Docket: T-199-15
Citation: 2017 FC 1038
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BETWEEN:
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KENNETH HENRY
JR., GARY ROBERTS,
CECIL JAMES,
AND EVELYN ALEXANDER
in their capacity
as current members of the
elected Chief
and Council of the ROSEAU
RIVER
ANISHINABE FIRST NATION
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Applicants
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and
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THE ROSEAU
RIVER ANISHINABE FIRST
NATION CUSTOM
COUNCIL, SHERELYN
HAYDEN, GOLORIA
ANTOINE, HEATHER
LITTLEJOHN,
GLADYS NELSON, RODNEY
PATRICK, FRANK
PAUAL, MARTHA
LAROQUE, GRACE
SMIT H, CHARLIE
NELSON, EDWARD
SMITH, BERNIE
HENRY, LORRAINE
EDWARDS
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Respondents
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REASONS
FOR ORDER
MANDAMIN J.
[1]
On May 16, 2016, I considered the Report of Ms.
Sherri Thomas, the Electoral Officer for the Roseau River Anishinabe First
Nation [the RRAFN] concerning an election appeal filed after the March 12, 2015
RRAFN elections for chief and councillors. The appeal had concerned an
allegation that a successful candidate bought the vote of an elector by giving
her money on the day of the election.
[2]
The Electoral Officer concluded the
preponderance of evidence did not support the allegation that the councillor
had intended to buy the elector's vote when he gave her money. In providing
some money in response to her request, the councillor was most likely acting in
a manner consistent with his pre-established pattern of lending or giving her
money from time to time. The evidence was that it was common practice for
members of the RRAFN council to lend money to community members from their own
pockets. While contradictions in the evidence of witnesses would require the
assessment of credibility, it did not appear that requiring witnesses to
provide their evidence viva voce would do much to change the result. The
Electoral Officer recommended dismissal of the appeal.
[3]
After hearing submissions from legal counsel for
the Electoral Officer and counsel for the other Parties on the law and the
evidence, I issued my May 16, 2016 Order dismissing the election appeal. In
doing so, I indicated reasons would follow.
[4]
I have chosen to write these reasons because I
am of the view this particular proceeding offers an opportunity to address not
only the intersection of Indigenous law with Canadian jurisprudence but also
the alternative Indigenous process of seeking resolution through agreement as
contrasted with the process of litigation and adjudication.
[5]
I must begin by expressing my appreciation for
the invaluable participation and co-operation by all Parties and their
respective counsel.
[6]
My reasons follow.
I.
Background
[7]
I begin by noting that this proceeding
specifically relates to Indigenous law on First Nation governance. These
reasons are delayed in part because of the press of other matters but more so
because I wanted to give some thought to the matter.
A.
Indigenous Laws and Canadian Jurisprudence
[8]
The law in Canada has followed its own unique
development reflecting the diverse historical nature of Canadian society. In
addition to the common law and civil law, courts and governments, the latter
through statues and treaties, have recognised and utilized Indigenous law.
[9]
Shortly after Canadian Confederation in1867, the
Quebec Superior Court decided the case of Connolly v Woolrich (1 CNLC
70; [1867] QJ No 1 (QL)) holding a marriage in accordance with the Cree
practice in what is now Manitoba was a valid marriage such that the son of that
union was entitled to inherit a portion of his father's estate under Canadian
law. In doing so, the Court gave recognition to Indigenous marital law, noting
that the government of the time had not abrogated Indigenous marriage customs
within the area where the traditional ceremony took place and that the "Court must acknowledge and enforce them."
(at paras 143-144 [cited to QL])
[10]
A more contemporaneous example is the seminal
case of Calder v British Columbia (AG) ([1973] S.C.R. 313, 34 DLR (3d)
145). This case involved a claim by the Nishga for a declaration that they held
Aboriginal title to their traditional lands in British Columbia. Although the Calder
appeal was dismissed on technical grounds, the Supreme Court of Canada held
that Aboriginal title was cognizable in Canadian courts, although divided on
the issue of extinguishment. The Supreme Court has since found that Aboriginal
title in addition to being cognizable under our Canadian legal system continued
to exist in the instance of the 2014 case of Tsilhqot'in Nation v British
Columbia (2014 SCC 44, [2014] 2 S.C.R. 257).
