Brass v. Key

Brass v. Key First Nation
Court (s) Database
Federal Court Decisions
Date
2024-02-26
Neutral citation
2024 FC 304
File numbers
T-1437-22
Decision Content
Date: 20240226
Docket: T-1437-22
Citation: 2024 FC 304
Ottawa, Ontario, February 26, 2024
PRESENT: The Honourable Mr. Justice Roy
BETWEEN:
SHANNON BRASS
Applicant
and
CLINTON KEY AND THE KEY FIRST NATION
Respondents
JUDGMENT AND REASONS
[1] This application is made pursuant to section 31 of the First Nations Elections Act, (SC 2014, c 5) [FNEA]. An elector of a participating First Nation, the Key First Nation [KFN], brings his contestation of the election of Mr. Clinton Key as Chief of the KFN. Mr. Key was the successful candidate by four votes over Clarence Papequash and twelve votes over the Applicant, Mr. Shannon Brass. The election of councillors is not contested.
[2] The election was completed on June 12, 2022, for the position of Chief of the KFN, a Band as defined in the Indian Act (RSC 1985, c I-5). The members of the KFN are the descendants of the signatories to Treaty No. 4. The reserved lands for the KFN are located in Southern Saskatchewan; KFN has a total population of approximately 1,532 members, of which approximately 250 actually reside on KFN reserve lands.
[3] Out of 532 ballots cast, the successful candidate, the Respondent Clinton Key, received 147 votes, followed by Clarence Papequash with 143 votes, and Shannon Brass with 135. Five ballots were rejected; the rest of the ballots went to two other candidates, Jay-Cee Brass and Glenda (O’Soup) Brass.
[4] Before considering the merits of the application, the Court must first dispose of a motion made by Mr. Key to include a new affidavit late in the process.
I. Preliminary motion [5] The Respondent, Clinton Key, made a motion dated February 6, 2023, the purpose of which was to be granted leave to file the second affidavit of Alvira Roulette sworn on February 6, 2023. Although the motion’s title referred only to adding to the record one further affidavit, which has already been made the subject of extensive cross-examination by counsel for the Key First Nation [KFN] and counsel for the Applicant, Mr. Shannon Brass, the actual motion also requested that the Respondent be allowed to cross-examine again two affiants, Ms. Candace O’Soup and Ms. Amanda O’Soup. Furthermore, the Respondent was seeking the ability to tender new expert evidence. The Respondent claimed his motion was made pursuant to rules 312 and 279 of the Federal Courts Rules (SOR/98-106, hereinafter “the Rules”).
[6] The matter came before the Case Management Judge on January 26, 2023. An Order followed on February 15, 2023, stating that motions by either party under rule 312 would be the subject of adjudication by the “application judge”. Accordingly, prior to hearing the case on its merits, the preliminary motion was heard.
[7] As for the addition of an expert, none was presented as I was advised that the request had been denied by the Case Management Judge. I was also advised during the hearing of that preliminary matter that counsel for the Respondent had written to counsel for the Applicant, confirming that the further cross-examination of Candace and Amanda O’Soup had been denied. That letter, however, was only read into the record after the matter was pressed by the Court: the letter itself was never filed by the parties.
[8] Counsel for Clinton Key wishes to read paragraph 5 of the Court Order of February 15, 2023, as encompassing the possibility to make a motion with respect to both the new (second) affidavit of Alvira Roulette and the cross-examination of Candace and Amanda O’Soup. That is because the Order grants leave to file a motion under rule 312, without specifying whether it is with respect to paragraph (a) or (b), or both. Here is rule 312:
Additional steps
Dossier complémentaire
312 With leave of the Court, a party may
312 Une partie peut, avec l’autorisation de la Cour :
(a) file affidavits additional to those provided for in rules 306 and 307;
a) déposer des affidavits complémentaires en plus de ceux visés aux règles 306 et 307;
(b) conduct cross-examinations on affidavits additional to those provided for in rule 308; or
b) effectuer des contre-interrogatoires au sujet des affidavits en plus de ceux visés à la règle 308;
(c) file a supplementary record.
c) déposer un dossier complémentaire.
This assumes, of course, that the cross-examination of persons other than the affiant allowed to supply an additional affidavit in accordance with rule 312(a) is possible in accordance with rule 312(b).
