Date: 20060704
Docket: A-538-05
Citation: 2006 FCA 249
CORAM: LINDENJ.A.
NADON J.A.
EVANS J.A.
BETWEEN:
DARREL REGAN BRUNO and DARWINSOOSAY
Appellants
and
THE ELECTION APPEAL BOARD OF THE SAMSON CREE NATION
and
CHIEF VICTOR BUFFALO, on his own behalf and on behalf of the
SAMSON INDIAN BAND also known as SAMSON CREE NATION and the
SAMSON INDIAN BAND also known as SAMSON CREE NATION
Respondents
REASONS FOR JUDGMENT
[1] On May 19, 2005, elections were held by the Samson Cree Nation (the Band), a First Nation with approximately 3,363 eligible voters, to select a Band Council. Of the 86 members of the Band who stood for election, 12 were elected to the Council.
[2] Following the elections, the appellants, members of the Band and defeated candidates, challenged the electoral results. Firstly, the appellant Soosay challenged the election of Larron Northwest on the ground that he was not qualified to run for office by reason of a non-pardoned criminal record. Secondly, the appellant Bruno challenged the outcome of the elections on the ground that, contrary to the Samson Cree Nation Election Law (the Election Law), the Electoral Supervisor allowed voting to continue beyond 6:00pm.
[3] As required by section 82 of the Election Law, the appellants served their complaints on the Chairman of the Samson Election Appeal Board (the Board) within 7 days of the elections.
[4] On June 8, 2005, the Board disposed of the appellants' complaints as follows. With respect to the Bruno complaint, the Board held that the Electoral Supervisor had exceeded her jurisdiction in permitting voting to go beyond 6:00pm. In so concluding, the Board relied on its understanding of Band practice which, in its view, was in accord with section 58 of the Election Law. As a result, the Board ordered that a new election was to be held within two weeks of its determination and that the Electoral Supervisor was to close the poles and cease all voting at 6:00pm, in accordance with section 58 of the Election Law.
[5] With respect to the Soosay complaint, the Board held that Mr. Northwest's nomination documents did not meet the requirements of section 4 of the Election Law and that, as a result, he was disqualified.
[6] On June 10, 2005, Chief Victor Buffalo, on his behalf and on behalf of the Band, commenced judicial review proceedings in the Federal Court seeking an order setting aside the Board's decision in regard to both complaints.
[7] On June 21, 2005, Rouleau J. stayed the Board's decision, pending the Federal Court's determination of the respondents' judicial review application and, in decision 2005 FC 1429, October 21, 2005, he allowed the Band's application in its entirety. Hence, the present appeal by the appellants who seek to overturn the Federal Court's decision.
RELEVANT LEGISLATION
[8] The Indian Act, R.S.C. 1985, c. I-5 (the Act) provides that the election of Band Councils may be governed either by the provisions of the Act and its associated regulations, or according to "band custom", pursuant to sections 2 and 74. Section 2 defines "council of the band" as follows:
"council of the band" means
(a) in the case of a band to which section 74 applies, the council established pursuant to that section,
(b) in the case of a band to which section 74 does not apply, the council chosen according to the custom of the band, or, where there is no council, the chief of the band chosen according to the custom of the band;
Section 74 reads as follows:
74. (1) Whenever he deems it advisable for the good government of a band, the Minister may declare by order that after a day to be named therein the council of the band, consisting of a chief and councillors, shall be selected by elections to be held in accordance with this Act.
[9] In 1993, the Samson Cree Nation chose to elect its Chief and Council pursuant to Band custom (ie, elected to no longer be governed by s.74 of the Act). The custom of the Samson Cree Nation was codified in the Election Law, which was ratified by its members on March 8, 1993. The Election Law was amended once, in 2004, following a vote by the majority of Band members at a General Meeting, as required by the amendment provision (section 109).
[10] The following provisions of the Election Law are relevant and they provide as follows:
Eligibility for Office:
3. Subject to Paragraph 4, any person who is:
(a) of the full age of twenty-one (21);
(b) whose name appears on the Samson Voters list controlled by the Samson Cree Nation; and
(c) who has been ordinarily resident on the Samson or Pigeon Lake Reserve for a period of not less that six (6) months immediately preceding an election; and/or who is ordinarily resident within 100km radius of reserve numbers 137, 138, 138(A) reserve boundaries
is eligible to become a candidate for either Chief or Council in that election.
