Good v. Canada (Attorney General)

Good v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2018-11-28
Neutral citation
2018 FC 1199
File numbers
T-596-16
Decision Content
Date: 20181128
Docket: T-596-16
Citation: 2018 FC 1199
Ottawa, Ontario, November 28, 2018
PRESENT: The Honourable Madam Justice McVeigh
BETWEEN:
MICHELLE GOOD
Applicant
and
CHIEF ELECT CLINTON WUTTUNEE AND COUNCILLORS ELECT LUX BENSON, MANDY CUTHAND, DANA FALCON, HENRY “BOSS” GARDIPY AND GARY SAUVE NICOTINE
Respondents
JUDGMENT AND REASONS
I. Introduction
[1] This is an appeal arising from the March 18, 2016 Red Pheasant First Nation election.
[2] The Applicant, Michelle Good [Good], is a Red Pheasant First Nation band member who resides in British Columbia. She applied to this Court under section 30 of the First Nations Elections Act, SC 2014, c5 [“FNEA”] for judicial review of the election.
[3] It was confirmed at the start of the hearing that Good is a practising lawyer in British Columbia, but is representing herself in this matter as a member of the Red Pheasant First Nation.
[4] Good brought an application for an interlocutory injunction and it was dismissed on August 19, 2016, by Justice Gagné, with costs payable by Good to the Respondents.
[5] The tenor of the allegations can be garnished from the closing paragraph of Good’s submissions in her Memorandum of Fact and Law. She submits at paragraph 189:
The Red Pheasant Respondents have done everything in their power to subvert this appeal by nefarious means. It is a reasonable conclusion that these acts of bribery and intimidation are the desperate or arrogant acts of persons determined to conceal their corruption of the 2016 Red Pheasant Election.
[6] Good’s Notice of Application [Notice] does not set out any relief sought, but does apply for nine different declarations and an order that a new election be called. The Notice further demands that election observers be engaged and assigned at the expense of the Minister to ensure the election is lawfully commissioned, and also to have observers at all advance polls to prevent mail-in ballots being cast fraudulently.
[7] Good’s Memorandum of Fact and Law seeks the following relief:
190. A declaration that the Minister delegated her duty to consult to the Band Council with respect to opting—out of s.74(l) of the Indian Act in favour of opting in to the FNEA;
191. A declaration that the Red Pheasant Band Council also had a duty to consult its members seeking their consensus with respect to opting-out of $.74( l) of the Indian Act in favour of opting in to the FNEA pursuant to s.2(3) of the Indian Act;
192. A declaration that the Red Pheasant Band Council breached their duty to consult with respect to opting-out of of [sic] s.74(1) of the Indian Act in favour of opting in to the FNEA;
193. A declaration that the November BCR is based on a misrepresentation that the Band Council consulted its membership with respect to opting out of s.74(1) and is thus void and without legal authority;
194. A declaration that the March 2016 Red Pheasant Election, arising as it does from the void November BCR is a nullity and a new election be ordered;
195. A declaration that the Red Pheasant Band Council breached its fiduciary duty to its members by misrepresenting to the Minister that its members had been consulted; and
196. A declaration that the Minister breached her fiduciary duty by failing to uphold her duty arising from the Honour of the Crown to ensure that consultation had occurred upon delegating that duty to the Band Council.
197. A finding that respondents Clinton Wuttunee, Mandy Cuthand, Henry “Boss” Gardipy, Garry Sauve Nicotine, Shawn Wuttunee, Dana Falcon and Lux Benson engaged in corrupt practices contrary to section 14(b) and (c); 16 (a) (c) (d) and (e) of the FNEA and as such are disqualified as candidates pursuant to the FNEA and subject to penalties listed therein.”
[8] At the hearing, the Court confirmed that even if the Application for Judicial Review was successful, a number of Good’s requests for relief were unobtainable. It was further confirmed that if Good was successful, I could exercise my discretion to set aside the impugned election.
[9] I am dismissing the application for the reasons that follow.
II. Background
[10] Good has filed appeals in all of the last three previous elections. This is the first appeal under the FNEA.
[11] In a previous appeal arising out of the March 20, 2014 election, Good applied 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 (known as INAC). Good argued that INAC erred when they denied an appeal after Good made serious allegations of misconduct of the Electoral Officer and corruption in the form of vote buying for Councillor Charles Meechance and Chief Stewart Baptiste. The Director General, without conducting an investigation, had denied the appeal. That decision was judicially reviewed by Justice Russell in Good v Canada (Attorney General), 2016 FC 1272, which was released on November 15, 2016.
[12] Justice Russell examined the allegation that both the delegate and the electoral officer demonstrated a reasonable apprehension of bias, and that the delegate acted in a manner that was procedurally unfair. Good further submitted that the delegate attempted to deceive the Court by giving false evidence. Justice Russell held:
[92] In the present case, I think that all I can say is that reviewable errors were committed by the Elections Unit of INAC in dealing with the appeal in bypassing s. 14 of the Regulations and failing to implement an appropriate investigation under s 13 of the Act when dealing with the allegations and evidence of vote-buying by Chief Baptiste.
