Docket: T-193-15
Citation:
2015 FC 1271
Ottawa, Ontario, November 16, 2015
PRESENT: The
Honourable Mr. Justice Harrington
|
BETWEEN:
|
|
SHANE CRAWLER
|
|
Applicant
|
|
and
|
|
WESLEY FIRST
NATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
The relationship between councillor, or
ex-councillor as the case may be, Shane Crawler, on the one hand, and the Chief
and the other band councillors of the Wesley First Nation on the other has been
strained for years.
[2]
In February 2013, he was suspended, with pay, in
circumstances which are not before this Court.
[3]
In August 2013, an information was laid by an
officer of the Royal Canadian Mounted Police that between March 2011 and
October 2012 Mr. Crawler had, by fraudulent means, defrauded the Wesley First
Nation of $25,600 contrary to s 380(1) of the Criminal Code.
[4]
On 8 December 2014, in full knowledge of the
criminal charges, the Wesley First Nation re-elected Mr. Crawler as a
councillor.
[5]
By Band Council Resolution dated 19 January
2015, Mr. Crawler was either constructively disqualified (as he would have it) or
had his rights as councillor restricted (as the respondent would have it).
After referring to the indictable offence charge against Mr. Crawler and
stating that the Chief and Council had a fiduciary obligation to the Wesley
First Nation to manage its affairs and assets, it was resolved that although
Mr. Crawler was entitled to receive councillor severance pay for the years 2010
to 2014, $25,600 was deducted therefrom to offset the losses incurred by the Band
as a result of his handling of its finances and assets. He was not to, in any
way, administer the Band’s finances or assets, except for the receipt of his
ongoing councillor pay, and authorized expenses, pending the resolution of all
criminal charges relating to the alleged fraud. He was not entitled to act or
vote in any matter concerning the Wesley First Nation’s assets or budgetary
matters “pending the resolution of all criminal actions
related to the alleged defrauding” and the administration of the area of
the Wesley First Nation where Mr. Crawler resided was to report directly to the
Chief.
[6]
It is this Band Council Resolution, and only
this one, which is the subject of this judicial review.
[7]
In June 2015, Mr. Crawler was disqualified as a
councillor on the grounds that he missed three consecutive council meetings
without lawful excuse. That resolution is the subject of a separate judicial
review under our court docket T-1095-15.
[8]
On 6 July 2015, the indictment against Mr.
Crawler was withdrawn by the Crown. However, he has not been paid the $25,600
withheld from his severance pay for the years 2010-2014.
[9]
On 7 September 2015, Mr. Crawler sued the Wesley
First Nation in the Provincial Court of Alberta for the said $25,600, with
interest.
[10]
This recital of events which occurred after the
enactment of the 19 January 2015 resolution, the one which is before this
Court, is necessary, as the Wesley First Nation takes the position that the
entire matter is now moot. Mr. Crawler was never constructively disqualified as
a councillor, but was actually disqualified under a separate resolution which
is the subject of a separate judicial review yet to be heard. The $25,600
should not be returned because it is the subject of an action in the Provincial
Court of Alberta which will be resolved by a trier of fact after hearing
witnesses.
[11]
For his part, Mr. Crawler’s position is that he
was not given proper notice of the Chief and Council meeting of 19 January
2015, so he was unable to prepare for it and defend himself. Consequently, the
resolution has to be quashed. However, he is prepared to have the Provincial
Court of Alberta decide the fate of the $25,600 in dispute. He also invited me
to make some obiter comments which he thinks might help him in the
judicial review that is coming down the road.
I.
Background
[12]
The Wesley First Nation is one of three First
Nations that comprise the Stoney Nakoda First Nations. The Stoney Nakoda First
Nations is an Indian Band under the Indian Act. It governs itself by
band custom, which has been reduced to writing, at least in part, rather than
by the provisions of the Act. The Wesley First Nation comprises three
areas which are not contiguous: Morley, Eden Valley and Big Horn. Although
every qualified elector may vote for the Chief and all Councillors, one councillor
must reside in Big Horn. That was Mr. Crawler.
II.
Decision
[13]
I have come to the conclusion that Mr. Crawler
was not given proper notice that his rights and duties as a councillor and his
financial affairs were on the agenda for the 19 January 2015 Chief and Council
meeting. Therefore, I declare that the Band Council Resolution is invalid.
However, I will not order that the $25,600 in question be returned to Mr.
Crawler. It is more appropriate that that matter be dealt with in the
Provincial Court of Alberta.
III.
The Facts
[14]
On 11 January 2015, Mr. Crawler received an
email and text message from Norma Jean Roberts that there would be a council
meeting on 19 January 2015 at the offices of Doug Rae. Mr. Rae is the senior
partner of the law firm acting for the Wesley First Nation in this matter. No
one has suggested that having a meeting at Mr. Rae’s office was unusual.
[15]
Ms. Roberts was, at the time, Chief Executive
Officer and Chief Financial Officer of the Wesley First Nation. Mr. Crawler asked
Ms. Roberts if he needed to have a lawyer present. He recalls that she said no.