Disqualification
4. A Samson member is not eligible to become or remain a Chief or member of the Council for Samson Cree Nation if he:
(a) is convicted of an indictable offense after the date this Declaration comes into force;
(b) has an existing criminal record which includes as [sic] indictable offense as at the date this Declaration comes into force:
(i) unless such member has been granted a pardon through a Cree cultural and traditional ceremony conducted by an elder of the Samson Cree Nation recognized for such purposes by Chief and Council; or
(ii) unless such member has been granted a pardon through the legal system.
(c) was guilty, in connection with an election, of corrupt practice, accepting or offering a bribe, dishonesty or other wrongful conduct.
Appointment of Electoral Supervisor, Assistants and Security Officers
14. At least fourteen (14) days prior to any nomination meeting, the Chief and Council shall, by its resolution, appoint an Electoral Supervisor, Assistants[,] Security Officers.
Qualifications of the Electoral Supervisor and his Assistants
15. The Electoral Supervisor and the Assistants shall be persons of good character and reputation, shall be fluent in and comprehend Cree and shall not be members of the Samson Cree Nation.
Duties of the Electoral Supervisor and his Assistants
16. The Electoral Supervisor shall be recognized as the person authorized to conduct the entire administration and process of the election. The role of the Electoral Supervisor shall include the responsibility for:
(a) plans and preparations for conducting the elections,
(b) providing assignments and directives to his Assistants,
(c) monitoring, reporting on progress and maintaining contact as necessary to the Samson Cree Nation Council and to Samson members concerned,
(d) obtaining any required information and materials from Samson Cree Tribal Administration,
(e) preparing a Samson Voter's [sic] List and other lists for appropriate posting,
(f) knowing the entire content of the Election Law.
58. All voting locations shall be open at 9:00am and shall be open until 6:00pm.
Election Appeal Board
78. At least fourteen (14) consecutive days prior to any nomination meeting, the Samson Chief and Council shall, by its resolution, appoint three (3) persons who shall be known as the Samson Election Appeals Board.
Chairman
79. In passing its resolution, the Samson Chief and Council shall designate one of the members of the Samson Election Appeal Board as Chairman.
Qualifications for members
80. All person [sic] appointed to the Samson Election Appeal Board shall be the full age of twenty-five (25) years, non-Samson members and person of good character and reputation.
Commencing an appeal
82. Within seven (7) days from the date of any election, any candidate in the election who has reasonable grounds to believe:
(a) there was a corrupt practice with respect to the election,
(b) that a person nominated to be a candidate in the election was ineligible to be a candidate; or
(c) that there was any other violation of these customs which may have affected the result of the election
may commence an appeal by serving upon the Chairman of the Samson Elections Appeals Board, a letter setting out the particulars of his complaint and the grounds thereof.
86. Within fourteen (14) days from the date, upon which an appeal was commenced, the Samson Election Appeal Board shall meet and make a determination as to the validity of the complaint.
87. The Samson Election Appeal Board may:
(a) declare that the complaint is an invalid complaint and dismiss the appeal;
(b) declare that the complaint is a valid complaint as described in Paragraph 82(c) but dismiss the appeal because the violation of custom was not one which would have affected the result of the election; or
(c) declare the complaint to be a valid complaint and order that a new election be held within two (2) weeks of the date of the Board's determination.
88. In the event that a new election is ordered, that election shall be held in accordance with the custom described herein, subject however, to such further requirements, conditions or directions as may be imposed by the Board in order to avoid a repetition of the violation complained of.
89. Upon making its determination, the Board shall provide the Samson Chief and Council, the Electoral Supervisor and the complainant with written reasons for its decision, including the particulars of the evidence relied upon.
90. The decision of the Samson Election Appeal Board is final and binding.
Interpretation
104. This Declaration be read and construed together with any Declaration of Custom respecting the conduct of the Chief and Councillors of the Samson Cree Nation.
Effective date of Declaration
106. The Declaration shall become effective on the date upon which it is ratified, according to custom, by the majority of the Samson Cree Nation members who are in attendance at a General Meeting of the Samson Cree Nation called for that specific purpose.
