Twinn v. Sawridge First Nation

Twinn v. Sawridge First Nation
Court (s) Database
Federal Court Decisions
Date
2017-04-26
Neutral citation
2017 FC 407
File numbers
T-1073-15
Notes
A correction was made on January 10, 2018
Decision Content
Date: 20170426
Docket: T-1073-15
Citation: 2017 FC 407
Ottawa, Ontario, April 26, 2017
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
SAM TWINN AND ISAAC TWINN
Applicants
and
SAWRIDGE FIRST NATION, SAWRIDGE FIRST NATION FORMERLY KNOWN AS THE SAWRIDGE INDIAN BAND, ROLAND TWINN, ACTING ON HIS OWN BEHALF AND IN HIS CAPACITY AS CHIEF OF THE SAWRIDGE FIRST NATION AND HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS REPRESENTED BY THE ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
I. INTRODUCTION [1] This is an application under s 18.1 of the Federal Courts Act, RSC 1985, c F-7 [Act] for judicial review of connected decisions taken by the Chief Electoral Officer [CEO], made on or about February 17, 2015 [Decisions] related to the 2015 general election [Election] of Sawridge First Nation [SFN].
II. BACKGROUND [2] On December 4, 2014, prior to the Election, the CEO sent a mail-out package to SFN’s electors that contained: a cover letter; Notice of Election; Notice of the Date for Nominations; a resident electors sub-list; and a non-resident electors sub-list. The cover letter advised recipients to refer to s 18 of the Sawridge First Nation Elections Act, Consolidated with Elections Act Amendment Act [Elections Act] for the provisions that governed the process for submitting changes to the sub-lists and corresponding deadline.
[3] The CEO received 4 requests to correct the sub-lists and provided notice of the changes to SFN’s electors on December 23, 2014. The notice also advised that the deadline for submitting a statutory declaration as to why the changes should not be made was 11 days prior to the January 13, 2015 nomination meeting.
[4] On January 13, 2015, Sam and Roland Twinn were nominated for the position of Chief.
[5] The Election took place on February 17, 2015 from 10:00AM to 6:00PM. After the polls closed, the CEO publicly opened the 15 sealed mail-in ballots, including those of Walter Felix Twinn (Walter) and Deana Morton.
[6] Walter’s ballot lacked the initials of the CEO, which is a requirement for validity under the Elections Act. Ron Rault [Scrutineer], the scrutineer for Sam Twinn, Tracey Poitras-Collins, and Elizabeth Poitras, suggested that Walter’s vote be accepted, or that Walter be permitted to cast an in-person vote since he was present at the polls; however, the CEO rejected both suggestions and determined Walter’s vote, along with two others, was invalid.
[7] Deana’s vote lacked a witness address but was accepted by the CEO.
[8] Roland was declared the winner of the Election for Chief by one vote. According to s 72 of the Elections Act, a tie would have required a run-off election.
[9] The Applicants then proceeded to appeal the Election. On March 2, 2015, they filed a Notice of Appeal with the CEO, which was rejected on March 6, 2015. The Applicants then appealed to the Elders Commission, which did not respond within the required time period. Accordingly, the Applicants appealed to the Special General Assembly [SGA] of the SFN on April 13, 2015. The four grounds of all the appeals were: improper rejection of ballots; non-compliance with election rules; inconsistent administration decisions impacting the popular vote; and non-compliance with the rules regarding the creation and notice of voter lists.
[10] On May 30, 2015, the SGA dismissed the Applicants’ appeal. The Applicants then commenced this application for judicial review.
III. DECISIONS UNDER REVIEW [11] According to the Applicants, there are three related decisions that constitute the subject of this judicial review:
(1) Rejection of Walter’s Vote [12] According to the Scrutineer, the CEO set aside Walter’s ballot upon opening Walter’s mail-in vote because it had been cut and the CEO’s initials removed. The CEO later determined Walter’s vote to be invalid, overruling the Scrutineer’s suggestion that Walter be permitted to cast a new in-person vote in place of his spoiled ballot.
