Date: 20161102
Docket: T-2027-15
Citation:
2016 FC 1222
Ottawa, Ontario, November 2, 2016
PRESENT: The
Honourable Mr. Justice Annis
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BETWEEN:
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SONNY GAGNON
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Applicant
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and
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MARK BELL,
SHELDON ATLOOKAN, JOESEPH BAXTER, LUCIEN MENDOWAGON (AKA LUCIEN MATASAWAGON
MENDOWEGAN), MARCEL GAGNON SR., ROBINSON MESHAKE, DOROTHY TOWEDO-BAXTER,
BRENDA MEGAN, and DAMIEN BOUCHARD
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Respondents
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JUDGMENT AND REASONS
TABLE OF CONTENTS
I. Background. 3
II. Parties’ Submissions. 9
III. Issues. 11
IV. Analysis. 11
A. Should the Court exercise
its discretion to allow the Applicant to bring an application for judicial
review of more than one decision?. 11
B. Does the Band Custom allow
Electoral Officers and/or band Council to overturn election results? 12
(1) Standard of review.. 12
(2) Can Electoral Officers
and/or Band Council overturn election results?. 14
C. Should a writ of quo
warranto be granted?. 15
(1) Does the Court have
jurisdiction over the person holding the office?. 15
(2) Does the Applicant meet
the rules for granting the remedy of quo warranto as set out in Jock? 16
(a) Office of a public nature. 17
(b) Exercised the office. 17
(c) Office created by an Act
of Parliament 17
(d) Deputy or servant that may
be dismissed at will 18
(e) Plaintiff guilty of
acquiescence. 18
(f) Genuine Interest and
Standing of the Applicant 18
(g) All internal relief
avenues exhausted. 18
(h) Onus. 19
(i) Availability of quo
warranto as a remedy. 19
(3) Does the person
purporting to be holding the office lack a legal basis to hold that position? 19
(a) Off-reserve
representation. 20
(b) Chain of custody of the
ballot boxes. 24
(c) Reasonable apprehension
of bias on the part of the Electoral Officers. 25
V. Conclusion. 26
[1]
This is an application for judicial review [Application]
pursuant to section 18.1 of the Federal Courts Act, RCS 1985, c F-27
[the Act] , concerning decisions made by Respondents Brenda Megan and Damien
Bouchard [the Electoral Officers] and the remaining Respondents who were
elected on November 7, 2015 [the Election] as Chief and Band Council of Aroland
First Nation [AFN or Band]: to wit, Dorothy Towedo as Chief, and Mark Bell,
Lucien Mendowegan, Marcel Gagnon Sr., Joe Baxter, Sheldon Atlookan, and
Robinson Meshake as Councillors [together, the Council or Band Council].
[2]
The Applicant is seeking an order for the issue
of a writ in the nature of quo warranto declaring that the Chief and
Council elected November 7, 2015, never properly held office, quashing the November
7, 2015 AFN Election results, directing the parties to convene a General
Assembly to appoint new Electoral Officers and ordering that a new election be
held.
[3]
For the reasons that follow, the application is
dismissed.
[4]
The AFN is a First Nation community of
approximately 491 voting members located in Northern Ontario. The AFN community
holds elections every two (2) years to elect six (6) councillors and one (1)
chief. AFN’s election procedure is not currently governed by a written election
code, the election regulations of the Indian Act, RSC 1985, c I-5 [Indian
Act], or the new First Nations Elections Act, SC 2014, c 5, election
system. A draft election code, the Aroland First Nation Election Code Draft
#8, was never adopted or ratified by AFN’s membership. It is common ground
that AFN therefore currently relies on an oral election code, often called “Band Custom”.
[5]
On September 2, 2015, a community meeting was
held where Brenda Megan and Damien Bouchard were appointed respectively as the
Electoral Officer and Deputy Officer. The Electoral Officers thereafter set
dates for the Thunder Bay and Aroland advance polls, the election on November
7, 2015, and the candidate nomination meeting on September 23, 2015.
[6]
On September 3, 2015, the Electoral Officers set
up a Facebook page and posted the following information:
- Nominations for chief and council [Nomination Meeting] would be
held on September 23, 2015 at 6:00 pm at Johnny Therriault Memorial School
in Aroland;
- Advance Polls would be held in Aroland on October 26, 2015 from
8:00 am to 4:00 pm;
- Advance Polls would be held in Thunder Bay at the Landmark Inn
on October 29, 2015 from 8:00 am to 4:00 pm;
- Election Day would be November 7, 2015 from 8:00 am to 8:00 pm
at Johnny Therriault Memorial School in Aroland.