[9] I begin with the request to allow new cross-examinations of Candace O’Soup and Amanda O’Soup. I was inclined at the hearing of the preliminary motion to reject the contention that rule 312(b) could find application such that it would be possible for the Respondent to literally re-open the cross-examinations of Candace and Amanda O’Soup on the basis that the new affidavit of Alvira Roulette opened up a new avenue to challenge the credibility of these two witnesses. First, there is the strong indication, coming from counsel for the Respondent himself, that rule 312(b) was not in play at this stage. It appears that the matter of re-opening the cross-examination had already been disposed of. Also, the request may be in breach of the collateral facts rule. Moreover, counsel admitted at the hearing of the motion that the cross-examinations were “less important”.
[10] More fundamentally, if there exists a possibility to allow for the re-opening of a cross-examination already completed, it is doubtful that rule 312(b) is the appropriate vehicle and, at any rate, it should not be allowed to split one’s case. Rule 312 applies to circumstances that differ from the situation that presents itself in this case. That is the basis on which I have decided to dispose of that request.
[11] Section 31 of the FNEA provides for the contestation of the election of the Chief of a First Nation. The Act states that it is to be done by application to a competent court, which includes the Federal Court (s 33). The Rules prescribe in Part 5 the procedure to be followed where proceedings permitted under an Act of Parliament are to be brought by application (rule 300(b)), as in this case.
[12] It is rule 308 which makes it possible to conduct cross-examinations on affidavits. But the rule is clear; the cross-examination must be completed within a specified period of time. In fact, the whole Part 5 provides for strict timelines. Furthermore, rule 84 specifies that “a party who has cross-examined the deponent of an affidavit filed in a motion or application may not subsequently file an affidavit in that motion or application …”. It also mentions expressly that “(a) party seeking to cross-examine the deponent of an affidavit filed in a motion or application shall not do so until the party has served … every affidavit on which the party intends to rely …”. The point of the matter is that there are strict rules that govern the cross-examination of affiants. In Federal Courts Practice (Thomson Reuters, 2024), the authors offer this annotation:
Rule 84 establishes the sequence for cross-examination on affidavits. A party may not cross-examine on its opponent’s affidavits until the party has served its own affidavits: rule 84(1). If the party does cross-examine, it cannot subsequently file an affidavit: rule 84(2).
The order in which cross-examinations can take place counts. Here, the Respondent wishes to actually re-open a cross-examination that has already happened. The purpose of rule 84 is evidently to deny the ability for one to split its case (R v Krause, [1986] 2 SCR 466). Cross-examinations take place once the evidence by way of affidavits has been filed.
[13] Rule 312 operates in particular circumstances. It must be read together with rules 306 and 307 which provide for the affidavits that the parties, the applicant and the respondent to an application, will use in support of their case. The cross-examination on those affidavits takes place in accordance with rule 308. Candace and Amanda O’Soup have been cross-examined on their affidavits.
[14] The Rules allow for affidavits to be submitted outside the framework of rules 306 to 308. That is what the Respondent wishes to do here by having a second affidavit submitted by Ms. Roulette well after the window for affidavits and cross-examinations pursuant to rules 306 to 308 has closed. That possibility comes through rule 312.
[15] Counsel for the Respondent argues that rule 312(b) allows for the cross-examination of other affiants whose cross-examination has already been completed. I do not believe such is the effect of rule 312(b). The cross-examination that is contemplated by rule 312(b) is that which is “on affidavits additional to those provided for in rule 308”, that is in our case, the additional affidavit of Ms. Roulette. The only cross-examination permitted by rule 312(b) is that on the additional affidavit. Rule 312(b) is limited to providing explicitly for the cross-examination of the person who submits an affidavit outside of the rules 306 to 308 framework.
[16] Candace and Amanda O’Soup have submitted affidavits on which they have been cross-examined. That was in accordance with rules 306 to 308. Neither one has submitted an additional affidavit as allowed, on leave, pursuant to rule 312.