(2) Conduct of the Election [13] The mail-out packages were dated December 3, 2014 and mailed December 4, 2014, with the Election held on February 17, 2015.
[14] Two of the mail-out packages, addressed to Patrick Twinn and Georgina Ward, were not delivered and returned.
[15] Following corrections, the CEO sent revised lists of electors. The deadline to correct the new list was January 2, 2015. However, Sam Twinn did not receive the notice until January 6, 2015.
[16] On January 12, 2015, the CEO stated in an email to Catherine Twinn, the Membership Registrar, that general membership issues were dealt with by the Membership rather than the CEO. This response was a reply to Catherine’s question of whether the CEO had authority to add the names of persons who were entitled to membership to the list of electors, including those whose completed applications had been pending for an unreasonable length of time.
(3) SFN Membership Application Process [17] In the mail-out package of December 4, 2014, Roy Twinn, the son of Roland Twinn, was listed on the non-resident sub-list. There is no documentation indicating when Roy became a member, but Roy was not on the elector lists for the 2011 election, and others have applied for membership and have not yet received a decision.
IV. ISSUES [18] The Applicants submit that the following are at issue:
A. Whether the CEO erred in law, including that going to jurisdiction, both in his initial and appeal decisions, in rejecting an election ballot through misinterpretation and misapplication of statutory provisions, compounded by breach of rules of natural justice and procedural fairness?
B. Whether the Respondents failed in their fiduciary duty to establish and confirm that a proper and complete list of electors was prepared, in disregard of constitutional, statutory, and other legal requirements, compounded by corrupt practices, thereby committing errors going to jurisdiction?
C. Whether the CEO erred in law, including that going to jurisdiction, in failing or declining to make adequate inquiry into the composition of the Electors List, compounded by procedural unfairness and disregard for rules of natural justice?
[19] The Respondents submit that the following are at issue:
A. Whether the information and documents in Sam’s affidavit, referred to in the Respondent’s arguments, are all irrelevant and inadmissible in a judicial review of the CEO’s Decisions?
B. Whether the CEO reasonably, indeed correctly, rejected and did not count Walter’s mail-in ballot because it did not have “the distinctive mark of the Electoral Officer on the back” as mandated by s 69(1)(b) of the Elections Act?
C. Whether the CEO’s decision not to give Walter a new, in-person ballot after he had already voted by mail-in ballot and after the polls had closed is neither unfair, discriminatory, nor anti-democratic, but rather a reasonable, indeed correct, interpretation and application of the Elections Act?
D. Whether the CEO’s decision dismissing the Applicants’ March 2, 2015 challenge to the electors sub-lists for non-compliance with statutory procedures and limitation periods is a reasonable, indeed correct, interpretation and application of the Elections Act?
E. Whether this judicial review is subject to public policy?
V. STANDARD OF REVIEW [20] The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is settled in a satisfactory manner by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless, or where the relevant precedents appear to be inconsistent with new developments in the common law principles of judicial review, must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis: Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 48.
[21] Although the Applicants raise a wide range of issues in this application, the Court concludes that it is only in a position to review a connected series of decisions (and in particular the rejection of Walter’s vote) made by the CEO during the 2015 Election and the appeal of those decisions to the CEO. This essentially gives rise to issues of procedural fairness and the CEO’s interpretation and application of the governing provisions of the Elections Act.
[22] Issues of procedural fairness, particularly in regards to the actions of Elections Committees, have been found to be reviewable under a standard of correctness: Beardy v Beardy, 2016 FC 383 at para 45 [Beardy].
[23] Issues of statutory interpretation and application by the CEO will be reviewed on a standard of reasonableness: Mercredi v Mikisew Cree First Nation, 2015 FC 1374 at para 17.
