Date:
20120725
Docket:
A-94-12
Citation: 2012 FCA 212
CORAM: DAWSON J.A.
GAUTHIER J.A.
STRATAS
J.A.
BETWEEN:
JIM
BOUCHER
Appellant
and
CECILIA
FITZPATRICK
Respondent
REASONS
FOR JUDGMENT
GAUTHIER
J.A.
[1]
Jim
Boucher appeals from the decision of the Federal Court (reported as 2012 FC
294) allowing the judicial review application of Cecilia Fitzpatrick and
setting aside the decision of the Appeal Arbitrator and the April 5, 2011
election of the Chief of the Fort McKay First Nation.
[2]
For
the reasons that follow, I believe that the Appeal Arbitrator correctly
interpreted the Election Code. Therefore, the application should have been
dismissed and this appeal should be allowed.
Factual
Background
[3]
Prior
to the April 5, 2011 election and in accordance with section 5.1 of the
Election Code of the Fort McKay First Nation (the Band), the Band council
appointed a member of the Alberta Bar practising in the area of municipal law
as the returning officer (“Returning Officer”).
[4]
The
parties to the appeal were both candidates nominated for the office of Chief.
In addition, twelve candidates were nominated for the four offices of
Councillor. Separate ballots were used by the electors to vote for the office
of Chief and for the office of Councillor.
[5]
The
Returning Officer interpreted the Election Code as giving her the power to
allow a friend or relative to assist an incapacitated voter. She established a
voting procedure permitting incapacitated electors to designate an individual
to assist them in marking their ballots.
[6]
According
to the evidence of the Returning Officer before the Appeal Arbitrator, she
prepared special forms for this purpose. The first one was to be signed by her
after asking an incapacitated elector whether he or she wanted a specific
individual to help him or her. Upon receiving an affirmative answer, the
Returning Officer would initial a form (Form 11) that is very similar to the
one used under the Local Authorities Election Act, R.S.A.
2000, c. L-20,
for municipal elections in Alberta. She would then require the specified individual
to read and sign a statement which provided that:
1. he or she was a friend or
relative of the incapacitated elector and;
2. he or she would:
(a)
read the ballot to the incapacitated elector;
(b) mark
the ballot in accordance with the incapacitated elector’s instructions;
and,
(c)
keep secret all information that might come to him or her by virtue of
providing the assistance.
[7]
In
the present case, the above statement was read to the persons who assisted the
incapacitated electors at the centre of the appeal.
[8]
After
a re-counting of the votes, Mr. Boucher was elected Chief with a total of 163
votes, while Ms. Fitzpatrick received 162 votes.
[9]
Ms.
Fitzpatrick filed a Notice of Appeal pursuant to section 81.1 of the Election
Code of the Band, seeking an Order setting aside the election for the Chief and
the Councillors. Ms. Fitzpatrick alleged, among other things, that an elector
had illegally voted twice (the second time by marking a ballot on behalf of the
incapacitated elector) and that this was a breach of the Election Code that
could directly affect the outcome of the election of the Chief.
[10]
The
appeal heard by the Appeal Arbitrator focussed on one incapacitated person, Ms.
Maggie Bouchier, an elder of the Band who is blind and was assisted at the voting
station by her first cousin, Ms. Powder. However, it is not disputed that a
total of 6 incapacitated electors were effectively assisted by a person other
than the Returning Officer during the April 5, 2011 election. It is not clear
if any of the other incapacitated electors were blind.
[11]
Given
the number of votes separating the four successful candidates for the office of
Councillor from the next unsuccessful candidate, it is not disputed that, as
found by the Appeal Arbitrator, the issue raised by Ms. Fitzpatrick could have
no impact on the results of the election of the four Councillors. Thus, the
appeal in respect of the election of the Councillors could not meet the
prerequisites set out in section 81.1.1 or 81.1.2 of the Election Code, which provide
that the breach or irregularity complained of must have “affected the outcome
of the elections”
[12]
After
a hearing, the Appeal Arbitrator dismissed the allegation that there was a
breach of the Election Code that could directly affect the outcome of the election
of the Chief.