[17] In Recours et procédure devant les Cours fédérales (LexisNexis, 2013, Letarte, Veilleux et al), the authors capture the essence of the rule when they state that when the Court allows the filing of additional affidavits, it may authorize the parties opposite to cross-examine on the additional affidavit (# 5-101). That is the mechanism created by rule 312. Candace and Amanda O’Soup have not submitted affidavits that open the door to a cross-examination pursuant to rule 312(b) simply because they have not submitted any “additional affidavit”.
[18] The Respondent is not asking for the cross-examination of the author of the affidavit, Alvira Roulette, which would be the situation contemplated by rule 312(b), but rather he seeks to cross-examine persons who have not submitted any additional affidavit in accordance with rule 312(a). To put it simply, rule 312(b) was not meant to allow the cross-examination of someone who has already been cross-examined on her affidavit (in accordance with rule 308). The cross-examination provided for at rule 312(b) concerns the cross-examination on the additional affidavit submitted pursuant to rule 312(a). That does not apply to Candace and Amanda O’Soup.
[19] As for the additional affidavit of Alvira Roulette submitted on February 6, 2023, I have been reluctant to grant the leave needed for its filing. I was concerned that this may constitute case splitting and avoiding the requirement that a party put their best foot forward at the first opportunity. The Federal Court of Appeal warned against the splitting of the case 20 years ago in Rosenstein v Atlantic Engineering Ltd, 2002 FCA 503 [Rosenstein]:
[8] Pursuant to rule 306 of the Federal Court Rules, 1998, an applicant has thirty days from the filing of its notice of application to file its supporting affidavits and exhibits (appeals under section 56 of the Trade-marks Act fall within Part 5 of the Rules entitled “Applications” (rules 300 to 334) and therefore must be commenced by way of a notice of application). By exception, rule 312 allows a party, with leave of the Court, to file additional affidavits. Under that rule, the Court may allow the filing of additional affidavits if the following requirements are met:
i) The evidence to be adduced will serve the interests of justice;
ii) The evidence will assist the Court;
iii) The evidence will not cause substantial or serious prejudice to the other side (see Eli Lilly and Co. v. Apotex Inc. (1997), 76 C.P.R. (3d) 15 (T.D.); Robert Mondavi Winery v. Spagnol's Wine & Beer Making Supplies Ltd. (2001), 10 C.P.R. (4th) 331 (T.D.)).
[9] Further, an applicant, in seeking leave to file additional material, must show that the evidence sought to be adduced was not available prior to the cross-examination of the opponent's affidavits. Rule 312 is not there to allow a party to split its case and a party must put its best case forward at the first opportunity (see Salton Appliances (1985) Corp. v. Salton Inc. (2000), 181 F.T.R. 146, 4 C.P.R. (4th) 491 (T.D.); Inverhuron & District Ratepayers Assn. v. Canada (Min. of Environment) (2000), 180 F.T.R. 314 (T.D.)).
[20] The second Roulette affidavit seeks to explain why it was needed, given that she had already provided an affidavit only a few weeks earlier, on November 21, 2022. She was cross-examined on her first affidavit on December 15, 2022; she was to bring with her various documents of a financial nature on that occasion, as she was employed as the Director of Operations by the KFN at that time. Mrs. Roulette was employed in that capacity for seven months, from July 4, 2022 to January 27, 2023. Obviously, the additional affidavit came after her employment with the KFN had been terminated.
[21] In order to justify submitting a new affidavit, Mrs. Roulette testifies in her additional affidavit that in preparation for her examination on her first affidavit in December 2022, she discovered documents that made her conclude that KFN documents had been forged and that funds belonging to KFN had been stolen by Candace and Amanda O’Soup. It is alleged that purchase orders were prepared without the required approvals.
[22] In the month before her dismissal as Director of Operations, Mrs. Roulette testified that she continued to investigate on her suspicions of malpractice and possibly fraudulent misconduct. At a meeting of Chief and Council taking place on January 10, 2023, two RCMP officers attended “to discuss the potential forgery and theft issue” (affidavit, para 16). Mrs. Roulette says that she was present. She says that she met again with an RCMP constable (who was present on January 10) to present her evidence and conclusions, despite, she says, having been instructed by “Quorum of Council” not to pursue the matter. “Quorum of Council”, she contends, is constituted of councillors adverse to Chief Key. Subsequently, that same day, the constable indicated that an investigation had been opened. As of the date of the affidavit, February 6, 2023, there had not been any charges laid and the record is silent as to further developments.
