Date: 20110620
Docket: T-330-11
Citation: 2011
FC 732
Ottawa, Ontario, June 20, 2011
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
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FRED MUSKEGO
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Applicant
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and
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NORWAY HOUSE CREE NATION
APPEAL COMMITTEE AND ERIC ROSS, BETSY
DEAFFIE AND ELEANOR MONIAS
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Respondents
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and
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ANDREW SIMPSON
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Intervener
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REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review of the January 28, 2011 decision by the
Respondents, the Norway House Cree Nation Appeal Committee (the “Appeal
Committee”), and its three members, Eric Ross, Betsy Deaffie and Eleanor Monias.
The Applicant, Mr. Fred Muskego, argues that the Appeal Committee’s decision,
which finds him guilty of corrupt practice in connection with an election,
should be quashed by the Federal Court on the grounds that the Respondent
Appeal Committee did not have the jurisdiction to make it and that procedural
unfairness and/or use of inadmissible evidence occurred in the decision-making
process.
[2]
On May 26,
2011, I declined to rule on a stay motion brought by the Applicant against the Appeal
Committee’s decision, and ordered instead (with the consent of the parties)
that leave be granted on the application for judicial review and that it be
heard by teleconference on June 14, 2011. I also granted Mr. Andrew Simpson leave
to intervene.
[3]
After
having read the record and the written representations of all the parties
involved, and after having considered their oral submissions, I have come to
the conclusion that the Appeal Committee did have jurisdiction to rule as it
did, and that there has been no breach of procedural fairness in the process.
I. Facts
[4]
The Norway
House Cree Nation (“NHCN”) is a custom band. In December 1997, the NHCN adopted
the NHCN Elections Procedures Act, and on January 23, 1998 the band was
granted the right to be removed from section 74 (Elections Procedures) of the Indian
Act to exercise self-government through a custom election system. This
entitles the band to hold its elections pursuant to its own custom election
code. On October 18, 2005, the amended “Norway House Cree Nation Elections
Procedures Act” was adopted and ratified by the Chief and Council
(hereinafter the Elections Procedures Act, 2005 or “EPA”).
[5]
Under the EPA,
regularly scheduled General Elections of the NHCN take place every four years.
On March 16, 2006 one such election took place for the offices of Chief and
Council (the “2006 General Election”). The Applicant ran for the office of
Chief in this election, but was unsuccessful.
[6]
The EPA
sets out the grounds on which election results can be appealed, and provides
for a committee, appointed by Chief and Council prior to the election, to hear
those appeals. Section 7.1(a) of the EPA allows any candidate or elector who
has reasonable grounds to believe that “there was a corrupt practice in
connection with the election” to appeal the election of a candidate within 30
days of the election. The election of three successful candidates – Councillors
Eliza Clarke, Mike Muswagon and Langford Saunders – was appealed within this 30
day period following the 2006 General Election (the “Wilson Appeal”). The Wilson
Appeal was based on allegations that these individuals had illegitimately made
decisions about approving some allocations of housing, trailers, and special
needs funding in a way that was inconsistent with the Band Council rules and
this, in an effort to gain votes for the election. The Applicant in the present
application was not named in that appeal, as he had not been successful in the 2006
election.
[7]
Prior to
the hearing of this Wilson Appeal, a member of the
Appeal Committee resigned. There are no provisions in the EPA that address the
procedure to be followed when one or more of the members of the Committee
resigns or is no longer able to function as a Committee member once the General
Election in respect of which the Committee was established has passed. As the
NHCN Chief and Council were unable to appoint a fifth member to the Appeal
Committee, the Chairperson of that Committee applied for a reference to the
Federal Court to determine whether the Committee of four members would have the
authority to carry out the functions of the Appeal Committee. On November 9,
2006, Justice Judith A. Snider determined that the Appeal Committee would in
fact have full authority to carry out its functions with no fewer than three
members, so far as these functions relate to the hearing of the appeal brought
before it pursuant to the 2006 General Election.
[8]
On May 10,
2007, the Respondent Appeal Committee decided that Councillors Clarke, Muswagon
and Saunders were not guilty of corrupt practice, dismissing the Wilson Appeal.
They made this finding because the appellants “failed to provide any witnesses
which claimed they were promised special needs or a home in return for a vote”.
