Date: 20091020
Docket: T-1573-08
Citation:
2009 FC 1060
Ottawa, Ontario, October 20, 2009
PRESENT:
The Honourable Mr. Justice Beaudry
BETWEEN:
GISÈLE
BACON
Applicant
AND
APPEAL BOARD OF THE
BETSIAMITES BAND COUNCIL and
PAUL VOLLANT and RAPHAËL PICARD
Respondents
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Gisèle Bacon
(the applicant) is applying under section 18.1 of the Federal
Courts Act, R.S.C. 1985, c. F‑7, for judicial review of a
decision made by the Appeal Board of the Betsiamites Band Council on
September 17, 2008, finding her election challenge inadmissible and
dismissing it.
Background
[2]
On
August 17, 2008, the applicant, who was running for the office of
councillor in the election for the Betsiamites Band Council (the Council), was
defeated. She obtained only 291 votes. There was a difference of
321 votes between her and the candidate elected to the sixth and final seat
on the Council. In the same election, the respondents Raphaël Picard and
Paul Vollant were elected to the offices of chief and councillor,
respectively. The Council’s election process is governed by an electoral code
called the Code concernant les élections du Conseil de bande de Betsiamites (May 24, 1994)
(the Code) (pages 38‑56 of the applicant’s record).
[3]
The
applicant submits that she saw Stéphane Tshernish handing out alcohol and
other substances to certain Betsiamites members on election day. After the
election, she investigated and says that she learned that the respondents and
one of their representatives had committed corrupt practices to try to
influence the result of the election. The respondents and
Stéphane Tshernish allegedly offered money, beer and drugs to certain
electors in exchange for a promise to vote for their team.
[4]
On
September 2, 2008, the applicant filed an appeal request with the
electoral officer, Cynthia Labrie. The request contained her affidavit and
10 unsworn handwritten statements signed by persons who were aware of the
alleged corrupt practices. Those statements were all drawn up by the applicant
but were signed by 10 different persons.
[5]
The
electoral officer forwarded a copy of the appeal request to the respondents. In
an answer record dated September 11, 2008, the respondents challenged
the admissibility and adequacy of the evidence submitted by the applicant. The
record contained the solemn declarations of the respondents and
Stéphane Tshernish denying all the applicant’s allegations.
[6]
The
electoral officer forwarded the appeal request to the Council’s executive
director, who convened the Council’s Appeal Board (the Appeal Board). The
Appeal Board is made up of the executive director, the police chief and a
lawyer. Its decisions are subject to judicial review.
Impugned decision
[7]
The Appeal
Board concluded that the appeal request was inadmissible and dismissed it. The
reasons for that decision are detailed and supported by relevant case law.
[8]
The Appeal
Board stated that the Code made it responsible for determining whether the
material that had been filed was adequate and whether the allegations that had
been made should be investigated. Section 8.7 of the Code provides as
follows: [translation] “The
electoral officer shall then refer the record to the executive director, who
shall convene the Appeal Board, which shall conduct an investigation if the
material that has been filed appears to be adequate for challenging the
validity of the election.”
[9]
After
analysing the federal and Quebec interpretation statutes and the case law, the
Appeal Board first determined that the election challenge request was timely
(the time limit was 14 days after the election) since it had been filed on
September 2, 2008. This took account of statutory holidays, weekends
and the Monday of the September long weekend.
[10]
The Appeal
Board then considered whether the applicant’s affidavit was adequate for
challenging the validity of the election. After analysing the case law, the
Appeal Board summarized the principles it intended to apply as follows:
[translation]
It is therefore important for this Board
to verify whether the challenge sets out facts that appear to warrant setting
aside the election. For an election to be set aside on the basis of corrupt
practices, the following essential elements must be present at the outset:
- a corrupt practice;
- committed by a
candidate or the candidate’s agent or mandatary;
- or committed by a
third party with the candidate’s participation, encouragement, consent or
authorization, on the candidate’s advice or orders, etc.
