Salt River First Nation 195 (Councillors) v. Salt River First Nation 195 (Chief)

Salt River First Nation 195 (Councillors) v. Salt River First Nation 195 (Chief)
Court (s) Database
Federal Court Decisions
Date
2006-06-29
Neutral citation
2006 FC 837
File numbers
T-2007-02
Decision Content
Date: 20060629
Docket: T-2007-02
Citation: 2006 FC 837
Ottawa, Ontario, June 29th , 2006
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
MELVIN WANDERINGSPIRIT, DELPHINE BEAULIEU, TONI HERON,
RAYMOND BEAVER AND SONNY MCDONALD in their capacity as
COUNCILLORS OF THE SALT RIVERFIRST NATION 195,
elected August 30, 2002
Applicants
and
VICTOR MARIE uncontested Chief and NORMAN STARR,
uncontested duly elected BAND COUNCIL MEMBER,
NORA BEAVER, DAVID GOWANS, CONNIE BENWELL,
MICHEL BJORNSON, HARVEY LEPINE, AND DON TOURANGEAU,
purportedly elected BAND COUNCILLORS at a meeting held
November 3, 2002, AND JEANNIE MARIE-JEWELL,
acting as Interim Band Manager
Respondents
REASONS FOR ORDER AND ORDER
1. Introduction
[1] The Applicants seek an order of this Court that Victor Marie, Norman Starr, Nora Beaver, David Gowans, Michel Bjornson, Harvey Lepine, Don Tourangeau and Jeannie Marie-Jewell (referred to as the Respondents or alleged contemnors) are in contempt of a number of Orders of this Court. By Order dated October 6, 2005 (the show cause order), Justice Gibson ordered that the alleged contemnors appear to show cause why they should not be held in contempt of court by reason of the acts particularized in that Order. The Particulars are set out in full in Appendix A to these Reasons. These Reasons and Order are the result of the contempt hearing that followed the show cause order.
[2] Both the Applicants and the Respondents are members of the Salt River First Nation (SRFN). This contempt motion is the result of a lengthy dispute between these two groups which I would briefly set out as follows:
the Applicants together with two of the Respondents (Victor Marie as chief and Norman Starr as councillor) were elected to the Band Council by election in August 2002 (the August council);
In an election on November 3, 2002, the Applicants were removed from office; the "new" Band Council consisted of the Respondents (the November council), with Ms. Jeannie Marie-Jewell (one of the Respondents) acting as interim Band Manager.
On December 3, 2002, the Applicants commenced an application for judicial review to overturn the November election results.
Following the commencement of the application for judicial review, a series of Orders were obtained, the intent of which was to protect the financial assets of the SRFN pending the outcome of the judicial review. These Orders are the basis of this contempt motion and are discussed in more detail below.
In a decision dated May 29, 2003, reported as Wanderingspirit et al. v. Marie et al. (2003), 235 F.T.R. 106, aff'd (2003), 312 N.R. 385 (F.C.A.) (referred to as Wanderingspirit No. 1), the application was allowed. The effect of the decision was to overturn the November election and reinstate the August council.
Following the Federal Court decision in Wanderingspirit No. 1, another Order related to the financial administration of the Band was issued on June 20, 2003; the Applicants contend that certain of the Respondents were also in contempt of this Order.
2. The Orders
[3] As noted, there are a number of Orders in issue in this motion. The Applicants allege that the Respondents are in contempt of a number of provisions of these Orders. In the following, I have described those portions of the Orders that are relevant to this motion.
2.1 January 10 Order
[4] In his first Order, dated January 10, 2003, Justice Rouleau ordered that all transactions, other than payroll, should not be processed without the consent of counsel for both parties. Specifically, the Order stated that:
1. The trust account of the Band being administered by RBC Investments, Aboriginal Services in Winnipeg, Manitoba, remain frozen until further order of this Court or consent of all parties, save with respect to an amount owing for taxation, which sum may be paid by RBC Investments to the law firm of Dubouff & Edwards in trust, barristers and solicitors of Winnipeg, Manitoba;
2. Two corporate bank accounts of 4991 NT Ltd. and 4992 NT Ltd. Operating with the Bank of Montreal, Fort Smith, North West Territories, are frozen until further order of this Court;
3. Various and other bank accounts which are being operated by the Band also at the Bank of Montreal, Fort Smith Branch, North West Territories and being limited and are authorized to clear payments on the various accounts that pertain to payroll obligations and any and all other transactions should not be processed without the consent of counsel acting on behalf of the applicants and the respondents.
