Flett v. Pine Creek First Nation

Flett v. Pine Creek First Nation
Court (s) Database
Federal Court Decisions
Date
2022-06-01
Neutral citation
2022 FC 805
File numbers
T-1197-21
Decision Content
Date: 20220601
Docket: T-1197-21
Citation: 2022 FC 805
Ottawa, Ontario, June 1, 2022
PRESENT: The Honourable Madam Justice Strickland
BETWEEN:
MICHAEL (JOE) FLETT
NORMAN JOSEPH LAGIMODIERE
CHARLES BOUCHER
TRACY PASHE
JOSEPH BOUCHER
JOHN NEAPEW
Applicants
and
PINE CREEK FIRST NATION
DEREK NEPINAK
DON CHARTRAND
CINDY MCKAY
HARTLEY CHARTRAND
ANGELA MCKAY
BURKE RATTE
Respondents
JUDGEMENT AND REASONS
[1] The Applicants bring this application, pursuant to s 31 of the First Nations Elections Act, SC 2014, c 5 [FNE Act], contesting the election of Chief and Council of the Pine Creek First Nation and seeking to have the election set aside.
Background
[2] The Pine Creek First Nation [Pine Creek] is a participating First Nation in, and conducts its elections pursuant to, the FNE Act. The election for Chief and Council contested in this application was held on June 29, 2021 [Election]. Three advance polls were held: one in Dauphin on June 22, 2021; one in Brandon on June 23, 2021; and one in Winnipeg on June 24, 2021.
[3] A total of 1088 ballots were cast for the position of Chief and for the positions of Councillor. Derek Nepinak was elected Chief, receiving 401 votes. He is a respondent in this application. The runner-up for the position of Chief was Charles Boucher (375 votes); he is an applicant. The successful candidates for Council were Hartley Chartrand (337 votes), Cindy Campbell-McKay (263 votes), Don Chartrand (254 votes) and Angela McKay (233 votes). They are all named respondents in this application. The first runner-up for Councillor was Johnny Neapew (233 votes), he is an applicant in this matter as are Michael (Joe) Flett (221 votes), and Joseph Boucher (196 votes).
[4] The Applicants allege that Mr. Nepinak attempted to buy the votes of electors by providing tickets for a hot dog and drink outside the building where the Winnipeg advance poll was being held. Further, that the Electoral Officer, Burke Ratte, failed to adequately identify persons who cast votes in the Election and permitted other irregularities in its conduct. The Electoral Officer is also a named respondent in this matter. In these reasons, he will be referred to as the Electoral Officer and the remaining named respondents will collectively be referred to as the Respondents.
[5] The Respondents and the Electoral Officer deny the allegations made against them.
Relevant Legislation
First Nations Elections Act, SC 2014, c 5
Prohibition — any person
16 A person must not, in connection with an election,
(a) vote or attempt to vote knowing that they are not entitled to vote;
(b) attempt to influence another person to vote knowing that the other person is not entitled to do so;
(c) knowingly use a forged ballot;
(d) put a ballot into a ballot box knowing that they are not authorized to do so under the regulations;
(e) by intimidation or duress, attempt to influence another person to vote or refrain from voting or to vote or refrain from voting for a particular candidate; or
(f) offer money, goods, employment or other valuable consideration in an attempt to influence an elector to vote or refrain from voting or to vote or refrain from voting for a particular candidate.
Prohibition — elector
17 An elector must not, in connection with an election,
(a) intentionally vote more than once in respect of any given position of chief or councillor; or
(b) accept or agree to accept money, goods, employment or other valuable consideration to vote or refrain from voting or to vote or refrain from voting for a particular candidate.
…
Prohibition
27 A person must not, in a manner that this Act does not otherwise prohibit, intentionally obstruct the conduct of an election.
…
Contestation of election
31 An elector of a participating First Nation may, by application to a competent court, contest the election of the chief or a councillor of that First Nation on the ground that a contravention of a provision of this Act or the regulations is likely to have affected the result.
…
Court may set aside election
35 (1) After hearing the application, the court may, if the ground referred to in section 31 is established, set aside the contested election.
First Nations Elections Regulations, SOR/2015-86 [Regulations]
Ballot
21 (1) Subject to subsection (3), the electoral officer or deputy electoral officer must provide a ballot on which their initials have been placed to any person who has not voted at an advance poll, who attends at a polling station and whose name is set out in the voters list.