(paragraph 51, Appeal Board’s decision)
[11]
The Appeal
Board noted that the applicant’s affidavit contained only five paragraphs,
one of which was handwritten and seemed to have been hastily added at the last
minute. Only one paragraph contained facts that could be investigated, the
applicant’s grounds were not clearly detailed and she had not set out the facts
supporting her allegations. The Appeal Board referred to several questions that
remained unanswered. It stated the following on this point:
[translation]
Without going so far as to require a very
high degree of precision or even personal knowledge of all the facts, for the
Board to be able to exercise its jurisdiction and review the adequacy of the
grounds, it is essential that those grounds be stated and detailed and, at a
minimum, that the affidavit not only implicate a third party via that
party’s actions or words but also indicate, at least summarily, how those
actions or words can be attributed to one of the candidates.
The affidavit is silent about this. It is
not enough to say that Mr. Tshernish asked people to vote for
Raphaël Picard. There should at least be an allegation that
Raphaël Picard and/or Paul Vollant was a party to that offence.
(paragraphs 63‑64, Appeal Board’s
decision)
[12]
Relying on
the relevant case law, the Appeal Board found that allegations of corrupt
practices in the context of an election challenge must be serious, complete and
specific to trigger an investigation.
[13]
Finally,
the Appeal Board found that the facts alleged in the applicant’s affidavit were
not adequate for challenging the validity of the election in issue.
Issues
[14]
The
applicant raises the following issues:
a.
Is the
electoral officer exclusively responsible for deciding whether to forward an
appeal request to the executive director of the Betsiamites Band Council?
b.
In
deciding to forward the applicant’s appeal and the handwritten statements to
the executive director, did the electoral officer exhaust the jurisdiction
conferred on her by the Code?
c.
Can the
Band Council Appeal Board validly determine the lawfulness of an appeal request
on a preliminary basis or does it have to consider the entire record submitted
to it by the executive director?
d.
Is the
Appeal Board’s decision unreasonable?
e.
Do the
Appeal Board’s composition and remuneration and the status of its members raise
a reasonable apprehension of bias?
f.
Do the
rules of natural justice apply to the Appeal Board and, if so, were they
complied with?
[15]
The
respondents add the following issue:
g. Even
assuming that the Court is “satisfied” that one of the grounds of review set
out in paragraphs 18.1(4)(a) to (f) of the Federal Courts
Act has been proved by the applicant, should the Court exercise its
discretion under subsection 18.1(1) and set aside the Appeal Board’s
decision?
[16]
The Court
instead considers the following issues relevant:
a.
Did the
Appeal Board err in determining on a preliminary basis that the material that
had been filed was inadequate, before it had even investigated?
b.
Is the
Appeal Board’s decision unreasonable?
c.
Do the
rules of natural justice apply to the Appeal Board and, if so, were they
complied with?
d.
Is there a
reasonable apprehension of bias because of the Appeal Board’s composition and
remuneration and the status of its members?
e.
Even
assuming that the Court is “satisfied” that one of the grounds of review set
out in paragraphs 18.1(4)(a) to (f) of the Federal Courts
Act has been proved by the applicant, should the Court exercise its
discretion under subsection 18.1(1) and set aside the Appeal Board’s
decision?
[17]
For the
reasons that follow, the application for judicial review will be dismissed.
Legislation
[18]
The
relevant legislative extracts are appended.
Analysis
Applicable standard of review
[19]
The first
issue relates to the interpretation of the Code. The third relates to the rules
of natural justice. The parties agree that these two issues must be
analysed on a standard of correctness. The reasonableness criteria laid down in
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008]
1 S.C.R. 190 (Dunsmuir), apply to the other two issues.
[20]
The Court agrees with the parties on this
point. According to paragraphs 59‑61 of Dunsmuir, where a decision maker does not have
particular expertise in interpreting its enabling legislation or related
legislation, the elements of the correctness standard must be applied when an
interpretation issue arises. In the instant case, the Appeal Board does not
have such particular expertise.
[21]
Where the
issue relates to the principles of natural justice and procedural fairness, the
standard of correctness must apply (Sketchley v. Canada (Attorney General), 2005 FCA 404, [2006] 3
F.C.R. 392; Dunsmuir, at paragraph 57).
