OTTAWA, Ontario, this 21st day of October, 2005
PRESENT: THE HONOURABLE PAUL ROULEAU
BETWEEN:
CHIEF VICTOR BUFFALO, on his own behalf and on behalf of the
SAMSON INDIAN BAND also known as SAMSON CREE NATION and the
SAMSON INDIAN BAND also known as SAMSON CREE NATION
and
DARRELL REGAN BRUNO and DARWINSOOSAY and
THE ELECTION APPEAL BOARD OF THE SAMSON CREE NATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review that came before the Court at Edmonton, Alberta on October 13, 2005 for a determination on the merits. The applicants were seeking review of two decisions, in particular, rendered on June 8, 2005 by the Election Appeal Board of the Samson Cree Nation.
[2] The matter was brought on June 10, 2005 at which time an interlocutory injunction was sought and entertained by the Court on June 21, 2005; the Court ordered that the decision of the Election Appeal Board dated June 8, 2005 purporting to invalidate the election of the 12 councillors of the Band elected May 19, 2005 and ordering a new election of Band councillors to be held June 23, 2005 was set aside pending the hearing and the ultimate determination on the application for judicial review. The Court also stayed the determination as to whether the election of Larron Northwest should be invalidated since he did not comply with the terms and conditions of section 4 of the Samson Cree Nation Election Law ("Election Law").
[3] The Samson Cree Nation elections are governed by an established code with respect to the establishment and election of the Chief and councillors.
[4] Proper notice of the nomination meeting for the election of the Samson Chief and Council is not challenged, nor is the nomination meeting itself under review. Elections were held on May 19, 2005 in accordance with the procedure outlined in the Election Law. There were approximately 3,163 eligible voters at the time of the election and 12 members of the Band who had qualified and offered themselves as candidates for election to the Band Council were duly elected. Some 86 members of the Band had stood for election. Following the election, two members of the Band, Darrel Regan Bruno and Darwin Soosay (the respondents), both defeated candidates, challenged the electoral results on two grounds. First, that one of the nominated and elected individuals should be deemed ineligible and disqualified pursuant to section 4(b)(i) of the Samson Cree Nation Election Law which states as follows:
4. A Samson member is not eligible to become or remain a Chief or member of the Council for the Samson Cree Nation if he:
...
(b) has an existing criminal record which includes as indictable offense as at the date this Declaration comes into force:
(i) unless such member has been granted a pardon through a Cree cultural and traditional ceremony conducted by an elder of the Samson Cree Nation recognized for such purpose by Chief and Council;
[5] The second challenge was concerned with Darrel Regan Bruno's interpretation of the election process. He suggested that it was "flawed due to the following reasons": that the time specified for elections to occur was between the hours of 9:00 a.m. and 6:00 p.m.; that the doors to the poll were locked at 6:00 p.m. but voters still in the line up who had been admitted in the building housing the polling stations were allowed to cast ballots after 6:00 p.m.; that approximately 300 eligible members voted after 6:00 p.m.; that the Electoral Supervisor exceeded her jurisdiction in allowing this process to have occurred and that, as a result, the outcome of the election was flawed.
[6] The Electoral Supervisor's duties are outlined in section 16 of the Election Law which provides as follows:
16. The Electoral Supervisor shall be recognized as the person authorized to conduct the entire administration and process of the election. The role of the Electoral Supervisor shall include the responsibility for:
(a) plans and preparations for conducting the election,
(b) providing assignments and directives to his Assistants,
(c) monitoring, reporting on progress and maintaining contact as necessary to the Samson Cree Nation Council and to Samson members concerned,
(d) obtaining any required information and materials from the Samson Cree Tribal Administration,
(e) preparing a Samson Voter's List and other lists for appropriate posting,
(f) knowing the entire content of the Election Law.