[23] The Applicant, Shannon Brass, objected to the admissibility of the Roulette affidavit. He contended that it is irrelevant, and biased, that it is constituted of speculation, opinion and conclusion of a legal nature from someone not trained as a lawyer. If the affidavit is to be admitted, its probative value is minimal. Moreover, the Applicant complains that Mrs. Roulette failed to produce relevant documentation she was requested to supply, documentation concerning requisitions for cheques and band membership assistance.
[24] Counsel for the Applicant acknowledged that rule 312(a) is suffused with discretion, but that the discretion must be exercised “with great circumspection” (Mazhero v Canada (Industrial Relations Board), 2002 FCA 295). Counsel argues that Mrs. Roulette did not show due diligence, as required. In effect, the evidence is irrelevant and has no probative value.
[25] I readily accept that the opinions expressed by Mrs. Roulette about activities she considers to be illegal are not admissible: the witness is not a person trained in the law and these comments shall be disregarded. However, it is trite law that admissibility and probative value of evidence are two different things. Here, the Applicant’s counsel confuses the two. It may be that the affiant has some hidden motivation for submitting her affidavit or that her allegations smear KFN employees. But that does not make her evidence inadmissible as such.
[26] My former colleague, Mr. Justice Luc Martineau, offered some advice, some 15 years ago, that still resonates by its wisdom in Campbell v Electoral Canada, 2008 FC 1080:
[26] To sum up, the Court possesses vast discretion to allow a party to file additional material. Such discretion is incompatible with a mechanical application of any set test or formula, whether threefold or fourfold. The factors mentioned above are not exhaustive and the jurisprudence does not prescribe how they are to be weighed by the judge or the prothonotary. Further, because each decision is discretionary and will be fact-specific, there may be other factors in any given case.
[27] Thus, it is fair to say that each case will involve a different weighing depending on the individual circumstances before the decision maker (Solvay Pharma Inc. v. Apotex Inc., [2007] F.C.J. No.1190 (QL) at para. 12, 2007 FC 913). Overall, in exercising its discretion, the Court must always have in mind the general principle mentioned at rule 3 of the Rules that “[t]hese Rules shall be interpreted and applied so as to secure the just, most expeditious and least expensive determination of every proceeding on its merits”.
[27] Although this case is far from the strongest, the Court finds that it should exercise its discretion in favour of admitting into evidence the additional affidavit of Alvira Roulette out of an abundance of caution. The conditions for its admissibility have been met, but for the affiant’s opinion that irregularities amounted to criminal offences, an opinion she was not entitled to express due to her lack of legal expertise. The conditions are those articulated in Rosenstein (supra) and endorsed again in Forest Ethics Advocacy Association v National Energy Board, 2014 FCA 88. While more appropriate diligence may have produced the information offered in the affidavit in due course, the evidence, depending on its probative value, may be of assistance to the Court for or against the Applicant and the Respondent.
[28] Given that the affiant was questioned at length on her affidavit, there cannot be substantial or serious prejudice. Indeed, the Order of February 15, 2023, provided explicitly for the Applicant to submit his own additional affidavit if he so wished. At the end of the day, the overarching consideration that the additional evidence will serve the interests of justice was met. Given the extreme animosity between factions in the KFN, it is more appropriate to allow evidence, subject to its probative value in the grand scheme of things.
[29] I noted, however, that it remains unclear at this preliminary stage what is the proposition advanced by the Respondent that would make that “evidence” probative in some fashion in the case at hand since the cross-examination of Candace and Amanda O’Soup is not allowed. That is because the allegations appear to relate to alleged events that would have taken place after the contested election and, indeed, have arguably nothing to do with the election of Clinton Key. Nevertheless, I chose to err on the side of caution and allow the affidavit, subject to the probative value it may have once the final submissions are offered by counsel.
[30] The parties sought their costs on the motion. None will be granted.
