Landry v. Savard

Landry v. Savard
Court (s) Database
Federal Court Decisions
Date
2011-06-17
Neutral citation
2011 FC 720
File numbers
T-16-11
Decision Content
Federal Court
Cour fédérale
Date: 20110617
Docket: T‑16‑11
Citation: 2011 FC 720
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, June 17, 2011
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
DENIS LANDRY
Gaétan Landry
Christian Trottier
Lucien Millette
Dave Lefebvre
Applicants
and
Yvon Savard
Louise Bernard
Diane M’Sadoques
and
Raymond Bernard
Nayan Bernard
Keven Bernard
Jacques Bernard
Réjean Bonneville
Jules Bernard
Catheline Bernard
Nelson Lefebvre
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1] On November 14, 2010, the applicant Denis Landry was elected Chief and the other applicants were elected councillors of the Bande des Abénakis de Wôlinak (the First Nation). This election was appealed by the defeated candidates, including the former Chief, Raymond Bernard, and some of the other incumbent councillors (the applicants). In accordance with the custom election code of the First Nation, this appeal was decided on its merits by the three‑member appeal board constituted by the incumbent Council that had called the election after an appeal board had set aside the election held on June 13, 2010 (the first election). In this case, the appeal board was constituted of Yvon Savard, the president, and Louise Bernard and Diane M’Sadoques, the members (the Tribunal).
[2] On December 21, 2010, the majority of the Tribunal, Mr. Savard dissenting, decided to set aside the election of November 14, 2010, and order that a new election be held as soon as practicable. The Tribunal also ruled that the incumbent Council had to remain in place until the results of the new vote were known. By means of this application for judicial review, the applicants are asking this Court to overturn the appeal board’s decision.
II. The facts
[3] The First Nation has a very small population; some one hundred persons live on the reserve, and approximately four hundred live off the reserve.
[4] The elections for the Council of the First Nation are not governed by the regime set out in the Indian Act; instead, they are held in accordance with the election code, or Code électoral (the Code), approved by referendum by the members of the First Nation and then by the Minister of Indian Affairs (the Minister) on May 29, 2009.
[5] Sections 8.2 and 8.7 of the Code are of determinative importance to the outcome of this application. Section 8.2 provides that a candidate in the election or an elector who voted may file an appeal with the appeal board if this person has reasonable grounds to believe that
(a) there was corrupt or fraudulent practice in connection with an election to an office;
(b) there was a violation of this Code that might have affected the result of an election to an office;
(c) a person nominated to be a candidate in an election was ineligible for this office.
[6] Section 8.7 of the Code provides as follows:
[translation]
If the appeal board has reason to believe that
a. there was corrupt or fraudulent practice in connection with an election,
b. there was a violation of this Code 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 appeal board may set aside the election in whole or in part and order a new election or vote in respect of one or more positions.
If the appeal board does not have reason to believe that the appellants’ allegations have merit, the board gives written notice to the appellants, the candidates, the electoral officer and the new Council of the Abénakis de Wôlinak First Nation of its decision to dismiss the appeal.
All decisions of the appeal board are final and without appeal.
[7] The election officer, Robert St‑Ours (the President), had reported on the election of November 14, 2010, as follows:
[translation]
1. The voters list consisted of 492 electors, among whom 333 were sent mail‑in ballot voting packages off‑reserve; 42 mail‑in ballot voting packages were given to electors on the reserve, for a total of 375 mail‑in ballot packages.
2. The Officer received 209 mail‑in ballot voting packages before the November 14, 2010, deadline; 5 ballots were received after this date and therefore disallowed; 13 non‑compliant voter notices were disallowed; and 4 mail‑in ballots received alone in their return envelopes were disallowed.
3. Distribution of votes:
· The participation rate was 39 percent for the 192 votes cast by mail, and 14 percent for the 71 votes cast at the polls.
· The total number of votes was 263, for a participation rate of 53 percent.
