Docket: T-1938-21
Citation: 2022 FC 1601
Ottawa, Ontario, November 25, 2022
PRESENT: The Honourable Madam Justice Strickland
| BETWEEN:
|
| RODERICK WIGWAS
|
| MARY POILE
|
| Applicants
|
| and
|
| GULL BAY FIRST NATION, WILFRED KING, ANTHONY ESQUEGA,
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| ANTHONY KIN, GERALDINE KING, HUGH KING, KENNETH KING,
|
| KEVIN KING, HECTOR MURCHINSON, LEOLA PENAGIN, LAWRENCE
|
| SHONIAS, HUBERT WIGWAS
|
| Respondents
|
JUDGMENT AND REASONS
[1] This is an application pursuant to s 31 of the First Nations Elections Act, SC 2015 c 5 [FNE Act] contesting the November 20, 2021 election for Chief and Council of Gull Bay First Nation [Election]. The Applicants allege that the Election was conducted in a manner that contravened the FNE Act or the First Nations Elections Regulations, SOR/2015-86 [Regulations] and that these contraventions likely affected the results of the Election. As such, they seek an order setting aside the Election and directing that a new election take place with a different electoral officer.
Overview
[2] The Respondent, Gull Bay First Nation, is a participating First Nation in, and conducts its elections pursuant to, the FNE Act.
[3] The Applicants are both members of Gull Bay First Nation. Mr. Roderick Wigwas was a candidate for Chief in the Election.
[4] The facts surrounding the Election are largely undisputed.
[5] By Band Council Resolution dated April 13, 2021, Chief and Council fixed the Election date (later postponed to November 20, 2021) and, as required by s 2(1) of the Regulations, appointed an electoral officer. This was Mr. Dennis Robinson [Electoral Officer].
[6] Pursuant to s 5(1)(a) of the Regulations, the Electoral Officer posted a public notice of the nomination meeting [Notice of Nomination Meeting]. This advised that the Nomination Meeting would be held on Saturday, October 2, 2021. Section 5(1)(b) of the Regulations required the Electoral Officer to send, by mail and email, the Notice of Nomination Meeting, a voter declaration form, and a form on which the elector may request a mail-in ballot, to the addresses provided under s 4(1), being a list provided by the First Nation to the electoral officer setting out the last known postal address and email address of each elector who does not reside on the reserve.
[7] Section 5(2) of the Regulations sets out the required content of the Notice of Nomination Meeting. Significant to this matter, s 5(2)(h) requires the Notice of Nomination Meeting to include “
a statement that the elector may permit the electoral officer to release their address to the candidate”
. It is acknowledged by the Respondents that, through inadvertence on the part of the Electoral Officer, the Notice of Nomination Meeting did not contain this statement.
[8] The Nomination Meeting took place on October 2, 2021. Six candidates were nominated for the position of Chief, including the Applicant, Mr. Wigwas. Thirty eight candidates were nominated for the position of Councillor.
[9] The Electoral Officer subsequently posted a Notice of Election, as required by s 14 of the Regulations, and prepared mail-in ballot packages, which are required by s16(1) to be sent to every elector who made a written request for same. The content of the mail-in packages is also set out in that section.
[10] An advance poll was held on Saturday, November 13, 2021, followed by the main poll on Saturday, November 20, 2021. The results showed 595 valid ballots cast for the positions of Chief and for ten Councillors. Mr. Wilfred King was the successful candidate for Chief, receiving 321 votes, 163 votes more than the runner-up candidate who received 158 votes. Mr. Wigwas placed third, receiving 69 votes of the 595 votes cast.
[11] Section 24(1) of the Regulations states that, subject to s 24(2), after the completion of the counting of the votes, the electoral officer must, in the presence of everyone present, declare to be elected the candidates having the highest number of votes. Section 24(2) of the Regulations requires a recount of votes where “the difference between the number of votes of a candidate with the highest number of votes – who would otherwise be declared elected – and another candidate for the same position is five or fewer”
. A recount must commence within 24 hours after the announcement by the electoral officer that a recount is necessary (s 24(3)).
