Orr v. Peerless Trout First Nation

Orr v. Peerless Trout First Nation
Court (s) Database
Federal Court Decisions
Date
2015-09-08
Neutral citation
2015 FC 1053
File numbers
T-32-15
Decision Content
Date: 20150908
Docket: T-32-15
Citation: 2015 FC 1053
Ottawa, Ontario, September 8, 2015
PRESENT: The Honourable Madam Justice Strickland
BETWEEN:
ANDREW ORR AND PAUL HOULE
Applicants
and
PEERLESS TROUT FIRST NATION
Respondent
JUDGMENT AND REASONS
[1] This is an application for judicial review of the January 8, 2015 decision of Lornes J. Ternes who, in accordance with the Customary Election Regulations of the Peerless Trout First Nation (“Election Regulations”), acted as the Election Appeal Arbitrator (“Arbitrator”) with respect to two appeals concerning the Peerless Trout First Nation (“PTFN”) election held on October 30, 2014. The application is brought pursuant to s 18.1 of the Federal Courts Act, RSC 1985 c 41.
Background [2] The Arbitrator, in fact, made two decisions as two separate appeals from the subject election were placed before him.
Orr Appeal [3] The first concerned the Applicant, Mr. Andrew Orr, who is a member of the PTFN. Mr. Orr was nominated to run for Chief in the October 30, 2014 election, but was told by the Election Officer, Mr. Albert Oostendorp (“Election Officer” or “Electoral Officer”), that he could not do so. This was because s 9.3(c) of the Election Regulations states that any elector who is a plaintiff in a civil action against the PTFN is not eligible to be nominated and Mr. Orr had commenced a civil action against the PTFN in the Court of Queen’s Bench of Alberta in 2011, seeking compensation in the amount of $2,817,720.00 that he claims to be owed for his work on a PTFN land claim. This action is ongoing.
[4] By notice of appeal (“Notice of Appeal”) dated October 31, 2014, Mr. Orr appealed this decision. He submitted that the Electoral Officer erred in the interpretation and application of the Election Regulations, that s 9.3(c) of the Election Regulations should be declared to be of no force and effect because it violates ss 2(b) and (d), 3, 15, 30, 35, and 36 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982 c 11 (“Charter”), and that the provision is contrary to the rule of law and an abuse of power as it is an attempt to prevent members of the PTFN from bringing actions against its government. The election appeal by Mr. Orr proceeded before the Arbitrator by way of written submissions.
[5] Mr. Orr also filed an action in the Court of Queen’s Bench of Alberta on July 3, 2014, seeking to have s 9.3(c) declared invalid on the grounds that it was contrary to the Charter. Master in Chambers Smart (“Master Smart”) rendered a decision in that matter on January 5, 2014, Orr v Peerless Trout First Nation, 2015 ABQB 5 [Orr QB]. The pleadings that were before Master Smart were also submitted to the Arbitrator. The Orr QB decision is described below because the same issues were asserted before the Arbitrator, some of which are also pursued by Mr. Orr in this judicial review.
[6] In Orr QB, Master Smart noted that pursuant to s 74(1) of the Indian Act, RSC 1951, c 29, the Minister of Indian Affairs and Northern Development may permit a First Nation to determine for itself its election code, which the members of the PTFN have done by way of the Election Regulations. However, a community election code adopted by a First Nation is subject to Charter scrutiny (Taypotat v Taypotat, 2013 FCA 192 [Taypotat]).
[7] Master Smart described the issues before him as follows:
[2] Mr. Orr alleges that s 9.3(c) is unconstitutional and aimed at preventing PTFN members from bringing actions against the band. Mr. Orr asks that s 9.3(c) be declared invalid per s 52 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982 c 11 (“Constitution”) because it violates ss 2(b), 2(d), 3, 15, 30, 35 and 36 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982 c 11 (“Charter”).
[3] Finally, Mr. Orr argues that s 9.3(c) is an attempt by government to prevent citizens exercising their fundamental right to bring an action against it and is ultra vires.
[8] In addressing Mr. Orr’s argument that the purpose of s 9.3(c) was to prevent PTFN members from suing the PTFN council and therefore is ultra vires, Master Smart found that the cases cited by Mr. Orr did not stand for the general proposition that Canadian governments cannot enact legislation to prevent legal action against them by their citizens and, moreover, did not support the suggestion that there is a fundamental right to bring legal action against governments arising from the Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5 (“Constitution”) or the Charter. Regarding Mr. Orr’s argument that the provision violated his freedom of expression under s 2(b), Master Smart noted that Mr. Orr did not address the point that the activity of running for Chief was an attempt to convey meaning. He noted the respondent’s observation that the exclusion from being a member of Council did not deprive an individual from voting or otherwise taking part in the election process, or making submissions to Council or lobbying its members, attending meetings and voicing opinions. Master Smart found the circumstances in the case before him were analogous to those in Baier v Alberta, 2007 SCC 31 [Baier] and, as in that case, there was a limit on access to a platform but not a statutory limit on freedom of expression.
[9] Similarly, Master Smart found that Mr. Orr had not addressed how nomination for public office was protected by freedom of association. The restriction on the activity did not infringe on Mr. Orr’s ability to establish, belong to and maintain an association, and did not infringe his s 2(d) right of freedom of association. Master Smart also found that s 3 of the Charter does not apply to band council elections (Crow v Blood Band, [1996] FCJ No 119 at para 23 [Crow v Blood Band]; Haig v Canada, [1993] 2 SCR 995 at 1033 [Haig]). Additionally, he applied the two part test for s 15(1), equality, as outlined in R v Kapp, 2008 SCC 41 [R v Kapp], and found that the distinction in the case before him was that of having an unresolved civil suit against the PTFN. He found that this distinction was not based on an analogous ground to those enumerated in s 15(1) nor did it perpetuate a disadvantage so as to infringe on the equality guarantee of s 15(1) of the Charter. In the absence of any supporting explanation as to the alleged breach, Master Smart was also unable to conclude that s 35 or s 36 was violated such that s 9.3(c) is of no force and effect.
Houle Appeal [10] Mr. Paul Houle is also a member of the PTFN, he ran for the position of Chief in the October 30, 2014 election.
[11] On the day of the election there were two polling stations, one at Trout Lake and another at Peerless Lake. The Electoral Officer supervised the Peerless Lake polling station with polling clerk Jackie Laboucan. Assistant Electoral Officer Earl Laboucan supervised the Trout Lake polling station with polling clerks Rose Sowan and Penny Gullion. Mr. James Alook was elected as Chief, receiving 173 votes, while Mr. Houle came in second with 129 votes.
[12] After the election, Mr. Houle filed a Notice of Appeal on November 2, 2014, alleging numerous breaches of the Election Regulations including:
• Bribery, contrary to s 16.1(c) of the Election Regulations, as Mr. Alook had promised a voter that the voter’s family would be next to receive housing;
• The ballots for the Chief and Council were in the same box, contrary to s 11.2(b) of the Election Regulations, which stipulates that the ballots should be separate;
• The ballot box from Trout Lake was brought to the Peerless Lake polling station by the Assistant Electoral Officer Earl Laboucan, and the ballots were separated with the assistance of Linda Noskiye, who was not a scrutineer, a polling clerk, or an electoral officer. This was contrary to s 12.1 of the Election Regulations, which states that the Electoral Officer or polling clerk shall open each ballot box and count the votes immediately upon the close of the polling station;
• Linda Noskiye, sister-in-law of Mr. Alook and member of the PTFN, assisted with the election, contrary to s 8.4 of the Elections Regulations which states that the Electoral Officer shall appoint polling clerks and interpreters, and that the interpreters shall not be members of the PTFN;
• The Assistant Electoral Officer instructed Linda Noskiye to assist voters at the polling station, and she remained at the polling station at Trout Lake throughout the day;
• The Electoral Officer had already been an Electoral Officer for a previous PTFN election, contrary to s 13(2) of the Canada Elections Act;
• There should have been two ballot accounts and vote results, one from each Electoral Officer, because there were two polling stations;
• Rose Cardinal, sister-in-law of Mr. Alook, was a scrutineer at the Peerless Lake polling station, but the necessary documentation was not provided. She remained outside of the polling station talking to voters, when she should have been inside with the Electoral Officer; and
• A blind voter may not have been handled appropriately according to the procedures outlined for dealing with the blind.
[13] The appeal by Mr. Houle proceeded by way of an oral hearing held on December 18, 2014.
Decision Under Review Orr Appeal [14] The Arbitrator noted that the Orr appeal was addressed entirely in writing, largely relying on the materials filed in Orr QB, which addressed the same questions as were pursued on the appeal before him. For the reasons he set out, the Arbitrator agreed with Master Smart’s conclusion that s 9.3(c) did not offend the Charter, and that it was not otherwise ultra vires the PTFN Council. As such, he dismissed the appeal.
[15] Regarding Mr. Orr’s submissions that s 9.3(c) is ultra vires, an abuse of process and contrary to the rule of law, the Arbitrator disagreed with Mr. Orr’s position that s 9.3(c) is intended to prevent PTFN members from suing the PTFN Council and instead found that the provision was directed towards ensuring that the Chief and Councillors fully and properly carry out their duties and responsibilities under the Election Regulations. Rather than being an abuse of power or contrary to the rule of law, the Arbitrator found that the section demonstrated responsible government. He also agreed with Master Smart’s conclusion in Orr QB that the cases cited by Mr. Orr, Amax Potash Ltd v Saskatchewan, [1977] 2 SCR 576 [Amax Potash]; Air Canada v British Columbia (Attorney General), [1986] 2 SCR 539 [Air Canada]; and Kingstreet Investments Ltd v New Brunswick (Department of Finance), 2007 SCC 1 [Kingstreet] did not stand for the general proposition that Canadian governments cannot enact legislation to prevent legal action against them by their citizens and, moreover, did not support the suggestion that there is a fundamental right to bring legal action against governments arising from the Constitution or the Charter.
[16] As to s 2(b) of the Charter, the Arbitrator agreed with the PTFN that s 9.3(c) of the Election Regulations is not a violation of the freedom of expression under s 2(b) of the Charter, reasoning that Mr. Orr continues to have the right to vote, the rights of PTFN membership and can continue to press his views in the community and with the government of the PTFN. The Arbitrator further found that it was Mr. Orr’s choice to pursue the course he felt necessary in suing the PTFN, which was a direct and serious conflict with those duties expected of a Chief or Councillor. The Arbitrator also agreed with Master Smart’s statement in Orr QB that s 9.3(c) is not a statutory limitation on freedom of expression.
[17] With respect to s 2(d) of the Charter, the Arbitrator found that s 9.3(c) of the Election Regulations did not infringe on Mr. Orr’s freedom of association, agreeing with Master Smart’s conclusion in Orr QB that Mr. Orr had not addressed how the activity of nomination for public office is one that is protected by the right to freedom of association. The restriction on the activity did not infringe on Mr. Orr’s ability to establish, belong to and maintain an association. As a member of the PTFN, he and the collective of the members as electors determine who forms the PTFN Council to pursue common goals.
[18] The Arbitrator stated that s 3 of the Charter protects the democratic rights of Canadians. Further, in Baier the Supreme Court of Canada established that this includes voting and candidacy rights, but only in relation to the House of Commons and provincial legislatures (Baier at para 39; Taypotat at para 28). The Arbitrator found that Crow v Blood Band at para 22, cited by Master Smart in Orr QB also supports that s 3 does not apply to band council elections. Accordingly, the Arbitrator concluded that this Charter right did not apply to PTFN elections.
[19] Regarding Mr. Orr’s argument that his equality rights under s 15(1) of the Charter were violated by the impugned provision, the Arbitrator again noted that s 9.3(c) of the Election Regulations is directed toward preventing serious conflicts of interest, and is not a perpetuation of prejudice as against Mr. Orr. The Arbitrator referred to the two part test set out in R v Kapp, cited by Master Smart in Orr QB, and agreed with Master Smart that there was no evidence to demonstrate that having an unresolved civil suit as against PTFN is an enumerated or analogous ground of s 15(1) discrimination. He also agreed that Mr. Orr would be able to run for office once the suit is resolved and that there was no disadvantage perpetuated to infringe the equality guarantee of s 15(1) of the Charter.
[20] As to s 1 of the Charter, the Arbitrator found that, in the event that he was wrong in finding s 9.3(c) of the Election Regulations was consistent with the Charter, then any inconsistency was demonstrably justifiable in a free and democratic society under s 1. He noted that a Chief of a First Nation who is suing his own Nation for $2.8 million dollars, even if for good reason, could not be expected to be unbiased and able to fully and properly carry out his statutory duties. Applying the test set out in R v Oakes, [1986] 1 SCR 103 [Oakes], the Arbitrator found that the objective of s 9.3(c) was pressing and substantial in intending to avoid significant conflicts of interests that would impair government members from satisfying duties and responsibilities. Further, there is a rational connection between the objective of s 9.3(c) and the means to achieve the objective, as the prohibition ensures that Council members suing the PTFN cannot use their position to gain information that would harm the PTFN in litigation. The provision is also minimally impairing, given that the disqualified elector would still retain the right to vote, lobby and influence the Council in a lawful manner. And, finally, the Arbitrator found that the objective served by s 9.3(c) and its impact was proportional, as once the civil litigation is resolved, the elector would be able to stand for nomination.