[7] Upon receipt of these complaints the Election Appeal Board made up of three members, was convened. They had been previously nominated in accordance with section 78 of the Election Law and they are governed by sections 82 through 90 of the Law. These sections provide as follows:
82. Within seven (7) days from the date of any election, any candidate in the election, any candidate in the election who has reasonable grounds to believe:
(a) there was a corrupt practice with respect to the election,
(b) that a person nominated to be a candidate in the election was ineligible to be a candidate; or
(c) that their was any other violation of these customs which may have affected the result of the election.
May commence an appeal by serving upon the Chairman of the Samson Elections Appeals Board, a letter setting out the particulars of his complaint and the grounds thereof.
83. Should the appeal request a recount, the recount shall be conducted immediately upon final tabulation as required in Paragraphs 60 to 63; however, the person requesting such recount shall pay the required fee of Two Hundred Dollars ($200.00) for appeals.
84. Immediately upon the receipt of a letter, with the required fee, commencing an appeal, the Chairman of the Samson Election Appeal Board shall notify the Electoral Supervisor that an appeal has been commenced.
85. Upon the receipt of such notification, the Electoral Supervisor must immediately forward to the Chairman of the Samson Election Appeal Board, the envelope containing all of the ballots, the list of Eligible Voters, and such other material as is requested by the Chairman.
86. Within fourteen (14) days from the date, upon which an appeal was commenced, the Samson Election Appeal Board shall meet and make a determination as to the validity of the complaint.
87. The Samson Election Appeal Board may:
(a) declare that the complaint is an invalid complaint and dismiss the appeal;
(b) declare that the complaint is a valid complaint as described in Paragraph 82(c) but dismiss the appeal because the violation of custom was not one which would have affected the result of the election; or
(c) declare the complaint to be a valid complaint and order that a new election be held within two (2) weeks of the date of the Board's determination.
88. In the event that a new election is ordered, that election shall be held in accordance with the customs described herein, subject however, to such further requirements, conditions, or directions as may be imposed by the Board in order to avoid a repetition of the violation complained of.
89. Upon making its determination, the Board shall provide the Samson Chief and Council; the Electoral Supervisor and the complainant with written reasons for its decision, including the particulars of the evidence relied upon.
90. The decision of the Samson Election Appeal Board is final and binding.
[8] A meeting was convened and called to order at 5:30 p.m. on June 8, 2005 and two of the Election Appeal Board decisions are being challenged in this application for judicial review.
[9] Dealing with the extension of time to vote, the Appeal Board confirmed there was a lengthy line up before 6:00 o'clock, the time the poll was to close; it confirmed that at 6:00 p.m. the doors to the lobby of the gymnasium where the balloting took place were locked and those who had been in line and admitted into the building before 6:00 p.m. were given an opportunity to vote. The Board considered the evidence of the complainant as well as the evidence of the Electoral Supervisor and confirmed that the Electoral Supervisor locked the doors at 6:00 p.m. after having instructed security personnel to escort voters into the building: that the poll was closed at 6:00 p.m. but that those present and escorted into the building before 6:00 p.m. and present inside the polling station were allowed to vote.
[10] The Election Appeal Board concluded that the practice of the Samson Cree Nation adhered to in past elections was to turn away people who had not voted by 6:00 p.m. though they were in line waiting their turn. This practice had been followed under Electoral Supervisor Albert Angus during the 2003 election. The Election Appeal Board concluded that the significant number of people having been allowed to vote after 6:00 p.m. unquestionably altered the outcome of the election.
[11] The Board concluded that the Electoral Supervisor had good intentions but it was an exercise of discretion on the part of the Electoral Supervisor which was not within her jurisdiction and it was ultra vires the Electoral Supervisor; that Samson Cree Nation Election Law limits the Electoral Supervisor's discretion and she must abide strictly with section 16 of the Election Law; that if the drafters of the Election Law intended the Electoral Supervisor to have the discretion to keep the polls open after 6:00 p.m., that discretion should have been included in section 16 of the legislation. The Appeal Board went on to write the following: "The Appeal Board will not substitute its collective wisdom for that of the elected officials." The Board then concluded that the complaint was valid and ordered a new election to be held on June 23, 2005 in accordance with section 87(c) of the Election Law.
