Date: 20200402
Docket: T-2063-18
Citation: 2020 FC 475
Ottawa, Ontario, April 2, 2020
PRESENT: The Honourable Madam Justice McVeigh
| BETWEEN:
|
| LAURA S. BIRD
MATTHEW W. ADAM
|
| Applicants
|
| and
|
| BERNIE MAKOKIS
ELECTORAL OFFICER
PAUL BAND (FIRST NATION)
|
| Respondents
|
JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application contesting the election held by Paul Band First Nation [PBFN] on November 2, 2018 [the Election] pursuant to section 31 of the First Nations Elections Act, SC 2014 c 5 [FNEA]. Due to several alleged breaches of the FNEA the Applicants seek relief that includes quashing the election and ordering a new election.
II.
Background
[2]
Laura S. Bird and Matthew W. Adam [the Applicants] are two members of PBFN. Ms. Bird and Mr. Adam are both self-represented and both Applicants made oral submissions during the hearing.
A.
Prelude
[3]
In the written materials the Applicants indicated it was not fair that they had no lawyer given they had no legal training. The Applicants said this was unfair because they had no money to hire a lawyer and yet the Respondent did. They say that the “cited caselaw indicates that a lawyer was needed throughout these proceedings.”
[4]
There is no rule that the Applicants cannot self-represent though it may have been preferable to hire a lawyer. Representing yourself is not unfair even if it may not be the preferable way. The Application was case managed by a Prothonotary which would have been assistive for the Applicants. The individual Applicants were afforded every courtesy and consideration by the Court in order for them to present their arguments given they had no legal training. There was no inherent unfairness.
[5]
The Applicants during the course of the hearing wished to present further hearsay and other evidence viva voice as well as evidence they indicated they had on their telephones. This arose when they were presenting their arguments and I asked them to point to where the evidence was in the materials. The Applicants then indicated that they could obtain that evidence but had not filed it. I did not allow the alleged new evidence to be presented for the first time at the hearing given that: the case was managed by a Prothonotary; the evidence was available for a considerable length of time; and because the FNEA indicates an election challenge proceeds by application meaning the evidence is to be by sworn affidavit. The prejudice to the Respondents and the adherence to the FNEA and Federal Courts Rules (SOR/98-106) far outweighed allowing this type of evidence to surface at the hearing.
B.
Overview
[6]
The Applicants brought their application under the FNEA which is a statutory scheme for First Nations elections that was created in 2014. The FNEA provides First Nations with the ability to opt out of the Indian Act, R.S.C., 1985, c. I-5 and adopt the FNEA as their election model.
[7]
PBFN opted into the FNEA on March 1, 2018. The Election for one chief and five council members was scheduled for November 2, 2018. Bernie Makokis (not a member of the band) was hired on August 28, 2018 as the Electoral Officer [EO] by a resolution. He is certified to be an electoral officer for elections under the FNEA. The EO in writing appointed three deputy officers [“Deputy”] on August 31, 2018. Of the three deputy officers, Veronica Rain Bearhead and Shalanna Rain, were both band members and both voted in the eventual election, but Toni YoungChief is not a band member.
[8]
After receiving the list of electors’ names from PBFN, the EO prepared a voter list which was amended and finalized. It was determined that the Election would be held at the PBFN school gymnasium and by mail-in ballot. A notice was sent out to that effect.
[9]
On September 28, 2018, the PBFN held a nomination meeting. After this meeting, 5 candidates delivered candidate declaration forms and fees to run for chief and 33 candidates were nominated to run for council. Although 7 candidates for council withdrew meaning 26 candidates appeared on the final council ballot.
[10]
The Election was held on November 2, 2018 at the gymnasium and the EO was present at all times. After the polls closed at 8:00 pm, ballots were counted by four different vote-counting groups.
[11]
One volunteer counter Dawn Rain says “There was not a set precedent and from my understanding, each group had a different system.”
Each counting group consisted of three volunteers and one electoral staff and they “manually tallied up the ballots.”
The electoral staff she referred to was a Deputy. Dawn Rain indicated that Deputy at their table opened the ballot and read the names aloud while the four people hand-tallied the votes. This was the same procedure as another counter Shannon Bird said was done at her table. Dawn Rain indicated in her group they were not shown the ballots except the one spoilt ballot. Shannon Bird said her group the Deputy did set some ballots aside as being spoiled. Dawn said in other groups she was told that opened ballots were shared with the counters. In the counter’s particular group she says that during the actual count they had to correct the Deputy as “she appeared to be in a rush as she tore many of the ballots as she unfolded them.”
As well Dawn Rain said in the Deputy’s haste she mixed up candidates on her tally sheet and made mathematical errors. All of the tally sheets from that table were picked up by the Deputy but Dawn Rain said it was not verified which was the official one and they were placed in no distinct order and given to the EO. Shannon Bird said after the count they just signed the counting sheet and then the EO started displaying numbers on the wall.
[12]
There were four mail-in ballots that were counted as valid and two were rejected because they had not filled in the voter declaration as directed. Again looking to Dawn Rain’s evidence she stated that though she was not present at the recount that she had been told the mail-in ballots were not found until the recount occurred the following day and wonders why they were not presented prior to counting.