2.2 January 17 Order
[5] In the second Order, dated January 17, 2003, Justice Rouleau allowed the payment of cheques to individuals listed in the attachment to that Order. Of significance is that: (a) Victor Marie was included in a "list of our people that will be receiving payroll cheques, which includes obligations such as honorariums"; (b) beside the name of Nora Beaver was a hand-written notation "MAY BE PAID"; and, (c) the names of Connie Benwell, Michel Bjornson, David Gowans, Harvey Lepine, Norman Starr and Don Tourangeau, whose names had originally been included on that list, had been struck.
2.3 May 29 Decision and June 5 Direction
[6] In his decision in Wanderingspirit No. 1, above, Justice Rouleau stated clearly that the January 10 Order "is to remain in effect until the expiry of the appeal period". This further clarified in Justice Rouleau's Direction of June 5, 2003 where he stated that "my orders of January 10, 2003 are to remain in full force and effect until either varied by the Court of Appeal on June 12, 2003 or until further order of this Court which may or may not occur following motions to be heard on Thursday, June 19, 2003." The Court of Appeal did not vary the orders (Order dated June 12, 2003).
[7] The motions referred to in the foregoing paragraph were heard by Justice Rouleau on June 19, 2003, following which an Order dated June 20, 2003 was issued. That Order, which is not at issue in this motion, restored the Applicants to "their full rights and privileges as Band Council members; and, permitted the Applicants "to conduct Band affairs along with Mr. Norman Starr and Chief Victor Marie".
2.4 June 20 Order
[8] The final Order of Justice Rouleau that is relevant to the motion followed an emergency notice of motion filed on behalf of the Applicants and a teleconference held on June 19, 2003. This is not to be confused with the previous order also issued on June 20, 2003, discussed in the above paragraph. Of particular relevance, the Order provided that:
"Any party . . . who have in their possession documents, computer data, ledgers, bank statements or documents, books of minutes or anything in that nature rightfully belonging to the Salt River First Nation 195 return them forthwith; failure to comply with this Order, contempt proceedings may be initiated";
From Monday, June 23, 2003, only Chief Victor Marie, Norman Starr, Melvin Wanderingspirit, Delphine Beaulieu, Toni Heron, Raymond Beaver and Sonny McDonald were signing authorities of the Band Council of the SRFN; and
"all negotiable instruments must be executed before being honoured by at least three of the above named individuals, one of which must always be Chief Victor Marie" [emphasis added].
3. Subsequent Court of Appeal Decision and Effect on Orders of Justice Rouleau
[9] The Federal Court of Appeal overturned the June 20, 2003 order of Justice Rouleau on October 20, 2003 (Wanderingspirit et al. v. Marie et al., 2003 FCA 384 (Wanderingspirit No. 2)), holding that Justice Rouleau had no jurisdiction to issue an order relating to a matter that had been finally decided on May 29, 2003. It was held that the interim order of January 10, 2003 was valid until the final order of May 29, but once the issue was finally determined (that is, whether the election of November 2002 was valid), the interim orders were terminated and the administration of the Band Council was in the hands of the elected Members. Therefore, the orders of January 10 and June 20, 2003 were held to be no longer effective.
[10] In spite of the subsequent decision of the Court of Appeal, it should be noted that, where a court issues an order, that order must be obeyed even if later reversed. This is so because more is at stake than the simple question of the validity of the particular order. What is at stake is the very integrity and authority of the judicial institutions of Canada (Canadian Human Rights Commission v. Canadian Liberty Net, [1996] 1 F.C. 787 (C.A.) at para. 16; see also Canada (Canadian Human Rights Commission) v. Taylor, (1990) 75 D.L.R. (4th) 577 at p.635). Thus, in this case, if any of the Respondents did violate the Orders of January 10, 2003 or June 20, 2003 before they were declared invalid, they may still be found in contempt as the Orders were valid at the time those acts were committed. All of the acts in question occurred prior to this finding of invalidity.
Statutory Provisions [11] The procedure for contempt proceedings has been codified in the Federal Court Rules (Rules 466-472):
466. Subject to rule 467, a person is guilty of contempt of Court who
(a) at a hearing fails to maintain a respectful attitude, remain silent or refrain from showing approval or disapproval of the proceeding;
(b) disobeys a process or order of the Court;
(c) acts in such a way as to interfere with the orderly administration of justice, or to impair the authority or dignity of the Court;
(d) is an officer of the Court and fails to perform his or her duty; or
(e) is a sheriff or bailiff and does not execute a writ forthwith or does not make a return thereof or, in executing it, infringes a rule the contravention of which renders the sheriff or bailiff liable to a penalty.
466. Sous réserve de la règle 467, est coupable d'outrage au tribunal quiconque :
a) étant présent à une audience de la Cour, ne se comporte pas avec respect, ne garde pas le silence ou manifeste son approbation ou sa désapprobation du déroulement de l'instance;
b) désobéit à un moyen de contrainte ou à une ordonnance de la Cour;
c) agit de façon à entraver la bonne administration de la justice ou à porter atteinte à l'autorité ou à la dignité de la Cour;
d) étant un fonctionnaire de la Cour, n'accomplit pas ses fonctions;
e) étant un shérif ou un huissier, n'exécute pas immédiatement un bref ou ne dresse pas le procès-verbal d'exécution, ou
enfreint une règle dont la violation le rend passible d'une peine.
467. (1) Subject to rule 468, before a person may be found in contempt of Court, the person alleged to be in contempt shall be served with an order, made on the motion of a person who has an interest in the proceeding or at the Court's own initiative, requiring the person alleged to be in contempt
(a) to appear before a judge at a time and place stipulated in the order;
(b) to be prepared to hear proof of the act with which the person is charged, which shall be described in the order with sufficient particularity to enable the person to know the nature of the case against the person; and
(c) to be prepared to present any defence that the person may have.
(2) A motion for an order under subsection (1) may be made ex parte.
(3) An order may be made under subsection (1) if the Court is satisfied that there is a prima facie case that contempt has been committed.
(4) An order under subsection (1) shall be personally served, together with any supporting documents, unless otherwise ordered by the Court.
467. (1) Sous réserve de la règle 468, avant qu'une personne puisse être reconnue coupable d'outrage au tribunal, une ordonnance, rendue sur requête d'une personne ayant un intérêt dans l'instance ou sur l'initiative de la Cour, doit lui être signifiée. Cette ordonnance lui enjoint :
a) de comparaître devant un juge aux date, heure et lieu précisés;
b) d'être prête à entendre la preuve de l'acte qui lui est reproché, dont une description suffisamment détaillée est donnée pour lui permettre de connaître la nature des accusations portées contre elle;
c) d'être prête à présenter une défense.
(2) Une requête peut être présentée ex parte pour obtenir l'ordonnance visée au paragraphe (1).
(3) La Cour peut rendre l'ordonnance visée au paragraphe (1) si elle est d'avis qu'il existe une preuve prima facie de l'outrage reproché.
(4) Sauf ordonnance contraire de la Cour, l'ordonnance visée au paragraphe (1) et les documents à l'appui sont signifiés à
personne.
468. In a case of urgency, a person may be found in contempt of Court for an act committed in the presence of a judge and condemned at once, if the person has been called on to justify his or her behaviour.
468. En cas d'urgence, une personne peut être reconnue coupable d'outrage au tribunal pour un acte commis en présence d'un juge et condamnée sur-le-champ, pourvu qu'on lui ait demandé de justifier son comportement.
469. A finding of contempt shall be based on proof beyond a reasonable doubt.
469. La déclaration de culpabilité dans le cas d'outrage au tribunal est fondée sur une preuve hors de tout doute raisonnable.
470. (1) Unless the Court directs otherwise, evidence on a motion for a contempt order, other than an order under subsection 467(1), shall be oral.
(2) A person alleged to be in contempt may not be compelled to testify.
470. (1) Sauf directives contraires de la Cour, les témoignages dans le cadre d'une requête pour une ordonnance d'outrage au tribunal, sauf celle visée au paragraphe 467(1), sont donnés oralement.
(2) La personne à qui l'outrage au tribunal est reproché ne peut être contrainte à témoigner.
Decision of Justice Heneghan [12] The proceedings on contempt in respect of these matters were initially commenced in 2003 and heard by Justice Heneghan of this Court. The same individuals, plus Connie Benwell, were named in that application. In her decision (Wanderingspirit v. Salt River First Nation 195, [2005] F.C.J. No. 300 (Q.L.), 2005 FC 146 (referred to as Wanderingspirit No. 3), Justice Heneghan dismissed the application, without prejudice, against everyone but Ms. Benwell on the basis that the other Respondents were not properly served with the motion. As a result, Justice Heneghan's decision only dealt with the contempt order against Ms. Benwell, who was found in contempt of Count No. 6 in the show cause order.