[11]
The validity of Indigenous laws may also be
recognized by legislation. Subsection 2(1) of the Indian Act, RSC 1985,
c I-5, for instance provides that the leadership (council) of certain First
Nations, Indian Bands to use Indian Act parlance, may be chosen by
'custom', in other words by the Indigenous law of that First Nation. It is this
governance aspect of Indigenous law that is under consideration in this
proceeding.
B.
Custom Election Laws
[12]
Many First Nations choose to create election
laws, which detail their customary practice, and set them down in a
constitution or an election act. Usually these codes set out the eligibility
for voters and candidates, the election process and an appeal mechanism. When
there is a challenge to the validity or compliance with a provision of the
election law, or there is an alleged breach of natural justice in the election
or appeal process that cannot be resolved within the First Nation, an applicant
may choose to bring an application for judicial review in the Federal Court.
[13]
I canvassed the jurisdiction of the Federal
Court to conduct judicial reviews of First Nations' governance issues in Gamblin
v Norway House Cree Nation Band Council (2012 FC 1536, [2013] 2 CNLR 193).
In that case I concluded the Federal Court did have jurisdiction to hear such
matters. However, while the Federal Court has the jurisdiction to adjudicate
First Nations custom governance issues arising, the law that the Court applies
usually is the Indigenous law of the First Nation in question.
[14]
The Federal Court receives a number of
applications for judicial review on First Nations custom governance issues each
year. Litigation over such applications can be both bruising for community
members and costly for the First Nation while only resolving narrow legal
issues. Such court proceedings can cause acrimony amongst First Nation members
and leave hard feelings afterward.
[15]
The Federal Court, in its consultations through
the Federal Court Aboriginal Law Bar Liaison Committee and sessions with
Indigenous elders, notably at Turtle Lodge, Manitoba and Kitigan Zibi, Quebec,
has explored alternatives for resolving such disputes more in keeping with the
Indigenous practice of resolving disputes through agreement.
[16]
An alternative process for dispute resolution
was first set out in the 2012 First Nations Dispute Resolution Pilot Project.
This process is now incorporated into the Federal Court Practice Guidelines for
Aboriginal Law Proceedings.
[17]
The Aboriginal dispute resolution process
proceeds by agreement of the parties. All the while, it is to be remembered
that the option remains for parties to proceed by way of litigation in court if
they so choose.
II.
The Present Application
[18]
The RRAFN select their leaders by their own
Indigenous laws: the Roseau River Anishinabe First Nation Constitution
[RRAFN Constitution] and the Roseau River Anisihinabe First Nation
Election Act [RRAFN Election Act]. Their legislation created two
entities, the Custom Council consisting of family representatives and the Chief
and Council consisting of elected First Nations representatives.
[19]
In the past, the RRAFN experienced issues
between these two entities which lead to multiple applications for judicial
review in Federal Court as demonstrated by the adjudicated decisions in 2003
FCT 168, 2009 FC 655, 2013 FC 180 and 2014 FC 1215.
[20]
In the present application, the road to
resolution took a different path.
[21]
In January 2015, a dispute arose between the
family Custom Council and the elected Council. The Applicants, the RRAFN Chief
and Council, applied for an urgent injunctive order related to the impending
election for chief and council. The substantive dispute concerned the
jurisdiction, authority and makeup of the RRAFN Custom Council but the
immediate issue concerned the conduct of the impending RRAFN election. The
elected Chief and Council had chosen an electoral officer to conduct the
election but the Custom Council disputed that decision contending it should
chose the electoral officer.
[22]
Following the procedure for the First Nation
Dispute Resolution, I convened an informal teleconference with legal counsel
for the contending Parties to explore the prospects for resolving the issues in
a way satisfactory to all Parties. Out of this discussion, all Parties - the
Applicants, the Respondents and other interested Parties - agreed to a consent
order to have joint electoral officers functioning with a judicial officer,
myself, to administratively decide election disputes in keeping with the
provisions of the RRAFN Election Act.