[12] The initial vote count triggered a recount with respect to the tenth councillor position as Mr. Lawrence Shonias received 187 votes and the candidate with the next highest number of votes, Ms. Jocelyn Ledger, received 182 votes.
[13] However, not immediately realizing the need for a recount, as required by s 24(1) of the Regulations, the Electoral Officer made a declaration of the elected candidates on November 21, 2021, announcing the election of Mr. Shonias and the other successful candidates. It was not until the candidates and the scrutineers had left the polling station in the early morning of November 21 that the Electoral Officer realized that s 24(2) had been triggered and a recount was required.
[14] The recount was ultimately scheduled for 6 p.m. on Monday, November 29, 2021. The recount confirmed Mr. Shonias’ election to the position of Councillor, having received 187 votes. The recount found that Ms. Ledger had received 183, rather than 182 votes.
[15] The Applicants filed their Notice of Application contesting the Election on December 20, 2021.
Relevant Legislation
First Nations Election Act, SC 2014 c 5
(as it was from 2021-08-18 to 2022-06-09)
Contested Elections
Means of contestation
30 The validity of the election of the chief or a councillor of a participating First Nation may be contested only in accordance with sections 31 to 35.
Contestation of election
31 An elector of a participating First Nation may, by application to a competent court, contest the election of the chief or a councillor of that First Nation on the ground that a contravention of a provision of this Act or the regulations is likely to have affected the result.
…
Court may set aside election
35 (1) After hearing the application, the court may, if the ground referred to in section 31 is established, set aside the contested election.
First Nations Elections Regulations, SOR/2015-86
Addresses
4 (1) At least 65 days before the day on which an election is to be held, the First Nation must provide the electoral officer with a list setting out the last known postal address and email address of each elector who does not reside on the reserve.
Provision of electors’ names and addresses
(2) On the request of a candidate for election as chief or councillor, the electoral officer must provide the candidate with a list of the names of electors and the address of any elector who has consented to have their address released to the candidates.
…
Nomination Meeting
Content of notice
5 (2) A notice of a nomination meeting must contain the following information:
…
(h) a statement that the elector may permit the electoral officer to release their address to the candidates;
…
Declaration
24 (1) Subject to subsection (2), after the completion of the counting of the votes, the electoral officer must, in the presence of everyone present, declare to be elected the candidates having the highest number of votes.
Five or fewer votes
(2) If the difference between the number of votes of a candidate with the highest number of votes — who would otherwise be declared elected — and another candidate for the same position is five or fewer, the electoral officer must establish a date, time and place for a recount of the votes cast for those candidates and announce that date, time and place in the presence of everyone present.
Time of recount
(3) A recount must commence within 24 hours after the announcement by the electoral officer that a recount is necessary.
Issues
[16] The issues in this matter can be framed as follows:
Did the conduct of the Election contravene the FNE Act or the Regulations;
If so, was any contravention likely to have affected the result of the Election;
If so, should the Court exercise its discretion to set aside the Election.
Legal backdrop
[17] I have previously set out the legal backdrop to applications made pursuant to s 31 of the FNE Act in Flett v Pine Creek First Nation, 2022 FC 805, as follows:
[15] Section 31 of the FNE Act contains two elements that must both be met to successfully contest an election for chief or a councillor:
i. There must be a contravention of the FNE Act or the Regulations; and
ii. The contravention is likely to have affected the result of the election.
[16] Pursuant to s 35, the Court may, if these elements are established, set aside the contested election.
