Date : 20050630
Docket : T-1026-05
Citation : 2005 FC 920
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
Applicants
AND :
DARREL REGAN BRUNO and DARWIN SOOSAY
and
THE ELECTION APPEAL BOARD OF THE
SAMSON CREE NATION
Respondents
ROULEAU, J.
[1] The applicants brought this motion for an interlocutory injunction prohibiting the holding of an election for the 12 member band council of the Samson Cree Nation which was to be held June 23, 2005, pending the application for judicial review filed June 14, 2005. Elections for the Samson Cree Nation band council consisting of 12 members was held May 19, 2005 pursuant to the Samson Cree Nation Election Law dated March 8, 1993 and revised September 27, 2004.
[2] An urgent teleconference hearing was held at Ottawa on Tuesday, June 21, 2005, at which time the court ordered that the election to be held June 23, 2005 be suspended pending the determination of the judicial review application. The court was satisfied that there was a serious issue to be decided, that irreparable harm could occur and that the balance of convenience favoured the suspension of the election. The court indicated that reasons would follow.
[3] The circumstances surrounding this judicial review application are as follows. An election was held on May 19, 2005 at which time the 12 member band council of the Samson Cree Nation were duly elected.
[4] Following the election a number of appeals were submitted within the prescribed time, two of which were entertained by the Samson Cree Nation Election Appeal Board at a meeting held June 8, 2005.
[5] A duly constituted committee of the Election Appeal Board entertained the appeals, one filed by Darrel Regan Bruno alleging that the electoral officer was in error when he allowed members of the band to vote after the closing of the poll at 6:00 pm on the election day of May 19, 2005. The circumstances surrounding the alleged breach of the electoral code was to the effect that the Samson Cree Nation Election Law clearly states that polls are to be closed at 6:00 pm on election day. Apparently what occurred is that just prior to the closing of the poll at 6:00 pm there was a long line-up of band members waiting their turn to enter the poll in order to cast their ballot. The electoral officer in charge of the poll, just prior to the 6:00 pm closing time, instructed security to escort all of those who had not yet voted into the gymnasium and that the lobby doors to the poll be locked as of 6:00 o'clock. There were approximately 300 voters in line and they were given an opportunity to vote following the official 6:00 o'clock closing time.
[6] The Election Appeal Board determined that the conduct of the Electoral Supervisor was beyond the exercise of his discretion; that the decision to allow those who were in line before 6:00 o'clock an opportunity to vote after the closing of the polls was ultra vires his decision-making powers. The Election Appeal Board also found that the Electoral Supervisor's powers are strictly contained within sections 16 and 17 of the Samson Cree National Election Law which provide 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 conduction 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.
17. The Assistants to the Electoral Supervisor shall assist the Electoral Supervisor in all of his duties and in the event that the Electoral Supervisor refuses or is unable to fulfill or complete his duties, one of the Assistants shall assume the same.
[7] The Election Appeal Board felt that since there were so many electors who were permitted to vote after 6:00 pm, they undoubtedly affected the outcome of the election of the band councillors. It was determined that the entire election should be set aside and that a new one for 12 band councillors be held on Thursday, June 23, 2005.
[8] The second appeal entertained by the Election Appeal Board was filed by the respondent Darwin Soosay wherein he challenged the eligibility of two band members who were elected councillors, namely Lester B. Nepoose and Larron Northwest, on the basis that both candidates were in violation of section 4 of the Election Law which provides 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:
(a) is convicted of an indictable offense after the date this Declaration comes into force;
(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 el elder of the Samson Cree Nation recognized for such purpose by Chief and Council; or
(ii) unless such member has been granted a pardon through the legal system.
(c) was guilty, in connection with an election, of corrupt practice, accepting or offering a bribe, dishonesty or other wrongful conduct.
[9] The Election Appeal Board determined as follows:
"The complaint of Mr. Darwin Soosay is allowed and a new election is ordered within two weeks of this declaration."
[10] The applicants argue that there is a serious issue to be determined since, in their view, the electoral officer in charge of the poll did not violate the electoral code. The applicants further argue that none of the applicants were invited to appear before the Election Appeal Board and were thus deprived of an opportunity to make representations, which violates the principles of natural justice. Further, it is submitted that by ordering an election within 14 days the Election Appeal Board failed to consider that section 8 of the electoral code provides for a nomination meeting must take place at least 14 days following a vacancy on the Samson Cree Nation band council.
[11] The court has been satisfied that there is a serious arguable issue with respect to the legitimacy and authority of the Election Appeal Board to determine that the Electoral Supervisor would not have the discretion to conduct the election as he saw fit. To set aside the election of an 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.
[12] The court was also satisfied that the decision, determining that the two candidates who were elected and disqualified were not given an opportunity to rebut the allegations against them, violates the principles of natural justice.
[13] The court was further satisfied that by granting the remedy is in the best interest of the Samson Cree Nation and that the status quo be preserved pending the decision of the court on the judicial review application in order to determine the legality of the decisions of the Election Appeal Board.
[14] The motion to stay the election scheduled for June 23, 2005 was granted on June 21, 2005.
[15] IT IS HEREBY ORDERED THAT the holding of a new election for band councillors is prohibited pending the determination of the application for judicial review;
That the band councillors elected on May 19, 2005 shall continue to hold office and to conduct the day to day affairs of the Samson Cree Nation, save and except to the holding of a referendum by the band at large, which was a condition imposed by Teitelbaum J. in his award vis-à-vis the Samson Cree Nation and the Government of Canada.
That the Chief and band council may continue all other negotiations arising through Teitelbaum J.'s order, save and except with respect to the holding of a referendum.
IT IS HEREBY FURTHER ORDERED THAT the Application Record be served and filed by July 22, 2005;
That the Reply Record be served and filed by August 26, 2005;
That if cross-examination of affiants is required, it is to be completed by September 9, 2005;
Should matters arise or be disclosed as a result of cross-examination of affiants, the applicants shall be allowed to serve and file an Amended Application Record by September 16, 2005;
Should the need arise, the respondents may file an Amended Reply Record by September 23, 2005;
The judicial review application shall be entertained peremptorily at Edmonton, Alberta, on October 6, 2005, at 9:30 in the forenoon.
« Paul U.C. Rouleau »
JUDGE
OTTAWA, Ontario
June 30, 2005
FEDERAL COURT
SOLICITORS OF RECORD
DOCKETS : T-1026-05
STYLE OF CAUSE : 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 v. CARREL REGAN BRUNO and DARWIN SOOSAY
PLACE OF HEARING: Ottawa, Ontario (Conference call)
DATE OF HEARING: June 21, 2005
REASONS : The Honourable Mr. Justice Rouleau
DATE OF REASONS: June 30, 2005
APPEARANCES:
Mr. Edward H. Molstad
Mr. Nathan J. Whitling FOR THE APPLICANTS
Mr. Terence P. Glancy FOR THE RESPONDENTS
SOLICITORS OF RECORD:
PARLEE McLAWS, LLP FOR THE APPLICANTS
ROYAL, McCRUM,
DUCKETT & GLANCY FOR THE RESPONDENTS