II. Prior elections [31] It is not disputed that both protagonists in this case are registered members of the KFN. This is not the first time they are involved in court cases concerning elections. KFN held its first election under the FNEA in October, 2016. The election results were annulled effective March 21, 2018, by a judgment in this Court (Papequash v Brass, 2018 FC 325 [Papequash]). Clinton Key was among the successful applicants, while Shannon Brass was one of the Respondents, together with Chief Rodney Brass. Mr. Justice Robert Barnes had found that there had been “vote buying and other dishonest attempts to influence electoral outcomes” (para 40). The decision was affirmed on appeal (Rodney Brass v Papequash, 2019 FCA 245).
[32] A new election had to take place; it occurred on June 12, 2018 and Clinton Key was elected as Councillor. That election was also challenged judicially, this time before the Saskatchewan Court of Queen’s Bench (O’Soup v Montana, 2019 SKQB 185 [O’Soup]). That time, however, the challenge did not succeed.
[33] The third election under the FNEA is now contested. I would echo the words of Justice Barnes in 2018 that it is unfortunate that there continues to be an extremely acrimonious atmosphere between two entrenched camps. Every election under the FNEA has been sharply contested with allegations that, at times, are not related to the actual election. Justice Barnes commented further at paragraph 40 of his reasons for judgment “that the corrupt practices employed by several of the Respondents during the 2016 Band election appear to reflect a long-standing tradition and acceptance by some members of vote buying and other dishonest attempts to influence electoral outcomes. These practices appear to be sufficiently entrenched that, in the election to follow, rigorous efforts will be required to ensure the integrity of the process”. Even the retention of a law firm in connection with the contestation of the 2016 election was the subject of litigation (The Key First Nation v Lavallee, 2019 FC 1467; 2021 FCA 123).
[34] Justice Mitchell of the Saskatchewan Court of Queen’s Bench quipped in 2019 that the case he heard was “the latest chapter in the troubled history of the Key First Nation band elections” (para 1). In that case, the new election ordered by Justice Barnes was contested by the appellant, Glen O’Soup, in view of his disqualification by the Electoral Officer as a candidate for the positon of Chief. It was said that Clinton Key, together with the Electoral Officer, strenuously resisted the appeal. In the end, the Saskatchewan Court of Queen’s Bench found against the applicant and ruled that the candidacy of Glen O’Soup as Chief was properly rejected by the Electoral Officer.
[35] Thus, the first election under the FNEA, in October 2016, was annulled. The one held in June 2018 was also challenged, but the challenge was dismissed. The next election, which took place on June 12, 2022, the one that saw Mr. Clinton Key become Chief, is again challenged. And again, the main allegation relates to “vote buying”.
III. The election of June 12, 2022 [36] That takes us to the third election which was completed on June 12, 2022. Advance polls were held in three locations:
June 2, 2022, in Vancouver;
June 4, 2022, in Edmonton; and
June 6, 2022, in Regina.
Each of the advance pools ran from 9:00 a.m. until 8:00 p.m., local time.
[37] The final report on the June 2022 election states that 53% of eligible voters took part in the election, that is that out of 1,001 eligible voters, 532 cast a ballot. As indicated before, the Applicant, Shannon Brass, came in third, 12 votes behind the winner, Clinton Key. The electoral system consists of the so-called “first past the post” system whereby the candidate who receives the plurality of votes is elected. At that same election, five councillors were elected: David Côté, Kimberly Keshane, Sidney Keshane, Fernie O’Soup and Solomon Reece. Their election was not contested, although it was alleged that Solomon Reece assisted Clinton Key in actions that contravened the FNEA.
IV. General principles [38] In the case at hand, three provisions of the FNEA are in play. Section 16 consists of various prohibitions. Paragraph 16(f) prohibits specifically for any one to “offer money, goods, employment or other valuable consideration in an attempt to influence an elector to vote or refrain from voting for a particular candidate”, when this is done “in connection with an election”. The test to set aside an election pursuant to s 35 of the FNEA (“the court may, if the ground referred to in section 31 is established, set aside the contested election”) is found in s 31.
[39] In O’Soup (supra), Justice Mitchell of the Saskatchewan Court of Queen’s Bench usefully summarized the principles that govern an application made pursuant to section 31 of the FNEA. That provision reads:
Contestation of election
Contestation
31 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.
31 Tout électeur d’une première nation participante peut, par requête, contester devant le tribunal compétent l’élection du chef ou d’un conseiller de cette première nation pour le motif qu’une contravention à l’une des dispositions de la présente loi ou des règlements a vraisemblablement influé sur le résultat de l’élection.
