Docket: T-1414-19
Citation: 2019 FC 1131
[CERTIFIED ENGLISH TRANSLATION, REVISED BY THE AUTHOR]
Vancouver, British Columbia, September 3, 2019
PRESENT: Mr. Justice Sébastien Grammond
| BETWEEN:
|
| CONSTANT AWASHISH
|
| Applicant
|
| and
|
| CONSEIL DES ATIKAMEKW D'OPITCIWAN AND MARCEL CHACHAI, IN HIS CAPACITY OF ELECTORAL OFFICER
|
| Respondents
|
ORDER AND REASONS
[1]
The applicant, Constant Awashish, was nominated for the position of Chief of the Conseil des Atikamekw d’Opitciwan. However, the Electoral Officer, Marcel Chachai, withdrew Mr. Awashish’s nomination, because he does not reside in the community. Mr. Awashish seeks an interlocutory injunction so that his name remains on the list of candidates. He submits that the residency requirement is invalid, as it is discriminatory and therefore contrary to the Canadian Charter of Rights and Freedoms [the Charter].
[2]
I am dismissing Mr. Awashish’s motion. Even though he has shown a strong case on the merits, he failed to demonstrate that he would suffer irreparable harm if his motion for an interlocutory injunction is not granted immediately. Indeed, Mr. Awashish has an adequate remedy before the Opitciwan First Nation Appeal Board, which will allow him to raise his Charter claims.
I.
Background
[3]
Elections for the Conseil des Atikamekw d’Opitciwan are governed by an electoral code adopted by the community in 2005. Among other conditions, this code provides, in section 7.1.6, that all candidates must be [translation] “ordinarily resident in Opitciwan”
.
[4]
A general election has been called for September 10, 2019. “Mobile”
voting will be held at various locations on September 5 and 6 to allow members of the community who live there to vote.
[5]
Mr. Awashish is a member of the community, but he does not reside in Opitciwan. At the nomination meeting held on July 29, 2019, two members of the community nominated him for the position of Chief. The Electoral Officer then publicly advised Mr. Awashish that he did not meet the requirements of the Election Code with respect to residency in Opitciwan. Mr. Awashish asked the Electoral Officer to ignore this requirement, as it is contrary to the Charter.
[6]
The day after the nomination meeting, the Electoral Officer published an “unofficial”
list of candidates that included Mr. Awashish. Thereafter, in accordance with the Elections Code, the Electoral Officer sent voting kits to members of the community not residing in Opitciwan. These kits included a ballot bearing Mr. Awashish’s name.
[7]
However, on August 15, 2019, the Electoral Officer wrote to Mr. Awashish to inform him that he was withdrawing his name from the list of candidates for the position of Chief because he did not reside in Opitciwan. Mr. Awashish received this letter on August 19. Communications between counsel for the parties failed to resolve the dispute.
[8]
On August 28, 2019, Mr. Awashish brought an application for judicial review of the Electoral Officer’s decision to withdraw his nomination. On August 30, he brought this motion for an interlocutory injunction. In this motion, Mr. Awashish is seeking the interim suspension of the provision of the Election Code that contains the residency requirement, and an order requiring the Electoral Officer to reinstate his name on the list of candidates for the position of Chief for the election that is to be held over the next few days.
II.
Analysis
[9]
An interlocutory injunction is a temporary measure intended to preserve the rights of the parties until a decision is rendered on the merits. It is not a final resolution of the case. The analytical framework used by the courts to decide whether it is appropriate to issue an interlocutory injunction is well known. It takes into account the fact that such motions must often be decided on the basis of an incomplete evidentiary record and that a final resolution of the merits of the case cannot be reached in a short time frame.
[10]
This framework has been the subject of several decisions of the Supreme Court of Canada, including Manitoba (AG) v Metropolitan Stores Ltd, [1987] 1 S.C.R. 110 [Metropolitan Stores], RJR–MacDonald Inc v Canada (Attorney General), [1994] 1 S.C.R. 311 [RJR], and Harper v Canada (Attorney General), 2000 SCC 57, [2000] 2 S.C.R. 764 [Harper]. In a recent decision, the Court summarized the approach to be taken:
At the first stage, the application judge is to undertake a preliminary investigation of the merits to decide whether the applicant demonstrates a “serious question to be tried”, in the sense that the application is neither frivolous nor vexatious. The applicant must then, at the second stage, convince the court that it will suffer irreparable harm if an injunction is refused. Finally, the third stage of the test requires an assessment of the balance of convenience, in order to identify the party which would suffer greater harm from the granting or refusal of the interlocutory injunction, pending a decision on the merits.
