Date:
20050617
Docket:
T‑518‑05
Citation: 2005 FC 863
BETWEEN:
THE COUNCIL OF THE MALECITES OF VIGER FIRST NATION
(hereinafter referred to as the Council)
AUBIN JENNISS in his capacity as a member of the Council
MARTINE BRUNEAU in her capacity as a member of the Council
PIERRE NICOLAS in his capacity as a member of the Council
ERNEST DANIEL NICOLAS in his capacity as a member of
the Council
Applicants
v.
JEAN GENEST, in his capacity as Grand Chief
of the Malecites of Viger First Nation
and
THE HONOURABLE ANDY SCOTT, in his capacity as
Minister of Indian and Northern Affairs Canada
Respondents
Let the revised
transcript attached hereto of the reasons for order that I delivered at the
hearing, held at Montréal, Quebec, on June 8 and 9, 2005, be filed pursuant
to section 51 of the Federal Courts Act, R.S.C. 1985, c. F‑7.
“Yvon Pinard”
Judge
OTTAWA, ONTARIO
June 17, 2005
Certified true
translation
François Brunet, LLB, BCL
At Montréal, June 9, 2005
THE
HONOURABLE MR. JUSTICE YVON PINARD:
All right, I am
ready to render my decision. As of this moment, Mr. Stenographer, what I am going to say will
constitute my reasons which shall be filed in the record.
I shall begin
by explaining why we are here; it is because this hearing is being held
pursuant to the order of the Prothonotary. It is an order that is very
specific, requiring the respondent Jean Genest to appear before this Court
today, yesterday that is, to hear evidence relating to acts that are specific
and that follow, that he allegedly committed, and with which he is charged, and
to raise the defences he may have to avoid being held in contempt of court and
being punished under the rules.
The
Prothonotary set out, in paragraphs (a) to (i), the specific facts that are all
preceded by the following words: “of having knowingly and intentionally
disobeyed the order of April 14, 2005_ ... in
failing to take forthwith certain measures ... in refusing other things.
However, each
of those paragraphs, each of the charges which I must decide, include the
words... I must decide whether Mr. Genest has “knowingly and intentionally disobeyed the
order of April 14, 2005_ in regard to each of the acts set out in
the Prothonotary’s order.
Now, that order
refers to the order of Mr. Justice Noël, dated April 14, 2005, which includes,
for example, an important provision destined to restore the status quo as of
February 20, 2005. I agree that this passage must be interpreted and that it
should not be read in isolation from the context of the order as a whole, which
clearly states the need for the parties to work together, in good faith, in
cooperation to restore order in the First Nation. Suffice it to refer to the
following paragraph from page 10 in the order of Mr. Justice Noël:
[translation] Having
noted the importance of the presumption in favour of the elected members and
the duty of the members of a band council to respect and abide by the rule of
law, the Court asks the members of the First Nation band council (the four
applicants and the Grand Chief) by order to work together and resolve the
matters that are submitted to them under the Act, the regulations and custom,
in the interests of the First Nation;
And it can be
seen that the greatest concern of Mr. Justice Noël, as per the order, is the interests of
the First Nation and the necessity, in a conflict situation, that the Elected
members work together in good faith. And it is not just the case that one side
must do something, while the members of the other side cross their arms and
wait. Both sides must work together. And as to the criticisms that are
specifically made here against the respondent, I must assess them in the
context of the order of Mr. Justice Noël, which calls for the cooperation of all
the Elected members.
And in the
context of the evidence that is before me, I am not persuaded that there has
been all the necessary cooperation to ensure that those matters be administered
on both sides in the best way or in the best interests of the First Nation.
Now, having said that, Rule 469 provides that a finding of contempt
shall be based on proof beyond a reasonable doubt. It is clear, therefore, that
I have a duty to be satisfied beyond a reasonable doubt that the Grand Chief,
Jean Genest, knowingly and intentionally disobeyed the order dated April 14,
2005, as is indicated by the order underlying this hearing in which all of you
have just participated.
In this case,
in my assessment of the relevant evidence, you have seen the extent to which I
have gone to follow the testimony of each person and sometimes to intervene _ sometimes to test the individual’s good faith,
for example, when I asked Mr. Genest if, spontaneously, he was prepared to
change certain things; the purpose was not to render an order requiring him to
do it, because that is not what I have to do if there is no finding of
contempt; but I wanted to find out, in the light of his spontaneous reaction,
whether he was in good faith or not, if he was well-intentioned or not. In any
event, it did help me assess the credibility of his explanations.
