BETWEEN:
and
THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT and PEGUIS FIRST NATION BAND COUNCIL and CHIEF LOUIS STEVENSON and
COUNCILLORS MARY SUTHERLAND, GLEN COCHRANE,
GLENNIS SUTHERLAND and LLOYD SINCLAIR
REASONS FOR JUDGMENT
MACTAVISH J.:
[1] Glenn Hudson ran for Chief of the Peguis First Nation in the March, 2005 Band election. He lost to the incumbent, Chief Louis Stevenson, by 29 votes. Mr. Hudson and several other individuals then filed an appeal of the election result with Indian Affairs and Northern Development Canada, alleging, amongst other things, that Chief Stevenson had engaged in corrupt practices in the course of the election campaign. This appeal was dismissed.
[2] Mr. Hudson now seeks judicial review of the decision dismissing his appeal, asserting that the government official making the decision did not have the jurisdiction to do so, as the power to determine the outcome of such an appeal is one that is reserved to the Minister himself. Mr. Hudson further contends that the conclusion that the evidence did not support a finding of corrupt electoral practices on the part of Chief Stevenson was unreasonable, and that the process followed by the investigator was unfair. Finally, Mr. Hudson submits that the decision is fatally flawed, as the investigator and the Department failed to consider or address the propriety of the electoral list used in the election.
[3] The task of this Court in considering an application for judicial review such as this is not to determine whether corrupt practices were, in fact, engaged in by Chief Stevenson during the 2005 election campaign. Rather the Court is required to determine whether the process followed in relation to Mr. Hudson’s appeal was fair, and whether any errors were committed in dealing with the appeal.
[4] For the reasons that follow, I am of the view that the decision that the evidence did not support a finding of corruption was unreasonable, as it was based on erroneous findings of fact, and was made without regard to the evidence. Accordingly, the application for judicial review will be allowed.
Preliminary Matters
[5] A number of preliminary matters were raised by the parties, and were dealt with at the commencement of the hearing. A summary of my rulings in relation to these matters is set out below.
i) Amending the Style of Cause
[6] On the consent of the parties, an order was issued amending the style of cause to identify the governmental respondent as the Minister of Indian Affairs and Northern Development.
ii) The Motion to Admit New Evidence and for Summary Dismissal of the Application
[7] The respondent Minister also sought an order allowing the late filing of additional evidence, namely the February 9, 2007 affidavit of Carena Roller, to which is attached a copy of a newspaper article relating to an interview granted by Mr. Hudson.
[8] The Minister’s motion also asked that Mr. Hudson’s application for judicial review be dismissed summarily, on the basis that the information provided to the reporter by Mr. Hudson breached the confidentiality order issued by Prothonotary Aronovitch on November 9, 2007, as well as the confidentiality undertaking signed by Mr. Hudson on November 17, 2006. At the hearing, however, the Minister withdrew the request that the application be summarily dismissed, asking instead that Mr. Hudson’s conduct be addressed in the context of the application for judicial review itself.
[9] Given that the information contained in Ms. Roller’s affidavit had only recently come to the attention of the Minister, that it was arguably relevant to the application for judicial review, and that the admission of the new evidence did not necessitate the filing of responding affidavit material or further cross-examinations, I allowed the motion and admitted the evidence.
[10] I did not accept the submission of counsel for the respondent Peguis First Nation Band Council and all but one of the individual respondents that the application for judicial review should be summarily dismissed, notwithstanding the fact that the respondent Minister was no longer seeking such relief.
[11] My primary reason for doing so was that there was no longer a motion requesting such relief outstanding before the Court.
[12] I further ruled that even if there had been such a motion, I would not have granted it, in light of the nature of the application for judicial review, and the issues raised by it. That is, Mr. Hudson’s application for judicial review does not raise issues simply between himself and the respondents, but rather calls into question the integrity of the democratic process followed in the 2005 election of the Chief and Council of the Peguis First Nation, and the extent to which the democratic rights of the individual members of the First Nation were respected.
[13] In these circumstances, I was satisfied that the interests of justice were best served by allowing the application for judicial review to proceed to be dealt with on its merits, notwithstanding Mr. Hudson’s conduct.
[14] I also did not accept counsel for the Peguis First Nation’s alternate argument that I should, at a minimum, find Mr. Hudson in contempt of Court before proceeding to hear his application for judicial review. In this regard, I noted that contempt of court is a serious matter, and that there is a strict code of procedure set out in the Federal Courts Rules to be followed in order to ensure that the rights of those alleged to be in contempt of court are respected. In the absence of that procedure having been followed, I was not prepared to make a finding of contempt.
[15] I did advise counsel that in the event that any of the respondents wished to pursue the matter, a motion could be brought in writing, returnable before me, on an ex parte basis, in accordance with the provisions of Rule 467 of the Federal Courts Rules, SOR/98-106, for an order initiating the contempt process with respect to Mr. Hudson.
[16] In the meantime, I advised counsel that I would hear the application for judicial review.
iii) The Motion to Amend the Notice of Application
[17] The final preliminary motion came from Mr. Hudson, who sought to amend his Notice of Application to add the issue of the alleged failure of the respondent Minister to consider or address the propriety of the electoral list used in the election. After hearing from the respondents in this regard, it was clear that no real prejudice resulted from the amendment, and that none of the responding parties could point to any additional evidence that they needed to adduce in order to be able to fully respond to the issue.