[My emphasis]
The governing principles are:
a)the burden is on an applicant to demonstrate that a contravention of a provision of the FNEA has taken place, a contravention being an action which violates a law;
b)the contravention need not be deliberate or motivated by malice. Negligence or inadvertence will do;
c)section 31 speaks of a contravention that is “likely to have affected the result”. Thus the applicant, who bears the burden throughout, must demonstrate that it is more likely than not that the contravention affected the outcome of the election (Papequash, para 33). Put simply, it must be probable that the outcome was affected, which accords with the French version of s 31 (“a vraisemblablement influé sur le résultat de l’élection”). If the outcome of the election is not shown to have probably been affected, the test will not have been met. However, certainty that the outcome would have been different is not needed;
d)the case law in the Federal Court (Papequash, paras 34 to 36; Good v Canada (Attorney General), 2018 FC 1199, paras 54-55)and in the Court of Queen’s Bench for Saskatchewan (Cyr v McNab, 2016 SKQB 357; O’Soup, para 31) acknowledges that the language of ss 35(1) of the FNEA supports a discretion in the Court to set aside the contested election “if the ground referred to in section 31 is established”, that is “the contravention is likely to have affected the result”;
e)the presumption of regularity about the election applies. Put plainly, we start from the proposition that the election was properly conducted. That in my view is no great novelty. This goes hand in hand with the burden that falls on the shoulders of an applicant who chooses to challenge an election through the use of s 31 of the FNEA. It merely reinforces the notion that the starting point is that the election comports with the requirements of the law.
[40] The Court in O’Soup also remarked that annulment should be the remedy of last resort, in cases “where it is shown that the election result “would likely have been different but for the non-compliance” with the FNEA or the FNER” (para 31). That is because the annulment of an election disenfranchises all voters, and not only those whose votes are disqualified because of some voting irregularity.
[41] The issue is, of course, what constitutes in the words of s 31 of the FNEA “a contravention of a provision of this Act or the regulations [that] is likely to have affected the result”. Does the test require that there be sufficient contraventions that the winner of the election would not be the same, the so-called “magic number” test, or is the “likely to have affected the result” test satisfied in spite of not being able to attain the magic number? And if the “magic number” test is not the only way to reach the “likely to have affected the result” test of s 31, what behaviour would need to be proven?
[42] Our Court found in Papequash at paragraphs 34 to 36 that there is a discretion in the judge to annul, in line with s 31, where the integrity of the election is jeopardized by fraud. Barnes J said that “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” (para 34). The Court in Papequash concluded that the “magic number” test was not the only one that could satisfy the requirement of s 31.
[43] Fortunately, two decisions from the Federal Court of Appeal bring much needed light on the issue. Indeed, these are of a binding nature on this Court.
[44] They involve the Red Pheasant First Nation [RPFN] whose elections are also governed by the FNEA. In a 500-paragraph decision, my colleague Justice Henry Brown had to decide whether the election to the position of Chief and a number of councillors should be annulled in application of s 31 of the FNEA (Whitford v Red Pheasant First Nation, 2022 FC 436). The Court of Appeal proceeded in two decisions. In Whitford v Chakita, 2023 FCA 17 [Whitford FCA 17], the Court examined the situation of seven councillors where, in spite of contraventions of the FNEA including electoral fraud, our Court had concluded that annulment of the election of the six councillors found to have contravened the Act was not the appropriate remedy (the seventh councillor was found not to have been in violation of the Act). In the other case, Wuttunee v Whitford, 2023 FCA 18 [Wuttunee FCA 18], our Court had reached the conclusion that the election of Chief Wuttunee and Councillor Nicotine had to be annulled.
[45] The Court of Appeal was careful to note that the particular circumstances of the cases were an essential feature in view of the discretion conferred on the Court by section 35 of the Act: when the ground referred to in s 31 has been established, “the court may … set aside the contested election”. The existence of discretion makes no doubt in spite of the argument made by Mssrs. Wuttunee and Nicotine that the test of s 31 is the “magic number” test. The Court proceeds to articulate further the test of what “is likely to have affected the result”.
