Docket: T-987-15
Citation:
2016 FC 427
Ottawa, Ontario, April 19, 2016
PRESENT: The
Honourable Madam Justice McDonald
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BETWEEN:
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GARNET MEECHES
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Applicant
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and
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GEORGE
ASSINIBOINE, MARVIN DANIELS, BARB ESAU, ROBERT FRANCIS, GEORGE MEECHES, LIZ
MERRICK, HAROLD MYERION, ANNETTE PETERS, DENNIS PETERS, MARSHALL PRINCE,
THERESA SANDERSON, CHRIS YELLOWQUILL AND LONG PLAIN INDIAN BAND NO. 287ALSO
KNOWN AS LONG PLAIN FIRST NATION
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Respondents
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application pursuant to section 18.1
of the Federal Courts Act, RSC 1985, c F‑7, for judicial
review of a decision of the Long Plain First Nation Election Appeal Committee
(the Appeal Committee), dated May 12, 2015 (the Decision). The Decision under
review concerns the April 9, 2015 election (the Election) at the Long Plain
First Nation and the eligibility of a candidate who ran for a Council position.
II.
Background
[2]
The Applicant, Garnet Meeches, is a member of
the Long Plain First Nation (Long Plain) and ran unsuccessfully in the Election
for a Councillor position. Mr. Meeches lost by one vote.
[3]
The Applicant argues that the Respondent, Chris
Yellowquill, was not an eligible candidate and should not have been permitted
to run for a Council seat.
[4]
The Respondent, Long Plain, is a band within the
meaning of the Indian Act, RSC 1985, c I-5.
[5]
The Respondents Liz Merrick, Barb Esau, Marvin
Daniels, and George Meeches were successfully elected as Councillors in the
Election. They, together with Long Plain, oppose the application for judicial
review.
[6]
The Respondents Dennis Peters, Robert Francis,
George Assiniboine, Theresa Sanderson, Marshall Prince, Annette Peters, Harold
Myerion, and Chris Yellowquill, were also unsuccessful candidates for the four
Councillor positions. They do not oppose the application.
[7]
Elections at Long Plain are governed by the Long
Plain First Nation Election Act (the Election Act), which is a
custom code enacted by Long Plain in 2001 and amended in 2008. The Election
Act provides that the government of Long Plain must consist of one Chief
and four Councillors who hold office for a term of three years.
[8]
On the issue of candidate eligibility, Article
3.1 of the Election Act requires the following:
a)
The candidate has not been and is not
disqualified by virtue of the Election Act;
b)
The candidate has not been convicted of an
indicatable offence for a period of eight months from the date of the
conviction;
c)
The candidate has successfully completed a drug
test;
d)
The candidate has a minimum of a grade 12
education or at least a minimum of five years’ experience garnered from
community involvement, including a letter of reference from another tribal
member; and
e)
The candidate has paid a non-refundable fee of
$250.00.
[9]
Articles 9 through 12 of the Election Act outline
the nomination process for candidates. Article 9.5 requires potential
candidates to complete a drug test and provide a completed criminal record
check and a child abuse registry check (Article 9.5). Article 9.6 states:
Criminal Record Checks that have not expired, Child Abuse Registry
Checks, and drug testing results must be submitted to the Electoral Officer 14
days prior to nominations. NO EXCEPTIONS.
[10]
On February 15, 2015, the Electoral Officer
posted a Notice of Nomination Meeting inviting members of Long Plain to be
nominated as candidates in the Election. Mr. Yellowquill submitted his
nomination paper 14 days prior to the nomination meeting on March 5, 2015, but
he did not submit the required checks and test results or pay the $250.00 fee.
[11]
On March 13, 2015, the Electoral Officer
rejected Mr. Yellowquill’s nomination application on the basis that the
$250.00 fee had not been paid.
[12]
At the nomination meeting on March 19, 2015, Mr. Yellowquill
paid the fee, and provided a “Release of Results of
Criminal Record Check” (which indicated a possible match to a registered
criminal record), a confirmation of a drug test with negative results, and a
letter confirming he had applied for a child abuse registry check.