Several
witnesses, I stated this openly, in the case, for example of, one minute, not
all, I don’t want to hurt anyone but there is one about whom I said openly that I
had been impressed by her testimony... Ms. Caron, yes, a credible and honest
witness; ... I have not found in this case that there were any dishonest
witnesses, who were trying to mislead the Court, on either side.
So, as a result
of my assessment of the relevant evidence, both oral and written, that evidence
leaves me with a reasonable doubt as to whether the respondent Jean Genest
consciously and intentionally disobeyed the order rendered on April 14, 2005 by
my colleague, Mr. Justice Noël, in this case.
Without
necessarily endorsing all of the actions, sometimes clumsy, of Grand Chief
Genest, in the exercise of his expressed desire to comply with the order of Mr.
Justice Noël, particularly in respect of the regular attendance in the
administrative centre of the First Nation of persons not directly employed by
the Council, in respect of the control he exercises over access to that centre
and in respect of his so-called provisional mode of management of the affairs
of the First Nation, and I take into account the context. I take into account
the atmosphere of extraordinary tension that has existed since at least March
of 2005, both politically and administratively, especially politically.
I also take
into account the flagrant lack of communication between all of the interested
parties covered by this order. Because _ let us bear this in mind _ the order
of Mr. Justice Noël was not addressed only to the respondent, Jean
Genest. It was also addressed to the four council members, council chiefs. It
seems to me, as I said earlier, that the order calls for the cooperation of
everyone, requiring of all the interested parties, and not only Mr. Genest,
that certain things be done or that certain acts be abstained from. And given
the context _ the communication of the parties has not
been restored _ it is very hard to determine who is
primarily responsible, who is more to blame. But it is in that context that I
must decide whether there has been disobedience, if he has knowingly and
intentionally disobeyed the order in question.
So I am saying that I have taken into account the state of
extraordinary tension that has continued to prevail after Mr. Justice Noël has rendered
his order and that I have taken into account the flagrant lack of communication
between the parties that has persisted after that order. And I have also taken
into account how important it was that something be done to manage without
interruption the important affairs of the First Nation. Because, once again, it
is the interests of the First Nation that must prevail according to the order
of Mr. Justice Noël, and that is what I have in mind as well.
So, given that
context as a whole, and according to my understanding of the events, I am not
persuaded, once again, beyond a reasonable doubt, of the guilt of the Grand
Chief in this case. It should be borne in mind that I have to make a
determination (and I am now in that process) in the context of proceedings of a
very special nature. A contempt of court has been alleged; this is not a
request for mediation. Thank God, there is going to be a mediation process
before this Court, which is scheduled for June 20, a mediation in which Mr.
Genest clearly stated he was prepared, and eager, to participate. So that is
encouraging; but to the extent that the alleged contempt of court is concerned,
well, I am aware that I am not resolving the conflict in the First Nation...
that is not the purpose of these proceedings, either. So I must dismiss the
motion.
In view of all
the circumstances, about which I have just spoken, I do so without costs.
Accordingly,
the formal order is that the motion for contempt is dismissed, without costs.
Finally, I
thank counsel for their submissions and the Court is adjourned.
********************
I, the undersigned, DANIEL MASSÉ, certify
pursuant to my oath of office that the preceding pages are and contain the
accurate and precise transcription of my notes, in compliance with the law.
AND I HAVE SIGNED
DANIEL MASSÉ
Official Stenographer
********************
Certified
true translation
François Brunet, LLB, BCL
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-518-05
STYLE OF CAUSE: THE COUNCIL
OF THE MALECITES OF VIGER
FIRST NATION et al. v. JEAN GENEST et al.
PLACE OF
HEARING: Montréal, Quebec
DATE OF
HEARING: June
8 and 9, 2005
REASONS FOR ORDER: The Honourable Mr. Justice
Pinard
DATE OF REASONS: June 17, 2005
(Delivered from the bench on June 9, 2005)
APPEARANCES:
Pierre Méthot FOR
THE APPLICANTS
Paul-Yvan Martin
Édith Fortin FOR THE RESPONDENT
JEAN GENEST
Alain Dumas
Tania Hernandez FOR
THE RESPONDENT THE MINISTER OF INDIAN AND NORTHERN AFFAIRS CANADA
SOLICITORS
OF RECORD:
Martin Camirand
Pelletier FOR THE APPLICANTS
Montréal, Quebec
Reinhardt Bérubé Fortin FOR
THE RESPONDENT JEAN GENEST
Sainte-Foy,
Quebec
Turgeon, Lavoie FOR
THE RESPONDENT JEAN GENEST
Québec, Quebec
John H. Sims,
Q.C. FOR THE RESPONDENT THE MINISTER OF
Deputy Attorney
General INDIAN AND NORTHERN AFFAIRS CANADA
of Canada
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