[23]
In assuming this role, I followed the precedent
set by Justice François Lemieux in Mohawks of Akwesasne v Canada (Human
Resources and Social Development), 2010 FC 754, 191 ACWS (3d) 401, where
he undertook to decide the issue of costs although the main substance of the
application had been resolved by agreement of the parties. Justice Lemieux
undertook this role as the settlement agreement reached in resolving the
application included a term "that the payment of
costs shall be determined by this Court acting as an arbitrator based upon
written submissions filed with the Court, which determination shall be binding
upon the parties and not subject to appeal." (at para 5)
A.
The Initial Consent Order
[24]
On February 16, 2015 I issued the Consent Order
which reflected the agreement of the Parties. It provided for two Co-Electoral
Officers, one appointed by the Applicant Chief and Council and one appointed by
the Respondent Custom Council. The two Co-Electoral Officers would decide
electoral matters jointly and where they were not in agreement, they would seek
such direction or order from myself as may be appropriate on an urgent basis.
[25]
The Consent Order also provided that any appeal
would be decided by consensus of the two Co-Electoral Officers and, if no consensus,
they would refer the appeal to myself whose decision would be binding as though
it were a decision of a duly appointed appeal committee under the RRAFN
Election Act. Otherwise and throughout, the RRAFN Election Act
remained in force.
[26]
The RRAFN election for Chief and Council
proceeded on schedule on March 12, 2016.
B.
The Allegation Arising from the Election and
Subsequent Court Orders
[27]
There was an appeal after the March 12, 2015
RRFN election concerning an allegation of vote buying by one of the candidates
who was elected as a councillor. The Co-Electoral Officers did not agree on
whether or not to accept the appeal, one viewing the appeal as deficient in
form, the other viewing the appeal as substantive in content. When it was time
to refer the question to me, a difficulty arose because one of the Co-Electoral
Officers was no longer available.
[28]
On receiving the report of the appeal by the
remaining Co-Electoral Officer, I issued a June 30, 2015 Direction that:
i)
the appeal was to be considered validly made for
the purpose of initiating the appeal process;
ii)
notice was to be provided to the councillor
whose election was being appealed;
iii)
a report on the election and its results was to
be prepared together with the rules, regulations or procedures that applied in
addition to the RRAFN Election Act if any; and
iv)
the Parties were to participate in a
teleconference on the next steps to be followed.
[29]
After the teleconference with the Parties, I
followed up with a September 1, 2015 Direction indicating that the Parties were
to determine how they wished the election appeal to proceed and further
directed to the Federal Court Registry to provide all Parties with the relevant
documentation on file with the Court in order that every Party would be fully
apprised of the history of the proceeding.
[30]
After the further teleconference with the
Parties and on their consent, I issued the November 3, 2015 Consent Order that
in proceeding to hear and decide the election appeal:
i)
standing was granted, in relation to this
election appeal, to:
i.
the remaining Electoral Officer, Ms. Sherri Anne
Thomas
ii.
Mr. Cecil James, the Councillor whose election
was appealed, separate from his capacity as a Councillor of the Applicant;
ii)
the election appeal would be treated as a
validly submitted;
iii)
the Electoral Officer would have authority to
investigate the allegations with all witness statements being confirmed by
affidavit, and confirm other evidence obtained in the investigation process
though her own affidavit; in exercising this authority the Electoral Officer
was also able to come before the court if requiring an order for her to examine
property or non-party witnesses;
iv)
Mr. James, along with the Applicant and
Respondent, would be served with all applicable reports and affidavits obtained
by the Electoral Officer and Mr. James would also provide any responding
affidavit to all parties;
v)
after the exchange of affidavits, each would
have the opportunity to cross-examine on the affidavits and file transcripts
thereof;
vi)
on completion of cross-examinations, the RRAFN
Custom Counsel, the RRAFN Chief and Council, and Mr. James were to serve
written representations in respect of the Election Appeal on the Electoral
Officer and each other;
vii)
the Parties were to then requisition a hearing
before myself. The Electoral Officer, Mr. James, the Chief and Council, and the
Custom Council were all entitled to make representations to the Court at the
hearing.
[31]
As previously noted, all Parties consented to my
jurisdiction as the proper authority for consideration and determination of the
election appeal as per the earlier February 16, 2016 Order.
