Date:
20130312
Docket:
T-1099-11
Citation: 2013
FC 223
Ottawa, Ontario, March 12, 2013
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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HUBERT D’OR
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Applicant
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and
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TINA ST. GERMAIN AND CHIEF AND
COUNCIL OF THE LITTLE RED RIVER CREE NATION AND THE LITTLE RED RIVER CREE NATION
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Respondents
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Overview
[1]
Mr
Hubert D’Or challenges two decisions arising out of the election of the Chief
and Council of the Little Red River Cree Nation in 2011. The first decision was
taken by the Nation’s Electoral Officer; the officer decided not to issue a
statement or to post the results of a recount for one of the councillor
positions. The second decision was taken by the Chief and Council refusing to recognize
the results of the recount.
[2]
Mr
D’Or believes that the recount should have resulted in his election as
councillor. He asks me to declare him elected and order that the results of the
recount be posted in the community as required by the Little Red River Cree Nation’s Custom Election Code 2003, [Code]. In my view, neither decision
was unreasonable. I must, therefore, dismiss this application for judicial
review.
[3]
There
are three issues:
1. Is
Mr D’Or entitled to challenge two decisions in a single application for
judicial review?
2. Did the
officer err by not publishing the results of the recount?
3. Did the
Chief and Council err by refusing to recognize the results of the recount?
II. The Election and
Recount
[4]
The
Nation is comprised of three communities: Fox Lake, St John D’Or Prairie, and Garden River. The Council is composed of four councillors from Fox Lake, four from St John
D’Or Prairie, and two from Garden River. Mr D’Or was a candidate for one of the
councillor positions in Garden River.
[5]
The
election took place on May 11, 2011 and the officer posted the results the
following day. The results showed that Mr D’Or finished third in Garden River and, therefore, was not elected.
[6]
On
May 15, 2011, the officer received a request to recount the results of the
votes for Chief. On May 16, 2011, she was asked to recount the votes for Fox Lake. That same day, the Chief and Council formally adopted the results of the
election.
[7]
On
May 18, 2011, the officer announced a recount of the ballots for the position
of Chief, and for the councillor positions in Fox Lake. She did not find any
mistakes relating to the election of Chief, but she found an arithmetic error
in respect of one of the councillor positions. She advised the Chief and
Council of the error, and posted the amended results. The Chief and Council
adopted the revised results.
[8]
On
May 31, 2011, the officer received a request for a recount for Garden River. She conducted the recount on June 16, 2011 and discovered another arithmetic
error. Had the votes been counted correctly, Mr D’Or would have successfully
won a councillor position. The officer advised the Chief and Council of the
error but did not post the results, leaving this to the discretion of the Chief
and Council.
[9]
The
Chief and Council concluded that it could not accept the results of the recount
because the Code allows for appeals only within seven days of an election. Accordingly,
it had accepted the results of the timely recount relating to Fox Lake. However, it did not accept the results of the later Garden River recount, citing the
need for finality.
III. Issue One - Is Mr
D’Or entitled to challenge both decisions in a single application for judicial
review?
[10]
Normally,
an application for judicial review must be limited to a single decision. However,
the Court can order otherwise, particularly where the decisions form part of a
continuing course of conduct (Rule 302, Federal Court Rules, 1998,
SOR/98-106; Khadr v Canada (Minister of Foreign Affairs), 2004 FC 1145).
[11]
In
my view, the two decisions in issue here form part of a continuum, representing
the Nation’s response to the challenge to the Garden River results.
Accordingly, I will allow both to be reviewed within this application.
IV. Issue Two - Did the
officer err by not publishing the results of the recount?
1. Standard of
Review
[12]
Mr
D’Or argues that I can overturn the officer’s decision if her interpretation of
the Code was incorrect.
[13]
In
my view, the proper standard of review is reasonableness. Under the Code, the
electoral officer has sole responsibility for conducting elections according to
its terms (s 3 - see Annex for all provisions of the Code cited). The officer
is expected to apply the Code in a manner consistent with the Nation’s customs,
which inform the provisions of the Code. As a resident of the community, she is
better placed than the Court to make decisions affecting the Nation’s business.
Her expert interpretation and factual conclusions deserve the Court’s
deference. In similar cases, the Court has applied a reasonableness standard to
decisions of an Appeal Committee, and of a Chief and Council (Linklater v
Peter Ballantyne Cree Nation Election Appeal Committee, 2011 FC 1353 at
paras 11-12; Shotclose v Stoney First Nation, 2011 FC 750 at paras
58-59). The same standard should apply here, both to the officer’s decision and
that of the Chief and Council.
