Woodhouse v. Canada (Aboriginal Affairs and Northern Development Canada), 2013 FC 1055

Date: 20131021

Docket:

T-1351-13

Citation: 2013 FC 1055

Ottawa, Ontario, October 21, 2013

PRESENT:    The Honourable Mr. Justice O'Reilly

REASONS FOR JUDGMENT AND JUDGMENT

I.          Overview

[1]               In 2011, the applicants were elected as Chief and councillors of Pinaymootang First Nation. On an appeal of the election, and after an investigation into allegations of corruption, the Minister of Aboriginal Affairs and Northern Development Canada removed the applicants from office and disqualified them from running again for two years. Based on an interim order, the applicants have been reinstated and permitted to run in the next election on October 23, 2013.

[2]               The applicants raised a number of grounds challenging the Minister’s decision. However, as I am satisfied that the decision must be overturned because it was out of keeping with the legal framework governing the Minister’s role, I will confine my reasons to that issue alone.

II.        The Legal Framework

[3]               An elector or candidate can appeal an election if he or she believes that “there was a corrupt practice in connection with the election,” there was a violation of the law “that might have affected the result,” or a candidate “was ineligible” for election (s 12, Indian Band Election Regulations, CRC, c 952 (1978) – see Annex for enactments cited).

[4]               In response to an appeal, the Minister can initiate an investigation “in such manner as he deems expedient” (s 13). After the investigation, if it “appears” that there was wrongdoing, the Minister must make a report to the Governor in Council (s 14). If the Minister reports that he or she is “satisfied” that the grounds of appeal have been made out, the Governor in Council may set aside the election (s 79, Indian Act, RSC 1985, c I-5).

[5]               If, in the Minister’s “opinion,” a person holding an elected office is “guilty” of corrupt practice, the Minister may declare the person’s position to be vacant (s 78(2)(b)(iii)) and declare the person ineligible to be a candidate in future elections for up to six years (s 78(3)).

[6]               Under the Act and Regulations, therefore, there are clearly defined roles for the Minister and the Governor in Council. The Minister must make a report to the Governor in Council if there is an appearance of corrupt practice. If the Minister is satisfied that a corrupt practice has taken place, the Governor in Council may set aside the election. If the Minister declares a particular person guilty of corrupt practice, the Minister can remove the guilty party from his or her office, and prevent the person from running in future elections for up to six years.

III.       Was the Minister’s decision made in keeping with the legal framework?

[7]               The Minister can only remove a person from office or disqualify a person running for election after having declared the person guilty of corrupt practice. Without that finding, the Minister has no authority to remove or disqualify a person.

[8]               Here, the Minister did not declare that anyone was guilty of corrupt practice. In his decision, the Minister merely stated that there was “sufficient information to support a finding that the corrupt practice of vote buying occurred in connection with” the election of the applicants and “to connect” the applicants to it. The Minister did not specifically attribute responsibility to any particular individuals for the alleged wrongdoing and made no finding of guilt. Yet, the Minister issued declarations removing the applicants from office and disqualifying them from future elections. In my view, he did not have that authority.

[9]               The applicants argue that the Minister could make a finding of guilt only if he was satisfied on a criminal standard – proof beyond a reasonable doubt – that the applicants were involved in corrupt practice. In my view, s 78 is clearly not a criminal provision. It provides administrative sanctions for participation in corrupt practice. “Guilt” is used in its broad sense to connote fault or responsibility, rather than criminal culpability. The sanctions – removal from office and ineligibility – are not punitive in the criminal sense. While serious, they represent administrative measures within the regulatory framework of the statute and regulations, not criminal penalties (see McEwing v Canada (Attorney General), 2013 FC 525, at para 69).

[10]           The Minister argues that his decision was based on the civil standard of the balance of probabilities. I agree that that would be the appropriate standard of proof in this context. However, it is not clear what, if any, standard the Minister applied.

