Date: 20241024

Docket: T-992-23

Citation: 2024 FC 1685

Ottawa, Ontario, October 24, 2024

PRESENT: Madam Justice McDonald

BETWEEN:

GLENN HUDSON

Applicant

and

CHIEF STAN BIRD, KELVIN C. WILSON, DONNA LEE SUTHERLAND, TERRANCE SINCLAIR, LINDA SINCLAIR, DENNIS CAMERON, MARY TYLER BEAR, and PEGUIS FIRST NATION

Respondents

JUDGMENT AND REASONS

[1] A general election was held on Peguis First Nation on April 6, 2023. On this judicial review the Applicant, Glenn Hudson, requests that the election results, as certified by the Electoral Officer, OneFeather Mobile Technologies Ltd. (OneFeather), be set aside. Mr. Hudson who unsuccessfully sought re-election as Chief, alleges there were contraventions of the First Nations Elections Act, SC 2014, c 5 [Act] at an advance poll on the evening of March 28, 2023. The allegations are that OneFeather employees were threatened and intimidated by a group from Peguis First Nation over the custody of the ballot box. In the end, OneFeather was prevented from maintaining custody of the ballot box that held the votes cast at the advance poll on March 28, 2023.

[2] Two of the Respondents, Chief Stan Bird and Kelvin Wilson, were successful candidates in the election and they were in attendance at the advance poll on the evening of March 28, 2023. They acknowledge that the events resulting in OneFeather not being able to maintain custody of the ballot box amounted to a contravention of the Act, but they argue that the Court should not intervene as the events of that evening did not affect the election results. The ballots cast at the advance poll were destroyed and voters were advised that advance poll voting would not be an option and that voting would be held on election day only.

[3] The core issue on this Application is if the events at the advance poll had an impact on the election results. I am satisfied that the events at the advance poll constituted direct interference with the duties of the Electoral Officer OneFeather and therefore amounted to a contravention of the Act. However, the evidence does not support a finding that those events impacted the ability of community members to vote on election day on April 6, 2023. Thus, in accordance with the discretion afforded to me under the Act, I decline to set aside the election as a result of the events of March 28, 2023.

I. Background

[4] Peguis First Nation is located in Manitoba and has over 10,000 members. Glenn Hudson is a tribal member of Peguis First Nation and served as the Chief from 2007-2015 and 2017‑2023. At the time of calling the 2023 election, Mr. Hudson was the Chief, along with five Councillors: Mary Tyler Bear, Wade Sutherland, Glenis Sutherland, Martin Favel, and Kelvin Wilson.

[5] By Band Council Resolution (BCR) on January 17, 2023, the Chief and Council set a General Election for April 6, 2023, and appointed OneFeather as the Electoral Officer to administer the election under the Act. In advance of the election, OneFeather communicated information and details on the election including: the nomination process, mail-in ballots, and the dates and locations for advance polls. Three advance polls were arranged for Peguis, Selkirk, and Winnipeg.

[6] At an Audit Meeting on March 20, 2023, members of Peguis First Nation expressed concerns about the finances of Peguis First Nation and the reliability of the March 31, 2022 Qualified Audit prepared by Baker Tilly showing a debt write down from $136 million to $25 million. The concern and discontent over the state of the finances of Peguis First Nation became an election issue and a local social media movement referred to as ‘silent no more’ or the ‘269 group’ took up the cause.

[7] On March 21, 2023, OneFeather published a post on the Peguis First Nation Facebook page titled “Notice of Ballot Box Procedures” advising that “Advance Polling location Ballot Boxes will be transported and stored in a secure (video monitored) and climate controlled U‑Haul storage facility in Winnipeg.” The notice also advises that the ballot boxes would be transported back to the community for counting on election day.