[24] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at para 47, and Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
VI. STATUTORY PROVISIONS [25] The following provisions from the Constitution of the Sawridge First Nation [Constitution] are relevant in this proceeding:
Article 1: Interpretation
1.(1) The definitions in this section apply in this Constitution:
“Law of the First Nation” means a law of the First Nation made in accordance with this Constitution;
[…]
“Member” means a member of the First Nation in accordance with the Membership Code of the First Nation;
[…]
“Membership Rules” are those rules adopted by the Sawridge Band to govern its membership system prior to the establishment of this Constitution;
[…]
Article 3: Membership
Membership Code
3.(3) Until amended in accordance with this Constitution, membership in the First Nation shall be determined by the Membership Rules that were in force immediately before the day on which this Constitution came into force with such modification as are required by the Constitution. The Membership Rules shall thereafter be called “the Membership Code”.
[…]
Article 4: Governing Bodies
How Elected
4.(2) The Chief, Councilors [sic] and Elder Commissioners shall each be elected in an election of the First Nation by a plurality of the votes cast by Electors pursuant to the provisions of this Constitution in accordance with all of the Election Procedures set out in laws or Codes of the First Nation.
[…]
Article 9: Appointing Electoral Officer
9.(1) The Council, in consultation with the Elders Commission, shall appoint an Electoral Officer not later than eighty days before the date on which an election is to be held.
[…]
Article 10: Calling of Elections
General Elections
10.(3) The Council shall call a general election of the First Nation for the positions of Chief and Councilors [sic], the Elders Commission, and members of an Audit and Compensation Committee to be held not later than four years from the date on which the last general election was held.
[…]
Article 11: Appealing Election Result
11.(1) Within fourteen days after an election, any candidate in the election or any Elector may lodge a written appeal with the Electoral Officer if the candidate or Elector has reasonable grounds to believe that there was
a) a corrupt practice in connection with the election; or
b) a contravention of this Constitution, or any law of the First Nation that might have affected the result of the election.
(2) The Electoral Officer shall make a decision in respect of any appeal within seven days of receipt.
(3) If any candidate at the election or any Elector is not satisfied with the decision of the Electoral Officer in respect of the appeal, then that person may within 28 days after the decision of the electoral officer is made appeal further to the Elders Commission (if the election was for Council or other office) or the Council (if the election was for the Elders Commission) in writing. The Elders Commission or Council, as the case may be, shall be referred to as “the Appeal Tribunal” and shall make a decision in respect of any appeal within seven days of receipt.
(4) If any candidate at the election or any elector is not satisfied with the resolution by the Appeal Tribunal of any appeal made to them pursuant to subsection (3), then that person may within fourteen days after the appeal was made, lodge an appeal to a Special or Regular General Assembly which shall be called for that purpose within thirty days from the date the appeal is received.
Sending documents to Electoral Officer
(5) Upon the filing of an appeal, the appellant shall forward a copy of the appeal together with all supporting documents to the Electoral Officer and to each candidate.
Written Answers Required
(6) Any candidate may, and the Electoral Officer shall, within fourteen days of the receipts of a copy of an appeal under subsection (4), forward to the Appeal Tribunal, by registered mail, a written answer to the particulars set out in the appeal, together with any supporting documents relating thereto duly verified by affidavit.
The Record
(7) All particulars and documents filed in accordance with this section form the record.
Relief
(8) The Electoral Officer, Appeal Tribunal, or the General Assembly may provide such relief as it sees fit, when it appears that there was
a) a corrupt practice in connection with the election that might have affected the result of the election; or
b) a contravention of this Constitution, or any law of the First nation that might have affected the result of the election.
[…]
Article 21: Amendment to Constitution
When An Amendment is Effective
21.(1) Subject to subsections (2) and (4), an amendment to the Constitution is effective and in force on the day it is approved by seventy-five percent (75%) of the votes cast in a referendum held for the purpose of amending the Constitution, provided that at least seventy-five percent (75%) of the Electors vote in the referendum, or on such later date as is set out in the amendment.