Marked voters list
(2) The electoral officer or deputy electoral officer must place a mark on the voters list next to the name of each elector who was given a ballot.
Mail-in ballot
(3) An elector who received a mail-in ballot package under section 16 may obtain a ballot and vote in person at a polling station if the elector
(a) returns the unused mail-in ballot to the electoral officer or deputy electoral officer; or
(b) provides the electoral officer or deputy electoral officer with a sworn affidavit stating that they have lost their mail-in ballot.
Issues
[6] The issues raised in this matter can be appropriately framed as:
Did Mr. Nepinak contravene the FNE Act or Regulations?
Did the Electoral Officer contravene the FNE Act or Regulations?
If so, were the contraventions likely to have changed the result of the Election?
Should the Court exercise its discretion pursuant to s 35 of the FNE Act to set aside the Election?
Preliminary Observation
[7] The Applicants, the Respondents, and the Electoral Officer have each filed application records. Each of these records contains evidence filed in this application.
[8] The Applicant’s record contains:
Affidavit of Michael (Joe) Flett, sworn on July 29, 2021
Affidavit of Norman Joseph Lagimodiere, sworn on July 29, 2021
Affidavit of Tracey Pashe, sworn on August 27, 2021
Affidavit of Charles Boucher, sworn on August 28, 2021
Affidavit of Justine Neapew, sworn on September 6, 2021
Affidavit of Norma Joseph Lagimodiere, sworn on October 22, 2021
Affidavit of Freda Virginia Watson, sworn on October 22, 2021
Affidavit of Elizabeth Kayla Marie Flett, sworn on October 22, 2021
Affidavit of Jedidiha Nostradomus Flett
Cross-Examination of Derek Nepinak
Cross-Examination of Burke Ratte
USB stick with video footage of Pine Creek First Nation polling station.
[9] The Respondent’s record contains:
Affidavit of Derek Nepinak, sworn October 1, 2021
Affidavit of Derek Nepinak, sworn November 4, 2021
Transcript of Cross-Examination on Affidavit of Tracy Nora Pashe, November 12, 2021
Transcript and Exhibits of Cross-Examination on Affidavit of Norman Joseph Gustave Lagimodiere, November 12, 2021
Transcript and Exhibits of Cross-Examination on Affidavit of Freda Virginia Watson, November 12, 2021
Transcript of Cross-Examination on Affidavit of Charlie Willie Boucher, November 12, 2021
Transcript of Cross-Examination on Affidavit of Justin Neapew, November 12, 2021
Transcript of Cross-Examination on Affidavit of Michael Joseph Flett, November 12, 2021
Transcript of Cross-Examination on Affidavit of Jedidiha Nostradomus Flett, February 18, 2022.
[10] The Electoral Officer’s Record contains:
Affidavit of Burke Ratte, sworn October 6, 2021
Transcript of Cross Examination on Affidavit of Norman Joseph Gustave Lagimodiere with Exhibits A and B, November 12, 2021
Transcript of Cross Examination on Affidavit of Tracy Nora Pashe, November 1, 2021
[11] While I have reviewed and considered all of this evidence, for purposes of these reasons – in particular in light of the concessions made by the Applicants at the hearing which will be discussed below – it is not necessary mention or refer to each individual item. In my analysis, I have referenced the most pertinent evidence in the context of the issue being addressed.
Alleged contraventions of the FNE Act or Regulations by Mr. Nepinak
Applicants’ position
[12] The Applicants allege that Mr. Nepinak, as a candidate for the position of Chief, stood outside the building where the advance poll in Winnipeg was being held and offered people tickets for hot dogs and drinks if they would vote for him and his slate of candidates for Council. The Applicants submit that Mr. Nepinak was attempting to buy votes and that his actions were in contravention of s 16(f), s 17(b), s 20(b) and s 27 of the FNE Act. In support of this position, they rely on the affidavit evidence of Norman Lagimodiere, Freda Watson, Tracy Pashe, and Justin Neapew. The Applicants assert that Mr. Nepinak’s responding affidavit evidence is not credible.