[9]
The
appellant, Mr. Wilson, thereafter brought an application for judicial review of
the Respondent Appeal Committee’s decision to the Federal Court. On October 16,
2008, Justice Eleanor R. Dawson (as she then was) found that the Appeal
Committee had erred in law in applying the test for being guilty of corrupt
practice in connection with an election. She found that the Appeal Committee
was obliged, pursuant to the EPA, to consider the cumulative nature of the
conduct and intent of the candidates in determining whether “corrupt practice”
had occurred, rather than simply limiting its inquiry to the narrow question of
whether any witnesses had been promised benefits in exchange for a vote. As a
result, the decision of the Committee was quashed and sent back for re-determination:
Wilson v Norway House Cree Nation Election
Appeal Committee,
2008 FC 1173.
[10]
The
Respondent Appeal Committee thereafter found Councillors Clarke, Muswagon and
Saunders to be guilty of corrupt practice under the EPA on January 18, 2009.
That decision resulted in the removal of the three councillors, under s. 9.1(f)
of the EPA for having been found guilty of a corrupt practice in connection
with an election. A by-election was held to fill the vacant positions on March
17, 2009. The Applicant ran for the office of councillor in this by-election
and was successfully elected.
[11]
The
Applicant’s success in the 2009 by-election was appealed in late March of 2009
by Mr. Andrew Simpson and the now deceased Mr. Edward Gamblin (the “Simpson
Appeal”). This notice of appeal was filed pursuant to s. 7.1(a) of the EPA, also
alleging corrupt practice on the part of the Applicant. More particularly, this
appeal was based on allegations of the Applicant’s corrupt practice relating
only to events surrounding the 2006 General Election, rather than events
surrounding the 2009 by-election.
[12]
The
question of whether the Respondent Appeal Committee had jurisdiction to hear
this Simpson Appeal was raised by Mr. Muskego. The jurisdiction of the
Committee was disputed notably on the grounds that only three of the five
original members of the Committee remained (a second member having resigned
since the 2006 General Election), and that the appeal was filed more than 30
days after the 2006 General Election.
[13]
In
response, the Respondent Appeal Committee applied for another reference to this
Court, with a view to clarify the procedures to be followed by the Committee
for the consideration of the Simpson Appeal. Justice Paul S. Crampton issued an
Order with Reasons on October 15, 2010 (docket number T-1780-09). In this Order,
Justice Crampton found that the Appeal Committee did have the jurisdiction to
hear the Simpson Appeal in respect of the 2009 by-election, since that appeal
was clearly an “additional election procedure resulting from any appeal”, as
contemplated by s. 1 of the EPA, in that the result under appeal was that of a
by-election that arose from the appeal of the 2006 General Election. Justice
Crampton found that the composition of the Committee, which was also disputed
by the Applicant for various reasons, was such that it had jurisdiction to rule
on the Simpson Appeal. The Order of Justice Crampton declared that the
Committee, as it was currently constituted with three members, would have “full
authority to carry out all of the functions of the Committee as established by
the EPA, insofar as such functions relate to the hearing of the Simpson
appeal”.
[14]
Part of
the dispute between the parties in the current application for judicial review
is the interpretation to be given to this Order of Justice Crampton. The
Respondent Appeal Committee interpreted the Order as giving it full jurisdiction
to hear the Simpson Appeal regarding the Applicant’s conduct, whereas the
Applicant argues that Justice Crampton’s decision answered only the question of
the jurisdiction of a three-member committee but not the question of whether
2006 events could form the basis of the appeal. Apparently assured of their
jurisdiction, however, the Respondent Appeal Committee rendered a decision on
the Simpson Appeal on January 28, 2011. This decision is described below.
II. The Impugned Decision
[15]
In its
reasons, the Respondent Appeal Committee began by relying on Justice Crampton’s
Order as confirmation of its authority to make the decision, mentioning the
following:
3. Of further relevance to this election
appeal, is the Order from the Honourable Mr. Justice Crampton, FC Docket
T-1780-09; which affirms that the Election Appeal Committee has maintained the
jurisdiction with three original members; to hear the Simpson Appeal in respect
to the special by-election that took place on March 17, 2009. In his view the
appeal stems from an “additional election procedure” derived from the March 16,
2006 election.
[16]
The
Respondent Appeal Committee then set out the facts relating to the Wilson Appeal
of the 2006 General Election results, which led to the disqualification via s.