[13]
Before
discussing the basis of the decision of the Appeal Arbitrator and of the
Federal Court, it is useful to reproduce the provisions of the Election Code to
which the parties referred to.
The Election Code
7.
Duties of returning officer
7.1.
In addition to performing the duties specified in this Code, a returning officer
shall: […]
7.1.2
retain and appoint polling clerks and other persons as required;
[…]
7.1.11
do all other things necessary for the conduct of an election.
38.
Secrecy of vote
38.1.
While an elector is in a voting compartment for the purpose of marking the
elector’s ballot, no other person, except a person who has been permitted to
assist an incapacitated elector, may enter the voting compartment or be in a
position from which the person can see how the elector marks the elector’s
ballot.
39.
Maintenance of secrecy
39.1.
No person shall be required to disclose in any proceedings, including
proceedings for a controverted election, whether the person has voted for a
particular candidate.
40.
Number of votes
40.1.
An elector in an election may vote once.
[…]
45.
Disposal of marked ballot
[…]
45.3.
After the elector’s ballots are deposited in the ballot box, the elector
shall forthwith leave the voting station.
48.
Persons at voting station
48.1.
Except for the returning officer, election officials, agents of candidates
authorized to attend at the voting station and the electors who are for the
time being actually engaged in voting, no other person is entitled to be
present, nor shall any other person be permitted to be present, in the voting
station during the time appointed for voting. For greater certainty, the
persons prohibited from the voting station include candidates, unless attending
for the purposes of casting their own vote, and members of the media.
51.
Interpreter
51.1.
If an elector does not understand the English language, the returning officer
may allow or appoint an interpreter to translate any statements, questions, or
documents as necessary to allow the elector to vote.
51.2.
The interpreter may not be an elector or member.
54.
Advance vote stations
54.3.
The returning officer or his agent may, on the advance voting day, attend with
electors who are shut in, in hospital, or otherwise incapable of physically
attending at a voting station for the purposes of receiving that elector’s
vote. Any votes received from such electors shall be held in a separate ballot
box which is then sealed so that no ballots can be deposited in it without breaking
the seal, and the ballot box must remain like that and be stored in a secure
place until it is opened for the counting of ballots at the close of the voting
stations on election day.
57.
Incapacitated elector at voting station
57.1.
The returning officer, at the request of an elector who is unable to read or is
incapacitated by blindness or another physical condition from marking the
elector’s ballot in the usual manner may, at the elector’s request, mark the
vote of that elector on the elector’s ballot in the manner directed by that
elector, and shall immediately deposit the ballot in the ballot box.
57.2.
No candidate or agent shall be present in the voting compartment at the marking
of a ballot under this section.
81.
Permitted grounds of appeal
81.1.
A candidate or elector who voted in the election, may appeal an election on the
basis that:
81.1.1.
the returning officer made an error in the interpretation or application of the
Code which affected the outcome of the election;
81.1.2.
a person voted in the election who was ineligible to vote and provided false
information or failed to disclose information relevant to their right to vote
and their participation affected the outcome of the election; […]
The Decision of the Appeal
Arbitrator
[14]
In
his detailed decision, after summarising the evidence, the Appeal Arbitrator
reviewed the relevant provisions of the Election Code and concluded that the
Returning Officer did not err in her interpretation of section 57 of the
Election Code. He agreed that while this provision gives her the power to
assist the incapacitated electors when so requested in marking their ballot,
she was not the only person that could do so. He found that she was entitled to
allow Ms. Powder to assist Ms. Bouchier in the voting compartment after signing
the form she had created for that purpose.
[15]
It
is to be noted that there was no evidence that Ms. Powder did not perform her
duty in accordance with the undertaking she signed. Although she could not
actually see what Ms. Powder did, Ms. Bouchier confirmed that she had no reason
to believe that the marking was not done according to her instructions. There
was no allegation that Ms. Powder had tried to influence Ms. Bouchier in any
way.