4. Election results:
(1) Office of Chief
Denis Landry – 145 votes – elected
Raymond Bernard – 70 votes
Jacques Bernard – 41 votes
(2) Office of non‑Aboriginal councillor
Gaétan Landry – 165 votes – elected
Réjean Bonneville – 64 votes
(3) Office of Aboriginal councillor
Lucien Millette – 148 votes – elected
Dave Lefebvre – 133 votes – elected
Christian Trottier – 128 votes – elected
Catheline Bernard – 110 votes
Nelson Lefebvre – 53 votes
Jules Bernard – 51 votes
Keven Bernard – 35 votes
Nayan Bernard – 35 votes
[8] Mr. Savard is a former public servant in the Department of Indian Affairs; he was retired and lived in Florida throughout his tenure of office as president of the appeal board established for the election of November 14, 2010. He had also advised the First Nation when it decided to adopt a custom election code, newly enacted and approved by the Minister in 2009, in accordance with which the first election was held. Mr. Savard was the president of the first appeal board that set aside the first election; Diane M’Sadoques was member of that same appeal board. Diane M’Sadoques has worked for 19 years for the Grand Conseil de la Nation Waban‑Aki; she acted as secretary of the appeal board at issue here. Louise Bernard is the third member; she is Raymond Bernard’s sister.
III. Conduct of the appeal
The appeals
[9] On or about November 21, 2010, the appeal board received an appeal dated November 16, 2010, filed by all of the defeated candidates, requesting that the appeal board [translation] “investigate the procedures and irregularities we have noticed:
Many voter declaration forms were witnessed by the same persons, such as Denis Landry and Lucien Millette, and we even suspect that they put pressure on the electors, some of whom were vulnerable and had little education. The Council’s receptionist received completed mail‑in ballot envelopes, which we found odd, and we were unable to check whether those envelopes were well and truly given to the electoral officer. The voters list was given to the candidates who requested it, whereas the electors had not authorized the electoral officer to disclose their address and telephone number. When the counting was completed, we noticed that the candidates’ representatives gave the candidate Lucien Millette the lists of electors who did and did not vote; the electoral officer should have kept that information secret. The expectation of secrecy was not honoured for all of these reasons; we request that the election be set aside immediately and that you order another election immediately. This situation is very urgent since, before the election, some of the Landrys circulated information that if they were elected, they would use the band council’s funds to defend their case, as they were permanently removed from the Register of Indian Affairs Canada about a month ago.”
[10] On November 19, 2010, Kevin Bernard, elector and candidate for the office of councillor, filed an appeal on the following grounds:
[translation]
Last September, my spouse was subjected to intimidation by the former director general of the Wôlinak band council, Bernard Ross, with the aim of having me join Denis Landry’s team on the pretence that the incumbent Chief would do nothing for the youth of the community. Furthermore, Bernard Ross told Karine Rouleau [his spouse] that when she returned from maternity leave, she would not necessarily be able to return to her job with a band council led by the former Chief, Raymond Bernard. Under the membership code of 1987, ONLY those members registered in the Indian Register have voting rights in elections. Considering that 108 members of the Landry family lost their status in 1995 for birth certificate forgery and that this decision by the Registrar of the Department of Indian Affairs was reconfirmed in 2010, this means that those members, their spouses and their children should not have had voting rights. It must also be emphasized that the 1987 code is still in force. For these reasons, we request that the appeal board immediately set aside the election of November 14, 2010.
[11] In addition to those two appeals, the appeal board received three affidavits and a letter, as follows:
(i) The affidavit of Nelson Lefebvre, status member, which states:
[translation]
1. I asked the band council’s receptionist, Lucie Landry, to give me two mail‑in ballot voting packages. She told me that she would to send an email to the electoral officer, Robert St‑Ours, and wait for his reply.
2. The packages were not delivered to me personally, but sent through internal mail at the band council by the receptionist.
3. I never saw the authorization email from the electoral officer and do not know whether the mail‑in ballot voting packages could have been given out by the receptionist, Lucy Landry, on her own initiative.