[11]           In a briefing note to the Minister, departmental staff recommended that the Minister declare the applicants guilty of corrupt practice. However, the actual wording of the decision, as noted above, does not go that far. The decision is consistent with “an appearance” of corrupt practice, which is not the proper standard of proof under s 78.

[12]           In my view, the ordinary civil standard of proof is most apt for s 78. It is not a criminal provision. But it certainly requires more than the mere appearance of impropriety, which is sufficient only to trigger a report to the Governor in Council under s 14 of the Regulations.

[13]           The Minister’s declaration of guilt must, therefore, be based on his being satisfied on the balance of probabilities that an elected official has committed a corrupt practice. Only then can a person be removed from office and rendered ineligible for future elections.

[14]           Counsel for the Minister referred to cases where courts appeared to conclude that a threshold of proof below the civil standard applied to decisions under s 78. In my view, despite appearances, those cases do not support the Minister’s position.

[15]           In 2011, Justice Douglas Campbell overturned a decision of the Minister because the wrong evidentiary standard had been applied in Keeper v The Queen¸ 2011 FC 307. In that case, however, the Minister was acting under s 14 of the Regulations where only an appearance of impropriety is required for the Minister to make a report to the Governor in Council. Instead, in refusing to make a report, the Minister appeared to apply a standard of a balance of probabilities. Justice Campbell did not make any reference to s 78 or the standard of proof required for the exercise of the Minister’s authority under that provision.  On appeal, the Federal Court of Appeal found the case to be moot and expressed no views on the soundness of Justice Campbell’s decision (2012 FCA 90).

[16]           Subsequently, Justice John O’Keefe relied on Keeper for the proposition that the standard of proof under s 14 of the Regulations is a mere appearance of wrongdoing in Dedam v Canada (Attorney General), 2012 FC 1073. Justice O’Keefe also concluded that, on the facts of that case, the Minister’s decision under s 78(2)(b)(ii) of the Act removing certain persons from elected office was reasonable, as it was based on sufficient cogent evidence of corrupt practice on the part of those individuals. It does not appear that the question of the standard of proof under s 78(2)(b)(ii) was specifically in issue.

[17]           Here, the Minister made no declaration of the applicants’ guilt and did not state what, if any, standard of proof he was applying. The Minister simply stated that there was sufficient information that a corrupt practice had taken place during the election of the applicants. He made no declaration that the applicants were personally responsible for, or guilty of, anything.

[18]           In the circumstances, therefore, I must conclude that the Minister’s decision was out of keeping with the legal framework governing his role under the Indian Act. On that basis, I will grant this application for judicial review and order the Minister to reconsider whether the applicants should be removed from office and prevented from running in future elections.

IV.       Conclusion and Disposition

[19]           Before removing the applicants from office and disqualifying them from running for re-election, the Minister was required to conclude on the balance of probabilities that they were guilty of corrupt practice. He did not make that finding. Therefore, he had no legal authority to issue the declarations he did. I must, therefore, allow this application for judicial review and order the Minister to re-determine the matter.

[20]           The applicants are entitled to costs. Should the parties be unable to agree on the quantum, I will consider any written submissions on that issue filed within 20 days of this judgment.

JUDGMENT

THIS COURT’S JUDGMENT is that:

1.      The application for judicial review is allowed and the matter returned to the Minister for redetermination;

2.      The applicants are entitled to costs; in the absence of an agreement on the quantum, written submissions may be filed within 20 days.

“James W. O’Reilly”

Annex

FEDERAL COURT

SOLICITORS OF RECORD

PLACE OF HEARING:

                                                            Winnipeg, Manitoba

DATE OF HEARING:

                                                            October 16, 2013

REASONS FOR JUDGMENT AND JUDGMENT:

                                                            O'REILLY J.

DATED:

                                                            October 21, 2013

APPEARANCES:

SOLICITORS OF RECORD: