Date:
20130111
Docket:
T-1791-11
Citation:
2013 FC 26
Ottawa, Ontario, January 11, 2013
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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RODNEY YELLOWDIRT
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Applicant
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and
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THE ALEXANDER FIRST NATION ELECTION
APPEAL BOARD AND
THE ALEXANDER FIRST NATION,
AS REPRESENTED BY ITS CHIEF AND
COUNCIL, AND CHIEF HERB ARCAND, ARMAND ARCAND, MARTY ARCAND, CURTIS ARCAND,
MARCEL ARCAND, BERNARD PAUL AND KURT BURNSTICK
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Respondents
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REASONS FOR JUDGMENT
AND JUDGMENT
I. Facts
[1]
On
August 11, 2011, elections took place to choose the new councillors and Chief
of the Alexander First Nation Band [“the Band”]. The Band is located near the
town of Morinville, northwest of Edmonton and has approximately 1818 members of
which half live off-reserve.
[2]
Following
the election, the Applicant made an application to the Appeal Board based on a
number of grounds. He namely alleged that a corrupt practice took place during
the election process and that the definition of “Elector” in the Alexander Tribal Government Customary Election Regulations [the “Election Regulations”] is contrary to
section 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982, 1982 (UK),
1982, c 11, [“the Charter”] since it excludes all of the members of the Band who
live off-reserve from the electoral list.
[3]
During
the hearing held on September 26, 2011 before the Appeal Board, Lawrence Bruno
[“Mr. Bruno”] , witness for the Applicant, stated that Bernard Paul and Kurt
Burnstick [“Respondents Paul and Burnstick”], councillors of the Band who were elected
in August 2011, provided financial help in exchange of his family’s votes. The Chair
of the Appeal Board [the “Chair”] adjourned the hearing in order to give Mr.
Paul and Mr. Burnstick the opportunity to respond to the evidence.
[4]
At
the hearing on the following day, the Chair stated that he had spoken over the
phone with Mr. Paul, that he told him about the allegations made against him
and that he denied all of them and said that he would not attend the hearing.
The Chair added that he had tried to reach Mr. Burnstick and that he would not
proceed until he speaks with him.
[5]
On
September 28, 2011, the Chair informed the Applicant by e-mail that he had
communicated with Mr. Burnstick by telephone, that he informed him of the
allegations made against him and that he denied all of them. At the hearing on
September 30, 2011, the Chair indicated that Mr. Burnstick would not be present.
II. Decision
under Review
[6]
In
a decision rendered on October 4, 2011, the Appeal Board rejected the Applicant’s
appeal which addressed the allegations of corruption against the Respondents
Paul and Burnstick. As for the constitutional question raised by the Applicant
regarding the definition of “Elector” under the Election Regulations, the Chair
decided that considering the grounds of appeal as set out in section 29 of the Election
Regulations, the Appeal Board does not have jurisdiction to decide upon such
issue. Moreover, he considered that the Canadian Human Rights Act, RSC,
1985, c H-6
which
applies on reserves, is probably a more appropriate channel to address the
issue of the constitutionality of the definition of “Elector” under the Election
Regulations.
III. Applicant’s
Submissions
[7]
First,
the Applicant submits that the Chair acted contrary to his obligation of
procedural fairness by communicating privately with Respondents Paul and
Burnstick and that it affected the impartiality of the Board.
[8]
Second,
the Applicant submits that the Chair erred in his interpretation of the Election
Regulations by deciding that the Appeal Board does not have jurisdiction to
decide upon the constitutionality of the definition of “Elector” under the Election
Regulations. It has been recognized that administrative tribunals are invested
with the power of adjudicating Charter challenges when invested with the power
to decide upon questions of law.
IV. Respondents’
Submissions
[9]
As
for the Applicant’s first argument, the Respondents Paul and Burnstick submit
that the Applicant never objected to the private communications and therefore
consented to them. Moreover, the Applicant initially requested that the Chair
contact them. It is submitted that at all time the Applicant was kept informed
by the Chair of the said communications.
[10]
The
Respondents Paul and Burnstick did not make any argument to counter the Applicant’s
position regarding the Appeal Board’s decision not to decide on the Charter
challenge. The other Respondent, the Alexander First Nation Band did submit
that Charter challenges of the electoral list are not subject to the
jurisdiction of the Appeal Board but rather within the jurisdiction of the Electoral
Officer, as outlined in sections 17 and 29 of the Election Regulations.
