Date: 20090630
Docket: T-834-08
Citation: 2009 FC 690
Montréal, Quebec,
June 30, 2009
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
KEITH MYIOW
Applicant
and
MOHAWK COUNCIL OF KAHNAWAKE
and
COURT OF KAHNAWAKE
and
JUSTICES OF THE PEACE
JOSEPHINE CUROTTE, SAM KIRBY AND
STEPHANIE CROSS
Respondents
and
ATTORNEY GENERAL OF CANADA,
and
MR. LINDSAY LEBORGNE,
as Electoral Officer, 2009 MCK Elections
and
MS. ARLENE JACOBS,
as Assistant Electoral Officier, 2009 MCK
Elections
Mis en cause
REASONS FOR ORDER AND ORDER
[1]
The
Court fully agrees with the position of the Applicant. The Applicant is a
native of Kahnawake, resides on the Kahnawake Reserve and is a full-fledged
member of the Kahnawake Community.
[2]
The
Applicant was first elected as a Chief of the Mohawk Council of Kahnawake
(“MCK”) in July 2000 for a term of two (2) years and after was re-elected in
July 2002, July 2004 and July 2006 for a term of three (3) years, ending in July
2009.
[3]
On
February 2006, the “MCK” had passed a motion of non-confidence which was contested
before this Court by the filing of an Application for judicial review (File T-595-06)
which has been settled out-of-court after the re-election of the Applicant in
July 2006.
[4]
While
the Applicant was in his mandate as a duly elected Chief, the “MCK” had again passed
a motion of non-confidence on October 29, 2007 which was contested by the
filing of an Application for judicial review as it appears in the present file
(T-834-08).
[5]
The
2009 MCK Elections have been called for July 4, 2009.
[6]
On May
6, 2009, the mis en cause, Lindsay LeBorgne, acting as the
Electoral Officer appointed in accordance with the MCK Election Law (Exhibit
P-32), announced the following dates for the various activities related to
the 2009 Election, as:
|
1.
Saturday,
May 30 :
|
Nomination Day
|
|
|
2.
Monday,
June 22 :
|
Candidates Night
|
|
|
3.
Saturday,
June 27:
|
Special Advance Poll
|
(This Special Advance Poll vote was to
have been set aside by agreement of the parties and will have to be redone in
accordance with this interim and interlocutory injunction.)
|
|
4.
Saturday,
July 4:
|
Election Day
|
|
As appears from a copy of the “News
Release”, served and filed as Exhibit P-33.
[7]
In
accordance and in respect of the “MCK” Election Law (Exhibit P-32), the
Applicant filed a Declaration of Eligibility on May 30, 2009 with the
appropriate forms attached as Schedules “B”, “C” and “D” for nomination for
Council Grand Chief, as it appears from copies of those documents served and
filed as Exhibit P-34.
[8]
Also,
on May 30, 2009, a “News Release” issued by the mis en cause, The
Electoral Officer announced, notably, the Applicant’s nomination for the
position of Grand Chief with two others nominees as it appears from a copy of
the said Release served and filed as Exhibit P-35.
[9]
However, in a letter dated
June 5, 2009 and received by the Applicant on June 8, 2009, signed by the mis
en cause, the Electoral Officer (Lindsay LeBorgne) and by the
Assitant Electoral Officer (Arlene Jacobs), the Applicant was informed
that his nomination for Grand Chief in the 2009 Election had been refused for
the following reasons:
A) You
did not end your previous term of office in good standing this being an
essential eligibility requirement under section 15.1(g) of the Mohawk
Council of Kahnawake Election Law. This information has been confirmed by
MCED #39/2007-2008 and by the written judgment of the Court of Kahnawake issued
on the 1st of Ohiari:ha/June 2009, both documents are attached
herewith.
As it appears from a copy of the letter and the attached
documents served and filed as Exhibit P‑36.