[12] A further decision rendered by the Election Appeal Board was concerned with the disqualification on the basis of criminal records of a candidate. Relying on "consent for disclosure of criminal record information" of Mr. Larron Northwest which is dated April 28, 2005 and forwarded to the Hobbema RCMP office, the disclosure fails to confirm that he has no criminal record. The document merely states that "Mr. Northwest may or may not have a criminal record of conviction". The Board concluded that the requirements of section 4 of the Election Law have been breached and that "there was no pardon from either Cree cultural and traditional ceremonies conducted by an elder of the Samson Cree Nation recognized for such purposes by Chief and Council or any other legal system has been provided". As a result, the Board set aside the election or Band councillor Larron Northwest.
[13] In its concluding paragraph, the Election Appeal Board wrote that it is limited in terms of relief it can offer under the provisions of the Election Law; it has jurisdiction to do one of two things: dismiss an appeal or order that a new election be held within two weeks. It suggested that with broader discretion and powers, the Appeal Board could have ordered that Mr. Northwest rectify the deficiencies and bring his candidacy within the bounds of section 4 of the Election Law.
[14] It should be noted that all the deliberations of the Samson Election Appeal Board were conducted only with a written report from the Electoral Supervisor but without the attendance of the parties concerned, without any further evidence being requested, and without representations from the parties concerned.
[15] The interlocutory injunction, which was granted on June 30, 2005 pending the hearing on the merits of the judicial review application, stayed the determination by the Election Appeal Board that an election be held within 14 days of its decision, namely June 24, 2005, and suspended the dismissal of Council elect, Mr. Northwest. The Court was satisfied that there was a serious arguable issue, since the parties concerned were deprived of an opportunity to make representations, which violated the principles of natural justice. Further, the Court felt that an election within 14 days as ordered by the Election Appeal Board ignored section 8 of the Electoral Code which provides that a nomination meeting must take place at least 14 days following a vacancy on the Samson Cree Nation Band Council. Finally, the Court held that that setting aside the election of the entire Band Council would effectively freeze the ability of the Samson Cree Nation to govern itself and conduct its affairs pending the decision on judicial review.
[16] A telephone conference between the parties was held on June 21, 2005 wherein counsel acting on behalf of the Election Appeal Board of the Samson Cree Nation sought leave to become a party respondent in these proceedings and the Court so ordered on June 30, 2005 thereby amending the style of cause to read as follows:
CHIEF VICTOR BUFFALO, on his own behalf and on behalf of the
SAMSON INDIAN BAND also known as SAMSON CREE NATION and the
SAMSON INDIAN BAND also known as SAMSON CREE NATION
Applicants
and
DARRELL REGAN BRUNO and DARWINSOOSAY and
THE ELECTION APPEAL BOARD OF THE SAMSON CREE NATION
Respondents
[17] Motion Records from all parties concerned were served and filed in accordance with the Federal Court Rules, 1998.
[18] Subsequently, by letter dated September 8, 2005, counsel for the Applicants filed a Notice of Motion and submissions seeking an Order of the Court that the affidavits of Geraldine Hill, Darrel Strongman and Tony Mindy, filed August 26, 2005 with the Motion Record of the Respondent Election Appeal Board be struck.
[19] The Court, by Direction, indicated that the Motion to Strike the affidavits would be entertained at the opening of the judicial review proceedings at Edmonton on October 13, 2005.
[20] The applicants submit that the affidavits filed by the respondents should be struck, as they were not properly before the Appeal Board and therefore should not be brought before the Court. The only document before the Appeal Board was the Election Supervisor's report.
