Good v. Canada (Attorney General)

Good v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2016-11-15
Neutral citation
2016 FC 1272
File numbers
T-2205-14
Notes
Reported Decision
Decision Content
Date: 20161115
Docket: T-2205-14
Citation: 2016 FC 1272
Ottawa, Ontario, November 15, 2016
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
MICHELLE GOOD
Applicant
and
THE ATTORNEY GENERAL OF CANADA, CHIEF STEWART JR BAPTISTE AND COUNCILLORS LUX BENSON, SABRINA BAPTISTE, RYAN BUGLER, MANDY CULHAND, LARRY WULLUNEE, HENRY GARDIPY, GARY NICOTINE AND CLINT WUTTUNEE OF THE RED PHEASANT FIRST NATION
Respondents
JUDGMENT AND REASONS
I. INTRODUCTION [1] This is an application under ss 18 and 18.1 of the Federal Courts Act, RSC 1985, c F-7, for judicial review of the decision of the Director General of the Policy Development and Coordination Branch, representing the Minister of Aboriginal Affairs and Northern Development Canada, dated September 23, 2014 [Decision], which denied the Applicant’s appeal of the March 20, 2014 election of the Red Pheasant First Nation.
II. BACKGROUND [2] The Applicant is a member of the Red Pheasant First Nation. On May 2, 2014, she filed an appeal of the March 20, 2014 election [2014 election] which relied on two grounds:
1. Misconduct on the part of the Electoral Officer, Wes Lambert [Electoral Officer], in: failing to mail the ballots of off-reserve members in a timely manner; being absent at the polling station on the day of the election; changing the date of the election without formal notice; not asking voters to provide identification at polling stations; allowing clearly intoxicated candidates to vote; and, because candidates were seen standing at the entrance of the polling stations, forcing voters to come in contact with them.
2. Corruption in the form of vote-buying by candidate for councillor Charles Meechance and Chief Stewart Baptiste.
[3] The appeal was supported by statutory declarations by the Applicant, by former Band Councillor Sandra Arias and by Band members Leona Carol Wuttunee, Denise Virginia Soonias and Robin Dean Wuttunee.
[4] On May 28, 2014 and June 18, 2014, the appeal was circulated to all the candidates and the Electoral Officer, inviting them to respond to the allegations in the appeal. Chief Baptiste and the Electoral Officer provided responses to the appeal.
[5] On September 16, 2014, Nathalie Nepton, Director of Governance Policy and Implementation at Aboriginal Affairs and Northern Development [Delegate] recommended that the Applicant’s appeal be dismissed. This recommendation was approved by Eric Marion, Acting Director of the Policy Development and Coordination Branch.
[6] The Applicant was notified of the Decision to dismiss the appeal on September 25, 2014, via email. She filed her application for judicial review of the Decision on October 27, 2014, and an amended notice of application on November 17, 2014.
III. DECISION UNDER REVIEW [7] In her recommendation, the Delegate set out every allegation raised by the Applicant in her appeal. For each allegation, the Delegate listed the relevant provisions of the Indian Band Election Regulations, CRC, c 952 [Regulations], of the Indian Act, RSC 1985, c I-5 [Act], as well as the relevant sections of the Electoral Officer’s Handbook. The Delegate also considered the responses to the appeal.
[8] In regards to the first allegation that the Electoral Officer had failed to provide mail-in ballots to electors in a timely manner thereby preventing them from completing and returning their ballots in time to be counted, the Delegate concluded that it should be dismissed on the grounds that the “evidence was insufficient for the purposes of finding a violation of the Act or the Regulations that would have affected the outcome of the election.”
[9] The second allegation that 39 band members who were on a list of 92 members provided to the Electoral Officer by former Councillor Sandra Arias did not receive their ballots, was also dismissed on the grounds that there was insufficient evidence to support the allegation that the Electoral Officer neglected to send the mail-in ballots and “the Regulations and guidelines uphold that the Electoral Officer did, in fact, perform his duties with due diligence by not accepting lists of multiple names and addresses from sources other than the Band.”