[26] The following provisions from the Elections Act, in force as of October 26, 2013, are relevant in this proceeding:
Definitions
2. (2) The following terms are defined herewith:
“candidate” means a candidate for election;
“Deputy Electoral Officer” means a person appointed to that position pursuant to this Act;
“election” means a general election for various offices as stipulated in the Constitution or any Law of the First Nation, or a by-election for one or more of these offices;
“election day” means the day fixed for an election by the Council;
“Electors List” means the list of Electors prepared pursuant to this Act, as corrected from time to time;
“in good standing” with reference to debts owed to the First Nation means that no payments due to the First Nation or a First Nation corporation, as defined by regulation, pursuant to the agreement through which the debt was incurred, may be more than 90 days overdue on the date a certificate of good standing is issued for purposes of eligibility for nomination. Where no payment terms are specified in a loan, the loan is due upon demand. A payment on a demand loan is not due until demanded.
“Membership Registrar” is the person named by Council to maintain the Registry of Members pursuant to the Constitution;
“primary residence” means the place which at the time of determination in respect of a person has been for a period of at least six months the principal place of his or her true, fixed and permanent home and place of habitation whereto, when absent or away therefrom, not including absences for normal vacations, temporary work assignments, study or training, always without intention to establish a domicile at some other place, he or she intends to return;
“scrutineer” means a person appointed by a candidate to act pursuant to this Act to observe the election process and to call the attention of the Electoral Officer to any mistake, contravention of this Act and its regulations, or any other matter which might unfairly or unjustly affect the conduct of the election;
“Sawridge entity” means any department, agency, or unit of the Sawridge government.
[…]
Preparation of Electors List
16. (1) Within seven days after the Council has called an election pursuant to the Constitution, the Membership Registrar shall provide the Electoral Officer named by the Council pursuant to the Constitution with an alphabetical list of all Electors, containing the birth date and last-known address of each Elector. The list shall be in two forms:
(i) one, the Master List, containing the name, date of birth, and address of each Elector and
(ii) the other, the Public List, containing only the names of the Electors.
Creating and Posting of Resident and Non-Resident Voters Lists
(1) From the Public List, the Electoral Officer shall create a Resident Electors Sub-List and a Non-Resident Electors Sub-List. Not less than 70 days prior to the Election Day, the Electoral Officer shall post the sub-lists in all Principal Offices. Each Elector’s name shall be on either the Resident Electors Sub-List or the Non- Resident Electors Sub-List, but no name shall appear on both sub-lists. These sub-lists shall not contain addresses or dates of birth.
(2) On the request of any person, the Electoral Officer shall confirm whether the person’s name is on the Public List, and if so, which sub-list it is entered on.
(3) Any Elector is entitled to confirm with the Electoral Officer the information regarding the Elector which is shown on the Master List.
Correcting the Sub-Lists
(2) If any elector wishes to show cause as to why the change should not be made, they may at any time prior to 11 days prior to the date set for the nomination meeting provide the Electoral Officer with a statutory declaration containing evidence and the Electoral Officer shall consider the evidence and make a determination as to which list the elector’s name shall appear on and notify all Electors.
[…]
Appeal of Electoral Officer’s decision
18.2 If any elector wishes to appeal the decision of the Electoral Officer, the matter shall be referred to the Elders Commission no less than 4 days prior to the date set for the nomination meeting which shall decide whether it wishes to hear the appeal, and if not, the Electoral Officer’s decision is final. If the Elders Commission decides to hear the appeal, it shall hear the evidence of the electors who have filed statutory declarations, the elector in question, and the Electoral Officer as to the reasons for his or her decision, and after which, shall decide on which list the name of the Elector in question shall appear. The decision of the Elders Commission must be provided to the Electoral Officer prior to the date set for the nomination meeting.
18.3 After the commencement of the nomination meeting the names which appear on the Electoral List may not be changed and the names which appear on a Sub-List may not be removed from that Sub-List and placed on the other Sub-List.
No Delay in Nomination Meeting or Election
19. Notwithstanding any other section of this Act, no question with respect to the names on the Electoral List or a Sub-List shall cause a delay in the date set for either the Nomination Meeting or the Election or the holding of the Nomination Meeting or the Election.
Correcting the Electors Lists
20. (1) The Electoral Officer shall revise the Electors Lists where it is demonstrated to the Electoral Officer’s satisfaction prior to the commencement of the Nomination Meeting that
(a) the name of an Elector has been omitted from the Electors List;
(b) the name or birth date of an elector is incorrectly set out in the Electors List;
(c) the name of a person who is not qualified to vote is included in the Electors List.