[46] The starting point of the analysis is seen as being Opitz v Wrzesnewskyj, 2012 SCC 55, [2012] 3 SCR 76 [Opitz], a 4:3 decision concerning administrative errors in the Etobicoke Centre Riding federal election of May 2, 2011. The Court specified that “(t)here is no allegation of any fraud, corruption or illegal practices” (para 2). Nevertheless, the Supreme Court of Canada case provides guidance because the Canada Elections Act (SC 2000, c 9) [the CEA] provides that a candidate may contest an election where “there were irregularities, fraud or corrupt or illegal practices that affected the result of an election” (s 524(1)(b) of the CEA). The issue to be decided is whether an election is compromised enough to justify an annulment.
[47] The Court of Appeal in Wuttunee FCA 18 finds that the Supreme Court of Canada in Opitz identifies two tests at paragraph 23:
[38] In deciding whether to annul an election in a given case, the Supreme Court stated that “an important consideration is whether the number of impugned votes is sufficient to cast doubt on the true winner of the election or whether the irregularities are such as to call into question the integrity of the electoral process”: Opitz, at para. 23.
[Emphasis in para 38]
However, the Supreme Court of Canada did not depart from the “magic number” test in Opitz. Here is how the Court of Appeal characterizes the result in Opitz:
[40] After considering the centrality of the constitutional right to vote, the enfranchising purpose of the CEA, the text and context of section 524 and the competing democratic values engaged, the Supreme Court concluded that an “irregularit[y] ... that affected the result” of an election “is a breach of statutory procedure that has resulted in an individual voting who was not entitled to vote”. The Court observed that “[s]uch breaches are serious because they are capable of undermining the integrity of the electoral process”: all quotes from Opitz, at para. 51. The Court recognized, however, that a declaration that an election is annulled is “the ultimate public consequence of violating provisions of the Act, and accordingly should be reserved for serious cases”: Opitz, at para. 70.
The Court of Appeal saw at its paragraph 42 that the Opitz Court was opening the door to a different test in spite of its reliance on the “magic number” test in Opitz, as the Supreme Court of Canada “did not rule out the possibility that a “more realistic method for assessing contested election applications might be adopted by a court in a future case”: Opitz, para 73”.
[48] The Court of Appeal reviewed cases from this Court where the issue was broached. Thus, in McEwing v Canada (Attorney General), 2013 FC 525 [McEwing], a CEA case, the Court of Appeal refers to our Court having also noted that the Supreme Court of Canada had left open the possibility that, if the integrity of the electoral process was jeopardised, annulment of an election might be justified. That possibility would become more likely when fraud, corruption or illegality were found as opposed to technical irregularities. The McEwing court was, of course, concerned about disenfranchising every elector who actually voted. Hence, the bar is a rather high one, one where the “court should only exercise its discretion to annul an election where there is serious reason to believe that the results would have been different but for the fraud, or where an electoral candidate or agent is directly involved in the fraud” (Wuttunee FCA 18).
[49] The Court then discussed Papequash (supra) in this Court. It is stated that the case involved widespread unethical election practices, including using First Nation funds to purchase votes or convince candidates to decide not to run. The Papequash court was of the view (at para 34) that an election corrupted by fraud could be annulled if the integrity of the electoral process is in question: serious electoral fraud could vitiate an election result even when the “magic number” is not reached. What was the evidence in Papequash? The question is answered at paragraph 56 of Wuttunee FCA 18:
[56] The Federal Court found in Papequash FC that there was clear evidence of widespread and openly conducted vote buying activity carried out by several individuals. The Court was further satisfied that the integrity of the Key First Nation Band election had been sufficiently corrupted by the misconduct of candidates such that the election had to be annulled and a new election conducted: at paras. 39, 40. Importantly, nowhere in the decision does the Federal Court find that the number of votes affected by the corrupt practices in issue were sufficient to have changed the winners of the election.
[50] Hence, what has emerged in Wuttunee FCA 18 is a test that focuses on misconduct that is such that it is the integrity of the electoral process that is called into question:
[62] From all of this, I understand that the result of an election may well be affected where the misconduct in question is sufficiently severe that the integrity of the election was seriously corroded and compromised.