[7]
Also on September 3, 2015, an election memo communicating
the above information was posted at a local smoke shop, the Band Office and
Health Centre (all on-reserve) and at O’Sullivan Gas Bar (off-reserve). The
same memo was also delivered to every home in Aroland. Even though AFN
elections had in previous years been advertised in print media such as
newspapers, the Electoral Officers only used Facebook for the purposes of
advertising the 2015 AFN election. Off-reserve AFN members were notified of the
Election by the Election Facebook page, by family members on the reserve, and
by word of mouth. Once notified, AFN members could contact the Electoral
Officers to request a ballot.
[8]
On September 23, 2015, the Nomination Meeting
was held as planned.
[9]
On September 25, 2015, the advance polling dates
were changed and advertised on the AFN Election Facebook page. The Thunder Bay
advance polling date was changed from October 29, 2015 to October 17, 2015. The
Aroland advance polling date was changed from October 26, 2015 to October 24,
2015.
[10]
On October 15, 2015, the advance polling dates
were again changed because an elder of the community had passed away. The
Thunder Bay and Aroland advance polling dates were thus changed from October
17, 2015 to October 24, 2015 and from October 24, 2015 to October 25, 2015,
respectively.
[11]
On October 24 and 25, 2015, advance polls were
held in Thunder Bay and Aroland, respectively.
[12]
Elections were held on November 7, 2015, and willing
eligible voters of AFN voted to elect a new council and chief from 8:00 am to
8:00 pm at Johnny Therriault Memorial School in Aroland. Once the polls closed,
the votes were counted at Johnny Therriault Memorial School by the Electoral Officers
and witnessed inter alia by Gloria Wabasson, Dorothy Towedo-Baxter and the
Applicant. The results of the Election were announced past midnight that
evening on Facebook by Damien Bouchard, the Deputy Officer, in the following
manner:
Mark Bell. Sheldon Atlookan. Joe Baxter.
Louie Mendowagon. Marcel Gagnon Sr. Robinson Meshake. Councillors. Dorothy
Towedo as Chief.
[13]
On November 9, 2015, the Applicant, who is also
the outgoing chief of AFN, emailed the Band Administrator (Patricia Magiskan),
the Co-Managers (Cupri Consulting and Alice Towedo), and former unelected band council
members to raise concerns regarding the Election and request a formal recount.
The Applicant’s allegations were as follows:
a) Many AFN members had contacted the Applicant and told him that they
had not been informed about the Election or had not received clear instructions
on how to vote.
b) Advance poll dates in Thunder Bay and Aroland had changed twice.
c) The ballot boxes were not at all times supervised appropriately.
d) Some mail-in ballots did not have a post-mark on them, indicating
that they hadn’t gone through the mail system.
e) Only 41 of the 50 mail-in ballots sent out to voters came back with
votes.
f) The Deputy Officer (Damien Bouchard)’s father was running for chief
in the Election.
g) The Electoral Officer (Brenda Megan)’s common law partner and co-habitant
was running for councillor in the Election.
[14]
Also on November 9, 2015, the Chief and new
Council members adopted Band Council Resolution 15/16#015 declaring that
the newly elected Council should commence their duties on the same date based
on the elections of November 7, 2015.
[15]
On November 11, 2015, the Band Administrator
retained the firm Buset & Partners LLP [B&P], the Band’s legal counsel,
to conduct a review of the November 7, 2015 election for the Band. That same day,
B&P emailed the Band Administrator one of the Band’s co-managers (Ryan
Bliznikas), and the Electoral Officer (Brenda Megan) requesting certain
documents, including inter alia an official election report, and other
relevant information needed to conduct a review of the Election. Ms. Megan
alleges not having received nor read this email until after November 11, 2015.
She also acknowledges hearing about an appeal being spoken of concerning the
conduct of the election shortly after the election.
[16]
On November 13, 2015, B&P met with the Band
Administrator, one of AFN co-managers (Crupi Consulting) and the Applicant to
discuss the Election and obtain a legal opinion on the conduct of the Election
and actions to be taken.
[17]
On November 14, 2015, the Applicant wrote to the
Electoral Officers to request an election report and convey other concerns,
including the following allegations:
a) Ballots were numbered and the voter list was numbered, thereby
affecting the anonymity of the voting system.
b) The Electoral Officer personally picked up a ballot from a voter.
c) A voter in Nakina had his ballot picked up by another band member.
d) Two eligible members were denied the ability to vote without any
valid reason.
[18]
On November 17, 2015, the Electoral Officers
completed a report on the Election [Election Report] and submitted it to the
Band office. The Election Report showed that 239 out of 248 on-reserve voters
cast a vote, while only 118 out of 245 off-reserve voters cast a vote. This
corresponded to an on-reserve voter turnout of 96% and an off-reserve turnout
of 48%. The Applicant had lost the Election by nine (9) votes.
[19]
On November 18, 2015, the Applicant requested a
copy of the Election Report.
[20]
On November 21, 2015, the Applicant wrote to
Band Management to request, for a third time, a recount of the Election ballots.
[21]
Also on November 21, 2015, B&P’s legal
opinion regarding the Election was communicated to the new Chief and Band
Council via email. B&P were of the opinion that the Election had been shown
to have sufficient irregularities, and that the number of votes affected as a
result was sufficient to affect the outcome of the Election. The opinion
concluded that a new election should be ordered for each of the positions of
Chief and Council and that the Applicant and his Council should be given an
extended mandate until new elections are concluded.
[22]
B&P’s opinion was based in part on letters
from voters collected by the Applicant and on the Applicant’s unverified
testimony regarding other issues. None of the letters were provided to this
Court or were corroborated by sworn statements, with the exception of the
affidavit of Ms. Ella Gagnon. Moreover, the legal basis for B&P’s opinion
was Aroland First Nation Custom Election Code Draft #8, an election code
that was never adopted by AFN, and statutes and regulations that are not
applicable to AFN elections, such as the Indian Band Election Regulations,
CRC, c 952, and the First Nations Elections Act.
[23]
On or about November 22, 2015, the new Chief and
Council were sworn in.
[24]
On November 24, 2015, a Band meeting was held in
Aroland to address any concerns with the Election. The Electoral Officer, Ms.
Megan, did not attend the meeting. During this meeting, a first motion was
passed whereby the community recognized the newly elected Chief and Council as
the governing body of AFN. A second motion was passed directing the new AFN Council
to remove the current Band Administrator, Patricia Magiskan, from authority.
[25]
On November 26, Patricia Magiskan was suspended
as Band Administrator for actions “taken to appeal the
election […] during work time.” Ms. Magiskan alleges that her suspension
is the result of her decision to instruct the Band’s legal Counsel to ascertain
the legality of the Election.
[26]
On December 2, 2015, Mr. Gagnon filed the
present Application for Judicial Review requesting inter alia that this
Court:
1. quash the results of the November 7, 2015 election;
2. issue a writ of quo warranto declaring that the Chief and
Council elected on November 7, 2015 never properly held office; and
3. issue a writ of mandamus directing the parties to convene a
General Assembly to appoint new Elections Officers and hold a new election.
[27]
The Applicant summarizes his principle
submissions in his memorandum as follows:
19. The conduct of
the election was done in a way that did not sufficiently incorporate the views
of off-reserve voters, from the appointment of the electoral officers to
nominations, to notice. This affected the results of the election.
20. This judicial review, however, is
focused on the conduct of the Electoral Officers and the new Chief and Council
in light of the complaints and appeals—specifically that no response was given,
at all.
[28]
In particular, the Applicant argues that the
decision to notify AFN off-reserve members of the Election exclusively via a
post on a Facebook page and by word of mouth was inadequate notice of the
Election.
[29]
The Applicant acknowledges that election Band
Custom does not include provisions governing recounts, appeals or consideration
of irregularities that arise from Band elections seeing as there has never
previously been a challenge to an AFN Election. Instead, he argues that Band
Custom must nevertheless conform to the rule of law and that procedural
fairness was owed to him. He submits that he was treated unfairly by the
decisions of the Electoral Officers and/or the Council to refuse to address his
serious documented complaints about the Election.
[30]
The elected Respondents submit that the
complaint was not properly directed to them, but to Band Management. The Court
rejects this argument, concluding that all Respondents were sufficiently aware
of the Applicant’s complaints and their potential to have affected the election
if sustained.
[31]
The Electoral Officers contend that they are a
federal board and that their decisions are reviewable by the Federal Court.
They also state that, as an administrative tribunal, the application should be
dismissed against them as it is improper to add them as a party to the present
proceeding absent legislation to that effect.