[13]
Arthur Rain was elected as chief after the ballots were counted. The chief’s ballot count is not in issue as Arthur Rain won by a margin of 54 votes over the second place chief candidate. The election for council was closer. There was a difference in either fewer than 5 votes (Shannon Bird sworn statement at para 2) or 9 votes (EO’s affidavit at para 15) between the fourth, fifth, and sixth place candidates for council. Since the five highest-ranking candidates would be elected to the council and since the discrepancy in votes was so small, the EO announced his decision to perform a recount the next day at noon. The EO and a Deputy then sealed the ballot boxes and kept the ballots in his possession overnight.
[14]
On November 3, 2018, the EO returned the ballot boxes to PBFN school gymnasium and unsealed the ballot boxes at noon for recount of the ballots.
[15]
There was evidence from a Shannon Bird a counter that the recount was done with the EO reading the ballots out loud and setting aside any spoilt ballots. Because no counters saw the actual names on the ballots about half way through the count there was a complaint that no one was seeing the ballots and after that a Deputy witnessed. Because of no witness at the start and the fact the count was different the recount was re-started with all ballots being counted except the chief’s votes. An intoxicated man came in to the gym during the final count and was accused of being obnoxious but not interfering with the actual counting.
[16]
The power in the gymnasium went out during the recount, but doors were opened to allow light into the vote-counting station and the EO moved the counters closer to the light. The power came back on when they started the final recount.
[17]
The recount confirmed that of the votes for chief, 676 ballots were valid and 13 were spoilt. As for the votes for council, 675 ballots were valid and 16 were spoilt.
[18]
During the final recount, there were reportedly more spoilt ballots than before and there was a different result from the first count, although the Court was not provided with the full data from the prior count.
[19]
The EO declared the top 5 councillor candidates members of council:
- Jason Rain Sr. (209 votes) – elected
- Simon D. House (191 votes) – elected
- Faron Bull (179 votes) – elected
- Baron Adams (165 votes) – elected
- Myrna Rabbit-Bearhead (164 votes) – elected
- Roderick Burnstick (158 votes)
- Dwight Joseph Paul (147 votes)
- Russell Ted (Rusty) Bird (146 votes)
- Isaac Rain (140 votes)
- Calvin D. Bird (137 votes)
- Carl Bird (134 votes)
- Darren Samuel Rain (129 votes)
- Matthew Adam (120 votes)
- Warren Bird (118 votes)
- Joni House-Roux (110 votes)
- Wesley Ross Rain (91 votes)
- William Baldwin House (86 votes)
- Rodney Paul (74 votes)
- Jason Saulteaux (70 votes)
- Donovan N. Adams (67 votes)
- William Bearhead (60 votes)
- Shawn Eric Rain (57 votes)
- Marlene A. Adams (55 votes)
- Kyle Isaac Bird (53 votes)
- Duchess Bird (38 votes)
- Jonathan Adams (24 votes)
[20]
The Applicants contested the results under section 31 of the FNEA, claiming that there was a breach of procedural fairness and several irregularities that impacted the result of the Election.
[21]
The Applicants in their memorandum sought the following relief:
1. An order setting aside the election;
2. An order hiring a new electoral officer and deputies;
3. An order for advance polls;
4. An order for online voting and vote in-person on voting day;
5. An order for an interpreter and security to be present at the polling stations;
6. An order for costs; and
7. Such further and other relief as this Honourable Court deems Just and Appropriate.
III.
Issues
[22]
The issues are:
Was there a violation of the Applicants’ procedural fairness rights?
Was there a contravention of the FNEA that was
“likely to have affected the result”
of the Election?
IV.
Analysis
A.
Was there a violation of the Applicants’ procedural fairness rights?
[23]
The Applicants allege a violation of their procedural fairness rights without expanding upon how the EO should have treated them more fairly. I will consider the electoral procedures chosen by the EO below to ensure they complied with the FNEA. On the other hand, procedural fairness is a separate concept from administrative law which deals with which procedural protections an administrative decision-maker must extend to an individual based on the importance of the decision to the individual, the nature of the decision being made, and other context-specific factors (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 77).
[24]
Elections take place in a distinct context and section 31 of the FNEA provides a unique path to challenge them. As explained in O’Soup v Montana, 2019 SKQB 185 at para 112 [O’Soup]:
Section 31 allows an aggrieved elector to challenge an election result if he or she can demonstrate that a contravention of the FNEA or the FNER occurred. As Electoral Officer, Mr. Montana was required to follow procedures under those laws, which he did. He owes no duty of procedural fairness to any elector when fulfilling those responsibilities.
[25]
Given that there is no administrative law duty of procedural fairness to individual members of the First Nation, the Applicants’ procedural fairness argument cannot succeed.
B.
Was there a contravention of the FNEA that was “likely to have affected the result”
of the Election?
[26]
The parties accept that PBFN opted into the FNEA. As stipulated in SOR/2018-175, PBFN held its first election under this regime on November 2, 2018. The Applicants expressed concerns that it was a very short time between when the PBFN elected to opt-in and when the Election was held. This short period they allege did not give the First Nation time to adjust to and become familiar with the new legislation and that is why some of the infractions alleged below occurred.
[27]
The relevant sections of the FNEA are attached as Annex A. Notably, section 31 of the FNEA provides that:
An elector of a participating First Nation may, by application to a competent court, contest the election of the chief or a councillor of that First Nation on the ground that a contravention of a provision of this Act or the regulations is likely to have affected the result.
[28]
On a contestation application, the Court is to examine the affidavit evidence and consider whether the Applicants have proved a breach of the FNEA on a balance of probabilities (Good v Canada (Attorney General), 2018 FC 1199 at paras 49 and 57 [Good]).