[10]
As it appears from a
document printed from the “MCK” website, served and filed as Exhibit P-37,
the only official nominees for the position of Grand Chief are Mrs. Mike
Delisle Jr. and Mr. Warren Lahache.
[11]
As it appears from the
previous “Notice of Application” and the “Amended Notice of
Application” filed in the present file (T-834-08), the Applicant had
contested vigorously as ultra vires, illegal, null and void the MCK
motion of non-confidence and the decision of the Court of Kahnawake, which constituted
the motives for the refusal of the Applicant’s nomination for Grand Chief in
the 2009 Election (See Exhibit P-36).
[12]
It is obvious that
the present file (T-834-08), as it appears from the schedule established
by an Order rendered by Prothonotary Tabib (April 28, 2009), will not be heard
and decided in time by this Court for the 2009 Election fixed for next July 4,
2009.
[13]
It is also obvious,
that an appeal before the Court of Kahnawake, will not be heard and decided in
time for the 2009 Election but, particularly, will be moot since the
Court has already decided without hearing that the Applicant “did not leave his
office in good standing as per Section 8.8 of the Mohawk Council of Kahnawake
Disciplinary Measures Regulations” (See Exhibit P-36), establishing
consequently the ineligibility of the Applicant as a nominee for the 2009
Election.
[14]
In accordance with
the jurisprudential tripartite test applicable in the matter, the Applicant has
serious issues to be tried, that he will suffer irreparable harm
if relief is not granted, and the Court agrees that the balance of
convenience does favour him.
SERIOUS
ISSUES TO BE TRIED
[15]
As it appears from
the voluminous Notices of Application filed in the present file, the Applicant
has serious issues to be tried and to be decided by this Court, as a prima
facie analysis demonstrates.
[16]
The grounds for the
judicial Review of the motion of non-confidence of the “MCK” and the
proceedings before the Court of Kahnawake are as follows:
16.1. Regarding the non-confidence vote and the removal of the
Applicant from his office as an elected Chief of Mohawk Council of Kahnawake,
acting as a Federal Board, the Respondent, the Mohawk Council of Kahnawake, is
subject to judicial review by this Court to examine whether the Court of Kahnawake:
16.1.1 Had no jurisdiction to adopt the Mohawk Council of
Kahnawake Disciplinary Measures Regulations (Exhibit P-9) and, SUBSIDIARILY,
those regulations could not be applied as disciplinary measures against an
elected Chief;
16.1.2 Had no jurisdiction and acted ultra vires by
removing the Applicant from his office as an elected Chief member of the Mohawk
Council of Kahnawake while his term was not completed;
16.1.3 Had no jurisdiction to remove the Applicant from his
office as an elected chief in a situation other than those provided for by Section
78(2) of the Indian Act;
16.1.4 Had no jurisdiction to give to the Respondents, the
Justices of the Peace or the “Court of Kahnawake”, jurisdiction of an Appeal or
a review of a vote of non-confidence adopted against a democratically elected
chief such as the Applicant;
16.1.5 Had no jurisdiction and acted ultra vires by
removing the Applicant from his office of elected Chief in contravention.