[18] Moreover, notwithstanding the fact that the issue was not identified in Mr. Hudson’s Notice of Application, the issue was raised by Mr. Hudson in his memorandum of fact and law, and was fully addressed in the responding memoranda, and thus it could not be said that anyone was taken by surprise or otherwise prejudiced by the amendment.
[19] As a consequence, I allowed Mr. Hudson to amend his Notice of Application to include a claim for relief with respect to the alleged failure of the respondent Minister to consider or address the propriety of the electoral list used in the election.
Background
[20] Peguis First Nation is located around 190 kilometres north of Winnipeg, and is the largest First Nations community in Manitoba, with a population of approximately 7,500 individuals of Ojibway and Cree descent.
[21] An election for the positions of Chief and Council was held on March 24, 2005. Chief Stevenson received 1,047 votes, whereas Mr. Hudson received 1,018 votes. The respondents
Glen Cochrane, Lloyd Sinclair, Glennis Sutherland and Mary Tyler Sutherland were elected as Councillors. The election was not a customary one, but rather was carried out under the electoral provisions of the Indian Act, R.S. 1985, c. I-5.
[22] Because of perceived problems with the electoral process, Mr. Hudson launched an appeal of the election, in accordance with the procedures set out in the Indian Band Election Regulations, C.R.C., c. 952. The covering letter from Mr. Hudson’s solicitor initiating the appeal identifies the basis for the appeal as being “that there [were] corrupt practices in connection with the election and that there were several violations of the [Indian] Act and of the Regulations that have affected the result of the election”.
[23] Included with the letter were 13 affidavits that outlined various allegations of ‘vote buying’ by Mr. Stevenson and the councillors, as well as allegations of intimidation by electoral officers who favoured opposition candidates. The allegations included the following:
i) A day or two before the election, Chief Stevenson offered to give member “A” the sum of $600, a clothes dryer and a bed, in exchange for the member’s vote. This offer was allegedly confirmed by a written note, and was corroborated by the affidavit of member “I”.
ii) A couple of weeks before the election, Chief Stevenson sat in his truck outside the Peguis Hall and had individuals enter his truck one by one, whereupon he offered cash, furniture and appliances to a number of residents, in exchange for their electoral support.
iii) Councillor Rod Sutherland informed residents “B” and “C” that the Band had received four semi-trailer loads of furniture and appliances, which had been distributed to Band members. Another 10 semi-trailer loads of furniture and appliances had been ordered, but were never delivered.
iv) Member “D” was harassed at the voting booth by deputy electoral officer Karen Sinclair.
v) Larry Amos was improperly appointed as electoral officer and purposely prevented the distribution of mail-in ballots and election information.
vi) Member “E”, who is illiterate, was pressured by Larry Amos into voting for Chief Stevenson. At the voting station, Mr. Amos pointed out the names of Chief Stevenson and Lloyd Sinclair on the ballot, and did not read any of the other names on the ballot to Member “E”.
vii) Members “F” delivered sealed mail-in ballots of other members to the polling station on behalf of other members. The ballots were subsequently returned to the member, still in their sealed envelopes, and had not been counted.
[24] Mr. Hudson also alleged that a break-in at the Peguis Post Office on the evening of March 8, 2005 may have resulted in interference with ballots contained in the mail-in ballot box, which was kept at the Post Office.
[25] A couple of weeks after the appeal was initiated, two additional affidavits were sent to the respondent Minister. The affidavit of Member “G” identified concerns with respect to the membership list used in the election. The affidavit also alleged that Chief Stevenson improperly authorized expenditures from the Band’s Special Needs Program (“the SNP”), in order to solicit support during the election campaign.
[26] The SNP provides allowances to eligible Band members, in order to provide for items not included in the basic needs allowances, such as major household appliances and furnishings, travel costs for compassionate reasons and health related goods and services for non-status persons.
[27] Member “G” further alleged that four truck loads of furniture and appliances were distributed to voters at the Peguis First Nation shortly before the election.
The Appeal Process
[28] After receiving Mr. Hudson’s appeal, Indian Affairs and Northern Development Canada solicited responses from the electoral candidates and the electoral officer. Affidavit responses were received from Chief Stevenson, Glennis Sutherland and Mary Tyler Sutherland.
[29] In his affidavit, Chief Stevenson categorically denied the allegations made against him, including the allegation that he had provided money and household goods to members of the Peguis First Nation in exchange for votes. He did, however, acknowledge having provided notes or vouchers for financial assistance and household goods to a number of individuals shortly before the election, which he says was done in accordance with the First Nation’s Special Needs Program.
[30] The affidavits of Glennis Sutherland and Mary Tyler Sutherland also discussed the SNP. In particular, the affidavit of Mary Tyler Sutherland described the process to be followed in providing assistance to members on social assistance.
[31] On July 19, 2005, Indian Affairs and Northern Development Canada appointed Larry Dyck to investigate “any appeal lodged with the Minister of Indian Affairs and Northern Development” in relation to the election at the Peguis First Nation. Mr. Dyck is a retired RCMP officer, who has considerable experience in the investigation of election appeals.
[32] Between July 19, 2005, and October 12, 2005, Mr. Dyck interviewed numerous individuals in connection with his investigation, meeting with Mr. Hudson on four separate occasions. After completing his investigation, Mr. Dyck submitted a report detailing his findings to the Elections Unit at Indian Affairs and Northern Development on October 12, 2005.