[17] Jurisprudence considering an application brought under s 31, and the potential setting aside of the contested election under s 35(1) (or similar provisions found in other legislation), has established the following general principles:
- A contravention can occur through an act of either commission or omission by an elector, an electoral candidate or an electoral officer (Bird v Paul First Nation, 2020 FC 475 [Bird] at para 29; O’ Soup v Montana, 2019 SKQB 185 [O’Soup] at para 27);
- The onus, or legal burden of proof, is on the applicant to establish that a contravention of the FNE Act or the Regulations has occurred and that the contravention was likely to have affected the result of the election [Whitford v Red Pheasant First Nation, 2022 FC 436 [Whitford] at para 75; Bird at para 28-30; McNabb v Cyr, 2017 SKCA 27 [McNabb] at para 23); Opitz v Wrzesnewskyj, 2012 SCC 55 [Opitz] at para 52; Papequash v Brass, 2018 FC 325 [Papequash] at para 33; O’Soup at para 29). “Likely” has been held to be more akin to ‘probable’ than to ‘possible’ or ‘may have affected the result’ (Paquachan v Louison 2017 SKQB 239 [Paquachan] at para 24; O’Soup at para 117);
- The standard of proof for establishing that the requirements of s 31 have been met is the balance of probabilities (Good v Canada (Attorney General), 2018 FC 1199 at para 49 [Good]; Papequash at para 33; McNabb at para 23; O’Soup at para 29, 92; Whitford at para 75). If an applicant leads sufficient evidence to establish on a balance of probabilities that a contravention occurred that likely affected the outcome of the election, then the evidentiary burden may shift to the respondent to refute the alleged contravention or to establish that the contravention likely did not affect the election result (Opitz at para 61;Paquachan at para 23; O’Soup at para 92; McNabb at para 23);
- There is a “presumption of regularity”, that is, the Court shall presume that all necessary procedures were followed in the conduct of a challenged election, until the Applicant proves otherwise (Opitz at para 169; Bird at para 29; O’Soup at para 91; McNabb at para 26). In any election, irregularities in the election process are bound to occur in some form (Opitz at para 46; Paquachan at para 19). Such administrative errors should not result in an election being set aside unless it is established that those irregularities are likely to have affected the result of the election (Paquachan at para 19; Papequash at para 33; McNabb at para 36; Good at para 49; Whitford at para 77);
- Not every contravention will justify overturning the election. The considerations may differ depending on whether the contravention involves technical procedural questions concerning the conduct of the election or fraud or corruption, such as vote buying. For example, in cases involving technical procedural questions, a mathematical approach such as the “magic number” test may be appropriately utilized to establish the likelihood of a different outcome. However, in cases where an election has been corrupted by fraud bringing the integrity of the electoral process into question, annulling the election may be justified regardless of the proven number of invalid votes (Good at para 54; Papequash at para 34; McEwing v Canada (Attorney General), 2013 FC 525 [McEwing] at paras 81-82; Bird at para 32; Gadwa v Kehewin First Nation, 2016 FC 597 [Gadwa] at paras 88-89; Whitford at para 78);
- Even if the applicants have satisfied both statutory requirements, the Court ultimately retains discretion as to whether to order a new election. The exercise of this discretion includes situations involving fraud or other forms of corruption. This is because annulling an election has broad and serious consequences. It disenfranchises not only those whose votes were disqualified, but every elector who cast a vote; increases the potential for future litigation; undermines the certainty in the democratic outcomes; and, may lead to disillusionment and voter apathy (Bird at para 31; Paquachan at para 20, 25; Good at para 55; Opitz at para 48; O’Soup at paras 31, 117, 123; McNabb at para 45; McEwing at paras 78, 82).
[18] It is against this legal backdrop that I will now consider the parties’ submissions and the evidence.
Did the conduct of the Election contravene the FNE Act or the Regulations?
[19] In their Notice of Application, the Applicants made numerous allegations asserting breaches of the Regulations. However, in their written submissions they advanced only two grounds upon which they contest the Election: the failure to provide the consent form for the release of elector addresses in the mail-in-nomination package, contrary to s 5(2)(h) of the Regulations; and, the failure to conduct a recount within 24 hours of the vote, contrary to s 24 of the Regulations. I would also note that the Applicants did not adduce any evidence pertaining to the other allegations contained in the Notice of Application. Accordingly, the Applicants have not met their burden of demonstrating that there was a breach of the FNE Act or the Regulations with respect to those other allegations (Bird v Paul First Nation, 2020 FC 475 at para 28 [Bird]; Good v Canada, 2018 FC 1199 at para 49).
