Date: 20081016
Docket: T-1054-07
Citation: 2008 FC 1173
Ottawa,
Ontario, October 16, 2008
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
ALPHIUS J. WILSON, GILBERT HART, ANDREW MOORE
and WILLIAM A. SIMPSON
Applicants
and
ERIC ROSS, BETSY DEAFFIE,
ELEANOR MONIAS and GERTRUDE MEIKLE
COMPRISING THE NORWAY HOUSE CREE NATION ELECTION
APPEAL
COMMITTEE and ELIZA CLARKE, MIKE MUSWAGON
and
LANGFORD SAUNDERS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1] On
March 16, 2006 an election was held at Norway House Cree Nation (NHCN or
Band). The applicants, Alphius J. Wilson, Gilbert Hart, Andrew Moore, and
William A. Simpson, ran unsuccessfully for positions of band councillor. The
respondents Eliza Clarke, Mike Muswagon and Langford Saunders were incumbent
councillors who successfully ran for re-election (three successful candidates).
[2] NHCN
is a custom band. It, therefore, held its election under the terms of
its own Elections Procedures Act. The Elections Procedures Act sets out
grounds upon which election results may be appealed, and provides for the
establishment of an Appeal Committee to hear appeals.
[3] Of
relevance to this application is subsection 7.1(a) of the Elections
Procedures Act. It 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 or candidates.
[4] The
applicants filed an appeal pursuant to subsection 7.1(a) of the Elections
Procedures Act alleging corrupt practice on the part of the three successful
candidates.
[5] The
Appeal Committee heard evidence on February 20 and 21, 2007, and on April 3 and
4, 2007. The Appeal Committee dismissed the appeal on May 10, 2007, for
reasons delivered on June 26, 2007. This is an application for judicial review
of that decision.
[6] The
application for judicial review is allowed because the Appeal Committee erred
in law in its interpretation of what constitutes corrupt practice.
The Grounds of the Appeal
[7] The
corrupt practice alleged by the applicants may be summarized as follows:
(i)
Shortly before the election, the three successful candidates
signed and delivered letters that advised certain members of the Band that
their “application/request for housing has been approved for the 2005/06 fiscal
year.” Houses or trailers were said to be allocated to the recipients of the
letters. The recipients were told that they would be contacted in order to
discuss where they would like their house or trailer to be situated. (More
than 70 people received such letters and 95 letters were sent out.)
(ii)
Just prior to the election, the three successful candidates
provided an extraordinary amount of special needs funding to members of the
Band.
(iii)
The three successful candidates did not provide information to
other candidates, and used information available to them as councillors in
order to gain an unfair advantage over the applicants.
(iv)
The three successful candidates participated in secret meetings,
particularly one held on January 9, 2006, at which housing allocations were
discussed.
(v)
The three successful candidates participated in the allocation of
housing, but did not follow the housing policy which had been adopted by the
Band in 2005.
The Evidence
[8] The
Appeal Committee received a number of documents in evidence. Exhibit 3 was the
NHCN Housing Policy Manual. The policy was adopted and approved by the chief
and council on July 6, 2005 (see Exhibit 2).1
The significance of this date is that the March 16, 2006 election was the first
election held after the adoption of the Housing Policy.
[9] Relevant
provisions of the Housing Policy are found in Chapter 2, entitled “Guiding
Principles.” Paragraphs 1.A. (iii) and (v) state:
iii. Individuals
on either the [Norway House Cree Nation Housing Authority] or Council cannot
make final decisions or imply to NHCN members any guarantees for renovations,
new housing or favorable decisions.
[…]
v. Chief and
Council have the ultimate authority and final decisions in all Housing Policy
matters.
[10] The
Appeal Committee heard testimony from a number of witnesses and wrote in its
reasons that it “accepted the evidence of all of the witnesses as being
forthright and truthful”, although it gave little weight to the evidence of
Farah Balfour, a witness who left the hearing before she could be
cross-examined.
[11] Two
of the witnesses were successful candidates in the election: Marcel Balfour and
Eric Apetagon. Marcel Balfour had been a band councillor. He was elected as chief
on March 16, 2006. Eric Apetagon was a band councillor who was re-elected on
March 16, 2006.
[12] With
respect to the letters sent about the allocation of houses or trailers, Chief
Balfour testified that:
·
He had searched for, but had not found, any minutes of any
meeting where the chief and council approved and ratified names of band members
who were allocated either a house or a trailer.
·
He had not been given notice of any meeting to deal with the
allocation of housing.
·
At the time the letters were sent out, no houses or trailers had
been delivered, approved or funded for NHCN.