[29]
First, the Applicants must show a contravention of the FNEA. A contravention can “occur through an act of either commission or omission by an elector, an electoral candidate or an electoral official”
(O’Soup, above, at para 27). The Court is to presume all necessary procedures were followed in the conduct of an impugned election (O’Soup at para 91).
[30]
Second, in addition to proving a contravention, the Applicants must show that the contravention was “likely to have affected the result”
of the election. As Justice Layh noted in Paquachan v Louison, 2017 SKQB 239 at para 19 [Paquachan], some allowance must be made for administrative errors in any election and contraventions unlikely to have affected the result will not trigger an overturning. On the question of whether a certain irregularity is “likely”
to have affected the result, “persuasive evidence is needed”
as the ramifications of ordering a new election are severe (O’Soup at para 117).
[31]
Even if the Applicants satisfy both of these requirements, the case law indicates the Court has discretion to decline to order a new election. 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, above, at para 20).
[32]
Moreover, in Papequash v Brass, 2018 FC 325, Justice Barnes explained that it will be harder to annul an election on cases involving procedural irregularities like the present case 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).
[33]
The Applicants filed an affidavit from Laura Bird with attached sworn statements from band members Isaac Rain, Bernice Bird, Shannon Bird and Dawn Rain. Relying on the affidavit and sworn statements, the Applicants argue there were several perceived anomalies with the way the Election was conducted. They say each of these irregularities would likely have affected the
result. Their arguments can be sorted into the following five categories:
a) Pre-election procedures;
b) Language used on the ballots;
c) Bribery;
d) Election staffing; and
e) Procedures for counting and recounting of ballots.
[34]
In light of these five areas of irregularity, the Applicants ask this Court to set aside the Election results, order a new election, and to provide the other relief listed at paragraph 21 above.
[35]
On the other hand, the EO’s position is that there was no contravention of the FNEA. The EO responds to each allegation made by the Applicants, saying either that the FNEA does not impose that requirement, or that the FNEA requirements were complied with. In the alternative, even if the FNEA was breached, the Respondents indicate it must be a contravention that would “likely have affected the result”
for a new election to be ordered, and none of these alleged contraventions meet this threshold.
a)
Pre-election procedures
[36]
Under the first category, pre-election procedures, the Applicants criticize three decisions made by the EO. First, they say advance polls should have been set up to allow band members in Calgary and Edmonton to vote. Second, they suggest the nominations process violated section 9(4) of the FNEA which allows each individual to nomin13ate only one candidate to run for council. Third, they challenge the way that the voting list was amended throughout the Election.
i.
Advance Polls
[37]
Exhibits A and B to Laura Bird’s affidavit are two Facebook posts expressing concern about the lack of voting polls in Calgary and Edmonton for people who could not attend the election. At the hearing, the Applicants indicated PBFN had about 1,200 members on- and off-reserve and many people are unable to travel to vote on election day, so advance polls would have swayed the Election results.
[38]
However, subsection 18(1) of the Regulations provides that the EO “may establish an advance polling station at any location that the electoral officer considers suitable and hold an advance poll.”
The word “may”
shows it is not a mandatory obligation. There are no indications that anyone formally requested advance polling for the Election and the EO chose not to have an advance poll. The Applicants said they were entitled to advance polls but this is not the case.
ii.
Nominations
[39]
The Applicants filed evidence that individual band members filled out nomination forms for more than one candidate. This is argued to be a breach that should invalidate the Election. In oral arguments, the Applicants contended that the double-nomination issue shows the EO was applying the old Indian Act standards to this Election rather than the new FNEA procedures that PBFN opted into.
[40]
With respect to the protocol concerning nominations, section 9(4) of the FNEA says “An elector must not nominate more than one candidate for each position to be filled.”
[41]
Evidence was filed that nominees William Bearhead (candidate #14 on preliminary candidate list) and Cynthia Rain (#17) were both nominated by Gloria Bearhead. Likewise, nominees Larry Bird (#22) and Gordon Bull (#23) were both nominated by Cecillia Bull. This on the face of it is a violation of section 9(4).
[42]
Yet, all of these improperly-nominated candidates withdrew and none were featured on the final ballot for 26 council candidates. Withdrawal is permitted “at any time prior to the close of polls”
pursuant to section 10(1) of the Regulations. It is important to consider that the individual nominees who would have benefitted from this nomination violation did not stand in the Election as candidates.
[43]
In Good, this Court found that the fact that an individual was unsuccessful in his election bid is relevant in considering whether it was a breach that is likely to have affected the election results (Good at paras 180–182). I find that this breach of section 9(4) was not one that was “likely to have affected the result”
as required by section 31 for a contestation application to succeed given the candidates withdrew and were not part of the Election.
[44]
I also do not accept that the cumulative effect of the evidence is that the EO did not know that he was conducting the Election in accordance with the FNEA and did not ensure he followed the FNEA procedures.
iii.
Voting List
[45]
An argument raised at the hearing was that changes to the voting list should have been initialed by the EO. The final voting list for 2018 had been filed by the Respondents. The list shows the amendments in handwriting. The amendments included when members were added or were noted as being deceased. I agree that there is no initial when one of these changes were made. It must be accentuated that the allegation is not that there was an error in the final voting list— the allegation is that there is no initial beside the changes.