V. Issues
[11]
Two
issues are raised in the present judicial proceedings:
1. Do the Chair
of the Appeal Board’s private communications with the Respondents
Paul and
Burnstick amount to a breach of procedural fairness?
2.
Did
the Appeal Board err in law by deciding that it does not have jurisdiction to
decide
upon the
constitutional validity of the definition of “Elector” under the Election Regulations?
VI. Standard
of Review
[12]
The
applicable standard of review to the question of procedural fairness is
correctness (Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 at
para 43, 82 Admin LR (4th) 1). As for the Charter related issue as
to which entity under the Electoral Regulations has the jurisdiction over the
subject matter of the electoral list, the Supreme Court of Canada and the
Federal Court of Appeal have decided that when a tribunal is interpreting its “own statute or statutes closely
connected to its function, with which it will have particular familiarity” for
the purpose of solving a question of jurisdiction, the applicable standard is that
of reasonableness, unless the situation is exceptional (see Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 at para
34, [2011] 3 S.C.R. 654, Public Service Alliance of
Canada v Canadian Federal
Pilots Association and Attorney General of Canada, 2009 FCA 223 at
para 36, 98 Admin LR (4th) 25 and Orr v Fort McKay First Nation, 2012 FCA 269 at para 10, 2012
CarswellNat 4153).
VII. Analysis
A. Do the Appeal Board Chair’s
private communications with the Respondents Paul
and Burnstick amount to a
breach of procedural fairness?
[13]
The
relevant sections of the Election Regulations, which apply to the Appeal Board read
as
follows:
1.
In
these Regulations:
a)
“Appeal
Board” means a board consisting of such impartial
person or persons who:
i)
are
not members of the Alexander Tribe, and
ii)
are
appointed by the Alexander Tribal Chief and Council.
29.
Within
fifteen (15) days after the posting of the written statement by
the Electoral Officer pursuant to Section 27,
any elector who has
reasonable grounds to believe:
a)
that
there was corrupt practice in the [sic] connection with the
election, or
b)
that
these Regulations were not complied with may appeal the
election of a candidate or candidates by filing a
written notice of appeal with the Electoral Officer which sets out the grounds
of the appeal.
30. The Appeal Board shall hear the appeal with [sic]
thirty (30) days of
filing of the notice of appeal and shall
deliver its decision with [sic]
five (5) days of hearing of the appeal. The Appeal Board
shall not be bound by any rules of evidence. The decision of the Appeal Board
shall be final and binding. Any appeal to a Court of Law shall be found in law
and not in fact.
31.
Where
the Appeal Board finds that a candidate or candidates have
not been elected to office in accordance with
these Regulations, the
Electoral Officer shall hold a nomination
meeting and election for
the vacant office or offices in accordance
with these Regulations.
32.
The
Alexander Tribal Chief and Council shall have the authority to remunerate the Electoral
Officer and his assistants and members of the Appeal Board in such manner as it
deems necessary.
[14]
The
Election Regulations do not confer on the Appeal Board the power to publish the
notice of appeal, to issue subpoenas, to order the production of documents, nor
do they stipulate the process to be followed during the hearings such as the
calling of witnesses, the procedure, etc. The only sections of the Election Regulations
that apply to the Appeal Board are the ones referred to in the preceding paragraph
which grant the Appeal Board a limited jurisdiction.
[15]
The
notice of appeal contains serious allegations of corruption against elected
councillors of the Band, the Chief and some employees of the Band. It also contains
allegations against the Electoral Officer and some of his employees. The
evidence does not indicate that the notice of appeal was brought to the
attention of any Band member or to any other individual.
[16]
It
is clear that the jurisdiction given by the Election Regulations to the Appeal Board
is important as it has the potential of affecting seriously the reputations of
members of the Band.
[17]
The
evidence reveals that the Chair of the Appeal Board exchanged e-mails with the Applicant
and communicated with him during the hearing. The Applicant was seeking collaboration
from the Chair to ensure that pertinent financial information of the Band Council
would be given to the Appeal Board in order for a fair decision to be rendered.