The Decision of
the Federal Court
[16]
The
application judge, applying the standard of correctness, held that the
Arbitrator erred in his interpretation of the Election Code.
[17]
He
reasoned that under normal circumstances, electors are required to mark their
own ballot, free from any outside influence in the voting compartment (Reasons,
paragraph 63). Any exception to such principle would have to be explicitly
stated in the Election Code. He noted in that respect that there were no
provisions in the Election Code similar to section 57.1 in respect of friends or
relatives of an incapacitated elector.
[18]
The
application judge added that his conclusion was supported by section 48.1 of
the Election Code, which in his view clearly prohibits an elector’s friends or
relatives from being present at the voting station, let alone in the voting
compartment. In his view, to construe section 57.1 of the Election Code in the
manner suggested by Mr. Boucher and adopted by the Appeal Arbitrator would
contradict section 48.1 (Reasons, paragraph 54).
[19]
Hence,
the application judge, after noting that the number of votes in question was
sufficient to void the outcome of the Chief’s election given that there was no
way of knowing whom the affected ballots were cast for, concluded that this
election “must be set aside” (Reasons, paragraphs 65-66).
Issues on Appeal
[20]
Mr.
Boucher raises two issues:
1.
Did
the application judge err in his interpretation of the Election Code?
2.
Did
the application judge err by granting the relief sought by Ms. Fitzpatrick,
apparently without exercising his judicial discretion after weighing all the
relevant circumstances?
Analysis
[21]
The
parties agree that the first issue before the application judge and before us
is a pure question of law reviewable under the correctness standard. While, obviously,
parties’ views as to the applicable standard of review do not bind the Court,
in this appeal, I do not need to say more on the applicable standard, given
that in my view, the Appeal Arbitrator’s interpretation was both correct and
reasonable. Thus this issue becomes irrelevant.
[22]
It
is trite law that the granting of relief by way of judicial review is in
essence discretionary. This Court will not interfere with such discretionary decision
unless it is satisfied that the application judge has seriously misapprehended
the facts or given insufficient weight to relevant factors or proceeded on a
wrong principle of law (Elders Grain Co. v. Ralph Misener (The), 2005
FCA 139, [2005] 3 F.C.R. 367 at paragraph 13, Mayne Pharma (Canada) Inc. v.
Aventis Pharma Inc., 2005 FCA 50, 38 C.P.R. (4th) 1 at paragraph
9).
[23]
The
Respondent argues that the application judge applied the correct approach and
came to the right conclusion, given the very clear terms of section 48.1
providing that no one other than those persons expressly listed in that section
may be present at the voting station. She also submits that on proper reading
of the Election Code as a whole, particularly section 51.2 dealing with
interpreters, it is clear that the intent was to avoid having an elector or any
member of the Band present at the voting station in any capacity whatsoever,
except while engaged in the actual process of voting. As I understand this
submission, the Respondent argues that even if someone other than the Returning
Officer was entitled to assist an incapacitated elector in the voting
compartment, such person could not be an elector or band member as these words
are defined in the Code.
[24]
I
cannot agree.
[25]
The
Election Code must be construed using the general principles of statutory
interpretation and the modern approach set out in E.A. Driedger, Construction of
Statutes, 2nd ed. (Toronto:
Butterworths, 1983) at page 87 and adopted by the Supreme Court of Canada in
numerous decisions since Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193.
[26]
It
is for this reason that, in my view, the application judge erred by unduly
focussing on section 48.1, giving it too much weight in the overall context.
[27]
It
is not disputed that election legislation which includes the Election Code
under review, should be construed in a manner consistent with its object of
providing all eligible voters with an opportunity to exercise their basic
democratic right – the right to vote.
[28]
The
interpretation suggested by the Respondent would mean that incapacitated
electors who are uncomfortable dealing with a person such as a returning
officer who is unfamiliar to them (as may be the case with some electors as mentioned
by the Returning Officer in her testimony before the Appeal Arbitrator) would end
up losing their right to vote.