[32]
All Respondents contend that the Applicant has
failed to provide any directly sworn evidence to demonstrate that off-reserve
voters were unaware of the Election, unable to cast their ballot, or that the
use of Facebook for providing notice and information regarding the Election
impacted the results of the Election in any way.
[33]
None of the Respondents contend that the
Community meeting of November 24, 2015 was an appeal process or a
re-consideration of the Applicant’s complaints of an unfair election.
III.
Issues
[34]
The following issues arise in this application:
A. Should the Court exercise its discretion to allow the Applicant to
bring an application for judicial review of more than one decision?
B.
Does the Band Custom allow Electoral Officers
and/or band Council to overturn election results?
C.
Should a writ of quo warranto be granted?
IV.
Analysis
[35]
The Applicant asks this Court to review a
panoply of decisions made by both the Electoral Officers and the newly elected
Chief and Council. Rule 302 of the Federal Courts Rules, SOR/98-106
require [the Rules] that an application for judicial review be limited
to a single order in respect of which relief is sought. However, this rule does
not apply where there is “a continuous course of
conduct” (Shotclose v Stoney First Nation, 2011 FC 750 at para 64
[Shotclose]).
[36]
As was found in Anichinapéo v Papatie,
2014 FC 687 at para 19 [Anichinapéo], I find in the present case that “the various impugned decisions are closely related and stem
from the same series of events.” I further note that the Respondents
have not objected to the present application for judicial review involving all
of the issues raised, and indeed implicitly accept the merits of this approach
by presenting issues and arguments themselves related both to the conduct and
decisions of the Electoral Officers and of the Band Council (Anichinapéo at
para 31). Alternatively, if I am wrong in so finding, I would exercise this
Court’s discretion under Rule 55 of the Rules and dispense with
compliance with Rule 302.
[37]
The parties have argued as though this was a
matter of reviewing the decision of the Council or Electoral Officers with
respect to their refusal to entertain the Applicant’s complaints.
[38]
It is the Court’s conclusion, and indeed its
interpretation of the Applicant’s argument, that there is no Band Custom
relating to appeals of elections. Indeed, no election has ever been challenged
to give rise to such a custom. The Applicant’s argument that this does not rule
out the finding of a custom is illogical. It is the Applicant’s onus to prove
the existence of a custom and in this case, there is no evidence of community
consensus to substantiate such a claim. It is on this ground that he relies
upon this Court’s line of decisions applying procedural fairness principles in
the absence of any custom governing the issue: Shotclose at para 97, Sparvier
v Cowessess Indian Band No 73, 1993 CarswellNat 808 at paras 11-15
(FCTD) [Sparvier]. However, if there is no custom on appeals of
elections, the Respondents do not have the jurisdiction to hear and make
decisions relating to such appeals. Consequently, the Applicant’s request that
he be accorded procedural fairness for a process leading up to a decision that
the Electoral Officers and the Band Council had no jurisdiction to make is not sustainable.
[39]
Had there been an issue of the interpretation of
the Respondents’ jurisdiction to conduct an appeal, I would have reviewed it on
a standard of correctness (Martselos v Salt River First Nation #195,
2008 FCA 221 at para 30 [Salt River Nation], holding that “ … although the Council has a greater expertise on matters
such as knowledge of the Band's customs and factual determinations, the
Councillors, who are elected by the members of the [First Nation], have no
particular expertise in interpreting the election code, and certainly no more than
this Court” [references omitted]. See also Joseph v Yekooche First
Nation, 2012 FC 1153 at para 25.
[40]
Moreover, the absence of any custom on appeals
of elections is precisely the sort of case where the remedy of quo warranto
applies. If “standing” can be established for quo
warranto, then the Court must determine whether the person purporting to be
holding the office lacks a legal basis to hold that position. I find below that
quo warranto does apply, and in that guise, the Court will consider the
arguments put forward by the Applicant that the election was not fairly
conducted in relation to Band Custom.
[41]
That is not to say that procedural fairness
issues cannot be considered in a quo warranto analysis, and indeed one
arises in this matter concerning the alleged bias of the Electoral Officers,
which I address below.
[42]
Otherwise, the Court’s examination of the facts
and actions taken pursuant to Band Custom calls for a review on a standard of
reasonableness. This applies to the Applicants’ principal complaint concerning
the treatment of off-reserve members.