Jeannie Marie-Jewell [13] Ms. Jeannie Marie-Jewell is named in the application before me. However, the Applicants failed to provide evidence that Ms. Jewell had been served with a copy of the show cause order. In light of this, the Applicants acknowledged that they could not proceed further against Ms. Jewell. As a result, Particulars 7 and 8, which related solely to the alleged actions of Ms. Jewell, need not be dealt with further.
The Hearing [14] At the hearing into these allegations of contempt, the Applicants presented a number of witnesses:
Mr. Brad Marta, branch manager of the Bank of Montreal in Fort Smith;
Mr. Mike Beaver, a member of the SRFN and, in June 2003, employed by the Band as a supervisor of summer programs;
Mr. Ian Blackstock, a barrister and solicitor currently employed by the Department of Justice of the Northwest Territories, who was in private practice and acted for the Applicants from the commencement of the judicial review proceedings;
Ms. Barbara McArthur, who resumed her duties as finance officer of the SRFN on June 18, 2003;
Ms. Tanya Tourangeau, a financial clerk with the SRFN from September 2001 to the summer of 2002 and again from November 2002 to the summer of 2003; and
Mr. Ram Mudalier, a financial consultant who provided services under contract to the SRFN from 1991 to September 2002 and, again, from June 2003 to the present.
[15] I have reviewed the testimony of these witnesses and refer to it where appropriate within these reasons.
[16] Pursuant to Rule 470(2), the Respondents cannot be compelled to testify. The Respondents did not testify; nor did they present any evidence.
Analysis 8.1 Effect of Orders on Respondents
[17] At the outset, I wish to deal with the argument put forward by counsel for the Respondent, Mr. Gowans, that the January 10 Order, the January 17 Order and the May 29 Order are not directed at the Respondents, but at the Bank of Montreal. The argument appears to be that, unless the Orders are directed to the Respondents, they cannot be held to be in contempt. I do not accept these arguments.
[18] The Orders are not as clear as they could be. Clause 3 of the January 10 Order, which is particularly important to this matter, does not appear to be grammatically sound. One interpretation of the words of this clause is, I accept, that it is directed to the Bank and does not explicitly state that the Respondents are prohibited from writing cheques or attempting to negotiate them in other financial institutions. In such a situation, the context of the Orders becomes very important. What was meant by the Orders? And how did the parties understand the Orders to operate?
[19] In my view, the reasonable interpretation of the Orders is that they apply to the Respondents and all those who participated in the financial administration of the Band during the time they were in force. While Clause 3 of the Order may have the meaning alleged by Mr. Gowans, one cannot take those words out of context. The opening paragraph of the Order indicates that a conference call had been held to "find an interim solution regarding an application launched by these applicants in which they seek an order of the Court appointing a Receiver Manager to manage the affairs of the Salt River First Nation 195". Further, the preamble to Clause 3 indicates that the order is addressed to the "interest of the Band and the handling of its affairs". From this language, I can conclude that the Order was directed, first and foremost, to the actions of the parties. It was intended to leave the operation of the SRFN's finances in the hands of the November council with the restrictions imposed, rather than resorting to a Receiver Manager. Since the accounts of the SRFN were held at the Bank of Montreal in Fort Smith, the Bank was also included in the Orders; that does not mean that the Bank was the only party bound by the Orders.
[20] The record shows that the Respondents, in seeking the consent of counsel for the Applicants prior to issuing various cheques, acted in a manner consistent with this interpretation.
[21] The effect of these Orders on the Respondents was that they were prohibited from authorizing and issuing cheques except in conformity with the Orders. Any failure to do so would be grounds for an allegation of contempt.
8.2 Burden of Proof
[22] As set out in Rule 469, a finding of contempt "shall be based on proof beyond a reasonable doubt." Despite the wording of the show cause that the alleged contemnors "appear before a judge to show cause why they should not be held in contempt of court", the Applicants bear the burden of proof.
8.3 Knowledge of the Orders
[23] The Applicants must prove that the alleged contemnors had actual knowledge of the Orders in issue; that is, the orders of January 10 and 20, 2003, May 29, 2003 and June 20, 2003. An individual cannot be held to be in contempt of an Order of which he or she had no knowledge. According to Bhatnager v. Canada, [1990] 2 S.C.R. 217, the party alleging contempt must prove actual knowledge of the order allegedly breached by the alleged contemnor.