[29]
I
also note that the concept that incapacitated electors may be assisted by a
friend or relative of their choice in the voting compartment to mark their
ballot appears to be well accepted. It is incorporated in the Federal and Alberta legislation (the two most pertinent here). However, that is not to say that, to
exist, such right must be drafted in the same manner as in the Canada
Elections Act, S.C. 2000, c. 9 or in the Alberta legislation.
[30]
The
Respondent asserts the right of every eligible elector to vote in secrecy and
to do so without influence from others.
[31]
However,
section 38.1 of the Election Code entitled “Secrecy of vote” expressly
recognizes that incapacitated electors may be in the voting compartment with a
person who has been permitted to assist them.
[32]
The
Appeal Arbitrator found the reference to “a person” in section 38.1 rather than
to the well defined expression “returning officer” supported his view that a
returning officer is not the only person who can assist an incapacitated person
in the voting compartment. I agree.
[33]
Like
the Appeal Arbitrator, I also find that the presence of section 57.2, which
expressly prohibits a candidate or his agent from being in the voting
compartment with an incapacitated person who requires assistance in marking his
or her ballot, as well as the use of the permissive ‘may’ and ‘at the request
of’ in section 57.1, support the conclusion that the Returning Officer is not
the only person that can be allowed to assist an incapacitated elector
including Ms. Bouchier.
[34]
It
is evident that if a person is permitted to accompany an incapacitated elector
in the voting compartment, such person must be at the voting station while the
incapacitated elector is “engaged in the process of voting” within the meaning
of section 48.1 which deals with “Persons at voting stations”.
[35]
Also,
once again despite the language that would otherwise appear to exclude his or
her presence there in section 48.1, an interpreter allowed to assist electors
who do not understand English pursuant to section 51.1 must also be present at
the voting station.
[36]
In
both cases, the general principle set out in section 48.1 that only those
persons actively engaged in the process of voting should be present at the
voting station is in my view respected.
[37]
Can
the Court read into section 57.2 a further exception in respect of members or
electors in general, based on the general intent alluded to by the Respondent
particularly on the wording of section 51.2? I do not think so. Both exclusions
(51.2 and 57.2) are clear and the fact that the drafters felt the need to
expressly exclude members and electors only in section 51.2 indicates, in my
view that such exclusion is not implicit in section 57.2 and was not intended
to apply to the persons referred to in section 38.1.
[38]
Both
parties agreed that the Election Code could have been drafted more clearly.
This is true and the Band may decide to amend it in due course now that it has
the benefit of at least one election. But, this does not justify interfering
with the decision of the Appeal Arbitrator.
[39]
Finally,
it is also worth mentioning that it may be good practice for a returning
officer to explain to incapacitated electors the choices that are available to
them.
[40]
With
respect to the second issue, I note that recently this Court in Dennis v.
Adams Lake Indian Band, 2011 FCA 37, 419 N.R. 385 at paragraphs 28-31, discussed the
impact of the then-recent decision of the Supreme Court of Canada in MiningWatch
Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6.
Stratas J.A. writing for the Court said that in exercising its discretion to
quash or not a decision of an administrative body, even when there are grounds
for doing so, a reviewing court must consider the broadest range of practical
factors and “legal error or non-compliance should not be given
undue weight: the practicalities may outweigh the legalities.”
[41]
Although
I believe that, in this matter, there may have been an arguable case for this
Court to substitute its discretion for that of the application judge and to exercise
it differently, in light of my conclusion in respect of the first issue, it is
not necessary to say anything further in that respect.
[42]
I
would allow the appeal with costs both in this Court and the Federal Court and
set aside the decision of the Federal Court. Making the judgment that the
Federal Court should have given, I would dismiss the application for judicial
review.
“Johanne Gauthier”
“I
agree
Eleanor R. Dawson J.A.”
“I
agree
David Stratas J.A.”
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