[10] The third allegation was that the Electoral Officer was not present at the polling station and left his wife in charge. This allegation was dismissed by the Delegate on the grounds that the Regulations allow the Electoral Officer to delegate some of his responsibilities to a deputy and the evidence showed that the deputy did perform the required duties and responsibilities.
[11] The fourth allegation was that the original date of the election posted at the nomination meeting was changed without formal notice. This allegation was dismissed because the Polling Notice, which constitutes formal notice of an election, showed the correct election date.
[12] The fifth allegation was that the Electoral Officer and/or his deputy did not ask voters for identification before permitting them to vote. This allegation was dismissed as the Electoral Officer and deputy ensured that voters’ names were on the list prior to issuing them ballots. Voters were asked their names, birthdates and registration numbers and “there is no legal requirement for an elector to provide identification to the Electoral Officer to vote.”
[13] The sixth allegation, that candidates were standing in the entrance of the polling station and electors were forced to walk past them, was dismissed as it was not established that voter secrecy was compromised or that voters were intercepted.
[14] The allegation that intoxicated voters were not prevented from voting was also dismissed. The Regulations are silent on the subject and nothing showed that the deputy did not exercise good judgment in letting intoxicated voters vote. She “performed her duty in maintaining peace and order at the polling station.”
[15] Lastly, the allegations that Chief Baptiste and Mr. Meechance engaged in vote-buying were also dismissed. The Delegate found that, in both cases, the evidence failed to meet the burden of proof. The Delegate then recommended that the appeal be dismissed. This recommendation was accepted by Eric Marion, Acting Director General of the Policy Development and Coordination Branch, replacing Perry Billingsley, and the Applicant was informed of the dismissal on or around September 25, 2014.
IV. ISSUES [16] The Applicant raises the following issues for consideration by the Court:
1. What is the appropriate standard of review?
2. Did the Delegate err at law resulting in a denial of procedural fairness by holding the Applicant to a higher evidentiary standard of proof than exists in ss 79 (a) and (b) of the Act and ss 12 to 14 of the Regulations?
3. Did the Delegate demonstrate a reasonable apprehension of bias in her consideration of irrelevant factors in denying the appeal?
4. Did the Delegate deny the Applicant procedural fairness by failing to assign an investigator once an appearance of corruption was established?
5. Did the Delegate demonstrate a reasonable apprehension of bias in communicating an opinion of the outcome of the appeal to the Electoral Officer prior to a decision being rendered in the appeal?
6. Did the Delegate, by knowingly holding the Applicant to a burden of proof higher than established at law, engage in frivolous and vexatious conduct that would attract the Court’s sanctions?
7. Did the Delegate intentionally act to deceive the Court when she gave evidence under oath that she knew to be false, and should this attract sanctions of the Court?
[17] The Respondent, the Attorney General of Canada [AG] raises the following issue:
1. Considering that a subsequent election took place on March 18, 2016, is the application moot?
[18] The AG also argues that the Applicant’s arguments are not actually arguments about procedural fairness but are about the reasonableness of the Decision and should be phrased as such.
V. STANDARD OF REVIEW [19] 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.
[20] The second issue, related to the appropriate standard of proof, is a question of law. As such, it is reviewable on the standard of correctness: Paz Ospina v Canada (Citizenship and Immigration), 2011 FC 681 at paras 20 and 31.
[21] The third, fourth, and fifth issues relate to procedural unfairness and an apprehension of bias on the part of Ministry staff involved in the decision-making process and are reviewable on a standard of correctness: Rally v Telus Communications Inc, 2013 FC 858 at para 7; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43 [Khosa]; Muskego v Norway House Cree Nation Appeal Committee, 2011 FC 732 at para 26.
[22] The question of whether the evidence supports a finding of corrupt election practices is reviewable on a reasonableness standard: Dedam v Canada (Attorney General), 2012 FC 1073 at para 59 [Dedam]; Hudson v Canada (Indian Affairs and Northern Development), 2007 FC 203 at para 74 [Hudson]. Moreover, “deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity”: Dunsmuir, above, at para 54.
[23] 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 Khosa, above, 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. ARGUMENTS A. Applicant [24] The Applicant argues that the applicable standard of review is correctness for questions of procedural fairness and for the legal interpretation of corrupt election practices. Therefore, little deference should be afforded to the Decision.