·
By letter dated March 6, 2006 (Exhibit 8) CMHC advised NHCN that
it would have to re-submit its housing submission to CMHC and reduce the number
of units it sought from 70 units to 47 trailers and houses in total.
[13] Eric
Apetagon’s evidence on this point included the following:
·
Prior to the election, no council meeting and no band council
resolution approved the allocation of housing.
·
No housing application made by NHCN could be approved by the responsible
minister until the chief and council had made a decision with respect to the
amount of equity the band would put forward, and he was not aware of any
meeting before the election of chief and council to make this allocation.
·
He was asked to sign the letters sent notifying members of the
Band that they had been allocated a house or trailer, but he did not sign
them. The main reason he did not sign the letters was that nothing had been
approved or finalized, the band had simply made a submission or application for
housing.
·
There was no legitimate reason for the letters to be sent out
during the election campaign.
[14] With
respect to the special needs funding, Chief Balfour testified that:
·
The Band had a written policy (Exhibit 18) with respect to
special needs requests.
·
The policy requires a person to be on social assistance in order
to be eligible for special needs funding. Before the election, some special
needs funding was paid to persons who were not on social assistance.
·
His office prepared Exhibit 13, which is a list of all special
needs funding paid between December 2005 and March 2006.
·
Exhibit 13 reflects that in the months of December 2005 and
January 2006 the special needs funding for each month was in the range of
$10,000.00 to $12,000.00. In the month prior to the election, February 2006,
the amount paid on account of special needs funding was $54,833.83. In the
first 16 days of March 2006 a total of $12,000.00 was spent on special needs
funding. Approximately $2,000.00 was spent in March 2006 following the
election.
[15] Councillor
Apetagon testified that he did not sign a February 8, 2006 special needs
allocation because it was near the end of the fiscal year, and he was concerned
that “we wouldn’t have the money to pay for it.” There was no discussion among
the chief and council about whether recipients were eligible or whether funds
were available.
The Decision of the
Appeal Committee
[16] The
Appeal Committee’s conclusion with respect to the allegation arising out of the
letters sent with respect to the house or trailer allocation was as follows:
68. No one
except Farah Balfour testified they were promised a house in exchange for a
vote. The effect of the letters may have been to leave that impression on some
voters’ minds but there was no direct evidence that this was the case.
69.
The
Committee concludes that the evidence falls short of establishing a corrupt
practice on the letters alone. Particularly where the Respondents testified
they were following their mandate as elected officials. This was even more so
since such letters had been sent out in the past just prior to elections and
previously in 2004 as confirmed by Councillor Apetegon.
[17] With
respect to the special needs allocation, the Appeal Committee wrote:
75. None of the
Appellants’ witnesses testified they received or were promised special needs in
exchange for a vote. All the individuals who received special needs were known
to the Appellants and could have been called as witnesses. None were.
76. The Committee
concludes that the evidence falls short of establishing a corrupt practice on
the Special Needs Allocations.
[18] With
respect to what, as a matter of law, constitutes corrupt practice, the Appeal
Committee found:
77. The Appeal
Committee has considered Sideleau v. Davidson, [1942] 3 D.L.R. 609 for
the following principles:
i.
Certain
conduct will give rise to a presumption of corrupt practice
ii. The
distribution of money and alcohol to local organizers in the course of an
election who were not asked to give any account of their disbursements, created
a presumption and allowed the Court to draw and [sic] inference that it
was intended for the corruption of electors;
iii.
It
is not necessary to prove a systematic scheme of corrupt practices capable of
influencing votes on a substantial scale
78.
In
this situation, special needs funding and the allocation of housing is in the
regular course of business of the band and its council. Nothing in the
Elections Procedures Act suspends council activity during the campaign period.
Therefore, the Committee considers that the Respondents had primary “lawful
purpose”.
79. Therefore
the Appellants must have proof of such corrupt practices outside of the
Councillors regular duties (i.e. allocating housing or providing special needs
funding) or the Applicants must prove that they conducted their regular duties
in a corrupt manner (e.g. gave special needs money or items to wealthy band
members, re-allocated housing from needy band members to non-needy band
members) or gave excess special needs to members.
[19] The
Appeal Committee concluded that:
82. In the Appeal,
the Appellants failed to provide any witnesses which claimed they were promised
special needs or a home in return for a vote.
83. The
Respondents testified they were conducting their regular duties, for
which they have a lawful purpose. [emphasis in original]
What is Corrupt Practice?
[20] The
Elections Procedures Act does not define what constitutes corrupt practice.
Moreover, there appears to be little jurisprudence on the point.
[21] In
Hudson v. Canada (Minister of Indian Affairs and Northern Development)
(2007), 309 F.T.R 52, this Court observed, at paragraph 85, that direct
evidence of explicit efforts to buy votes is not the only kind of evidence that
could lead to a finding of corrupt electoral practice.