The Dyck Report
[33] Mr. Dyck was mandated to investigate four issues, which are identified below. I have also provided a brief summary of his findings in relation to each issue.
[34] The first issue that Mr. Dyck was asked to investigate was the allegation that Chief Stevenson had provided money and/or appliances to member “A” in exchange for his vote, or to influence the results of the election.
[35] Mr. Dyck met with member “A” on several occasions. At times, member “A” affirmed that the contents of his affidavit were true, while at other times he stated that the allegation that Chief Stevenson explicitly stated that the goods were being provided to the member in exchange for the member’s vote was not truthful. The witness ultimately asked to withdraw the affidavit, asserting that he had been coerced into signing it by one of Mr. Hudson’s supporters.
[36] While there was no question that Chief Stevenson had given member “A” a note for $600 for “household improvements” a day or two before the election, Mr. Dyck concluded that the allegation that this was done for election purposes could not be supported by the evidence.
[37] The second issue that Mr. Dyck was asked to investigate was the allegation that Chief Stevenson had provided money and/or promissory notes for household goods from his vehicle in the parking lot of the Peguis Hall in exchange for votes, or to otherwise influence the result of the election.
[38] Mr. Dyck interviewed the majority of those individuals identified in the affidavits filed in support of the appeal, although some members could not be located, or refused to speak with him. As a consequence of those interviews, Mr. Dyck appeared to be satisfied that the meetings took place, and that requests were made to the Chief for assistance in the form of money or household goods.
[39] Moreover, Mr. Dyck seemingly accepted that at least one voucher for $300 was given out to a member that night by the Chief, and several promises were made to see what the Chief could do to get household goods for other members.
[40] However, after reviewing the statements provided by the individuals involved, Mr. Dyck concluded all of the contacts were initiated by the witnesses themselves, and not by Chief Stevenson. Furthermore, no one would confirm that the Chief had asked them directly for their vote in the upcoming election, nor did anyone actually receive money or furniture from the Chief, with one exception.
[41] The third allegation examined by Mr. Dyck was that Chief Stevenson provided furniture and appliances to Band members through the SNP, in exchange for voting in his favour, or to influence the results of the election.
[42] In this regard, Mr. Dyck reviewed a number of the allegations that had been made by Band members. A number of students attending Brandon University had met with Mr. Stevenson shortly before the election to discuss the availability of financial assistance, and whether the SNP might provide them with furniture for the students’ use while at university. Assistance was provided to the students, and although the students felt that the assistance was provided in exchange for their electoral support, they also confirmed that Chief Stevenson never explicitly stated that he expected them to vote for him in exchange for the goods.
[43] Other witnesses told Mr. Dyck that it was common knowledge that money and goods could be acquired around election time and at least one witness (member “H”) stated that a week or so before the election, Chief Stevenson told her to go to a specific furniture store and pick out what she needed, and that he would pay for it. The witness also stated that family members were given cash by the Chief.
[44] Mr. Dyck also confirmed that $24,000 was spent by the Peguis First Nation on furniture and appliances for “Special Needs cases” in March of 2005. However, Mr. Dyck also noted that a total of $54,000 was spent on furniture and appliances over the four month period between April and July of 2004, well before the election.
[45] From this Mr. Dyck deduced that it was difficult to characterize the spending in March of 2005 as being vote-buying, given that a lot more was spent the previous Spring and Summer, outside of the election period. Mr. Dyck also noted Chief Stevenson and Glennis Sutherland’s explanation that this was the time of year that the best deals were available.
[46] Finally, Mr. Dyck noted that a further 14 semi-trailer loads of furniture had been ordered by the Band, but remained in storage. Mr. Dyck surmised that Chief Stevenson and the Band Council likely stopped “being generous” with the stockpile of furniture, after allegations of vote-buying began to surface. Moreover, Mr. Dyck noted that Chief Stevenson and the Band Council had not disclosed the existence of the 14 additional semi-trailer loads of furniture ordered by the Band in their evidence.
[47] Mr. Dyck concluded that Chief Stevenson and his council did “get more generous when election day nears in the hope that recipients of Special Needs will support them”. He further concluded that the plans of Chief Stevenson and the Council to distribute additional goods prior to voting day may have been stopped when allegations of vote-buying began to surface
[48] The final issue that Mr. Dyck was asked to examine was the break-in at the Peguis Post Office, where ballots were being held, in order to determine whether or not mail-in ballots had been tampered with. In this regard, Mr. Dyck concluded that there had not been any tampering with the ballot boxes.
[49] In the course of his investigation, Mr. Dyck also explored the fact that a large number of voter declarations had been witnessed by a single person. However, after speaking to the individual concerned, the investigator accepted the witness’s explanation that a number of members of the Peguis First Nation lived in the Selkirk area, and that the individual in question had collected members’ ballots there to bring to the reserve. Mr. Dyck also noted that the ballots in question favoured a variety of candidates. Finally, he noted that many of the voters whose ballots were in issue were illiterate, and had been assisted by the individual whose conduct was under scrutiny.