Did the Appeal Board err in determining
on a preliminary basis that the material that had been filed was inadequate,
before it had even investigated?
[22]
Council
elections have been governed by a customary electoral code since 1994. The Code
provides for the conduct of elections and the method of challenging them.
[23]
The Code
states that a challenge may be filed on the grounds set out in
sections 8.1 and 8.2 within 14 days after the election. Here, an
Appeal Board was established after the candidates were nominated, and therefore
before the election, to decide any future challenge.
[24]
The
Appeal Board is made up of the executive director of the Council, the police chief
and a lawyer designated by those two members (section 8.3 of the
Code).
[25]
A copy of the appeal request
is forwarded to the candidates whose election is challenged. They can file a
written answer (sections 8.4 and 8.5). The electoral officer then refers
the entire record to the Council’s executive director.
[26]
Section 8.7
of the Code provides as follows:
[translation]
The electoral officer shall then refer
the record to the executive director, who shall convene the Appeal Board, which
shall conduct an investigation if the material that has been filed appears to
be adequate for challenging the validity of the election.
[27]
Based on
that provision, the Appeal Board concluded that it was responsible for
determining the adequacy of the material filed by the applicant even before
going on to the following step, namely an investigation.
Applicant’s arguments
[28]
The
applicant suggests that the interpretation of the Code shows that the electoral
officer, and not the Appeal Board, is responsible for verifying whether an
appeal is consistent with section 8.1. Once that work is done, the
electoral officer refers the record to the executive director, who decides to
convene the Appeal Board if the executive director is satisfied that the
material that has been filed is adequate. The Appeal Board’s only role is to
investigate and make a decision in accordance with section 8.8 of the
Code.
[29]
This
interpretation means that, in the original French version of section 8.7
of the Code, the word “qui” after the words “le comité d’appel”
necessarily refers to the executive director: “Le président d’élection réfère
alors le dossier au directeur général qui forme le comité d’appel qui
conduira l’enquête si les faits allégués lui paraissent suffisants pour
contester de la validité de l’élection.” [Emphasis added.]
[30]
According
to the applicant, this interpretation of the Code takes account of the fact
that the Appeal Board should not be needlessly convened in cases where the
material filed is considered inadequate by the executive director.
[31]
The Appeal
Board therefore exceeded its jurisdiction by appropriating a power conferred
first on the electoral officer and then on the executive director.
[32]
With
respect, the Court cannot agree with the applicant’s interpretation.
Chapter 8 of the Code provides that the electoral officer is responsible
for referring the record to the executive director once all particulars and
documents have been filed in accordance with sections 8.1 and 8.4. Nowhere
in the Code is the executive director given any special discretion to determine
the adequacy or inadequacy of the material filed to challenge the election.
[33]
The
wording of section 8.7 is clear. The word “qui” comes immediately after
the words “le comité d’appel” in the original French version. In the Court’s
opinion, this necessarily refers to the Appeal Board, not the executive
director.
[34]
This
reading of the text is consistent with the purpose and the other provisions
dealing with election challenges. It would be very surprising, to say the
least, to give a single person so much discretion. That could lead to abuses.
[35]
The Code
was drafted to establish mechanisms to ensure that elections are fair and
equitable and that, where grounds of appeal under section 8.1 are found to
exist, the situation can be remedied quickly.
[36]
The Court
does not think that the Appeal Board’s only functions are to conduct an
investigation and make a decision under section 8.8. The preliminary issue
of the adequacy of the material filed to challenge an election is too important
for a single individual to have the final power to decide it.
[37]
The Appeal
Board therefore had jurisdiction to determine on a preliminary basis whether
the material as filed was adequate to trigger an investigation.
Is the Appeal Board’s decision
unreasonable?
[38]
The
applicant submits that the Appeal Board should have concluded that the evidence
was adequate to begin an investigation. However, the Appeal Board made a
reviewable error by requiring the applicant to show that she had personal
knowledge of the facts she was alleging as a precondition to finding those
facts adequate.
[39]
The
applicant adds that the Appeal Board imposed a burden heavier than the balance
of probabilities and should have accepted in evidence the 10 handwritten
statements supporting her affidavit. She cites the following cases: Pellerin v.