9.1(f) of the EPA of the Councillors Clarke, Muswagon and Saunders. Their
disqualification led in turn to the 2009 by-election to fill their vacancies.
This by-election led to the election of the Applicant Mr. Muskego, and then to
the subsequent Simpson Appeal of his success in the by-election.
[17]
The
Respondent Appeal Committee then described the evidence filed by both parties,
noting in particular that counsel for Mr. Simpson (who brought the appeal),
rather than filing any new evidence, relied on transcripts of the previous
Election Appeal Hearings from the Wilson Appeal (which had concerned the events
surrounding the 2006 General Election).
[18]
The
Respondent Appeal Committee described the Appellant Simpson’s allegation that
Mr. Muskego was guilty of corrupt practice in that Mr. Muskego was part of the
group who was found to have engaged in corrupt practice, an allegation based on
the evidence brought forward at the Wilson Appeal hearings:
[14] [The Appellants] submit that Mr.
Fred Muskego was a part of the group whose conduct triggered s. 9.1(f) of the Elections
Procedures Act, resulted in the by-election that took place in March, 2009.
The difference of fact between the previous appeal and the one currently under
decision, is that the respondent Fred Muskego was unsuccessful in the 2006
election. So although the respondent was named as a party to the previous
appeals, the respondent no longer held public office, and was not subject to
the jurisdiction of the Election Appeal Committee under the Wilson appeal, nor
to the consequence of s. 9(1)(f) under the Elections Procedures Act.
[19]
The
Respondent Appeal Committee sets out Justice Dawson’s legal test for determining
corrupt practice, according to which the Committee was required to consider the
“cumulative nature of the conduct of the successful candidates” as well as the
motive or intent behind the alleged corrupt practice to determine whether the
conduct was directed to improperly affect the result of the election.
[20]
The
Respondent Appeal Committee concluded that the Simpson Appeal was a
“continuation of the March 16, 2006 election that resulted in appeals that
found a corrupt practice in connection with an election, resulting in the
by-election of which is the subject of this appeal decision”.
[21]
The
Respondent Appeal Committee adopted Justice Crampton’s Reasons to the effect that
Mr. Muskego “has not adduced sufficient evidence … that he would not receive a
full and impartial hearing from the currently constituted committee”.
[22]
The
Respondent Appeal Committee then recapped the findings of the Wilson Appeal,
wherein it was found that Councillors Clarke, Muswagon and Saunders:
a) met in
secret;
b) failed to
follow NHCN approved written policy with respect to housing
allocations;
c) failed to
make decisions that required council approval and ratification;
d) failed to
provide information to other candidates;
e) used
information available to them as councillors at the time in order to gain
an unfair
advantage; and
f)
failed to
follow NHCN policy with respect to special needs funding by providing
an
extraordinary amount of special needs funding to band members prior to that
election.
[23]
The Appeal
Committee again adopted the reasons of Justice Crampton to the effect that the
Simpson Appeal was based on the same facts as the Wilson Appeal. It concluded
that, “based on the previous Wilson Appeal, taking into regard the cumulative
activities of the Respondent, that his individual actions constitutes [sic]
a finding of corrupt practice under the Elections Procedures Act” and
allowed the appeal. The Appeal Committee applied s. 9.1(f) of the EPA,
rendering Mr. Muskego guilty of corrupt practice in connection with an
election, and thus ineligible to be a candidate for a period of six years.
III. The Issues
[24]
This
application for judicial review raises essentially two issues:
1.
Did the
Respondent Appeal Committee have jurisdiction to hear the Simpson appeal?
2.
Did the
Respondent Appeal Committee breach procedural fairness in allowing
Mr. Simpson to submit past
evidence from the 2006 General Election as evidence in the 2009 by-election hearing?
Has the Applicant’s defence been prejudiced as a result of its doing so?
IV.
Analysis
[25]
Pursuant
to the decision of the Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, the applicable
standard of review for the first question is that of reasonableness. Writing
for the majority, Justices Michel Bastarache and Louis LeBel stated that
reasonableness will be the governing standard where the question relates to the
interpretation of the tribunal’s enabling statute or “statutes closely connected
to its function, with which it will have particular familiarity” (at para 54).
