Docket: T-740-15
Citation:
2015 FC 1258
Ottawa, Ontario, November 9, 2015
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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ROBB CAMPRE
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Applicant
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and
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FORT MCKAY
FIRST NATION
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
On April 10, 2015, the Fort McKay First Nation
held a general election to appoint the members of its council. Under the
Election Code of the Fort McKay First Nation [the Election Code], the council
consists of one Chief and four Councillors.
[2]
Robb Campre was an unsuccessful candidate for
council in the general election. He appealed the outcome of the election under
the Election Code. In his Notice of Appeal, Mr. Campre made the following
allegations:
The corrupt
election practice was that numerous persons (43) from Fort McKay, were flown to
Edmonton or drove from Fort McMurray into Edmonton where they stayed at the
Chateau Nova and/or Chateau Louis (paid for by or on behalf of Fort McKay First
Nation Chief) and were observed to be voting at the Edmonton polling station.
Following voting these persons from Fort McKay were attending an event paid for
by or on behalf of Fort McKay First Nation Chief at the Chateau Louis across
the street from the Chateau Nova where the voting was held.
[3]
Mr. Campre’s appeal was heard by Frank R. Foran,
QC, who was appointed as the Election Appeal Arbitrator [the Arbitrator]. The
Arbitrator found that Mr. Campre had fallen “far short” of demonstrating a
corrupt election practice as alleged in the Notice of Appeal.
[4]
Mr. Campre has brought an application for
judicial review of the Arbitrator’s decision pursuant to s 18.1 of the Federal
Courts Act, RSC 1985, c 41. For the reasons that follow, I have found that
the Arbitrator reasonably concluded that Mr. Campre did not adduce sufficient
evidence to support an inference that the general election was marred by a
corrupt election practice. The application for judicial review is therefore
dismissed.
II.
Background
[5]
On April 10, 2015, the same day as the Fort
McKay First Nation’s general election, an organization called Public Interest
Alberta held a celebration in Edmonton of the life of former Chief Dorothy
McDonald. Ms. MacDonald was the first woman to become Chief of the Fort McKay
First Nation, and is regarded by the First Nation as someone who served her
community with great distinction during a period of enormous change. A multi-media
presentation with music called “On the River” was developed in her honour and
performed at the Chateau Louis in Edmonton.
[6]
Numerous individuals from the Fort McKay First
Nation travelled to Edmonton to attend the celebration. Many of these
individuals also voted in the Fort McKay First Nation’s general election at a
polling station in Edmonton located directly across the street from the Chateau
Louis.
[7]
As a result of the general election, Jim Boucher
was re-elected as Chief. He received 215 votes. The other candidate for Chief, Cecilia
Fitzpatrick, received 188 votes. The four Councillors elected were Raymond
Powder with 239 votes, Gerald Gladue with 179 votes, Crystal McDonald with 163
votes, and Mary Peggy Lacorde with 160 votes. Mr. Campre received 91 votes and
was not elected.
[8]
The Arbitrator heard Mr. Campre’s appeal on
April 29, 2015. Mr. Campre submitted his own affidavit and that of his sister,
Ms. Annette Campre, and both testified in person. The Fort McKay First Nation
did not call any witnesses, but submitted three documents from Public Interest
Alberta’s website to demonstrate that the Fort McKay First Nation was neither a
sponsor nor a supporter of “On the River”.
[9]
In a decision dated May 4, 2015, the Arbitrator
rejected Mr. Campre’s appeal on the ground that he had not presented sufficient
evidence to support an inference that a corrupt electoral practice had occurred.
III.
The Election Code
[10]
A candidate or an elector who voted in the
election may appeal on the basis of one or more of five enumerated grounds in s
81.1 of the Election Code. Mr. Campre appealed under s 81.1.5:
81.1.5 a candidate
was guilty of a corrupt election practice or benefited from and consented to a
corrupt election practice.
[11]
The Election Code defines a “corrupt election
practice” as follows:
1.1.10 “corrupt
election practice” means
1.1.10.1
attempting or offering money or other valuable consideration in exchange for:
1.1.10.1.1 an
elector’s vote
[12]
Under the Election Code, the Arbitrator had the
following powers:
88.1.1 to determine questions of law arising
in the course of the appeal hearing;
88.1.2 to rule on any objections made in the
appeal hearing;
88.1.3 to order production of documents
which are material and relevant to the appeal;
88.1.4 to determine the procedure to be
followed having regard for fairness and equality between the parties to the
hearing;
88.1.5 to determine the manner in which
evidence is to be admitted and the appeal arbitrator is not bound by rules of
evidence, and, within the limits prescribed by subsection 84.2 has the power to
determine admissibility, relevance and weight of any evidence;
88.1.6 to determine the time, place, and
date of the appeal hearing; and
88.1.7 to determine whether the appeal
hearing is open to members and who may or may not attend the appeal hearing.
[13]
The Arbitrator did not have the power:
88.2.1 to subpoena
any witness or compel any person to give evidence at an appeal hearing
excepting that the returning officer is a compellable witness; and
88.2.2 to order any relief not specifically
permitted by this Code.
IV.
Issues
[14]
This application for judicial review raises the
following issues:
A. Are affidavits containing evidence that was not before the
Arbitrator admissible in this application for judicial review?
B. What is the appropriate standard of review?
C. Was the Arbitrator wrong to dismiss the appeal due to insufficient
evidence?
V.
Analysis
A.
Are affidavits containing evidence that was not
before the Arbitrator admissible in this application for judicial review?
[15]
Mr. Campre and the Fort McKay First Nation both
filed affidavit evidence that was not before the Arbitrator.
[16]
Mr. Campre filed his own affidavit, in which he
deposed, among other things, that he had spoken to Don Bouzek, who operates
Ground Zero Productions and produced “On the River”.Mr. Campre swore that Mr.
Bouzek had told him that the Band Council had provided tickets to more than 200
people, and had paid for the transportation and accommodation of those who
attended the performance. Mr. Campre also swore that Dwayne Grandjambe, a
member of the Fort McKay First Nation, was paid $1,500 to vote for Jim Boucher
and to put a campaign sign in front of his house.
[17]
The Fort McKay First Nation filed the affidavit
of Mr. Bouzek. Mr. Bouzek described the information attributed to him in Mr.
Campre’s affidavit as “completely inaccurate”. He
deposed that the Fort McKay First Nation had nothing whatsoever to do with the
performance of “On the River” in Edmonton on April 10, 2015. Mr. Bouzek had no
knowledge of anyone being provided with tickets or transportation and hotels
for the performance.
[18]
Counsel for Mr. Campre cross-examined Mr. Bouzek
on his affidavit, and the transcript of the cross-examination was filed with
the Court. In his cross-examination, Mr. Bouzek acknowledged that there had not
been much “pick-up” of tickets for the April 10, 2015 performance of “On the
River”, and that he was subsequently informed by Mr. Campre that the Fort McKay
First Nation had invited people to attend.
[19]
The Fort McKay First Nation also filed the
affidavit of Dayle Hyde, a member of the Fort McKay First Nation and the
daughter of former Chief McDonald. Ms. Hyde deposed that the Fort McKay First
Nation, its Chief and Councillors, had nothing whatsoever to do with the April
10, 2015 performance of “On the River” in Edmonton, and that they did not pay
for any travel, accommodation or other expenses for anyone attending the
performance.
[20]
Finally, the Fort McKay First Nation filed the
affidavit of Mr. Grandjambe. Mr. Grandjame deposed that the information
attributed to him by Mr. Campre was false, and that he was not paid or offered
any money by anyone to put a sign by his house or to vote for any particular
candidate.
[21]
As a general rule,
in an application for judicial review the evidentiary record before the Court
is restricted to the evidentiary record that was before the Arbitrator (Association of Universities and Colleges of Canada v Canadian
Copyright Licensing Agency (Access Copyright), 2012
FCA 22 [Association of Universities and Colleges] at para 19). The essential
purpose of judicial review is the review of decisions, not the determination,
by trial de novo, of questions that were not adequately canvassed in
evidence at the tribunal or trial court (Association of Universities and Colleges
at para 19, citing Gitxsan Treaty Society v Hospital Employees’ Union,
[2000] 1 FC 135 (FCA) at pages 144-45; Kallies v Canada, 2001 FCA 376 at
para 3; and Bekker v Canada, 2004 FCA 186 at para 11).