Binding force
107. This Declaration shall be binding on all members of the Samson Cree Nation and on the Electoral Supervisor, Assistants and Security Officers appointed under section 14 and all persons appointed to the Samson Election Appeal Board under section 80.
Amendment to Declaration
109. This Declaration may be amended only by a majority of the Samson Cree Nation members who, pursuant to this Declaration, are eligible to vote and who are in attendance at a General Meeting of the Samson Cree Nation called for that purpose.
THE SOOSAY COMPLAINT
[11] I begin with the Soosay complaint in regard to which the Judge concluded that in determining that Mr. Northwest was disqualified from running for a Council seat, the Board had denied him natural justice in failing to provide him with an opportunity to be heard, particularly, regarding the granting of a pardon.
[12] At paragraphs 32 and 33 of his Reasons, the learned Judge disposed of the matter in the following way:
[32] I turn now to the Board's decision that declared the election of Larron Northwest as invalid since he failed to meet the requirements for eligibility as a candidate for election to Council under paragraph 4 of the Samson Cree Nation Election Law. In its reasons, the Appeal Board concluded that its terms were limited insofar as the relief it could offer and even suggested "with broader discretion and powers, the Appeal Board could have ordered that Mr. Northwest or any other candidate rectify the deficiencies and bring his candidacy within the bounds of the Election Law".
[33] As I said in granting the interim injunction, the Appeal Board, like any other tribunal, is bound by the principles of natural justice and the duty of fairness. Here, Mr. Northwest had executed an "Affidavit of Nominated Candidate" that he qualified as a candidate. The fact is that he had a Cree Cultural and Traditional Ceremony granting a pardon conducted by an elder in May of 1999. This is undisputed. The Appeal Board however, without any evidence of the pardon, simply concluded that Mr. Northwest did not meet this requirement without giving him any opportunity to make submissions to the contrary. This constitutes a breach of natural justice and fairness, and is a reviewable error which warrants setting aside the Appeal Board's decision.
[13] Section 4 of the Election Law is the provision relevant to the Board's determination of Mr. Northwest's qualifications to run for office and, for ease of reference, I again reproduce the section:
Disqualification
i. A Samson member is not eligible to become or remain a Chief or member of the Council for Samson Cree Nation if he:
(a) is convicted of an indictable offense after the date this Declaration comes into force;
(b) has an existing criminal record which includes as [sic] indictable offense as at the date this Declaration comes into force:
(i) unless such member has been granted a pardon through a Cree cultural and traditional ceremony conducted by an elder of the Samson Cree Nation recognized for such purposes by Chief and Council; or
(ii) unless such member has been granted a pardon through the legal system.
(c) was guilty, in connection with an election, of corrupt practice, accepting or offering a bribe, dishonesty or other wrongful conduct.
[14] The Board concluded as it did because it was not satisfied that Mr. Northwest had met the requirements of section 4 of the Election Law, in that the Royal Canadian Mounted Police's (the RCMP) consent for disclosure of criminal record information, authorized by Mr. Northwest and submitted by him in support of his candidacy, did not prove that he did not have a criminal record and, further, that there was no evidence of a pardon having been obtained.
[15] In support of their judicial review application, the respondents filed Mr. Northwest's affidavit, sworn June 10, 2005, wherein he declared that although he had been convicted in 1988 for possession of marijuana and for the unlawful storage of firearms, he had been pardoned in 1999 through a Cree cultural and traditional ceremony conducted by Joe Boysis Sr., an elder of the Band.
Mr. Northwest further declared that at no time after his election to Council on May 19, 2005, had he been contacted by the Board with respect to the pardon which he claims to have obtained.
[16] Hence, the respondents argued before Rouleau J. and before us that Mr. Northwest was fully qualified when he signed his "Affidavit of Nominated Candidate" and declared that he knew of no reason why he should be disqualified from running as a candidate. The respondents further argued that the Board had breached the principles of natural justice in failing to give Mr. Northwest the opportunity of responding to the Soosay complaint.