The Applicant had tried to obtain such information from a Tribal Administrator
but had not been successful.
[18]
The
evidence also indicates that the Chair had at least one conversation with the
Tribal Administrator, once the hearing had begun, regarding allegations of
corruption made against Respondents Paul and Burnstick.
[19]
In
addition, it is agreed by all that the Chair of the Appeal Board phoned both Respondents
Paul and Burnstick in order to inform them of the testimony of Mr. Bruno (who allegedly
received $1300 from the councillors in return for his family’s votes) according
to which they were involved in important corruption practices during the
election. They both denied the allegations with some explanation and told the Chair
that they would not appear at the hearing.
[20]
It
is also agreed that following the conversations with Respondents Paul and
Burnstick, the Chair reported in writing to the Applicant and also at the
hearing. There is contradictory evidence as to whether or not the Applicant
requested the Chair to contact Respondents Paul and Burnstick and whether or
not the Applicant had objected to the Chair contacting the individuals. There
is evidence indicating that after hearing the testimony of Mr. Bruno, the Chair
felt that procedural fairness required that both Respondents have an
opportunity to respond to the evidence.
[21]
The
evidence demonstrates that the Chair of the Appeal Board in a letter to the Applicant
dated September 15, 2011 explained that “[...] the onus is on the Appellant to
bring compelling evidence to prove its [sic] allegations on a balance of
probabilities.”
[22]
In
the context of allegations of corrupt practice, the Applicant made a request
for financial information to the Tribal Administrator, which was refused for
privacy reasons. Even though the Applicant requested that the Chair of the
Appeal Board provide him with the relevant financial information, the Chair was
not able to obtain it. It is to be noted that the Certified Tribunal Record does
contain financial information of the Band: the Trial balance is dated June 30,
2011. It lists all of the Band members’ names and others that received cheques
from the Band. There is no Trial balance as of August 11, 2011, date of the election.
[23]
The
Appeal Board scheduled three days to hear the testimonies of witnesses.
Following the testimony of Mr. Bruno on September 26, 2011, the Chair decided
to bring the hearing to an end, until he had spoken to the Respondents Paul and
Burnstick. There is some evidence that the Chair at the hearing on September
27, 2011 reported on his conversation with Mr. Paul but that he did not wish to
continue until he had spoken with Mr. Burnstick. On September 30, 2011, the
Chair reported on his conversation with Mr. Burnstick and the Applicant
presented oral submissions. The Certified Tribunal Record contains only a
transcript of Mr. Bruno’s testimony of September 26, 2011. No audio recording
of the hearings is included in the Tribunal Certified Record.
[24]
The
Applicant was self-represented throughout the proceedings before the Appeal
Board and there was no other party involved. The evidence does not reveal if a
Registrar Officer was involved but the Certified Tribunal Record indicates that
a Court Reporter was present and was filing and numbering the exhibits
presented.
[25]
This
is a general portrait of the pertinent activities surrounding the issues
related to the notice of appeal and some of the involvement of the Chair of the
Appeal Board on these matters. The Appeal Board rendered its decision on October
14, 2011.
[26]
Concerning
the allegations “[…] that there was election fraud and corrupt practice
committed by Kurt Burnstick, Bernard Paul and Herb Arcand contrary to section
29(a) of the Regulations […],” the Appeal Board rendered the following decision:
“[…] the Board finds that there is insufficient evidence on a balance of
probabilities to find that there was corrupt practice in connection with the election
against Bernard Paul and Kurt Burnstick under Section 29 of the Regulations.” The
Appeal Board concludes by noting “[…] that the Appeal had merit albeit for
grounds outside the permitted grounds of Appeal and the Appellant presented
able arguments and conducted the Appeal admirably which the Board acknowledges,”
without further explanation.
[27]
The
reasons for dismissing the allegations of corrupt practice were solely based on
the testimony of Mr. Bruno. The Appeal Board found that it had “[…] difficulty
with accepting some aspects […]” of Mr. Bruno’s testimony and “[…] difficulty
with the situation […]”described by him. The Board also found “[…] some key
elements of Mr. Bruno’s evidence unclear due to the Appellant asking leading
questions along with a number of questions being asked together.” The Appeal Board
rejected the testimony of Mr. Bruno and made the following statement:
“A more likely scenario would be a Band member with
no access to money was seeking financial support from the Band vigorously approached
the Band Staff and Council Members seeking financial assistance. The evidence
provided by Mr. Bruno may also be a
result of Mr. Bruno attempting to buttress his
evidence given his financial and health hardships at that time.”.