[43]
It is well established in the case law that
custom must be proven by the party seeking to rely on it (Anichinapéo at
para 46; Taypotat v Kahkewistahaw First Nation, 2012 FC 1036 at para 28;
Francis v Mohawk Council of Kanesatake, 2003 FCT 115 at para 21). As
described, I find that election Band Custom does not include a custom governing
overturning election results. Again, this case is similar to the one before
Justice de Montigny in Anichinapéo, seeing as AFN’s Band Custom does not
confer any power on electoral officers or Band Council to overturn election
results. Consequently, neither the Electoral Officers nor the Band Council has
the jurisdiction to overturn election results without the consensus of the
community.
[44]
While the Applicant has pleaded his request for
a remedy in the nature of quo warranto, there were no appropriate
submissions made on the matter before this Court. However, in view of the
absence of a custom allowing any member or body within the AFN community to
overturn election results, the Election results can only be challenged by way
of quo warranto pursuant to section 18(1) of the Act. As stated by
Justice de Montigny, “[t]his outcome may be
undesirable, and it may be preferable that these questions be left to the
community to decide through an internal mechanism. However, until the community
reaches a consensus on such a mechanism […] it will be for the Court to decide
these issues” (Anichinapéo at para 43).
[45]
To determine whether an election should be
quashed and a writ of quo warranto issued to remove a person from
office, the following questions must be answered in the affirmative:
1. Does the Court have jurisdiction over the person holding the office?
2. Does the Applicant meet the rules for granting the remedy of quo
warranto as set out in Jock v R, 1991 CarswellNat 126 (FCTD) [Jock]?
3. Does the person purporting to be holding the office lack a legal
basis to hold that position?
[46]
Below, I analyze each of these questions.
[47]
The Federal Court has exclusive original
jurisdiction to issue a writ of quo warranto against any federal board,
commission or other tribunal and to hear and determine any application in the
nature of such relief (Section 18(1) of the Act. The Federal Court also has
jurisdiction over custom elections (Sparvier at paras 11-15). It is
trite law that, for purposes of judicial review, an Indian band council
constitutes a “federal board, commission or other
tribunal” as defined in s 2 of the Act (Sparvier at para
13). Therefore, this Court has jurisdiction over AFN’s Chief and Council.
[48]
The rules for determining whether this Court
should grant an order in the nature of quo warranto are as follows (Jock
at para 49):
1. The office
must be one of a public nature.
2. The holder
must have already exercised the office; a mere claim to exercise it is not
enough.
3. The office
must have been created by the Crown, by a Royal Charter, or by an Act of
Parliament.
4. The office
must not be that of a deputy or servant who can be dismissed at will.
5. A plaintiff
will be barred from a remedy if the plaintiff [sic] has been guilty of
acquiescence in the usurpation of office or undue delay.
6. The plaintiff
must have a genuine interest in the proceedings. Nowadays probably any member
of the public will have sufficient interest, provided that he has no private
interest to serve.
The following matters are within the
discretion of the Court (Dussault and Borgeat, Administrative Law: A Treatise,
1990, page 388):
7. Standing of
the applicant.
8. The
reasonableness of the length of time elapsed since the election.
9. The
appropriateness of requiring that all internal relief avenues be first
exhausted.
The following are some additional factors to
be considered in a discussion of the remedy of quo warranto:
10. Whether the
onus is on the applicant or the respondent to prove his case.
11. Whether the
remedy of quo warranto may be granted independent of
any other remedy.
[49]
Below, I apply these factors to the case at bar.
[50]
The Applicant is seeking an order in the nature
of a writ of quo warranto with respect to the newly elected chief
and Councillors. Justice Teitelbaum in Jock held that the offices of councillor
and chief are “of a public nature” (see also Bone
v Sioux Valley Indian Band No 290, 1996 CarswellNat 150 at para 84 (FCTD) [Bone]).
[51]
It is undisputed that the elected Respondents
have exercised the offices of Chief and Councillors of AFN since the Election.
[52]
As has been previously held, offices of
councillors and chief could be said to have been created by the Indian Act
even if the Band Council is elected based on Band Custom (see Jock at
para 53; Bone at para 84).
[53]
The offices of AFN chief and councillors are
elected positions. These elected representatives of AFN may not be dismissed at
will.
[54]
As stated by Justice Teitelbaum in Jock at
para 49, “[a] plaintiff will be barred from a remedy
if the plaintiff has been guilty of acquiescence in the usurpation of office or
undue delay.” In the present matter, the application was brought without
delay.