[21] The applicants submit that, in Gitxsan Treaty Society v. Hospital Employees Union [2000] 1 F.C. 135, Rothstein J.A. (as he then was) limited the use of extrinsic evidence to cases where jurisdictional issues are in question (at paras 12-13). The applicants also note that, absent jurisdiction questions, only evidence that was properly before the Board will be considered by this Court. In Chopra v. Canada(Treasury Board) [1999] F.C.J. No 835, Dubé J. noted, at para 5:
There is considerable jurisprudence to the effect that only evidence that was before the initial decision maker should be considered by the Court on judicial review. These decisions are premised on the notion that the purpose of judicial review is not to determine whether or not the decision of the Tribunal in question was correct in absolute terms but rather to determine whether the Tribunal was correct based on the record before it. Where affidavit material is clearly improper, the Federal Court of Appeal ruled that the material be struck out on motion previous to the hearing of judicial review.
[22] I am satisfied that the Affiants are honourable citizens, and I would generally have no problem considering their submissions; the test, as set out by Dubé J. in Chopra, is whether the affidavit material is clearly improper and I must so conclude that it is.
[23] Dealing with the opinions expressed by the Affiants, the Appeal Board members were in no better position to interpret legislation than this Court. As noted by Russell J. in Okeymow v. Samson Cree Nation [2003] F.C.J. No 940 at paragraphs 25-33, the Appeal Board does not possess any special expertise in the domain of legislative interpretation which would suggest a high degree of deference to the Board's decision. Section 78 of the Election Law was clearly analysed by Russell J. in Okeymow, where he noted at paragraph 28 that section 78 (now section 80) does not disclose or require any special expertise on the part of the Appeal Board in the domain of statutory interpretation. Section 80 of the Election Law provides as follows:
QUALIFICATIONS FOR MEMBERS:
80. All person appointed to the Samson Election Appeal Board shall be of the full age of twenty-five (25) years, non-Samson members and person of good character and reputation.
[24] I am not opposed to let the affidavits in question stand, but I have concern in two areas where I have been convinced that the material is clearly improper. First, to those portions of the affidavits suggesting statutory interpretation of the Election Law, the Court will not give any weight or effect to the proposed methods of interpretation. Pertaining to suggestions of statutory interpretation, the affidavit material is clearly improper.
[25] Should the Court consider a recital of facts contained in the affidavits as they pertain to customary election practices at the close of the polls, the evidence suggests that, in a single previous election, the former Election Supervisor, in his discretion, closed the polls at 6:00 p.m., and refused to allow any person who was in line at 6:00 p.m. and prior to vote as they had not entered the polling stations. While this reference will be considered by the Court, a single discretionary decision is not sufficient evidence to show customary election practices for the Samson Cree Nation.
[26] An isolated incident, which gave rise to a discretionary decision of a former Election Supervisor is not sufficient to suggest that turning away a line of voters at 6:00 p.m. is a custom or tradition of the Samson Cree Nation. To the extent that the affidavits relate to the closing of the polls as a custom or tradition of the Samson Cree Nation, uncorroborated or unsupported by any other evidence except a reference to the 2003 election, the affidavits material is clearly improper.
[27] It is trite law that this Court is governed by the "plain meaning" principle of statutory interpretation enunciated by the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re) [1998] 1 S.C.R. 27, which quotes Elmer Driedger's Construction of Statutes (2nd) with approval, at paragraph 21:
Today there is only one principal or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
[28] Given the Supreme Court of Canada's guidance in the Rizzo decision, and the accepted standard for statutory interpretation, this Court can proceed to an interpretation of the legislation in question, based on the plain meaning of the Election Law and the decisions rendered by the Appeal Board.
[29] With respect to the first decision of the Board setting aside the election, I am satisfied that the decision is erroneous insofar as it fails to take into account the discretion bestowed upon the Electoral Supervisor by section 16 of the Election Law. That provision has been interpreted by this Court as giving the Supervisor a broad, general authority to conduct the entire administration and process of the election. In Samson Indian Band v. Cutknife, 2003 FCT 721, Martineau, J. made the following comments in this regard at paragraphs 18 and 19:
Therefore, the Electoral Supervisor, acting under section 16 of the Election Law, just like in the case at bar, has broad general authority, not limited to the six enumerated instances in that section, to conduct the entire administration and process of the election. The authorities include: making administrative decisions respecting the practical application of procedure provisions of the Election Law to situations as they arise during an election, the practical application of procedural provisions of the Election Law during the nomination meeting, and making administrative decisions to hold the nomination meeting over for specific administrative purposes.