(2) For any change made, the Electoral Officer shall give written notice of the correction to any affected person and to any person who provided information which led to the correction.
[…]
Request for Reconsideration of Electoral Officer’s decision
21. (1) If an Elector who requested that the Electoral Officer make a correction in the Electors’ List or any Elector affected by a decision of the Electoral Officer to correct the Electors’ List is not satisfied with the Electoral Officer’s decision, such Electors may at any time before the polls close request the Electoral Officer to reconsider his/her decision on one or more of the following grounds, and only on these grounds, namely, that:
(a) the person is eligible to be on the Electors List;
(b) the person’s name is on the Membership Registry and he/she will be 18 years of age or over on election day;
(c) the person’s name was mistakenly omitted from the Electors List;
(d) the person is not disqualified from being on the Electors List;
(f) [sic] the person is ineligible to be on the Electors List.
Responsibility of Each Elector To Keep His/Her Address Current
23. Each Elector is responsible for
(1) keeping the Membership Registrar informed of his/her current address and for notifying the Membership Registrar of any change of address;
(2) checking that his/her address is shown correctly on the Electors’ List and notifying the Electoral Officer of any correction to be made;
(3) providing the Membership Registrar with a Declaration of his or her Primary Residence within 120 days of the enactment of this provision or within 120 days of becoming an Elector thereafter, and thereafter within 60 days of any change of his or her Primary Residence.
[…]
Voting Stations
47. (6) Voting stations shall be kept open from 10 a.m., local time, until 6 p.m., local time, on the day of the election unless regulations establish variations in these hours.
[…]
Cancelled ballots
61. (1) If an Elector makes a mistake on a ballot or inadvertently spoils his/her ballot paper in marking it prior to depositing it in the Ballot Box, then the Elector is entitled to another ballot to be issued by the Electoral Officer upon return of the spoiled ballot to the Electoral Officer.
(2) The Electoral Officer shall write the word “Cancelled” on the spoiled ballot and without examining the ballot, store it separately.
(3) An Elector who receives a soiled or improperly printed ballot paper upon returning the ballot paper to the Electoral Officer is entitled to another ballot paper. The Electoral Officer shall write the word “Cancelled” on the spoiled ballot and store it separately.
PART VI
COUNTING OF VOTES
66. As soon as is practicable after the close of the polls, the Electoral Officer shall, in the presence of the Deputy Electoral Officer and any Electors who are present, open each outer envelope without opening the inner envelope containing a mail-in ballot that was received before the close of the polls and, without unfolding the ballot,
(a) set aside the ballot if
(i) it was not accompanied by a Voter Declaration Form, or the Voter Declaration Form is not signed or witnessed,
(ii) the name of the Elector set out in the Voter Declaration Form is not on the Electors’ List, or
(iii) the Electors List shows that the Elector has already voted, or if the ballot is not set aside,
(b) open the inner envelope and without unfolding the ballot deposit the ballot in the ballot box and place a mark on the Electors List opposite the name of the Elector set out in the Voter Declaration Form and deposit the ballot in a ballot box.
Counting duties of Electoral Officer
69. (1) As soon as is practicable after the mail-in ballots have been deposited under section 66(b), the Electoral Officer shall, in the presence of the Deputy Electoral Officer, any Electors and any other persons permitted by this Act or its Regulations, open all ballot boxes and shall examine each ballot cast and reject ballots that:
(a) were not issued, mailed out or handed out by the Electoral Officer,
(b) does not have the distinctive mark of the Electoral Officer on the back;
(c) are marked “spoiled” “cancelled” or “declined”,
(d) contain a mark that identifies or may identify an Elector.
