that may have influenced the
Minister’s decision. These include: incorrect reference to Mary Ann Somerville
as a Band Councillor (Mary Ann the wife of applicant Ronald Somerville); Emile
Vienneau and Doris Abrams incorrectly identified as Esgenoopetitj First Nation
electors; and seven of the nine individuals who signed their statements do not support
the election appeal allegations even though the findings of two of these
individuals are included in Allegation 1 of the Hes Report.
[39]
The
applicants submit that the Hes Report also lacks credibility and demonstrates
extreme bias towards them. The applicants note that Mr. Hes did not obtain any
secondary statement from Curtis Bartibogue as he considered that such evidence
did not fall within the scope or mandate of his investigation. Further, the
applicants submit that the Hes Report relies on unreliable information sources
in its conclusions on vote buying or corrupt election practices. In support,
the applicants highlight Patrick Leon Somerville’s statement that he was given
money in exchange for his vote. Patrick Leon Somerville did not allege that he
was provided this money by any of the applicants, but rather by “some lady”
that he could not identify or name.
[40]
For
these reasons, the applicants submit that the Hes Report was unreliable, rife
with inaccuracies and insufficient information and scant with the proper and
necessary documentary evidence to support its findings. The applicants thus
submit that Mr. Hes presented his report to the Minister in a capricious manner
without regard to all the materials before him.
[41]
In
addition, the applicants submit that there was insufficient evidence to
conclude that vote buying had occurred. The applicants refer to the Election
Appeal Report and note that only two of the five grounds of corrupt practice
raised in the election appeal were upheld based on the Hes Report
recommendations.
[42]
The
first ground of appeal pertained to the alleged vote payment to Patrick Leon
Somerville. However, the applicants submit that this ground lacks the
sufficient standard of proof required for their removal from office. The
applicants note that Patrick Leon Somerville was unable to identify the person
who invited him to the Abrams’ household, the person who picked him up to go to
the Abrams’ household and the person who allegedly paid him for his vote.
Further, the applicants note the reference in the Election Appeal Report to the
lobster dinner at the Abrams’ household as evidence of gifts to those who
voted. However, this issue was not raised in the election appeal or in the Hes
Report. The finding that this pre-election activity justified the applicants’
removal from office was thus tenuous.
[43]
The
second ground of appeal pertained to the alleged vote payment to Sylvia Arlene
Martin. The applicants note that Jason Barnaby has admitted to providing some
money to Sylvia Arlene Martin for alcohol. However, Jason swears that he only
gave her $30 not $260. He also maintains that this is a longstanding and common
practice in his community. The applicants submit that there was no evidence
linking Wilbur Dedam, Irene Dedam or Ronald Somerville to this alleged corrupt
practice.
[44]
On
the third point at issue in this application, the applicants submit that the
period of disqualification from running for office was unreasonable given the
contradictory statements, lack of credible witnesses and tenuous evidence that
the Minister relied upon in rendering his decision. The applicants submit that
decision makers must bear in mind the importance of their decisions on the
lives of those affected and the greater the impact on those persons, the more
stringent the procedural protections required. The Minister erred in accepting
that lobster brought to the Abrams’ residence by Jason Barnaby was a corrupt
practice. The lobster was not limited to a pre-selected group of attendees, but
rather available to all family members and guests at the Abrams’ house.
Further, there was no evidence that any of the other applicants were involved
in providing the lobster.
[45]
The
applicants note that their removal from office has caused immediate financial
hardship on them and their families. As career politicians that have previously
been elected as officials for their community, they derive their source of
living from politics. Their removal from office attracts the highest standard
of procedural fairness and thus, a high standard of evidence substantially
linking them to the participation in corrupt election practices. The applicants
submit that the evidence relied on by the Minister does not meet this standard,
as it is merely conjecture and speculation.
Respondent’s Written Submissions
[46]
The
respondent first addresses the appropriate standard of review of the Minister’s
decision made pursuant to subparagraph 78(2)(b)(iii) and subsection 78(3) of
the Indian Act. In applying the direction provided by the Supreme Court
of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the
respondent notes that there is no privative clause in these provisions. In
addition, the respondent submits that this Court has found that the appropriate
standard of review of decisions on alleged vote buying is reasonableness. Thus,
the respondent submits that the appropriate standard of review of the
Minister’s decision is reasonableness. However, the respondent acknowledges
that the appropriate standard of review for issues of procedural fairness is
correctness.
[47]
The
respondent then delves into the evidentiary threshold applicable to the
Minister’s decision issued pursuant to subparagraph 78(2)(b)(iii) and
subsection 78(3) of the Indian Act. The respondent submits that the
evidentiary threshold that the Minister must meet in considering whether
corrupt practices are established is far lower than that in criminal or civil
cases. In this case, the respondent submits that the appearance of a corrupt
practice was supported by specific evidence documented in the Hes Report and
appropriately included circumstantial evidence. Further, the respondent submits
that waiting for the conclusion of the parallel criminal investigation would
fail to acknowledge the different evidentiary threshold applicable to the two
investigations.