[46]
The EO explained the way that he updated the voting list throughout the election period as it came to his attention that some individuals were omitted and other individuals were deceased. In paragraph 7 of the EO’s affidavit, it is clear that he was adequately updating the list as new information came to light.
[47]
The requirements concerning the voting list are found at section 3 of the Regulations. Section 3 sets out how to compile the list (subsection 3(2)) and how to revise the list (subsection 3(3)). It does not state in the FNEA or Regulations that revisions must be initialed. Meanwhile other sections of the Regulations such as securing the ballot box and marking mail-in ballots do refer to initialing, suggesting if initialing were required it would be specified in the Regulations.
[48]
The Applicants provided no support for their position that initials by the changes in the voters list are necessary other than that initialing is often done in legal situations.
[49]
As the Applicants have not expressed specific concerns with the voting list I do not agree that not having an initial beside an amendment of the voters list is an infringement of the FNEA or the Regulations.
iv.
Pre-election procedures conclusions
[50]
The Applicants have ultimately not shown any of the EO’s pre-election decisions violated the FNEA or the Regulations, or that any violation would likely have altered the outcome of the Election.
b)
Language used on ballots
[51]
Next, the Applicants criticize language on the ballots for councillor (highlighting added):
i.
Ballot Instructions
[52]
First, the Applicants say the ballot instruction “you may vote for less than 5 Candidates”
was unnecessary and may have changed the outcome of the Election. They point to no actual evidence that this affected the Election at all.
[53]
With respect to the ballot instructions, any lack of clarity was resolved with the heading “CHOOSE UP TO 5”
in capital letters (see above para 51). Many voters did choose the maximum of five candidates. Ultimately, an EO exercises “broad supervisory powers over such an election”
(O’Soup at para 63). EOs are hired to make decisions on issues such as the wording of the ballot. The EO attempted to strike a balance by encouraging voters to “CHOOSE UP TO 5”
, while also informing voters of their ability to vote “for less than 5 Candidates”
if they wanted. There is no prescribed ballot language in the FNEA and the EO’s approach was a sensible one. It would be an inappropriate result to interfere with minor word choice issues on the ballot or order a new election on this ground.
[54]
I will further examine this allegation. If a voter on the ballet voted for more than 5 candidates then those ballots would be spoilt. It appears six ballots (numbered as 1365, 1371-1374, and 1380) were spoilt for voting for more than five candidates. However only one of these ballots attempted to vote for Roderick Burnstick. Roderick Burnstick was the highest-ranking unsuccessful council candidate as he placed 6th out of 26. Roderick Burnstick trailed the fifth-place candidate by six votes. When the spoilt ballots are examined 1365, 1371, 1372, 1373 and 1380 did not vote for Roderick Burnstick. Only ballot 1374 voted for him. Roderick Burnstick needed all six of the spoilt ballots to have voted for him just for him to tie the fifth-place candidate. The evidence shows he only had one of the six spoilt ballots voting for him.
[55]
There is no indication that the instructions somehow confused enough voters for it to have changed the outcome of the Election.
ii.
Name on the Ballot
[56]
Second, the Applicants say that the ballot’s listing of “Isaac Rain”
was misleading. They note that there is an Isaac Rain Sr. and also an Isaac Rain Jr. Isaac Rain Jr. ran in the Election and his full name is Isaac Mason Rain. The Applicants filed evidence that: (a) his cheque for the nomination form read Isaac Rain Jr., (b) his name is listed as #22 Isaac Rain Jr. on the undated official candidate list; and (c) on a hand written preliminary list of council candidates he is listed as number 7 Isaac Rain Jr. Moreover, the Applicants attached a sworn statement from Isaac Rain saying he was surprised the ballot did not say “Jr.”
after his name.
[57]
At the hearing the Applicants alternatively told the Court that the way Isaac Rain Jr. filled out his nomination form with “Isaac Rain”
in the given name line and “Rain”
in the surname line meant that the ballot should technically have stated “Isaac Rain Rain.”
[58]
Concerning the listing of “Isaac Rain”
on the ballot the document that has the most relevance and weight is the Candidate’s Declaration:
[59]
As you can see from the image above the declaration document does not say he wished to appear on the ballot as Isaac Rain Jr. No where on the document does Jr. appear. He indicated “Rain”
as his surname and “Isaac Rain”
as his given name. It was logical for the EO to look at this declaration and place “Isaac Rain”
as the name on the ballot. It would be an absurd result for the ballot to say “Isaac Rain Rain”
because the candidate accidentally wrote Rain on both the given name and surname lines. The obligation was on the candidate to complete the form as he wished to be on the ballot and him now stating that he orally said “Jr.”
does have the same weight as the evidence of the candidate’s declaration form. There is an inconsequential error on the form saying the date of the election is September 28, 2018 which of course is incorrect as that was the date of the nomination meeting and the Election was held until November 2, 2018.
[60]
The argument that it was an error to list him as Isaac Rain because in PBFN there were two Isaac Rains does not mean there was a breach by the EO. The EO’s obligations included having a candidate on a form indicate how he wanted to be listed on the ballot. On the ballot you can see other candidates listed their nicknames or aliases such as Russell Ted (Rusty) Bird and others used their middle initial, all of which would distinguish themselves to voters. In contrast Isaac Rain did not indicate he wished to be distinguished by having Jr. on the ballot.