Since the EPA is clearly the “home” statute of the Appeal Committee, deference
is warranted. Accordingly, this Court shall intervene only if the decision does not fall “within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law”, or if the reasons are lacking in justification, transparency or
intelligibility (at para 47).
[26]
With respect to the
procedural fairness issue, it is trite law that the standard of review is that
of correctness: see, for example, Canadian Union of Public Employees (CUPE)
v Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539, at para 100;
AG of Canada v Sketchley, 2005 FCA 404, at para 53. When applying
that standard, no deference is due.
A. Did the Respondent Appeal Committee
have jurisdiction to hear the Simpson Appeal?
[27]
Mr.
Muskego submits that the Respondent Appeal Committee has exceeded its
jurisdiction in hearing this appeal outside of the 30-day period following the
2006 election by wrongly finding that the 2009 by-election was some sort of
“continuation” of the 2006 election and thus accepting an appeal filed shortly
after the 2009, and not the 2006, election. If by-elections such as the 2009 election
were considered “continuations” of General Elections, the Applicant argues that
there would be no finality to the General Elections and the 30-day limitation
period would be undermined.
[28]
Mr.
Muskego stresses that s. 7.1 of the EPA provides that the election of a
candidate may only be appealed within 30 days of his election. He maintains
that, contrary to the Appeal Committee’s assertion in its Reasons for Decision,
he was not named as a party in the Wilson Appeal of the 2006 General Election.
Since he was not named in any appeal filed within 30 days of the 2006 election,
he argues that his behaviour with respect to that election cannot now form the
subject of an appeal, and that to allow otherwise would be to render the 30-day
deadline of s. 7.1 meaningless. He submits that the Appeal Committee does not
therefore have the jurisdiction to hear the Simpson Appeal, which concerns
events surrounding the 2006 General Election and was filed more than 30 days
after that election.
[29]
In
addition, the Applicant notes that s. 7.1 clearly states that a candidate or
elector can appeal “within 30 days” if that person believes that there was
“corrupt practice in connection with THE election”, rather than “in connection
with ANY election”. The Applicant reads this as meaning that an elector may
file an appeal only in respect of practice relating to an election that took
place in the last 30 days, not practice relating to any past election.
[30]
Finally,
the Applicant contends that to call the 2009 by-election a “continuation” of
the 2006 General Election would create chaos for election procedures in that it
would extend the appeal period indefinitely and give rise to a myriad of
situations and hypothetical questions not contemplated by the EPA. For example,
he argues it would mean that there would be no finality for unsuccessful
candidates in any election, since they would always be vulnerable to appeals
relating to their conduct in past elections if they ever were to run in a
future by-election.
[31]
Before
addressing these arguments, it is helpful to reproduce in full the relevant
provisions of the EPA:
1.1 In this Act:
a) Appeal Committee means a committee consisting
of five (5) persons appointed by the Norway House Cree Nation Chief and Council
which persons shall not participate or be involved in the election process in
any manner whatsoever, including, but not limited to not being an Electoral
Officer, Scrutineer, Candidate, and may not be involved in
working for or on behalf of any candidate from the time election is called to
the date of voting. The Appeal Committee shall be appointed four (4) months
prior to the date of an election. The five (5) member Appeal Committee shall
consist of five (5) members of the Norway House Cree Nation.
The persons appointed as referred to
above are appointed for the purposes of dealing with any appeal from any of the
matters related to the election as set out herein including any additional
election procedures resulting from any appeal.
7.1 Within thirty (30) days after the
posting of the written statement by the Electoral Officer, pursuant to Article
5.15, any candidate or elector who has reasonable grounds to believe:
a) that there was a corrupt practice in
connection with the election, or
b) that these procedures were
not complied with, or
c) a person did not qualify to be a
candidate or elector as defined herein,
may appeal the election of a candidate or
candidates by filing a written notice of appeal with the Electoral Officer
setting out the grounds of the appeal.
7.2 Upon receipt of the above appeal, the
Electoral Officer shall forthwith cause a meeting of the Appeal Committee to be
convened.
7.3 The Appeal Committee shall hear the
appeal within thirty (30) days of the filing of the notice of appeal and shall
deliver its decision within ten (10) days of the hearing appeal. The Appeal
Committee shall not be bound by any rules of evidence. The decision of the
Appeal Committee shall be final and binding. Any appeal to a Court of Law shall
be founded in law and not in fact.
Where the Appeal Committee finds that a
candidate or candidates have not been elected to office in accordance with
these procedures, that candidate whose election violated these procedures shall
vacate the office to which he/she was elected, and the Electoral Officer shall
hold a nomination meeting and election for the vacant office or offices in
accordance with Article 4 of these procedures.
9.1 The office of Chief or Councillor
becomes vacant when a person who holds that office:
(…)
f) is guilty of a corrupt practice,
accepting a bribe, dishonestly or malfeasance, in connection with an election.
Any person who ceases to hold office by
virtue of Article 9.1(f) shall not be eligible to be a candidate for a period
of six (6) years.
[32]
Having
carefully read the EPA, and more particularly section 1a) granting jurisdiction
to the Appeal Committee, I am of the view that Mr. Muskego’s argument is
without merit. That provision clearly confers on the Committee the jurisdiction
to deal with “any additional election procedures resulting from any appeal”.
The by-election that took place on March 17, 2009 was clearly one such “additional
election procedure” resulting from the Wilson Appeal and, as such, was indeed a
continuation of the March 16, 2006 General Election.
[33]
This is
indeed the conclusion arrived at by my colleague Justice Crampton in his Order
of October 15, 2010, wherein he stated:
I am satisfied that the Committee has the
jurisdiction to hear the Simpson appeal in respect of the special election that
took place on March 17, 2009. In my view, that appeal is clearly an
“additional election procedure resulting from any appeal”, as contemplated by
Article One of the EPA. It is a follow-up appeal from the initial appeal that
was filed in connection with the 2006 General Election, in respect of which the
Committee was properly established in accordance with Article One of the EPA.
Motion Record of the Applicant, at pp.
106-107.
[34]
It is true
that this Order was the result of an application of the essential purpose of
which was to determine if the Appeal Committee, then comprised of only three
rather than five members, still had authority to hear the Simpson Appeal.
Nevertheless, I think it is fair to assume that Justice Crampton was well aware
of the time limitation issue. Had he believed that the Committee had lost
jurisdiction because the appeal was not brought within 30 days of the 2006
elections, he would most definitely not have ruled that the Committee had “full
authority to carry out all of the functions of the Committee as established by
the EPA, insofar as such functions relate to the hearing of the Simpson
Appeal”. It is at least implicit in his Order that Mr. Simpson was not
precluded from bringing his appeal after the 2009 by-election simply because more
than 30 days had passed since the 2006 election. Furthermore, the Order never
suggests that the Appeal Committee should have been precluded from considering
2006 events in its examination of the Simpson Appeal; indeed, since the 2009
by-election under appeal was intimately connected to the previous General Election
of 2006, it is unsurprising that 2006 events would be pertinent to the 2009
appeal.
[35]
Since Mr.
Muskego has not challenged this Order by way of judicial review, he is now
precluded from collaterally attacking it now through the back door.
[36]
As for the
decision of Justice Michael L. Kelen in Kootenhayoo v Alexis First Nation
(Council), 2003 FC 1128, upon which the Applicant relies, I agree with the
Respondent and the Intervener that it is easily distinguishable because the
wording in the EPA in that case was significantly different from the EPA before
the Court today. In that case, the relevant provision provided that any
elector “may appeal the
results of an Election, By-election, or run-off Election” within five
consecutive days. Interpreting that provision, Justice Kelen found that the
drafters evidently viewed each of these elections as a distinct circumstance
and contemplated the possibility that any one of the three might give rise to
an appeal. This is clearly not the case with respect to s. 1(a) of the EPA in
the case at bar, where there is no mention of by-election or run-off election
but only a reference to “any
additional election procedures resulting from any appeal”. For that reason, the
reasoning of Justice Kelen in Kootenhayoo can be of no import in the
context of the present case.
[37]
Finally, I
do not think it can seriously be contended that allowing the Committee to rule
on the Simpson Appeal would create chaos for election procedures, that it would
render the 30-day limitation period nugatory, and that there would be no
finality for unsuccessful candidates as they would risk having to defend
appeals against them indefinitely. While it is true, as noted by my colleague
Justice Crampton, that the EPA is lacking in clarity with respect to some
aspects of the procedure to be followed when one or more members of the
Committee resigns, section 1(a) makes it very clear that the Appeal Committee
may only entertain an appeal that has been brought within 30 days of an
election or of any other electoral procedure resulting from an appeal. My
reading of that provision leads me to believe that an Appeal Committee would
not have jurisdiction to hear an appeal relating to a by-election that has taken
place before the last General Election, since a person elected in such a
by-election would only hold office until the next General Election.