[13]
The Electoral Officer did not permit Mr. Yellowquill
to participate in the nomination meeting. On March 20, 2015, Mr. Yellowquill
appealed this refusal to the Appeal Committee.
[14]
On March 22, 2015, the Electoral Officer
provisionally confirmed Mr. Yellowquill as a candidate pending the receipt
of his completed criminal record check and child abuse registry check.
[15]
On March 23, 2015, the Appeal Committee allowed Mr. Yellowquill’s
nomination appeal, finding that he met the nomination requirements.
[16]
The Long Plain Election was held on April 9,
2015. Both the Applicant and Mr. Yellowquill were unsuccessful in their
bids for a Council position. The Applicant’s fifth place finish was confirmed
by a recount.
[17]
Article 17 of the Election Act provides
that any candidate or elector has the right to appeal the results of an
election within seven days of the election on the grounds of election practices
that contravene the Election Act.
III.
Decision under Review
[18]
Following the election, the Applicant appealed
the results of the Election to the Appeal Committee and raised a number of
grounds. The grounds relevant to this judicial review are the Applicant’s
arguments that candidates were allowed to submit receipts for the record checks
rather than the results themselves, and Mr. Yellowquill was permitted to
run as a candidate despite his ineligibility. The Applicant submits the Appeal
Committee erred in determining that Mr. Yellowquill was an eligible
candidate to run in the Election, as he never provided the necessary checks as
required by Articles 9.5 and 9.6 of the Election Act. An appeal hearing
was requested.
[19]
On May 12, 2015 the Appeal Committee determined
that an appeal hearing was not warranted. On the issue of candidate
eligibility, the Appeal Committee concluded as follows:
During our investigation we learned that the
Electoral Officer was not able to receive Child Abuse Registry Checks by the Act’s
prescribed deadline due to the fact that the prescribed timelines for this
process are too narrow, therefore, had made a decision that permitted the
participation of a Nominee in the 2015 election who did not have their actual
Child Abuse Registry Check provided. The Committee has found notes that all
elected candidates reported completed check results prior to the election and
that no candidate had been removed or disqualified from the election process.
The Electoral Officer received all required
documents prior to Mr. Yellowquill’s name appearing on the ballot.
The Act prescribes that the Nomination meeting notice is to
be posted 32 days before the nomination meeting and that the Criminal Record
Check, Child Abuse Registry Check and drug testing results must be submitted 14
days before the nomination meeting with no exceptions. However, the Electoral
Officer did accept a receipt as proof that a Child Abuse Check had been
requested with the provision that the results would be required before the
election ballots were printed. There is no provision in the Act for this
action however, it is clear the prescribed timeline creates unfair disadvantage
for Tribal members to participate in elections who are not familiar with the
election process. The Act is silent and presumes that Nominees are informally
participating in the election process by collecting the required Checks and
drug test before formally accepting their nomination. A Tribal member who does
not know that he or she has been nominated until the day of the nomination
meeting would not be able to comply with the Act’s requirements. The Act
does not provide a fair process for Tribal members to participate in Tribal
elections. In accepting a receipt, the Electoral Officer created a process for
fair participation subject to a Nominee meeting the criteria and if the
criteria had not been met, the Nominee would have been removed or disqualified
as an election candidate. This decision of the Electoral Officer did not affect
the outcome of the 2015 election.
[20]
The Appeal Committee did recommend an amendment
to the Election Act to permit the processing of child abuse registry
checks within a timeframe that can be adhered to.
[21]
On the question of whether Mr. Yellowquill
was ineligible to be a candidate for the Election, the Appeal Committee found
that it “heard the appeal” and affirmed “the decision”. It can likely be assumed that the
Appeal Committee was referencing its previous March 23, 2015 decision finding Mr. Yellowquill
to have met the nomination requirements.
IV.
Issues
[22]
The Applicant and the Respondents have raised a
number of issues which I have summarized as follows:
a)
Did the Appeal Committee have jurisdiction to
rule on candidate eligibility?
b)
Was the decision of the Appeal Committee
reasonable?
V.
Standard of Review
[23]
The Applicant submits that correctness is the
applicable standard of review, whereas the Respondents submit that the standard
of reasonableness is appropriate.
