Bull v. Canada (Attorney General), 2002 FCT 374

Date: 20020405

Docket: T-1895-00

                                                           Neutral Citation: 2002 FCT 374

BETWEEN:                                                                                                                 

                                            JOLINE BULL

                                                                                                   Applicant

                                                    - and -

                   ATTORNEY GENERAL OF CANADA and

                               RUSSELL THREEFINGERS

                                                                                           Respondents

                                  REASONS FOR ORDER

HANSEN J.

[1]    This is an application for judicial review of the decision of the Louis Bull Election Appeal Board dated September 22, 2000.

[2]    Joline Bull ("the applicant") seeks an order of certiorari to quash the decision of the Louis Bull Appeal Board, an order of mandamus to require a proper hearing into the matter, and a writ of quo warranto as against the respondent Russel Threefingers ("respondent").

Facts

[3]    The Louis Bull Tribe is an Indian Band as defined by the Indian Act, R.S.A. 1985, c. I-5. Its reserve is located near the hamlet of Hobbema, Alberta. The Chief and eight councillors of the Louis Bull Tribe are elected by the members of the Band according to band custom. Tribal Council elections are governed by the Louis Bull Tribe No. 439 Declaration of Customs ("the Regulation").

[4]    The applicant stood as a candidate for the position of councillor in the Louis Bull Tribe election held on February 24, 2000. She was not elected. In the same election, there was a three-way tie for the eighth councillor position. The respondent was ultimately elected in a run-off election held on March 2, 2000.

[5]    Subsequently, the applicant received a copy of a letter dated March 17, 1999 addressed to the Chief and Council from Al Caesar, Chief of Police for the Louis Bull Police Service. The letter indicates that, in response to Council's request for criminal record checks on candidates who ran for election in February 1999, a certain procedure should be followed in order to maintain the integrity of the Canadian Police Information Centres ("CPIC") system. The letter indicates that the release of any CPIC information will not be made unless the subject of the query provides written consent in the form of a criminal record release agreement. However, the letter goes on to state:

[t]he only information I can give you at the present time on the candidates is that the following individuals appear to have convictions that fall under the Elections regulations that would not allow them to run for office.

[6]    The name Rusty Threefingers appears below.

[7]                 In a letter dated March 22, 2000 delivered to Geraldine Hill, Returning Officer for the Louis Bull Tribe, the applicant appealed the election of the respondent on the basis of her belief that the respondent had a criminal record which would disqualify him from holding the office of Councillor for the Louis Bull Tribe. The applicant's letter indicates that she was a candidate in the election and that she had reasonable grounds to believe that Rusty Threefingers was ineligible to be a candidate.

[8]                 In her letter, the applicant enclosed a list of convictions for the respondent which she attests was given to her by Bison Security.

[9]                 On March 28, 2000, Ms. Hill advised the applicant by letter that her appeal was dismissed. The letter states:

Please be advised that I have attended at the Louis Bull Police Service with Mr. Rusty Threefingers and the Police Chief, Mr. David Joyes ran a ‘CPIC' which confirms that Mr. Rusty Threefingers is eligible to run for Council. In fact, the attachment to your letter is not official or valid, is inaccurate and does not coincide with official ‘CPIC' records.

As the offences of which Mr. Threefingers has been convicted do not preclude him from running for Office, Mr. Russell Threefingers is a proper candidate for a Council position and, as such, your Appeal is unfounded and therefore dismissed.

[10]            On April 19, 2000, the applicant delivered a letter dated March 31, 2000 to Ms. Rose Mackinaw. The letter is addressed to the members of the Appeal Board: Ms. Rose Mackinaw, Ms. Florence Whitebear, and Mr. Alex Piche. In her letter, the applicant notes that she has been advised by counsel that Ms. Hill as a Returning Officer does not have jurisdiction to decide her appeal and only the Appeal Board has that jurisdiction. The applicant asks that the Appeal Board consider and decide her appeal as required by the Regulation.

[11]            No response was received from the Appeal Board. Approximately five months later, on September 18, 2000, counsel for the applicant wrote to the Appeal Board demanding a ruling in respect of the applicant's appeal. A few days later, counsel for the applicant received correspondence from the Appeal Board stating:

In response to the above noted letter, please be advised that Ms. Bull's letter did not reach the level of the appeals's committee. Reason being that the letter was delivered to the electoral officer, Ms. Geraldine Hill, who in turn responded to Ms. Bull's appeal letter...

According to the Louis Bull Election regulations, an appeal must be given to the electoral officer, who in turn reviews its contents and if it is deemed valid, it is then forwarded to the Appeals Committee for its decision.

Unfortunately, Ms. Bull's appeal letter did not warrant it to be forwarded to our attention.

Trusting this is sufficient.

[12]            The applicant filed her application for judicial review on October 12, 2000. The respondent did not file an affidavit in these proceedings.