(ii) Réjean Bonneville’s affidavit is similar to Nelson Lefebvre’s. His first paragraph is identical, except that he states having asked Lucie Landry to give him five mail‑in ballot voting packages. He adds, [translation] “She then gave them to me”. His second paragraph is different. He asserts that [translation] “when I went to take them back, duly completed and sealed, she placed them on her desk”.
(iii) In her affidavit sworn November 24, 2010, Marielle Béliveau affirms that she did [translation] “not give the electoral officer, Mr. Robert St‑Ours, permission to disclose my name, address and telephone number to the candidates in the election campaign leading to the election of November 14, 2010”.
(iv) The letter received by the appeal board was written by Manon Bernard. Her complaint was that Lucie Landry had given her personal information [translation] “to everyone who ran in the November 14, 2010, election”.
Replies to the appeals
[12] According to section 8.4 of the Code, the elected parties had the right to reply in writing to the grounds raised in both complaints. The following replies were filed with the appeal board under solemn affirmation:
1. Denis Landry’s reply, dated December 9, 2010, is as follows:
a. [translation] “Regarding the intimidation allegedly directed at Keven Barnard’s spouse by a former band council employee, Bernard Ross:”
i. [translation] “Neither Keven Bernard nor his spouse stated what the intimidation involved; Keven Bernard’s spouse, the person concerned, is even more vague than Keven Bernard on this point”;
ii. [translation] “Even supposing that there was intimidation, neither I nor the other candidates had anything to do with that incident”.
b. [translation] “Regarding my right to vote and the voting rights of the other non‑status members of the Bande des Abénakis de Wôlinak:”
i. [translation] “I and the other non‑status members to whom Keven Bernard is referring are on the band list of the Abénakis de Wôlinak, as we are entitled to be under section 8.2(a) of the Code de citoyenneté [membership code] as Abénakis descended from an Abénaki living on the Abénakis de Wôlinak reserve”;
ii. [translation] “I and the other non‑status members referred to by Keven Bernard are therefore ‘électeurs’ [electors] under section 1.3 of the Code électoral, and were registered on the voters list for the November 14, 2010, election”;
iii. [translation] “Moreover, it would be absurd for section 2.1 of the Code électoral to provide that the position of Chief can be held by a non‑status elector and to have specifically created a position for a non‑status councillor if non‑status electors did not have voting rights!”
c. Regarding the grounds argued in support of the appeal filed by Raymond Bernard, Réjean Bonneville, Keven Bernard, Nayan Bernard, Jacques Bernard, Jules Bernard, Catheline Bernard and Nelson Lefebvre, Denis Landry replies as follows:
i. [translation] “As for the first ground, which concerns the voter declaration forms I signed, I should not even have to reply because the appellants themselves admit that these are ‘suspicions’ on their part, not facts and, furthermore, they do not name the electors I allegedly put ‘pressure’ on and also fail to specify what kind of ‘pressure’ that would be”;
ii. [translation] “However, in the interests of transparency, I affirm that I did not put any ‘pressure’ on the electors whose voter declaration forms I witnessed”;
iii. [translation] “Regarding the second ground, which concerns the mail‑in ballot envelopes received by the Council’s receptionist and the appellants’ ‘suspicions’ as to whether those envelopes were given to the electoral officer, here again there should be no need to reply to mere suspicions. As well, the issue does not concern me or the other election candidates in the slightest. However, for transparency’s sake, I have appended hereto the solemn affirmation of the Council’s receptionist—Exhibit P‑2 of my solemn affirmation—who affirms having given the electoral officer all of the mail‑in ballot envelopes she received”;
iv. [translation] “As for the third and fourth grounds, which concern the secrecy of the voters list, I note that this criticism, if it is one, is directed not at the elected candidates but rather at the electoral officer and that, as well, supposing that the alleged disclosures were an error, this is not among the grounds for setting aside an election as set out at section 8.2 of the Code”.
v. He states that, in the past, election appeals made on the same grounds (non‑status members’ lack of voting rights) were dismissed, and has filed, in support, a letter dated September 1, 1998, from the department’s director general of registration;
vi. He denies Keven Bernard’s allegation that the Landry family’s loss of voting rights was reconfirmed by the department in 2010.
d. Mr. Landry asks that the appeal board reject the appeals because they [translation] “fail utterly to establish any of the three grounds for setting aside the election provided for at section 8.2 of the Code electoral” and, in particular, [translation] “how, for each of the grounds alleged, the election results were affected”, adding, [translation] “these appeals are made on the basis of vague suppositions, suspicions and hearsay, which does not fulfill the requirements of section 8.2 of the Code électoral.” He also requested that the appeals be dismissed on the ground that they were not made in the form required by the Code. [Emphasis added]
[13] Gaétan Landry’s reply addresses the contention regarding the voting rights of the members of the Landry family. His reply is similar to that of Denis Landry in this regard. He adds that the two appeals do not raise any of the grounds admitted by section 8.2 and, more specifically, [translation] “they do not explain in what way the alleged incidents influenced the election results”.
[14] Lucien Millete’s reply is the same as Denis Landry’s as regards the voter declaration forms and the disclosure of the voters list. According to him, these are merely a matter of [translation] “suspicions” and allegations of [translation] “pressure” that are unproven, undefined and fail to identify the electors concerned who are [translation] “vulnerable and have little education”. He denies having [translation] “put any pressure on the electors for whom he acted as witness”. He also notes that the appellants mention [translation] “that the voters list was given [translation] ‘to the candidates who requested it’”. He acknowledges that, after the votes were counted, his representatives gave him the voters list showing who did or did not vote, adding that [translation] “since the other candidates’ representatives also gave them that same list, well, I see nothing in the Code électoral forbidding that, and, if there is a criticism to be made against anyone about secrecy, the criticism is not directed towards the candidates, but towards the electoral officer”. He emphasizes that the appellants [translation] “do not explain in what way the candidates’ receipt of voters lists after the counting of votes might have influenced the election results”.
[15] Dave Lefebvre and Christian Trottier, both elected councillors in the November 14, 2010, elections, made similar replies; they raise two points: for one, neither of the two appeals satisfies the requirements of form and substance set out at section 8.2 of the Code and, for another, none of the allegations concerns them.
[16] Louise Landry was the receptionist of the Council of the First Nation during the election period. In her solemn affirmation, she affirms that she received a certain number of mail‑in ballot envelopes for the Electoral Officer from electors (residing on the reserve) having used the mail‑in voting method. She states that all of these envelopes were sealed and that she diligently placed them in the drawer set aside for this purpose in the Electoral Officer’s office located on the Council premises.
V. Tribunal record
[17] Section 8.5 of the Code provides as follows :
[translation]
8.5 Appeal Record
All particulars and documents filed in accordance with the provisions of this section will constitute and form the appeal record. Once the appeal procedure is complete, the appeal record is archived with the Council of the Première nation des Abénakis de Wôlinak.
[18] In this case, the contents of the Tribunal record are of particular importance, given that its president lived in Florida throughout the sitting of the Tribunal. This record contains the exchanges of documents and emails between Mr. Savard and Diane M’Sadoques and the members’ comments between themselves.
[19] This record shows that Mr. Savard prepared the draft communications from the board to individuals. As an example, I refer to the acknowledgement of receipt of the appeals (Record pages 12, 14 and 15), notifying the appellants of the deadline to send in their reply, on December 14, 2010.
[20] The record also contains Mr. Savard’s exchanges with third parties. At page 22 of the Tribunal record, there is a copy of the email he sent to the electoral officer on December 1, 2011, asking him for his comments on the appeals, with a copy of this email sent to Ms. M’Sadoques, and Mr. St‑Ours’ reply, which Mr. Savard received and forwarded to Ms. M’Sadoques (see Record pages 24 and 63).
[21] I reproduce below the comments of the electoral officer:
[translation]
First, the person whom I had hired to assist me in the process resigned the day before the presentation assembly. I therefore had to deal with that state of affairs at very short notice.
I never gave a voters list to anyone at all. The question was raised at the beginning by a candidate. I replied that I would check the election code. Some persons pointed out to me that the incumbent chief had access to the voters list and that documents were sent to electors. I added that what was sauce for the goose should be sauce for the gander, but I never asked for this to be done.