[32]
Finally, the November 3rd Order specified this
Court may consider relevant sources of law, including but not limited to the RRAFN
Election Act, the RRAFN Constitution, as well as all relevant
Canadian legislation and jurisprudence. While not expressly stated, the process
adopted effectively followed Rule 52(1) of the Federal Courts Rules,
SOR/98-106.
[33]
Rule 52 of the Federal Courts Rules
provides:
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Role of assessor
52 (1) The Court may call on an assessor
(a) to assist the Court in understanding technical evidence; or
(b) to provide a written opinion in a proceeding.
Fees and disbursements
(2) An order made under subsection (1) shall provide for payment
of the fees and disbursements of the assessor.
Communications with assessor
(3) All communications between the Court and an assessor shall be
in open court.
Form and content of question
(4) Before requesting a written opinion from an assessor, the
Court shall allow the parties to make submissions in respect of the form and
content of the question to be asked.
Answer by assessor
(5) Before judgment is rendered, the Court shall provide the
parties with the questions asked of, and any opinion given by, an assessor
and give them an opportunity to make submissions thereon.
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Services d’un assesseur
52 (1) La Cour peut demander à un assesseur :
a) de l’aider à comprendre des éléments de preuve techniques;
b) de fournir un avis écrit dans une instance.
Honoraires et débours
(2) L’ordonnance rendue en application du paragraphe (1) doit
prévoir le paiement des honoraires et débours de l’assesseur.
Communications avec l’assesseur
(3) Les communications entre la Cour et l’assesseur se font en
audience publique.
Forme et contenu de la question
(4) Avant de demander un avis écrit de l’assesseur, la Cour donne
aux parties l’occasion de présenter leurs observations sur la forme et le
contenu de la question à soumettre.
Réponse de l’assesseur
(5) Avant de rendre jugement, la Cour transmet aux parties la
question soumise et l’avis de l’assesseur et leur donne l’occasion de
présenter leurs observations à cet égard.
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[34]
A leading case on the role of assessors is Porto
Seguro Companhia De Seguros Gerais v Belcan SA, [1997] 3 S.C.R. 1278, 153 DLR
(4th) 577. In that case, the Supreme Court modified the existing rule to permit
assessors to give the judge assistance on technical matters and on matters of
disputed facts so long as the advice is disclosed to the parties who are to
have the right of response (at para 40).
[35]
When assessors advise judges on matters of fact
in dispute between the parties, natural justice requires disclosure of the
questions put to the assessor and the assessor's response, as well as a right
of response by the parties.
[36]
As an aside, the role assigned to the Electoral
Officer in this proceeding has paralleled the discussions of the Federal Court
Aboriginal Law Bar Liaison Committee on the proposal for the use of Assessors
in Aboriginal law proceedings.
C.
The Role of the Electoral Officer
[37]
The Electoral Officer investigated the
allegation contained in the March 13, 2015 appeal of the March 12, 2015
election between November 2015 and March 2016 by interviewing witnesses. She
was assisted in this exercise by legal counsel. In conducting this
investigation she was assisting the Court in the determination of how to
dispose of the election appeal and was not an advocate for one party or
another.
III.
The Issues to be Addressed
[38]
There are two questions arising in this appeal;
the first is a legal issue: Is vote buying a valid ground of appeal? The second
is factual in nature, being whether the facts disclose vote buying in the
election.
A.
Is Vote Buying a Ground for Appeal in an RRAFN
Election?
[39]
There is no specific prohibition to "vote buying" in the RRAFN Election Act.
Paragraph 4(i) sets out:
(i) Any candidate who is running for
office is not eligible, who is fraudulant [fraudulent] or criminal in his/her
actions to gain electors' support.
[40]
Subsection 10(b) of the RRAFN Election Act
sets out grounds for an election appeal:
i)
election practices which contravene the Act.
[and]
ii)
illegal or criminal activity on the part of a
candidate which might discredit the high integrity of the tribal government of
the Roseau River Anishinabe First Nation.
[41]
Having reviewed the memorandum of fact and law
prepared by the Electoral Officer I agree with her conclusion that vote buying
was a valid ground for appeal of the election result. Without restating the
entirety of her analysis, the Electoral Officer suggested that for a valid
appeal issue to exist "vote buying"
needed to be, according to the RRAFN Election Act, either "fraudulent", "illegal"
or "criminal".