[24] In this case, none of the Respondents were personally served with copies of the orders. Rather, the orders were served on their legal counsel. Does that mean that they did not have knowledge? In Apple Computer v. Minitronics of Canada Ltd., [1988] 2 F.C. 265 (T.D.), the Court found that knowledge of an order can be inferred from conduct, even if an alleged contemnor has not been served with the order.
[25] There can be no question that Chief Marie was aware of all the Orders; the evidence shows that he was involved at each and every stage. Letters signed by him and references in other correspondence establish his knowledge.
[26] With respect to the other Respondents, in spite of arguments to the contrary, I find that all of the Respondents had actual knowledge of the orders in question. I reach this conclusion on the basis of inferences drawn from a number of facts.
[27] Firstly, the Respondents were represented by counsel - Mr. Robert Philp, Q.C. - at all times during the period during which these orders were issued. Mr. Ian Blackstock, who was the Applicants' counsel during the legal proceedings, was asked whether he had any reason to believe that any of the respondents were not being kept fully informed by Philp Law Office or by Chief Victor Marie. Mr. Blackstock's response was, "None whatever".
[28] I also take into account that, on January 17, 2003, a motion was filed on behalf of the Respondents seeking an order to strike the application for judicial review and that a Notice of Appeal was filed on May 30, 2003 in respect of the Order issued May 29, 2003. There was nothing in the record before me that Chief Marie was authorized to represent the other Respondents. It would be a serious breach of professional conduct for Mr. Philp to proceed, at each of the many steps involved in this litigation, without obtaining the direction of each and every one of the named litigants.
[29] Further, the Orders had direct impact on the Respondents who were part of the November council. As a result of the Orders, the November councillors were unable to receive any payments - either honoraria or expenses - without the consent of both counsel. The record before me shows that such consent was not easily obtained and that the councillors went without payment. Surely, the Respondents who were part of the November council would have known why they were not receiving their payments.
[30] I find that the Respondents had actual knowledge of the Orders.
8.4 Count No. 1
[31] Only Chief Victor Marie is alleged to be in contempt in Count No. 1. The Applicants assert that he refused to return financial records and documents in his possession, power or control, in particular "cheques for [SRFN] bank accounts and copies of cancelled cheques for the SRFN bank accounts".
[32] The material that is the subject of this Count allegedly came to be in the possession of Chief Victor Marie as a result of two different events. First, the Applicants allege that, on June 12, 2003, Ms. Tourangeau, then financial officer for the Band, entered the Band Council Office and removed a computer hard-drive, which contained financial data, on the instructions of Chief Marie. It is alleged that she also removed financial and accounting records of the SRFN. In June 2003, Mr. Mike Beaver was an employee of the SRFN. He testified that, on June 12, 2003, he was in the Band Office and saw Ms. Tourangeau leave the Band Office with a Dell computer tower and boxes of files.
[33] The second event was a "break in" that occurred on June 24, 2003. We have some evidence of this break in from Ms. Barbara McArthur, who had resumed her duties as a financial officer with the SRFN on June 18, 2003. She testified that, by June 20, some of the missing information had been returned, but not the Dell computer. On June 24, she returned from a coffee break to find that the locked door to the Band Officer was ajar and contained a large hole. Her testimony was that Natasha Tourangeau, a secretary in the Band Office told her that Chief Victor Marie had kicked in the door. After this break in, Ms. McArthur noted that a number of cheques were missing.
[34] As noted above, the June 20 Order required that "Any party . . . who have in their possession documents, computer data, ledgers, bank statements or documents, books of minutes or anything in that nature rightfully belonging to the Salt River First Nation 195 return them forthwith." A further Order of Justice Rothstein dated July 10, 2003 referred to the missing materials in a recital that stated that:
AND UPON Chief Victor Marie, through his counsel, having undertaken to return to the Band Office on or before July 16, 2003, computer equipment and records taken from the Band Office on or about June 12, 2003, in an unaltered condition, plus cheque books and other documents taken subsequently.
