Docket: T-1180-11
Citation: 2011 FC 1305
Ottawa, Ontario, December
5, 2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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MIKE ORR
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Applicant
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and
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FORT MCKAY
FIRST NATION
CHIEF AND COUNCIL
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Respondents
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AMENDED REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of the decision of Fort McKay First
Nation Council to suspend Mike Orr from his position as a Councillor by
Band Council Resolution on July 13, 2011.
[2]
For
the following reasons, this application is allowed.
I. Background
[3]
On
April 5, 2011, Mike Orr (the Applicant) was re-elected as a Councillor for Fort
McKay First Nation.
[4]
On
July 1, 2011, the Applicant was charged with the sexual assault of a
woman at her home contrary to section 271 of the Criminal Code, RSC
1985, c C-46. The alleged victim is not a member of the Fort McKay
First Nation. The Applicant has yet to be convicted of this offence but is
required to abstain from communicating with the woman or from going near
her residence.
[5]
In
addition to the sexual assault charge, the Applicant is alleged to have sent a
series of explicit text messages and photographs to the alleged victim
and another woman. The other woman also claims to have been threatened
by members of the Applicant’s family regarding her testimony.
[6]
On
July 13, 2011, Fort McKay First Nation Council (the Respondent) passed a
Resolution suspending the Applicant from his position as a Councillor and
removing him as a Director of all corporate entities within the Fort McKay
Group of Companies and joint ventures. The Resolution cited the Applicant’s
serious criminal charges and that the Royal Canadian Mounted Police were
seeking his arrest.
[7]
The
Council insists that the Applicant is only temporarily suspended pending the
outcome of his criminal charges. There were concerns raised regarding the
safety of the community and the potential for negative media coverage from an
open hearing. However, the Applicant was given the opportunity to speak to the
Council and chose not to do so.
II. Relevant
Provisions
[8]
Part
10 of Fort McKay First Nation’s Election Code covers the suspension,
removal and vacancy of office of chiefs or councillors. Section 100.1 provides
that the office of a Councillor becomes automatically vacant when that
Councillor dies or is convicted of a criminal offence.
[9]
The
process for removal of a chief or councillor may be commenced by a resolution
of the council or petition of the electors. Section 101.3 enumerates several
causes for removal or suspension, the particulars of which must be specified in
the resolution or petition. These causes include that the Councillor has:
101.3.1 missed
three consecutive council meetings without notice or reasons;
101.3.2 ceased to
meet the eligibility requirements for nomination;
101.3.3 engages in
drunk, drug related, disorderly or inappropriate conduct at council meetings,
general meetings, special meetings or other public functions in which the chief
or councillor are present as representatives of the first nation and which
would tend to bring the reputation of the first nation into disrepute;
101.3.4 uses or
misappropriates first nation funds or converts first nation property to his own
use, including the funds or property of related business corporations or
entities which are owned or controlled, in whole or in part, by the first
nation;
101.3.5 engaged in
gross financial mismanagement such that the first nation is burdened with
substantial unnecessary debt;
101.3.6 breached
Part 8 of this Code and the breach has resulted in adverse effect to the first
nation; or
101.3.7 such
further or other conduct which is sufficiently serious to warrant cause in all
the circumstances.
[10]
Part
8 of the Elections Code identifies the duties of the Council. Section
91.1 entrusts council “with matters which are fundamental to good governance
and economic well being of the first nation and its members.”
III. Issues
[11]
The
following issues are before the Court:
(a) Did
the Council have jurisdiction to suspend the Applicant from his position as a
Councillor under the Election Code?
(b) Was the Applicant afforded
procedural fairness in the process leading to his suspension?
(c) Was
it reasonable for the Council to suspend the Applicant from his position in the
circumstances?
IV. Standard of Review
[12]
The
standard to be applied in determining whether the Council has jurisdiction is
correctness (see Martselos v Salt River Nation #195, 2008 FCA 221, [2008]
FCJ no 1053 at paras 28-32).
[13]
Questions
of procedural fairness are also addressed based on correctness (see Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12, 2009
CarswellNat 434 at para 43).
[14]
The
decision to suspend the Applicant from his position in the circumstances is a matter
of mixed fact and law that must be assessed on a standard of reasonableness
(see Prince v Sucker Creek First Nation #150A, 2008 FC 1268, 303 DLR
(4th) 438 at para 22; Martselos, above).
[15]
Reasonableness
is “concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process” as well as “whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
V. Analysis
Issue A: Does
the Council have Jurisdiction to Suspend the Applicant From his Position as a
Councillor Under the Election Code?
[16]
The
Applicant submits that the Council lacks the authority to suspend him from his
position as a Councillor because he has not been convicted of a criminal charge
as required by the Election Code. The laying of a charge is not
sufficient or specifically covered by the conditions specified in section
101.3.
[17]
I
acknowledge that the Respondent has jurisdiction to suspend Councillors in a
range of circumstances. This is expressly provided for in section 101.3. As
there are a number of specified causes, the Council’s discretion in suspending
a Councillor is also relatively broad. Section 101.3.6 establishes as a cause
the breach of council duties resulting in an adverse effect to the first
nation. In addition, section 101.3.7 allows suspension for “such further or
other conduct which is sufficiently serious to warrant cause in all the
circumstances.”