[55]
As the Applicant is a member of AFN, lives on the
reserve, and was the previous Chief of AFN and a candidate in the Election, I
find that he has sufficient interest in the matter to have standing.
[56]
Justice Teitelbaum in Jock at para 66
stated that “where the law provides another remedy, quo
warranto may not be used to contest any election.” Having concluded
that neither the Electoral Officers nor the Band Council has the authority
under Band Custom to overturn election results, I find that the Applicant had
exhausted all other available remedies at law.
[57]
The Applicant has the burden of establishing why
the elected Respondents are not legally in office (see Bone at para
105).
[58]
In view of the above, I find that a remedy in the
nature of quo warranto is available and appropriate in these circumstances if
the Applicant demonstrates the absence of legal basis for the Chief and Council
to hold their respective offices.
[59]
In the present matter, the newly elected Chief
and Council have prima facie been duly elected under Band Custom. The
Applicant therefore has the burden of establishing that the elected Respondents
are not legally in office (see Bone at para 105). An election is
presumed valid and “should be vitiated only if it is
shown that there were such irregularities that, on a balance of probabilities,
the result of the election might have been different” (Meeches v
Meeches, 2013 FCA 177 at para 63), which is determined by the “magic number test” set out by the Supreme Court of Canada
in Opitz v Wrzesnewskyj, 2012 SCC 55 at para 71 [Opitz]. The
party seeking to annul an election bears the legal burden of proof (ibid at
para 52).
[60]
The Applicant alleges that a number of
irregularities during the Election impacted the outcome of the Election, which
the Court addresses below.
[61]
The Applicant raises concerns over the conduct
of the Election which he alleges was done in a way that did not sufficiently
incorporate the views of off-reserve voters, from the appointment of the
electoral officers, to nominations, to notice of the Election. The Applicant
argues that these irregularities affected the outcome of the Election.
[62]
The appointment of the Electoral Officers and
the nomination meeting appear to have been done as they had always been done in
the past. The circumstances surrounding the appointment of the Electoral
Officers and the nomination meeting were known to the Applicant prior to the
publication of the Election results. However, the Applicant raised concerns
over these issues only after he was unsuccessful in the Election. More than 50%
of the totality of eligible voters participated in the November 2015 election.
There is no evidence that, at any time before or during the Election, any Band
member objected to the manner in which the Band Custom Election was proceeding.
The conduct of AFN community members in acquiescing the appointment and
nomination procedures is sufficient evidence that these procedures were “generally acceptable to members of the band, upon which
there is a broad consensus” and reflected AFN’s Band Custom (see Bigstone
v Big Eagle, 1992 CarswellNat 721 at para 20 (FCTD); Bone at para
65). I therefore find that the nomination of Electoral Officers and the
nomination meeting were conducted according to Band Custom.
[63]
Off-reserve voters were informed of the
nomination meeting, the advance polls, and the Election via AFN’s Election
Facebook page. Because AFN’s Band Custom is not in written form, it is
impossible for this Court to assess whether the custom was to provide a
newspaper notice or simply an appropriate notice of elections to off-reserve
members. If the latter is the custom, the Electoral Officer’s decision to give
notice via Facebook could be reasonable. However, if the former is the custom,
the Electoral Officer’s decision to not advertise in newspapers could be
unreasonable. In view of both the evolving nature of Band Custom and of the
discretion conferred upon the Electoral Officers, this Court finds that the
custom was to give an appropriate notice to off-reserve members. Whether the
Facebook page notice was reasonable depends on its effectiveness at reaching
off-reserve members in comparison to previous newspaper notices.
[64]
For hearsay evidence to be admissible, the
evidence must comply with the requirements of the “principled
approach” by establishing its necessity and reliability (R v Khan,
[1990] 2 S.C.R. 531 at 546-547 (SCC)). These requirements balance the interests of
justice while maintaining the reliability of the evidence in order to ensure
the integrity of the truth-seeking legal process. B&P’s letter of opinion
on the validity of the Election as well as several affidavits tendered by the
Applicant are replete with hearsay evidence and the Applicant has not satisfied
this Court that this evidence is reliable or necessary.
[65]
The affidavit of Ms. Ella Gagnon, an off-reserve
member of AFN living in Thunder Bay, Ontario, states that she missed the advance
poll in Thunder Bay because she was unaware that it closed before 8:00 p.m.