(R v Canadian Broadcasting Corp, 2018 SCC 5, [2018] 1 S.C.R. 196, at paragraph 12, citations omitted) [CBC]
[11]
It stands to reason that the application of this framework is highly contextual and fact-dependent. Nor should it be believed that the three components of this framework are completely independent of each other: Robert J. Sharpe, Injunctions and Specific Performance (Toronto: Thomson Reuters, loose-leaf ed.) at paragraph 2.600 [Sharpe, Injunctions]; see also Mosaic Potash Esterhazy Limited Partnership v Potash Corporation of Saskatchewan Inc, 2011 SKCA 120, at paragraph 26.
[12]
In his memorandum of fact and law, the Electoral Officer submits that it would be contrary to the principle of the rule of law to issue an interlocutory injunction that would change electoral rules days ahead of an election. It is true that courts have generally been very reluctant to issue an injunction in such a context: see, in particular, Harper and the case law cited therein. More generally, courts are reluctant to grant interlocutory remedies in Charter litigation: see, in particular, Metropolitan Stores and RJR. Nonetheless, in exceptional circumstances, the principles of the rule of law and constitutionalism may require that such a remedy be granted, as was in the case in Law Society of British Columbia v Canada (Attorney General), 2001 BCSC 1593; Tłı̨chǫ Government v Canada (Attorney General), 2015 NWTSC 9; and National Council of Canadian Muslims v Québec (Attorney General), 2018 QCCS 2766.
[13]
This Court often hears motions for interlocutory injunctions in First Nations governance matters. The decisions in such cases provide useful guidance in exercising the Court’s discretion. However, it must be kept in mind that the specific facts of each case are of primary importance and that it is not always possible to transpose the solution adopted in one case to a different fact situation. I would add that in this field, the exercise of our discretion should also be guided by the principle of self-government: Gadwa v Joly, 2018 FC 568, at paragraph 71. In other words, I must assess whether the various courses of action open to me will facilitate decision-making by the First Nation itself.
[14]
That said, I will now proceed to analyse the three components of this analytical framework in turn.
A.
Prima facie case
(1)
General principles
[15]
In RJR, the Supreme Court stated that the “serious question to be tried”
criterion is a relatively low threshold (RJR, at page 337). The Court notes that a question is serious when it is neither frivolous nor vexatious.
[16]
However, in CBC, the Court altered this threshold where a mandatory interlocutory injunction is sought. Unlike a prohibitive injunction, which requires the defendant to refrain from doing something, a mandatory injunction directs the defendant to undertake a positive course of action. In these cases, a “strong prima facie case”
is required, meaning that
. . . upon a preliminary review of the case, the application judge must be satisfied that there is a strong likelihood on the law and the evidence presented that, at trial, the applicant will be ultimately successful in proving the allegations set out in the originating notice.
(CBC, at paragraph 7, emphasis in original)
[17]
In the case at bar, Mr. Awashish is not seeking to prevent the election from being held, which would be a prohibitive injunction. Rather, he is seeking an order forcing the Electoral Officer to take specific action, namely, to include his name in the list of candidates. This distinguishes this case from Jean v Swan River First Nation, 2019 FC 804, at paragraph 13 [Jean].
[18]
Even if I were wrong in characterizing the injunction sought as mandatory, this would not be a case where the relatively low threshold of a “serious question to be tried”
applies. In RJR, the Court recognized that, in certain cases, “the result of the interlocutory motion will in effect amount to a final determination of the action”
(RJR, at 338). In such cases, “a more extensive review of the merits of the case must be undertaken”
(RJR, at 339). In other words, when the judge hearing the merits of the case cannot undo what was done at the interlocutory stage, a strong prima facie case must be established.