In addition, the Appeal Board qualified his evidence
as “unclear and vague.”
[28]
The
three members of the Appeal Board did not rely in their decision on other
testimonies and only referred to Mr. Bruno’s testimony to dismiss it. The
Appeal Board did note that the issuance of cheques is a routine practice of the
Band and that it is justified by different Band policies. However, they also mention
that the issuance of cheques without reason or unsolicited by members of the Band
after the election has been called or within 30 days of the election by certain
Council members would raise an indicia of corrupt practice. They referred
to case law of this Court to support that comment (Wilson v Norway House Cree Nation, 2008 FC 1173, 172 ACWS (3d) 1) which had been submitted by
the Applicant.
[29]
The
evidence of Mr. Bruno was that he had received a $1300 cheque from the Band Administration
through the intervention of the Respondents Paul and Burnstick. He also
received $200 in cash from Respondent Burnstick who first gave it to his mother
who then gave it to him. There was also some money that was left at the store
for his personal use to buy gas. It is his testimony that these sums of money
were given after the election was called sometime in the middle of July (see
the Applicant's Record, Mr. Bruno’s testimony at page 34). The Appeal Board
concluded that “[…] a transaction occurred” but that “[…] there was no evidence
that the Notice (Exhibit 16) was still in effect when this transaction
occurred.” The Notice referred to is the Notice of the Election dated July 13,
2011 announcing the Election for August 11, 2011.
[30]
Having
now reviewed the reasons of the Appeal Board’s decision concerning the
allegations of corrupt practice and the general portrait of the pertinent
activities surrounding this issue including the involvement of the Chair of the
Appeal Board, two matters must be discussed: What is the proper test to be
applied when assessing principles of fairness and examining whether there is an
apprehension of bias and what are the requirements expected from the Appeal Board?
[31]
It
is well known that the proper test applicable to the behaviour of a tribunal when
assuming its duties which may raise an apprehension of bias is:
“[…] what
would an informed person, viewing the matter realistically and practically,
and having thought the matter through, conclude. Would he think […] more likely
than not that Mr. Crowe, whether consciously or unconsciously, would not decide
fairly.”
(See Committee for Justice and
Liberty v Canada (National Energy Board), [1978]1 SCR 369, 9 NR 115, 68
DLR (3d) 716, at para 40 [Committee for Justice and Liberty].)
[32]
In
addition, it is also necessary, in such a situation to take into consideration
the special circumstances of the tribunal in order to identify which appropriate
standard is applicable (see Committee for Justice and Liberty, supra, at
para 43).
[33]
The
principal attributes of the Appeal Board are that the panel members cannot be
members of the Band and that they are appointed and remunerated by the Chief
and Council. The Appeal Board is vested with the jurisdiction to deal with
important matters such as allegations of electoral corrupt practice and non-compliance
with the Election Regulations. This jurisdiction may bring about the
cancellation of elections. The Appeal Board is not bound by any rules of
evidence. The decisions are final and binding and any appeal of its decision is
to be founded in law and not in fact. Therefore, the Appeal Board makes final factual
determinations which may impact on the credibility of elected officers and
members of the Band.
[34]
The
Election Regulations are silent on the powers, procedure such as notices to be
given, and hearing process of the Appeal Board. It is informative to note that
the Chair of the Appeal Board considered that the Applicant had the onus to
bring compelling evidence to prove his allegations on a balance of
probabilities and that he had to bring individuals to testify in order to give
direct evidence regarding the issuance of cheques. In addition, the Chair of
the Appeal Board explained that the individuals affected by the evidence may
wish to attend and give evidence contrary to the Applicant's evidence but that the
Applicant would have the opportunity to ask them questions regarding the
alleged transactions (see the letter from the Chair of the Appeal Board, dated
September 16, 2011, at Tab D of the Certified Tribunal Record).