[61]
It would be a more compelling argument if both Isaac Rain Sr. and Isaac Rain Jr. were running in the election for councillor but that was not the case because Isaac Rain Sr. was not nominated. Despite a sworn statement from Dawn Rain saying she thought she was voting for Isaac Rain Sr. and not Isaac Rain Jr., only one Isaac Rain was running for any position in the Election. Furthermore, Isaac Rain Jr. did not win one of the council seats and in fact placed ninth with 140 votes. The way this individual was described on the ballot did not breach the FNEA and would not have impacted the result of the Election in any event.
iii.
Ballot and Nomination form discrepancy
[62]
Third, the Applicants argue that the ballot’s reference to William Baldwin House was misleading. Since he appeared as “William N. House”
on the preliminary list of nominees and “William Baldwin House”
on the ballot, the Applicants say this name conflicts with the name presented at the nomination meeting so is an infraction of the FNEA.
[63]
This argument was not raised until the oral arguments and so the Respondents were not given a chance to respond or provide the candidate declaration form as they did for Isaac Rain (see para 58 above).
[64]
When I canvas the documents it is confirmed that though he is #17 William N. House on the handwritten nomination form on the Official Candidate List and on the Statement of Votes he is listed at #17 as William Baldwin House. I have no evidence that William Baldwin House was not the same person who was nominated and on the ballot. Without more information about whether Mr. House himself or someone else requested the change, I do not find this to breach the FNEA. Additionally, Mr. House placed 17th out of 26 in the council voting and so the name as it appeared on the ballot would not have affected the Election result.
iv.
Language used on ballots conclusions
[65]
The language used on the ballots did not contravene the FNEA and the Applicants have not shown any alleged flaws in the ballots would have likely affected the result of the Election.
c)
Bribery
i.
Jason Rain Sr. Luncheon
[66]
The third issue the Applicants put forward is bribery contrary to subsection 16(f) of the FNEA. The Applicants argue the EO should not have allowed Jason Rain Sr. (a successful candidate for council) to host a “luncheon”
six days before the Election featuring soup bannock and champagne. In oral argument the Applicant, Ms. Bird, indicated Jason Rain is her cousin but that he should have known better than to host an event like this.
[67]
Jason Rain Sr. promoted this luncheon on Facebook:
[68]
Subsection 16(f) states that a person must not “offer money, goods, employment or other valuable consideration in an attempt to influence an elector to vote or refrain from voting or to vote or refrain from voting for a particular candidate.”
[69]
Justice Mandamin addressed vote-buying under a custom election code in Henry v Roseau River Anishinabe First Nation Government, 2017 FC 1038. He focused on the importance of electors having a free choice and the importance of trust and confidence in elected officials (paras 48–49). Yet, Justice Mandamin found “there is no bribery, or vote buying, when money is given without any condition to vote in a certain way”
(para 59).
[70]
In this case, the luncheon was on a Sunday afternoon and voting took place the following Friday. I accept the Respondents’ general view that it is common in any election whether First Nations or otherwise to sponsor events including lunches during campaign periods. I do not find that this is bribery. But even if I am wrong, Jason Rain won a seat six days later by more than fifty votes over the top unsuccessful candidate for council. To attribute these fifty votes to the lunch alone would be speculative particularly given the fact that Jason Rain listed several platform points on his poster and this seems to have been a genuine campaign event to convey his ideas to the community.
ii.
Conclusion on Bribery
[71]
I will therefore dismiss the Applicants’ claim on this ground as I do not find this was a contravention of the FNEA and even if it was it would not have affected the results.
d)
Election staffing
[72]
In terms of election staffing, the Applicants raise four concerns throughout their materials. First, they suggest a voter that needed assistance to vote was not assisted properly. Second, they say two deputy electoral officers should not have voted in the Election since they were supposed to be impartial. Third, the Applicants argue the vote counters were not independent. Fourth, they say the remuneration given to the EO was too high.
i.
Voter Assistance
[73]
The first staffing issue deals with voter assistance. Shannon Bird says she was not allowed to give voting assistance to Thomas Kimiksana Jr. who was a voter with a brain injury. Shannon Bird asked to accompany Thomas to the voting booth. She was not allowed to go but the EO “went with Thomas Jr. by himself, so I am unsure if Thomas voted correctly based on a fact that Thomas was without my help.”
The Applicants said in oral arguments that Thomas should have been given an “assistant like a witness”
but then do not expand on this.
[74]
Section 21(6) indicates that an elector is to vote in the compartment by themselves so no one sees their ballot. Then Section 21(7) of the Regulations with the heading Assistance indicates the EO or a deputy “must”
assist an elector who is unable to vote in the typical manner by marking their ballot for them “in the presence of a witness that the elector has selected.”
If an EO or deputy assists an elector then this must be marked on the voters list.
[75]
There is no authority in the FNEA or Regulations to allow a person other than an EO or a deputy to assist a person to vote. The EO was correct not to allow Shannon Bird to assist Thomas to vote but if the argument is that as a witness she should have seen the ballot then it would seem counterintuitive that the witness, the EO and the voter would all be allowed in the compartment given section 21(6) concerning Privacy. I would interpret the Regulations to mean that the EO and voter were to go in the compartment and the witness is not to see the actual ballot but to ensure that only the EO and voter enter the compartment and that nothing else inappropriate occurs. There is no evidence that Thomas Kimiksana Jr. (“Thomas”) was not able to vote for who he wished to. Shannon Bird did witness the EO help Thomas with his ballot but she herself did not see the ballot.