[24]
The issues raised by the Applicant are questions
of fact, questions of mixed fact and law, and questions concerning the
interpretation of the Election Act. The jurisprudence establishes that
the reasonableness standard applies to an election appeal committee’s
interpretation of its election regulations: Orr v Fort McKay First Nation,
2012 FCA 269 at para 11; Jacko v Cold Lake First Nation, 2014 FC 1108 at
para 13 [Jacko]; Testawich v Duncan's First Nation Chief and Council,
2014 FC 1052 at para 16.
[25]
Therefore the issues for determination in this
case will be considered in the context of reasonableness and the “the existence of justification, transparency and
intelligibility within the decision-making process and whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law”: Dunsmuir v New Brunswick, 2008 SCC
9 at para 47; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12
at para 59. This Court should only intervene if the Appeal Committee
decision is unreasonable in the sense that it falls outside the range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.
VI.
Analysis
A.
Did the Appeal Committee have jurisdiction to
rule on candidate eligibility?
[26]
The Respondents argue this application for
judicial review was filed late, as what is really being challenged is the
decision to allow Mr. Yellowquill to run as a candidate. The decision
allowing Mr. Yellowquill to run was made on March 23, 2015, and therefore
the present application, which was filed on June 12, 2015, was filed beyond the
30-day time limit prescribed by subsection 18.2(2) of the Federal Courts Act.
The Respondents also contend that candidate ineligibility is not a ground for
an election appeal under Article 17.2 of the Election Act, and the
Appeal Committee did not have the jurisdiction to rule on this ground.
[27]
The Applicant on the other hand argues that he
is challenging the Appeal Committee’s decision to uphold the election results,
and therefore his application was filed within the appropriate time lines.
[28]
I agree with the Applicant. Candidate
eligibility and the approval of candidates by the Electoral Officer necessarily
affect the results of an election and fall within the concept of “election practices” as contemplated by the Election
Act. This was also the conclusion of the Honourable Justice Russell in the Jacko
case, where he concluded at paragraph 73:
The fact that someone can be kept off the ballot for ineligibility
by the Elections Officer at the nomination stage does not mean that an appeal
based upon ineligibility cannot be made to the Appeal Committee following the
election.
[29]
The availability of a nomination appeal under
Article 12 of the Election Act does not exclude candidate ineligibility
as a ground of appeal under Article 17. Subsequent facts about a candidate’s ineligibility
may arise only after the nomination stage of the election process.
Additionally, a right of appeal under Article 17 is extended to any candidate
or elector, whereas only a candidate found ineligible by the Electoral Officer
has standing to bring a nomination appeal under Article 12.
[30]
I therefore find the Appeal Committee had
jurisdiction to consider candidate eligibility and I find the application was
filed within the necessary time frame.
B.
Was the decision of the Appeal Committee
reasonable?
[31]
The Applicant submits the Electoral Officer and
the Appeal Committee contravened the Election Act when they allowed Mr. Yellowquill
to run in the election. As Mr. Yellowquill’s ineligibility could have
materially affected the results of the election, the Applicant submits the
Appeal Committee erred in confirming the election results.
[32]
Specifically, the Applicant argues the Appeal
Committee made contradictory findings when it concluded the “timelines were too narrow”, despite finding that all
elected candidates reported completed check results prior to the Election. It
was only Mr. Yellowquill who could not meet the timelines. Furthermore,
the Applicant submits that the Appeal Committee was clearly wrong when it found
the Electoral Officer had “received all required
documents” prior to Mr. Yellowquill’s name appearing on the
ballot.
[33]
With respect to interpreting the Election Act,
the Applicant states that its wording is clear and mandatory in nature. He also
asserts that it does not contain any language which allows for a “provisional” candidate. The Applicant argues section
9.5 and 9.6 of the Election Act are unambiguous, and no legislative
interpretative aids are necessary to give effect to their plain and common
sense meanings. The provisions require a prospective candidate to submit
completed checks prior to the candidate’s nomination. They do not permit the “provisional” approval of a candidate if those checks
are not provided.
[34]
A contrary interpretation of the Election Act
is offered in the affidavit of Ms. Esau. The Applicant argues that Ms. Esau’s
affidavit should not be considered as she in an interested party with a stake
in the outcome. I need not consider this affidavit to determine the matter.