Ms. Roberts has no recollection of any such conversation. According to Mr.
Crawler, he asked because he knew at some point his severance pay had to be
dealt with. In my opinion, nothing turns on whether or not this conversation
took place.
[16]
As was usual, the agenda was only handed out at
the opening of the meeting. There were three items: a) opening prayers; b) Big
Horn Councillor matter; and c) updates from the administration.
[17]
According to Mr. Crawler, the agenda did not put
him on notice that he was going to be constructively disqualified to sit as a
councillor and that the $25,600 in question would be set off against his
severance pay. There was still the matter of his earlier suspension.
[18]
According to a draft of the minutes of the meeting,
Mr. Crawler agreed to the resolution. However, he never signed it, while the
Chief and the other councillors did.
[19]
One particularity of the meeting is that Mr. W.
Tibor Osvath was present. Mr. Osvath is a lawyer at Rae and Company and
actually drafted the resolution following the meeting.
[20]
The draft minutes are somewhat unusual in that
portions thereof have been redacted allegedly on the grounds of
solicitor-client privilege. Mr. Osvath, who represented the Wesley First Nation
at the hearing of this judicial review, can hardly say his client was Mr.
Crawler. The whole matter smells of a set up.
IV.
Analysis
[21]
As counsel for Mr. Crawler points out, had Mr.
Crawler been given proper notice and consulted him (as he had with respect to
the earlier suspension), he would have suggested that Mr. Crawler take the
position at the meeting that any claim of the Wesley First Nation was time
barred. It is not for me to comment one way or the other, except to say that
Mr. Crawler should have had the opportunity to raise the point.
[22]
Natural justice requires that Mr. Crawler have
had an opportunity to fully present his defence. It has been said that even God
did not remove Adam and Eve from the Garden of Eden without a full hearing (The
King v. the Chancellor, & c., of Cambridge, (1723) 1 Stra. 557; Cooper
v. The Wandsworth Board of Works (1863), 143 E.R. 414 at p. 420; and Matondo
v Canada (Minister of Citizenship and Immigration), 2005 FC 416, 44 Imm LR
(3d) 225).
[23]
The respondent argues that this is not a case of
no notice being given, or of secret meetings held behind Mr. Crawler’s back.
That may well be true, but once you are over the line, you are over the line.
[24]
One need go no further than to consider the
decision of the Supreme Court in Cardinal v Kent Institution, [1985] 2
SCR 643, [1985] SCJ No 78 (QL). The issue there was that of procedural fairness
with respect to disciplinary proceedings within a penitentiary. It was held
that Mr. Cardinal did not get a fair hearing.
[25]
As to lack of notice, Mr. Justice LeDain said at
paragraph 21:
… With great respect, I do not think it is
an answer to the requirement of notice and hearing by the Director, as
suggested by Macdonald J.A., that the appellants knew as a result of their
appearance before the Segregation Review Board why they had been placed in
segregation. They were entitled to know why the Director did not intend to act
in accordance with the recommendation of the Board…
[26]
In this particular case, Mr. Crawler was
attending the meeting as a councillor, not as someone who knew an intended
decision was pending.
[27]
Mr. Justice LeDain added at paragraph 23:
…I find it necessary to affirm that the
denial of a right to a fair hearing must always render a decision invalid,
whether or not it may appear to a reviewing court that the hearing would likely
have resulted in a different decision. The right to a fair hearing must be
regarded as an independent, unqualified right which finds its essential
justification in the sense of procedural justice which any person affected by
an administrative decision is entitled to have. It is not for a court to deny
that right and sense of justice on the basis of speculation as to what the
result might have been had there been a hearing.
[28]
The failure to provide adequate notice disposes
of the matter. It is not necessary, and would be inappropriate, to decide that
he was constructively disqualified to act as a councillor, as the election
by-law calls for disqualification in the event of a criminal conviction, not a
charge.
[29]
There was no evidence before me as to Mr.
Crawler actually having been barred from any council meeting, or which allows
me to take into consideration his argument that there is a financial aspect to
any band resolution, which is why he missed the three meetings which are the
subject of an ongoing application for judicial review under Court docket number
T-1095-15.
[30]
The Chief and Band Councillors all have a
fiduciary duty to the Wesley First Nation at large. Nothing stated herein
should be taken as defining or restricting the extent of that fiduciary duty.
Even Mr. Crawler concedes that it would have been open to the Chief and the other
councillors to ensure that he could not sign cheques or handle Wesley First
Nation money while these particular charges were outstanding.
[31]
Finally, judicial review remedies are
discretionary in nature. In the circumstances, I consider it appropriate to simply
declare that the application for judicial review is well founded, without
ordering any remedy (MiningWatch Canada v Canada (Fisheries and Oceans),
2010 SCC 2, [2010] 1 S.C.R. 6).
[32]
The legality of the 19 January 2015 resolution
will be dealt with in the upcoming judicial review in this Court and the status
of the $25,600 is better dealt with in the Provincial Court of Alberta.
Email this Content