[48]
In
response to the applicants’ submission that the impugned conduct must be
directed at improperly affecting the election outcome, the respondent submits
that there is clear evidence that: goods and money were supplied to secure votes;
the votes were obtained improperly without secrecy; and the votes were
collected and submitted improperly. The respondent notes that one vote acquired
improperly could affect the outcome of an election. In this case, the
respondent submits that the evidence and circumstances considered by the
Minister met the evidentiary threshold of establishing that there was an
appearance of corrupt practices.
[49]
The
respondent also notes that the applicants were provided with all the material
before the Minister and were provided with a reasonable opportunity to respond.
The respondent submits that the Minister’s decision is a reasonable outcome of
this administrative process.
[50]
The
respondent also submits that the Minister did not err in disqualifying the
applicants from future elections. The respondent submits that the evidence
clearly implicates all the applicants in agreeing to provide lobster at Doris
Abrams’ residence on May 8, 2010. There is also clear evidence that votes were
cast without privacy, some voters were assisted in voting and money was
provided contemporaneously with voting. The applicants should have prevented
the votes from being cast in these circumstances or at least left the
gathering. The respondent submits that the sanctions were fitting in light of
the applicants’ participation at the Abrams’ gathering and that the increased
penalty for Jason Barnaby was fitting given his later involvement in Sylvia Arlene
Martin’s voting.
[51]
The
respondent also submits that the Minister did not carry out his investigation
in a capricious manner or conduct it with extreme bias. In support, the
respondent submits that the facts alleged in the applicants’ application do not
suggest improper motives, a closed mind, conflict of interest, history with the
applicants, predetermination of the issues to be investigated or any other
matters that could properly raise legal bias. Rather, the applicants’
application raises matters of sufficiency of evidence and investigation. These
do not pertain to bias and were addressed above by the respondent.
[52]
Turning
to the procedural fairness issue, the respondent notes that the applicants were
provided with: all the election appeal materials disclosing the original
allegations of the corrupt election practices; the opportunity to submit
written responses to the appeal allegations; access to the Hes Report with
ample time to respond to it; and copies of all the materials, except privileged
materials that were before the Minister. The respondent notes that the criminal
investigation file was not before the Minister and was therefore not part of
the record for these proceedings. Thus, the respondent submits that the
administrative process proceeded in a fair manner.
[53]
The
respondent also addresses the contemporaneous local RCMP criminal investigation.
The respondent submits that the Minister has wide discretion to choose the
manner of investigation under subsection 13(1) of the Regulations. The
respondent notes that the Minister must consider both the applicants’ and the
appellants’ rights to a fair and expeditious resolution. The respondent also
notes that the Minister should not have to wait for the conclusion of the more
stringent investigation and evidentiary standard of a criminal investigation if
he can conclude that there has been an appearance of corrupt practice after
conducting an investigation according to the lower evidentiary standard. Thus,
the respondent submits that the Minister did not breach procedural fairness by
ordering Mr. Hes’ investigation prior to the conclusion of the local RCMP
investigation. In fact, the interest of the public in a speedy resolution of an
alleged improper election required him to retain Mr. Hes to conduct the
investigation when he did.
[54]
Finally,
the respondent notes the list of documents that the applicants have requested
in their application. However, a number of these were not before the Minister
when he made his decision and the respondent therefore submits that the request
for these documents is inappropriate. Based on established jurisprudence, the
respondent submits that the proper record for judicial review in this
proceeding is limited to the following:
1. The allegations
forwarded by the individuals lodging the appeal;
2. The particulars
of these allegations verified by affidavit;
3. The candidates’
written responses to the particulars set out in the appeal;
4. Any supporting
documents relating to the candidates’ responses as duly verified by affidavit;
and
5. The Hes Report
and materials included therein.
[55]
The
local RCMP investigation file material which was not before the Minister,
should not form part of the record in this application.
[56]
In
summary, the respondent submits that the Minister acted on sufficient
documentary, viva voce and circumstantial evidence in finding that the
applicants acted collectively in exchanging goods and/or money to secure votes.
The Minister’s decision was a reasonable outcome as the applicants’ conduct was
deserving of an appropriate penalty to ensure that the seemingly entrenched
corrupt practices do not continue.
Analysis and Decision
[57]
Issue
1
What is the standard of
review?
Where previous jurisprudence
has determined the standard of review applicable to a particular issue before
the Court, the reviewing court may adopt that standard (see Dunsmuir
above, at paragraph 57).