[27] The following provisions from the Sawridge First Nation Elections Act, in force as of January 9, 2010, are relevant in this proceeding:
Application to correct the Electors Lists
19. Any person whose name is not on the Electoral List and believes he/she is eligible to be on the Electoral List, or whose name is on Electoral List but believes his/her name is on the wrong Sub-List, may request the Electoral Officer to correct one or both Lists by giving to the Electoral Officer
(a) written confirmation from the Membership Registrar that the person is a member and is or will be 18 years of age or older on the day of the election, where the person’s name is not on the Electoral List; and
(b) a statutory declaration of the right to be on the Electors List and setting out the basis of eligibility for entry onto one or the other the Sub-List.
Correcting the Electors Lists
20. (1) The Electoral Officer shall revise the Electors Lists where it is demonstrated to the Electoral Officer’s satisfaction that
(a) the name of an Elector has been omitted from the Electors List;
(b) the name or birth date of an elector is incorrectly set out in the Electors List;
(c) the name of a person who is not qualified to vote is included in the Electors List; or
(d) the name of an Elector was included in the Resident Elector Sub-List or the Non-Resident Elector Sub-List when it should have been included in the other sub-list.
(2) For any change made, the Electoral Officer shall give written notice of the correction to any affected person and to any person who provided information which led to the correction.
(3) The Electoral Officer may ask the Elders Commission any question with regard to a dispute as to whether a correction, omission, or addition should be made with respect to the Electoral Lists, and shall consider the counsel, opinion, or recommendation of the Elders Commission before making a decision.
[28] The following provisions from the Sawridge Membership Rules are relevant in this proceeding:
3. Each of the following persons shall have a right to his or her name entered in the Band List; [PASSED JULY 4, 1985]
(a) Any person who, but for the establishment of these rules, would be entitled pursuant to subsection 11(1) of the Act to have his or her name entered in the Band list required to be maintained in the Department and who, at any time after these rules come into force, either
(i) is lawfully resident on the reserve; or
(ii) has applied for membership in the band and, in the judgment of the Band Council, has a significant commitment to, and knowledge of, the history, customs, traditions, culture and communal life of the Band and a character and lifestyle that would not cause his or her admission to membership in the Band to be detrimental to the future welfare or advancement of the Band;
(b) a natural child of parents both of whose names are entered on the Band List;
(c) with the consent of the Band Council, any person who
(i) has applied for membership in the Band;
(ii) is entitled to be registered in the Indian Register pursuant to the Act;
(iii) is the spouse of a member of the Band, and
(iv) is not a member of another band;
(d) with the consent of the Band Council, any person who
(i) has applied for membership in the Band,
(ii) was born after the date these rules come into force, and
(iii) is the natural child of a member of the Band, and
(e) any member of another band admitted into membership of the Band with the consent of the council or both bands and who thereupon ceases to be a member of the other band.
[…]
15. No person shall have a right to have his or her name entered in the Band List except as provided in section 3 of these Rules [PASSED JULY 5, 1985] and, for greater certainty, no person shall be entitled to have his or her name included in the Band List unless that person has, at some time after July 4, 1985, had a right to have his or her name entered in the Band List pursuant to these Rules. [PASSED JUNE 24, 1987]
16. In the event that any of the foregoing provisions of these Rules is held by a court of competent jurisdiction to be invalid in whole or in part on the ground that it is not within the power of the Band to exclude any particular person or persons from membership in the Band, these Rules shall be construed and shall have effect as if they contained a specific provision conferring upon such person a right to have his or her name entered in the Band List, but for greater certainty, no other person shall have a right to have his or her name entered or included in the Band List by virtue of the provisions of this Section and, in particular, no person referred to in Subsection 11(2) of the Act shall be entitled to membership in the Band otherwise than pursuant to Section 3 of these Rules. [PASSED JUNE 24, 1987]
17. In the event that any provision, or any part of any provision, of these Rules is held to be invalid or of no binding force or effect by an court of competent jurisdiction, these Rules shall be construed and applied as if such provision or part thereof did not apply to or in the circumstances giving rise to such invalidity and the effect of the remaining provisions, or parts thereof, of these Rules shall not be affected thereby. [PASSED JUNE 24, 1987]
VII. ARGUMENT A. Applicants (1) Rejection of Walter’s Vote (a) Applicable Jurisprudence [29] The Applicants argue that the CEO erred in law, in both his initial and appeal decisions, by rejecting Walter’s election ballot through the misinterpretation and misapplication of the relevant statutory provisions, an error which was compounded by a breach of the rules of natural justice and procedural fairness.