Respondents’ position
[13] The Respondents submit that Mr. Nepinak’s evidence was that he distributed hot dog tickets outside of the polling station as a gesture of kindness and thanks for participating in the voting process. He did so without asking or telling anyone to vote for him or any other particular candidate. The Respondents submit that Mr. Nepinak’s evidence should be preferred to the evidence submitted on behalf of the Applicants and that various contextual factors also favour Mr. Nepinak’s version of events, including that he openly handed out the tickets and offered them to electors who had already voted, non-electors and opposing candidates. In any event, there can be no finding of vote buying in contravention of s 16(f) of the FNE Act because hot dog tickets are not “valuable consideration”.
Electoral Officer’s position
[14] The Electoral Officer takes no position as to whether Mr. Nepinak contravened the FNE Act.
Legal backdrop
[15] Section 31 of the FNE Act contains two elements that must both be met to successfully contest an election for chief or a councillor:
There must be a contravention of the FNE Act or the Regulations; and
The contravention is likely to have affected the result of the election.
[16] Pursuant to s 35, the Court may, if these elements are established, set aside the contested election.
[17] Jurisprudence considering an application brought under s 31, and the potential setting aside of the contested election under s 35(1) (or similar provisions found in other legislation), has established the following general principles:
- A contravention can occur through an act of either commission or omission by an elector, an electoral candidate or an electoral officer (Bird v Paul First Nation, 2020 FC 475 [Bird] at para 29; O’ Soup v Montana, 2019 SKQB 185 [O’Soup] at para 27);
- The onus, or legal burden of proof, is on the applicant to establish that a contravention of the FNE Act or the Regulations has occurred and that the contravention was likely to have affected the result of the election [Whitford v Red Pheasant First Nation, 2022 FC 436 [Whitford] at para 75; Bird at para 28-30; McNabb v Cyr, 2017 SKCA 27 [McNabb] at para 23); Opitz v Wrzesnewskyj, 2012 SCC 55 [Opitz] at para 52; Papequash v Brass, 2018 FC 325 [Papequash] at para 33; O’Soup at para 29). “Likely” has been held to be more akin to ‘probable’ than to ‘possible’ or ‘may have affected the result’ (Paquachan v Louison 2017 SKQB 239 [Paquachan] at para 24; O’Soup at para 117);
- The standard of proof for establishing that the requirements of s 31 have been met is the balance of probabilities (Good v Canada (Attorney General), 2018 FC 1199 at para 49 [Good]; Papequash at para 33; McNabb at para 23; O’Soup at para 29, 92; Whitford at para 75). If an applicant leads sufficient evidence to establish on a balance of probabilities that a contravention occurred that likely affected the outcome of the election, then the evidentiary burden may shift to the respondent to refute the alleged contravention or to establish that the contravention likely did not affect the election result (Opitz at para 61;Paquachan at para 23; O’Soup at para 92; McNabb at para 23);
- There is a “presumption of regularity”, that is, the Court shall presume that all necessary procedures were followed in the conduct of a challenged election, until the Applicant proves otherwise (Opitz at para 169; Bird at para 29; O’Soup at para 91; McNabb at para 26). In any election, irregularities in the election process are bound to occur in some form (Opitz at para 46; Paquachan at para 19). Such administrative errors should not result in an election being set aside unless it is established that those irregularities are likely to have affected the result of the election (Paquachan at para 19; Papequash at para 33; McNabb at para 36; Good at para 49; Whitford at para 77);
- Not every contravention will justify overturning the election. The considerations may differ depending on whether the contravention involves technical procedural questions concerning the conduct of the election or fraud or corruption, such as vote buying. For example, in cases involving technical procedural questions, a mathematical approach such as the “magic number” test may be appropriately utilized to establish the likelihood of a different outcome. However, in cases where an election has been corrupted by fraud bringing the integrity of the electoral process into question, annulling the election may be justified regardless of the proven number of invalid votes (Good at para 54; Papequash at para 34; McEwing v Canada (Attorney General), 2013 FC 525 [McEwing] at paras 81-82; Bird at para 32; Gadwa v Kehewin First Nation, 2016 FC 597 [Gadwa] at paras 88-89; Whitford at para 78);
- Even if the applicants have satisfied both statutory requirements, the Court ultimately retains discretion as to whether to order a new election. The exercise of this discretion includes situations involving fraud or other forms of corruption. This is because annulling an election has broad and serious consequences. It disenfranchises not only those whose votes were disqualified, but every elector who cast a vote; increases the potential for future litigation; undermines the certainty in the democratic outcomes; and, may lead to disillusionment and voter apathy (Bird at para 31; Paquachan at para 20, 25; Good at para 55; Opitz at para 48; O’Soup at paras 31, 117, 123; McNabb at para 45; McEwing at paras 78, 82).