[25] The Applicant says that the Delegate erred in law in her application of the Regulations and the Act. Under s 14 of the Regulations, the Applicant only had to demonstrate that there was an appearance of corruption or of a violation that might have affected the election’s result in order to trigger the Minister’s duty to report to the Governor in Council. Therefore, the Delegate erred in law when she recommended that the appeal be dismissed on the grounds that “the burden of proof had not been met that there were violations of the Act and/or Regulations that might have affected the result of the election.”
[26] It was also an error on the part of the Delegate to reject the Applicant’s appeal that she had received her ballot late on the grounds that this had not affected the outcome of the election. The Applicant only needed to show that it might have affected the outcome. Requiring that the irregularities would have affected the outcome of the election is an “imported standard.” Also, the Applicant only needed to show an appearance of corruption, which the two statutory declarations accompanying the appeal demonstrated.
[27] As demonstrated in her cross-examination, the Delegate weighed the evidence according to the civil standard of balance of probabilities. This constitutes an admission that the appeal was not processed in accordance with s 14 of the Regulations. This means that the Applicant was denied procedural fairness because she was held to a higher evidentiary standard than is contemplated by the statutory scheme.
[28] Additionally, the Delegate showed actual bias in making her Decision. According to the Applicant, the factors she relied on to discredit the evidence adduced by the Applicant in support of her appeal do not stand up to scrutiny. In addition, the Delegate’s consideration of irrelevant factors, her failure to properly assess and weigh the evidence, and her favouring of the Respondents over the Applicant without evidentiary justification created a reasonable apprehension of bias.
[29] Furthermore, the failure to assign an investigator also constitutes denial of procedural fairness. As the evidence submitted was not persuasive one way or another, and as a reasonable expectation that an investigator would be assigned was created by the appeal of the earlier 2012 election, failure to appoint an investigator was a denial of procedural fairness.
[30] In addition, the tone and content of email conversations between Anita Hawdur, Elections Analyst, and the Electoral Officer, created a reasonable apprehension of bias.
[31] Moreover, the Delegate could not ignore that the appropriate standard of proof was identified by the Court in Dedam, above. In that decision, the Court found that the standard of proof was lower than the civil standard. Hence, the Delegate applied the higher standard in order “to create a more difficult test for the appellant,” thereby breaching her duty of fairness to the appellant. In addition, the Delegate intentionally deceived the Court when, in her cross-examination, she stated that the applicable standard of proof was a balance of probabilities.
B. Respondent - Attorney General [32] The AG is the only Respondent who made submissions and appeared at the hearing.
[33] The AG’s first argument is that this application is moot and therefore should not be heard. The subsequent election held on March 18, 2016, means that the dispute between the parties has disappeared.
[34] Moreover and alternatively, the Decision was reasonable. The AG says that the standard of review for a decision on whether the evidence supports a finding of corrupt election practices is reasonableness.
[35] The issues raised by the Applicant, although framed as issues of bias and errors of law, actually relate to whether the Decision was reasonable. The Delegate carefully analyzed the evidence and her findings are reasonable.
[36] Furthermore, there was no error of law. Section 79 of the Act requires that corruption be found on a balance of probabilities to set aside an election.
[37] In addition, a decision of the Elections Unit should be reviewed on a standard of reasonableness as the Unit is familiar with, and has expertise in, the governing statutory and regulatory provisions. The Elections Unit reviewed all of the allegations and concluded that the applicable burden of proof was not met. References to widespread vote-buying when considering the allegations against Mr. Meechance do not make the Decision to dismiss the appeal unreasonable.
[38] Additionally, there was no denial of procedural fairness and no legitimate expectation that an investigation would be ordered. In the context of election appeals, band members are owed a duty of fairness. Procedural fairness matters are to be reviewed on a standard of correctness. In this case, the Applicant received procedural protections during the appeal process. She had the opportunity to present her case and the Decision was made in a fair, impartial and open process, with ample reasons provided. There could be no legitimate expectation that an investigation would be ordered. There is no practice or policy of ordering such investigations and s 13 of the Regulations clearly indicates that such a decision is discretionary. The decision not to order an investigation should be reviewed on a reasonableness standard. The Delegate’s determination that a conclusion could be reached without an investigation was reasonable.