A. Events of March 28, 2023

[8] It is the events at the advance poll on March 28 in Peguis First Nation that are directly at issue in this Application. On that date, four Councillors of Peguis First Nation – Kelvin Wilson, Glenis Sutherland, Wade Sutherland and Martin Favel – sent a letter to OneFeather stating:

Members of the current Peguis First Nation leadership, however, do want to ensure transparency and security of the vote and as such, make the following request:

· Peguis Advance Poll Voting (March 28, 2023): We request the advance poll ballots be securely taped in front of witnesses and stored at the Peguis Community Hall on the Peguis first Nation of Manitoba in a ballot box cage for secure storage. The ballet box containing advance poll ballots can be monitored by security personnel, surveillance cameras, and designated scrutineers to ensure there is no tampering of ballot boxes.

[9] This letter was sent without the consent or knowledge of the Applicant, Mr. Hudson, who was the Chief of Peguis First Nation at the time.

[10] In response to this letter, OneFeather advised as follows:

Good evening Councillor – we have provide a clear and acceptable path to Ballot box custody and care, and provided Notice to community on what our plans.

We will not be deviating from this planned process. If at any time, if the care and custody of any Ballot box is removed from our chain-of-custody we will not be able to authenticate/confirm the results of the election, which means the whole electoral process is at risk of being cancelled and restarted, which also has both short and long term consequences for the Peguis, its members and administration since a restart of the election process would result in the community being without elected leadership to govern.

[11] Who-did-what at the advance poll station on the evening of March 28, 2023 is in dispute. In her Affidavit, election scrutineer Tamara Hudson says a group of approximately 30 people arrived at the polling station before it closed. She describes some as carrying warrior staffs, some wearing traditional skirts, and some wearing face coverings. Glenn Hudson alleges in his Affidavit that there were threats of violence and intimidation directed towards OneFeather representatives and that they were prevented from taking custody of the ballot box that contained 178 ballots.

[12] By contrast, the Respondents claim that it was a peaceful gathering of concerned community members, including elders and grandmothers, who wanted to ensure the ballots stayed in Peguis First Nation.

[13] It is not in dispute that OneFeather representatives who were administering the advance poll were prevented from taking custody of the ballot box that contained 178 ballots. Instead, custody of the ballot box was taken over by Peguis First Nation community members and it was placed inside a metal cage.

[14] The next day, on March 29, 2023, the Chief and Council wrote to the Peguis First Nation condemning the events at the advance poll and advising:

Due to the actions of less than 35 members, OneFeather employees have been made to feel unsafe and have indicated that they are unable to continue with the administration of the 2023 election essentially nullifying the votes of 178 members who lawfully cast their ballot on Tuesday. OneFeather is taking steps to find additional employees to staff our polling stations, however, the actions of a few have created issues with severe and serious consequences for us all.

Chief and Council have actively been working with OneFeather and making all reasonable efforts to ensure that the election can continue. We have submitted a proposal that the election take place in a one-day format on April 6^th, 2023. We have been engaged in continued dialogue with all parties to make sure that our membership is able to hold a free and fair election.

[15] Ultimately Peguis First Nation decided that the ballots cast at the advance poll would be considered null and void and they were destroyed on March 31.

[16] As a result of the events at the advance poll, OneFeather lost employees and had to subcontract with another company (Boom Done Next) to ensure they had adequate resources to manage the election and complete their Electoral Officer duties.

B. April 6, 2023 Election

[17] The election was held on April 6, 2023. The results were certified on April 7 by OneFeather and the following were elected to Chief and Council positions:

Chief: Stanley Bird

Councillors: Mary Tyler Bear; Dennis Cameron; Linda Sinclair; Terrance Sinclair; Donna Lee Sutherland; and Kelvin Wilson.

[18] For the position of Chief, Stanley Bird received 936 votes and Glenn Hudson received 496 votes.