[58]
It
is trite law that issues of procedural fairness attract a correctness standard
of review (see Canada (Citizenship and Immigration) v Khosa, 2009
SCC 12, [2009] SCJ No 12 at paragraph 43; Ross v Canada (Indian and Northern
Affairs), 2007 FC 499, [2007] FCJ No 675 at paragraph 22; and Muskego v
Norway House Cree Nation Appeal Committee, 2011 FC 732, [2011] FCJ No 963
at paragraph 26). Similarly, the correctness standard generally applies to
legal interpretations of what constitutes corrupt election practices (see Wilson above, at paragraphs 26 and 27). Where a correctness standard applies,
little deference is owed to the Minister’s decision (see Dunsmuir above,
at paragraph 50).
[59]
Conversely,
whether the evidence supports a finding of corrupt election practices is a
question of mixed fact and law that attracts a standard of review of
reasonableness (see Hudson v Canada (Minister of Indian Affairs and Northern
Development), 2007 FC 203, [2007] FCJ No 266 at paragraph 74). In reviewing
the Minister’s decision on the reasonableness standard, the Court should not
intervene unless he came to a conclusion that is not transparent, justifiable
and intelligible and within the range of acceptable outcomes based on the
evidence before it (see Dunsmuir above, at paragraph 47; and Khosa above,
at paragraph 59). It is not up to a reviewing Court to substitute its own view
of a preferable outcome, nor is it the function of the reviewing Court to
reweigh the evidence (see Khosa above, at paragraphs 59 and 61).
[60]
Issue
2
Was there a breach of
procedural fairness and/or natural justice?
Where a decision is
administrative and affects the rights, privileges or interests of an
individual, it is generally sufficient to trigger the application of the duty
of fairness (see Ross above, at paragraph 38). However, the content of
that fairness varies and must be decided in the specific context of each case.
[61]
In
Ross above, Mr. Justice Pierre Blais weighed the factors relevant to a
determination on the content of fairness, as identified by the Supreme Court of
Canada in Baker v Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817, [1999] SCJ No 39, and found that “the applicants were
entitled to an important level of procedural fairness, particularly in light of
the finality of the Minister’s decision and the importance of the decision” (at
paragraph 57). However, Mr. Justice Blais found that the appropriate level of
procedural fairness did not amount to a quasi-judicial level (see Ross
above, at paragraph 57).
[62]
Mr.
Justice Blais also explained that the Minister was not required to give notice
that an investigation was being launched or to interview the applicants as part
of that investigation (see Ross above, at paragraph 58). However, Mr. Justice
Blais did find that the duty of procedural fairness required the Minister to
disclose the results of the investigation and provide the applicants with an
opportunity to file written responses that would be considered by the Minister
in his final determination (see Ross above, at paragraphs 59 and 66; and
Esquega v Canada (Attorney General), 2005 FC 1097, [2005] FCJ No 1332 at
paragraph 25). If the duty of fairness was breached at the stage of the
Minister’s determination on corrupt electoral practices, anything flowing
directly from that decision, such as Ministerial Declarations removing
individuals from office, would also be “tainted by that error” (see Ross
above, at paragraph 72).
[63]
In
this case, the applicants were notified early in the process about the
investigation. The applicants were also given an opportunity to speak with Mr.
Hes and to provide him with their statements. After Mr. Hes completed his
report, the applicants were provided with information on the election appeal,
copies of the Hes Report and an extended time period to submit their comments
on this information. Thus, the facts indicate that the applicants were afforded
greater procedural rights than those mandated in Ross above.
[64]
Nevertheless,
the applicants’ main concern with the breach of their procedural fairness
rights pertain to the Minister’s issuance of Mr. Hes’ mandate while an RCMP
criminal investigation was ongoing. The Minister’s power to investigate an
election appeal is provided in section 13 of the Regulations.
[65]
Jurisprudence
exists on situations where the RCMP has been conducting criminal investigations
into alleged corrupt electoral practices while an electoral appeal was before
the Minister. In Ross above, the Minister actually treated the RCMP
investigative report as the sole investigation report required under section 13
of the Regulations (at paragraph 10). Mr. Justice Blais considered the language
of subsection 13(1) of the Regulations and found that this provision granted
the Minister wide discretion in his choice of procedure (see Ross above,
at paragraph 31). This wide discretion arose in part from the requirement that
the Minister weigh the applicants’ rights against the larger public interest
(see Ross above, at paragraph 42).
[66]
Mr.