[39] Lastly, an important portion of the application consists of personal attacks against the Delegate which are unfounded and inappropriate.
VII. ANALYSIS A. Introduction [40] The Applicant has raised various issues for review, but at the heart of this dispute there lies a fundamental disagreement about the applicability of s 79 of the Act to the Applicant’s appeal of the 2014 election.
[41] The Applicant says that, in assessing her appeal of the 2014 election, the Delegate bypassed ss 13 and 14 of the Regulations and erroneously applied s 79 of the Act to the evidence submitted by the Applicant and to the responding evidence of the Electoral Officer, and Chief Baptiste.
[42] As the Decision makes clear, and as the Delegate confirmed in cross-examination, there is no doubt that the Delegate did apply s 79 of the Act when considering whether the appeal should be dismissed or go forward. However, the AG takes the position that this was not an error of law because s 79 of the Act, and the civil standard of proof (balance of probabilities) applicable to that provision were correctly and reasonably applied by the Delegate in the exercise of her duties in dealing with the Applicant’s appeal.
B. The Act and Regulations [43] The legislative framework governing the 2014 election is set out in ss 74 to 80 of the Act and ss 12 to 14 of the Regulations. For convenience, I will set out these provisions here. Sections 74 to 80 of the Act read as follows:
74 (1) Whenever he deems it advisable for the good government of a band, the Minister may declare by order that after a day to be named therein the council of the band, consisting of a chief and councillors, shall be selected by elections to be held in accordance with this Act.
74 (1) Lorsqu’il le juge utile à la bonne administration d’une bande, le ministre peut déclarer par arrêté qu’à compter d’un jour qu’il désigne le conseil d’une bande, comprenant un chef et des conseillers, sera constitué au moyen d’élections tenues selon la présente loi.
(2) Unless otherwise ordered by the Minister, the council of a band in respect of which an order has been made under subsection (1) shall consist of one chief, and one councillor for every one hundred members of the band, but the number of councillors shall not be less than two nor more than twelve and no band shall have more than one chief.
(2) Sauf si le ministre en ordonne autrement, le conseil d’une bande ayant fait l’objet d’un arrêté prévu par le paragraphe (1) se compose d’un chef, ainsi que d’un conseiller par cent membres de la bande, mais le nombre des conseillers ne peut être inférieur à deux ni supérieur à douze. Une bande ne peut avoir plus d’un chef.
(3) The Governor in Council may, for the purposes of giving effect to subsection (1), make orders or regulations to provide
(3) Pour l’application du paragraphe (1), le gouverneur en conseil peut prendre des décrets ou règlements prévoyant :
(a) that the chief of a band shall be elected by
a) que le chef d’une bande doit être élu :
(i) a majority of the votes of the electors of the band, or
(i) soit à la majorité des votes des électeurs de la bande,
(ii) a majority of the votes of the elected councillors of the band from among themselves,
(ii) soit à la majorité des votes des conseillers élus de la bande désignant un d’entre eux,
but the chief so elected shall remain a councillor; and
le chef ainsi élu devant cependant demeurer conseiller ;
(b) that the councillors of a band shall be elected by
b) que les conseillers d’une bande doivent être élus :
(i) a majority of the votes of the electors of the band, or
(i) soit à la majorité des votes des électeurs de la bande,
(ii) a majority of the votes of the electors of the band in the electoral section in which the candidate resides and that he proposes to represent on the council of the band.
(ii) soit à la majorité des votes des électeurs de la bande demeurant dans la section électorale que le candidat habite et qu’il projette de représenter au conseil de la bande.
(4) A reserve shall for voting purposes consist of one electoral section, except that where the majority of the electors of a band who were present and voted at a referendum or a special meeting held and called for the purpose in accordance with the regulations have decided that the reserve should for voting purposes be divided into electoral sections and the Minister so recommends, the Governor in Council may make orders or regulations to provide for the division of the reserve for voting purposes into not more than six electoral sections containing as nearly as may be an equal number of Indians eligible to vote and to provide for the manner in which electoral sections so established are to be distinguished or identified.