[22]
As the Federal Court of Appeal held in Association
of Universities and Colleges at para 20, “[t]here
are a few recognized exceptions to the general rule against this Court
receiving evidence in an application for judicial review, and the list of
exceptions may not be closed. These exceptions exist only in situations where
the receipt of evidence by this Court is not inconsistent with the differing
roles of the judicial review court and the administrative decision-maker.” Three exceptions recognized by the Court of
Appeal are (i) an affidavit that provides general background in circumstances
where that information might assist the court in understanding the issues
relevant to the judicial review; (ii) an affidavit that is necessary to bring
to the attention of the judicial review court procedural defects that cannot be
found in the evidentiary record of the administrative decision-maker; and (iii)
an affidavit that highlights the complete absence of evidence before the
administrative decision-maker when it made a particular finding.
[23]
In this case, the additional affidavit evidence submitted
by the parties is primarily directed towards questions that Mr. Campre
maintains were not adequately canvassed in the evidence before the Arbitrator.
The affidavit evidence is not admissible for this purpose. Nor does it change,
in any material way, the evidence that was considered by the Arbitrator.
[24]
Mr. Campre argued that the additional affidavit
evidence might be admissible to establish a breach of procedural fairness. He
complained of the short time-period in which to commence the appeal and the
Arbitrator’s inability to compel persons, other than the returning officer, to
give evidence.
[25]
There is nothing to suggest that the additional
affidavit evidence filed in this application for judicial review could not have
been adduced before the Arbitrator. Furthermore, the Arbitrator had the power
under s 88.1.3 of the Election Code to order production of documents which were
material and relevant to the appeal. More fundamentally, the Arbitrator had the
power under s 88.1.4 of the Election Code to determine the procedure to be
followed, having regard for fairness and equality between the parties. This power
was potentially broad enough to grant the parties sufficient time to obtain
affidavit evidence similar to what they filed in these proceedings or to call
additional witnesses.
[26]
I am therefore not satisfied that the additional
affidavit evidence establishes that the provisions of the Election Code
resulted in a breach of procedural fairness, or that the Arbitrator applied the
provisions of the Election Code unfairly.
B.
What is the appropriate standard of review?
[27]
The parties do not agree on the standard of
review that this Court should apply to the Arbitrator’s decision. Mr. Campre
says that the interpretation of the Election Code is a pure question of law,
and the Arbitrator’s decision is therefore subject to review by this Court
against the standard of correctness. The Fort McKay First Nation says that the
Arbitrator’s determination that there was insufficient evidence to allow the
appeal is a question of mixed fact and law, and it therefore attracts the
standard of reasonableness.
[28]
In Fitzpatrick v Boucher, 2012 FC 294, which
involved a challenge to the Fort McKay First Nation’s 2011 general election, the
parties agreed that the applicable standard of review was correctness. However,
the Federal Court of Appeal declined to endorse this standard, and upheld the
appeal arbitrator’s decision on the ground that it was both correct and
reasonable (Fitzpatrick v Boucher, 2012 FCA 212 at para 21).
[29]
In Ferguson v Lavallee, 2014 FC 569 at
paras 62 and 63, Justice Heneghan held that when the substantive issue in an
application involves the interpretation of an election code and the application
of that interpretation to the facts, this is a question of mixed fact and law
and attracts the reasonableness standard of review.
[30]
Most recently, in Orr v Peerless Trout First
Nation, 2015 FC 1053 at para 44, a case that is currently under appeal, Justice
Strickland concluded that the reasonableness standard applied to the
interpretation of the election regulations by the arbitrator who was appointed
to hear the election appeal.
[31]
The Election Code at issue in this case confers
upon the Arbitrator a power to interpret law. It also contains a privative
clause. This is a strong indication of review pursuant to the reasonableness
standard (Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] at para
52). The Arbitrator’s interpretation and application of the Election Code is
not a question of law that is of central importance to the legal system or
outside the specialized area of expertise of the administrative decision-maker,
another indication that the reasonableness standard applies (Dunsmuir at
para 70).
[32]
I therefore conclude that the Arbitrator’s
interpretation of the Election Code and his application of that interpretation
to the facts are subject to review by this Court against the standard of
reasonableness. I note, however, that the range of reasonable interpretations
to be given to a particular provision of the Election Code may be narrow (Canada
(Attorney General) v Canada (Human Rights Commission), 2013 FCA 75 at paras
13-14).
C.