[17] In challenging the Judge's decision regarding the Soosay complaint, the appellants make two arguments concerning Mr. Northwest's qualifications to run. Firstly, they say that on a proper reading of section 4 of the Election Law, Mr. Northwest is disqualified because he was convicted of an indictable offence after the coming into force of the Election Law. They point out that the receipt of a pardon in regard to such an offence cannot save Mr. Northwest, since a pardon is only relevant where the conviction on an indictable offence was made prior to the coming into force of the Election Law, i.e. when it was ratified by a majority of the Band on March 8, 1993.
[18] Secondly, the appellants say that even if they are wrong on that count, there is no evidence that Mr. Northwest's pardon was obtained through a Cree cultural and traditional ceremony conducted by an elder of the Band recognized for such purpose by its Chief and Council.
[19] The Judge concluded that there had been a denial of natural justice when the Board failed to provide Mr. Northwest with the opportunity of responding to the Soosay complaint. The appellants take issue with the Judge's conclusion that the Board, "like any other tribunal", is bound by the principles of natural justice, asserting that his findings "reflect a fixed and ethnocentric application of the terms 'natural justice and fairness' " (Appellants' Memorandum para. 68). In my opinion, this submission misjudges the doctrine of procedural fairness and mischaracterizes the Judge's ruling.
[20] The jurisprudence recognizes that "the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case" (Knight v. IndianHead SchoolDivision No. 19, [1990] 1 S.C.R. 653, at 682. The doctrine is flexible and context-specific, as "[a]ll of the circumstances must be considered in order to determine the content of the duty of procedural fairness" (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para. 21). Therefore, while the Board is indisputably subject to the duty of fairness (Sparvier v. Cowessess Indian Band, [1993] 3 F.C. 142 (F.C.) at para. 51, Roseau River Anishinabe First Nation v. Roseau River Anishanabe First Nation (Council) (2003) 228 F.T.R. 167 at para. 30), the content of this duty is tailored to the particular circumstances and context of the Board. This context can and should include judicial respect for relevant custom.
[21] The criteria to be considered in determining the content of procedural fairness were summarized by the Supreme Court in Baker, supra at paras. 23-27: the nature of the decision being made and the process followed in making it; the nature of the statutory scheme; the importance of the decision to the individual(s) affected; the legitimate expectations of the person challenging the decision; and, the choice of procedures made by the tribunal itself. The Federal Court jurisprudence concerning procedural fairness in the context of custom Band elections demonstrates that the content of the duty in this context must take into account and respect relevant custom of the Band in question (see, for example, Roseau River, supra at para. 30; Sparvier, supra at para. 47).
[22] Applying the Baker factors, I conclude that the Application Judge did not err in finding that the duty of fairness required at a minimum that the Board provide Mr. Northwest with an opportunity to make submissions. The Board should be granted significant latitude to choose its own procedures; however, given the importance of the decision to Mr. Northwest, basic procedural safeguards must be in place. This does not mean that a full oral hearing was required, but simply that Mr. Northwest should have been given the opportunity to respond to the Soosay complaint, before the Board concluded that he was ineligible for Council under section 4 of the Election Law. By not allowing Mr. Northwest to respond to the Soosay complaint, the Board made its decision on an incomplete factual record. In my view, the Judge correctly found that this constituted reversible error.
[23] However, I am satisfied that the Judge was wrong in proceeding to determine the issue of whether Mr. Northwest was qualified to run and, more particularly, whether he had been pardoned prior to the date of his nomination. In my view, having determined that there was a breach of natural justice, the Judge could not substitute himself to the Board and make a determination on the merits of the complaint. Section 86 of the Election Law makes it clear that it is up to the Board to "make a determination as to the validity of the complaint". In my view, the Judge was bound to set aside the Board's decision and refer the matter back to the Board for redetermination, with such directions as he considered to be appropriate in the circumstances.
[24] I would add that there appears to be, at the very least, an arguable case as to whether a pardon can be invoked in respect of a conviction on an indictable offence made after the date of the coming into force of the Election Law. There also appears to be an arguable case as to whether the pardon at issue was obtained through a Cree cultural and traditional ceremony conducted by an elder of the Band recognized for that purpose by its Chief and Council.
[25] I do not wish to be taken as suggesting that the appellants should succeed on these points. I simply wish to point out that, on the evidence as it now is, the determination of the points raised by the appellants is not a foregone conclusion. It will be up to the Board to make the determination on the evidence that will be before it.