(4) Aux fins de votation, une réserve se compose d’une section électorale ; toutefois, lorsque la majorité des électeurs d’une bande qui étaient présents et ont voté lors d’un référendum ou à une assemblée spéciale tenue et convoquée à cette fin en conformité avec les règlements, a décidé que la réserve devrait, aux fins de votation, être divisée en sections électorales et que le ministre le recommande, le gouverneur en conseil peut prendre des décrets ou règlements stipulant qu’aux fins de votation la réserve doit être divisée en six sections électorales au plus, contenant autant que possible un nombre égal d’Indiens habilités à voter et décrétant comment les sections électorales ainsi établies doivent se distinguer ou s’identifier.
75 (1) No person other than an elector who resides in an electoral section may be nominated for the office of councillor to represent that section on the council of the band.
75 (1) Seul un électeur résidant dans une section électorale peut être présenté au poste de conseiller pour représenter cette section au conseil de la bande.
(2) No person may be a candidate for election as chief or councillor of a band unless his nomination is moved and seconded by persons who are themselves eligible to be nominated.
(2) Nul ne peut être candidat à une élection au poste de chef ou de conseiller d’une bande, à moins que sa candidature ne soit proposée et appuyée par des personnes habiles elles-mêmes à être présentées.
76 (1) The Governor in Council may make orders and regulations with respect to band elections and, without restricting the generality of the foregoing, may make regulations with respect to
76 (1) Le gouverneur en conseil peut prendre des décrets et règlements sur les élections au sein des bandes et, notamment, des règlements concernant :
(a) meetings to nominate candidates;
a) les assemblées pour la présentation de candidats ;
(b) the appointment and duties of electoral officers;
b) la nomination et les fonctions des préposés aux élections ;
(c) the manner in which voting is to be carried out;
c) la manière dont la votation doit avoir lieu ;
(d) election appeals; and
d) les appels en matière électorale ;
(e) the definition of residence for the purpose of determining the eligibility of voters.
e) la définition de résidence aux fins de déterminer si une personne est habile à voter.
(2) The regulations made under paragraph (1) (c) shall provide for secrecy of voting.
(2) Les règlements pris sous le régime de l’alinéa (1)c) contiennent des dispositions assurant le secret du vote.
77 (1) A member of a band who has attained the age of eighteen years and is ordinarily resident on the reserve is qualified to vote for a person nominated to be chief of the band and, where the reserve for voting purposes consists of one section, to vote for persons nominated as councillors.
77 (1) Un membre d’une bande, qui a au moins dix-huit ans et réside ordinairement sur la réserve, a qualité pour voter en faveur d’une personne présentée comme candidat au poste de chef de la bande et, lorsque la réserve, aux fins d’élection, ne comprend qu’une section électorale, pour voter en faveur de personnes présentées aux postes de conseillers.
(2) A member of a band who is of the full age of eighteen years and is ordinarily resident in a section that has been established for voting purposes is qualified to vote for a person nominated to be councillor to represent that section.
(2) Un membre d’une bande, qui a dix-huit ans et réside ordinairement dans une section électorale établie aux fins d’élection, a qualité pour voter en faveur d’une personne présentée au poste de conseiller pour représenter cette section.
78 (1) Subject to this section, the chief and councillors of a band hold office for two years.
78 (1) Sous réserve des autres dispositions du présent article, les chef et conseillers d’une bande occupent leur poste pendant deux années.