[76]
Alternatively, even if Shannon Bird as a witness should have been allowed to see the ballot meaning this was technically an FNEA breach, this would not have been likely to affect the result of the election as it was a single vote. Likewise even though the EO did not mark he gave assistance to Thomas on the voting list as he should have, this would not have been likely to affect the result of the Election.
[77]
On these facts it is not alleged that the EO completed the ballot other than what Thomas indicated. Further, the Applicants acknowledged that the EO is not a band member, which undermines their position that he would have had a bias or other reason to influence Thomas’s vote.
[78]
I find no breach of the FNEA or Regulations by the EO assisting Thomas to vote.
ii.
Deputy Electoral Officers
[79]
The second alleged staffing infringement involved the deputy electoral officers Veronica Rain Bearhead and Shalanna Rain. The Applicants say there was a conflict of interest because these two deputies were both band members who voted in the Election and thus had a personal interest.
[80]
According to section 15(2) of the FNEA the EO is not entitled to vote, but this is not the issue here as the EO never attempted to vote and is not even a band member. Subsection 2(4) of the Regulations permits the EO to appoint deputies but nothing in the FNEA or the Regulations specifies that a deputy cannot be a band member and cannot vote in the election. In the EO’s affidavit he indicates that he appointed three deputies to help run the Election on August 31, 2018. Each of these three deputies signed a form saying they would carry out their duties in accordance with the FNEA. The FNEA and Regulations do not forbid a deputy from voting in their band’s election. Nor have the Applicants articulated a bias or conflict that would prevent these deputies from carrying out their duties. I find that there was no breach of the FNEA or Regulations appointing deputy EOs that were band members who voted.
iii.
Independent counters
[81]
As set out above at paragraph 11 in the facts section, the Applicants’ position is that the lack of independent counters is an infringement of the FNEA and Regulations. In this context a lack of independence seems to refer to the counters being band members or relatives of band members. Exhibit L1 of Laura Bird’s affidavit is a statement sworn by Bernice Bird saying that during the original count she saw “The counters were wives, sisters of the candidates running in the election”
along with “a few ladies that I do not know.”
[82]
A sworn declaration of Shannon Bird was filed by the Applicants and describes how the counts were preformed. Shannon Bird’s evidence parallels what the EO said occurred (see para 11 in the facts section). There was no evidence of actual bias or any other infringement of the FNEA or Regulations. I find that the setup of the tallying using counters and a deputy EO at each table is a fair procedure. The vote counting procedure has an oversight by independents as well as deputies under obligations to act fairly.
[83]
With nearly 700 ballots cast in a small community with 26 candidates running for council and 5 for chief there was bound to be some potential conflicts among a pool of ballot counters. But deputies were stationed at each table during the November 2 count to avoid any tampering with the Election. Any lack of independence of a counter became a non-issue on November 3 when the Electoral Officer and Deputy Electoral Officers together performed the more careful recount which was the binding result. Any non-independent vote counters who could have somehow influenced the first count on November 2 were not the ones counting ballots during the November 3 recount. There was no evidence of any counters disputing the final results when the EOs and the deputies completed the final count.
[84]
I find that there is no merit to the Applicants’ argument that the Election was tainted because some of the counters were not independent.
iv.
Electoral Officer
[85]
Fourth, concerning the EO’s remuneration, the Applicants say the EO was paid $30,000 to $40,000 to run the Election which was an “outstanding amount.”
As well the Applicants in oral argument often referred to the fact that this EO was known in the community and that this somehow made him ineligible or this was at least was enough for me to quash the election.
[86]
The EO was properly appointed by a Band Council Resolution on August 28, 2018 (Exhibit L of Laura Bird affidavit). Aside from this, no evidence was led to support any of the allegations surrounding the appointment of the EO or his remuneration.
[87]
I will not interfere on these facts with who the band appoints as an EO. The remuneration paid to the EO is not a ground for this Court to determine either given the valid appointment under the FNEA.
v.
Conclusion on Election Staffing
[88]
I do not find that any of the Election staffing issues to be contraventions of the FNEA.
e)
Procedures for counting and re-counting of ballots
[89]
Along with the variety of pre-counting issues discussed above, the Applicants raise concerns about how the ballots were counted and recounted. They argue the decision to perform a recount was inappropriate because a recount should only have been held if there was a margin of five or fewer votes. They further contend that when the decision to order a recount was made, the ballots were not secured properly overnight before the recount. The Applicants say mail-in ballots suddenly appeared during the recount and the way they were counted was not clearly explained. They have concerns that the recount had to be re-started part way through. The Applicants claim there was an overall lack of transparency in the process for counting ballots and declaring ballots to be spoilt.
[90]
These concerns apply to the counting and re-counting of ballots for council, although the Applicants also raise an issue with the separate counting of ballots for chief. They say the Statement of Votes for the Chiefs, the official document displaying the results, was incorrect.
[91]
The Applicants further suggest someone working at the Election should have removed an intoxicated individual who appeared at the polling station during the counting of ballots.
i.
Decision to Perform Recount
[92]
Turning to the first of these ballot counting allegations which is the decision made on the evening of November 2 to do a recount. Subsection 24(2) of the Regulations provides that a margin of five or fewer votes between a successful candidate and a candidate who would otherwise be declared elected is sufficient for a recount.
[93]
Shannon Bird stated “There were 3 people with a difference of 5 votes so Bernie indicated that there would be a recount”
for the fourth, fifth, and sixth place finishers for council. This would indeed be sufficient grounds for a recount. The EO’s affidavit gives a slightly different account: “The initial count indicated that the fourth and fifth place finishers for Council were both within 9 votes of the sixth place finisher.”