Justice Blais acknowledged that the individual retained by the Minister to
conduct the electoral appeal investigation could have coordinated his
investigation concurrently with the RCMP investigation (see Ross above,
at paragraph 33). The Minister could also have chosen to rely on evidence
gathered by the RCMP in their investigation “as the most expedient way to make
a determination under sections 78 and 79 of the Act” (see Ross above, at
paragraph 35). Finally, Mr. Justice Blais acknowledged that reports prepared in
the context of a criminal investigation, such as the local RCMP investigation
in this case, might necessitate the withholding of some information to protect
witnesses and safeguard evidence (see Ross above, at paragraph 75).
[67]
In
this case, the Minister exceeded the legal procedural fairness requirements by
providing early notification to the applicants of the pending investigation,
sharing copies of the Hes Report with the applicants and granting extended
periods of time to comment on the Hes Report. Although this extended period of
time was provided, Wilbur Dedam was the sole applicant to file additional
submissions. As noted in the Election Appeal Report, this submission did not
provide new evidence, but rather highlighted some minor errors in the Hes
Report and contradicted some of the statements referred to therein. Further,
the concern about the concurrent RCMP investigation was not raised until
November 2011 in supplemental affidavits filed by the applicants and Wilbur
Dedam’s lawyer.
[68]
As
mentioned above, the Minister has wide discretion on his choice of procedure
under section 13 of the Regulations. Although the specific fact situation that
arises in this case has not previously been raised, the jurisprudence clearly
suggests that it is possible to have concurrent RCMP criminal investigations
and election appeal investigations. The use of the word expedient in subsection
13(1) of the Regulations enforces the view that the Minister must bear in mind
the interests of both the applicants and the broader public in deciding what
procedure to apply under this provision.
[69]
In
summary, the facts indicate that the applicants were provided significant
procedural fairness rights throughout the election appeal investigation. The
Minister’s wide discretion and requirement to decide the validity of an election
appeal in an expedient manner enforces the finding that his decision to retain
Mr. Hes for the election appeal investigation concurrently with the ongoing
RCMP investigation was not a breach of procedural fairness.
[70]
Issue
3
Was there sufficient
evidence before the Minister to justify his decision?
Neither the Indian Act
nor the Regulations provide a definition of corrupt practice. Nevertheless,
guidance on determining the meaning of this term has emerged in the
jurisprudence. As indicated by Madam Justice Eleanor Dawson in Wilson above, at paragraph 23:
In
my view, no exhaustive definition can be given as to what constitutes corrupt
practice in the context of an election. However, at least one core concept of
corrupt practice is any attempt to prevent, fetter, or influence the free
exercise of a voter's right to choose for whom to vote. What is relevant is the
motive or intent behind the impugned conduct. Is the conduct directed to
improperly affecting the result of an election?
[71]
Madam
Justice Dawson continued at paragraph 33 in Wilson above:
[…]
Benefits must be distributed on the basis of merit. When a benefit is conferred
not based on merit, but rather based upon an intent to influence an elector, a
corrupt practice occurs.
[72]
Sufficiently
compelling circumstantial evidence can be relied upon in making a determination
on corrupt election practices (see Hudson above, at paragraph 86). In
addition, certain conduct can permit an inference to be drawn that such conduct
is intended to corrupt electors (see Wilson above, at paragraph 22).
[73]
The
findings and conclusions of an investigator retained under section 13 of the
Regulations are relevant in assessing a Minister’s decision on corrupt
electoral practices (see Hudson above, at paragraph 78).
[74]
Further,
as indicated by the language used in section 14 of the Regulations, the
evidentiary standard of proof for corrupt election practices requires only the appearance
of wrongdoing (see Keeper v Canada (Minister of Indian Affairs and Northern
Development), 2011 FC 307, [2011] FCJ No 387 at paragraphs 5 and 16). Thus,
there need only be sufficient evidence to substantiate the appearance that the
allegation is true (see Keeper above, at paragraph 8). As explained by Madam
Justice Dawson in Wilson above, at paragraph 34:
[…]
The core question to be answered was whether the three successful candidates by
their conduct, viewed as a whole, intended or attempted to improperly influence
the outcome of the election.
[75]
In
this case, there was clear evidence that all the applicants attended Doris
Abrams’ residence on May 8, 2010. A lobster dinner was offered to attendees.
The lobster was brought to Doris Abrams’ residence by applicant Jason Barnaby.
Election ballots were marked publicly in Doris Abrams’ kitchen without the privacy
required to complete ballots in secret. In the Election Appeal Report, INAC
recognized that there was insufficient evidence to establish that Patrick Leon
Somerville was paid $260 for his vote and that the video of the alleged
transaction between Sylvia Arlene Martin and Jason Barnaby was unreliable.
Nevertheless, the circumstances surrounding the provision of lobster and the
lack of privacy in filling out election ballots was deemed sufficient to
conclude that there would have been substantial pressure on voters to vote in
favour of the candidates in attendance (i.e., the applicants).