(2) The office of chief or councillor of a band becomes vacant when
(2) Le poste de chef ou de conseiller d’une bande devient vacant dans les cas suivants :
(a) the person who holds that office
a) le titulaire, selon le cas :
(i) is convicted of an indictable offence,
(i) est déclaré coupable d’un acte criminel,
(ii) dies or resigns his office, or
(ii) meurt ou démissionne,
(iii) is or becomes ineligible to hold office by virtue of this Act; or
(iii) est ou devient inhabile à détenir le poste aux termes de la présente loi ;
(b) the Minister declares that in his opinion the person who holds that office
b) le ministre déclare qu’à son avis le titulaire, selon le cas :
(i) is unfit to continue in office by reason of his having been convicted of an offence,
(i) est inapte à demeurer en fonctions parce qu’il a été déclaré coupable d’une infraction,
(ii) has been absent from three consecutive meetings of the council without being authorized to do so, or
(ii) a, sans autorisation, manqué les réunions du conseil trois fois consécutives,
(iii) was guilty, in connection with an election, of corrupt practice, accepting a bribe, dishonesty or malfeasance.
(iii) à l’occasion d’une élection, s’est rendu coupable de manoeuvres frauduleuses, de malhonnêteté ou de méfaits, ou a accepté des pots-de-vin.
(3) The Minister may declare a person who ceases to hold office by virtue of subparagraph (2) (b) (iii) to be ineligible to be a candidate for chief or councillor of a band for a period not exceeding six years.
(3) Le ministre peut déclarer un individu, qui cesse d’occuper ses fonctions en raison du sous-alinéa (2)b)(iii), inhabile à être candidat au poste de chef ou de conseiller d’une bande durant une période maximale de six ans.
(4) Where the office of chief or councillor of a band becomes vacant more than three months before the date when another election would ordinarily be held, a special election may be held in accordance with this Act to fill the vacancy.
(4) Lorsque le poste de chef ou de conseiller devient vacant plus de trois mois avant la date de la tenue ordinaire de nouvelles élections, une élection spéciale peut avoir lieu en conformité avec la présente loi afin de remplir cette vacance.
79 The Governor in Council may set aside the election of a chief or councillor of a band on the report of the Minister that he is satisfied that
79 Le gouverneur en conseil peut rejeter l’élection du chef ou d’un des conseillers d’une bande sur le rapport du ministre où ce dernier se dit convaincu, selon le cas :
(a) there was corrupt practice in connection with the election;
a) qu’il y a eu des manœuvres frauduleuses à l’égard de cette élection ;
(b) there was a contravention of this Act that might have affected the result of the election; or
b) qu’il s’est produit une infraction à la présente loi pouvant influer sur le résultat de l’élection ;
(c) a person nominated to be a candidate in the election was ineligible to be a candidate.
c) qu’une personne présentée comme candidat à l’élection ne possédait pas les qualités requises.
80 The Governor in Council may make regulations with respect to band meetings and council meetings and, without restricting the generality of the foregoing, may make regulations with respect to
80 Le gouverneur en conseil peut prendre des règlements sur les assemblées de la bande et du conseil et, notamment, des règlements concernant :
(a) presiding officers at such meetings;
a) les présidents de ces assemblées ;
(b) notice of such meetings;
b) les avis de ces assemblées ;
(c) the duties of any representative of the Minister at such meetings; and
c) les fonctions de tout représentant du ministre à ces assemblées ;
(d) the number of persons required at such meetings to constitute a quorum.
d) le nombre de personnes requis à ces assemblées pour constituer un quorum.
[44] Sections 12 to 14 of the Regulations read as follows:
12 (1) Within 45 days after an election, a candidate or elector who believes that
12 (1) Si, dans les quarante-cinq jours suivant une élection, un candidat ou un électeur a des motifs raisonnables de croire :
(a) there was corrupt practice in connection with the election,
a) qu’il y a eu manœuvre corruptrice en rapport avec une élection,
(b) there was a violation of the Act or these Regulations that might have affected the result of the election, or
b) qu’il y a eu violation de la Loi ou du présent règlement qui puisse porter atteinte au résultat d’une élection, ou
(c) a person nominated to be a candidate in the election was ineligible to be a candidate,
c) qu’une personne présentée comme candidat à une élection était inéligible,
may lodge an appeal by forwarding by registered mail to the Assistant Deputy Minister particulars thereof duly verified by affidavit.
il peut interjeter appel en faisant parvenir au sous-ministre adjoint, par courrier recommandé, les détails de ces motifs au moyen d’un affidavit en bonne et due forme.