[18] It is against this legal backdrop that I will now consider the parties’ submissions and the evidence.
The parties’ evidentiary submissions
[19] It is not in dispute that Mr. Nepinak offered tickets for a hot dog and drink outside the building where the Winnipeg advance poll was being held. What is in dispute is whether the offering of the tickets was for the purpose of obtaining votes for Mr. Nepinak or other candidates he supported.
[20] In support of their allegation, the Applicants refer to the following evidence:
The affidavit evidence of Norman Joseph Lagimodiere. In his affidavit Mr. Lagimodiere states that he was a volunteer scrutineer for candidate Michael (Joe) Flett in the Election. During the Winnipeg advance poll on several occasions he witnessed Mr. Nepinak standing outside the polling station handing out blue hot dog tickets to people entering to vote. He deposes that he was close enough to hear Mr. Nepinak on each of those occasions asking people to vote for him or his council candidates. This occurred between 1 and 6 p.m. He took a picture of Mr. Nepinak which is attached as an exhibit to his affidavit.
The affidavit of Freda Watson deposes that as she was exiting her daughter’s car parked in front of the Winnipeg advance polling station Mr. Nepinak approached her, introduced himself and offered his hand to shake. She did not shake his hand because she was using a walker. She deposes that Mr. Nepinak then said, “If you voted for me, I will give you a ticket and then you go see those guys over there once you are done voting”. She replied, “no thank you, I know who I am voting for”. She states that she believes Mr. Nepinak wanted to buy her vote.
The affidavit of Tracy Pashe, who was a volunteer scrutineer for candidates Charles Boucher and Joseph Boucher in the Election, deposes that she was seated at the scrutineers section of the Electoral Officer’s table in the Winnipeg advance poll and saw Mr. Nepinak standing outside the polling room station in the adjoining lobby giving tickets to the people coming in. He gave tickets to a person sitting at the entrance to the polling station room. Mr. Nepinak handed her five hot dog tickets and she attaches as an exhibit to her affidavit a photo of a string of six tickets marked “good for one drink”. She also states that she believes that the Electoral Officer saw Mr. Nepinak giving her and others tickets. She says she stepped outside the polling station building several times and at least on one occasion saw Mr. Nepinak give hot dog tickets to one person entering the building to vote.
The affidavit of Justin Neapew, who was a volunteer for candidate Michael (Joe) Flett in the Election, deposes that on the day of the Winnipeg advance polls he was driving people to the polling station. When doing so he parked across the street from the front doors of the polling station and he saw Mr. Nepinak standing and talking to voters and giving them hot dog tickets. He deposes that he asked about 15 such voters what Mr. Nepinak wanted and they all responded that he gave them tickets and asked them to vote for him and his group of candidates. Mr. Neapew also states that about 10-15 other voters, upon re-entering his vehicle, volunteered the same information. He states that every time he left the advance polling station he saw Mr. Nepinak standing outside talking to people with his hot dog tickets.
[21] The Respondents rely on the affidavit evidence of Mr. Nepinak.
Mr. Nepinak’s October 1, 2022 affidavit was made in response to the affidavit evidence of the Applicants. He deposes that he planned to vote at the Winnipeg advance poll and to distribute tickets to friends, family and others in the vicinity of the hotel where the poll was located. The tickets could be redeemed for a hot dog and a can of pop from Willy Dogs’ mobile food cart. He had had purchased 60 tickets from Willy Dogs at a cost of $6.25 per ticket for this purpose. He deposed that it is customary and cultural to offer food or feast in advance, during or after cultural or political events, noting he had offered a fish fry to electors and friends in advance of his election as Grand Chief of the Assembly of Manitoba Chiefs and again offered to feed friends and electors as a gesture of good will with respect to his re-election to that position.