[35]
The
Appeal Board has the basic attributes of a judicial decision maker. It makes
final factual determinations which include credibility findings and questions
of law. Ultimately, its decisions, which can be appealed or reviewed, can bring
about the cancellation of elections. Furthermore, the Chair of the Appeal Board
understood that the onus was on the Applicant in bringing forward viva voce
testimony and that he had the right to cross-examine witnesses. This is what a judicial
tribunal is all about.
[36]
Therefore,
the basic principles of natural justice apply in order to ensure that a fair
process exist and that guarantees that all the evidence presented to the Board,
which may directly or indirectly impact on the decision to be made, is heard by
all.
[37]
In
the case at bar, the Chair breached procedural fairness by communicating
privately with two important witnesses against whom serious allegations of
electoral corrupt practice consisting of facilitating the issuance of a $1300
cheque by the Band Administration in return for votes, which are revealed by
the testimony of Mr. Bruno. During the conversations, issues of substance were
addressed: “[t]he allegations were discussed, the testimony of Mr. Bruno was
also dealt with, and both Respondents Paul and Burnstick denied the allegations
and refused to appear and testify.” This is vital evidence communicated
directly to the Chair but not directly to the other two panel members, the Applicant
and the public. The Chair did report the conversations to the Applicant and the
other panel members but this is not a remedy to the breach committed. This
crucial information could not be dealt with in public like it should have been
and the Applicant had no opportunity to test the version given by the two
individuals through cross-examination. If the Chair of the Appeal Board wanted
to be fair to the Respondents Paul and Burnstick by communicating the testimony
of Mr. Bruno to them, he was unfair to the Applicant. The means by which the
contradictory evidence should have been dealt with is a public hearing, which must
be accessible to all. There is in no way to know what impact these
conversations had on the Appeal Board members but any neutral observer, in such
a situation, would have serious concerns about the objectivity of the decision-making
process followed.
[38]
The
breach is so fundamental that the argument to the effect that because the Applicant
did not object to the Chair’s private communications with Respondents Paul and
Burnstick and that he even requested the Chair of the Appeal Board to contact the
Respondents cannot be accepted by this Court as the Chair’s actions that followed
are simply not acceptable. Moreover, it is to be noted that there is
contradictory evidence with regard to both of these matters. A Chair of a
tribunal communicating privately with witnesses, does not assume his role
properly and is not acting in the interests of justice.
[39]
The
fundamental objective of the judicial process is to ensure that all evidence is
presented publicly, in order that it be heard by all interested parties who can
test the evidence through proper procedure thereby guaranteeing the integrity
of the judicial process. For the Chief, the Band Council and the members of the
Band, it is of utmost importance that justice be administered in a non-arbitrary
way, in accordance with the rule of law. Fair and honest elections preserve the
democracy of the Alexander First Nation Band. The tribunal set up to ensure
democratic vitality must be open and fair in order to guarantee the sanctity of
the electoral results. It did not assume this responsibility in this case.
[40]
Therefore,
an informed person, viewing the matter as a whole with proper knowledge of the
issues and having thought about the facts and the principles involved, would
more likely than not conclude that, consciously or unconsciously, the Chair of
the Appeal Board and the Board itself have not decided the matter fairly. The behaviour
of the Chair of the Appeal Board amounted to a fundamental breach to procedural
fairness and as such, the decision rendered is invalid.
[41]
On
this ground alone, the matter should be returned to the Chief and councillors so
that at a different panel of the Appeal Board be appointed and assigned to deal
with the Applicant’s allegations of electoral corrupt practices. As a last
comment, in fairness to the Chair of the Appeal Board, the Court did not
identify any evidence of negative intent on the part of the Chair.
B. Did the Appeal Board err in law by deciding
that it does not have jurisdiction to
decide upon the
constitutional validity of the definition of “Elector” under the
Regulations?
[42]
The second issue raised by the Applicant in this case is whether
the Appeal Board erred in deciding that it did not have the jurisdiction to consider the constitutionality of the
definition of “Elector” under section 1 of the Regulations. It relied on
section 17 of the Election Regulations to conclude that the Electoral Officer,
who deals with disputes related to electoral eligibility, should be seized with
such matter, to the exclusion of the Appeal Board.