[30] This Court has jurisdiction to hear appeals of federal boards, commissions, or other tribunals under s 18.1 of the Act. SFN meets this definition as it is a band recognized under federal statute and holds elections under the SFN Elections Act. In Roseau River Anishinabe First Nation Custom Council v Roseau River Anishinabe First Nation, 2009 FC 655, at para 27, Justice Phelan determined that this Court has jurisdiction over native band councils regardless of whether their election is pursuant to custom or the Indian Act, RSC 1985, c I-5 [Indian Act].
[31] The Applicants contend that the Court should review the rejection of Walter’s vote under the standard of correctness, as it is part of a band election process and custom cannot ignore or trump natural justice and procedural fairness: Beardy, above, at paras 44-45, 126. The right to vote is at the heart of any democratic process; as such, irregularities that affect an election result undermine the integrity of the whole process and are grounds for overturning an election. Moreover, a fair election requires the CEO to be an independent, neutral steward of the integrity of the electoral process: Longley v Canada (Attorney General), 2007 ONCA 852 at para 74; Stevens v Conservative Party of Canada, 2005 FCA 383 at paras 19-21. The Court must carefully review the CEO’s exercise of discretion and ensure it is fair and consistent with statutory safeguards.
[32] At the heart of this case is the confidence of SFN in its electoral process. If people who are qualified or entitled to vote are not permitted to do so, this erodes the foundations of democracy. This view is reflected in Harper v Canada (Attorney General), [2004] 1 SCR 827 at para 103.
[33] The Applicants argue that the aforementioned jurisprudence is applicable to the current matter because statutes have never declared that the common law principles associated with elections are not applicable to band elections, and courts have the authority to declare an election void under the common law despite the fact that it could have been voided under the statute: Cameron v McDonnell, (1874) Russel R (NS) 42-60; Howley v Campbell, [1939] 1 DLR 431.
(b) Application to Walter’s Vote [34] The Applicants contend that the application of the common law to Walter’s vote demonstrates the CEO’s decisions were unreasonable and reflect serious errors of law and lack of procedural fairness.
[35] The rejection of Walter’s vote directly affected the outcome of the Election for Chief, as the result differed by one vote.
[36] The CEO had the responsibility of ensuring a fair and proper election in accordance with s 12 of the Elections Act, which does not specify particulars concerning the vote-counting process, including fair counting, determining the validity of ballots, and processing mail-in ballots. The CEO used his own discretion in his decisions. This was an error, as the Elections Act does contain specific rules that govern the cancellation of ballots. In particular: s 47(7) permits an elector inside the voting station to vote; s 61(1) entitles an elector who inadvertently spoils his ballot to be issued another ballot; and s 61(2) requires the CEO to write “Cancelled” on a spoiled ballot without examining the contents.
[37] In rejecting Walter’s ballot and refusing him another ballot, the CEO committed an error of law going to jurisdiction. His decisions were based on the fact that the CEO’s initials were missing from Walter’s ballot, despite there being no issue as to identity, double voting, or that Walter had been present while the polls were open and afterwards. The CEO allowed technicality to govern over substance, which is not the correct approach. Moreover, the CEO permitted Deana’s vote despite apparent deficiencies. Deana’s vote lacked a witness address, which means it should have been set aside pursuant to s 66(a) of the Elections Act; yet it was accepted.
[38] The CEO justified his rejection of Walter’s vote by stating that the CEO’s initials were necessary to ensure identification. However, there was no issue as to identification with Walter. The CEO believed that a ballot could not be replaced after 6 p.m., even though a replacement was not necessary and Walter was entitled to vote under ss 47 and 61 of the Elections Act.
[39] The CEO then committed a further error in his handling of the appeal decision by refusing to consider the circumstances regarding Walter’s vote on the basis that Walter had not appealed and the Applicants were not elders. The Elections Act does not identify either factor as a requirement for an issue to be subject to appeal. The CEO effectively rejected the Applicants’ appeal on an irrelevant ground and improperly declined jurisdiction to inquire and investigate.