2. The
Provisions of the Code
[14]
The
Code requires the officer to open all ballot boxes and, “subject to review on
recount or an election appeal,” take note of any objections to the ballot
papers (s 17). This is the only reference in the Code to a recount.
[15]
After
the election, the officer must seal the ballot papers and keep them for 60
days, or until she receives a notice of appeal, in which case she must deliver
the sealed ballots to the appeal committee (s 19). Appeals must be filed within
7 days of the election, and may be based on any one of the following grounds:
• a candidate was
ineligible;
• a candidate was
nominated by someone who was ineligible;
• an ineligible person
voted;
• an eligible person
was not allowed to vote; or
• a candidate engaged
in unfair and unacceptable, or corrupt behaviour (s 21).
[16]
The
Code does not specifically identify a recount as a ground of appeal.
[17]
An
election appeals committee composed of three persons selected by the electoral
officer rules on appeals. The committee has the authority to allow a new
election to be held for a particular office, or to refuse to allow a new
election either because the appeal was based on insufficient evidence or
because the activity alleged did not affect the outcome (s 21).
3. Was the
Officer’s Decision Unreasonable?
[18]
Mr
D’Or argues that the officer unreasonably failed to publish the results of the Garden River recount. He contends that the Code requires the officer to do so.
[19]
As
mentioned, there is little in the Code about recounts. Recounts are clearly
contemplated (s 17), but there is no procedure governing them, and no specific
duty on the officer to carry them out on request or to publish the results if
she does.
[20]
The
Code requires the officer to prepare and sign a statement of the number of
votes for each candidate. She must then declare publicly the candidates having
the greatest number of votes (s 17). Again, these obligations do not apply
specifically to recounts. The question, then, is whether the officer acted
reasonably in the absence of any specific guidance in the Code.
[21]
In
my view, the officer acted reasonably. Rather than take any specific action on
the recount, she referred the matter to the Chief and Council. There was
nothing in the Code that prevented her from doing so and, given the lack of
specific rules, her decision was prudent and respectful of the superior
authority of the Chief and Council. She did not contravene any provisions of
the Code.
[22]
There
is some concern surrounding the fact that the officer posted a notice about the
earlier recount she carried out (relating to Fox Lake) and did not do so in
respect of the Garden River request. However, without specific rules relating
to recounts, some inconsistency is bound to occur. Since the propriety of the
earlier recount is not an issue before me, I need not decide whether the
officer acted reasonably there.
V. Did the Chief and
Council err by refusing to recognize the results of the recount?
[23]
Mr
D’Or maintains that the Chief and Council acted unreasonably when it ruled that
the recount request was out of time. There is no time limit on recounts under
the Code. The only time limit is the 60-day period during which the officer
must maintain possession of the ballot papers. Mr D’Or contends that a
reasonable reading of the Code would suggest that recount requests could be
entertained at any time during that 60-day period. The effect of the Chief and
Council’s decision was to disenfranchise those voters who selected Mr D’Or as
their councillor.
[24]
In
my view, the Chief and Council reasonably concluded that the 7-day appeal period
should apply to recounts. While the grounds of appeal set out in the Code do
not specifically include recounts, the applicable provision (s 21) is clearly
not exhaustive. It is permissive.
[25]
The
intent of the Code is to deal with challenges to election results swiftly, so
that the community’s leadership is not put in doubt for an extended period. It would
be consistent with that objective to interpret the appeal provision of the Code
as covering recounts, which is obviously a particular kind of challenge to
election results. There is no evidence of any custom relating to recounts that
would suggest an alternate procedure or time frame that would fill the gap in
the Code. Absent specific rules for recounts, the appropriate route for
challenging election results is by way of an appeal (see, e.g., Thunderchild
First Nation Appeal Tribunal v Awasis, 2007 FC 705).
[26]
Mr
D’Or cites s 17 of the Code which refers to a “review on recount or an election
appeal.” He suggests that this provision clearly differentiates between recounts
and appeals, so the appeal rules should not be interpreted as applying to
recounts.
[27]
In
my view, s 17 of the Code recognizes that appeals could be based on an
erroneous counting of votes or other grounds, namely, those set out in s 21 of
the Code. The reference to a recount in s 17 does not suggest, on its own, that
the Code treats recounts differently from other kinds of appeals.