[43]
Before
deciding whether the Appeal Board has jurisdiction to decide on the
constitutionality of the definition of “Elector,” it is necessary to look at
the Regulations as a whole, at the provision granting jurisdiction to the Appeal
Board and to other adjudicative bodies to identify which administrative entity
should deal with the matters arising in relation to the electoral list.
[44]
The
Applicant is contesting the constitutionality of the definition of “Elector” based
on section 15 of the Charter which excludes from the voter’s list non-resident members
of the Band. Section 1 of the Regulations defines “Elector” as follows:
1. In these Regulations:
[…]
(c) “Elector” means a person who:
(i) is the full age of
twenty-one (21) years, and
(ii) is a member of the
Alexander Tribe, and
(iii) is ordinarily resident or
has resided on the Alexander reserve for a period
of no less than one (1)
month, and
(iv) is not the Electoral Officer
or his appointed assistant.
[…]
[45]
The provision conferring jurisdiction on the Appeal Board to
review the election of a candidate is section 29, which reads as follows:
29. Within fifteen (15) days after the
posting of the written statement
by the Electoral Officer pursuant
to Section 27, any Elector who
has reasonable grounds to
believe:
(a) that there was corrupt
practice in the [sic]
connection with the
election, or
(b) that these Regulations were
not complied with may Appeal
the election of a candidate
or candidates by filing a written
notice of appeal with the Electoral
Officer which sets out the
grounds of the Appeal.
[46]
If
the Appeal Board finds that corruption occurred or that the election process
was not held in compliance with the Regulations, it has the power to grant one
specific remedy which is to hold a new election for the vacant office or offices:
30.
Where
the Appeal Board finds that a candidate or candidates have
not been elected to office in accordance with
these Regulations,
the Electoral Officer shall hold a nomination
meeting and election
for the vacant office or offices in
accordance with these
Regulations.
[47]
Moreover,
section 17 of the Regulations provides a means to contest the names that are
included in the voter’s list or those that are omitted from the list:
17. Any person who:
(i) disputes the name of an Elector included on the
voter’s list, or
(ii) believes his name should be included on the
voter’s list may
apply to the Electoral Officer for
determination of the matter at
any time up to 8:00 pm on the date of the
election. The Electoral
Officer shall be final and binding. Any Appeal
to a Court of Law
shall be found in law and not in fact.
[48]
In
R v Conway, 2010 SCC 22, [2010]
1 SCR 765,
the Supreme Court of Canada established an approach to follow in order to identify
whether or not a tribunal, board or administrative body has the necessary
prerequisites to deal with Charter arguments. It was decided at paragraph 22 that
even if it is found that such bodies can deal with Charter related matters, they
may do so only if the subject matter to be dealt with falls within their jurisdiction:
“[…] If it does, and if Charter jurisdiction
has not been excluded by statute, the tribunal will have the jurisdiction to
grant Charter remedies, in relation to Charter issues arising in the
course of carrying on its statutory mandate. […]” [My emphasis.]
This requirement is also stated at
paragraphs 78 and 81, where the Court indicates that administrative tribunals
“[…] have the authority to resolve constitutional
questions that are linked to matters properly before them” and
to “[…] consider and apply the Charter - and Charter
remedies -when resolving the matters properly before [them].”
[49]
Moreover,
it goes without saying that recognizing that the tribunal or board can deal
with questions of law and Charter arguments does not give an automatic
jurisdiction over all subject matters. The legislation under which the tribunal
or board operates must confer a specific jurisdiction over the subject matter. In
accordance with this approach, the question to answer in the case at bar is which
administrative body has the jurisdiction over the definition of “Elector” and
the electoral list. This is a matter of statutory interpretation.
[50]
The
Election Regulations have a straightforward wording: section 17 clearly gives
the jurisdiction to deal with all matters arising from any disputes concerning
the electoral list to the Electoral Officer. It has the jurisdiction to include
or exclude members of the Band on the electoral list. The decisions rendered are
final, binding and can only be appealed on questions of law. There is, therefore,
a specific venue for appealing decisions by the Electoral Officer.
[51]
The
Appeal Board’s jurisdiction established by section 29 of the Election Regulations
does not refer to “Elector,” electoral list or to disputes that may arise in
relation to such subject matters. It has jurisdiction over corrupt practice
related to the election and any disputes concerning any non- compliance with
the Election Regulations. The remedy under that jurisdiction is the
cancellation of the election. Furthermore, as seen earlier, it has its own
process for appeal to a Court of Law, which may only be based on questions of
law.