[35] I accept that Tanya Tourangeau removed the Dell computer tower and important files from the Band Office on June 24. It is also clear that not all financial records - in particular, cheque forms - were returned as required by the Orders and that the computer hard drive was not returned in an unaltered state. The Orders, it appears to me, were not complied with. However, I have some difficulty with finding, beyond a reasonable doubt, that Chief Marie was in contempt of the Orders. For one thing, I have no direct evidence that Chief Marie was the person who kicked in the door and took any cheques. For whatever reason, the Applicants did not put Natasha Tourangeau forward as a witness. There is no compelling reason to accept the hearsay evidence of Ms. McArthur on this point. Further, I note that it was Tanya Tourangeau who removed the files and computer tower from the Band Office. I have no evidence as to how the files and computer ended up in the hands of Chief Marie or whether Ms. Tourangeau or others may have kept certain of the records.
[36] For these reasons, I am not persuaded, beyond a reasonable doubt, that Chief Marie is in contempt of Count No. 1.
8.5 Count No. 2
[37] Chief Victor Marie and Mr. Norman Starr are implicated in Count No. 2. That count involves a number of cheques dated May 23, 2003 or June 19, 2003 payable to a number of individuals, including all of the Respondents but for Mr. David Gowans and Mr. Harvey Lepine. All of the cheques in issue under this Count were signed by Chief Marie and Mr. Starr. The Applicants allege that the cheques were signed after the June 20 Order and back dated to May 23 or June 19, 2003. The following chart summarizes the cheques in question.
Cheque No.
Payee
Date
Amount
When Negotiated
150
J.M. Jewell
23 May
$12,927.93
7 July
250
Henry Beaver
19 June
$3,629.24
4 July
252
T. Tourangeau
19 June
$4,685.15
7 July
253
M. Bjornson
19 June
$8,470.90
15 July
254
D. Tourangeau
19 June
$6,000.00
15 July
255
N. Starr
19 June
$3,500.00
15 July
1550
J.M. Jewell
19 June
$7,702.31
4 July
1551
V. Marie
19 June
$8,596.92
4 July
1556
J.M. Jewell
19 June
$5,991.39
7 July
1557
J.M. Jewell
19 June
$10,424.04
15 July
1589
Bruce Barry
19 June
$35,000.00
(illegible)
2022
Bruce Barry
19 June
$1,950.00
(illegible)
2051
E. Beaver
19 June
$2,952.69
4 July
2055
N. Beaver
19 June
$3,264.83
7 July
2056
N. Starr
19 June
$7,900.00
15 July
2049
N. Beaver
19 June
$2,937.28
(illegible)
[38] To establish the elements of this count, I must be satisfied, beyond a reasonable doubt, that:
the cheques (or some of them), even though dated May 23 or June 19, 2003, were actually issued after the June 20 Order;
Chief Victor Marie and Mr. Norman Star signed the cheques and were aware that they were doing so in contravention of the June 20 Order.
[39] The key question is when the cheques implicated in this count were actually signed. Were they written before or after the June 20 Order? If written after, and back dated to before that date, they were issued in contravention of that Order. There is no direct evidence establishing when the cheques were issued. For example, no witness appeared to confirm that he or she saw the cheques being written after June 20. Nevertheless, there is a substantial amount of evidence from which strong inferences may be drawn.
[40] During the hearing, copies of a number of cancelled cheques were tendered as evidence through the testimony of Mr. Brad Marta, branch manager of the Bank of Montreal in Fort Smith. Further evidence was provided as to the date and place of negotiation of some of the cheques. I immediately note a few problems with the evidence. First, it is impossible to establish when or where two cheques written on June 19, 2003 (cheque #1589 and #2022) to Mr. Bruce Barry were negotiated. I will not consider these cheques further. Similarly, I exclude cheque #2049 from my analysis, as the copy was not certified.
[41] Even if I eliminate these cheques, a review of the history of these cheques reveals a remarkable fact. That is, every one of the cheques was cashed in July; not a single one of the remaining 13 cheques was negotiated before July 4, 2003. In my view, it is unbelievable that all 13 payees would hold onto their June 19 cheques and fail to cash them until July. There is simply no plausible explanation for this fact. In addition, the amount of each cheque is not insignificant; the values range from $2,952.69 to $10,424.04. While one might not immediately cash a cheque for a small amount - say, $100 - it is highly improbable that not one of the cheques in these higher amounts would have been presented in June.
[42] One other note of interest is that not one of these 13 cheques was negotiated at the Bank of Montreal in Fort Smith - the only bank in Fort Smith. Given that at least some of the individuals reside in Fort Smith and would have to travel some distance to Edmonton or Calgary to deposit or negotiate the cheques, this action is not consistent with what one would expect. This leads to an inference that the persons who deposited the cheques were also aware of the irregularity of the cheques - either as to the date of issuance or the manner in which they were authorized. Had the cheques actually been issued on June 19, one would have expected to see some of them deposited into the Fort Smithbranch of the Bank of Montreal.
