Date: 20080215
Docket: T-1040-07
Citation: 2008 FC 193
Ottawa, Ontario, February 15,
2008
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
ALLEN LABOUCAN, FLOYD NOSKIYE,
LESLIE JOE LABOUCAN,
MONA DUMAS, ROBERT CHARLIE NANOOCH AND
SOLOMON ST. ARNAULT
Applicants
and
GUS LOONSKIN, ARTHUR LABOUCAN,
JOHN M. LABOUCAN,
DANIEL NANOOCH, ALFRED JOE SEESEEQUON,
FLOYD AUGER,
HENRY GRANDEJAMBE, MICHAEL NANOOCH,
LORNE TALLCREE, DELMER D'OR, LESTER
NANOOCH
AND LITTLE RED RIVER CREE NATION #447
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicants were unsuccessful candidates in an election for
the Chief and Councillors of the respondent Little Red River Cree Nation #447,
which took place in April 2007. The individual respondents were successful candidates.
The applicants contest the results of the election on the basis of a number of
alleged irregularities. Those allegations were considered by an Election
Appeals Committee established under the Little Red River Cree Nation Custom
Election Code. The Committee concluded that irregularities and violations of
the Code had indeed occurred. However, it also found that those problems were
not “so substantial as to call into question the basic legitimacy of the
election results”. Accordingly, the Committee did not order a new election.
[2]
The applicants argue that the Committee made an error of law in
failing to impose on the respondents the legal burden of proving that the
election irregularities did not affect the result. Instead, the Committee
required the applicants to prove that they did. The applicants ask me to
overturn the election or, in the alternative, to order a differently
constituted Committee to reconsider the applicants’ case.
[3]
I can find no basis for overturning the Committee’s decision so I
must, therefore, dismiss this application for judicial review.
I. Issues
[4]
Did
the Election Appeals Committee err in law?
II. Analysis
[5]
The parties agree that I can overturn the Committee’s decision if
I find that its treatment of the issue of the burden of proof was incorrect.
1. Factual
Background
[6]
The applicants raised three issues before the Committee. First,
they presented evidence that translators were not available to assist those
voters whose first language was Cree. According to the Custom Election Code,
translators “shall be appointed by the electoral officer” (s. 9). The electoral
officer claimed that he was unable to find anyone who could serve as a
translator. The evidence showed that most voters who needed help were assisted
by volunteers. In one case involving two voters, there was a possibility that
the person who was providing assistance might have tried to influence their
votes. The Committee concluded there was insufficient evidence that the absence
of translators affected the outcome of the election.
[7]
Second, the applicants presented evidence that a few voters had cast
their ballots elsewhere than inside a polling booth, raising questions about
the secrecy of those ballots. Due to long line-ups, some voters were permitted
to mark their ballots at a concession stand or in bathroom stalls. The
Committee found that voters themselves were responsible for this problem
because they were unwilling to wait in line. Further, there was no evidence
that these voters had been unable to vote according to their consciences or
that the problem was so widespread as to cast doubt on the election results.
[8]
Third, the Committee considered evidence that one person may have
tried to influence some voters improperly on election day. This person was not
a candidate, but supported the respondent Mr. Gus Loonskin, who was ultimately
elected Chief. Mr. Loonskin stated that he had not authorized this person to
act on his behalf. The Committee concluded that the evidence before it was so
weak that it could not make any finding of corrupt election practices.
2. The
Burden of Proof
[9]
The applicants submit that the Committee erred in law by upholding the
election results in the face of their serious allegations. They argue that,
once they have presented evidence of substantial improprieties, they have met
their legal burden. At that point, the burden of proof shifts to the
respondents to prove that the problems did not affect the results. If they fail
to meet that burden, then the applicants are entitled to a new election.
[10]
According to the Committee’s reasons, it appeared to place a burden on
the applicants to prove irregularities and to prove that those irregularities
were so serious that they affected the results of the election. The Committee
concluded, in effect, that the applicants had not met that burden and,
therefore, refused to order a new election.
[11]
In support of their position, the applicants point to the text of the
Custom Election Code, as well as the decisions in Dumont v. Fayant,
[1995] A.J. No. 895 (Q.B.) (QL) and Leroux v. Molgat, [1985]
B.C.J. No. 45 (S.C.) (QL). The respondents argue that the text of the Code
actually supports its position that the legal burden of proof rests at all
times on the applicants. In addition, they argue that the cases cited by the
applicants deal with different election schemes and do not help decide the
issue in this case.
[12]
In my view, the Custom Election Code (s. 21) does not make clear where
the legal burden of proof lies or whether it shifts at a certain point. The
Code simply states that the Committee, after hearing evidence, can:
(1) not
allow a new election because of insufficient evidence provided by the candidate
appealing the election; or
(2) not
allow a new election because the activity in question did not affect the outcome
of the election; or
(3) allow a
new election to be held but only for the office appealed.
[13]
The cases cited by the applicants deal with a general principle that
arises in election disputes that I find is equally applicable here – that is, those
who contest elections should have to prove that something seriously went wrong.
Election results should not be lightly disturbed. The applicants concede that
no election is perfect and that there will always be irregularities. In order
to meet their burden, therefore, they must show substantial problems
with the election. It is only at that point that the burden shifts to the
respondents to show that the results can still be relied on. It makes sense to
put the respondent, in this case the Little Red River Cree Nation #447, to this
burden as it is the body responsible for organizing elections and ensuring that
the legal requirements have been met.
[14]
The question remains, however, as to when the burden shifts to the
respondents. It seems to me that the burden should shift at the point when the
applicants have presented sufficient evidence to show that the alleged
irregularities are serious enough to cast doubt on the results of the election,
or that the election was tainted by a failure to respect a basic democratic
principle, such as the sanctity of ballot secrecy. At that point, the burden
should shift to the respondents to show that the results were not affected.
[15]
Here, the Committee found that the irregularities affected only a few
voters. They did not cast doubt on the results. While there was a potential
problem with ballot secrecy, the Committee correctly took account of the fact
that it was a small group of voters who willingly chose to mark their ballots
outside the polling booth. There was no evidence that these ballots could be
seen by others or that anyone had been influenced in their choice of candidate.
In the circumstances, there was no basis on which to require the respondents to
show that the results of the election were unaffected.
[16]
Accordingly, I must dismiss this application for judicial review with
costs.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1. The
application for judicial review is dismissed with costs.
“James
W. O’Reilly”
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