I oversaw the distribution of all of the mail‑in packages. I did indeed leave sealed packages at the reception desk to accommodate electors, since I was only present for one half day each week. As for the envelopes returned by Réjean Bonneville, he could have mailed them; there was postage affixed to the envelopes. He alleges that he cannot know whether the return envelopes were given to the electoral officer. There is a way to check: by asking the electoral officer. I can affirm that I have in hand the voter notices of Réjean Bonneville and his family, confirming that I did indeed receive those envelopes.
On the matter of secrecy, it is my duty to ensure that the vote is secret. All of the witnessing representatives can know who voted, but cannot know for whom those electors voted. I would have preferred that the lists remain in the room.
After the counting, around twenty minutes after midnight, I asked everyone to wait and went to the washroom. When I came out, the police officer informed me that there were people outside. I went out. They asked me for the results. I replied that I would give them out in the next ten minutes or so. Right then, the candidates’ representatives exited. I asked them to go back inside so that I could make the announcement myself. The two persons assisting me gathered up the documents during that time.
I do not think that the fact that one of the representatives exited with a list of the electors who voted breaches the duty of secrecy of the ballots under the election code.
It is the electoral officer’s duty to ensure that the electors’ choices as to how they cast their vote remains fully secret, and that duty was well and truly fulfilled. (Record page 63) [Emphasis added]
[22] On December 14, 2010, Mr. Savard sent the two other members of the Tribunal the results of his research, analysis, comments and conclusions regarding both appeals. To save time and possibly make a decision before the holidays, and in the expectation of a consensus among the board members, Mr. Savard had prepared everything in the form of a response to the appellants. He emphasized to his colleagues [translation] “that our role as an appeal board is to determine whether any of the grounds raised could have contravened section 8.2 of the Code”, adding, [translation] “[h]owever, for my part, you will note upon reading my analysis and my conclusions that I found no ground which could contravene section 8.2 and, consequently, I am of the opinion that both appeals should be dismissed. I would hope that you share my opinion.” (Record page 65 to 76). [Emphasis added]
[23] That same day, Diane M’Sadoques sent Mr. Savard the comments received by the board from Denis Landry (Record pages 77 to 86), Lucie Landry (Record page 87), Lucien Millette (Record pages 88 and 89), Gaétan Landry (Record pages 90 and 91), Christian Trottier (Record page 92) and Dave Lefebvre (Record page 93).
[24] On December 15, 2010, Ms. M’Sadoques sent Mr. Savard her comments and analysis regarding the holding of the election, the appeal filed and the comments of the electoral officer and those of the applicants (Record pages 95 to 98). Essentially, Ms. M’Sadoques’ comments are identical to those found in support of her decision. I note that in the comments they sent to Mr. Savard, Ms. M’Sadoques and Ms. Bernard did not conclude, at that time, that the election should be set aside.
[25] The Tribunal record shows that it was not until the morning of December 21, 2010, that Mr. Savard realized that the arguments of his two colleagues were aimed at setting aside the election. Through the day on December 21, 2010, he revised the documentation to reflect a split decision.
[26] He sent the following email on December 21, 2010 (Tribunal record page 142):
[translation]
I am extremely surprised to learn that police officers are already at your place to go deliver the letters; first, to comply with the spirit of the policy, the letters in question must be sent by registered mail; second, this is not at all as agreed this morning by telephone during our telephone conference. I was to send you, as soon as possible in the early afternoon, a draft letter containing both sets of arguments as to how the two appeals received by the board are to be dealt with. We were then to discuss whether you agreed. I do not know what is inciting you to act so hastily right now; I was thinking even the opposite: that we should take our time, because although I found that the facts were clear enough to dismiss both appeals, my suggestion, which you refused, to appoint an independent investigator would have allowed you to avoid making a decision that I find to be unreasonable.