[43] Lastly, I refer to the fact that seven of the 13 cheques were issued to individuals who have, throughout the litigation, been named parties; these are Ms. Bjornson, Mr. Tourangeau, Mr. Starr, Chief Marie and Ms. Beaver. As of June 19, when the cheques were allegedly written, the litigation was very active; Justice Rouleau's decision had been appealed and the Respondents were in the process of seeking a stay. Given the status of the litigation on June 19, it defies credibility that there would have been any delay in depositing the cheques. The inference is that these cheques were not issued until July.
[44] The final evidence supporting the Applicants' position comes from the testimony of Ms. Barbara McArthur who testified that a number of blank cheques had gone missing from chequebooks or boxes of the SRFN. All but one of the cheques in question were written on these missing blank cheques. This is not evidence that the cheques were stolen or that, without anything further, the cheques were written after the June 20 Order. Nevertheless, it is consistent with the other evidence on this question and tends to support my overall finding. Cheque #150 was not referred to in Ms. McArthur's testimony. Thus, even though this cheque was not negotiated until July, I have excluded it from my overall conclusion.
[45] This leaves 12 cheques, all dated June 19 and all signed by Chief Marie and Mr. Starr. When the totality of the evidence is considered, the inescapable conclusion is that the 12 cheques were not signed on June 19; rather, they were issued some time after the June 20 Order and back dated to June 19. I am satisfied beyond a reasonable doubt that this was the case.
[46] In light of this conclusion, it follows that all cheques were required to be issued in compliance with the obligations set out in the June 20 Order. That Order provided that "all negotiable instruments must be executed before being honoured by at least three of the above named individuals, one of which must always be Chief Victor Marie" [emphasis added]. Again referring to the chart, each cheque (without dispute, a "negotiable instrument") was signed by only two individuals. Further, every single cheque was signed by the same two persons - Chief Victor Marie and Mr. Norman Starr. No third signature is present on any of the twelve cheques.
[47] Mr. Brad Marta confirmed that the signatures on the cheques were those of Chief Victor Marie and Mr. Norman Starr. I have compared the signatures on the cheques with the signed banking records for the relevant accounts upon which these cheques were drawn. I am satisfied that the signatures on the cheques are those of Chief Marie and Mr. Starr.
[48] Can I draw an inference that Chief Victor Marie and Mr. Norman Starr never intended the cheques to be delivered and subsequently negotiated before the required third signature was obtained? I am confident that such an inference cannot be supported in this case. First, even if this could be a possible explanation for one cheque, it is a completely unreasonable conclusion to draw when all 12 cheques were subsequently negotiated. Secondly, three of the cheques were issued to either Chief Victor Marie or Mr. Norman Starr, the very people who signed the cheques. Finally, there is the fact that they were back dated to June 19. The two signing officers, in my view, were well aware of the obligations set out in the June 20 Order and never intended to obtain a third person to sign the cheques.
[49] In sum on the issuance of these cheques, I find that these cheques were issued some time after the June 20 Order and that Chief Victor Marie and Mr. Norman Starr signed these cheques in contravention of the Order and were aware that they were in contravention of the Order.
8.6 Count No. 3
[50] Given my conclusion with respect to Count No. 2 - that cheques were back-dated to June 19 - it is unnecessary to deal with this Count as it was in the alternative to Count No. 2.
8.7 Count No. 4
[51] Count No. 4 of the motion relates to Cheque #222 issued to Ms. Tanya Tourangeau in the amount of $8008.00. Cheque #222 was dated June 6, 2003 and was signed by Chief Victor Marie and Mr. Norman Starr. In Count No. 4, the Applicants assert that Victor Marie, Nora Beaver, David Gowans, Norman Starr, Michel Bjornson, Harvey Lepine and Don Tourangeau authorized the issuance of the cheque "purportedly in payment of her wages, but in fact consisting partly of a payment to her and partly in payment of wages, but in fact consisting of a payment to her and partly in payment of monies earmarked as honoraria for the councillors purportedly elected on November 3, 2002". This, it is submitted, is in violation of the Orders of Justice Rouleau dated January 10 and 17, 2003 and May 29, 2003.