[21] The Arbitrator also noted that Mr. Orr’s written submissions asserting that ss 30, 35, and 36 were violated by s 9.3(c) had not been further developed.
[22] In the result, the Arbitrator dismissed Mr. Orr’s appeal, finding that the Election Officer properly applied s 9.3(c) of the Election Regulations, which the Arbitrator found did not infringe the Charter. And in the event that he was wrong in that regard, the Arbitrator also found that the provision was reasonable and justified under s 1 of the Charter.
Houle Appeal [23] The Arbitrator first dealt with the allegation of a corrupt election practice, a ground of appeal pursuant to s 16.1(c) of the Election Regulations. In his Notice of Appeal Mr. Houle claimed that Mr. Alook had promised an elector that the elector’s family would be next to get housing benefits if the elector would vote for Mr. Alook. The electors were subsequently identified as Mr. and Mrs. Trindle. As a preliminary matter, Mr. Houle had sought to add additional witnesses because he was concerned that the Trindles would not be available to testify. The Arbitrator ruled that the Election Regulations were a complete code which set out the mandatory requirements for valid notices of appeal and that, after the timeline for Notice of Appeal had expired, he had no power to accept additional witnesses and material facts to support Mr. Houle’s argument. The Arbitrator similarly ruled at the hearing when Mr. Houle sought to testify and provide hearsay evidence as to the allegations of bribery. He noted that Mr. Houle was not previously listed as a witness and did not provide a “will say” disclosure before the hearing. The Arbitrator did not allow Mr. Houle to testify on the basis of fairness to the Respondent and in recognition that, if heard, the weight of such hearsay evidence would be minimal. Because the Trindles did not testify, and because no other evidence was presented to support the allegation of bribery, the Arbitrator found that Mr. Orr had not proven that Mr. Alook was guilty of this allegation. In doing so, the Arbitrator also took note of the unchallenged statutory declaration of the PTFN Band Manager, Mr. Chris Wilson, attaching the PTFN Interim Housing Rental Policy (“Housing Policy”). Under the Housing Policy the Peerless Trout First Nation Housing Authority (“Authority”) acts as an appeal body from the housing decisions of the PTFN staff. PTFN Council members cannot sit as members of that Authority. PTFN staff and the Authority thereby provide an institutionalized insulation between the PTFN Council and housing decisions, which the Arbitrator stated was an example of sound governance.
[24] The Arbitrator then addressed Mr. Houle’s the numerous allegations that the Electoral Officer and polling clerks participated in improper activities contrary to ss 16.1(d) and (e) of the Election Regulations.
[25] Regarding s 11.2(b), the Arbitrator found that there was no requirement for separate ballot boxes to hold ballots for Chief and those for Councillors. Instead, he found that having one ballot box was appropriate given that the ballots for Chief were coloured and ballots for Councillors were white.
[26] The Arbitrator found that the evidence established that Mr. Earl Laboucan, the Assistant Electoral Officer (whom the Arbitrator also referred to as the Deputy Electoral Officer), on the request of the Electoral Officer, left the polling station to transport surplus blank ballots from the Trout Lake polling station to the Peerless Lake polling station. The absence was for between one and two hours, during which time between 75 to 100 votes were cast. Subsection 11.7 of the Election Regulations requires the Election Officer to initial ballots, hand ballots to voters and supervise the ballot box. If the Assistant Electoral Officer was absent, the votes cast during that time were potentially in question. However, the Arbitrator found that the necessary absence of the Assistant Electoral Officer was regrettable but not fatal. Given that only one Election Officer is appointed and that there were two polling stations, the Arbitrator interpreted the Election Regulations as allowing polling clerks to ensure the election process is conducted in a proper way when the Electoral Officer is necessarily not available, and observed that Rose Sowan and Penny Gullion had remained and continued on in their capacity as polling clerks.
[27] The Arbitrator next addressed the issue of the counting of the Trout Lake ballots at Peerless Lake. He found that the evidence established that after the polls closed at 8:00 pm, the Deputy Electoral Officer and the two polling clerks locked the Trout Lake ballot box, left the polling station and travelled together to the Peerless Lake polling station. The Arbitrator accepted the evidence of the Deputy Electoral Officer that they did not stop and that the ballot box remained in their possession during that trip and that the reason why the ballots had not been counted at the Trout Lake polling station immediately after the closing of the polls, as required by s 12.1 of the Election Regulations, was that the Deputy Electoral Officer was under the impression that the hall had to be vacated by 8:30 p.m.
[28] The Arbitrator also found that, while the Electoral Officer was required to fill out a form titled Form #9 Ballot Account and Vote Result for each polling station under s 12.3 of the Election Regulations, he had only filled out one composite form with no information about specific polling stations.
[29] The Arbitrator found that the evidence was consistent that after the Electoral Officer and his assistant counted the votes for the Peerless Lake polling station (for the Chief only), the Deputy Electoral Officer accompanied by Ms. Sowan and Ms. Gullion proceeded to the front of the Peerless Lake hall with the Trout Lake ballot box. He accepted the evidence of the Deputy Electoral Officer that he unlocked the box, spilled the ballots on the table in front of the crowd of approximately 90 to 100 people, picked up a few ballots that fell off the table, separated the coloured Chief ballots from the white Councillor ballots and read the name off each ballot to the crowd, and showed the ballot to the crowd. He also accepted the evidence of witnesses that Penny Gullion, Rose Sowan, and Linda Noskiye sorted the ballots into coloured and white piles, and the evidence of the Deputy Electoral Officer that the Electoral Officer and his polling clerk, Jackie Laboucan, were present when the ballots were counted at the counting table, and the evidence of the Electoral Officer that that Ms. Rosie Cardinal, scrutineer for Mr. Alook, was also at the counting table.
[30] The Arbitrator then turned to the allegation that an elector had been improperly assisted. He referred to the evidence that an unidentified elector had asked for assistance at the Trout Lake polling station and, when asked by the polling clerk if he would prefer that Linda Noskiye assist him, he agreed. There was also a suggestion that one or two other electors may have been assisted by a polling clerk but this was unclear as was who assisted them, if anyone. However, the Arbitrator found that if assistance was required, then the proper form to record the event was not completed as required by ss 11.5 or 11.6 of the Election Regulations.
[31] The Arbitrator found that the evidence was consistent that the Electoral Officer had accepted Rose Cardinal as a scrutineer for Mr. Alook, but did not provide her appointment in writing as required by s 11.4 of the Election Regulations.
[32] As to the allegations of improper activities by Ms. Linda Noskiye, the Arbitrator found that the evidence established that Ms. Noskiye, an elector, was in attendance for the entire time that the Trout Lake polling station was open, contrary to s 11.7(j) of the Election Regulations, which states that electors are to immediately leave the polling station after voting. The Arbitrator accepted the evidence of the Deputy Electoral Officer that Ms. Noskiye was in attendance to help Trout Lake election officials identify electors, and rejected the allegations that she was acting as a polling clerk by counting ballots. The Arbitrator accepted the Deputy Electoral Officer’s testimony that he had asked Ms. Noskiye to help sort the ballots and that he did not see her doing anything inappropriate, untoward, or unusual to cheat. Other witnesses confirmed that she helped sort the ballots and then sat down. The Arbitrator also found that if she did aid an elector to vote, then she should have been required to fill out form #6 or #7, as appropriate, but this was not done which would draw one vote into question.
[33] As to the claim that the Canada Election Act disqualified Mr. Oostendorp from serving as the Election Officer, the Arbitrator noted that this ground was not further pursued. The Arbitrator accepted that the Canada Elections Act only applies to the elections of members to the House of Commons, and that the Election Regulations are a complete written code governing PTFN elections.
[34] As to the other reasons grounding the appeal (s 12.3 - Form 9, s 11.4, s 16.2 and ss 11.6, 11.6(6) and s 11.6), they overlapped with and were addressed by the foregoing.
[35] In summary, the Arbitrator found that ss 12.1, 11.5 (or 11.6) and 11.4 of the Election Regulations were imperfectly conducted. He then examined whether these grounds for appeal materially affected the outcome of the election.