Mr. Nepinak deposes that after casting his vote he left the hotel and walked about 32 metres south where he offered a ticket to an elderly woman who walked by headed north. She asked his name and he responded that it was Derek but did not give his full name or that he was running for Chief. She declined the ticket. In this same location, he also offered a couple of tickets to Norman Joseph Lagimodiere, which were accepted. Arthur McKay asked him for a ticket and was given six. Later, Mr. Nepinak approached about eight men, near the hotel front doors, who were dressed in red and black whom he believed to be associated with candidates running in the election, such as Charles Boucher. He offered tickets to the group, one of whom took two tickets. He did not tell anyone in the group that he was running for Chief. He then walked north about 70-80 feet where he stopped. A group of three people approached him from the south. One asked if he was running for Chief and he confirmed that he was and gave a ticket to each person plus extras for their children. Shortly after 2 p.m., Mr. Nepinak went to the hot dog cart, redeemed a ticket for a hot dog and a drink and then left the area in his vehicle. His recollection was that he was in the vicinity of the hotel from about 1:27 to 2:27 p.m., based on his parking receipt, a copy of which is attached as an exhibit to his affidavit. He returned to the hot dog cart shortly after 6:30 p.m., spoke with the operator of the hot dog cart, then went back to his motorcycle. While there, he encountered Charles Boucher and offered him tickets which he accepted. He was given two tickets and asked for a couple more and was given two more. Mr. Nepinak then left on his motorcycle.
In response to the affidavit of Tracy Pashe, Mr. Nepinak deposes that he may have given a ticket to a young man sitting outside the entrance to the polling station but did not know if he was a voter or had voted. In response to the affidavit of Norman Joseph Lagimodiere, Mr. Nepinak deposes that at no point when he was in or near the hotel did he ask or tell anyone to vote for him, or any other candidates, or to not vote for any candidate.
In his November 4, 2021 affidavit Mr. Nepinak responds to the affidavit of Freda Watson. Mr. Nepinak deposes that he does not personally know Freda Watson but recalled interacting with a woman on the day of the advance poll who was exiting a vehicle with a walker. He states that he approached the vehicle, which held a number of people including a young woman, introduced himself and asked if they were Pine Creek First Nation members. The young woman said that she was not. He then offered them hot dog tickets; he thought he gave four to the young woman who said she would give some to her children. He did not recall the individual that he now assumes was Freda Watson accepting a ticket from him and did not tell her to vote for him. Nor did he say that the ticket being offered was in exchange for a vote for him or that he would provide a ticket if she voted for him. He did not offer the ticket to her in an attempt to buy her vote as her affidavit asserts. He states that the offering of the ticket was a gesture of kindness and thanks for participating in the voting process.
[22] In their written submissions, the Applicants refer to the affidavit evidence set out above that supports their position. They address the explanation given by Mr. Nepinak in his affidavit, and elaborated upon on cross-examination, for why he was handing out hot dog tickets: that he viewed it as customary to offer food and had previously held fish fries before other elections, and, as an expression of gratitude, to be kind and present. The Applicants do not argue that offering food in connection with cultural events or political events is not customary. They submit, however, that the two examples provided by Mr. Nepinak refer only to his own actions. They then state that Mr. Nepinak point blank denied that he asked any electors to vote for him or any other candidates and submit that his evidence is not credible as “[t]here are many electors who emphatically stated that he did suggest who they should vote for while giving out gifts of food and beverage”.
[23] The Respondents submit that there is no vote buying when something is offered without any condition to vote in a certain way. Because the Applicants have not provided any evidence that the hot dog tickets were offered with a condition that the recipient vote in a certain way, they have failed to establish a contravention of s 16(f) of the FNE Act. Nor is there any evidence that Mr. Nepinak orally promoted the election of any particular candidate, therefore no breach of s 20(b) has been established. The Respondents submit that the Applicants now recognize this weakness in their position and therefore attack Mr. Nepinak’s credibility. The Respondents assert that the Applicants failed to cross-examine Mr. Nepinak on the key factual dispute in this case – what he said while handing out hotdog tickets. Because the Applicants did not impeach Nepinak’s credibility when he was cross-examined, it is not open to them to do so later in written submissions as Mr. Nepinak could no longer defend his credibility. The Respondents rely on case law concerning testimony given at trial in support of this position. They also assert that the Applicants cannot challenge Mr. Nepinak’s credibility solely on the existence of contradictory evidence from their own affiants on a critical factual issue that was not put to him on cross-examination. They submit that with no reason to disbelieve Mr. Nepinak’s evidence that he did not tell or suggest to people how to vote, the Applicants cannot meet the first hurdle of s 31 of the FNE Act, that there was a contravention.