That evidence is admissible, but not very helpful to the Applicant. Ms. Gagnon
was told of the Election by an on-reserve member of AFN, which explains why she
knew the advance poll date, but not the time at which the advance poll closed.
Ms. Gagnon does not state whether she had access to Facebook or usually found
out about elections by reading the newspaper. Ms. Gagnon’s evidence only shows
that she was not properly notified of the Election, not that she would have
been properly notified had the notice been advertised in newspapers. Ms.
Gagnon’s statement that her son, daughter, and granddaughter were also unable
to participate in the Election for the same reason is hearsay and cannot be
considered by this Court.
[66]
The only evidence indicating that the Facebook
notice may have had an impact on voter turnout is the Election Report. The
Election Report shows that the off-reserve voter turnout was 48%, while
on-reserve voter turnout was of 96%. The issue with this evidence is that there
is no indication that the voter turnout for off-reserve members in the November
2015 election was substantially different from previous elections. Based on the
evidence, no such reports were made in past elections.
[67]
The Applicant submits that there is sufficient
evidence demonstrating substantial problems in the conduct of the Election to
shift the burden of proof onto the Respondents who must then demonstrate that
the Election was performed legally according to Band Custom (Laboucan v
Little Red River Cree Nation No 447, 2008 FC 193 at para 13). However, the
above evidence only shows that the on-reserve voter turnout was significantly
higher than the off-reserve voter turnout.
[68]
Even if I was to consider all the hearsay
evidence in B&P’s opinion, it would not have convinced this Court that the
Election would have been materially affected. B&P’s magic number analysis
is based inter alia on seven (7) letters from AFN members who allegedly
were unable to vote or were unaware of the Election, on the unverified
statements of the Applicant, and on comments posted on the AFN Election
Facebook page. In addition to being hearsay, the evidence is unreliable for
several reasons. For example, the circumstances explaining why certain members
(Liz Jabic, Mason Jabic, Merle Jabic and Bill Johnson) would not have received
ballots in the mail are unexplained. It is impossible for this Court to know
whether these members ever requested a ballot. It is also impossible for this
Court to know if Ricky Medowegan and Annabelle Mendowegan, who were allegedly,
told that they must vote using their mail-in ballot, ever voted. Alex Sagutch
allegedly was unable to vote in the advance polls because, like Ms. Ella
Gagnon, he thought they would be open until later in the day. Like Ms. Gagnon,
he seems to have been aware of the advance poll dates and the evidence shows at
best that he was not properly notified of the Election. The evidence does not
show that Mr. Sagutch would have been properly notified had the notice been
advertised in newspapers. Lawrence Marlatt appears to have been aware of the
date, location and time of the advance polls, but was unable to vote due to the
hours of the Thunder Bay advance poll. This indicates that Mr. Marlatt received
proper notice of the Election, but was unable to show up to the poll.
[69]
Accordingly, I find that the limited admissible
evidence before this Court does not lead me to believe that providing notice to
off-reserve members via a Facebook page materially affected the results of the
Election.
[70]
The Applicant argues that the lack of security
for the ballots and ballot boxes has vitiated the Election process. This
argument is speculative. Ms. Megan’s evidence is that Sargent Wesley of the
Nishnawbe-Aski Police Service [NAPS] refused to attend the advance poll to take
possession of the ballot box because NAPS did not want to be part of any
potential conflict over the Election. However, Ms. Megan states that Sgt.
Wesley indicated that an officer may check the Election on November 7, 2015,
and that the ballot box could be stored at the NAPS Aroland detachment. Ms.
Megan’s evidence does not lead this Court to believe that the ballot boxes were
compromised at any time. Ms. Megan did bring the ballot box home after the
Thunder Bay advance poll, but the ballot box was sealed and padlocked. Ms.
Megan could not have opened the ballot box as Ms. Wabasson had the key. While
Ms. Megan had planned to bring the ballot box to the NAPS office the next day,
following the Aroland advance poll, the office was closed so she brought the
ballot box to her home. It is not clear whether the ballot box was locked, and
if so, who had the keys at that time. However, Ms. Megan brought the ballot box
to the NAPS office after it opened the following day. After the counting of the
ballots on Election Day, the ballots were returned to the ballot box and
padlocked again. Again, it is not clear who had the keys at that time.