[36] The key to that analysis was s 16.8(b) of the Election Regulations, being whether one or more of the identified instances of imperfect conduct materially affected the result of the election. The Arbitrator noted that both parties relied on Beamish et al v Miltenberger and the Returning Officer for the Electoral District of Thebacha, [1997] NWTR 160 [Beamish] for the proposition that, where the election statute in question has gaps addressing controverted elections, such gaps are to be addressed by the common law, being that there is a presumption that an election result is valid and will be overturned only if it can be shown that such irregularities would have affected the results of the election on the balance of probabilities. Further, that both parties had also referenced Opitz v Wrzesnewskyj, 2012 SCC 55 [Opitz], where the majority referred to the “magic numbers test” as the test to determine, when considering an irregularity, if the election results would have been different. The test requires an election be annulled if the number of invalid votes is equal to, or greater than, the successful candidate’s plurality.
[37] The Arbitrator held that one vote may have been improperly counted, and Mr. Alook obtained 44 more votes for Chief than Mr. Houle. The Arbitrator further held that none of the three infractions materially affected the results of the election.
[38] As such, he upheld Mr. Houle’s appeal but allowed the election results to stand. Finding that the appeal was fundamentally lacking in merit, he also ordered, pursuant to s 16.11 of the Election Regulations, that Mr. Houle pay half of the costs of the election appeal arbitration, including the hall rental, transcription services, the oral hearing lunch, post-election costs of the Electoral Officer and Assistant Electoral Officer related to and arising out of the election appeal arbitration and the fees and expenses of the Election Appeal Arbitrator.
Issues [39] I would frame the issues as follows:
1. What is the applicable standard of review?
2. Did the Arbitrator err in finding that s 9.3(c) of the Election Regulations was not unconstitutional?
3. Did the Arbitrator err in not allowing Mr. Houle to add other witnesses?
4. Did the Arbitrator err in finding that the breaches of the Election Regulations regarding electoral practices did not materially affect the result?
5. Did the Arbitrator err in ordering Mr. Houle to pay costs?
Issue 1: What is the applicable standard of review? [40] The Applicants submit that each of the matters raised in this judicial review involve constitutional analysis, statutory interpretation and questions of law, requiring the standard of correctness (Multani v CSMB, 2006 SCC 6 at paras 16-23, 30). Further, that issues of procedural fairness in an administrative hearing are to be reviewed on the correctness standard (CUPE v Ontario (Minister of Labour), 2003 SCC 29 at paras 100-103).
[41] The Respondent agrees that correctness should be applied to the Arbitrator’s interpretations of the Constitution and the Charter and to issues of procedural fairness. However, the Respondent submits that the reasonableness standard applies to the Arbitrator’s findings of fact to which the Constitution and the Charter are to be applied, including whether on those facts s 9.3(c) of the Election Regulations is reasonable and justifiable in a free and democratic society (Doré v Barreau du Quebec, 2012 SCC 12 at paras 44, 54-48 [Doré]); to the Arbitrator’s interpretation of the Election Regulations (Fort McKay First Nation v Orr, 2012 FCA 269 at paras 8-11 [Fort McKay]; Testawich v Duncan’s First Nation, 2014 FC 1052 at para 16 [Testawich]); and, to the Arbitrator’s findings of fact to which the Election Regulations are applied (Testawich at para 23).
[42] In my view, the second issue has two aspects. The first is whether the Arbitrator erred in finding that s 9.3(c) of the Election Regulations is not unconstitutional. As stated in Doré at paragraph 43, “There is no doubt that when a tribunal is determining the constitutionality of a law, the standard of review is correctness (Dunsmuir, at para 58)”. Thus, to the extent that the Arbitrator was considering whether s 9.3(c) conflicted with s 3 of the Charter or unwritten democratic rights, the standard of review is correctness. Doré is otherwise of little assistance as it concerned a challenge to the constitutionality of a discretionary administrative decision as opposed to the constitutionality of a law.
[43] The second aspect of this issue is whether s 9.3(c) attempts to prevent members of the PTFN from bringing actions against their government and is therefore contrary to the rule of law, an abuse of power and an arbitrary action. Thus, this pertains to the Arbitrator’s interpretation of s 9.3(c). In Fort McKay, when dealing with a First Nation Council’s decision to suspend a councillor by way of a resolution, the Federal Court of Appeal stated that the question was whether that decision could be supported on a reasonable reading of the relevant provisions of the subject election code (at para 21) and applied the reasonableness standard of review when interpreting its provisions.