[76]
Recalling
the lower evidentiary threshold required for a Minister’s determination under
section 14 of the Regulations, I find that there was sufficient evidence before
the Minister for him to come to a determination of an appearance of corrupt
election practices.
[77]
Issue
4
Was the Minister’s order
disqualifying the applicants from running for office for a set period
reasonable?
The Minister’s power to
disqualify individuals from running for office for upwards of six years is
provided in subsection 78(3) of the Indian Act. This provision states:
|
78.(3) The
Minister may declare a person who ceases to hold office by virtue of
subparagraph (2)(b)(iii) to be ineligible to be a candidate for chief or
councillor of a band for a period not exceeding six years.
|
78.(3) Le
ministre peut déclarer un individu, qui cesse d’occuper ses fonctions en
raison du sous-alinéa (2)b)(iii), inhabile à être candidat au poste de chef
ou de conseiller d’une bande durant une période maximale de six ans.
|
[78]
Subparagraph
78(2)(b)(iii) of the Indian Act provides:
|
78. (2) The
office of chief or councillor of a band becomes vacant when
…
(b) the
Minister declares that in his opinion the person who holds that office
…
(iii) was
guilty, in connection with an election, of corrupt practice, accepting a
bribe, dishonesty or malfeasance.
|
78. (2) Le
poste de chef ou de conseiller d’une bande devient vacant dans les cas
suivants :
…
b) le
ministre déclare qu’à son avis le titulaire, selon le cas :
…
(iii) à
l’occasion d’une élection, s’est rendu coupable de manoeuvres frauduleuses,
de malhonnêteté ou de méfaits, ou a accepté des pots-de-vin.
|
[79]
Having
found that the Minister came to a reasonable conclusion on subparagraph
78(2)(b)(iii), I must now determine whether the Minister acted reasonably in
disqualifying the applicants for the times indicated in his decision.
[80]
It
is clear from the Act that the Minister has the authority under subparagraph
78(2)(b)(iii) of the Act to impose periods of disqualification to run as a
candidate. In the case of the applicants, other than Jason Dean Barnaby, they
were disqualified from being a candidate for two years from the date of the
order. Based on the evidence in this case, I am of the view that this was a
decision that the Minister was entitled to make and was a reasonable decision.
[81]
However,
with respect to Jason Dean Barnaby, the Minister disqualified him from being a
candidate for four years from the date of the Ministerial order. I am of the
view that the decision to disqualify this applicant for four years was
unreasonable. It is unclear from the recommendation at page 127 of the
applicants’ record as to the amount of money paid to Sylvia Arlene Martin. It
was also noted that the amount of money or goods in each case was low. In light
of the evidence, I am of the opinion that a disqualification for four years is
too long and instead, I would vary the disqualification to two years.
[82]
The
application for judicial review is therefore dismissed with the exception of
the disqualification period for Jason Dean Barnaby which is varied to a two
year disqualification period.
[83]
As
the respondent was largely successful on the judicial review application, I
would award costs to the respondent.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The application for
judicial review is dismissed with the exception of the disqualification period
for Jason Dean Barnaby which is varied to a two year disqualification period.
2. The respondent shall
have its costs of the application.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Federal
Courts Act,
RSC 1985, c F-7
|
2. (1) In
this Act, . . .
“federal
board, commission or other tribunal” means any body, person or persons having,
exercising or purporting to exercise jurisdiction or powers conferred by or
under an Act of Parliament or by or under an order made pursuant to a
prerogative of the Crown, other than the Tax Court of Canada or any of its
judges, any such body constituted or established by or under a law of a
province or any such person or persons appointed under or in accordance with
a law of a province or under section 96 of the Constitution Act, 1867;
18. (1) Subject
to section 28, the Federal Court has exclusive original jurisdiction
(a) to
issue an injunction, writ of certiorari, writ of prohibition, writ of
mandamus or writ of quo warranto, or grant declaratory relief, against any
federal board, commission or other tribunal; and
(b) to
hear and determine any application or other proceeding for relief in the
nature of relief contemplated by paragraph (a), including any proceeding
brought against the Attorney General of Canada, to obtain relief against a
federal board, commission or other tribunal.
18.1(3) On
an application for judicial review, the Federal Court may
. . .
(b) declare
invalid or unlawful, or quash, set aside or set aside and refer back for
determination in accordance with such directions as it considers to be
appropriate, prohibit or restrain, a decision, order, act or proceeding of a
federal board, commission or other tribunal.
(4) The
Federal Court may grant relief under subsection (3) if it is satisfied that
the federal board, commission or other tribunal
. . .
(d) based
its decision or order on an erroneous finding of fact that it made in a
perverse or capricious manner or without regard for the material before it;
18.2 On
an application for judicial review, the Federal Court may make any interim
orders that it considers appropriate pending the final disposition of the
application.