The wording of section 16 which provides that "[t]he role of the Electoral Supervisor shall include the responsibility for..." is clearly not exhaustive of the responsibilities of the Electoral Supervisor.
[30] In my view, that reasoning is equally applicable to this case and I am persuaded that section 16 of the Election Law would allow the Electoral Supervisor, once having locked the doors at 6:00 p.m., to exercise her discretion by allowing those who had already been admitted to the poll before 6:00 p.m. to cast their ballot. When one considers that there were only three polling booths and the ballots were cumbersome insofar as they contained 86 names together with photographs, for the benefit of band members who did not read, it is not surprising that the election process was delayed.
[31] To interpret section 16 of the Election Law so restrictively, would be contrary to the principle of statutory interpretation set out in Rizzo, supra, since it would not be in harmony with the scheme and object of legislation and the intention of Parliament which is to ensure a free and open election.
[32] I turn now to the Board's decision that declared the election of Larron Northwest as invalid since he failed to meet the requirements for eligibility as a candidate for election to Council under paragraph 4 of the Samson Cree Nation Election Law. In its reasons, the Appeal Board concluded that its terms were limited insofar as the relief it could offer and even suggested "with broader discretion and powers, the Appeal Board could have ordered that Mr. Northwest or any other candidate rectify the deficiencies and bring his candidacy within the bounds of the Election Law".
[33] As I said in granting the interim injunction, the Appeal Board, like any other tribunal, is bound by the principles of natural justice and the duty of fairness. Here, Mr. Northwest had executed an "Affidavit of Nominated Candidate" that he qualified as a candidate. The fact is that he had a Cree Cultural and Traditional Ceremony granting a pardon conducted by an elder in May of 1999. This is undisputed. The Appeal Board however, without any evidence of the pardon, simply concluded that Mr. Northwest did not meet this requirement without giving him any opportunity to make submissions to the contrary. This constitutes a breach of natural justice and fairness, and is a reviewable error which warrants setting aside the Appeal Board's decision.
ORDER
THIS COURT ORDERS that
1. The June 8, 2005 decision of the Samson Election Appeal Board is quashed.
2. The complaint of the Respondent Darrel Regan Bruno based on paragraph 58 of the Samson Cree Nation Election Law is invalid and there was no violation of paragraph 58 when the Electoral Supervisor had the doors of the voting location closed and locked at 6:00 p.m. on May 19, 2005 but allowed all voters already present and in the voting location at that time to vote.
3. The complaint of the Respondent Darwin Soosay based on paragraph 4(b)(i) of the Samson Cree Nation Election Law is invalid and, on May 19, 2005, Larron Northwest met the requirements for eligibility as a candidate for election to Council under paragraph 4 of the Samson Cree Nation Election Law.
DEPUTY JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1026-05
STYLE OF CAUSE: Chief Victor Buffalo and others v.
Darrel Regan Bruno and Darwin Soosay and the
Election Appeal Board of the Samson Cree Nation
DATE OF HEARING: October 13, 2005
REASONS FOR ORDER: Honourable Paul Rouleau
APPEARANCES:
Mr. Molstad and Mr. Rolf FOR APPLICANT
Mr. Glancy FOR RESPONDENT (Darrel
Regan Bruno and Darwin Soosay
Ms. Hanly FOR RESPONDENT (The
Election Appeal Board of the
Samson Cree Nation
SOLICITORS OF RECORD:
Parlee McLaws LLP FOR APPLICANT
Edmonton, AB
Royal. McCrum, Duckett & Glancy FOR RESPONDENT (Darrel
Edmonton, AB Regan Bruno and Darwin Soosay
Hanly Law Offices
Sylvan Lake, AB FOR RESPONDENT (The
Election Appeal Board of the
Samson Cree Nation