The Decision to Dismiss the Appeal
[50] Mr. Dyck’s report was received by Marc Boivin, the Acting Manager of the Elections Unit at Indian Affairs and Northern Development Canada. Based on the report, Mr. Boivin recommended to Christine Aubin, the Acting Director of Band Governance that the appeal be dismissed. Ms. Aubin accepted the recommendation, which was forwarded to Brenda Kustra, the Director General of the Governance Branch at Indian Affairs and Northern Development Canada, along with a summary of the findings of the investigation. It was Ms. Kustra who made the final decision to dismiss the appeal, and whose decision is under review in this application.
[51] By letter dated December 8, 2005, Mr. Hudson was notified of Ms. Kustra’s decision. Although Mr. Hudson was not provided with a copy of Mr. Dyck’s report, Ms. Kustra’s decision letter summarized his findings. In this regard, Ms. Kustra advised Mr. Hudson that although there was evidence that Chief Stevenson had provided money, furniture and appliances from the SNP program to Band members during the election campaign, and although the way in which Chief Stevenson received and responded to requests for assistance under the SNP lacked transparency and assessment criteria, the evidence was not sufficient to conclude that those actions amounted to acts of corruption.
[52] Ms. Kustra also stated that there was no evidence of tampering with mail-in ballots during the break-in at the Peguis Post Office, or that the electoral officer exerted influence on an elector to vote for a specific candidate.
[53] Finally, Ms. Kustra stated that the electoral officer did not commit a violation of the Indian Band Election Regulations in setting aside unopened mail-in ballot packages not directly addressed to him.
[54] The letter concluded by noting that while there were problems with respect to the procedures and practices followed in relation to the electoral process at the Peguis First Nation, these did not amount to corrupt practices, as had been alleged by Mr. Hudson.
Issues
[55] Mr. Hudson’s application for judicial review raises the following issues:
1. What is the appropriate standard of review to be applied to the various questions in issue?
2. Did Ms. Kustra have the jurisdiction to deal with this matter, or is the power to dispose of an election appeal one that can only be exercised by the Minister of Indian Affairs and Northern Development?
3. Was the decision that the evidence did not support a finding of corruption based on erroneous findings of fact, or made without regard to the evidence?
4. Was Mr. Hudson accorded procedural fairness in the process followed with respect to his appeal? and
5. Did the Minister of Indian Affairs and Northern Development commit a reviewable error in failing to address the allegations relating to the electoral list used in the election?
Standard of Review
[56] The parties all say that the decision under review should be reviewed against a standard of either reasonableness or patent unreasonableness, although none of them firmly committed themselves to one standard or the other. I cannot simply accept these submissions, as they are clearly in error, at least insofar as they relate to the fourth issue, namely that dealing with procedural fairness.
[57] That is, it is by now well established in the jurisprudence that where an application for judicial review raises a question of procedural fairness, the issue of standard of review does not arise. Rather, it is for the Court to determine whether the procedure that was followed in a given case was fair or not, having regard to all of the relevant circumstances: Sketchley v. Canada (Attorney General), [2005] F.C.J. No. 2056, 2005 FCA 404, at ¶ 52-53.
[58] Insofar as the other issues are concerned, none of the parties were able to point me to any previous decisions of precisely this nature, and it is therefore necessary to go through a pragmatic and functional analysis in order to ascertain Parliament’s intent as to the level of deference to be accorded to the decision-maker, in light of the nature of the questions that the decision-maker was called upon to answer.
[59] I will return to the appropriate standard of review to be applied to each of the questions raised by this appeal in the course of my analysis of each of those questions. At this point, however, I can make the following general observations in relation to the factors outlined by the Supreme Court of Canada in cases such as Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19:
i) There is no privative clause in the Indian Band Election Regulations. This does not imply a high standard of scrutiny if the other factors point to a low standard. Rather, silence on this point is neutral.
ii) The decision-maker here is an official within the Department of Indian Affairs and Northern Development. It is to be presumed that as the official responsible for the application of the legislation in question, Ms. Kustra would have expertise in the application of the legislation with respect to First Nations elections. In my view, this factor favours greater deference.
iii) With respect to the purpose of the provision in particular, and of the Indian Act and Indian Band Election Regulations as a whole, the purpose of the statute is clearly a polycentric one. The purpose of the Indian Band Election Regulations is to administer on-reserve elections in order to ensure that the aboriginal population benefits from orderly and effective electoral representation. In enacting the Regulations, Parliament has essentially established a regime setting out the procedure a First Nation should follow. This militates towards greater deference being accorded to decisions made under the Regulations.
iv) The final factor to be considered in the pragmatic and functional analysis is the nature of the question. A number of different questions have been raised by this application, and, as noted earlier, I will examine the nature of each of these questions, and determine the standard of review to be applied to each of the questions raised by the application in the course of my analysis of the question in issue.
[60] With this understanding of the general principles governing the standard of review to be applied to the decision under review, I turn now to consider whether Ms. Kustra had the jurisdiction to deal with this matter, or whether the power to dispose of an election appeal is one that can only be exercised by the Minister of Indian Affairs and Northern Development.
Did Ms. Kustra have the jurisdiction to deal with this matter, or is the power to dispose of an election appeal one that can only be exercised by the Minister of Indian Affairs and Northern Development?
[61] The question of whether Ms. Kustra had the jurisdiction to deal with this matter, or whether the power to dispose of an election appeal was one that could only be exercised by the Minister of Indian Affairs and Northern Development is clearly a question of law. This would suggest that less deference should be paid to this aspect of the decision. Taking into account all of the factors in the pragmatic and functional analysis, I am of the view that this issue should be reviewed on the correctness standard.