[24] The Respondents submit that, in any event, Mr. Nepinak’s evidence ought to be preferred as it is in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions, referencing Faryna v Chorny, 1951 CanLII 252, p 357. And, further, there can be no finding of vote buying in contravention of s 16(f) because hot dog tickets are not “valuable consideration”.
Analysis
[25] The evidence of Tracy Pashe establishes only that Mr. Nepinak was offering hot dog tickets, which he acknowledges. Ms. Pashe does not state that she heard Mr. Nepinak say anything to electors when handing out the tickets. Her evidence does not establish that he was offering the tickets in exchange or as an inducement for her to vote for him or others. Indeed, even though she was a volunteer scrutineer for candidates Charles Boucher and Joseph Boucher in the Election, her evidence is that Mr. Nepinak gave her five tickets (she provided a photo of six). Her affidavit is silent on how it came about that Mr. Nepinak gave her these hot dog tickets. It also seems unlikely that Mr. Nepinak would have provided her with those tickets having any expectation that she would vote for him, given her apparent allegiance to Charles and Joseph Boucher.
[26] The evidence of Justin Neapew is that he asked about 15 voters to whom he gave rides what Mr. Nepinak wanted and they all told him that Mr. Nepinak gave them tickets and asked them to vote for him and his group of candidates. Further, about 10-15 other voters re-entering his vehicle volunteered the same information. He states that every time he left the advance polling station he saw Mr. Nepinak standing outside talking to people with his hot dog tickets.
[27] I afford this evidence no weight. First, Mr. Neapew’s evidence about what Mr. Nepinak said to electors is hearsay and is presumptively inadmissible. There is no evidence to suggest that it is admissible under a traditional exception to the hearsay rule or because it meets the “principled exception” requirements of necessity and reliability (R. v. Khelawon, 2006 SCC 57 at paras 2-3; Johnstone v Mistawasis Nêhiyawak First Nation, 2022 FC 492 at para 25). In fact, no explanation is offered for why no affidavit evidence was obtained from any of these electors on this critical point. When appearing before me, counsel for the Applicants conceded that this evidence is hearsay. I also agree with the Respondents that an adverse inference should be drawn from the failure of the Applicants to bring forward any evidence from any of these 25 to 30 electors who allegedly were directly asked by Mr. Nepinak to vote for him when he offered them hot dog tickets (Federal Courts Rules, SOR/98-106, Rule 81(2); Split Lake Cree First Nation v Sinclair, 2007 FC 1107 at paras 25-27).
[28] Second, Mr. Neapew’s recounting of events that is based on his own personal knowledge conflicts with Mr. Nepinak’s evidence. In his affidavit, Mr. Neapew alleges that he saw Mr. Nepinak outside the polling station every time he left the hotel. When cross-examined on his affidavit he testified that he made trips between 10:00 a.m. and 7:00 p.m. and he continued to stand by the statement that “every time” he was there he saw Mr. Nepinak handing out tickets. However, he later stated that he only meant “lunch time afterwards”, although what he meant by this is somewhat unclear from the cross-examination transcript. Conversely, Mr. Nepinak deposed that he was in the vicinity of the polling station for about an hour, from 1:30 p.m. to just before 2:30 p.m. He corroborated this with a parking receipt attached as an exhibit to his affidavit that shows he was parked from 1:27 p.m. until 2:27 p.m. The parking receipt evidence was not challenged by the Applicants during cross-examination of Mr. Nepinak. Given this, I am more inclined to believe Mr. Nepinak’s evidence about the time that he was at the polling station. This, in turn, brings into doubt a material aspect of Mr. Neapew’s evidence and renders it less credible generally.
[29] I also have some concerns with the credibility of Mr. Lagimodiere’s evidence. He swore his first affidavit on July 29, 2021. In response to the Electoral Officer’s affidavit, he swore a second affidavit on October 22, 2021. In this second affidavit, he made a new and serious allegation of corrupt election practices. Specifically, that at the request of the Electoral Officer, Mr. Lagimodiere met with the Electoral Officer on June 4, 2021, at which time the Electoral Officer “demanded that applicant Flett and Boucher pay him $10,000.00 and he further demanded that when they get elected he would get a Pine Creek contract to assess Pine Creek’s environment and waste. To confirm the contract respondent Ratte wanted me to meet with his partner Darrel Olsen to discuss his demand”.