[19]
The case of Toronto’s municipal election provides a useful example. In that case, the Ontario legislature introduced major changes to the rules governing Toronto’s city council elections just a few weeks before the election. Among other things, these changes reduced the number of councillors from 47 to 25. In ruling on a motion for an interlocutory injunction aimed at suspending these changes, the Ontario Court of Appeal stated that, in practice, the interlocutory injunction decision would be final and that it was necessary to be more demanding with respect to the first prong of the RJR framework: Toronto (City) v Ontario (Attorney General), 2018 ONCA 761, at paragraph 10.
[20]
In the case at bar, if I were to grant the injunction sought by Mr. Awashish, the election would be conducted with ballots that include his name. In practice, Mr. Awashish will obtain what he wants, and it is difficult to see how a hearing on the merits would be useful. I therefore conclude that Mr. Awashish must demonstrate a strong prima facie case.
(2)
Corbiere and its consequences
[21]
Mr. Awashish’s primary argument is that the residency requirement in the Election Code is discriminatory. In order to fully grasp the scope of this argument, it is useful to recall the main parameters of the debate.
[22]
A First Nation (or an “Indian band”
, to use the vocabulary of the Indian Act, RSC 1985, c I-5 [the Act]) is a body of Indigenous individuals who, in most cases, have Indian status. According to the Act, First Nation membership and Indian status are transmitted by descent. First Nation membership does not depend on a person’s residency. Thus, persons who meet the Act’s criteria may be members of a First Nation even if they do not reside on the First Nation’s reserve. Nevertheless, section 77 of the Act provides that only members of a First Nation who live on the reserve may vote in the First Nation’s council elections.
[23]
The rule provided for in section 77 became increasingly unsatisfactory as First Nation members settled off-reserve in greater numbers. Moreover, the provisions of the Act with regard to Indian status were amended in 1985 to remove certain discriminatory rules and reinstate persons who had lost status under these old rules. Therefore, an increasingly large proportion of First Nation members lived off-reserve and were deprived of their political rights by section 77.
[24]
In Corbiere v Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 [Corbiere], the Supreme Court of Canada held that section 77 was contrary to section 15 of the Charter and that its justification under section 1 had not been demonstrated. It is important to note, however, that the Court has not closed the door on all kinds of distinctions based on residency in the rules governing First Nation council elections. Thus, the Court stated, at paragraph 21:
We are satisfied that the restriction on voting is rationally connected to the aim of the legislation, which is to give a voice in the affairs of the reserve only to the persons most directly affected by the decisions of the band council. It is admitted that although all band members are subject to some decisions of the band council, most decisions would only impact on members living on the reserve.
[25]
However, since no effort was made in section 77 to balance the interests of on-reserve and off-reserve members, the Court held that it did not meet the minimal impairment test. Nevertheless, the Court suggested that certain schemes differentiating the rights of members on the basis of residency could be justified under section 1.
[26]
Since Corbiere, this Court has heard challenges to the validity of election codes that use distinctions based on residency. (I note that the Federal Court of Appeal held that the Charter applies to First Nation “custom”
election codes: Taypotat v Taypotat, 2013 FCA 192, at paragraphs 33 to 42, reversed on other grounds by Kahkewistahaw First Nation v Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548.)
[27]
It is not possible to infer any hard and fast rule from these judgments. In a number of cases, this Court struck down various forms of exclusion from the right to vote or the right to be a candidate based on residency: Clifton v Hartley Bay Indian Band, 2005 FC 1030, [2006] 2 FCR 24; Thompson v Leq'á:mel First Nation, 2007 FC 707; Joseph v Dzawada’enuxw First Nation (Tsawataineuk), 2013 FC 974; Cardinal v Bigstone Cree Nation, 2018 FC 822, [2019] 1 FCR 3. However, in Cockerill v Fort McMurray No. 468 First Nation, 2010 FC 337, the Court concluded that an election code that deprived off-reserve members of their right to vote was justified. (That decision was reversed on appeal, after the First Nation concerned conceded that its election code violated the Charter: [2011] FCJ No. 1736 (QL).) Finally, in Clark v Abegweit First Nation Band Council, 2019 FC 721 [Clark], the Court found that a residency requirement for the position of Chief was valid, while holding that a similar requirement for the position of Councillor was not. It appears that the discrepancy between these judgments can be explained by the evidence before the Court in each case, in particular with respect to the proportion of members living off-reserve in each case and whether a genuine process, within the First Nation concerned, had been followed in order to balance the interests of the two categories of members.