(2) Where an appeal is lodged under subsection (1), the Assistant Deputy Minister shall forward, by registered mail, a copy of the appeal and all supporting documents to the electoral officer and to each candidate in the electoral section in respect of which the appeal was lodged.
(2) Lorsqu’un appel est interjeté au titre du paragraphe (1), le sous-ministre adjoint fait parvenir, par courrier recommandé, une copie du document introductif d’appel et des pièces à l’appui au président d’élection et à chacun des candidats de la section électorale visée par l’appel.
(3) Any candidate may, within 14 days of the receipt of the copy of the appeal, forward to the Assistant Deputy Minister 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.
(3) Tout candidat peut, dans un délai de 14 jours après réception de la copie de l’appel, envoyer au sous-ministre adjoint, par courrier recommandé, une réponse par écrit aux détails spécifiés dans l’appel, et toutes les pièces s’y rapportant dûment certifiées sous serment.
(4) All particulars and documents filed in accordance with the provisions of this section shall constitute and form the record.
(4) Tous les détails et toutes les pièces déposés conformément au présent article constitueront et formeront le dossier.
13 (1) The Minister may, if the material that has been filed is not adequate for deciding the validity of the election complained of, conduct such further investigation into the matter as he deems necessary, in such manner as he deems expedient.
13 (1) Le Ministre peut, si les faits allégués ne lui paraissent pas suffisants pour décider de la validité de l’élection faisant l’objet de la plainte, conduire une enquête aussi approfondie qu’il le juge nécessaire et de la manière qu’il juge convenable.
(2) Such investigation may be held by the Minister or by any person designated by the Minister for the purpose.
(2) Cette enquête peut être tenue par le Ministre ou par toute personne qu’il désigne à cette fin.
(3) Where the Minister designates a person to hold such an investigation, that person shall submit a detailed report of the investigation to the Minister for his consideration.
(3) Lorsque le Ministre désigne une personne pour tenir une telle enquête, cette personne doit présenter un rapport détaillé de l’enquête à l’examen du Ministre.
14 Where it appears that
14 Lorsqu’il y a lieu de croire
(a) there was corrupt practice in connection with an election,
a) qu’il y a eu manœuvre corruptrice à l’égard d’une élection,
(b) there was a violation of the Act or these Regulations that might have affected the result of an election, or
b) qu’il y a eu violation de la Loi ou du présent règlement qui puisse porter atteinte au résultat d’une élection, ou
(c) a person nominated to be a candidate in an election was ineligible to be a candidate,
c) qu’une personne présentée comme candidat à une élection était inadmissible à la candidature,
the Minister shall report to the Governor in Council accordingly.
le Ministre doit alors faire rapport au gouverneur en conseil.
C. Case Law [45] The Court has previously dealt with the issue of which provisions are applicable when appeals are made under the Act and Regulations. In Keeper v Canada, 2011 FC 307 [Keeper], Justice Campbell found that “the legislative provisions place an evidence gathering and reporting responsibility on the Minister, and a final decision-making responsibility on the Governor in Council” (at para 4). He then goes on to point out that:
[5] It is agreed that the Delegate was required to decide according to the evidentiary standard of proof specified in s. 14 of the Regulations which requires only proof of the appearance of wrongdoing under both s. 14 (a) and s. 14 (b). In my opinion, there is no question that the decision is rendered according to the elevated evidentiary standard specified in s. 79 of the Act which requires proof of wrongdoing. I reject the argument made by Counsel for the Minister that the words used in the passage are only “unfortunate” and that they should be taken to be an application of s. 14. There is no credible support for this argument. The words speak for themselves; the mistake in law is not defensible.
[46] It is notable that the AG in Keeper agreed that s 14 of the Regulations was the governing provision. In the present case, the AG says that Keeper has been superseded by the decisions of Justice O’Reilly in Woodhouse v Canada (Aboriginal Affairs and Northern Development Canada), 2013 FC 1055 [Woodhouse], and Justice O’Keefe in Dedam, above.
[47] In written argument, the AG asserts as follows:
41. No error in law was made with respect to how the Indian Band Election Regulations and Indian Act were applied in this case. The Respondent submits that the Applicant miscomprehends the differences that exist between section 14 of the Indian Band Election Regulations and section 79 of the Indian Act, and the burden of proof required under each of those sections. The Applicant suggests that all that is required under both provisions is that a mere appearance of corruption be found. This is incorrect.