[62] As a starting point for my consideration of this issue, it is helpful to reproduce the legislative provisions governing election appeals such as that brought by Mr. Hudson. In this regard, the operative provisions of the Indian Band Election Regulations state that:
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12. (1) Within 45 days after an election, a candidate or elector who believes that
(a) there was corrupt practice in connection with the election,
(b) there was a violation of the Act or these Regulations that might have affected the result of the election, or
(c) a person nominated to be a candidate in the election was ineligible to be a candidate, may lodge an appeal by forwarding by registered mail to the Assistant Deputy Minister particulars thereof duly verified by affidavit.
(2) Where an appeal is lodged under subsection (1), the Assistant Deputy Minister shall forward, by registered mail, a copy of the appeal and all supporting documents to the electoral officer and to each candidate in the electoral section in respect of which the appeal was lodged.
(3) Any candidate may, within 14 days of the receipt of the copy of the appeal, forward to the Assistant Deputy Minister by registered mail a written answer to the particulars set out in the appeal together with any supporting documents relating thereto duly verified by affidavit.
(4) All particulars and documents filed in accordance with the provisions of this section shall constitute and form the record.
13. (1) The Minister may, if the material that has been filed is not adequate for deciding the validity of the election complained of, conduct such further investigation into the matter as he deems necessary, in such manner as he deems expedient.
(2) Such investigation may be held by the Minister or by any person designated by the Minister for the purpose.
(3) Where the Minister designates a person to hold such an investigation, that person shall submit a detailed report of the investigation to the Minister for his consideration.
14. Where it appears that
(a) there was corrupt practice in connection with an election,
(b) there was a violation of the Act or these Regulations that might have affected the result of an election, or
(c) a person nominated to be a candidate in an election was ineligible to be a candidate,
the Minister shall report to the Governor in Council accordingly. |
12. (1) Si, dans les quarante-cinq jours suivant une élection, un candidat ou un électeur a des motifs raisonnables de croire :
a) qu’il y a eu manoeuvre corruptrice en rapport avec une élection,
b) qu’il y a eu violation de la Loi ou du présent rglement qui puisse porter atteinte au résultat d’une élection, ou
c) qu’une personne présentée comme candidat une élection était inéligible, il peut interjeter appel en faisant parvenir au sous-ministre adjoint, par courrier recommandé, les détails de ces motifs au moyen d’un affidavit en bonne et due forme.
(2) Lorsqu’un appel est interjeté au titre du paragraphe (1), le sous-ministre adjoint fait parvenir, par courrier recommandé, une copie du document introductif d’appel et des pices l’appui au président d’élection et chacun des candidats de la section électorale visée par l’appel.
(3) Tout candidat peut, days un délai de 14 jours aprs réception de la copie de l’appel, envoyer au sous-ministre adjoint, par courrier recommandé, une réponse par écrit aux détails spécifiés days l’appel, et toutes les pices s’y rapportant dment certifiées sous serment.
(4) Tous les détails et toutes les pices déposés conformément au présent article constitueront et formeront le dossier.
13. (1) Le Ministre peut, si les faits allégués ne lui paraissent pas suffisants pour décider de la validité de l’élection faisant l’objet de la plainte, conduire une enqute aussi approfondie qu’il le juge nécessaire et de la manire qu’il juge convenable.
(2) Cette enqute peut tre tenue par le Ministre ou par toute personne qu’il désigne cette fin.
(3) Lorsque le Ministre désigne une personne pour tenir une telle enqute, cette personne doit présenter un rapport détaillé de l’enqute l’examen du Ministre.
14. Lorsqu’il y a lieu de croire a) qu’il y a eu manoeuvre corruptrice l’égard d’une élection,
b) qu’il y a eu violation de la Loi ou du présent rglement qui puisse porter atteinte au résultat d’une élection, ou
c) qu’une personne présentée comme candidat une élection était inadmissible la candidature,
le Ministre doit alors faire rapport au gouverneur en conseil. |
[63] According to Mr. Hudson, only the Minister is permitted to dismiss an appeal under subsection 13(1) of the Indian Band Election Regulations, and that authority cannot be delegated to a subordinate official. In this regard, Mr. Hudson says that the Regulations specifically spell out the various individuals authorized to make various types of decisions in relation to election appeals, reserving certain types of decisions specifically to the Governor in Council, the Assistant Deputy Minister of Indian Affairs and Northern Development and to the Minister himself.
[64] Given that the decision under review was not made personally by the Minister, Mr. Hudson says that Ms. Kustra acted without jurisdiction in purporting to dismiss Mr. Hudson’s appeal.
[65] I do not accept this submission.
[66] A discretionary power conferred on a Minister is normally exercisable by officials within in the Minister’s department, where the individuals occupy a level of seniority that makes it appropriate for them to exercise the power in question: see, for example R. v. Harrison, [1977]
1 S.C.R. 238.
[67] This is based on the concept of ministerial responsibility, under which a Minister is legally and politically responsible for the actions of departmental officials. In this regard, the Supreme Court of Canada has recognized the necessity of this practice in modern government, noting in the Harrison case previously cited that:
A power to delegate is often implicit in a scheme empowering a Minister to act. As Professor Willis remarked in ‘Delegatus Non Potest Delegare’ (1943), 21 Can. Bar. Rev. 257 at p. 264... ‘in the application of the maxim delegatus non potest delegare to modern governmental agencies the Courts have in most cases preferred to depart from the literal construction of the words of the statute which would require them to read in the word “personally” and to adopt such a construction as will best accord with the facts of modern government which, being carried on in theory by elected representatives but in practice by civil servants or local government officers, undoubtedly requires them to read in the words ‘or any person authorized by it’ ... [t]he tasks of a Minister of the Crown in modern times are so many and varied that it is unreasonable to expect them to be performed personally.