[20] The Respondents concede that there were technical and procedural contraventions of ss 5(2)(h) and 24 of the Regulations during the Election process.
[21] Thus, the first requirement of section 31 of the FNE Act has been met.
Were the contraventions likely to have affected the result of the Election?
Applicants’ position
[22] The Applicants submit that but for the contravention of s 5(2)(h) of the Regulations – the failure to include in the mail-in packages a consent form for the release of elector addresses to candidates – the candidates would have had an opportunity to campaign to the electors and that this would have impacted the results of the Election. In his affidavit, Mr. Wigwas further submits that current Chief and Council had an unfair advantage as they had access to the mailing addresses of the electors, and therefore could campaign to them.
[23] With respect to s 24 of the Regulations, the Applicants submit that a recount was not conducted in the manner prescribed and that “[f]ailure to have a recount of the votes is sufficient to support a finding that the results were affected”
.
Respondents’ position
[24] The Respondents submit that the Applicants have not identified – let alone established – any connection between the contraventions and the result or outcome of the Election.
[25] Rather, the record demonstrates that the contraventions were mere procedural irregularities that had no bearing in the result as (a) there is no evidence of any elector being unable to nominate or vote for the candidate of their choice; (b) as in past Gull Bay First Nation elections, no person or candidate requested that the Electoral Officer provide them with elector addresses (per s 4(2) of the Regulations); (c) the recount was held in a public and transparent manner, with notice to the affected candidates and electors; and (d) the Electoral Officer and Gull Bay First Nation made special efforts to ensure a safe, orderly, and transparent election during an ongoing public health crisis (COVID-19 pandemic), resulting in increased voter turnout as compared to the previous Gull Bay First Nation elections.
[26] Accordingly, the Respondents submit that the Applicant has failed to discharge their burden under s 31 of the FNE Act.
Analysis
Section 5(2)(h) of the Regulations
[27] In my view, the Applicants have not demonstrated, on a balance of probabilities, that the contravention of s 5(2)(h) of the Regulations likely affected the outcome of the Election. The Applicants have not adduced any evidence to support their assertion.
[28] The affidavit of Mr. Wigwas refers to the Electoral Officer’s Handbook – First Nation Elections Act, which states that electoral officers are to prepare a list of off-reserve electors who consented to having their names released to the candidate. Mr. Wigwas states that this did not happen. Similarly, he states that the consent for release of elector addresses was not included in the mail-out package and that this contravenes s 5(2)(h) of the Regulations. This is conceded by the Respondents. However, Mr. Wigwas provides no evidence to establish that the contraventions likely affected the outcome of the Election, which is the second element that must be met in any application brought under s 31 of the FNE Act.
[29] In his affidavit, Mr. Wigwas states that, as a candidate, he did not receive any correspondence from the Electoral Officer providing him with any off-reserve community members’ address. I note, however, that s 4(2) of the Regulations states that, on the request of a candidate for election as chief or councillor, the electoral officer must provide the candidate with a list of the names of electors and the address of any elector who has consented to have their address released to the candidates. There is no evidence from Mr. Wigwas indicating that he, or anyone else, ever made such a request.
[30] The affidavit of Ms. Poile, sworn on April 4, 2022, is silent on this issue.
[31] The affidavit of the Electoral Officer, affirmed on May 4, 2022, describes his education and training and states that he has acted as the electoral officer for the Gull Bay First Nation in every election held since 1998. He describes the Election process. He states that when preparing the Notice of Nomination Meeting and the mail-in nomination package, he drew on his own internal database of election forms, which came from an Aboriginal Affairs and Northern Development Canada precedent. He inadvertently used an old precedent that did not include a statement that the elector may permit the electoral officer to release their address to the candidate and he did not notice the missing statement until October 2021, after the nomination meeting had already taken place. The Electoral Officer states that no person or candidate requested that he provide them with elector addresses. And, in the more than 20 years that he has acted as an electoral officer for Gull Bay First Nation, he has never received a request for elector addresses.