[44] Further, in Testawich, this Court referenced Fort McKay at paras 10-11; D’Or v St. Germain, 2014 FCA 28 at paras 5-6; York v Lower Nicola Indian Band, 2013 FCA 26 at para 6 [York]; Tsetta v Band Council of the Yellowknives Dene First Nation, 2014 FC 396 at para 22 [Tsetta]; and, Ferguson v Lavallee, 2014 FC 569 at para 63, in concluding that the standard for reviewing an election appeal committee’s interpretation and application of election regulations is reasonableness (at paras 16 and 21). Further, that in applying the reasonableness standard the Court must defer to factual determinations made by the decision-maker (Testawich at para 23). Accordingly, I see no reason why the reasonableness standard would not also apply to interpretation of the Election Regulations by the Arbitrator who was appointed to hear the election appeal in accordance with s 16 of those regulations.
[45] The third issue is framed by Mr. Houle as one of procedural fairness. The standard of correctness applies to questions of procedural fairness (Khosa v Canada (Minister of Citizenship and Immigration), 2009 SCC 12 at para 43; York at para 6; Tsetta; Minde v Ermineskin Cree Nation, 2008 FCA 52 at para 32; Khela v Mission Institution, 2014 SCC 24 at para 79; Testawich at para 15). The Respondent submits that this issue also encompasses the Arbitrator’s interpretation of the Election Regulations. As set out above, such interpretation would attract the reasonableness standard.
[46] Similarly, with respect to the fourth issue, the Arbitrator’s finding that the breaches of the Election Regulations did not materially affect the election result, this required the Arbitrator to interpret and apply the test set out in s 16.8(b) of the Election Regulations. This attracts the reasonableness standard as does the fifth issue which required the Arbitrator to interpret and apply s 16.11 of the Election Regulations concerning costs.
Issue 2: Did the Arbitrator err in finding that s 9.3(c) of the Election Regulations was not unconstitutional? Mr. Orr’s Position [47] On judicial review Mr. Orr focused primarily on the issue of s 9.3(c) in the context of his democratic rights. He submitted that the Constitution contains four foundational values, which are fundamental to the constitutional law within Canada, being federalism, democracy, constitutionalism and the rule of law, which are “clearly implicit in the very nature of a Constitution” (Reference re Secession of Quebec, [1998] 2 SCR 217 at paras 49-54 [Re Secession of Quebec]). Moreover, although unwritten, democracy is recognized in the preamble to the Constitution and is an “essential interpretive consideration” (Re Secession of Quebec at paras 61-69) originating in the Magna Carta and developed in the English Bill of Rights. Therefore, contrary to the Arbitrator’s and Master Smart’s decisions, Mr. Orr argued that s 3 of the Charter is to be interpreted to include democratic government to all citizens within Canada. It is not subject to the notwithstanding power in s 33 of the Charter and is to be broadly interpreted (Charter, ss 3-4, 33 and 35). Mr. Orr submits that although the wording of s 3 refers only to Parliament and to the legislative assemblies, it is clear from Tsilhqot’in v British Columbia, 2014 SCC 44 at paras 138-144 [Tsilhqot’in] that s 35 was not fully in the minds of the drafters when the Charter was drafted.
[48] Mr. Orr submits that Baier does not actually support the Arbitrator’s decision, as it is distinguishable and primarily dealt with whether s 2(b) of the Charter applied, and did not address issues respecting ss 1, 3 or 15 of the Charter or constitutional democratic rights. Mr. Orr further submits that the Supreme Court of Canada limited Baier’s application in Greater Vancouver Transportation Authority v Canada Federation of Students, [2009] 2 SCR 295 at paras 13-16, 27 and 35-36 [Greater Vancouver Transportation Authority].
[49] Mr. Orr submits that the Election Regulations must comply with the constitutional right to democracy, which includes, but is broader than the rights specifically stated in s 3 of the Charter (Thompson v Leq’A:Mel First Nation Council, 2007 FC 707 at para 8 [Thompson]). Drawing parallels to Taypotat, Mr. Orr submits that the rule of law shields all Canadians from arbitrary state action and permits a citizen to sue the government. Mr. Orr submits that s 9.3(c) is contrary to democracy and the rule of law, and is an abuse of power as it is plainly an attempt by the PTFN to prevent its members from bringing actions against the PTFN government. In order for s 9.3(c) to be justified by s 1 of the Charter, it must be established that there is a constitutionally valid purpose or objective achieved by the limit, and no such proof was provided by the PTFN in the appeal arbitration. Prior to the passage of the Charter, it was held that governments could not prevent citizens from bringing actions against them because such legislation was ultra vires (Amax Potash, Air Canada, Kingstreet). Mr. Orr takes the position that any concerns about Mr. Orr’s lawsuit against the PTFN could be appropriately dealt with by the conflict of interest provisions contained in Schedule “C” of the Election Regulations. Mr. Orr therefore argues that there is no pressing or substantial concern requiring a limitation on his democratic right to run in an election.