18.2 On
an application for judicial review, the Federal Court may make any interim
orders that it considers appropriate pending the final disposition of the
application.
|
2. (1) Les
définitions qui suivent s’appliquent à la présente loi. . . .
«
office fédéral » Conseil, bureau, commission ou autre organisme, ou personne
ou groupe de personnes, ayant, exerçant ou censé exercer une compétence ou
des pouvoirs prévus par une loi fédérale ou par une ordonnance prise en vertu
d’une prérogative royale, à l’exclusion de la Cour canadienne de l’impôt et
ses juges, d’un organisme constitué sous le régime d’une loi provinciale ou
d’une personne ou d’un groupe de personnes nommées aux termes d’une loi
provinciale ou de l’article 96 de la Loi constitutionnelle de 1867.
18. (1) Sous
réserve de l’article 28, la Cour fédérale a compétence exclusive, en première
instance, pour :
a) décerner
une injonction, un bref de certiorari, de mandamus, de prohibition ou de quo
warranto, ou pour rendre un jugement déclaratoire contre tout office fédéral;
b) connaître
de toute demande de réparation de la nature visée par l’alinéa a), et
notamment de toute procédure engagée contre le procureur général du Canada
afin d’obtenir réparation de la part d’un office fédéral.
18.1(3) Sur
présentation d’une demande de contrôle judiciaire, la Cour fédérale
peut :
.
. .
b) déclarer
nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement
conformément aux instructions qu’elle estime appropriées, ou prohiber ou
encore restreindre toute décision, ordonnance, procédure ou tout autre acte
de l’office fédéral.
(4) Les
mesures prévues au paragraphe (3) sont prises si la Cour fédérale est
convaincue que l’office fédéral, selon le cas :
.
. .
d) a
rendu une décision ou une ordonnance fondée sur une conclusion de fait
erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des
éléments dont il dispose;
18.2 La
Cour fédérale peut, lorsqu’elle est saisie d’une demande de contrôle
judiciaire, prendre les mesures provisoires qu’elle estime indiquées avant de
rendre sa décision définitive.
18.2 La
Cour fédérale peut, lorsqu’elle est saisie d’une demande de contrôle
judiciaire, prendre les mesures provisoires qu’elle estime indiquées avant de
rendre sa décision définitive.
|
Federal
Courts Rules,
SOR/98-106
|
385. (1) Unless
the Court directs otherwise, a case management judge or a prothonotary
assigned under paragraph 383(c) shall deal with all matters that arise prior
to the trial or hearing of a specially managed proceeding and may
(a) give
any directions that are necessary for the just, most expeditious and least
expensive determination of the proceeding on its merits;
(b) notwithstanding
any period provided for in these Rules, fix the period for completion of
subsequent steps in the proceeding;
(c) fix
and conduct any dispute resolution or pre-trial conferences that he or she
considers necessary; and
(d) subject
to subsection 50(1), hear and determine all motions arising prior to the
assignment of a hearing date.
|
385. (1) Sauf
directives contraires de la Cour, le juge responsable de la gestion de
l’instance ou le protonotaire visé à l’alinéa 383c) tranche toutes les
questions qui sont soulevées avant l’instruction de l’instance à gestion
spéciale et peut :
a) donner
toute directive nécessaire pour permettre d’apporter une solution au litige
qui soit juste et la plus expéditive et économique possible;
b) sans
égard aux délais prévus par les présentes règles, fixer les délais applicables
aux mesures à entreprendre subséquemment dans l’instance;
c) organiser
et tenir les conférences de règlement des litiges et les conférences
préparatoires à l’instruction qu’il estime nécessaires;
d) sous
réserve du paragraphe 50(1), entendre les requêtes présentées avant que la
date d’instruction soit fixée et statuer sur celles-ci.
|
Indian
Act, RSC 1985, c
I-5
|
78. (1) Subject
to this section, the chief and councillors of a band hold office for two
years.
(2) The
office of chief or councillor of a band becomes vacant when
(a) the
person who holds that office
(i) is
convicted of an indictable offence,
(ii) dies
or resigns his office, or
(iii) is
or becomes ineligible to hold office by virtue of this Act; or
(b) the
Minister declares that in his opinion the person who holds that office
(i) is
unfit to continue in office by reason of his having been convicted of an
offence,
(ii) has
been absent from three consecutive meetings of the council without being
authorized to do so, or
(iii) was
guilty, in connection with an election, of corrupt practice, accepting a
bribe, dishonesty or malfeasance.
(3) The
Minister may declare a person who ceases to hold office by virtue of
subparagraph (2)(b)(iii) to be ineligible to be a candidate for chief or
councillor of a band for a period not exceeding six years.
|
78. (1) Sous
réserve des autres dispositions du présent article, les chef et conseillers
d’une bande occupent leur poste pendant deux années.