THE BRUNO COMPLAINT
[26] I now turn to the Bruno complaint. Before addressing this issue, however, something must be said concerning the applicable standard of review. The appellants submit that a deferential standard of review is appropriate in the circumstances of this case. While it is not clear from their arguments whether they are advocating for the reasonableness simpliciter or patent unreasonableness standard, it is clear that they dispute the learned Judge's application of the correctness standard. By contrast, the respondents contend that correctness is the appropriate standard in respect of the Board's conclusions on questions of law.
[27] The appellants correctly note that the Application Judge did not expressly undertake the required pragmatic and functional analysis. Such an analysis was undertaken by Russell J. in Okeymow v. Samson Cree Nation (2003) 235 F.T.R. 87, in which the same Election Law was at issue, and he held that the standard of correctness applied with respect to questions of law (para. 33). Rouleau J. referred to the Okeymow decision, and then proceeded to interpret the Election Law according to the "plain meaning" principle of statutory interpretation, thus effectively applying the correctness standard.
[28] For the reasons that follow, I need not undertake a pragmatic and functional analysis, since I come to the conclusion that whatever standard of review is applied to the Board's decision with regard to the Bruno complaint, the Board's decision cannot stand. I therefore express no opinion on the standard of review applicable to the Board's interpretation of the Election Law.
[29] The Board decided as it did because of its understanding of Section 58 of the Election Law, which it viewed as being in accordance with prior practices of the Band "and other Cree nations in the immediate community". In so concluding, the Board pointed to the Council election of 2003, where the polls had been closed promptly at 6:00pm and, as a result of which, those voters waiting in line were turned away by the then Electoral Supervisor. In the Board's view, this practice gave strong encouragement to voters to attend the polls "in sufficient time, well before closing" (Appeal Book, p. 53).
[30] Rouleau J. took an entirely different view of the matter and, as a result, he set aside the Board's decision. In his view, the Board erred in not considering the discretion given to the Electoral Supervisor by section 16 of the Election Law. This provision was interpreted by the Federal Court in Samson Indian Band v. Cutknife, 2003 FCT 721, as giving the Electoral Supervisor a broad and general authority to conduct the entire administration and process of the election. Consequently, the Judge was of the view that in allowing those voters who were in line at 6:00pm to vote, the Electoral Supervisor was simply exercising the broad discretion given to her under section 16 of the Election Law. The Judge's reasoning appears clearly from paragraphs 29 to 31 of his Reasons, which read as follows:
[29] With respect to the first decision of the Board setting aside the election, I am satisfied that the decision is erroneous insofar as it fails to take into account the discretion bestowed upon the Electoral Supervisor by section 16 of the Election Law. That provision has been interpreted by this Court as giving the Supervisor a broad, general authority to conduct the entire administration and process of the election. In Samson Indian Band v. Cutknife, 2003 FCT 721, Martineau, J. made the following comments in this regard at paragraphs 18 and 19:
Therefore, the Electoral Supervisor, acting under section 16 of the Election Law, just like in the case at bar, has broad general authority, not limited to the six enumerated instances in that section, to conduct the entire administration and process of the election. The authorities include: making administrative decisions respecting the practical application of procedure provisions of the Election Law to situations as they arise during an election, the practical application of procedural provisions of the Election Law during the nomination meeting, and making administrative decisions to hold the nomination meeting over for specific administrative purposes.
The wording of section 16 which provides that "[t]he role of the Electoral Supervisor shall include the responsibility for..." is clearly not exhaustive of the responsibilities of the Electoral Supervisor.
[30] In my view, that reasoning is equally applicable to this case and I am persuaded that section 16 of the Election Law would allow the Electoral Supervisor, once having locked the doors at 6:00 p.m., to exercise her discretion by allowing those who had already been admitted to the poll before 6:00 p.m. to cast their ballot. When one considers that there were only three polling booths and the ballots were cumbersome insofar as they contained 86 names together with photographs, for the benefit of band members who did not read, it is not surprising that the election process was delayed.
[31] To interpret section 16 of the Election Law so restrictively, would be contrary to the principle of statutory interpretation set out in Rizzo, supra, since it would not be in harmony with the scheme and object of legislation and the intention of Parliament which is to ensure a free and open election.