[50] Mr. Orr submits that the fundamental principle of democracy within the Constitution goes beyond limiting a Charter right so that any limitation on democracy is a limitation of the core fundamental rights of the Constitution (Sauvé v Canada (Chief Electoral Officer), 2002 SCC 68 at paras 24, 28-46 [Sauvé]). He submits that there should be considered to be a distinction between the rights under s 3 of the Charter and the democratic rights contained in the preamble to the Constitution such that the provisions of the Charter cannot limit the democracy that is fundamental to Canada as contained in the preamble (New Brunswick Broadcasting Co v Nova Scotia, [1993] 1 SCR 319 at pp 368, 373-378).
The Respondent’s Position [51] The Respondent’s position is that s 9.3(c) is not unconstitutional, it does not offend any of the sections of the Charter previously raised, nor does it offend unwritten democratic values.
[52] The Respondent submits that s 9.3(c) does not infringe on Mr. Orr’s s 2(b) Charter rights because that right does not guarantee any particular method or location of expression. Nor does the impugned provision infringe on Mr. Orr’s s 2(d) Charter right to freedom of association because that right only protects against the state precluding an activity because of its associational nature, thereby discouraging the collective pursuit of goals. The Respondent points out that s 9.3(c) does not stop Mr. Orr from running for office because of its associational nature. Subsection 9.3(c) also does not infringe on Mr. Orr’s s 3 Charter rights, because s 3 only guarantees rights in relation to the House of Commons and provincial legislatures; it does not apply to the PTFN Council (Baier at para 39; Taypotat at para 28, Orr QB at para 17). The Respondent submits that s 9.3(c) does not discriminate contrary to s 15(1) of the Charter, because it does not create a distinction based on an enumerated or analogous ground; nor does it create a disadvantage by perpetuating prejudice or stereotyping of persons who sue as plaintiffs in civil courts (Taypotat at para 44; Baier at paras 63-65; Orr QB at para 22)
[53] The Respondent also submits that s 9.3(c) of the Election Regulations is not invalidated by s 35 of the Charter, which, on the contrary, recognizes and affirms the aboriginal right of self-government of the PTFN to enact the Election Regulations, or by s 36 of the Charter, which is only available to provincial and federal governments privy to the types of agreements contemplated in that section.
[54] The Respondent further submits that s 9.3(c) of the Election Regulations is not contrary to an unwritten constitutional principle or democratic right protecting a citizen’s right to sue his or her government, nor, in any event, does the provision prevent a member from suing the PTFN. With respect to Mr. Orr’s reliance on Re Secession of Quebec, the Respondent points out that in that case the Supreme Court of Canada cautioned against dispensing with the written text of the Constitution and, to the contrary, confirmed that there are compelling reasons to insist upon the primacy of the written Constitution (Re Secession of Quebec at para 53). The Respondent submits that Mr. Orr also ignored the Supreme Court’s direction in Baier that s 3 protects voting rights and candidacy only in relation to the House of Commons and provincial legislature, and that it is not for the Supreme Court to create constitutional rights in respect of a third order of government where the words of the Constitution read in context do not do so (at para 39). Further, the Respondent argues that neither the Supreme Court in Tsilhqot’in or Greater Vancouver Transportation Authority or this Court in Thompson are authority for ignoring the Supreme Court’s caution, and, in Taypotat the Federal Court of Appeal confirmed that s 3 does not apply to a First Nation’s election law (at para 28).
[55] The Respondent submits that none of the “foundational principles” address whether a citizen may or may not sue a government for breach of contract nor do the cases cited by Mr. Orr establish such a constitutional right.
[56] The Respondent submits that the intention of s 9.3(c) of the Election Regulations was to avoid obvious and blatant conflicts of interest that would preclude an elected member from fully and properly carrying out his duties. Therefore, the PTFN was not abusing its self-governing powers by addressing this serious concern in the eligibility criteria.
[57] The Respondent also submits that it was