(3)
Application to Mr. Awashish’s situation
[28]
The arguments raised by Mr. Awashish to demonstrate the invalidity of the Electoral Officer’s decision to withdraw his nomination fall into two categories. First, Mr. Awashish submits that this decision breached procedural fairness. He then goes on to submit that this decision is based on a rule that is discriminatory and violates section 15 of the Charter, and which cannot be justified under section 1.
[29]
As I understand the procedural fairness argument, Mr. Awashish submits that his nomination had crystallized, so to speak, because the Electoral Officer did not refuse it immediately at the nomination meeting, or because the list of candidates was published, even though this list was [translation] “unofficial”
. At that point, the Electoral Officer was no longer able to withdraw his nomination, or at least he was unable to do so without giving him the opportunity to make submissions.
[30]
The Electoral Officer submits, rather, that he never accepted Mr. Awashish’s nomination but instead took a few days to analyze the situation, and that it was not until August 15, 2019, that he decided to reject Mr. Awashish’s nomination.
[31]
Whether the Electoral Officer acted lawfully depends on the interpretation of the Election Code and perhaps on evidence pertaining to the practice during past elections. It also depends on the scope of procedural fairness in the circumstances. Suffice it to say that the two parties have made arguments that are not frivolous. I therefore conclude that Mr. Awashish has demonstrated the existence of a serious question to be tried, but not a strong prima facie case.
[32]
In respect of the constitutional question, it must be kept in mind, as I stated earlier, that the Supreme Court has suggested that electoral systems which attempt to strike a balance between the interests of the various categories of members may be justified under section 1 of the Charter. In Clark, my colleague Justice Paul Favel validated in part such a system. Nevertheless, in most cases before this Court, restrictions on the right to vote and to be a candidate were held to be invalid. In the case at bar, while all members have the right to vote, only members living in Opitciwan may be candidates for councillor or chief positions. Accordingly, like my colleague Justice Ann Marie McDonald in Jean, I am prepared to find that there is a strong prima facie case.
[33]
I would note that in saying so, I do not intend to predict the outcome of the case on the merits. The First Nation did not provide any evidence of facts that could support a justification under section 1. I cannot, therefore, speculate on this point. The trial judge will have complete freedom to assess the evidence that will be presented to him or her and come to the appropriate conclusions.
B.
Irreparable harm
[34]
Irreparable harm is the second stage of the analytical framework. It is a question of determining whether the immediate intervention of the Court is necessary to protect the applicant’s rights while awaiting trial. In civil and commercial matters, irreparable harm has often been defined in terms of whether an award of damages following the trial could adequately compensate for the violation of the applicant’s rights. In public law, however, the awarding of damages is not the rule, and it is often necessary to adopt a broader view of what may constitute irreparable harm. Thus, in RJR, the Supreme Court defined irreparable harm as “harm which either cannot be quantified in monetary terms or which cannot be cured”
(RJR at page 341).
[35]
This Court has had frequent opportunities to examine what may constitute irreparable harm in the context of First Nations governance disputes. A number of decisions have concluded that the suspension or removal of a councillor or chief may constitute irreparable harm, owing to some of their consequences, such as the loss of the ability to exercise political power and the loss of prestige: Buffalo v Rabbit, 2011 FC 420, at paragraphs 34 to 36; Gabriel v Mohawk Council of Kanesatake, 2002 FCT 483, at paragraphs 26 to 30; Prince v Sucker Creek First Nation, 2008 FC 479, at paragraph 32. In Myiow v Mohawk Council of Kahnawake, 2009 FC 690, at paragraphs 19 to 23, the same considerations led the Court to conclude that there was irreparable harm in the context, like in this case, of the rejection of a nomination for an election. It should be noted, however, that the candidate in question was a sitting councillor who had challenged the lawfulness of his removal from office.