[13]            Section 2 of the Regulation provides that to be eligible for candidacy a candidate must not have been convicted of an indictable offence in the ten years prior to the election nomination. Section 21 states that any candidate may appeal to the Appeal Board the eligibility of a person nominated to be a candidate within thirty days of the election. Section 22 sets out the duties of the Appeal Board and requires it to make a decision within fourteen days of the receipt of the appeal.

[14]            The applicant submits the Appeal Board failed to consider and to decide her appeal as required by the Regulation. This submission, in my view, is amply supported by the Appeal Board's letter dated September 22, 2000. However, at the hearing of the judicial review, counsel for the applicant fairly conceded that the remedies of certiorari and mandamus would have no practical effect since the respondent's term of office expired at the end of March 2001.

[15]            Despite this concession, the applicant urges the Court to support and uphold the Regulation that has been adopted by the Louis Bull Tribe by issuing a writ of quo warranto as against the respondent. The applicant bases her argument on two submissions.

[16]            First, the applicant states that the Regulation bars any candidate convicted of an indictable offence from holding office. She submits the listing of convictions available to her indicates that the respondent has been convicted of indictable offences. Further, she submits that the correspondence dated March 17, 1999 indicates that the respondent, in the Chief of Police's view, appears to be barred from eligibility by "the wording of the Regulation".

[17]            The applicant argues that the respondent could have answered the application for quo warranto. Since the respondent has not provided any evidence in this proceeding stating that he has no criminal record that would bar him from holding office, the applicant submits that an adverse inference should be drawn against the respondent with respect to his criminal record. In this regard, the applicant relies on the Ontario Court of Appeal decision in Bernardi et al. v. Guardian Royal Exchange Assurance Co. et at., [1979] I.L.R. 1-1143 at 385 (Ontario C.A.).

[18]            Second, relying on the decision of the Supreme Court of Canada in [1979] 2 S.C.R. 650">The Queen v. Wheeler, [1979] 2 S.C.R. 650, the applicant submits the Court may issue a writ of quo warranto notwithstanding that the term of the office holder has expired.

[19]            The respondent advanced a number of arguments one of which is particularly persuasive. The respondent argues that the expiry of the term of office being challenged renders the application for a writ of quo warranto moot. The respondent points to the cross-examination of the applicant on her affidavit where she confirmed this fact. Further, counsel for the respondent maintains that since there is no evidence before the Court that the respondent was elected to a second term of office, the decision in [1979] 2 S.C.R. 650">Wheeler, supra, does not assist the applicant.

[20]            In [1979] 2 S.C.R. 650">Wheeler, supra, the applicant sought a writ of quo warranto to remove the respondent from the office of mayor by reason of certain contracts entered into by the city while the respondent was mayor of the city. The Court of Appeal dismissed the appeal from the refusal to grant the writ of quo warranto shortly before the respondent's term of office expired. A few days later, the respondent was re-elected for a second term as mayor. Before the Supreme Court of Canada, the respondent argued that the lis or the foundation for the proceeding dissolved on the expiration of the respondent's initial term of office. Estey J., speaking for the Court stated at pages 663 to 664:

... By reason of the generally short term of office of a municipal office holder, the writ of quo warranto would frequently not be available to the complaining citizenry, if this submission were to prevail, as the office holder would have completed the term of office in question before the matter was finally disposed of by the courts. If the term of office under challenge had indeed terminated by the effluxion of time or otherwise, the order would not, in the ordinary sense, be unenforceable, but rather would require no enforcement. However, where the condition giving rise to the ineligibility continues into a second term of office, the respondent's proposition would entail a recommencement of the proceedings. To hold in such circumstances that the issue had become moot upon the re-election, thus requiring a re-institution of proceedings, would be in many cases an effective denial of the right of the community as represented by the applicant to have the courts of the land determine an issue fundamental to the workings of the democratic process. Where as here, the initial condition has carried over into the second term by the continued existence of unperformed portions of contracts and where like contracts have been entered into between the respondent and the municipality during the second term, a renewal or re-institution of the proceedings is not, in my view, required. This Court in the past has not rejected an appeal simply because, on the facts, the issue has, by the time it reached this Court, become moot. International Brotherhood of Electrical Workers, Local Union 2085 et al. v. Winnipeg Builders' Exchange et al.

[21]            While it is clear that an applicant should not be placed in the position of having to commence new proceedings where the basis of the challenge to the eligibility of the office holder has been carried into a second term, in the present case, the applicant's factual foundation for a writ of quo warranto is deficient. There is no evidence before the Court that the respondent was re-elected following the expiration of the term of office being challenged by the applicant.

[22]            Accordingly, the application for judicial review is dismissed with costs to the respondent, Russell Threefingers.

                                                                                "Dolores M. Hansen"            

                                                                                                      J.F.C.C.                      

Ottawa, Ontario

April 5, 2002