IN ADDITION, THE APPLICANT WILL PRESENT IN JUDICIAL REVIEW A REQUEST
TO EXAMINE WHETHER:
16.1.6 The process followed by the Mohawk Council of Kahnawake
that led to the vote of non-confidence and the removal of the Applicant from
his office of elected Chief was clearly in violation of its duty to act fairly,
the right owed by the Applicant for a procedure fairness, his right to have a
sufficient and compute notice prior to the vote, his right to Counsel, his
right to a fair process of investigation and the respect of the natural
principles;
16.1.7 The Mohawk Council of Kahnawake has based its vote of
non-confidence arbitrarily, on erroneous findings of facts, perceptions and
subjective impressions which were made in a perverse and capricious manner,
without consideration for the exact and objective facts it possessed and
without respect for the principles of natural justice and procedural fairness
that was required by the law;
16.1.8 The vote of non-confidence was unreasonable in the light
of the facts established by Mrs. Cree’s Report to the effect that the Applicant
had acted in good faith, within his functions and responsibilities of his
Portfolio, using an appropriate procedure and without causing any prejudice to
anyone;
16.1.9 The vote of non-confidence passed by the Mohawk Council
is the direct result of political strategies, conflict of interests, based on
misrepresentations and is the continuation of the constant harassing and
“political saga” against the Applicant which began with the first
non-confidence motion which was contested before this Honourable Court in the
file T-595-06;
16.1.10 The conduct and the decision of the Mohawk Council in
adopting such non-confidence votes clearly shows its refusal to respect the
democratic choice of the members of the Community in electing the Applicant as
a Chief on numerous occasions;
16.2. With respect to the jurisdiction and the “decisions” of the
Respondents the Court of Kahnawake and the Justices of the Peace, the Applicant
will, further, add in judicial review, a request for an examination as to
whether:
16.2.1 The Court and the Justices of the Peace had no
jurisdiction, acted ultra vires and/or exceeded their jurisdiction by
becoming involved in the matter relating to the Applicant in his quality of
elected Chief, member of the Mohawk Council of Kahnawake;
16.2.2 The Court and the Justices of the Peace acted ultra
vires and have usurped the powers of this Court by hearing several motions
and rendering decisions “in appeal” and/or “in revision” of decisions of the
Mohawk Band Council to the effect of removing the Applicant of his functions as
an elected Chief member of the Mohawk Council of Kahnawake;
16.2.3 The Court and the Justices of the Peace have no
jurisdiction, have acted ultra vires and have exceeded their jurisdiction
in acting as the Justices of the Peace, sitting on a “bench of three” as a
Court in an appeal revising a disciplinary measure imposed to the Applicant as
an elected Chief, member of the Mohawk Council of Kahnawake;
16.2.4 The Court and the Justices of the Peace have acted
illegally and have disregarded the Applicant’s rights to the most elementary
rules of natural justice by refusing to hear the Applicant, by refusing to
treat him with impartiality, by refusing to recuse themselves on the basis of
reasonable apprehensions of bias having been alleged and established, by
illegally rendering a decision jeopardising the Applicant right to a public
hearing, before an impartial and independent Tribunal under the standard rules
of evidence in such a matter;
16.2.5 The Court and the Justices of the Peace have acted ultra
vires and exceeded their jurisdiction by refusing to recognize the
Applicant’s right to be heard and to submit his very serious questions of law
related to their lack of jurisdiction “rationae materiae” and by deciding
“proprio motu” that they had jurisdiction alleging a declaratory decision
rendered by a Justice of the Peace (Exhibit P-25) which was irrelevant
and had no bearing whatsoever with the matter involved in the present;
16.2.6 The Court and the Justices of the Peace have acted ultra vires,
have committed a “déni de justice” and have exceeded their jurisdiction by
publishing a Press Release (Exhibit P-27) to the effect that they have
rendered a decision “dismissing the Applicant’s Appeal and upholding the
decision of the Mohawk Court of Kahnawake to remove Chief Myiow” despite the
fact no appeal had been heard on the merits, that the hearing held on March 19th
2009, had been suspended as so understood by all parties and their respective
Councils and that, the Court and Justices of the Peace had been notified that
their decision ruling they had jurisdiction would be challenged before this
Court and, finally, that the Applicant could not proceed since his principal
witness Mr. Louis Delisle, from whom the original complaint originated, was
absent and since he was scheduled to be their first witness. (On the merits,
all the previous proceedings of both parties in regard to the decision of the
Court of Kahnawake to remove Chief Myiow will be subject to examination).