[36]
However, in other decisions, the courts have refused to conclude that there was irreparable harm when the election code of the First Nation provides for an effective recourse that ensures an adequate remedy for the person whose nomination was unfairly rejected: Jean, at paragraphs 20 and 21; Mclean v Tallcree First Nation, 2018 FC 962, at paragraph 33; Cachagee v Doyle, 2016 FC 658, at paragraph 9; Gopher v Saulteaux First Nation, 2005 FC 481, at paragraphs 23 to 26.
[37]
In the case at bar, Mr. Awashish submits that being unfairly excluded from the upcoming election constitutes irreparable harm that only the Court’s intervention can prevent. He submits that the breach of a Charter right, in and of itself, constitutes irreparable harm and that such harm is assumed whenever “public order legislation”
has been breached. I cannot give effect to these arguments. The Quebec Court of Appeal’s decision in Carrier c Québec (Procureur général), 2011 QCCA 1231, cited by Mr. Awashish does not deal with an interlocutory injunction, but with a class action. The principle referred to in that case is that when a public authority seeks to enforce a statute within its purview by way of an interlocutory injunction, it does not have to show irreparable harm: Constantineau c Saint-Adolphe-d’Howard (Municipalité), [1996] RDJ 154 (CA); see also Sharpe, Injunctions, at paragraph 3.265. On the contrary, when an individual seeks an interlocutory injunction, there is no basis for departing from the Federal Court of Appeal’s well-established rule that it is up to the applicant to demonstrate irreparable harm. See, in particular, Stoney First Nation v Shotclose, 2011 FCA 232, at paragraphs 48 and 51; Gateway City Church v Canada (National Revenue), 2013 FCA 126, at paragraphs 14 to 16.
[38]
Furthermore, the assessment of the irreparable nature of the alleged harm must take into account other recourses which were available to Mr. Awashish but which he chose not to exercise, and those he may still exercise if the elections are allowed to proceed without him as a candidate. Indeed, harm is by definition reparable if there is recourse that makes it possible to vindicate the underlying right and that provides adequate remedies. Also, the doctrine of exhaustion of remedies requires that an applicant pursue all adequate administrative remedies available to him or her prior to applying for judicial review. As I noted in Whalen v Fort McMurray No. 468 First Nation, 2019 FC 732, at paragraph 19, the doctrine of exhaustion of remedies improves respect for self-government, as it ensures that governance disputes are first dealt with by Indigenous decision-making processes.
[39]
Both the Electoral Officer and the council state that Mr. Awashish had an effective recourse. Chapter 19 of the Election Code provides for the establishment of an appeal committee. Any elector or candidate may challenge the results of an election. Upon receipt of a complaint, the appeal committee conducts an investigation and, if the complaint is founded, the committee may take all necessary measures, including ordering that a new election take place. Thus, after the election, Mr. Awashish could file a complaint on the basis that the rejection of his nomination was in violation of the Charter. If his complaint is allowed, the appeal committee could order a new election.
[40]
Furthermore, section 10.6 of the Election Code provides that any person whose nomination is withdrawn by the Electoral Officer may immediately bring that decision to the appeal committee. Although this provision is contained in a chapter dealing with the conduct of candidates during an election campaign, both the Electoral Officer and the council state that
Mr. Awashish could have immediately appealed the Electoral Officer’s decision to withdraw his nomination.
[41]
Relying on this Court’s decision in Perry v Cold Lake First Nations, 2016 FC 1320, Mr. Awashish replies that the appeal committee did not have jurisdiction to consider Charter arguments. Therefore, he would have no other way to assert his rights than to appear before this Court. However, the Electoral Officer and the council rely on Fort McKay First Nation v Laurent, 2009 FCA 235. In that case, the Federal Court of Appeal stated that First Nation appeal committees generally have jurisdiction to consider Charter arguments. At paragraph 66, Justice Sharlow wrote that the applicant in that case
could have challenged the decision of the Returning Officer to reject his nomination on the basis of sections 9.1.4, 9.1.6 and 9.1.8. His appeal could have relied on the ground stated in section 81.1.1 of the Election Code, specifically that the Returning Officer erred in her application of sections 9.1.4, 9.1.6 and 9.1.8 because the application of those provisions to Mr. Laurent resulted in a breach of his rights under the Charter and subsection 35(1) of the Constitution Act, 1982. The findings of fact and law that would have to be made by the appeal arbitrator to determine that ground of appeal are within the stated powers of the appeal arbitrator. . . .