[31] In determining whether the Bruno complaint was made out, the Board had to interpret the provisions of the Election Law and, in particular, section 58 thereof, which provides:
58. All voting locations shall be open at 9:00am and shall be open until 6:00pm.
[32] The question before the Board was whether those voters waiting in line at 6:00pm on May 19, 2005, were entitled to vote. In addressing this issue, it is useful to point out that the polling booths were situated in the west side of the Howard Buffalo memorial gymnasium on the Samson reserve, near Hobbema, Alberta. The doors to the gymnasium were opened at 9:00am on May 19, 2005. At approximately 5:45pm, the Electoral Supervisor gave instructions to the security personnel to escort all voters standing in line outside the gymnasium into the gymnasium. After the voters entered the gymnasium, the Electoral Supervisor gave instructions that the doors thereof were to be closed and locked at 6:00pm. The voters who had entered the gymnasium by 6:00pm were allowed to use the polling booths to cast their ballots.
[33] In order to decide whether the Board made a reviewable error in interpreting section 58 of the Election Law, it is necessary to briefly examine the relevant provisions of the Election Law.
[34] The formal title of the Election Law is "The Samson Cree Nation Declaration of Custom with Respect to the Establishment and Election of Chief and Council". The preamble thereto is, in my view, of some importance, and I hereby reproduce it:
WHEREAS the Samson Cree Nation is, by law, entitled to establish and select the members of its Council in accordance with the customs and traditions of the Samson Cree Nation;
WHEREAS the members of the Samson Cree Nation recognize that these customs and traditions are continually evolving in response to the demands of a progressive and dynamic Cree Society;
WHEREAS the members of the Samson Cree Nation now desire to codify and more effectively communicate their present customs and traditions with respect to the establishment and selection of their Chief and Council; and
NOW THEREFOREthe members of the Samson Cree Nation hereby declare the following to be their current customs and traditions with respect to the establishment and selection of their Chief and Council:
[35] After stating that the Band is, by law, entitled to select the members of its Council in accordance with Band customs and traditions, the preamble states that it is the Band's intention, inter alia, to "codify ... [its] present customs and traditions with respect to the establishment and selection of [its] Chief and Council". It is then stated that the provisions of the Election Law following the preamble constitute the Band's "current customs and traditions with respect to the establishment of [its] Chief and Council".
[36] Sections 1 to 109 of the Election Law follow the preamble and, in effect, constitute the customs and traditions that are to govern the election of Chief and Council. Of greater interest for the present purposes, however, is section 109 thereof, which provides as follows:
Amendment to Declaration
109. This Declaration may be amended only by a majority of the Samson Cree Nation members who, pursuant to this Declaration, are eligible to vote and who are in attendance at a General Meeting of the Samson Cree Nation called for that purpose.
[37] It is clear from section 109 that the Election Law cannot be modified unless a majority of the Band's eligible voters, who are in attendance at a General Meeting of the Band called for that specific purpose, are in agreement.
[38] I should also mention that section 104, whose heading is "INTERPRETATION", provides that the Election Law is to be read and construed "together" with any other Declaration of custom concerning the conduct of the Chief and Councillors of the Band. There was no evidence before us regarding the existence of any such Declaration.
[39] I am thus satisfied that the only customs and traditions which governed the election of the Band Council on May 19, 2005, are those which are set out in the Election Law. Customs and traditions which may come into existence and which may differ from those appearing in the Election Law are, in my view, of no relevance unless the Election Law is modified in accordance with section 109 thereof. However, evidence of prevailing election practice and custom may be relevant in resolving ambiguities or filling gaps in the Election Law.
[40] For the reasons that follow, I am of the view that the Judge was correct in concluding that the Board erred in ordering a new election within two weeks of its determination.
[41] Section 58 of the Election Law states that "[a]ll voting locations shall be opened at 9:00am and shall be opened until 6:00pm". The term "voting location" must be distinguished from other terms used in the Election Law, namely, "polling booth" and "ballot box", which are found at sections 41, 51, 52 and 59, and which provide as follows:
41. In addition, there shall be on public display, a ballot with the photograph and name in alphabetical order of all candidates at all voting locations, and at each polling booth designated for Elders.
[...]
51. The Electoral Supervisor shall ensure that the instructions referred to in Paragraph 49 and 50, are clearly posted in each polling booth and at all other public areas made available for voting.