Nonetheless, I will send you my draft letter in the next half hour, but I will point out to you that it should not stop there, since, once we agree on the draft letter, another one will have to be prepared to send to the elected candidates and the officer to inform them of the decision in the manner set out in the Code électoral.
Last, if you make any changes, I hope that you will have the common decency and courtesy to send me the final version of the draft. [Emphasis added]
VI. Tribunal’s decision
[27] On December 21, 2010, at or about 4 p.m., the appeal board delivered a split decision. This decision stated that it was accompanied, in an appendix, by the arguments of the majority and Yvon Savard’s dissenting arguments. Part of Mr. Savard’s arguments was left out inadvertently; it was given to the parties two days later.
[28] In its decision, the majority of the appeal board stated that, after having analyzed the contents of the appeal documents, it acknowledged that irregularities had come about during the election and that some of the grounds raised by the appellants had merit. [translation] “The main grounds were that the voters list containing members’ addresses and telephone contact information was given to the candidates who requested it (contravening section 5.1) and that the list of electors who had and had not voted was given to one of the candidates (contravening sections 5.18 and 7.1). The majority of the members of the appeal board reached the decision that under paragraph 8.7(b) of the Code, they had the duty to set aside the election and order that a new election be held in as soon as practicable”.
Arguments of the majority
[29] The arguments of the majority give the reasons for which it decided that the election had to be set aside.
1. [translation]
The Code électoral states that the Electoral Officer provides, upon request by any elector residing on the reserve, the documents described (mail‑in ballot voting package), which documents must be sent by mail or given to each elector. The majority notes: . . . In his comments, the electoral officer admits to having left packages at the reception desk. Lucie was not authorized to distribute them (affidavit of Réjean Bonneville, point 1, and of Nelson Lefebvre, point 1).
2. The voters list was corrected/revised. The majority stated the following:
[translation]
Three members were registered on October 12. The same three members were removed on October 20. However, one of them was able to vote in the election. (Reason given by the Electoral Officer: the CBW [Wôlinak band council] had been paying for this person’s education for years . . . reason not valid because a non‑Aboriginal person residing on a reserve can apply for welfare without being a Band member, and the Council cannot refuse. After discussing this with the [Electoral] Officer, he admitted that the person was not registered on the voters list.
3. Regarding the instructions pertaining to the electoral officer, the majority wrote as follows:
[translation]
The electoral officer must, before the poll is open, cause to be delivered to the deputy electoral officer the voters list, the ballot papers, materials for marking the ballot papers, and a sufficient quantity of directions‑for‑voting. This instruction is surely in place in the event that there is more than one polling station, but that is not specified. If there had been no deputy electoral officer appointed, this instruction would not have been followed.
4. Regarding the list of persons who voted, the majority emphasized the following:
[translation]
The electoral officer must keep in his possession the ballot papers, voters lists and any other . . . In his comments, the officer admits that a list of the electors who had voted left the premises and that he does not believe that the secrecy of the vote was compromised . . . This is not a provincial election where there are 5,000 votes . . . out of 263 votes, it is very easy to figure out who voted for whom.
5. Regarding the list given to the candidate, the majority stated the following:
[translation]
Regarding the members’ list (list of names only), that may be given to the candidates, but not the list including addresses and telephone numbers. The fact that the list with contact information was distributed by the receptionist leads me to suspect that pressure tactics might have been used in connection with the election results.
6. The majority wondered whom the electoral officer had appointed to assist him as deputy electoral officer.
7. Regarding the appeal of Raymond Bernard and others, the majority wrote as follows :
[translation]
Point (1) Suspicions of pressure. The fact that the list including contact information was distributed by the receptionist leads me to suspect that pressure tactics might have been used by different sides in connection with the election results.
Point (2) Voters list given to the candidates. The only list that may be given to the candidates is the list of names only (without contact information).
Point (4) The list showing the electors who did and did not vote was given to Lucien Millette. Out of 263 votes, it is very easy to figure out who voted for whom. The secrecy of voting was not maintained.