[32] The Respondents also filed the affidavit of Ms. Elizabeth Boon, sworn on May 3, 2022, a special advisor to the Gull Bay First Nation Chief and Council, who describes her duties as carrying out various administrative functions for the First Nation. Ms. Boon states that she worked closely with the Electoral Officer with respect to the Election and describes her role and responsibilities in that regard. This included ensuring that the Electoral Officer had the most accurate as possible contact information for Gull Bay First Nation voters, the process for which she described. She deposes that at no time did the list of eligible voters include addresses and at no time during the Election process did any candidate, nominee or Gull Bay First Nation member ask her to provide them with voter addresses. Nor was she aware of any such request being made to any other Gull Bay First Nation staff. Further, in her experience – she acted in a similar role for the 2010, 2015 and 2016 elections – Gull Bay First Nation members are generally very protective of their privacy and are hesitant to share contact information. During the three previous elections for which she acted as special advisor, she did not recall ever having received or heard of a request for elector addresses by a candidate, nominee or Gull Bay First Nation member.
[33] It is of note that there is also no evidence from Mr. Wigwas, or at all, that would, for example, address the number of eligible off-reserve electors or suggest that candidates would have campaigned to off-reserve electors if they had had their addresses or that they had done so in the past. Nor is there any evidence from any off-reserve voter speaking to the omission of the consent form the mail-in package and what, if any, impact this had on their vote.
[34] And while Mr. Wigwas also states in his affidavit that the then Chief and Council had an unfair advantage, as they had the privilege of having access to the mailing addresses of the electors allowing them to campaign to all electors, there is no evidence that prior Chief and Council did in fact have access to the addresses or that they utilized such access to campaign.
[35] I acknowledge that Mr. Wigwas stated, when appearing before me, that he strongly believes that the outcome of the Election would have been different if the Notice of Nomination Meeting had included a statement that the elector could permit the Electoral Officer to release their address to the candidates. He also stated that there was no provision within the Regulations to raise this as a concern during the lead up to the Election. However, in my view, in these circumstances and given the absence of supporting evidence – including of any effort by Mr. Wigwas or others to even informally raise the concern with the Electoral Officer or requesting access to the addresses – the Applicants have not demonstrated that the contravention of s 5(2)(h) of the Regulations would likely have affected the results of the Election.
Section 24 of the Regulations
[36] The Applicants have also not met their evidentiary burden with respect to the contravention of s 24 of the Regulations, as they merely assert that its contravention is, in and of itself, enough to support a finding that the results of the Election were affected. They have not suggested that, had the votes been recounted within 24 hours, the outcomes would be any different or provided any evidence in that regard.
[37] Mr. Wigwas’s affidavit is silent as to s 24 of the Regulations other than making the general statement that the Electoral Officer did not “perform the correct steps of a recount after the vote was announced”
. Ms. Poile’s affidavit describes the events surrounding the declaration of the winners of the election on November 21, 2021, and that a recount was not held within 24 hours as required by s 24 of the Regulations. Further, that the recount was not held until November 29, 2021. While she asserts generally that the Electoral Officer did not execute his role and responsibilities as he did not perform the correct steps of a recount after the vote was announced, Ms. Poile’s affidavit does not to speak to how the delay in holding the recount may have effected the outcome of the Election.
[38] The Electoral Officer’s affidavit states that the vote count concluded at about 2 a.m. on Sunday, November 21, 2021. He then made the declaration of the outcome. At that time, he had not noticed the difference in votes between Mr. Shonias and Ms. Ledger, which served to trigger a recount under s 24 of the Regulations. This came to his attention at about 3 a.m. when he and his staff were packing up and a staff member noticed the difference in the votes and alerted him to the need for a recount. By that time, the candidates and scrutineers had already left for the evening. The Electoral Officer and his staff agreed to get some rest and address the issue later that morning. He describes the efforts made to reach Mr. Shonias and Ms. Ledger, which efforts were not successful until late in the following week. He states that, in order to give enough time to prepare for the recount, it was scheduled for Monday, November 29, 2021. He describes that process and the recount. The recount confirmed Mr. Shonias’ election as Councillor with 187 votes. The recount also showed that Ms. Ledger had received 183, rather than 182 votes.