II. Issues

[19] This matter raises the following issues:

1. Objections to the evidence

• (1)Applicant’s evidence

• (2)Respondents’ evidence

2. Failure to name the Electoral Officer as a Respondent

3. Were there contraventions of the Act?

• (1)Conduct of Mr. Wilson

• (2)Conduct of Mr. Bird

4. If there was contravention of the Act, did it likely affect the result of the election?

III. Analysis

A. Objections to the evidence

(1) Applicant’s evidence

[20] The Applicant filed the following Affidavit evidence:

Glenn Hudson sworn on May 4, 2023

Tamara Hudson sworn on June 13, 2023

Anita Sutherland sworn on August 10, 2023

Justine Scramstead sworn on October 16, 2023

Shari Bear sworn October 16, 2023

[21] The Respondents object to various paragraphs of the Glenn Hudson Affidavit. In their submissions, counsel for Mr. Hudson conceded that paragraphs 44, 45, 48, 49 and 50 are opinion evidence and therefore not within Mr. Hudson’s personal knowledge. I will disregard these paragraphs from the Hudson Affidavit.

[22] Objections were also raised to paragraphs 27, 29-33, 36, 37, 38, 39, and 40 of the Glenn Hudson Affidavit on the grounds that these paragraphs contain hearsay evidence. I have reviewed these paragraphs and agree they contain information that is not directly within Mr. Hudson’s personal knowledge. I accept Mr. Hudson’s explanation that this information was provided to him in his capacity as the Chief. Accordingly, while I will not strike these paragraphs, I will accord them low evidentiary weight.

[23] The Respondents object to paragraphs 6, 13, 18, 21 and 22 of the Tamara Hudson Affidavit on the grounds that the statements are opinion and hearsay evidence. While I agree that the information contained in these paragraphs goes beyond the direct knowledge of Tamara Hudson and veers into opinion, in my view, this is a matter that goes to the weight of this evidence rather than its admissibility.

[24] The Respondents object to paragraphs 4, 6, 10, and 15 of the Anita Sutherland Affidavit. I have reviewed these paragraphs and agree that paragraph 4 is not appropriate as it purports to confirm events of which Ms. Sutherland does not have firsthand knowledge. Paragraph 4 will be disregarded. Paragraphs 6, 10 and 15 are personal observations made by Ms. Sutherland on events she witnessed; these are therefore permissible.

[25] The Respondents object to statements made in the Affidavit of Justine Scramstead (paragraph 6) and Shari Bear (paragraph 7) on the reliability of the names on the voter list. As the identity of voters is not at issue in this judicial review, this evidence is largely irrelevant.

(2) Respondents’ evidence

[26] The Respondents filed the following Affidavit evidence:

Karen Spence sworn on October 26, 2023

Chief Dr. Stan Bird sworn on October 25, 2023

Kelvin Charles Wilson sworn on October 26, 2023

Lawrence Lewis, Electoral Officer, sworn October 30, 2023

Marlene Bear sworn on October 26, 2023

[27] The Applicant objects to paragraphs 7, 36, 43-52 of the Affidavit of Chief Stan Bird. I agree that paragraph 7 is hearsay evidence and will be disregarded. With regard to the other paragraphs (36 and 43-52), while I agree that this evidence is of questionable relevance to the issues in this judicial review, and to the extent that it provides background context, I am not prepared to strike these paragraphs.

[28] Objections are raised to paragraphs 47, 66-69, 70, and 82 of the Kelvin Charles Wilson Affidavit. On consideration of these paragraphs, I agree that paragraph 47 contains opinion and will be disregarded. Further, paragraphs 66, 67, 68, 69, and 70 contain information that is either irrelevant or hearsay and will be disregarded. Paragraph 82 of the Affidavit is information not within Mr. Wilson’s knowledge and therefore will be disregarded.

B. Failure to name the Electoral Officer as a Respondent

[29] The Respondents argue that the judicial review Application should be struck as it is defective because the Applicant failed to name the Electoral Officer as a Respondent. They submit that because the Applicant is challenging the Electoral Officer’s decision of April 7, 2023 certifying the election results, the Electoral Officer is a “person…directly affected by the order sought in the application” under the Federal Courts Rules, SOR/98-106, Rule 303(1)(a). Relatedly they claim to be prejudiced as a certified tribunal record was not provided by the Electoral Officer and therefore the Application record is incomplete.