[30] Under cross-examination on this second affidavit Mr. Lagimodiere initially maintained that the Electoral Officer had requested a meeting with him, at which meeting he made the demand. However, when confronted with text messages showing that it was Mr. Lagimodiere who requested a meeting, he changed his evidence and acknowledged that he was the one who requested the meeting. It is difficult to believe that the Electoral Officer arrived at a meeting requested by Lagimodiere and then demanded a payment of $10,000. And, even if that were the case, it seems improbable that Mr. Lagimodiere would not raise the demand prior to the Election as such a demand by the Electoral Officer, who was running the Election process, would give rise to concerns as to the corruption of that process. In any event, it would be reasonable to expect such a serious allegation to have at least surfaced in Mr. Lagimodiere’s first affidavit. The magnitude of the $10,000 demand, as compared to $6.25 hot dog tickets, would appear compelling. While neither party relies on these allegations of bribery, in my view, they undermine the credibility of Mr. Lagimodiere’s evidence.
[31] Finally, as to Ms. Watson’s evidence, she is the only witness and the only elector to depose that Mr. Nepinak spoke directly to them offering a hot dog ticket in connection with a request for their vote. She deposes that Mr. Nepinak said “If you voted for me, I will give you a ticket and then you go see those guys over there once you are done voting”. She states that she believes Mr. Nepinak wanted to buy her vote.
[32] On cross-examination, Ms. Watson stated that she had already decided whom she was going to vote for when she arrived at the polling station. When asked if the offer of a hot dog ticket swayed her intention she said no, because she did not like hot dogs and she “actually thought it was a real hot dog”. When it was put to her that Mr. Nepinak had not said anything to her at the advance poll that could be understood as attempting to buy her vote she stated that she disagreed because he was trying to buy her vote. When asked if he was attempting to buy her vote with a hot dog she said no, “[w]ith a ticket not a hotdog”. When asked what she understood the ticket was for, she replied a hot dog and then “he was offering me a ticket. He suggested that the ticket was for a hot dog, but he didn’t says here’s a hot dog…”. When asked, “[s]o you don’t believe that it was for a hot dog” she responded that at the time she did. When asked whether that was now the case, she responded that she did not know and “I can’t answer that question”. When asked, “[s]o at the time you said you believed the ticket was to be exchanged for a hot dog?” she replied, “[y]es, is what he said, here’s a ticket, go see those guys over there, they’ll give you a hotdog. But when I looked over there, I did not see no hotdog stand”.
[33] Later, Ms. Watson was asked questions about Facebook posts that she had made offering free rides to voters to the advance poll and offering to provide voters with request forms to vote by mail-in ballot. She confirmed that she had also drafted and posted a campaign statement on behalf of her brother-in-law, John Neapew, one of the Applicants in this matter. Also, that she is a member of a private Facebook group called Pine Creek First Nation 2021 – Official Membership Notices, and a public page called Off Reserve Members of Pine Creek First Nation. When asked if these two Facebook pages provide a venue for Pine Creek First Nation members to post about important issues, like elections, she agreed. Later she stated that she had never seen people talking about vote buying on the webpages. When asked if allegations of vote buying or trying to sell votes would be a serious issue in relation to an election, she agreed. She then volunteered that a lady had posted (on the Pine Creek First Nation – Official Notices page) that some of the candidates were trying to buy votes and that she had commented in response “because my brother was being scrutinized on the web page, and I stood up for him and put that he was a very honest man, there’s no way he would do something like that”. When asked to clarify that her testimony was that someone posted accusing her brother of trying to buy votes she denied this, saying that it was only the candidates that had been accused. When her prior testimony was put to her, that she had posted in response defending her brother, her reply was “I don’t know who she was referring to because there was no names. I don’t know who I was standing up for…”.
[34] She also confirmed that she did not post her allegation that Mr. Nepinak had tried to buy her vote on Facebook stating “no, because I didn’t have proof. Why would I post that?” and “No. Because I’m not one to slander somebody out of hearsay”.
[35] Reading Ms. Watson’s cross-examination testimony in whole, I find it to be less than forthright. With respect to her testimony about defending her brother, I fail to see how she could have posted in response that he was a very honest man, there’s no way he would do something like that, and then maintain that the only reference in the post had been to candidates generally and that she did not know who she was standing up for in her response. It is also difficult to reconcile her sworn affidavit statement about what Mr. Nepinak said to her at the advance polling station with her cross-examination testimony that she would not “slander somebody out of hearsay”. While I recognise that Ms. Watson may not have fully appreciated the legal context of the terms she used, I am still troubled by the idea that she viewed her own alleged interaction with Mr. Nepinak as so untrustworthy that it could not be posted.