Thérien, [1996] J.Q. No. 2895 (C.Q. Civ.); Pellerin v. Thérien,
[1997] R.J.Q. 816 (C.A.) (QL).
[40]
The
respondents argue that the Appeal Board’s decision is reasonable having regard
to the requirements of the Code, particularly sections 8.1 and 8.5. Those
provisions ensure that the election review process is based on reliable
evidence. This is all the more important given that the decision must be made
within a short time. The Code does not provide for a formal hearing or for the
hearing of witnesses.
[41]
As well,
the power conferred on the Appeal Board by section 8.7 is a discretionary
power. The Appeal Board can reach conclusions as to the probative value of
evidence or determine that a complaint is not worthy of pursuit because of a
defect that is apparent, provided that the rules of procedural fairness are
observed (Abbott v. Pelican Lake Band Appeal Board, 2003 FCT
340, 231 F.T.R. 69 (Abbott); Bill v. Pelican Lake Band,
2006 FC 679, 294 F.T.R. 189).
[42]
The
respondents argue that the Appeal Board did in fact properly refer to the
fundamental weaknesses in the documentation filed by the applicant to challenge
the election.
[43]
The Court
must ask itself the following question: “Does the Appeal Board’s decision meet
the reasonableness criteria set out in Dunsmuir, at paragraph 47? Is it
justified, transparent and intelligible, and does it fall within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law?”
[44]
First of
all, the Court notes that the Appeal Board structured its decision by starting
with the purpose of the appeal, the appeal request and its role and
jurisdiction. Relying on the relevant case law, particularly regarding the
degree of proof required in an election challenge, the Appeal Board then
reviewed and analysed the admissibility of the evidence in light of the
requirements set out in the Code and concluded that the evidence was inadequate
and that it was not necessary to begin an investigation.
[45]
After
thoroughly analysing that decision, the Court is satisfied that it has all the
characteristics of a reasonable decision.
Is there a reasonable apprehension of
bias because of the Appeal Board’s composition and remuneration and the status
of its members?
Applicant’s arguments
[46]
Referring
to Baker v. Canada (Minister of Citizenship and
Immigration),
[1999] 2 S.C.R. 817, at paragraphs 18‑28 (Baker), the
applicant submits that the Appeal Board should have investigated. By ending the
proceedings prematurely, the Appeal Board breached the principles of natural
justice and procedural fairness.
[47]
The
applicant further argues that she was entitled to an oral hearing before her
appeal request was summarily dismissed. She also submits that she was denied
the right to reply to the respondents’ arguments. She cites the following
cases: Abbott; Sound v. Swan River First Nation,
2003 FC 850, [2004] 1 F.C.R. 336.
Respondents’ arguments
[48]
The
respondents note that Lameman v. Cardinal, 138 F.T.R. 1, [1997]
F.C.J. No. 1518 (FC) (QL), applies here because the requirements of
procedural fairness are minimal where an Aboriginal council election is
challenged. The time limits were shortened precisely to avoid uncertainty. It
is therefore normal not to hold a formal hearing each time.
[49]
As regards
the applicant’s argument that she was unable to reply to the respondents’
answers, the respondents point out that the Appeal Board did not consider their
answer record. This seems clear from reading the transcript of the cross‑examination
of Mr. Nepveu (the Appeal Board chairman) on this point, and it is
confirmed in a letter written by Mr. Nepveu. In the circumstances, it was
therefore unnecessary to give the applicant a right to reply.
[50]
The Court
notes that the case law establishes that procedural fairness and the principles
of natural justice must be observed by an appeal board created by a customary
code in dealing with a challenge to an Aboriginal election.
[51]
The Court
agrees with the applicant that procedural fairness is “flexible and variable,
and depends on an appreciation of the context of the particular statute and the
rights affected” (Baker, at paragraph 22). However, the Court
cannot accept the applicant’s argument that the case law confirms her position
that an investigation is necessary whenever an Aboriginal election is
challenged.