[42]
Similarly, when it ruled on the appeal in Perry (Perry v Cold Lake First Nations, 2018 FCA 73, at paragraphs 45 to 48), the Federal Court of Appeal stated that First Nation electoral appeal committees are presumed to have jurisdiction over constitutional questions that come before them. The Court then stated that in the case under review, this presumption had been rebutted. I believe, however, that this decision must be read in light of the specific facts of the case: it appears that the electoral committee had, with respect to certain aspects of its decision, acted on its own initiative and that the order it had rendered was more akin to a complete rewrite of the Election Code than a mere declaration of invalidity.
[43]
In any event, in light of the position adopted by the Electoral Officer and the council before me and in the correspondence addressed to Mr. Awashish before he submitted this application, I have difficulty seeing how they could object to Mr. Awashish raising constitutional issues as part of a complaint he could file following the elections.
[44]
At the hearing, Mr. Awashish stated that the members of the appeal committee were perhaps not validly appointed at this time. I have no evidence to that effect. Mr. Awashish knew that the issue of the exhaustion of remedies would be raised by the respondents and could have adduced the necessary evidence.
[45]
I therefore conclude that Mr. Awashish has a recourse before the appeal committee, that this recourse will allow him to put forward his Charter arguments and that, accordingly, he did not demonstrate irreparable harm.
C.
Balance of convenience
[46]
The third component of the analytical framework is the balance of convenience. At this stage, the Court compares any inconvenience that may befall the plaintiff if the injunction is not granted with the inconvenience imposed on the defendant if the injunction is granted. In public law, the impact of granting or not granting the injunction on the public interest may also be taken into account (RJR, at 343–347). In particular, the courts normally consider that the public interest favours compliance with duly enacted legislation, even when their constitutional validity is challenged.
[47]
Having concluded that Mr. Awashish did not demonstrate irreparable harm, I see no need to discuss at length the balance of convenience.
[48]
It is enough to note that Canadian courts have generally been very wary of granting interlocutory remedies that invalidate provisions of election laws. The reason is very simple: in the electoral context, granting an interlocutory injunction is essentially equivalent to a final decision, without the Court being able to render a considered decision on the merits. After a brief overview of the relevant case law, the Supreme Court stated the following in Harper, at paragraph 11:
. . . [W]e are satisfied that the public interest in maintaining in place the duly enacted legislation on spending limits pending complete constitutional review outweighs the detriment to freedom of expression caused by those limits. To leave the injunction in place is to grant substantial success to the applicant Harper even though the trial has not been completed.
[49]
I must also take into account the fact that Mr. Awashish never sought to have the residency requirement invalidated or amended, that he apparently did not provide advance notice of his intention to apply for the position and that he brought his motion for an interlocutory injunction at the very last minute. Granting his motion would require the Electoral Officer to amend the list of candidates the day before the mobile poll and just a few days before the election itself. The fact that he waited until the very last moment to bring a motion is a factor that may be considered in assessing the balance of convenience: Cardinal v Cleveland Indians Baseball Company Limited Partnership, 2016 ONSC 6929, at paragraphs 69 to 73.
[50]
In sum, I find that granting the injunction sought would impose significant inconvenience on the Opitciwan First Nation and its members, while Mr. Awashish did not demonstrate the harm he would suffer.
III.
Conclusion
[51]
Given that Mr. Awashish failed to demonstrate irreparable harm, the motion for an interlocutory injunction will be dismissed.
[52]
As agreed at the hearing, the issue of costs is reserved. Mr. Awashish will have 30 days from the date of this order to serve submissions on this issue to the opposing party and to file them with the Court Registry. The respondents will have 10 days from the date that Mr. Awashish’s submissions are served to do the same. The parties are asked to take into account my decision on costs in Whalen v Fort McMurray No. 468 First Nation, 2019 FC 1119.
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