Docket: A-428-15
Citation:
2016 FCA 146
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CORAM:
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PELLETIER J.A.
WEBB J.A.
DE MONTIGNY J.A.
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BETWEEN:
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ANDREW ORR AND
PAUL HOULE
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Appellants
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and
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PEERLESS TROUT
FIRST NATION
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Respondent
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Edmonton, Alberta, on May
9, 2016).
PELLETIER J.A.
[1]
This appeal concerns two (2) election appeals,
which were heard together by the Elections Arbitrator under the Customary
Election Regulations of the Peerless Trout First Nation. We have come to a
conclusion with respect to each of those appeals.
[2]
Given that this is an appeal from the Federal
Court sitting in judicial review, we step into the shoes of the Federal Court:
see Agraira v. Canada (Public Safety and Emergency Preparedness), 2013
SCC 36, [2013] 2 S.C.R. 559, at paragraphs 45-46. Accordingly, we will focus
our attention on the Election Arbitrator’s decision.
[3]
In the matter of the appeal by Paul Houle,
counsel argues that the Election Arbitrator and the Federal Court erred in law
in coming to factual conclusions for which there was no evidence. This argument
focusses primarily on the period during which Mr. Laboucan was absent from the
Trout Lake polling station.
[4]
The statutory declaration of Albert Oostendorp
and the Table attached to it, found at pages 108-111 of the Appeal Book,
contain some evidence on which the Election Arbitrator could rely in coming to
the conclusions that he did with respect to the regularity of the election
procedure during that time period and the materiality of any irregularity,
which he found. In the end result, he found that there were grounds to void or
disqualify a single vote. This is insufficient to invalidate the election
result.
[5]
We have, as requested by counsel for Mr. Houle,
carefully read the cross-examination of Mr. Oostendorp. With respect, we found
nothing in that cross-examination that would have required the Election
Arbitrator to set aside Mr. Oostendorp’s statutory declaration.
[6]
Counsel also argued that there were witnesses
who could have been called to provide evidence, or better evidence, as to what
took place during the relevant period. It was open to Mr. Houle to call that
evidence. Having failed to do so, he cannot complain about any lack of
evidence.
[7]
As for Andrew Orr’s appeal, we have not been
persuaded that there is a constitutional limitation on the right of First
Nations to establish reasonable limitations on who may present themselves as
candidates for elected office. Section 3 of the Canadian Charter of Rights
and Freedoms, R.S.C. 1985, App. II, No. 44, Schedule B, does not deal with
band elections. Therefore, we are unable to agree that the preamble to The
Constitution Act 1867, R.S.C. 1985, App. II, No.5, by implication,
prohibits such limitations or, putting the matter another way, enshrines an
untrammelled right to present oneself as a candidate for elected office in a
First Nation.
[8]
As a result, we will dismiss the appeal with
costs to be assessed, payable jointly and severally by both appellants.
“J.D. Denis Pelletier"
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