[38]
For all
the foregoing reasons, I find that the Appeal Committee could reasonably
conclude that it had jurisdiction to hear this appeal.
B. Did the Respondent
Appeal Committee breach procedural fairness in allowing Mr. Simpson to submit
past evidence from the 2006 General Election as evidence in the 2009
by-election hearing? Has the Applicant’s defence been prejudiced as a result of
its doing so?
[39]
The
Applicant contends that it was unfair for the Appeal Committee to read in as
evidence the transcripts of the Wilson Appeal relating to the 2006 General Election.
These transcripts, according to the Applicant, include the testimony of then
Chief Mr. Balfour and then Councillor Mr. Apetagon, who were cross-examined by
the three former councillors (Clarke, Muswagon, and Saunders). In contrast to
the former councillors, the Applicant was never given the opportunity to cross-examine
the witnesses Balfour and Apetagon, whose testimony apparently inculpated him.
The Applicant also claims that these two witnesses’ testimony should be called
hearsay since they did not attend the hearing.
[40]
Finally,
the Applicant submits that his defence has been prejudiced, as three years have
passed since he lost the 2006 General Election; had he known that his conduct
would have been called into question, he would have collected evidence,
documents and witnesses to assist him. Now that so much time has gone by, he
argues that his ability to prepare a proper defence is impaired.
[41]
While somewhat
compelling at first sight, these arguments must nevertheless be rejected.
First of all, and most importantly, it appears that Mr. Muskego had the opportunity
to object to the inclusion of the Wilson Appeal evidence but declined to do so,
and also declined to call any witnesses. This is stated in the unchallenged
affidavit of Mr. Eric Ross, Chairperson of the Appeal Committee:
21. Legal Counsel for the Mr. Andrew
Simpson read-in all the evidence from the previous 2006 Election Appeal. Prior
to the Election Appeal Committee accepting the evidence for inclusion to the
at-present Simpson Appeal, I provided Mr. Muskego an opportunity to object to
the inclusion of this evidence; which found his former colleagues guilty of a
corrupt practice in connection with an election. Mr. Muskego had no objection
and was willing to have the evidence sworn into the record.
22. During the Simpson Appeal, Mr.
Muskego did not provide any compelling evidence that he was not a part of a
group of councillors whose joint actions culminated in the previous 2006
Election Appeal decision under s. 7.1 of the EPA. No new witnesses were brought
forth, and the hearing concluded at 5:00 pm, January 18, 2011.
[42]
It is a
well-established principle that a party must raise an issue of procedural
fairness at the first opportunity. The failure to do so will amount to an
implied waiver: see, for example, the decision of this Court in Kamara v Canada (Minister of Citizenship and Immigration), 2007 FC 448:
[26]
…The
jurisprudence of the Court is clear; such issues dealing with procedural
fairness must be raised at the earliest opportunity. Here, no complaint was
ever made. Her failure to object at the hearing amounts to an implied waiver of
any perceived breach of procedural fairness or natural justice that may have
occurred. See Restrepo
Benitez et al v MCI, 2006 FC 461 (CanLII), 2006 FC
461 at paras 220-221, 232 & 236, and Shimokawa
v MCI, 2006 FC 445 (CanLII), 2006 FC
445 at paras 31-32 citing Geza v
MCI, 2006 FCA 124 (CanLII), 2006 FCA 124 at
para. 66.
The same rule is
confirmed in Uppal v Canada (Minister of Citizenship and Immigration), 2006 FC 338, at paras 51 and 52.
[43]
Even
making room for the fact that Mr. Muskego was not represented by counsel before
the Appeal Committee, I am still of the view that he should have objected at
that point in time to the introduction as evidence of the Wilson Appeal
transcripts. Indeed, Mr. Muskego strenuously objected to the jurisdiction of
the Appeal Committee, but said nothing about the nature of the evidence being
considered. Mr. Muskego does not state otherwise in his own affidavit, and did
not seek to cross-examine Mr. Ross on his affidavit. Nor did he file any further
affidavit in the context of the current application for judicial review, as he
was given the possibility to do. Accordingly, I find that it is now too late to
raise the unfairness of the process followed by the Appeal Committee.