[42]
In looking at these grounds the Electoral
Officer stated that although vote buying is immoral it might not amount to
fraudulent misrepresentation. She further observed that although vote buying in
relation to a First Nation's council election is not explicitly outlined in the
Criminal Code, RSC 1985, c C-46, it most closely relates to the offence
of purchasing public office, s 124, and criminal fraud, s 380(1), although it,
vote buying, may not fit the Criminal Code's exact requirements.
[43]
The Electoral Officer notes that the use of the
word illegal encompasses not only criminal matters but also matters against
other types of law such as other statutes, the common law, equity and
Indigenous law. The Electoral Officer states that under the common law bribing
someone to vote a certain way is an offence, citing Henry Hardcastle, Bushby's
Manual on the Practice of Elections, 4th ed (London: Stevens and Haynes,
1874) at 107-115 [Bushby's]. She concludes by stating that if this did
not cause vote buying to fall within the criminal or illegal grounds to appeal
the election, statutory interpretation would, to avoid an absurd result, read
in a provision against vote buying to the RRAFN Election Act.
[44]
Having examined the Electoral Officer's analysis
I agree with the end result that vote buying is a valid ground for appeal under
the RRAFN Election Act and below I set out my analysis of how I arrived
at this conclusion.
[45]
The modern rule for statutory interpretation was
set out by the Supreme Court of Canada in Re Rizzo & Rizzo Shoes Ltd,
[1998] 1 S.C.R. 27 at 41, 36 OR (3d) 418, where the Court cited with approval the
following statement of Elmer Driedger:
Today there is only one principle or
approach, namely the words of an Act are to be read in their entire context and
in their grammatical and ordinary sense harmoniously with the scheme of the
Act, the object of the Act, and the intention of Parliament.
[46]
This approach has application with custom
governance legislation enacted by First Nations, with this Court using this
principle in the past to examine the purpose of a different First Nation's
Election Act in Meeches v Meeches, 2013 FC 196, 428 FTR 208. In this
case, Justice James Russell, when using the interpretation technique outlined
in Rizzo, found at paragraph 85 that:
The purpose of the Election Act is to ensure
fair elections that lead to legitimate government. It is not the purpose of
Election Act to allow officers who may have come to power in an unfair election
to remain in power at their own discretion. The Election Act must be read in a
way that makes sense of its obvious purposes.
[47]
Although an appeal of this decision was allowed
in part, the Federal Court of Appeal upheld Justice Russell's purposeful
interpretation of the sections at issue (2013 FCA 177 at paras 43-45, [2014] 1
CNLR 267).
[48]
Turing to the present case, a reading of the RRAFN
Election Act as a whole discloses it has as its purpose the holding of fair
elections that reflect the free choice of the RRAFN electors in deciding their
leadership. The practice of vote buying is a corrupt practice and contrary the
holding of fair elections.
[49]
The RRAFN Election Act also requires at
subsection 12 (a) that elected officials shall "[u]phold
the Declaration as cited in this Act." In examining the materials
there are two declarations provided with the Act. One Declaration is
found within section 1 of the Act and provides general statement, much
like a preamble, that includes a statement that those seeking office "must have demonstrated characteristics which reflect[]
Trust, Fairness, Confidence and Competence." The other declaration,
which is appended to the end of the Act, is titled "Declaration of Office for Elected Officials"
in which a number of undertakings are listed for those elected including that
they must promise and declare that they "have NOT
received and WILL NOT receive payment or reward for the exercises of any
corrupt practice or illegal execution of this office." [emphasis in
original]
[50]
In interpreting these two declarations and the Act
as a whole, it is clear that those who do not have the characteristics of
fairness, such as those who engage in corrupt practice to receive a reward in
the execution of their office, are in turn eligible for removal from office
under subsection 14(a) of the RRAFN Election Act.
[51]
A prohibition against unfair and corrupt
practice for those in office, but not for those in the process of seeking
election to that office, would be illogical and certainly contrary to the
overall purpose of the RRAFN Election Act which is the holding of fair
elections that reflect the free choice of the RRAFN electors in deciding their
leadership.
[52]
As a result I conclude that the immoral and
corrupt practice of vote buying is contrary to the public interest of the RRAFN
to have free and fair elections and is therefore contrary to the RRAFN
Election Act.