[36] Conversely, I agree with the Respondents that Mr. Nepinak’s affidavit evidence was not meaningfully challenged or refuted on cross-examination. While the Applicants may not accept his explanation as to why he was offering hot dog tickets – as a gesture of kindness and thanks for participating in the voting process – his explanation did not vary on cross- examination. If anything, he credibly elaborated on his affidavit evidence. And, as the Respondents point out, Mr. Nepinak’s evidence that he did not ask or tell anyone to vote for him, including Ms. Watson, and his evidence that he did not say that the hot dog ticket was being offered to her in exchange for a vote for him or that he would give her a ticket if she voted for him, was not challenged on cross-examination. In my view his testimony was also straightforward and does not give rise to concerns with credibility. I prefer Mr. Napinak’s evidence to that of Ms. Watson.
[37] Nor does the offer of food and beverages inevitably lead to a finding of vote buying. In Good v Canada (Attorney General), 2018 FC 1199 [Good] one of the many allegations of vote buying made in that case involved the providing of a hospitality room at the hotel where an advance poll was located by a candidate for the position of chief where he provided food and soda. Having assessed the evidence, some of which was directly contradicted by other evidence, Justice McVeigh found that having a “come and go” hospitality room was not out of the ordinary for candidates in any and all political forums. And, on the facts before her, that the provision of the hospitality room or the events that occurred within it did not comprise an inducement to buy a vote. She held that a contravention s 16(f) of the FNE Act had not been established (at paras 270-273).
[38] Similarly, in Bird, Justice McVeigh found that a candidate had not contravened s 16(f) of the FNE Act by hosting a soup, bannock and champagne luncheon six days before an election as it is common practice, in any election, to sponsor events, including lunches, during campaign periods (at paras 68-70). In the alternative, even if there was a contravention of s 16(f), it would not have affected the results of the election because it was speculative to assume that the lunch alone had successfully influenced 50 votes (at para 71).
[39] While I appreciate that the offer of food and drink in Bird occurred during campaigning, in Good the offer occurred in the hotel where an advance poll was being held – a similar circumstance to the matter before me.
[40] I also agree with the Respondents that Mr. Nepinak’s evidence seems more in keeping with the probabilities surrounding the case as a whole. His uncontested evidence was that he offered and gave hot dog tickets to voters and non-voters alike, and to other candidates or people he believed to be associated with other candidates. These included Ms. Pashe, Mr. Lagimodiere and Mr. Charles Boucher. If Mr. Nepinak were attempting to influence votes, one would think he would likely have been more strategic in how he distributed the hot dog tickets.
[41] He also openly offered the hot dog tickets outside the advance polling station. Had he been attempting to buy votes, this manner of proceeding is anything but secretive and would have attracted a very high risk of detection.
[42] Further, the idea that Pine Creek First Nation members who had gone to the effort of attending the advance poll would be influenced in their voting decisions by a hot dog and a soda – or that Mr. Nepinak would think that they might be – seems unlikely at best.
[43] Further, if the offering of the hot dog tickets was conditional upon the elector agreeing to vote in a particular way, there is no evidence that Mr. Nepinak sought proof – such as a photo of the ballet when marked – that the condition had been met before handing over the hot dog ticket. If he offered hot dog tickets to electors entering the polling station, then they could vote freely and still get the benefit of the hot dog. As stated in Henry v Roseau River Anishinabe First Nation Government, 2017 FC 1038 at para 59, “there is no bribery, or vote buying, when money is given without any condition to vote in a certain way”.
[44] For all of these reasons I am not persuaded that the Applicants have met their burden of establishing, on a balance of probabilities, that Mr. Nepinak’s offer of hot dog tickets was an attempt to influence electors to vote for a particular candidate in contravention of s 16 (f) of the FNE Act.
Valuable consideration
[45] Section 16(f) prohibits offering “money, goods, employment or other valuable consideration in an attempt to influence an elector to vote or refrain from voting or to vote or refrain from voting for a particular candidate”.
[46] I agree with the Respondents that a hot dog and drink ticket valued at $6.25 is not “valuable consideration” as contemplated in s 16(f) of the F