[52]
There are
many differences among the customary electoral codes of the various band
councils in Canada. In the instant case, nothing
requires the Appeal Board to begin an investigation as soon as an appeal has
been forwarded to it.
[53]
As the
Federal Court of Appeal has noted, “[t]he Federal Court jurisprudence
concerning procedural fairness in the context of custom Band elections
demonstrates that the content of the duty in this context must take into
account and respect relevant custom of the Band in question [citations
omitted]” (Samson Indian Band v. Samson Indian Band (Election Appeal
Board), 2006 FCA 249, [2006] F.C.J. No. 1051 (QL), at
paragraph 21). In Polson v. Long Point First Nation,
2007 FC 983, 331 F.T.R. 25, the applicant alleged that he was
entitled to an oral hearing at the preliminary assessment stage of his
complaint. After analysing the factors in Baker, Justice Frenette
concluded that the respondent could make submissions but was not entitled to an
oral hearing.
[54]
Here, I am
satisfied that the applicant was able to present her position through written
submissions. It was up to her to provide detailed reasons to support her
request, and I cannot agree that she was entitled to an oral hearing to
supplement or add to her written arguments.
[55]
I am also
satisfied on a balance of probabilities that the Appeal Board did not consider
the respondents’ answer, which means that it was not necessary to permit the
applicant to reply in the circumstances. In short, the Appeal Board did not
breach the principles of natural justice or procedural fairness.
Is there a reasonable apprehension of
bias because of the Appeal Board’s composition and remuneration and the status
of its members?
Applicant’s arguments
[56]
Relying on
Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 (Committee
for Justice and Liberty), particularly paragraphs 394‑395, the
applicant submits that the Appeal Board’s composition gives rise to an
apprehension of bias.
[57]
The executive
director is subject to re‑evaluation after every election. That office is
political, since it is filled by the newly elected administration, which here
included one of the respondents, Raphaël Picard. Therefore, it is
reasonable to think that the current executive director, Gérald Hervieux,
would be favourable to Mr. Picard’s position when his election is
challenged.
[58]
As for the
police chief, since he was the one who took the applicant’s affidavit, he
should have recused himself and instead started investigating the drug
trafficking alleged in a handwritten statement attached to that affidavit.
[59]
Finally,
the applicant alleges a conflict of interest involving the electoral officer,
since she is part of the firm that represents the Council. The applicant adds
that the Board members’ remuneration and security of tenure are unknown to the
public and the Aboriginal community, which again raises an apprehension of
bias.
Respondents’ arguments
[60]
The
respondents note that section 8.3 of the Code expressly provides that the
executive director is an ex officio member of the Appeal Board.
They submit that the applicant’s argument is merely pure speculation without
any foundation. They point out that she is relying solely on a decision by an
arbitration tribunal concerning another executive director, not the current
one. Indeed, the applicant admitted on cross‑examination that she was not
aware of the current executive director’s terms of employment or the
resolutions appointing him.
[61]
As for the
police chief, the respondents emphasize his solemn declaration and his cross‑examination,
in which he confirmed that, when he took the applicant’s affidavit, he did not
read the appended documents (handwritten statements). Before administering an
oath to the applicant, he asked her if she wanted someone else to do it, and
she said no. The Code does not provide for any method of replacing the Appeal
Board members.
[62]
With
regard to the applicant’s argument concerning the electoral officer, the
respondents submit that the applicant had already known for a very long time
that the electoral officer was part of the law firm of Nadeau Boisjoli Bhérer,
since she had received a letter from that firm on January 10, 2008.
At no time did she allege a conflict of interest, and she is now precluded from
doing so.
[63]
As for the Appeal Board
members’ remuneration and security of tenure, no evidence was filed to support
the applicant’s argument.
[64]
The
applicant has correctly identified the question the Court must ask itself in
determining whether there is a reasonable apprehension of bias, namely “what
would an informed person, viewing the matter realistically and practically—and
having thought the matter through—conclude. Would he think that it is more
likely than not that [the decision maker], whether consciously or
unconsciously, would not decide fairly” (Committee for Justice and Liberty, at
pages 394‑395).
[65]
However,
the evidence must be probative and plausible. Suspicions and assumptions are
not part of that equation.