[39] Ms. Boon’s affidavit also describes the efforts to contact Mr. Shonias and Ms. Ledger and to plan for the logistics of the recount, particularly as COVID-19 cases were then surging, as well as the conduct of the recount.
[40] While it is conceded by the Respondents that on November 21, 2021, the Electoral Officer did not establish a date, time and place for a recount and announce this in the presence of everyone present, and that the recount did not commence within 24 hours after the announcement by the Electoral Officer that a recount was necessary, the Applicants have provided no evidence to suggest that this technical contravention of s 24(2) and (3) of the Regulations was likely to impact the outcome of the Election. For example, there is no evidence that ballots were destroyed preventing a recount or of any irregularity in how the ballots were handled or how the recount was conducted.
[41] Based on the evidence describing the process that was effected and the outcome of the recount, I cannot conclude that the breach had any impact whatsoever on the Election results.
[42] I would also note that the two candidates impacted by the recount have not raised any concerns that the results of the Election would be any different but for the contravention of s 24 of the Regulations.
[43] Based on my findings above, I am dismissing this application.
Should the Court exercise its discretion to set aside the Election?
[44] Given my conclusion above, I need not address this issue.
[45] However, and in any event, as set out above this Court has held that it will be more difficult to annul an election in cases such as this, involving procedural irregularities, as opposed to cases of corruption (Bird at paras 31-32). This is because annulling an election has broad and serious consequences.
[46] As stated in in Paquachan v Louison, 2017 SKQB 239:
20 … Too lightly annulling an election has sweeping consequences as described in [Opitz v Wrzesnewskyj, 2012 SCC 55] and summarized by Justice Schwann in McNabb. First annulling an election, although necessarily disenfranchising electors whose votes were rightly and properly disqualified, disenfranchises the votes of every person who was qualified to vote and who voted without attendant contravention of voting procedures. Annulling an election because of improper procedures is understandably necessary, but annulment comes with the self-evident result that all properly cast votes are set aside. Second, annulling an election increases the potential for litigation and undermines the certainty of outcome which has inherent value in a democracy. Third, a subsequent and new election will always be coloured by the perceived outcome of the election which preceded it and may lead to disillusionment or voter apathy.
(See also O’ Soup v Montana, 2019 SKQB 185 at para 31)
[47] In these circumstances, even if I had not found that the Applicants had failed to establish that contraventions of the Regulations likely impacted the result of the Election, I would have declined to exercise my discretion to overturn the Election.
Costs
[48] In their submissions, both parties requested costs. When appearing before me the Respondents submitted that costs based on Tariff B, Column III would be appropriate.
[49] I appreciate that the Applicants are self-represented and, when appearing before me, expressed the view that in bringing this application they are seeking to uphold democracy and are also less able to afford the challenge than the Respondents are in responding to it. However, many of the matters spoken to by Mr. Wigwas at the hearing of this matter had no relevance to the issues pursued in this application for judicial review. Nor, in my view, is this the type of governance dispute that gives rise to a broader public interest concern.
[50] Pursuant to Rule 400 (1) of the Federal Courts Rules, SOR/98-106, the Court has full discretionary power over the amount and allocation of costs and the determination of by whom they are to be paid. In exercising that discretion, the Court may consider the factors set out in Rule 400(3) which include: the result of the proceeding; the importance and complexity of the issues; whether the public interest in having the proceeding litigated justifies a particular award of costs; and, any other matter that the Court considers relevant. The Court may fix all or part of any costs by reference to Tariff B and may award a lump sum in lieu of, or in addition to, any assessed costs (Rule 400(4)).
[51] In these circumstances, and as the Respondents have been successful, they are entitled to costs which shall be based on Tariff B, Column III.
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