Was the Arbitrator wrong to dismiss the appeal
due to insufficient evidence?
[33]
The Arbitrator acknowledged that certain conduct
will permit an inference of a corrupt election practice to be drawn (Sideleau
v Davidson, 1942 SCR 306 [Sideleau]), and that it is not necessary for
there to be direct evidence of explicit efforts to buy votes. The Arbitrator
also accepted that someone may be found to have engaged in a corrupt election
practice even if he or she was involved only indirectly.
[34]
The Arbitrator found that the testimony of Mr.
Campre and his sister demonstrated, at most, that they had observed a number of
people from Fort McKay vote at the Edmonton polling station on election day,
and that some of those voters had also attended “On the River” in the evening.
Ms. Campre said that over 20 people had come from Fort McKay to Edmonton to
vote, but she could not say how many had attended the performance. Mr. Campre
estimated that 30 people had travelled from Fort McKay to vote at the Edmonton
polling station.
[35]
There was no evidence before the Arbitrator that
the Fort McKay First Nation had sponsored, or was it in any way involved with,
the performance of “On the River” in Edmonton on April 10, 2015. Nor was there
any evidence that the Fort McKay First Nation had paid for the travel expenses
of any of the persons who attended the performance. Even if it were appropriate
for me to consider the additional affidavits and the transcript of
cross-examination filed in this application for judicial review, they would
tend to support these conclusions.
[36]
The Arbitrator noted that Mr. Campre had not
adduced any evidence to show that the election was scheduled to coincide with
the day of the concert. Even if this had been proved, the Arbitrator held that this
was insufficient, in and of itself, to suggest that the Fort McKay First Nation,
its Chief, its previous council or any of the successful candidates had engaged
in a corrupt election practice. I agree.
[37]
Mr. Campre says that, pursuant to Sideleau, the
evidence he presented was sufficient to permit the Arbitrator to infer that the
Fort McKay First Nation had engaged in a corrupt electoral practice. He
maintains that the Fort McKay First Nation failed to rebut this presumption
because it did not submit any evidence to refute it.
[38]
Mr. Campre appears to have confused the legal
burden of proof and the proper application of an evidentiary principle
regarding inferences that may be drawn from the evidence presented. Mr. Campre
had the burden of proving on a balance of probabilities that the Fort McKay
First Nation had engaged in a corrupt election practice (Wrzesnewskyj v
Canada (Attorney General), 2012 SCC 55 at paras 52-53). The law allows for
certain conduct to lead to an inference of a corrupt election practice, but
this does not mean that the burden of proof has been reversed.
[39]
The Arbitrator referred explicitly to the
evidentiary principles found in Sideleau. However, the Arbitrator found
that the evidence in the appeal was “sparse” and that the law did not permit
him to draw an inference of a corrupt election practice based on “mere
speculation”.
[40]
An inference may be drawn from the evidence only
in certain circumstances. For example, in Kahkewistahaw First Nation v
Taypotat, 2015 SCC 30, the Supreme Court of Canada held that a Grade 12
requirement for candidates who wished to be Chief or a Band Councillor did not
support an inference that older members of the community were
disproportionately affected. In Québec (Commission
des droits de la personne et des droits de la jeunesse)
v Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39, the Supreme Court held that a refusal to issue a
security clearance to a man of Pakistani origin did not support the inference
that racial profiling was to blame.
[41]
Similarly, evidence that a significant number of
people travelled from Fort McKay to Edmonton and then voted in the Fort McKay
First Nation’s general election before attending a performance of “On the
River” does not support the inference that a corrupt election practice
occurred. Mr. Campre presented very little evidence in support of his appeal. It
was therefore reasonable for the Arbitrator to conclude that the mere presence
of individuals from Fort McKay at an event in Edmonton did not support the inference
that those individuals accepted bribes from, or on behalf of, the Chief or
anyone else to vote in a particular way.
[42]
I can find no error in the Arbitrator’s decision
that warrants this Court’s intervention. The application for judicial review is
therefore dismissed.
VI.
Costs
[43]
Both parties requested an opportunity to address
the Court in writing regarding costs. The Fort McKay First Nation will file its
written submissions, not exceeding seven pages, within five business days of
the issuance of this decision. Mr. Campre will provide written submissions in
response, not exceeding seven pages, within five business days of receipt of
the Fort McKay First Nation’s written submissions.
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