[68] This concept is also reflected in subsection 24(2) of the Interpretation Act, R.S., 1985,
c. I-21, which provides that in interpreting legislative provisions:
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(2) Words directing or empowering a minister of the Crown to do an act or thing, regardless of whether the act or thing is administrative, legislative or judicial, or otherwise applying to that minister as the holder of the office, include [...]
(d) [...] a person appointed to serve, in the department or ministry of state over which the minister presides, in a capacity appropriate to the doing of the act or thing, or to the words so applying.
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(2) La mention d’un ministre par son titre ou dans le cadre de ses attributions, que celles-ci soient d’ordre administratif, législatif ou judiciaire, vaut mention [...]
d) de toute personne ayant, dans le ministère ou département d’État en cause, la compétence voulue. |
[69] It is indeed possible for Parliament to require that certain types of decisions be made by a Minister him- or herself. However, the type of statutory language that would indicate such a Parliamentary intent would include language such as “in the opinion of the Minister”, by the
Minister “himself” or “in the sole discretion of the Minister”: see Ramawad v. Canada (Minister of Manpower and Immigration), [1978] 2 S.C.R. 375, Québec (Attorney General) v. Carrières Ste-Thérèse Ltée, [1985] 1 S.C.R. 831 and Edgar v. Canada (Attorney General) (1999), 46 O.R. (3d) 294 (Ont. C.A.).
[70] This type of language is completely absent from the Indian Band Election Regulations.
[71] Absent statutory language that would indicate that the Minister must exercise his authority under the Regulations personally, the provisions of the Indian Band Election Regulations dealing with the disposition of appeals such as the decision under review do not require that the powers conferred on the Minister of Indian Affairs and Northern Development be exercised by him personally.
[72] As a consequence, Mr. Hudson has not persuaded me that Ms. Kustra acted without jurisdiction in deciding that his election appeal should be dismissed.
[73] This takes me to the question of whether the finding that the evidence did not support a finding of corruption was based on erroneous findings of fact, or was made without regard to the evidence. This issue will be considered next.
Was the decision that the evidence did not support a finding of corruption based on erroneous findings of fact, or made without regard to the evidence?
[74] Whether the evidence before Ms. Kustra supported a finding of corrupt election practices is a question of mixed fact and law, again suggesting a less deferential standard of review. It does, however, have a significant factual component. Taking into account all of the factors in the pragmatic and functional analysis, I am of the view that this issue should be reviewed on the reasonableness standard.
[75] In Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748, the Supreme Court found that an unreasonable decision was one that “in the main” was not supported by reasons that could stand up to a “somewhat probing examination”. As a consequence, in reviewing a decision on the reasonableness standard, the Court must ascertain whether the reasons given by the decision-maker support the decision.
[76] A decision will only be found to be unreasonable if there is no line of analysis within the reasons that could reasonably lead the decision-maker from the evidence to the conclusion. A decision may be reasonable “if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling”. See: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20 at ¶ 55.
[77] In this case, Ms. Kustra’s decision was based upon the facts found, and the conclusions drawn by Mr. Dyck as a result of his investigation. In considering the reasonableness of Ms. Kustra’s decision, all of the parties focused their submissions on the contents of the investigator’s report, rather than the decision letter itself. In my view, this was appropriate. While the analogy is not perfect, an analogy may nonetheless be drawn to the human rights process, where decisions to dismiss human rights complaints, or send them on to hearings before the Canadian Human Rights Tribunal, are made by the Canadian Human Rights Commission on the basis of investigations carried out by individuals not party to the actual decision-making process. In such cases, the reasons of the Commission may be supplemented by reference to the investigation report: see Sketchley v. Canada (Attorney General), previously cited at ¶ 37.
[78] This case involves a similar situation. As a consequence, in considering whether Ms. Kustra’s conclusion that the evidence did not support a finding of corrupt electoral practices was one that was reasonably open to her, I will take into account the findings and analysis contained in Mr. Dyck’s report.
[79] There is no question that the allegations contained in the affidavits filed in support of Mr. Hudson’s appeal are very troubling. However, while many of the witnesses were of the view that the Chief was clearly handing out vouchers for money and household goods to induce members to vote for him, the only direct evidence of an explicit ‘cash and goods for votes’ discussion involving Chief Stevenson were the statements of members “A” and “I” that a day or two before the election, Chief Stevenson offered to give member “A” the sum of $600, a clothes dryer and a bed, in exchange for the member’s vote.
[80] In the course of his investigation, Mr. Dyck had several discussions with member “A” about his allegations, during which the member alleged variously that the allegation that Chief Stevenson offered money and household goods in exchange for the member’s vote was or was not true. At different times, the member also suggested that he had been induced or coerced into signing the affidavit and, on other occasions, alleged that he had been coerced into retracting it.