42. While section 14 of the Indian Band Election Regulations indicates that an appearance of corruption will be enough to require a report to be submitted to the Governor in Council, section 79 of the Indian Act requires that corruption be found using the civil standard of a balance of probabilities in order for an election to be set aside. Thus, section 79 does not require an evidentiary standard lower than the civil standard of a balance of probabilities. In fact, it would not be reasonable for an election to be set aside based on the mere appearance of corruption.
43. The Federal Court’s decision in Woodhouse v. Canada (Attorney General), which followed and clarified the court [’] s earlier decisions that the Applicant relies upon, Keeper v. Canada (Minister of Indian Affairs & Northern Development) and Dedam, sets out the burden of proof required under sections 78 and 79 of the Indian Act. In Woodhouse, the Court makes it clear that only if the Minister is satisfied on a balance of probabilities that a corrupt practice has occurred can an election be set aside.
44. When referring to section 78 of the Indian Act, which is similar to section 79, the Court notes, “it certainly requires more than the mere appearance of impropriety, which is sufficient only to trigger a report to the Governor in General under s 14 of the Regulations.” The Court went on to note, “[t] he Minister’s declaration of guilt must, therefore, be based on his being satisfied on the balance of probabilities that an election official has committed a corrupt practice. Only then can a person be removed from office.”
45. Further, with respect to Dedam, the Court in Woodhouse clarified, “the Minister’s decision under s 78 (2) (b) (ii) of the Act removing certain persons from elected office was reasonable, as it was based on sufficient cogent evidence of corrupt practice on the part of those individuals.” In other words, in Dedam, the civil standard of proof had been met, and not merely the lower evidentiary threshold found in section 14 of the Indian Band Election Regulations.
[footnotes omitted]
[48] In my view, this reasoning entirely misses the point of the issue in dispute in this application. There is no disagreement that ss 78 and 79 require the civil burden of proof. In fact, s 78 does not even arise on the facts of this case. The issue is that the Delegate, in dealing with the appeal and making her recommendations, felt free to deal with the whole matter under s 79 of the Act and omitted to apply the applicable standard to the evidence-gathering aspect of her report. As Justice Campbell pointed out, s 79 deals with the powers of the Governor in Council to set aside “the election of a chief or councillor of a band on the report of the Minister.” The Delegate and others working within the Elections Unit of Indigenous and Northern Affairs Canada [INAC] are not the Governor in Council, and no report was made to the Governor in Council in this case, so that s 79 of the Act never came into play. The Delegate decided to dispense with any investigation under s 13 of the Regulations and to dismiss the appeal without providing a report to the Governor in Council.
[49] As far as I can gather from the cross-examination of the Delegate, this approach to dealing with election appeals under the Act is settled practice within the Elections Unit of INAC. Given the volume of appeals across the country, I can see why INAC would try to streamline the appeals process into something that is manageable. However, in resorting to a straight application of s 79 of the Act, or conflating s 79 of the Act with s 14 of the Regulations, the Elections Unit has significantly changed the very nature of the appeals process and has, in effect, bypassed ss 13 and 14 of the Regulations. Internal policy decisions cannot be used to amend the law in this way.
[50] At the hearing of this application before me in Saskatoon on September 14, 2016, the AG attempted to justify and legitimize the Elections Unit’s treatment of appeals in various ways. Counsel argued that:
(a) The Court’s position in Keeper, above, has been corrected by the decisions in Woodhouse and Dedam, both above, which decisions make it clear that s 79 is the governing provision for the Elections Unit to apply when dealing with election appeals under the Act;
(b) The bypassing of s 14 of the Regulations or the conflation of s 14 with s 79 of the Act really made no difference in this case at the end of the day because the dismissal of the appeal, as in others, was reasonable given the facts established by the evidence.
[51] These arguments are, in my view, meretricious and unconvincing. To begin with, there is nothing in Woodhouse or Dedam, or any other case of which I am aware, that