(2) Le
poste de chef ou de conseiller d’une bande devient vacant dans les cas
suivants :
a) le
titulaire, selon le cas :
(i)
est déclaré coupable d’un acte criminel,
(ii) meurt
ou démissionne,
(iii) est
ou devient inhabile à détenir le poste aux termes de la présente loi;
b) le
ministre déclare qu’à son avis le titulaire, selon le cas :
(i)
est inapte à demeurer en fonctions parce qu’il a été déclaré coupable d’une
infraction,
(ii) a,
sans autorisation, manqué les réunions du conseil trois fois consécutives,
(iii) à
l’occasion d’une élection, s’est rendu coupable de manoeuvres frauduleuses,
de malhonnêteté ou de méfaits, ou a accepté des pots-de-vin.
(3) Le
ministre peut déclarer un individu, qui cesse d’occuper ses fonctions en
raison du sous-alinéa (2)b)(iii), inhabile à être candidat au poste de chef
ou de conseiller d’une bande durant une période maximale de six ans.
|
Indian
Band Election Regulations,
CRC c 952
|
5.(4) Subject
to subsection (5), at least 35 days before the day on which an election is to
be held, the electoral officer shall mail, to every elector who does not
reside on the reserve, a package consisting of
(a) a
ballot, initialled on the back by the electoral officer;
(b) an
outer, postage-paid return envelope, pre-addressed to the electoral officer;
(c) a
second, inner envelope marked “Ballot” for insertion of the completed ballot;
(d) a
voter declaration form;
(e) a
letter of instruction regarding voting by mail-in ballot;
(f) a
statement
(i) identifying
the location of all polling places, and
(ii) advising
the elector that he or she may vote in person at a polling place on the day
of the election in accordance with subsection 6(3) in lieu of voting by
mail-in ballot; and
(g) a
list of the names of any candidates who were acclaimed.
(5) Where
the reserve consists of more than one electoral section, the package mailed
to an elector who does not reside on the reserve shall contain a ballot for
the candidates for chief only.
6.1 As
soon as is practicable after the close of the polls, the electoral officer or
deputy electoral officer shall, in the presence of any candidates or their
agents who are present, open each envelope containing a mail-in ballot that
was received before the close of the polls and, without unfolding the ballot,
(a) reject
the ballot if
(i) it
was not accompanied by a voter declaration form, or the voter declaration
form is not signed or witnessed,
(ii) the
name of the elector set out in the voter declaration form is not on the
voters list, or
(iii) the
voters list shows that the elector has already voted; or
(b) in
any other case, place a mark on the voters list opposite the name of the
elector set out in the voter declaration form, and deposit the ballot in a
ballot box.
11. The
electoral officer shall deposit all ballot papers in sealed envelopes with
the superintendent, who shall retain them in his possession for eight weeks,
and unless otherwise directed by the Minister or by a person authorized by
him shall then destroy the ballot papers in the presence of two witnesses who
shall make a declaration that they witnessed the destruction of those papers.
12. (1) Within
45 days after an election, a candidate or elector who believes that
(a) there
was corrupt practice in connection with the election,
(b) there
was a violation of the Act or these Regulations that might have affected the
result of the election, or
(c) a
person nominated to be a candidate in the election was ineligible to be a
candidate,
may
lodge an appeal by forwarding by registered mail to the Assistant Deputy
Minister particulars thereof duly verified by affidavit.
(2) Where
an appeal is lodged under subsection (1), the Assistant Deputy Minister shall
forward, by registered mail, a copy of the appeal and all supporting
documents to the electoral officer and to each candidate in the electoral
section in respect of which the appeal was lodged.
(3) Any
candidate may, within 14 days of the receipt of the copy of the appeal,
forward to the Assistant Deputy Minister by registered mail a written answer
to the particulars set out in the appeal together with any supporting
documents relating thereto duly verified by affidavit.
(4) All
particulars and documents filed in accordance with the provisions of this
section shall constitute and form the record.
13. (1) The
Minister may, if the material that has been filed is not adequate for
deciding the validity of the election complained of, conduct such further
investigation into the matter as he deems necessary, in such manner as he
deems expedient.
(2) Such
investigation may be held by the Minister or by any person designated by the
Minister for the purpose.
(3) Where
the Minister designates a person to hold such an investigation, that person
shall submit a detailed report of the investigation to the Minister for his
consideration.