52. The Electoral Supervisor or his Assistant shall, in the presence of the person has returned his ballot, deposit the ballot in a ballot box.
[...]
59. Immediately following the close of the poll, the Electoral Supervisor shall, in the presence of such candidates or their agents as may be present, open the ballot box or boxes, examine the ballots, and;
(a) reject any ballots that are not initialled by the Electoral Supervisor or his Assistant;
(b) reject any ballot that, in the opinion of the Electoral Supervisor, are not clearly marked, and;
(c) reject or accept, at the discretion of the Electoral Supervisor, any ballots which are marked in accordance with Paragraph 53.
[42] When these provisions are considered together, it becomes apparent that the terms "voting location", "polling booth", "poll" and "ballot box" have different meanings. In my view, while a "polling booth" and a "poll" can be found within a "voting location", they are not the same thing as a "voting locating". Thus, the only possible interpretation of these provisions, when read together, is that section 58 only prescribes the hours during which "voting locations" will be open to receive voters.
[43] In my view, the Board's interpretation is in direct conflict with the obvious purpose of the Election Law, which is to allow eligible Band members to exercise their democratic right to vote for the Councillors of their choice. The Board's interpretation, taken to its ultimate logic, means that eligible voters who may have been standing in line for hours would be unable to vote because the line had not moved fast enough and, hence, having been unable to vote by 6:00pm, would be prevented from voting. This would, in my view, constitute an absurd result.
[44] In concluding as he did, the Judge placed great emphasis on section 16 of the Election Law which, in his view, gave the Electoral Supervisor broad and general authority "to conduct the entire administration and process of the election". In so concluding, he relied on Martineau J.'s Reasons in Samson Indian Band v. Cutknife, supra, where the learned Judge held, inter alia, that the section conferred upon the Electoral Supervisor the authority to make administrative decisions concerning "the practical application of procedure provisions of the Election Law to situations as they arise during the elections ..."
[45] In Rouleau J.'s view, in closing the gymnasium doors at 6:00pm and allowing those already in the gymnasium to vote after 6:00pm, the Electoral Supervisor had exercised her broad discretion in a way that could not be qualified as erroneous.
[46] I cannot but agree with the conclusion reached by Rouleau J., considering that the Electoral Supervisor exercised her discretion in a way which is clearly, in my view, in accordance with section 58 of the Election Law.
[47] To conclude on this point, there cannot be much doubt that the Board's Reasons do not provide a reasonable basis for its conclusion. As I have already indicated, its interpretation of section 58 leads to an absurd result and, in any event, cannot be supported by the various provisions of the Election Law. In these circumstances, past practice of Electoral Supervisors in respect of the closing of the polls - to which the Board refers somewhat elliptically in its Reasons - is not relevant. On the issue in dispute in this appeal, the Election Law admits of only one rational interpretation.
[48] There remains one issue to be addressed, namely, whether the Judge erred in refusing to consider the affidavits submitted by members of the Board, detailing their expertise with respect to the Election Law and Cree culture and customs. The Judge refused to consider these affidavits on the basis that the evidence was clearly improper because it suggested that members of the Board had special knowledge or expertise with respect to statutory interpretation of the Election Law.
[49] As I have concluded that the only customs and traditions which can be considered are those found in the Election Law, and that the Board's decision, on any standard of review, cannot stand, the evidence sought to be adduced through the Board members is not relevant. As a result, I need not decide this issue.
[50] I would therefore allow the appeal in part, set aside the Judge's decision to the extent that he determined the issue of whether Larron Northwest was qualified under section 4 of the Election Law, and I would return the matter to the Board for reconsideration in the following way: with regard to the Soosay complaint, I would return the matter to the Board for full reconsideration, and in regard to the Bruno complaint, I would return the matter to the Board for reconsideration on the basis that the Electoral Supervisor acted in accordance with the provisions of the Election Law when she permitted those voters who had entered the gymnasium by 6:00pm on May 19, 2005, to cast their ballots for the candidate of their choice.
[51] As the appellants have succeeded in part only, I would grant costs to the respondents to the extent of 75% of their taxable costs.
"M. Nadon"
"I agree.
A.M. Linden J.A."
"I agree.
John M. Evans J.A."
Email this Content