[81] I am concerned about Mr. Dyck’s failure to speak to the RCMP about threats allegedly made to the witness in order to have him retract his allegations. However, at the end of the day, Mr. Dyck’s conclusion that the witness had been totally discredited, and that, as a result, member “A’s” allegation that Chief Stevenson had expressly offered him cash and goods in exchange for his vote should not be accorded any weight was entirely reasonable.
[82] Moreover, while there is no dispute that the note signed by Chief Stevenson directing the Peguis First Nation Finance Office to provide member “A” with $600 in “assistance for household improvements” was authentic, considerable doubt was cast on the legitimacy of the additional notation appearing on the document, ostensibly made by member “A”, stating that “Louie gave me this note March 23/05. He said this is for a vote for him”. Indeed member “A” told the investigator that the notation was not on the document at the time that he signed it, and had been added later by someone else.
[83] While member “I” ostensibly witnessed the discussion in question, Mr. Dyck was unable to locate to the member, and he received no response to the messages left with member “I’s” mother.
[84] In these circumstances, Mr. Dyck’s decision to discount the evidence relating to the member “A’s” allegation was perfectly reasonable.
[85] That is not, however, the end of the matter. Chief Stevenson has been Chief of the Peguis First Nation for over 20 years, and is presumably a very experienced politician. It would be surprising if such an experienced politician acted in such an overt manner, explicitly offering money and goods in exchange for votes. Moreover, direct evidence of explicit efforts to buy votes is not the only kind of evidence that could lead to a finding of corrupt electoral practices.
[86] Section 14 of the Indian Band Election Regulations directs the Minister to report to the Governor in Council where it appears that there has been a corrupt electoral practice. Sufficiently compelling circumstantial evidence could also lead to a finding that it appeared that corrupt practices had occurred in a given case.
[87] In my view, in coming to the conclusion that the evidence did not support a finding that Chief Stevenson had engaged in corrupt electoral practices in the course of the 2005 election, Mr. Dyck, and ultimately Ms. Kustra, ignored or misconstrued evidence in at least two significant areas, that could have led to a finding that it appeared that there had been corrupt electoral practices engaged in at the Peguis First Nation in March of 2005.
[88] The first of these areas relates to the manner in which money and goods were provided to members of the Peguis First Nation, ostensibly in accordance with the SNP. In this regard, it will be recalled that Ms. Kustra’s finding was that while the process “lacked transparency and assessment criteria”, the evidence was not sufficient to conclude that those actions amounted to acts of corruption.
[89] A copy of the Peguis First Nation’s Special Needs Policy was provided to Mr. Dyck. The policy sets out eligibility criteria for assistance under the policy, and a process to be followed in applying for, and assessing, applications for assistance. Amongst other things, the policy requires a consideration of the general living conditions of the applicants, and the community norm in this regard. To qualify for assistance under the SNP, applicants must also be eligible for basic needs social assistance. Finally, consideration is also to be given to all of the resources available to an applicant, including the applicant’s recent earnings.
[90] Insofar as the application process is concerned, the policy provides that an application form is to be completed, explaining the request, and identifying the costs of the goods and services requested. Applications are to be accompanied by a copy of the applicant’s budget, and completed forms are to be forwarded to the Regional Office for approval by the Manager of Income Support. All application forms are to be signed by the applicants.
[91] There is no question that the process followed by Chief Stevenson in handing out vouchers for money and household goods to voters in the days leading up to the 2005 election did not come close to complying with the requirements of the SNP.
[92] What is more troubling, however, and what does not appear to have been appreciated or considered by either Mr. Dyck or Ms. Kustra was the fact that what Chief Stevenson was doing was also completely at odds with his own description of the way that the SNP was administered in practice.
[93] That is, in Chief Stevenson’s affidavit filed with Indian Affairs and Northern Development in response to Mr. Hudson’s appeal, the Chief states that “The process involves either a member of Council or me or a member from the Social Department inspecting the home to verify the need requested. Once the need has been verified, delivery of whatever items required is made.”
[94] Chief Stevenson’s description of the actual practice was confirmed by the affidavit of Mary Tyler Sutherland, one of the individual respondent Councilors.
[95] In his affidavit, Chief Stevenson also admitted meeting members in his truck outside the Peguis Hall, and further acknowledged that he handed out a couple of vouchers for money to members. He also admitted providing a note for $300 to member “J”, although the note was later cancelled when it was discovered that one of Mr. Hudson’s supporters was trying to get hold of the note.
[96] There is also evidence of a number of other instances where the Chief handed out vouchers for money and furniture to members of the Peguis First Nation, virtually on request, and indeed, Ms. Kustra found that this had in fact occurred.
[97] There is no suggestion in the evidence that any attempt was made to visit the homes of the members in question before they were provided with vouchers for money and household goods, nor was there any apparent effort to verify the legitimacy of the requests, or the eligibility of the member making the request for Special Needs assistance.
[98] The fact that a number of the vouchers were ultimately not honoured does not, in my view, take away from the seriousness of the concerns raised by the Chief’s conduct. This is because, as Mr. Dyck himself found, the Chief and Council stopped “being generous” with the stockpile of furniture and appliances after learning that one of Mr. Hudson’s supporters was trying to get hold of the note given to member “J” by the Chief.