8. Regarding Denis Landry’s affirmation, the majority made the following comments:
[translation]
Point 4.11 – Regarding Mr. Landry’s reply that [translation] “[e]ven supposing that there was intimidation, neither I nor the other candidates have anything to do with that incident”, the majority’s opinion is that [translation] “Mr. Ross is an associate of Lucien Millette, that he resigned rather than be dismissed from his position as director general of the Council, and that he anticipates becoming a consultant to the Council with the new Council”. Mr. Ross admits that he did indeed speak with Karine Rouleau and apologizes if his words were interpreted as intimidation. The majority reached the following conclusion:
[translation] “If he is apologizing for the interpretation, knowing Mr. Ross, I believe that he truly did intimidate her.”
(Point 5(a)(d)) Suspicions of pressure. The fact that the list with contact information was distributed by the receptionist leads me to suspect that pressure tactics may have been used in connection with the election results.
9. Regarding Lucien Millette’s affirmation, (1) concerning the intimidation of Karine Rouleau, the majority even applied the same reasoning that it used previously in its discussion of point 4.11 of Denis Landry’s affirmation by way of reply; (2) it appears that this is the case regarding the question of pressure arising from the fact that the voters list containing residential addresses and telephone numbers was available to all candidates; (3) both members of the majority rely on section 7.1 of the Code to denounce the fact that after the election, Mr. Millette allegedly had the voters list showing the electors who had and had not voted; (4) regarding point 12, the majority wrote that
[translation]
. . . the board gives no weight to the fact that some elected candidates had nothing to do with the grounds alleged in the appeals. Does that mean that he admits that some other candidates were involved in the grounds alleged? The electoral officer failed to correctly follow procedure.
Arguments of Yvon Savard
[30] I am reproducing Yvon Savard’s comments on each point raised by the majority and the resulting conclusion. His comments are addressed to the majority.
Point No. 1 – Voter declaration forms witnessed by the same persons
He refers to paragraph 5.9.1(d) of the Code and replies as follows:
[translation]
As you can see for yourself, nowhere in this provision or any other part of the Code électoral is there a restriction limiting the number of declaration forms that can be witnessed by the same person.
Regarding the point raised by the majority that [translation] “there might have been pressure”, Mr. Savard wrote the following:
[translation]
. . . I can express no opinion on this subject because your hypothesis is founded only on suspicions; you will understand than in an election campaign, it is easy to confuse pressure and solicitation, and I am unable to rule on allegations founded only on suspicions that have, moreover, been denied under oath by the interested parties in the documentation they submitted to us;
Point No. 2 – Mail‑in ballot envelopes received at the reception desk
[translation]
The electoral officer affirmed to us that in the cases where this occurred, the office receptionist had instructions to place these envelopes in a specific drawer of his desk; and, in the cases where this did occur, it could have been avoided if the envelopes, which were postage paid, had been mailed directly by the persons concerned and thus sent to the post office box rented for this purpose in St‑Grégoire.
Regarding your uncertainty as to whether those envelopes were indeed given to the electoral officer, I can confirm to you that, after checking with the electoral officer, all of the electors concerned were indeed registered on the electoral officer’s list as having exercised their right to vote in the election on November 14. As well, we have a solemn affirmation by Lucie Landry confirming that she did in fact place those envelopes in the drawer that the electoral officer had indicated to her.
Point No. 3 – Voters list given to certain candidates
[translation]
According to the information obtained, the electoral officer knew that staff members of the existing Administration had given those lists, not only to Lucien Millette, but to other candidates as well; furthermore, the reason that the electoral officer did not object was that after having checked, he was told that this practice was accepted, having already been used regularly in the past.
Although this practice is not contrary to the Code électoral, it is a point of concern for the appeal board in that certain persons complained that it provided a means of disclosure of personal information such as their address and telephone number.
The board will therefore make a recommendation to the Band Council regarding this practice, but it is not a ground that can justify setting aside the election under section 8.2 of the Code électoral.
Point No. 4 – Voters list given to the candidate Lucien Millette
[translation]
You state here that when the counting was completed, we noted that the representatives had given the list of electors who had and had not voted to the candidate Lucien Millette. The president should have kept that information secret.