[18]
However,
a review of the causes available for suspension reveals that they are related
to the Councillor’s conduct in office, such as disorderly conduct in meetings
or breaching the duty of good governance. The broader clause relating to “such
further or other conduct which is sufficiently serious to warrant cause in all
of the circumstances” would similarly relate to a Councillor’s conduct in
office where it is not covered by the specified causes. Moreover, there is no
mention of criminal charges serving as a sole cause for suspension.
[19]
Based
on previous determinations by this Court, the Respondent has asserted that the
Council may retain the inherent power to suspend as rooted in custom to ensure
harmony in the community so long as the Band’s legislation has not “covered the
field” (see Whitehead v Pelican Lake First Nation, 2009 FC 1270, 2009
CarswellNat 4625 at para 41; Lafond v Muskeg Lake Cree Nation, 2008 FC
726, 2008 CarswellNat 1882 at para 10).
[20]
While
this may have been relevant in other instances, I fail to see its application
to the present case. Given the relatively broad and specified causes for
suspension in the Election Code related to conduct in office, I must
find that the legislation has “covered the field” in this area and does not
give rise to additional inherent or customary powers to suspend.
[21]
As
a consequence, the Council only has jurisdiction to suspend a Councillor, such
as the Applicant, in a manner consistent with the causes specified in the Election
Code. Unless criminal charges are directly linked to one of these
specified causes, the Council is not authorized to suspend solely on that
basis.
Issue B: Was
the Applicant Afforded Procedural Fairness in the Process Leading to his Suspension?
[22]
The
Applicant has provided the Court with a series of similar cases stressing the
importance of procedural fairness, including the right to have full knowledge
of the allegation and the proper opportunity to present evidence and argument
before removal (see Martselos, above at paras 32-37; Lafond,
above at paras 25-30; Prince, above at para 39).
[23]
The
Respondent contends, however, that the Applicant was ensured procedural
fairness. Given community concerns there was no open hearing, but the
Applicant was provided an opportunity to speak to Council and chose not to do
so.
[24]
While
I recognize that the Respondent was given the opportunity to speak, I continue
to have concerns regarding procedural fairness.
[25]
Under
section 101.3, the resolution related to suspension “must include the
particulars of cause for the removal or suspension of the chief or
councillor.” The Resolution does not appear to follow the procedures
prescribed by the Election Code as it merely refers to the conviction,
which is not in itself one of the specified causes. Given this requirement,
the Council did not elaborate sufficiently on the reasons for the suspension.
[26]
I
therefore find that the failure of the Council to comply with its own
procedures and set out the specified causes for the Applicant’s suspension
amounted to a breach of procedural fairness.
Issue C: Was
it Reasonable for the Council to Suspend the Applicant from his Position in the
Circumstances?
[27]
The
Applicant implies that it was unreasonable to suspend him from his position
because he has not been formally convicted of any criminal offence. He also
suggests that the requirements of section 101.3 have not been met and none of
the particular causes have been specified. He denies that he represents a
public safety threat and notes that while some individuals have threatened the
woman (referred to at paragraph 5 of these reasons), he has not done so and
does not pose any particular security concern.
[28]
By
contrast, the Respondent argues that given the nature of the Applicant’s
conduct there were reasons to be concerned about the safety and security of the
Band. The Council best understands the needs of the community. The relative
peace enjoyed following the Applicant’s suspension should not be disturbed.
[29]
I
acknowledge that the Council would have found the Applicant’s behaviour
disconcerting. As highlighted in my analysis of Issues A and B, however, the Election
Code does not provide for the suspension of the Applicant based solely on
the laying of criminal charges. He can only be removed from his position if
ultimately convicted.
[30]
The
Respondent has implied that the Applicant’s suspension could be covered under
the cause relating to “such further or other conduct which is sufficiently
serious to warrant cause in all of the circumstances” based on their public
safety allegation. This was not specified in the Band Council Resolution that
referred only to criminal charges.
[31]
It
was unreasonable for the Council to suspend the Applicant solely on the basis
of the criminal charges as this is different from the types of categories
referred to in the Election Code related to a Councillor’s conduct in
office. However questionable the Applicant’s recent conduct, it is related to
events in his personal life and not his position in public office. The public
safety concerns raised do not alter this conclusion. It was not open to the
Council to suspend the Applicant in these circumstances.
VI. Conclusion
[32]
The
Council only has jurisdiction to suspend the Councillor based on the causes
enumerated in the Election Code. Since the Resolution failed to specify
the cause on which the Applicant’s suspension was based, there is a breach of
procedural fairness. For similar reasons, the Council’s decision cannot be
reasonable.
[33]
Accordingly,
this application for judicial review is allowed. The decision of the Council
to suspend the Applicant is quashed and he is restored to his position pending
the outcome of his criminal trial.
JUDGMENT
[34]
THIS
COURT’S JUDGMENT is that this application for
judicial review is allowed. The decision of the Council to suspend the
Applicant is quashed and he is restored to his position pending the outcome of
his criminal trial.
“ D.
G. Near ”
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