[17]
According
to the above cited grounds for the Judicial Review, the Applicant will present
evidence to examine whether:
TO DECLARE, that the Respondent, the
Mohawk Council of Kahnawake, has acted ultra vires and without
jurisdiction in enacting the Disciplinary Measures Regulations (Exhibit
P-9), OR SUBSIDIARILY TO DECLARE the Regulations could not be applied to
the Applicant an elected Chief;
TO DECLARE, that the Respondent, the
Mohawk Council of Kahnawake, has acted ultra vires and without
jurisdiction by giving the “Court of Kahnawake” and The Justices of the Peace
jurisdiction to decide on an appeal and/or revision of a decision taken by the
Mohawk Council of Kahnawake;
TO DECLARE, that the Respondent, the
Mohawk Council of Kahnawake, has acted ultra vires and without
jurisdiction in adopting a motion of non-confidence against the Applicant
having directly the consequence that he was removed from his office and duties
as an elected Chief for the rest of his term all in contravention of the
democratic principles established by the Canadian Bill of Rights, the Charter
of Rights and the unwritten constitutional principles;
TO DECLARE, that the Respondent, the
Mohawk Council of Kahnawake, has acted ultra vires and without jurisdiction
in adopting and acting under other situations than those established by the Indian
Act (Section 78(2)) to exclude the Applicant of his office, duties and
activities as a Chief, member of the Kahnawake Band Council, duly elected by
the members of Kahnawake Community;
TO DECLARE, that the Respondents,
Josephine Curotte, Sam Kirby and Stephanie Cross, as Justices of the Peace,
have no jurisdiction and no competence according to the Indian Act, the Criminal
Code, the Courts of Justice Act, the Code of Penal Procedure
and any other laws applicable to the present instance, on a matter such as the
removal of an elected Chief such as the Applicant;
TO DECLARE, that the Respondents,
Josephine Curotte, Sam Kirby and Stephanie Cross, as Justices of the Peace directly
paid by their employer the Mohawk of Kahnawake, did not present guarantees of
impartiality needed from a tribunal;
ALSO, THE APPLICANT WILL REQUEST ON JUDICIAL REVIEW AN EXAMINATION
AS TO WHETHER:
TO DECLARE, that the Respondents,
Josephine Curotte, Sam Kirby and Stephanie Cross have acted ultra vires
and exceeded their jurisdiction in their decision dates on May the 2nd
2008 (Exhibit P-21) establishing that the hearing shall be “in camera”
and denying the motion for the Recusal of the Justices of the Peace “Josie”
(sic) Curotte and Sam Kirby;
TO DECLARE, that the Respondents,
Josephine Curotte, Sam Kirby and Stephanie Cross have acted ultra vires
and exceeded their jurisdiction in their verbal decision dated on March 19th
2009, and have violated the principles of natural justice, especially that of audi
alteram partem rule, in refusing to hear the very serious jurisdictional
arguments of the Applicant, and TO DECLARE void and null that
decision;
TO DECLARE, that the Respondents,
Josephine Curotte, Sam Kirby and Stephanie Cross have acted ultra vires
and exceeded their jurisdiction, and violated the principles of natural justice
in their “decision” dated May 2nd (Exhibit P-21) and TO
DECLARE void and null that decision;
TO ISSUE, DETERMINE AND GRANT any
declatory relief and order for relief in the nature of the Applicant against
his illegal and unlawful removal from his elected office of Chief of the Mohawk
Council of Kahnawake;
TO DECLARE that the
non-confidence Vote (Exhibit P-1) was illegal, ultra vires and
abusive, made in bad faith and against the principles of natural justice, the
procedural fairness and that the Mohawk Council of Kahnawake has acted in an
arbitrary and discrimination manner in violation of the Applicant’s fundamental
rights;
TO DECLARE unlawful,
invalid, null and void and QUASH the non-confidence Vote held on October
2007 and the removal of the Applicant as an elected Chief of the Mohawk Council
of Kahnawake;
TO DECLARE that the
Respondent, the Mohawk Council of Kahnawake, had no jurisdiction to adopt the Disciplinary
Measures Regulations (Exhibit P-9) OR SUBSIDIARILY TO DECLARE that the Regulations
could not be applied to the Applicant as an elected Chief;
TO DECLARE that the
Applicant, Keith Myiow, is still Chief and member of the Mohawk Council
of Kahnawake for the rest of his term.