[71]
No evidence before this Court clearly
establishes AFN’s customs relating to the handling of ballot boxes. Given the
informal nature of AFN’s Band Custom, Ms. Megan’s statement that she has no
reason to believe that the ballot boxes or the ballots were tampered with, and
the absence of credible evidence suggesting otherwise, this Court finds that
the ballot boxes and ballots were not tampered with. Further, this Court finds
that any procedural defect in the handling of ballots or ballot boxes that may
have occurred has not affected the results of the Election.
(c)
Reasonable apprehension of bias on the part of
the Electoral Officers
[72]
The test for reasonable apprehension of bias was
set out by Justice de Grandpré, dissenting, in Committee for Justice &
Liberty v Canada (National Energy Board) (1976), [1978] 1 S.C.R. 369 at 394
(SCC):
... the
apprehension of bias must be a reasonable one, held by reasonable and right
minded persons, applying themselves to the question and obtaining thereon the
required information... [T]hat test is "what would an informed person,
viewing the matter realistically and practically — and having thought the
matter through — conclude. Would he think that it is more likely than not that
[the decision-maker], whether consciously or unconsciously, would not decide
fairly.
[73]
The Supreme Court of Canada has endorsed this
expression of the test in Baker v Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817 [Baker] at para 46. In Baker,
the Court held that standards for reasonable apprehension of bias vary
according to the context and the type of function performed by the administrative
decision-maker involved (at para 47). In Sparvier at paras 75-76,
Justice Rothstein explained why a rigorous test for reasonable
apprehension of bias within Indigenous and First Nation communities is
sometimes inappropriate:
If a rigorous test
for reasonable apprehension of bias were applied, the membership of
decision-making bodies such as the Appeal Tribunal, in bands of small
populations, would constantly be challenged on grounds of bias stemming from a
connection that a member of the decision-making body had with one or another of
the potential candidates. Such a rigorous application of principles relating to
the apprehension of bias could potentially lead to situations where the election
process would be frustrated under the weight of these assertions. Such
procedural frustration could, as stated by counsel for the respondents, be a
danger to the process of autonomous elections of band governments.
[…]
However, the Court must work within the
framework of the existing law. I have added these comments because of the
difficulties I see with the application of a more desirable strict bias test in
the case of an adjudicative board such the Appeal Tribunal, to the
particularities of inevitable social and business relationships in a small
community such as the Cowessess Band.
[74]
AFN is a small community. It is not uncommon for
most of AFN members to have a family member running in an election. The
evidence does not suggest bias beyond the relationship itself. Further, there is
no evidence that AFN band members raised any objection to the appointment of
the Electoral Officers until after the Election results were published. It is
also noteworthy that Ms. Megan’s common law partner and the Deputy Officer’s
father were not successful in the Election. This Court therefore finds that
there was no reasonable apprehension of bias.
V.
Conclusion
[75]
This Court finds that the Election was held in
conformity with AFN’s Band Custom. The Applicant has failed to demonstrate
irregularities that vitiated the Election process.
[76]
Accordingly, the application is dismissed.
[77]
In the process of completing this decision, the
Court notes that the band has what appears to be a very acceptable election
code now in its eighth revision. Had it been adopted, there is every likelihood
that this application would have been avoided and along with it the harm to the
AFN’s shared sense of community.
[78]
The Court is reminded of the wise words of
Justice Trudel that, having opted for a democratic election process, a clear “election code construed and applied in a fair and
transparent manner would go a long way in achieving this noble goal and in
avoiding, one would hope, situations like the present, which are
counter-productive and extremely disturbing for all concerned” (Salt
River First Nation at para 48).
[79]
The Court awards no costs in this matter.
Although the Respondents were successful, the Court finds that their failure to
respond to the serious complaints of the Applicant in some manner contributed
to the initiation of legal proceedings. The last thing this Court wishes to do
is to set a precedent in First Nation jurisprudence that serious complaints
about the conduct of an election can be completely ignored and sent on to the
Federal Court for resolution just because there is no custom.
[80]
Council, in particular as representatives of the
community, has a duty to attempt to mitigate controversy that divides their
community. As the Court indicated to the numerous community members that
attended the proceedings, it is not in the AFN’s best interests that the Court
becomes a surrogate of Council for resolution of these disputes. Legal
proceedings create an enduring rancour among the participants and do nothing to
promote a shared sense of community, the attainment of which should be an
overriding objective of Council. As for the Electoral Officers, I do not see
their interests as being distinct from those of the Council.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application is
dismissed without costs.
"Peter Annis"
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