[52]
Moreover,
after considering the Election Regulations as a whole, this Court comes
to the conclusion that there is no indication that would allow this Court to
imply that the Appeal Board has jurisdiction over issues that can arise under
the Election Regulations other than the legality of the election of a
candidate. The purpose of the jurisdiction of the Appeal Board is to inquire as
to the legality of the election process.
[53]
In
fact, the Election Regulations provide a specific procedure to address the
issue of whether or not a person falls within the definition of “Elector,”
question indirectly raised by the Applicant by challenging the constitutional
validity of the said definition. Indeed, section 17 states that the question of
the inclusion or exclusion of a person from the voter’s list should be
submitted to the Electoral Officer. The clear intent of the drafter was to
confer upon the Electoral Officer jurisdiction to interpret the definition of “Elector.”
Therefore, the power to interpret the definition of “Elector” rests with the Electoral
Officer to the exclusion of the Appeal Board which does not have any
jurisdiction over that subject matter.
[54]
Although
it is beyond the scope of the present judicial review to decide upon the Electoral
Officer’s jurisdiction over Charter challenges, it would seem that the Regulations
could be interpreted in a way that would allow it. Indeed, section 17 states
that the review of the decision of whether or not a person is to be considered
an “Elector” for the purpose of an election is subject to the jurisdiction of
the “Court of Law,” provided that the appeal raises a question of law. What
flows from a reading of section 17 is that the Electoral Officer has
jurisdiction to decide questions of law arising under that provision. In response
to a question from the Court, counsel for the Applicant agreed that the
Electoral Officer had the jurisdiction to deal with questions of law including
Charter challenges concerning the inclusion or not of electors on the electoral
list.
[55]
Before
concluding on this issue, the Court notes that there are alternative remedies
that the Applicant can follow in order to challenge the constitutionality of
the definition of “Elector” under the Election Regulations, which only allow
on-reserve Band members to vote. As far as this Court knows, the Applicant has
not raised this issue with the Electoral Officer. He will have this opportunity
at the next election. Furthermore, there is an inclusive community process that
he can get involved in with the Chief, the Council and the community. Such an
approach could resolve any Charter challenge associated with this eligibility
issue. In most cases, such mode of resolving this kind of dispute is more beneficial
than any Court-imposed point of view.
[56]
In
conclusion on this issue, the Appeal Board rightly and reasonably decided that
it does not have jurisdiction over the Applicant's section 15 Charter challenge,
of the definition of “Elector,” pursuant to section 1 of the Election Regulations.
VIII. Conclusion
[57]
On
the first issue, it is this Court's decision that the Chair of the Appeal Board
breached the principle of procedural fairness by communicating privately with Respondents
Paul and Burnstick to discuss evidence of electoral corruption and that as a
result of such behaviour, a neutral observer, knowledgeable about the facts and
the issues being dealt by the Appeal Board would more likely than not conclude,
that consciously or unconsciously, the Chair and the Appeal Board have not
decided the matter fairly. On that ground alone, the allegations of corrupt
practice made by the Applicant after the August 2011 election are to be reconsidered
and therefore, the matter is sent back to the Chief and Council so that they
may select and appoint a different panel of the Appeal Board to deal with this issue.
[58]
On
the second issue, the Appeal Board rightly and reasonably concluded that the Appeal
Board does not have jurisdiction over the Applicant’s challenge of the
definition of “Elector” pursuant to section 1 of the Election Regulations under
section 15 of the Charter.
IX. Costs
[59]
Having
considered the requests made by all counsel concerning costs, I find that the Applicant
should be granted costs. Indeed, he has assumed a heavy burden in pursuing this
matter. As a result of all of this, the Band will certainly gain from his
persistent work.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that the judicial review of the
decision of the Appeal Board dated October 4, 2011 is granted in part and that
the allegations of electoral corrupt practice must be returned to the Chief and
Council in order that a new panel of the Appeal Board be selected in accordance
with the Election Regulations, to deal with these allegations as described in the
notice of appeal. Costs are in favour of the Applicant.
“Simon Noël”
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