The EO’s vague language suggests the gap between fifth and sixth may in fact have been greater than 5 votes contrary to subsection 24(2). Yet, even if the EO’s account was preferred, it is still possible there was a gap smaller than nine votes between the fifth and sixth place finishers. Due to the lack of data from the first count and the lack of clarity in the affidavits, and the fact that the burden is on the Applicants, I do not find the decision to order a recount was inappropriate.
[94]
Subsection 20(4) of the Regulations provide that polls must stay open until 8:00 pm which was the case here. The EO specified the recount would be the next day at noon, which satisfied subsections 24(2) and 24(3) of the Regulations. Due to the fact that the first count of nearly 700 ballots went late after the polls closed, I do not find it was an issue to wait until the following day to do the recount. I will not interfere with the decision to perform a recount. I find this decision complied with the Regulations.
ii.
Handling of Ballots until the Recount
[95]
The next irregularity argued by the Applicants is that the EO did not properly handle the ballots between the first count and the recount. They argued that they do not know what happened that night and do not know where the ballots went or if they were tampered with. At the hearing the Applicant Ms. Bird said:
The ballots were not placed in a sealed or witnessed or something that shows me, Matthew, the people back here, our nation that the ballots were not tampered with when taken overnight… that’s the transparency and accountability that we are also looking for… they should be initialed that there should be in a way that you can’t open them… sealing them in yellow envelopes, to me, is not secure. To me, this is our nation safeguarding and securing them means to put them in a box, a metal box, leave the key with somebody else, and then come back the next day and set a time in front of everybody and unlock the box and give me the keys. [transcribed from DARS recording]
[96]
Subsection 24(4) of the Regulations says if the recount is not going to be conducted immediately after the counting then the EO must seal the ballots and keep them safely until the recount. Specifically, the EO must “deposit all ballots in envelopes and seal them in a manner that prevents them from being opened without breaking the seal”
then initial the seal and deposit the sealed envelopes into a ballot box and seal the box.
[97]
The affidavits and the arguments at the hearing confirmed the ballots were sealed in a yellow envelope and these envelopes were sealed in ballot boxes. The EO swore that “the ballot boxes were sealed and kept in my possession overnight between November 2, 2018 and November 3, 2018 until the recount was commenced.”
[98]
Coreen House confirmed in writing as evidenced by the “Witness Declaration at the Opening of the Recount”
dated November 3, 2018 that the ballots were unsealed at noon to perform the recount (Exhibit J of EO’s affidavit). Shannon Bird’s sworn statement, submitted by the Applicants, said the EO and a Deputy “sealed the ballots into an envelop[e] and said that they wouldn’t be opened till the count at noon to do the recount of the 3 people.”
[99]
The only suggestion that the ballots were somehow stored inappropriately was paragraph 5 of the Applicant Laura Bird’s affidavit where she gives hearsay evidence that “Bernice Bird mentions the lack of a secured seal and upon placing envelopes on the table.”
Bernice Bird did provided a sworn statement, however, which did not identify problems with overnight ballot storage.
[100]
With respect to the oral submissions by the Applicants about ballots being improperly kept in a large yellow envelope rather than a metal box with a key given to someone else, these arguments were not presented in the written materials and these specific protocols are not mandated by the FNEA.
[101]
I do not find that the handling of the ballots overnight were a contravention of the FNEA.
iii.
Restarting the Recount
[102]
It seems the recount was restarted due to concerns raised by Shannon Bird and/or Elania Adams. No results were provided for the preliminary recount aside from the argument by the Applicants that it was 164 to 160 (a gap of 4 votes) between fifth and sixth place before the recount was restarted. After noticing the discrepancy between the initial count and the recount, Shannon Bird said she told Bernie “Bernie we the Paul First Nation pay you lots of money to run our election, so we expect things to be done properly.”
Dawn Rain’s sworn statement at paragraph 29 confirms “ballots were recounted at least twice in the Paul School Gymnasium.”
[103]
The EO could have done a better job of documenting the results of the November 2 count, the November 3 recount, and the rationale behind the decision to restart the recount. But no parties provided the Court with evidence that detailed the results from any count other than the actual ballots themselves.
[104]
While the FNEA does not explicitly give the EO the ability to restart a recount what did occur could not be characterised as anything in breach of the FNEA or Regulations or if there was it would not have affected the outcome of the election. Furthermore as discussed below, the final recount led to the accurate result.
iv.
Spoilt Ballots
[105]
The Applicants advanced an argument that Shannon Bird claimed one of the counters during the November 2 count “read the votes without showing us the ballots”
and “she did put aside some of the ballots indicating her opinion of a spoiled ballot.”
Then during the recount on November 3 Shannon Bird said ballots were spoiled and put aside and “It was not mentioned why they were spoiled or shown to the counters.”
In their oral arguments, the Applicants suggested 16 spoilt ballots suddenly appeared when there had been no spoilt ballots originally.
[106]
That allegation by the Applicants is inconsistent with the evidence that they filed themselves from Shannon Bird and Dawn Rain. Both of those sworn statements confirm that at least some ballots were already deemed to be spoilt during the first count and Dawn had been shown the one spoilt ballot from her table and she did not disagree that it was spoilt.