[30] The Applicant submits that it is not necessary to name the Electoral Officer as a Respondent and that the Federal Court Rules only reference the fact that the Electoral Officer must be served. The Electoral Officer was served in December 2023. The Applicant also cites House v Paul First Nation, 2024 FC 283 [House] and Johnstone v Mistawasis Nêhiyawak First Nation, 2022 FC 492 [Johnstone] where the Electoral Officer was also not named as a Respondent.

[31] In his Affidavit, Lawrence Lewis, the founder and CEO of OneFeather, confirms that he was the Electoral Officer overseeing the Peguis First Nation General election on April 6, 2023. Mr. Lawrence notes in his Affidavit that he has no knowledge of any allegations made against OneFeather.

[32] On this Application, the Applicant raises no issues with the conduct or actions of the Electoral Officer. Rather, the focus of this matter are the actions of community members and members of council on March 28, 2023. Therefore, I do not regard the Applicant’s failure to name the Electoral Officer as a Respondent as a fatal flaw to this Application. As well, the Respondents have not satisfied me that they are prejudiced because of the absence of the election records from OneFeather. The only potentially relevant ballots are those that were cast on March 28, and they were destroyed on March 31.

[33] In this case, in the absence of any allegations against the Electoral Officer, I conclude that it was not necessary for them to be named as a Respondent.

C. Were there contraventions of the Act?

[34] Sections 31 and 35(1) of the Act state:

[35] The parties agree on the applicable three-part test. First, section 31 of the Act requires the Applicant to establish, on a balance of probabilities, a contravention of the Act (House at para 18). The Respondents concede that the events of March 28 constitute a contravention of the Act; therefore, the first part of the test is met. The second part of the test requires the Applicant to show that the contravention is “likely to have affected the result” of the election. This part of the test is contested. The Respondents argue that the evidence does not establish that the election results were affected. The third part of the test invokes discretionary considerations. Namely, even if the Court is satisfied that the section 31 conditions are met—that the Act was contravened, and that the contravention is likely to have affected the result of the election—the Court, nevertheless, has the discretion under section 35 of the Act to not interfere with the election results (House at para 20).

[36] In his Amended Notice of Application, Mr. Hudson alleges that the actions of the named Respondents, Councillor Wilson and Stan Bird (now Chief), contravened sections 20(d), 26, and 27 of the Act which states:

[37] While the Respondents concede contraventions of the Act occurred at the advance poll, it is relevant to specifically consider the conduct of Mr. Wilson and Mr. Bird.

(1) Conduct of Mr. Wilson

[38] In assessing Mr. Wilson’s conduct, it is important to note that he was an elected councillor of Peguis First Nation during the events of March 28 and he was a member of Council who signed the BCR of January 17, 2023, appointing OneFeather as the Electoral Officer. Despite this action, Mr. Wilson signed the March 28 letter, along with three other councillors, instructing Mr. Lewis of OneFeather to change the process of how to handle the ballot boxes from the advance poll. This letter was not discussed in advance with the then Chief Glenn Hudson at a duly convened meeting of Chief and Council.

[39] I do not accept as credible the statement in Mr. Wilson’s Affidavit where he states “The March 28, 2023 BCR is in the form of a letter to Lawrence Lewis but it is a valid resolution.” At that time, Mr. Wilson had been a councillor at Peguis for 10 years and is presumed to know what constituted a valid BCR. On this issue, I find that he intentionally misrepresented the letter as a valid BCR to the Electoral Officers and to others.

[40] Further in his Affidavit, Mr. Wilson explains the justification for the March 28, 2023, letter as being “some members who were concerned that the ballot boxes were going to be taken all the way back to British Columbia where OneFeather has their main office or that they would not be safe in Winnipeg”. This concern is unfounded, as OneFeather had clearly communicated ahead of time the steps they would take to secure the ballot boxes. In any event, there is no evidence that Mr. Wilson attempted to raise this issue in the forum of a properly constituted meeting of the Chief and Council of Peguis First Nation.