[40] Additionally, the Applicants submit that the CEO refused to hear Walter’s representations. In their Notice of Appeal, the Applicants requested the right to attend and adduce evidence, including hearing from Walter. Yet the CEO rendered the appeal decision without any regard for that request. Appeal committees must address the issue put to them: Meeches v Meeches, 2013 FC 196 at para 14. While this Court has found that the right to an oral hearing may be waived, the Applicants submit that this did not occur in the present case, which distinguishes it from Gadwa v Kehewin First Nation, 2016 FC 597 [Gadwa].
[41] The Applicants argue that the CEO failed to conduct the Election and the appeal process in accordance with the highest standards of correctness and procedural fairness, which is sufficient justification to set aside the result.
(2) SFN Membership Application Process [42] The Applicants submit that the Respondents have failed in their fiduciary duty to establish and confirm that a proper and complete Voter List was prepared, which is in disregard of constitutional, statutory, and other legal requirements. This failure was compounded by corrupt practices, thereby culminating in an error going to jurisdiction.
[43] The SFN has a legal history of attempting to assert complete control over its membership. In L’Hirondelle v Canada, 2003 FCT 347, affirmed 2004 FCA 16 [L’Hirondelle], this Court held that SFN could not continue to ignore the legal requirements regarding membership imposed by the Indian Act and 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 the clear directions of the courts. In L’Hirondelle, the Federal Court of Appeal upheld an injunction mandating compliance, stating “For those persons entitled to membership, a simple request to be included in the band’s membership is all that is required. The fact that the individuals in question did not complete a Sawridge Band membership application is irrelevant.” Yet in 2008, SFN attempted to have the Indian Act provisions declared unconstitutional, an application that was dismissed: Sawridge Band v Canada, 2008 FC 322. Furthermore, the Court held in Poitras v Twinn, 2013 FC 910 that L’Hirondelle is not a legal barrier to an applicant’s membership status. However, SFN continues to refuse to implement L’Hirondelle and, by doing so, corrupts its election process. By not adding entitled persons to the band list, there cannot be a fair election.
[44] The corruption in the membership process is worsened by the queue jumping permitted to Roland’s children, who were added to the list while others, such as Ms. Donald, are forced to wait until the law is enforced. The evidence demonstrates that it is possible for an individual to be left hanging for years in a SFN membership process that is shrouded in secrecy. The SFN has adopted a stance and process that is the polar opposite of the enfranchisement purpose of the Indian Act and any truly fair and democratic electoral process.
(3) Pre-Election and Appeal Conduct [45] The Applicants also submit that the CEO erred in law, including that going to jurisdiction, in failing or declining to make adequate inquiry into the composition of the Voters List, which is compounded by procedural unfairness and a disregard for the rules of natural justice.
[46] According to s 17 of the Elections Act, the CEO must send the election packages out not less than 75 days prior to the date of the election. However, SFN did not comply with this in several ways. First, the number of days between December 4, 2014 and February 17, 2015 is 74 days, not 75. Second, electors either received the notice late, as was the case for Sam on December 12, 2014, or not at all, as was admitted by the CEO in an email to Catherine. Third, notice of corrections to the sub-lists was not given until after the deadline for disputing the sub-lists, thereby rendering it impossible to challenge the lists.
[47] Additionally, the CEO erred when he determined that he had no authority to enquire about the issue of outstanding applications for membership. He stated that the issue was one for “membership” in an email on January 12, 2015, and his appeal decision of March 6, 2015 does not even mention the issue, despite its inclusion in the Notice of Appeal. The CEO failed to consider this issue, which is a clear decline of jurisdiction and a deprivation of the fair opportunity to be heard.
[48] The Applicants submit that the CEO should have considered this matter as it is within his power to do so under s 11(8) of the Constitution, which says that the CEO, Appeal Tribunal, or SGA may provide such relief as it sees fit when there is a corrupt practice in connection with the election that might affect the result of the election, or a contravention of the Const