14. Where
it appears that
(a) there
was corrupt practice in connection with an election,
(b) there
was a violation of the Act or these Regulations that might have affected the
result of an election, or
(c) a
person nominated to be a candidate in an election was ineligible to be a
candidate,
the
Minister shall report to the Governor in Council accordingly.
|
(4) Sous
réserve du paragraphe (5), au moins trente-cinq jours avant l’élection, le
président d’élection envoie par la poste aux électeurs qui ne résident pas
dans la réserve une trousse comprenant les éléments suivants :
a) un
bulletin de vote portant au verso les initiales du président d’élection;
b) une
enveloppe extérieure, c’est-à-dire l’enveloppe de retour préaffranchie et
préadressée au président d’élection;
c) une
enveloppe intérieure portant la mention « bulletin de vote » dans
laquelle doit être inséré le bulletin de vote rempli;
d) une
formule de déclaration d’identité;
e) les
instructions relatives au vote par bulletin de vote postal;
f) un
avis mentionnant :
(i)
l’emplacement de chacun des bureaux de vote,
(ii) que
l’électeur peut, au lieu de voter par bulletin de vote postal, voter en
personne, en conformité avec le paragraphe 6(3), à un bureau de vote le jour
de l’élection;
g) le
cas échéant, un avis mentionnant le nom des personnes élues par acclamation.
(5) Lorsqu’une
réserve est divisée en plus d’une section électorale, la trousse envoyée par
la poste aux électeurs qui ne résident pas dans la réserve contient un
bulletin de vote qui ne concerne que l’élection du chef.
6.1 Dans
les plus brefs délais après la fermeture du scrutin, en présence des
candidats ou de leurs agents qui se trouvent sur les lieux, le président
d’élection ou le président du scrutin ouvre les enveloppes reçues avant la
fermeture du scrutin et, sans déplier le bulletin de vote postal qu’elles
contiennent :
a) soit
rejette le bulletin si :
(i)
aucune formule de déclaration d’identité ne l’accompagne ou celle-ci n’est
pas signée ou attestée par un témoin,
(ii) le
nom mentionné sur la formule de déclaration d’identité n’apparaît pas sur la
liste électorale,
(iii) la
liste électorale indique que l’électeur a déjà voté;
b) soit
fait une marque sur la liste électorale en regard du nom de l’électeur
mentionné dans la formule de déclaration d’identité et dépose le bulletin de
vote postal dans une boîte de scrutin.
11. Le
président d’élection doit remettre tous les bulletins de vote dans des
enveloppes scellées, au surintendant, qui doit les garder en sa possession durant
huit semaines et, sauf ordonnance contraire du Ministre ou d’une personne
qu’il y autorise, les détruire en présence de deux témoins qui déclarent
avoir été témoins de leur destruction.
12. (1) Si,
dans les quarante-cinq jours suivant une élection, un candidat ou un électeur
a des motifs raisonnables de croire :
a) qu’il
y a eu manoeuvre corruptrice en rapport avec une élection,
b) qu’il
y a eu violation de la Loi ou du présent règlement qui puisse porter atteinte
au résultat d’une élection, ou
c) qu’une
personne présentée comme candidat à une élection était inéligible,
il
peut interjeter appel en faisant parvenir au sous-ministre adjoint, par
courrier recommandé, les détails de ces motifs au moyen d’un affidavit en
bonne et due forme.
(2) Lorsqu’un
appel est interjeté au titre du paragraphe (1), le sous-ministre adjoint fait
parvenir, par courrier recommandé, une copie du document introductif d’appel
et des pièces à l’appui au président d’élection et à chacun des candidats de
la section électorale visée par l’appel.
(3) Tout
candidat peut, dans un délai de 14 jours après réception de la copie de
l’appel, envoyer au sous-ministre adjoint, par courrier recommandé, une
réponse par écrit aux détails spécifiés dans l’appel, et toutes les pièces
s’y rapportant dûment certifiées sous serment.
(4) Tous
les détails et toutes les pièces déposés conformément au présent article
constitueront et formeront le dossier.
13. (1) Le
Ministre peut, si les faits allégués ne lui paraissent pas suffisants pour
décider de la validité de l’élection faisant l’objet de la plainte, conduire
une enquête aussi approfondie qu’il le juge nécessaire et de la manière qu’il
juge convenable.
(2) Cette
enquête peut être tenue par le Ministre ou par toute personne qu’il désigne à
cette fin.
(3) Lorsque
le Ministre désigne une personne pour tenir une telle enquête, cette personne
doit présenter un rapport détaillé de l’enquête à l’examen du Ministre.
14. Lorsqu’il
y a lieu de croire
a) qu’il
y a eu manoeuvre corruptrice à l’égard d’une élection,
b) qu’il
y a eu violation de la Loi ou du présent règlement qui puisse porter atteinte
au résultat d’une élection, ou
c) qu’une
personne présentée comme candidat à une élection était inadmissible à la
candidature,
le
Ministre doit alors faire rapport au gouverneur en conseil.
|
Email this Content