[18]
For all
these reasons, the Applicant has demonstrated a prima facie case and the
existence of serious issues to be tried by this Court.
IRREPARABLE HARM
[19]
The
Applicant’s nominee position for Grand Chief is a prestigious honor within the
tribe and significant in the Community as certain members of the Community have
asked him to be such a nominee.
[20]
The
Applicant, in accordance to the MCK Election Act, has filed a Declaration of
Eligibility (Exhibit P-32) which respects all the prescriptions of the
law.
[21]
The
Applicant has submitted his candidature democratically in the universal
suffrage of the members of the Kahnawake Community, and has let them choose whether
he is to be Grand Chief.
[22]
In respect
of the 2009 Election which is scheduled for July 4, 2009, the Applicant has
demonstrated an imminent irreparable harm. In reality, it is obvious that non-participation
of the Applicant to the 2009 Election cannot be quantified in monetary terms
and cannot be remedied in any other manner.
[23]
Taking
into account that the candidacy to the function of Grand Chief is directly
relevant to the Applicant’s personal rights, he will be the only one to suffer
an irreparable harm if he could not be a nominee in the 2009 Election.
THE BALANCE OF CONVENIENCE
[24]
On this
issue, the balance of convenience favours the Applicant while the irreparable
harm that would be caused to the Applicant if the injunction order is not now
granted (3 days prior to the election) and should subsequently be considered on
the merits, outweighs the harm likely to be caused to the Respondents and any
other interested person.
[25]
The
Applicant and the voters, members of his Community, will obviously suffer irreparable
harm if an injunction order is not granted.
[26]
Consequently,
the balance of convenience favours the Applicant and the voters.
[27]
This
Motion is well founded in fact and in law.
ORDER
THIS COURT ORDERS THAT:
1. AN INTERIM
INJUNCTION be granted for the purpose of the
forthcoming election on July 4, 2009 ordering to the mis en cause,
the Electoral(s) Officer(s) of the 2009 Election of the Mohawk Council of
Kahnawake and the Mohawk Council of Kahnawake:
TO ACCEPT the nomination
of the Applicant, Mr. Keith Myiow for Grand Chief in the 2009 Election
scheduled for July 4, 2009;
TO DECLARE the Applicant,
Mr. Keith Myiow, eligible for the nomination of Grand Chief in the 2009
Election scheduled for July 4, 2009 with all the rights and privileges attached
to a nominee by virtue of the Mohawk Election Law;
TO PLACE the name of the
Applicant, Mr. Keith Myiow, on the ballot for the Election Day, scheduled for July
4, 2009, to run for Grand Chief in the Election;
TO PUBLICIZE widely and
in any manner, the Order of this Court granting this interim injunction;
2. FURTHERMORE, the interlocutory injunction of
this Court orders the mis en cause, the
Electoral(s) Officer(s) of the 2009 Election of the Mohawk Council of Kahnawake
and the Mohawk Council of Kahnawake:
TO ACCEPT the nomination of the Applicant, Mr. Keith Myiow for Grand Chief for
the 2009 Election scheduled for July 4, 2009;
TO DECLARE the Applicant, Mr. Keith Myiow, eligible for the nomination of Grand
Chief in the 2009 Election, scheduled for July 4, 2009 with all the rights and
privileges attached to a nominee by virtue of the Mohawk Election Law;
TO PLACE the name of the Applicant, Mr. Keith Myiow, on the ballot papers for
the Election Day, scheduled on July 4, 2009, to run for Grand Chief in the
Election;
TO PUBLICIZE widely and in any manner, the Order of this Court granting this
interlocutory injunction;
THE COSTS are in the
cause.
(All, in this matter, is subject to an eventual
proceeding on the merits as soon as is practicable for the parties and the
Court.)
“Michel M.J. Shore”
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