[66]
The Court
is not satisfied here that the applicant has discharged her burden of proving
the existence of a reasonable apprehension of bias.
[67]
In the
case of the executive director, nothing in the evidence shows that his office
was supposed to be reviewed after the 2008 election. The executive
director has been in office since 2005, and his term was renewed in 2006.
[68]
As for the
police chief, the evidence contained in his declaration and his cross‑examination
confirms that he did not read the unsworn statements appended to the applicant’s
affidavit. He therefore cannot be criticized for not beginning an investigation
into the drug trafficking allegations found in the unsworn statements. A
reasonable person faced with such a situation would not conclude that the
police chief could not decide the election challenge fairly.
[69]
Finally,
the reasons relied on by the applicant to try to show that the electoral
officer was biased in favour of the respondents are not convincing. The
applicant had known since January 2008 that the electoral officer was part
of the law firm that represented the Council. At no time before the election
challenge did she raise that question. In the Court’s opinion, the question
should have been raised much earlier, namely when the electoral officer was
appointed by a Council resolution, when the applicant forwarded her affidavit
challenging the election to the electoral officer (section 8.1 of the
Code) or at least before the Appeal Board was convened.
[70]
The Court
therefore concludes that no reasonable apprehension of bias has been
established.
[71]
In light
of the decisions on the first four issues, it is not necessary to decide
the fifth, which was raised by the respondents on an alternative basis.
JUDGMENT
THE COURT ORDERS that the
application for judicial review be dismissed. The applicant will have to pay
the respondents a single lump sum of $3,000 as costs.
“Michel
Beaudry”
Certified
true translation
Brian
McCordick, Translator
SCHEDULE
Betsiamites
Band Council, Code électoral concernant les élections du Conseil de bande de
Betsiamites (May 24, 1994)
|
[translation]
CHAPTER 8 ELECTION APPEAL
|
|
Ground
of appeal
|
8.1
|
Within
fourteen days after an election, a candidate in the election or a voter
who voted or attended at a polling place for the purpose of voting may, after
paying a non‑refundable deposit of $300.00, challenge the election
where the candidate or voter believes that:
(a)
there
was corrupt practice in connection with an election to an office; or
(b)
there
was a violation of this Code that might have affected the result of an
election to an office; or
(c)
a person
nominated to be a candidate in the election was ineligible for that office,
and
the candidate or voter may lodge an appeal by sending particulars thereof in
an affidavit to the electoral officer by registered mail.
|
|
Appeal
Board
|
8.2
|
An
Appeal Board shall be established following the nomination of candidates to
decide any future challenge.
|
|
Composition
|
8.3
|
The
Appeal Board shall be made up of the executive director of the Band Council,
the police chief and a lawyer designated by the two members.
|
|
Time
for appealing
|
8.4
|
Where
an appeal is lodged with the electoral officer under section 8.1, the
electoral officer shall send the candidates, by registered mail, a copy of
the appeal and all supporting documents within seven days of receipt of
the appeal.
|
|
Answer
to appeal
|
8.5
|
Any
candidate whose election is challenged may, within seven days of receipt
of the copy of the appeal, respond in writing to the particulars set out in
the appeal and attach any supporting documents duly verified by affidavit.
|
|
Appeal
record
|
8.6
|
All
particulars and documents filed in accordance with the provisions of
sections 8.1 and 8.4 shall constitute and form the record.
|
|
Investigation
|
8.7
|
The
electoral officer shall then refer the record to the executive director, who
shall convene the Appeal Board, which shall conduct an investigation if the
material that has been filed appears to be adequate for challenging the
validity of the election.
|
|
Decision
|
8.8
|
Within
fourteen days of receipt of the answer provided for in section 8.5,
and after analysing the appeal record, the Board shall decide:
(a)
whether
the election is void;
(b)
whether
the candidate whose election is challenged was duly elected;
(c)
whether
another person was elected and who that other person is;
(d)
where
the person who challenged the election is not satisfied with the Appeal
Board’s decision, that person may apply to the court of competent
jurisdiction, which shall decide the matter.
|
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