[53]
In arriving at this position I would read the
term 'corrupt practice' as included in the RRAFN Election Act's
paragraphs 4(i) and 10(b)(ii) reference to 'criminal' actions or activity such
that vote buying is a ground for appeal in a RRAFN election appeal.
[54]
Although when looking at the word 'criminal' on
its own the first response is to consider criminal offences, in the context of
the RRAFN Election Act it is clearly intended to mean more than just
criminal offences given the associated references in paragraphs 4(i) and
10(b)(ii) to "actions to gain electors'
support" and "activity … which might
discredit the high integrity of the tribal government of the Roseau River
Anishinabe First Nation" respectively. In examining these
associated references criminal is to be interpreted as also including "scandalous [or] deplorable" (The
Canadian Oxford Dictionary, 2nd ed, sub verbo "criminal")
conduct such as corrupt practices, including vote buying.
[55]
In arriving at such an interpretation it also
prevents the absurd result noted above of persons being prohibited, only while
holding office, from corrupt practices. This method of interpretation in such a
way as to avoid absurd results has been recently affirmed by the Supreme Court
in Tran v Canada (Public Safety and Emergency Preparedness), 2017 SCC 50
at paragraph 31, [2017] SCJ No 50 (QL), with the Court referencing paragraph 27
of Rizzo for the proposition "that the legislature
does not intend to produce absurd consequences."
[56]
Although not part of my reasons, I would note
that since my oral determination of this matter, this Court has also, in
another case where a custom election act and vote buying was at issue, found
that "corrupt practice" should be a
ground of election appeal even when there were no explicit grounds for election
appeal provided in the First Nation's custom election act nor any reference to "corrupt practice" or "vote buying", with the only related
reference being that elected officials could be removed from office for
misconduct, misfeasance, or neglect of duty (Gadwa v Kehewin First Nation,
2016 FC 597 at paras 78-80, [2016] FCJ No 569 (QL), upheld in its entirety by
the Federal Court of Appeal in 2017 FCA 203, [2017] FCJ No 914 (QL)).
B.
What is Involved in Vote Buying?
[57]
At common law, bribery occurs when a vote is
procured from an elector for valuable consideration. Both the impugned
candidate and compromised elector must agree to the exchange of consideration
in return for a promise to vote a certain way and, at common law, no bribery
occurs if no condition is placed on the consideration given (Bushby's at
107-109).
[58]
In McKay v Glen (1880), 3 SCR 641, 1880
CanLII 27 (SCC), the Supreme Court of Canada declined to find bribery where a
candidate had made unconditional charitable gifts absent proof that they were
offered for the purpose of influencing voting. In Generux v Cuthbert
(1884), 9 S.C.R. 102, 1884 CanLII 37 (SCC), the Supreme Court found the
defendant had committed a corrupt practice contrary to section 96 of the Dominion
Elections Act, 1874, 37 Vic, c 9, but did not find he committed bribery
where pre-paid train tickets were given to voters in order to allow them to
vote in an election but where voters were not asked to vote for a particular
candidate.
[59]
In other words, there is no bribery, or vote
buying, when money is given without any condition to vote in a certain way.
IV.
The Electoral Officer's Findings of Fact
[60]
The Electoral Officer interviewed electors,
including the elector who appealed the election. The Electoral Officer
confirmed their information by having each provide affidavits confirming their
statements.
[61]
The Electoral Officer also interviewed other
electors who gave evidence refuting the allegations. Again she took affidavits
from each.
[62]
All of the Parties, including the candidate
whose election was appealed, had the opportunity to cross examine the deponents
on their affidavits.
[63]
At the conclusion of the process, the Electoral
Officer reported that the uncontroverted evidence was:
i)
that the candidate and the elector met in person
on the day of the election;
ii)
that the candidate gave the elector $20 on the
day of the election;
iii)
that the candidate had a history of giving or
lending money to the elector; and
iv)
that the elector did not vote in the election.
[64]
What is clear in the Electoral Officer's report
is that the elector requested money from the candidate. When the candidate
asked her to vote for him, she suggested he should "hook
it up" with the money given either as a loan or gift.
[65]
The candidate had lent money to the elector
previously. The candidate testified under cross-examination that First Nations
members would frequently approach him for money in varying amounts given his
position as a sitting councillor and that other members of the Council had engaged
in this practice.