[107]
This Court has counted the 691 ballots (675 valid ballots, and 16 spoilt ballots) submitted by the EO. The Court’s count confirmed the results of the final recount to be a correct reflection of the top five vote recipients for council seats, and the total number of ballots matched the official results. The final 16 ballots for council included in the package of ballots were indeed spoilt as they either contained no votes, more than five votes, or unintelligible markings.
[108]
Confirming there was nothing nefarious, in the separate ballots for chief there appear to have been 13 spoilt ballots and 676 valid ballots. The nearly identical number of spoilt ballots for both chief and council suggests there was nothing suspicious in the fact that there were 16 spoilt council ballots.
[109]
I do not find a contravention of the FNEA regarding the spoilt ballots.
v.
Mail-in Ballots
[110]
With respect to the mail-in ballots, Dawn Rain’s sworn statement says mail-in ballots were not counted during the original count and instead were only included during the recount.
[111]
In response, the EO indicates six sets of mail-in ballots were received, with four council ballots counted and two rejected for failing to complete the Voter Declaration Accompanying the Mail-In Ballot (para 12 of EO’s affidavit).
[112]
The protocol followed by the EO was consistent with section 22 of the Regulations concerning whether to accept or reject mail-in ballots. I note that Dawn Rain was a counter at only one of the counting tables and there is not evidence that the mail-in votes were not counted at another table in the first count. Dawn Rain further indicated that she did not attend the recount. In any case the evidence in the EO’s affidavit and Ms. Rain’s sworn statement together with the count above at para 104 suggest the four valid mail-in ballots were definitely properly included in the recount and therefore there is no contravention of the FNEA.
vi.
Chief Vote Counts
[113]
As for the perceived error in the Statement of Votes for Chiefs, this argument was based on the view that the Statement said there were 678 votes for chief when really there were 676 votes. I find no support for this allegation. At paragraph 19 of his affidavit, the EO notes that “676 ballots were counted as valid and 13 were rejected”
for the position of chief. The official Statement of Votes for Chiefs says “Number of valid ballots cast for candidates for Chief: 676.”
The votes for each of the five candidates (206 for Arthur Rain, 152 for Casey Bird, 147 for Aaron Bird, 143 for Daniel Paul, and 28 for Joe Bird) add up to 676. The EO even submitted all 676 valid ballots for chief numbered 1 through 676. There was no miscalculation on this form and no contravention of the FNEA.
vii.
Intoxicated individual
[114]
Finally, the Applicants indicated that an intoxicated individual appeared at the school gymnasium during the re-counting of ballots and that was a contravention of the FNEA. The Applicants have not specified how this contravened the FNEA or how this would have influenced the Election result. The Applicants’ position was simply that while the EO was elderly, he should have ordered this individual away when they were doing a recount.
[115]
Subsection 21(1) of the FNEA provides that the EO or a deputy “may order a person to leave a polling station if the person is committing an offence under the Act that threatens the maintenance of order at the polling station…”
but this allows the EO to exercise discretion.
[116]
Based on the very limited evidence before the Court, the discretionary decision not to remove this individual when they were doing a recount when he was not interfering other than speaking is not a breach of the FNEA.
viii.
Conclusion on the Procedures for counting and recounting of ballots
[117]
The Applicants have not shown any issues with the counting and recounting of ballots that contravened the FNEA and was likely to affect the results of the Election.
V.
Conclusion
[118]
The Applicants advanced an alternative position in oral arguments that all the little mistakes “add up”
to require relief of a new election. However, the wording of section 31 of the FNEA is clear that I am to look for “a contravention of a provision of this Act or the regulations”
that is “likely to have affected the result.”
It is the single contravention, which must have been likely to affect the result, not the accumulation of several alleged issues with minor tweaks to candidate names or procedural technicalities. Based on my conclusion that any breaches of the FNEA did not affect the result of the Election, I will not be ordering a new election.
[119]
The Applicants have not shown a breach of the FNEA warranting a new election or a breach of procedural fairness in the Paul Band First Nation. Accordingly, I would dismiss this application challenging the Election results.
[120]
I had indicated at the hearing that I would amend the Style of Cause pursuant to Rule 303 of the Federal Courts Rules but I will not.
VI.
Costs
[121]
The Applicants sought $30,000 in costs if they were successful. The Respondents left costs at the Court’s discretion.
[122]
Given the Applicants represented themselves and indicated that they were funding it themselves in this situation, I will not award costs and the parties will bear their own costs.
JUDGMENT in T-2063-18
THIS COURT’S JUDGMENT is that:
This application is dismissed; and
The parties will bear their own costs.
"Glennys L. McVeigh"
Judge
Annex A – Relevant legislation
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FEDERAL COURT
SOLICITORS OF RECORD
| DOCKET:
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T-2063-18
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| STYLE OF CAUSE:
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LAURA S. BIRD, MATTHEW W. ADAM v BERNIE MAKOKIS, ELECTORAL OFFICER, PAUL BAND (FIRST NATION)
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| PLACE OF HEARING:
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Edmonton, Alberta
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| DATE OF HEARING:
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MARCH 9, 2020
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| JUDGMENT AND REASONS:
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MCVEIGH J.
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| DATED:
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APRIL 2, 2020
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APPEARANCES:
| Laura S. Bird
Matthew W. Adam
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For The Applicants
ON THEIR OWN BEHALF
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| David B. Yesdresyski
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For The Respondents
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SOLICITORS OF RECORD:
| David B. Yesdresyski Professional Corporation
Barrister and Solicitor
Edmonton, Alberta
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For The Respondents
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