[99] I accept the submission of counsel for the Peguis First Nation that the purpose of an election appeal under the Indian Band Election Regulations is not to determine whether or not First Nations’ administrative policies such as the SNP were being complied with. That said, what we have in this case is money and household goods are being handed out by Chief Stevenson, immediately before an election, without any apparent scrutiny of the eligibility of the recipients, and in contravention, not only of the First Nations’ SNP policy, but also the Chief’s own description of the practice followed under the policy.
[100] The sheer irregularity of the process followed in this case is compelling circumstantial evidence of the policy being used for collateral purposes, and should, in my view, have raised serious questions in the minds of those examining the appeal.
[101] The second area of concern relates to the value of goods spent, ostensibly in accordance with the Peguis First Nation’s Special Needs Program.
[102] In this regard, Mr. Dyck examined the value of the Peguis First Nation’s expenditures on furniture and appliances for “Special Needs cases” in March of 2005, charting the expenditures in the graph attached as an appendix to this decision.
[103] Based upon the financial information provided by the Chief and Council, Mr. Dyck noted that more money had been spent under the program over a four month period in 2004, well before the 2005 election, than was spent in March of 2005. From this Mr. Dyck deduced that it was difficult to characterize the spending in March of 2005 as being vote-buying, given that a lot more had been spent the previous Spring and Summer, outside of the election period.
[104] Mr. Dyck also seemingly accepted Chief Stevenson and Glennis Sutherland’s explanation that this was the time of year that the best deals were available.
[105] There is a major problem with this analysis. That is, a review of the figures provided by the Chief and Council themselves discloses that the $24,000 expenditure on furniture and household appliances for the month of March, 2005 was already greater than the amount spent in any single month in the 30 month period for which data was provided.
[106] The $24,000 figure evidently related to four truckloads of household goods that were distributed to members during the period in question. However, Mr. Dyck also found that “a further 14 semi-trailer loads (minus 8 units) are sitting in storage”. This appears to be additional household goods that were purchased for distribution to members during the election period, but were not actually distributed when questions began to surface about possible vote buying by Chief Stevenson.
[107] Although Mr. Dyck was clearly aware of the existence of the additional 14 semi-trailer loads of goods, they do not appear to have been factored into his comparative analysis of expenditures. If the value of those 14 additional trailer loads were factored into the mix, the expenditure on household goods in the 2005 election period would have been literally ‘off the charts’. That is, the amount spent in early 2005 would have been so grossly out of proportion to all previous and future monthly expenditures under the SNP as to indicate something seriously amiss, and to raise serious questions with respect to possible corruption in the electoral process.
[108] The fact that the goods were not actually distributed, as the Chief and Council “stopped being generous” with the stockpile of furniture when questions about vote-buying began surfacing, does not take away from the fact that the goods were in fact purchased with the intention of distributing them to members. As a consequence, the value of these goods should have been taken into account in examining the expenditures in issue, and the failure to do so renders this aspect of the analysis unreasonable.
Conclusion
[109] Having thus subjected the decision of Ms. Kustra and the investigation report of Mr. Dyck to a somewhat probing examination, I am satisfied that serious errors were made in the analysis of Mr. Hudson’s appeal, such that the decision to dismiss the appeal was not reasonable. As a consequence, the application for judicial review will be allowed, and the decision set aside.
[110] Having concluded that Ms. Kustra’s the application for judicial review allowed, and the decision set aside, it is not necessary to discuss the remaining issues raised by Mr. Hudson.
Remedy
[111] Where a finding has been made that reviewable errors were made in arriving at a decision, the normal practice would be to send the matter back for a new decision to be made. However, in this case, there is little to be gained in so doing, as a new election for Chief and Council is scheduled to be held on March 22, 2007, where once again, both Chief Stevenson and Mr. Hudson are candidates for the position of Chief.
[112] As a consequence, while I am satisfied that errors were committed in the determination of Mr. Hudson’s election appeal of a magnitude that rendered Ms. Kustra’s decision unreasonable, I decline to remit the matter to the respondent Indian Affairs and Northern Development Canada for further determination.
Order
[113] The parties have asked for the opportunity to make submissions with respect to the form of the order, as well as in relation to the matter of costs. Accordingly, a conference call will be set up with counsel in order to receive further submissions in this regard, following which, an order will issue.
[114] As was previously discussed with counsel, prior to addressing the issue of costs, counsel for the Peguis First Nation and the individual respondents is to obtain instructions as to whether his clients are pursuing the issue of contempt.
Toronto, Ontario
February 22, 2007
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-97-06
STYLE OF CAUSE: GLENN HUDSON v.
HER MAJESTY THE QUEEN ET AL
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: February 13, 2007
REASONS FOR JUDGMENT: Mactavish J.
APPEARANCES:
J.R. Norman Boudreau FOR THE APPLICANT
Mr. Paul Anderson FOR THE RESPONDENT
Ms. Carena Roller MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT
Mr. Wayne P. Forbes FOR THE RESPONDENT PEGUIS FIRST NATION BAND COUNCIL ET AL, OTHER THAN GLEN COCHRANE
SOLICITORS OF RECORD:
BOOTH DENNEHY LLP FOR THE APPLICANT
JOHN H. SIMMS, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada MINISTER OF INDIAN AFFAIRS AND
Too Winnipeg, Manitoba NORTHERN DEVELOPMENT
POLLOCK & COMPANY FOR THE RESPONDENT PEGUIS IRST
Winnipeg, Manitoba NATION BAND COUNCIL ET AL, OTHER THAN GLEN COCHRANE