[44]
Mr.
Muskego could have provided evidence, documentary or through witnesses, to show
that he was not part of the group of councillors whose joint actions culminated
in the previous 2006 Election appeal decision. He could also have chosen to
call as witnesses Balfour and Apetagon and to examine them on the basis of
their testimony in 2006. He clearly had notice as to the type of corrupt
practice he was allegedly guilty of, as there are explicit references in the
decision of the Committee dealing with the Wilson Appeal to some of the actions
he had engaged in (see, for example, paras 49 and 54 of that decision, Motion
Record of the Applicant, at pp. 73-74). Yet, he chose to focus his argument on
the jurisdiction of the Appeal Committee, and did not introduce a shred of
evidence contradicting the finding of the Committee on the Wilson Appeal.
[45]
As for the
fact that Mr. Muskego was not a party to any of the appeals in the General Election,
it is easily explainable. It is very clear from s. 7.3 of the EPA that the
Committee only has jurisdiction to hear an appeal against a candidate who has
been elected. Had Mr. Muskego been successful in the election, he would most
likely have been a named party to the original 2006 Wilson Appeal (see the
uncontested affidavit of Eric Ross, at para 13).
[46]
Furthermore,
there may be other grounds for accepting the evidence, in addition to the
Applicant’s having consented to it at the time of the appeal hearing. The
Applicant now submits that the transcripts are inadmissible as hearsay, but it
is possible that they were in fact admissible as an exception to the hearsay
exclusion. In the cases of R v Starr, 2000 SCC 40, R v Khelawon,
2006 SCC 57 and R v Mapara, 2005 SCC 23, the Supreme Court of Canada found that statements made out
of court are admissible where the conditions of reliability and necessity are
met. Here, the transcripts clearly meet the criterion of reliability, since the
witnesses testifying in the 2006 gave evidence on substantially the same events
as were considered in the 2009 appeal and they were cross-examined at that
point by ex-Councillors Clarke, Muswagon, and Saunders, who were, in 2006,
accused of engaging in the same guilty conduct as the Applicant. I do not have
enough information to establish whether the criterion of necessity was met,
since it is not clear whether the witnesses were available to re-testify, but
in any event, it is not necessary for me to make a ruling on hearsay given that
s. 7.3 of the EPA provides that the Appeal Committee is not bound by the rules
of evidence and therefore has the discretion required to accept evidence such
as these transcripts.
[47]
As a
result, I find that there has been no breach of procedural fairness by the
Appeal Committee, and that Mr. Muskego was not prevented from making a full
defence against the allegations of corrupt practices.
[48]
Before
concluding, I must address briefly the alternative relief sought by the
Applicant. As already mentioned, the Applicant seeks a declaration from this
Court to the effect that if the Respondent Appeal Committee’s decision is
upheld and he is declared ineligible, the period of ineligibility shall last
until 2012 (i.e. six years from the events of 2006) rather than until 2017
(i.e. six years from the date of the Appeal Committee’s decision). It would, I
believe, be unwise and inappropriate for this Court to pronounce on that
question.
[49]
In its
decision, the Appeal Committee declared the Applicant ineligible for a period
of six years, without further specification. This sanction reflects the
wording of section 9.1 of the EPA, pursuant to which “[a]ny person who ceases
to hold office by virtue of Article 9.1(f) shall not be eligible to be a
candidate for a period of six (6) years”.
[50]
As quite
properly noted by the Intervener, this alternative relief was not mentioned in
the Applicant’s notice of application, and was raised for the first time in his
written submissions. Moreover, the issue is academic for the time being, since
we do not know whether the Electoral Officer will interpret his ineligibility
as expiring in 2012 or in 2017. If ever the Applicant is prevented from running
as a candidate in an election taking place after 2012, he will be entitled to
apply to the Electoral Officer for a determination, pursuant to s. 5.3 of the EPA.
It is only on the basis of such a determination that Mr. Muskego could bring an
application for leave and judicial review, according to s. 18.1 of the Federal
Courts Act. It is therefore premature for the Court to rule on this issue.
[51]
This
application for judicial review is therefore dismissed, with costs.
ORDER
THIS COURT ORDERS that the application for judicial
review is dismissed, with costs.
“Yves de Montigny”
___________________________ Judge
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