[22] In
Sideleau v. Davidson, [1942] S.C.R. 306, the Supreme Court of the Canada
recognized that certain conduct will permit an inference to be drawn that
conduct is intended to corrupt electors.
[23] In
my view, no exhaustive definition can be given as to what constitutes corrupt
practice in the context of an election. However, at least one core concept of
corrupt practice is any attempt to prevent, fetter, or influence the free
exercise of a voter’s right to choose for whom to vote. What is relevant is
the motive or intent behind the impugned conduct. Is the conduct directed to
improperly affecting the result of an election?
The Applicable Standard of
Review
[24] In
Dunsmuir v. New Brunswick (2008), 372 N.R. 1, at paragraph 62, the
Supreme Court of Canada instructed that the first step in the process of
judicial review is to ascertain whether the jurisprudence has already
determined in a satisfactory manner the degree of deference to be accorded to a
particular category of question.
[25] In
my view, the relevant category of question in this case is whether the Appeal
Committee applied the proper test at law as to what constitutes corrupt
practice.
[26] In
Giroux v. Swan River First Nation (2006), 288 F.T.R. 55; varied on other
grounds (2007), 361 N.R. 360 (F.C.A.), this Court conducted a pragmatic and
functional analysis and concluded that little deference was owed to an appeal
committee’s legal interpretation of what constitutes a corrupt election practice
under a customary election regulation. The standard of review to be applied
was correctness (see paragraphs 54 and 55 of the decision).
[27] In
my view, this is the proper standard to apply. This conclusion reflects in
this case the presence of a privative provision in section 7.3 of the Elections
Procedures Act which allows an appeal to the Court on questions of law.
Review on the correctness standard also reflects the nature of the question.
While the Appeal Committee has superior expertise on matters such as band
custom, the courts have greater expertise with respect to the interpretation of
legislation and regulations.
[28] The
conclusion that the proper standard of review is correctness is also consistent
with the admonition given by the Supreme Court of Canada in Dunsmuir, at
paragraph 60, that courts must continue to review on the standard of
correctness “where the question at issue is one of general law ‘that is both of
central importance to the legal system as a whole and outside the adjudicator’s
specialized area of expertise.’” Here, the concept of “corrupt practice” is
common to many customary band election regulations, and is found in paragraph
12(1)(a) of the Indian Band Election Regulations, C.R.C., c. 952.
It is therefore an important, general question of law that is outside the area
of expertise of the Appeal Committee.
Application of the Standard
of Review
[29] In
paragraph 68 of its reasons, quoted above, the Appeal Committee acknowledged
that the effect of the housing letters may have been to leave the impression on
some voters that they were promised a house in exchange for a vote. However,
the Appeal Committee required the applicants to provide direct evidence that a
voter was of this belief. As well, the Appeal Committee required the
applicants to prove that an elector received or was promised special needs
funding in exchange for his or her vote.
[30] By
so concluding, the Appeal Committee erred in law. The requirement that an
elector come forward to testify that their vote was bought imposes too high a
burden on a party who alleges corrupt practice. Further, such a requirement is
contrary to the conclusion of the Supreme Court of Canada in Sideleau
that certain conduct will permit an inference of corrupt practice to be drawn.
It is also contrary to the conclusion of this Court in Hudson that
direct evidence of explicit efforts to buy votes is not required in order to
establish corrupt practice.
[31] The
Appeal Committee relied upon prior conduct where housing letters were
sent out before an election, to justify the conduct. However, in my view the
Appeal Committee was obliged to expressly consider whether this was, or
remained, a proper practice, particularly in light of:
·
The adoption in 2005 of the NHCN Housing Policy which prevented
individuals, or a group of individuals, from deciding upon, or implying, the
existence of a housing commitment.
·
This Court’s ruling in Balfour v. Norway House Cree Nation,
[2006] 4 F.C.R. 404. There, at paragraphs 49 and 55, this Court commented upon
the practice of a sub-group of councillors meeting in order to make decisions.
Justice Blais wrote:
49. In light of the above, I find that it is permissible for
a sub-group of Band Council members to meet outside the formal confines of Band
Council meeting to discuss issues concerning the Band. However, a distinction
must be drawn between the latter and what has occurred in the present matter.
That is, it is not permissible for the sub-group of Band councillors to make
decisions in secret and subsequently have those decisions rubber stamped at
future Band Council meetings without regard to the Band Council guidelines or
the provisions of the Indian Act.