[66]
Generally, this practice of loans was
discontinued during elections. The candidate personally did not see any loans
or gifts by other Council members during the election period. He admitted
struggling with the idea of giving or loaning money to the elector before the
polling station closed. He relented to her request when he was satisfied the
elector would not vote because she appeared intoxicated, stated she had no
identification, and as a result would be disqualified from voting.
[67]
The Electoral Officer carefully assessed the
evidence gathered. The only credible evidence is that the candidate did not
expressly ask the elector to vote for him in exchange for money. The
suggestion for cash for a vote was raised by the elector. The evidence tends
to show the candidate was acting in a manner consistent with his
pre-established relationship with the elector, namely he would lend her money
from time to time. The candidate considered such to be a loan but was aware it
may not be repaid.
[68]
The elector's allegation that the candidate
approached her to buy her vote was not supported by other witnesses present at
the exchange of the money. In summary, the allegation that the candidate
intended to buy the elector's vote was not supported by the preponderance of
the evidence.
[69]
While the contradictions between the evidence of
the witnesses require assessments of credibility, which is outside the Electoral
Officer's jurisdiction, she was of the view that that requiring witnesses to
provide their evidence viva voce would not change the assessment of the
evidence.
[70]
As a result the Electoral Officer recommended
that I dismiss the appeal.
V.
Decision on the Appeal
[71]
Legal counsel for the Electoral Officer made
submissions based on the Memorandum of Fact and Law which I append as Appendix
A. Legal counsel for Mr. James concurred with both the legal analysis and
recommendation to dismiss the Appeal. Legal counsel for the Applicant Chief
and Council agreed with the analysis that vote buying was prohibited by the RRAFN
Election Act but refrained from submissions on the Appeal. The Respondent
Custom Council took no position.
[72]
I agreed and accepted the facts as discerned by
the Electoral Officer. In accepting the recommendation based on those facts, I
issued my May 16, 2016 Order dismissing the Appeal.
VI.
Further Observations by the Court
[73]
I would add that in this proceeding there were a
number of features that accorded with the advice given by the Elders advising
the Federal Court to have regard to resolving disputes by agreement. These are
measures that ensured those involved the opportunity to participate and be
heard, to present and examine evidence and to make submissions on what should
be the outcome:
i)
all participants had the opportunity to
contribute in determining a way to move forward and agreed with the procedures
that I set out in the consent court orders;
ii)
other than the teleconferences and the final
hearing, the events were conducted in the RRAFN community or at locations
acceptable to all;
iii)
the law that governed was the law of the RRAFN,
namely the RRAFN Election Act;
iv)
the Electoral Officer was a member of the RRAFN
and had a depth of knowledge of the First Nation that went well beyond what a
Court could learn in the course of any application;
v)
the Electoral Officer was neutral in that she
was not an advocate of any party but rather engaged in a fact finding process
to assist me in coming to a decision on the appeal; additionally, the Electoral
Officer was well supported by legal counsel;
vi)
all Parties had the opportunity to present
evidence to the Electoral Officer and participate in examination on affidavits
by witnesses;
vii)
the focus of the gathering of evidence was to
ascertain what happed and not on challenging or discrediting the evidence of
others.
viii)
the entire process emphasized finding ways to
agree on a process to reach a resolution of the issue at hand.
[74]
I attach the following as appendices to these
reasons:
A.
Memorandum of Fact and Law of the Electoral
Officer,
B.
February 16, 2015 Consent Order,
C.
November 3, 2015 Consent Order,
D.
May 16, 2016 Order,
E.
Part III, subsection A - Dispute Resolution
Through Dialogue, Federal Court Practice Guidelines for Aboriginal Law Proceedings.
[75]
In closing, it was my sense of the outcome, as
represented to me in the May 16, 2016 hearing, that there was no acrimony or
dissatisfaction with this result. The approach followed avoided protracted
litigation of issues and enabled the 2015 RRAFN election process to proceed to
an acceptable conclusion.
“Leonard S. Mandamin”
Ottawa, Ontario
November 15, 2017
APPENDIX A
APPENDIX B
APPENDIX C
APPENDIX D
APPENDIX E
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