[35]
At the hearing, I also declined to hear oral
submissions from Mr. Yellowquill as he had not filed any evidence in
support or in opposition to the Application.
[36]
The Respondent on the other hand argues that the
proper interpretative approach, if there is any ambiguity, is outlined in Opitz
v Wrzesnewskyj, 2012 SCC 55 at paragraph 37:
[37] It is well recognized in the
jurisprudence that where electoral legislation is found to be ambiguous, it
should be interpreted in a way that is enfranchising: Haig v. Canada,
[1993] 2 S.C.R. 995. Although he was in dissent in that case, Cory J. made the
following observations at pp. 1049-50, with which L’Heureux-Dubé J., for the
majority, at p. 1028, expressed total agreement:
The courts have always recognized the
fundamental importance of the vote and the necessity to give a broad
interpretation to the statutes which provide for it. This traditional approach
is not only sound it is essential for the preservation of democratic rights.
The principle was well expressed in Cawley v. Branchflower (1884), 1
B.C.R. (Pt. II) 35 (S.C.). There Crease J. wrote at p. 37:
The law is very jealous of the
franchise, and will not take it away from a voter if the Act has been
reasonably complied with. . . . It looks to realities, not technicalities or
mere formalities, unless where forms are by law, especially criminal law,
essential, or affect the subject-matter under dispute.
To the same effect in Re Lincoln
Election (1876), 2 O.A.R. 316, Blake V.C. stated (at p. 323):
The Court is anxious to allow the
person who claims it the right to exercise the franchise, in every case in
which there has been a reasonable compliance with the statute which gives him
the right he seeks to avail himself of. No merely formal or immaterial matter
should be allowed to interfere with the voter exercising the franchise . . . .
It can be seen that enfranchising statutes have been interpreted
with the aim and object of providing citizens with the opportunity of
exercising this basic democratic right. Conversely restrictions on that right
should be narrowly interpreted and strictly limited. [Emphasis deleted.]
[37]
While the Applicant argues that recourse to this
approach is not necessary to give effect to the clear language of the Election
Act, in the circumstances I agree with the Respondent that any ambiguity
should be interpreted in such a way as to enfranchise and allow participation
in the election process.
[38]
With this as the operating assumption, the issue
is whether the Appeal Committee reasonably interpreted the Election Act.
[39]
The Appeal Committee outlined its reasoning for
proceeding in the manner it did in the interests of fairness. It identified the
issue as whether the Electoral Officer was entitled to permit the participation
of Mr. Yellowquill in the absence of a child abuse registry check. It
noted that although there is no provision in the Election Act for the
Electoral Officer to have done so, the prescribed timelines create an unfair
disadvantage for Long Plain members who are unfamiliar with the election
process. By accepting a receipt confirming that Mr. Yellowquill had
applied for a child abuse registry check, the Appeal Committee found the
Electoral Officer created a process for fair participation in the Election.
[40]
I cannot say that the Appeal Committee acted
unreasonably by upholding the provisional candidacy of Mr. Yellowquill.
While the Appeal Committee itself found irregularities and deviations from the Election
Act, this alone does not make its decision unreasonable.
[41]
Article 1.9 confers authority on the Electoral
Officer to “govern and conduct” the procedures
of elections pursuant to the Election Act. In finding the Electoral
Officer was entitled to relax the Act’s strict requirements to enable Mr. Yellowquill’s
participation in the Election, the Appeal Committee adopted a broad and
flexible interpretation of the Election Act consistent with
enfranchisement. The Appeal Committee’s interpretation of the Election Act
was not unreasonable.
VII.
Conclusion
[42]
For the reasons outlined above, I dismiss the
application for judicial review. The decision of the Appeal Committee was
within the range of reasonable outcomes.
[43]
Both parties seek costs. Although I have
dismissed this judicial review, I do not find the Applicant was unreasonable in
bringing the application and his arguments are not without merit. The Appeal
Committee itself noted there were deviations from the Election Act, and
the appeal prompted the Appeal Committee to recommend amendments. For these
reasons, I decline to award costs against the Applicant.
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