[51] It is against this backdrop that the Court of Appeal applied the test against eight Councillors and Chief Wuttunee of the RPFN to assess if the discretion that stems from s 35 of the FNEA was properly exercised. Where there is serious electoral fraud, severe enough that the integrity of the election is compromised, it would not be necessary to meet the “magic number”.
[52] The Wuttunee FCA 18 is the case where the Court of Appeal is satisfied that the election of the Chief and one Councillor had to be annulled. Here are the elements, found by the Federal Court, which are held by the Court of Appeal as justifying departing from the “magic number” test because the integrity of the process was compromised:
Mssrs. Wuttunee and Nicotine went far beyond acceptable conduct;
they were directly involved in multiple instances of serious electoral fraud (Wuttunee FCA 18, para 18);
they were engaged in “several contraventions of the FNEA, including vote buying and related activities, and of the First Nations Elections Regulations, relating to mail-in votes” (Wuttunee FCA 18, para 68);
they used First Nation funds to purchase votes, what was characterized as “particularly grave electoral fraud” (Wuttunee FCA 18, para 70).
[53] Those facts were never challenged. The Court of Appeal found that it was open to the Federal Court to annul the election of Mssrs. Wuttunee and Nicotine in those circumstances even though it had not been shown that the “magic number” test was met.
[54] In the other case (Whitford FCA 17), the Court of Appeal did not disturb the exercise of discretion which resulted in a refusal to annul the election of seven Councillors, even though in six of the seven cases, there had been violations of the FNEA.
[55] It is important, in my view, to refer to the countervailing values, referred to as democratic values, found by the Court of Appeal to have to be factored in when considering the exercise of discretion:
disenfranchising not only votes that are disqualified (or bought), but the votes cast by all the electors has broad and serious consequences (Whitford FCA 17, para 59);
increasing the potential for future litigation which carries uncertainty in the democratic process (Whitford FCA 17, para 60);
quoting from Opitz, a new election “is not a perfect answer”, as it “will always be coloured by the perceived outcome of the election it superseded” (Whitford FCA 17, para 61);
a new election may be inconvenient for voters (Whitford FCA 17, para 61);
no guarantee that the new election will be free from additional problems (Whitford FCA 17, para 61);
“frequent new elections” call into question “the security and efficiency of the voting mechanics, and this may lead to disillusionment” which itself may generate voter apathy (Whitford FCA 17, para 61);
the use of institutions outside of the governance of First Nations to resolve issues involving the democratic process of First Nations is another consideration that may be taken into account. Courts will not shrink from the task given by Parliament to intervene where appropriate; indeed, First Nations elect to have their elections governed by the FNEA. It remains, says the Court of Appeal, that “courts must nevertheless be mindful of the fact that one of the purposes of the FNEA was to move away from the “antiquated and paternalistic” approach to First Nations’ governance that existed under the Indian Act” (Whitford FCA 17, para 62);
Accordingly, I take it that the Court of Appeal signals that the annulment of an election should not be arrived at lightly, and that truly severe misconduct, once proven, will be a candidate to call for a new election.
[56] In that context, the evidence to support a case to be decided on a balance of probabilities, the one civil standard of proof at common law (F.H. v McDougall, 2008 SCC 53, [2008] 3 SCR 41) [McDougall], requires that “evidence must always be sufficiently clear, convincing and cogent” (McDougall, para 46; Canada (Attorney General) v Fairmont Hotels, 2016 SCC 56, [2016] 2 SCR 720, para 36 [Fairmont]). The quality of the evidence will help determine whether it is more likely than not that an alleged event occurred.
[57] In Whitford FCA 17, six councillors were found to have violated the FNEA. None of the violations were found to reach the severity level sufficient to exercise the discretion to annul the election:
Councillor 1: “directly involved in one instance of serious electoral fraud relating to vote buying using RPFN funds”, what was called by the Federal Court a “particularly grave electoral fraud” (Whitford FCA 17, para 8);
Councillor 2: one contravention of the FNEA and one instance of serious electoral fraud relating to vote buying, but without using FN funds (Whitford FCA 17, para 9);
Councillor 3: two instances of serious electoral fraud relating to vote buying, but without using FN funds (Whitford FCA 17, para 10);
Councillor 4: one instance of serious electoral fraud relating to vote buying, without usin