[28]
Mr
D’Or also submits that he could not appeal the officer’s decision, since he
could only do so after the officer had posted the results of the recount. Since
she did not do so, an appeal was unavailable. Clearly, Mr D’Or could have
appealed the results of the original Garden River Election within 7 days. Had
he done so, the appeal provisions of the Code would have applied, an appeal
committee would have been struck, and it could have decided on the appropriate remedy.
[29]
Therefore,
I cannot conclude that the Chief and Council erred by failing to recognize the
results of the recount for Garden River.
VI. Conclusion and
Disposition
[30]
In
the absence of any explicit rules regarding recounts, I cannot conclude that
the officer erred by failing to post the results of the recount for the Garden
River Councillor Election. Similarly, I cannot conclude that the Chief and
Council acted unreasonably by refusing to accept the results of the recount. I
must, therefore, 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”
Annex
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Little
Red River Cree Nation’s Custom Election Code 2003
Counting
of Votes
17. As soon as
possible after the close of the polls, the electoral officer or deputy
electoral officer shall, in the presence of any candidates of their agents
who are present, open all ballot boxes and:
(a) examine the ballot
papers and reject all ballot papers:
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that
have not been supplied by him or her,
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by
which votes have been given for more candidates than are to be elected, or,
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on
which anything appears by which the voter can be identified, and
(b) declare a ballot
paper containing the names of candidates for more, on which votes are given
for more candidates for any office, than are to be elected, to be void as
regards all the candidates for such office, but such ballot paper shall be
good as regard the votes for any other offices in respect of which the voter
has not voted for more candidates than are to be elected, and
(c) subject to review
on recount or on an election appeal, take a note of any objection made by
any candidate or his or her agent to any ballot paper found in the ballot box
and decide any question arising out of the objection… [Emphasis added]
Disposition of Ballot Papers
19. The electoral officer shall,
after the election poll, deposit all ballot papers in a sealed envelope and
retain possession of the ballots for sixty (60) days or until he or she is
served with a notice of appeal at which time he or she will forward the
ballot papers, in the sealed envelope, along with the voters’ list and other
documentation relevant, to the appeal committee.
Election Appeals
21.
Within
seven (7) days following an election and the posting of the written statement
by the electoral officer, a candidate may appeal the outcome of an election.
An appeal shall be made in
writing to the electoral officer stating and detailing or providing particulars
of the reason or reasons for the appeal.
An appeal may be based on any
one of the following:
- a candidate in
the election was not eligible to be a candidate by virtue of these
provisions,
- a candidate in
the election was nominated by persons not eligible to nominate,
- person(s) who
voted were not eligible to vote,
- person(s)
eligible to vote were not allowed to vote, or,
- a candidate was
practicing unfair and unacceptable or corrupt election practices, for
example: bribery, threats or intimidation of electors, electoral
officer, polling clerks, or other persons assisting in the election.
Upon receiving an appeal, the
electoral officer shall appoint an election appeals committee consisting of
three (3) persons who are:
- knowledgeable
and well informed concerning First Nation governance,
- not electors of
the Nation,
- not employees
or contractors of the Nation, and,
- not reside in
either Fox Lake, Garden River, or John D’or Prairie.
Within seven (7)
days of receiving a notice of appeal, the electoral officer shall organize a
meeting for the election appeal committee to hear evidence concerning the
appeal.
The appeals
committee shall not be bound by any rules of evidence.
The electoral
officer shall inform all candidates who may have an interest in the meeting.
The electoral
officer shall conduct the meeting but shall not vote in any decision of the
election appeal committee.
The election appeal
committee shall deliver a written decision within five (5) days of hearing
the evidence regarding the appeal and shall have the authority to:
(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.
The electoral officer shall
inform Council, all candidates who may be affected, and other interested
persons of the decision of the election appeals committee.
The decision of the appeals
committee shall be final and binding upon all parties. Any appeal to a Court
of Law shall be founded in law only, and not in fact.
A new election, if allowed,
shall be organized and conducted by the electoral officer within fourteen
(14) days following the written decision of the election appeals committee.
The only candidates in the new
election shall be those eligible candidates nominated in the previous
election.
In addition to the provisions
under this section, all applicable election procedures and regulations herein
provided shall be used in a new election.
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