[41] Mr. Wilson admitted in cross-examination that he supported the ballot boxes staying in Peguis First Nation and that he participated in the events of March 28 to keep the ballot boxes in Peguis First Nation. This establishes that Mr. Wilson was an active participant in the events that took place on March 28. In general, I find Mr. Wilson’s evidence is not reliable or credible. The evidence demonstrates that he took steps to intentionally obstruct the Electoral Officer in the performance of their duties and intentionally obstructed the conduct of the advance poll. This is a contravention of the Act.

(2) Conduct of Mr. Bird

[42] Mr. Bird (now Chief Bird) was not an elected official at the time of the events of March 28, but he was running for the position of Chief in the April 6 Election. He does not deny participating in the events of March 28, 2023, stating as follows on cross-examination:

A Okay. I want to be clear on this. It wasn’t – – there was a lot of mistrust in the community. Decisions being made by Glenn and the council in my eyes was not the truth. They were unreliable because of the pattern that he had governed, I guess, through the years so – – and Mr. Lewis said it earlier, guilty by association. I didn’t know who OneFeather was. I didn’t know what Glenn Hudson’s connections to OneFeather were, if there were any.

The safest thing we could do at the time given the climate in our community, the urgency of things to happen, given the date for the election, was that we had – – we had to keep the ballots in the community. This was the surest and safest – – surest way for us to have a truthful election, honest election.

[43] Mr. Bird claims that he was not at the community hall until after OneFeather employees departed. However, this is disputed by Anita Sutherland, who was in attendance as a scrutineer. She states in her Affidavit at paragraph 10:

The electoral officers began to tape the box with the advance polls inside, and invited community members who were present to come and sign the sealed box. At the same time a black truck arrived at the Hall with a large blue metal cage inside. Members of the 269 group, including Stan Bird, brought the cage inside the Hall and confronted the electoral officers, informing them that they intend to lock the ballot box in the cage. I observed the female electoral officer engage with members of the 269 group, who I could tell were pressuring her not to leave with the ballot box. At one point Kelvin Wilson approached her in an aggressive manner.

[44] In cross-examination, Mr. Bird confirms that he addressed those in attendance at the hall during the events of March 28 and he took credit for the ballot boxes remaining in the community.

[45] I conclude that Mr. Bird’s conduct was an intentional obstruction of the conduct of an election, in this case, an advance poll, and is a contravention of the Act.

D. If there was contravention of the Act, did it likely affect the result of the election?

[46] The actions of Mr. Wilson and Mr. Bird on March 28, 2023, interfered with the conduct of the advance poll and are contraventions of the Act. However not every contravention of the Act will justify overturning the election results. The Applicant must also show that the contraventions are “likely to have affected the result of the election” held on April 6, 2023.

[47] The Court in Paquachan v Louison, 2017 SKQB 239 at para 19 [Paquachan] noted that administrative errors and contraventions unlikely to have affected the result of the election will not trigger an overturning. To assess if an irregularity is “likely” to have affected the result, “persuasive evidence is needed” as the ramifications of ordering a new election are severe (Bird v Paul First Nation, 2020 FC 475 at para 30, citing O’Soup v Montana, 2019 SKQB 185 at para 117). Annulling an election has sweeping consequences as it disenfranchises voters, increases the potential for future litigation, undermines the certainty in democratic outcomes, and may lead to disillusionment and voter apathy (Paquachan at para 20).

[48] In Papequash v Brass, 2018 FC 325, Justice Barnes notes it is harder to annul an election where there are procedural irregularities as opposed to cases of blatant corruption:

[34] Not every contravention of the Act or regulations will justify the annulment of a band election. A distinction is not infrequently made between cases involving technical procedural irregularities and those involving fraud or corruption. In the former situation, a careful mathematical approach (eg reverse magic number test) may be called for to establish the likelihood of a different outcome. However, where an election has been corrupted by fraud such that the integrity of the electoral process is in question, an annulment may be justified regardless of the proven number of invalid votes. One reason for adopting a stricter approach in cases of electoral corruption is that the true extent of the misconduct may be impossible to ascertain or the conduct may be mischaracterized. This is particularly the case where allegations of vote buying are raised and where both parties to the transaction are culpable and often prone to secrecy: see Gadwa v Kehewin First Nation, 2016 FC 597, [2016] FCJ No 569 (QL).