According to Lucien Millette’s solemn affirmation, other candidates also received a voters list.
Here is the full text of the electoral officer’s comments on the subject:
[translation]
On the matter of secrecy, it is my duty to ensure that the vote is secret. All of the witnessing representatives can know who voted, but cannot know for whom those electors voted. I would have preferred that the lists remain in the room.
After the counting, around twenty minutes after midnight, I asked everyone to wait and I went to the washroom. When I came out, the police officer informed me that there were people outside. I went out. They asked me for the results. I replied that I would give them out in the next ten minutes or so. Right then, the candidates’ representatives exited. I asked them to go back inside so that I could make the announcement myself. The two persons assisting me gathered up the documents during that time.
I do not think that the fact that one of the representatives exited with a list of the electors who voted breaches the duty of secrecy of the ballots under the election code.
It is the electoral officer’s duty to ensure that the electors’ choices as to how they cast their vote remains fully secret, and that duty was well and truly fulfilled.
I agree with the electoral officer and I am of the opinion that the secrecy of the vote was not breached and that the secrecy of the ballots as required by section 6.5 of the Code électoral was fully maintained.
I acknowledge, however, that there were some irregularities in terms of procedure as regards the information that must be sent and disclosed by the electoral officer; specific recommendations will be made to the Band Council about those irregularities, but they are not a ground that can justify setting aside the election under section 8.2 of the Code électoral. [Emphasis added]
Point No. 5 – Maintenance of secrecy and status of the Landry family
For the grounds he previously expressed to the majority, Mr. Savard is [translation] “of the opinion that on the whole, the secrecy of the vote was maintained”.
Regarding the status of the Landry family, he brings up a particular point:
[translation]
As regards the information you heard that the Band’s funds could be used to defend the Landry family, I cannot rule on a hypothesis of this kind which, in any event, is not a ground for appeal under the Code électoral.
Last, as regards the Landry family’s loss of status, Mr. Savard states having done some checking on this matter. He believes, contrary to what was stated by the majority, that no final decision had been made by the department in this matter. He adds the following:
[translation]
In any case, the argument that the Landry family did not have voting rights was already rejected in 1998 in two different proceedings: one being an appeal dismissed by Ralph Brent of the Department of Indian Affairs, dated September 1, 1998, and the other a judgment of the Federal Court of Canada delivered on June 18, 1998, by Justice Richard in the case of Fortin and the Wôlinak band council.
I also wish to point out that in Wôlinak, voting rights are granted to Band members under your membership code, not just to persons who have Indian status.
Therefore, the Landry family had every right to be registered on the voters list and to exercise their right to vote in the election of November 14. [Emphasis added]
The two points missing from Mr. Savard’s arguments in response to the appeal by Keven Bernard
[31] The Tribunal record shows that the two points missing from Mr. Savard’s arguments when the appeal board issued its decision on December 21, 2010, are from a draft decision that Mr. Savard had prepared one week earlier for all three members of the appeal board to agree upon, which they did not do. The two points responded to Keven Bernard’s appeal, which raised two considerations. The following is Mr. Savard’s position. He addresses his comments to Keven Bernard.
Point No. 1 – Allegation of intimidation
[translation]
From the outset, it is important to emphasize that the person who was supposedly intimidated did not personally provide any details in support of her claim.
Nevertheless, I contacted the person about whom this allegation was made, and the version I obtained differs slightly from your statement. To be specific, Bernard Ross admits that he did indeed speak with Ms. Rouleau and informed her of the philosophy of the Chief at the time, Raymond Bernard, a philosophy that consisted of monitoring the young persons working for the community a little more closely, since, because of their lack of experience, he believed that it was necessary to keep an eye on them. Mr. Ross further states that his words could even be corroborated by a witness who was present during this conversation.
If statements of this nature by Bernard Ross were interpreted as intimidation, he apologizes and maintains that he never intended to intimidate anyone at all. [Emphasis added]
Point No. 2 – Membership code and the Landry family’s loss of status
[translation]
You state that, under the membership code of 1987, only those members who are registered in the