[…]
55. I would like to emphasize that the ratification process
mentioned by the respondents is a myth. Resolutions cannot be adopted in secret
meetings, and then subsequently ratified at a duly convened meeting without
being discussed and debated. The resolution itself must be passed at a duly
convened meeting. It cannot be the product of a secret meeting and subsequently
rubber stamped at a later date at a duly convened meeting. Resolutions
cannot be the product of predetermined decisions. They must be debated and
passed in accordance with the rules and guidelines of the Band and in accordance
with the principles of democracy. In the present matter, there are many
examples which illustrate that the ratification process of Band Council
resolutions was inherently biased. I will now turn my attention to one such
example. [emphasis added]
[32] Further,
the Appeal Committee was obliged to consider the cumulative nature of
the conduct of the three successful candidates.
[33] It
was also required to consider their intent. It was incumbent on the Appeal
Committee to consider, for example, for what purpose the three successful
candidates acted as they did, and whether they were attempting to improperly
influence the outcome of the election. While an election does not suspend
council activity, councillors must carry out those duties in a scrupulously fair
and honest fashion. Benefits must be distributed on the basis of merit. When a
benefit is conferred not based on merit, but rather based upon an intent to
influence an elector, a corrupt practice occurs.
[34] By
requiring, at paragraph 79 of its reasons, the applicants to prove things like
whether the three successful candidates gave special needs money to the
wealthy, or gave excessive special needs allocations, or re-allocated housing
from needy to non-needy band members, the Appeal Committee erred. The core
question to be answered was whether the three successful candidates by their
conduct, viewed as a whole, intended or attempted to improperly influence the
outcome of the election.
Remedy
[35] The
application for judicial review will be allowed because the Appeal Committee
erred in law in its interpretation of what constitutes corrupt practice.
[36] The
applicants seek an order that the merits of the election appeal not be referred
back to the Appeal Committee, but rather that this Court make a finding of
corrupt practice. This relief is not available on judicial review. See
paragraph 5 of the decision of the Federal Court of Appeal in Giroux,
cited above.
[37] In
the alternative, the applicants seek an order that the appeal be remitted to the
Appeal Committee with directions that the Appeal Committee find the
housing/trailer allocation letters and the increased special needs funding to
be corrupt practice.
[38] This
Court does have jurisdiction, pursuant to subsection 18.1(3) of the Federal
Courts Act, R.S.C. 1985, c. F-7 to issue directions of great specificity.
See, for example, Ali v. Canada (Minister of Employment and
Immigration), [1994] 3 F.C. 73 at paragraphs 17 and 18 (F.C.T.D.) and Turanskaya
v. Canada (Minister of Citizenship and Immigration) (1997),
210 N.R. 235 (F.C.A.). However, this jurisdiction is to be exercised with
caution.
[39] In
the present case, there were questions with respect to the motives or intent of
the three successful candidates that were not answered by the Appeal
Committee. I am not prepared to substitute my view of the evidence for that of
the Appeal Committee on the important issue of the existence of corrupt
practice. I will, however, make certain directions, as set out in the judgment
that follows these reasons.
[40] Counsel
asked that the issue of costs be reserved so that they could make written
submissions on the issue of costs. The issue of costs is reserved.
1. The Norway House Cree
Nation Housing Authority has not yet been created.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. The application for judicial review is allowed and the
decision of the Appeal Committee dated May 10, 2007 is hereby set aside. The
matter is remitted to the Appeal Committee for redetermination in accordance with
these reasons and the directions contained in this judgment.
2. The Appeal Committee shall consider the allegation of corrupt
practice on the basis of the existing evidentiary record. The Appeal Committee
should receive additional evidence only if it considers such evidence to be
necessary in order to allow it to determine the appeal in a manner consistent
with these reasons.
3. The Appeal Committee shall commence receiving evidence or
submissions within 60 days of the date of this judgment.
4. The issue of costs is
reserved.
5. Counsel for the applicants shall serve and file written
submissions with respect to costs within 21 days of the date of this judgment.
Such submissions shall not exceed five pages in length and shall attach a draft
bill of costs in order to facilitate a lump sum award of costs, if it is
determined that costs should be awarded. For certainty, the draft bill of costs
shall not form part of the written submissions, so that the draft bill of costs
may be attached to five, or fewer, pages of written submissions. An affidavit
may be served and filed in support of any claim to disbursements.
6. Counsel for the respondents Clarke, Muswagon and Saunders
shall serve and file any responding submissions within 21 days of receipt of the
applicants' submissions. Such submissions shall not exceed five pages in
length. A responding draft bill of costs or affidavit may also be served and
filed.
7. Thereafter, the applicants shall have seven days in which to
serve and file any reply submissions, not to exceed three pages in length.
“Eleanor
R. Dawson”
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