[52] To establish the contempt charge set out in Count No. 4, the Applicants must establish, beyond a reasonable doubt, that:
Cheque #222 consisted, in part, of a payment to the November councillors;
Cheque #222 was authorized by the parties named in Charge No. 4;
The issuance of Cheque #222, to the extent that it included an overpayment, was in breach of the Orders of the Court; and
The alleged contemnors cited in this charge were aware that the issuance of a payment in this matter was contrary to the Orders.
[53] The Applicants principal evidence in respect of this count was that of Ms. Tanya Tourangeau. Ms. Tanya Tourangeau appeared as a witness for the Applicants under subpoena. It was apparent from her testimony that she was reluctant to appear. I would characterize her testimony during examination as uncooperative and evasive. Throughout, she denied recollection of many relevant matters. In my view, her memory failures were contrived; quite simply, she did not want to implicate the alleged contemnors. As specific examples, I find it incredible that Ms. Tourangeau could not now recall:
the circumstances in which Cheque #222 was issued in place of an earlier cheque for a lesser amount; or
whether her pay cheques were frequently in excess of $1960; or
that a portion of Cheque #222 was in respect of a motion passed by council.
With respect to the issuance of Cheque #222, all that Ms. Tourangeau would directly acknowledge was that "I just remember that there was two cheques made up for this time period and that one was voided".
[54] What makes her current lack of memory amazing is that, on July 5 and 6, 2003, Ms. Tourangeau was cross-examined on an affidavit filed in respect of an earlier motion for contempt. Under oath, over two days of questioning, she responded to a large number of questions related to the issuance of Cheque #222, on these same areas where she now asserts no recollection. At that time, she had a detailed recollection of what had happened.
[55] During her examination before this Court, portions of that transcript were read to Ms. Tourangeau. When confronted with her previous statements, Ms. Tourangeau did not dispute that she had been asked the questions read to her and had given the corresponding answers. She also acknowledged being under oath at that time. With a few minor clarifications, she did not attempt to provide further explanations or to change her testimony. There is no inconsistency between her earlier sworn testimony and that made before me. Finally, her testimony on these matters is not contradicted by any other witnesses or evidence. Accordingly, I conclude that Ms. Tourangeau's assertions of memory failure should be discounted and that the excerpts from the 2003 transcript should be accepted as evidence of the truth of the matters stated therein.
[56] In particular, most relevant to Count No. 4 is Ms. Tourangeau's testimony on the circumstances surrounding the issuance of Cheque #222. That testimony was to the effect that:
(a) a cheque in the amount of $5,642.92, dated June 6, 2003 and representing Ms. Tourangeau's regular pay plus overtime (and possibly travel claims), was prepared;
(b) Chief Victor Marie directed her to void that cheque and prepare a cheque for $8008.00 payable to herself;
(c) The difference between the two cheques - $2,365.08 - was passed on to the November councillors, who were not on the payroll list;
(d) Neither CPP nor UIC amounts were deducted from the difference "because that amount is not my income";
(e) Once Cheque #222 was deposited into the bank, Ms. Tourangeau transferred the difference to the accounts of the councillors "probably ... over the computer";
(f) The difference was to account for the equivalent of honoraria to the November councillors; and,
(g) This method was devised to "get around" the Court Order; when the Applicants did not provide approval for payment to the councillors "it left us with no other way, but with what we did on June 6th to pay the necessary bills that had accumulated from the councillors of the SRFN".
[57] These alleged facts are supported by the existence of a certified copy of Cheque #222 in the amount of $8008.00. Further, I heard testimony from Ms. Tourangeau, Ms. MacArthur and Mr. Mudalier, the SRFN financial consultant, as to Ms. Tourangeau's regular rate of pay being either $28 or $35 per hour. While the amount of the voided cheque would fall within the realm of possibility for regular pay for a two-week period, if one assumes some overtime and expenses were included, I am satisfied that the actual amount of cheque #222 far exceeded her regular pay. The inescapable conclusion is that $2,365.08 of Cheque #222 was not Ms. Tourangeau's regular pay, but was included in her pay cheque and was intended to provide honoraria to the November councillors in order to circumvent the Court Orders.
[58] I have no bank records to show that the difference was actually deposited to the bank accounts of the November councillors. Nevertheless, I am satisfied that, based on the evidence of Ms. Tourangeau, that the overpayment was transferred to some of the November councillors.
[59] However, because I do not have the bank records, I cannot determine, beyond a reasonable doubt, that all the November councillors received a share of the amount or which councillors rece