[49] Based upon these cases, the nature of the alleged contravening conduct (irregularities or fraud/corruption) is a relevant consideration when assessing the impact on an election. In this case, the conduct at the advance poll interfered with the work of the Electoral Officer. That interference led to destroying 178 ballots cast in the advance poll and cancelling the other advance polls. The impact on the members of Peguis First Nation is that they lost the opportunity to vote in the advance polls. The only other voting option was to vote or revote on election day.

[50] While Mr. Hudson argues that the events of March 28 affected the integrity and reliability of the election results, this is a largely speculative argument as there is no evidence to demonstrate that the removal of the advance polling option impacted anyone’s individual ability to cast a vote, or that it impacted voter participation on election day generally.

[51] In his Affidavit, the Electoral Officer Lawrence Lewis of OneFeather states at paragraph 8:

I would like to add that there was community discord regarding the Election from the beginning that resulted in extenuating circumstances for OneFeather to have to navigate. Including a few serious circumstances which required OneFeather to act, or take action necessary to ensure the successful conclusion of the Election. OneFeather was in regular contact with Indigenous Services Canada, Governance Operations (National HQ’s) during these periods both advising Canada and seeking advice and guidance as necessary to ensure an FNEA compliant voting event.

[52] OneFeather ultimately certified the election results.

IV. Conclusion

[53] The conduct of Mr. Wilson and Mr. Bird on March 28 was disruptive, misguided, and ill conceived; but I am not satisfied on the balance of probabilities that there is evidence of fraud or corruption. That is not to say that the Court condones their conduct – it was serious – and it was close to the line. The remedy of overturning the election results risks disenfranchising all members of Peguis First Nation.

[54] There is no evidence that the 178 voters who voted in the advance poll did not have sufficient notice and opportunity to recast their vote on April 6. As well, there is no evidence that anyone at Peguis First Nation was denied the ability to vote as the result of the cancellation of the advance polling stations. In the absence of such evidence, I cannot conclude that the events of March 28 affected the outcome of the election results of April 6, 2023. I am, therefore, dismissing the Applicant’s request for relief under section 31 of the Act.

[55] Mr. Hudson also seeks orders under sections 37, 38 and 40 of the Act against Mr. Wilson and Mr. Bird. He asks the Court to find that they have committed offences and that they be barred from running for office. Based on the evidence before me, this relief cannot be granted.

[56] I am dismissing this judicial review Application.

V. Costs

[57] Costs would normally be awarded to the Respondents as the successful party. However, as I have concluded that the conduct of Councillor Wilson and Chief Bird at the advance poll were in contravention of the Act, I decline to award the Respondents any costs.

JUDGMENT IN T-992-23

THIS COURT’S JUDGMENT is that:

1. This Application, to contest the election results of the Peguis First Nation held on April 6, 2023, is dismissed.

2. No costs are awarded.

blank	"Ann Marie McDonald"
blank	Judge

FEDERAL COURT

SOLICITORS OF RECORD

	Docket:	T-992-23
STYLE OF CAUSE:		HUDSON v CHIEF STAN BIRD, KELVIN C. WILSON, DONNA LEE SUTHERLAND, TERRANCE SINCLAIR, LINDA SINCLAIR, DENNIS CAMERON, MARY TYLER BEAR, AND PEGUIS FIRST NATION
PLACE OF HEARING:		Winnipeg, Manitoba
DATE OF HEARING:		jULY 11, 2024
JUDGMENT AND REASONS:		McDonald J.
DATED:		October 24, 2024

APPEARANCES:

Jason Harvey	FOR THE APPLICANT
John Gailus Stephen Wallington	FOR THE RESPONDENTS

SOLICITORS OF RECORD:

Tapper Cuddy LLP Winnipeg, Manitoba	FOR THE APPLICANT
Cascadia Legal LLP Victoria, British Columbia	FOR THE RESPONDENTS