[93] I wish to make it clear, however, that this does not mean that I think Chief Baptiste engaged in vote-buying for the 2014 election or would have been found to have done so if the Elections Unit had not committed reviewable errors. All that means is that the elections Unit did not handle this aspect of the Applicant’s appeal appropriately and in accordance with the Act and the Regulations.
[13] Justice Russell did not return the matter for reconsideration, given the results of the 2016 election.
[14] Moving on to discuss the appeal before me now, the appeal of this election is governed under the statutory regime of the FNEA. The FNEA legislates a process for First Nations and Indigenous communities to elect their Band Council members. The process under the FNEA operates in parallel and in addition to other processes set out in section 74(1) of the Indian Act, RSC, 1985, c I-5 [“Indian Act”].
[15] The FNEA is a relatively new statute that came into force in April of 2015, along with the associated First Nations Elections Regulations, SOR/2015-86 [“FNEA Regulations”]. In order to opt into the provisions, a proper Band Council Resolution [“BCR”] in favour of being governed by the FNEA must be submitted to the Minister. The Minister then adds the First Nations to the FNEA Schedule.
[16] On November 5, 2015, the Red Pheasant First Nation Band Council signed a BCR in favour of opting into the FNEA. On January 4, 2016, after receiving the BCR, the Minister added the Red Pheasant First Nation to the FNEA Schedule. An election followed on March 18, 2016.
[17] On April 12, 2016, after the election results became known, Good filed an application under section 30 of the FNEA in the Federal Court to review the election. She went on to allege in her Memorandum of Fact and Law that the election and the election process contravened numerous sections of the FNEA, including sections 14(b), (c), (d), and (e), 16(a), (b), (c), (e), and (f), 17 (b), 18, and 19(a), and alleged that the Electoral Officer failed to comply with section 24(1).
[18] Good also requested judicial review of numerous other decisions, including the decision of the Minister to add the Red Pheasant First Nation to the FNEA Schedule (which she alleged was a breach of fiduciary duty), and the decision of the Red Pheasant First Nation Band Council to join the FNEA Schedule in the first place.
[19] Note that the Applicant requests differing remedies in her Memorandum of Fact and Law (see paragraph 7 above), in contrast to the Notice of Application. In the Memorandum of Fact and Law, she asks for a declaration that a number of the Respondents breached sections 14(b), 14(c), and 16(a), (b), (c), (d), and (e), whereas in the Notice of Application she also requests a declaration that sections14(d) and (e), 17(b), 18, and 19(a) were contravened during the election, but leaves out section 16(a).
[20] The parties underwent what can only be described as extensive case management, and many months of back and forth between the parties ensued without much progress. By and large, the parties were unsuccessful in working out many issues in case management proceedings, and at the judicial review hearing, there were still a number of outstanding issues.
III. Preliminary Motions and Issues
[21] At the commencement of the hearing, the parties made submissions regarding two motions. A Rule 312 motion was brought by the Applicant and a Rule 302 motion was brought by the Respondents.
[22] The Applicant’s motion for leave to file additional affidavits pursuant to Rule 312 of the Federal Courts Rules, SOR/98-106 [“FCR”] was granted. The Respondent Attorney General’s [“AG”] and the Respondent Red Pheasant First Nation’s motions pursuant to Rule 302 of the FCR were granted. Accordingly, the hearing was limited to the appeal of the election results. An oral decision on both of these motions was provided at the hearing, as summarized below, and an order granted to that effect dated April 3, 2018.
A. Rule 302
[23] In the Rule 302 motion, the Respondents argued that there were multiple issues raised against multiple bodies with 10 distinct requests for relief in Good’s application. On January 3, 2017, the Respondent Red Pheasant First Nation filed a Notice of Motion raising Rule 302. On January 27, 2017, the AG filed a Notice of Motion in agreement with the Respondent Red Pheasant First Nation’s submission on Rule 302. Both the Red Pheasant First Nation and the AG made submissions on the Rule 302 motion at the hearing.
[24] The Respondents submit that this Court must limit the judicial review to a single decision against a single administrative body.
[25] Good argued that the AG’s decision to put the band on the FNEA Schedule after receiving the BCR was inherently a part of the election, and that the Rule 302 motion should therefore be dismissed. In Good’s submission, the AG allowing the Red Pheasant First Nation to proceed under the FNEA breached a duty to consult.
[26] The AG submitted conversely that as the decision of the Minister regarding the FNEA Schedule is entirely separate from the other matters at issue in the application, the application should be discontinued against them.
[27] The AG submitted that on November 15, 2015, the Saskatchewan regional office of INAC received a BCR from Red Pheasant First Nation requesting that the Minister add the Red Pheasant First Nation to the FNEA Schedule. Specific to this motion, Good challenged the decision of the Red Pheasant Band Council to opt to conduct the election under the provisions of the FNEA.
[28] I agreed with the Respondents that judicial review must proceed on a single decision. Rule 302 of the FCR stipulates that applications for judicial review should be limited to one decision. Thus, where the review of multiple decisions is sought, an application for each decision must be sought (Servier Canada Inc v Canada (Health), 2007 FC 196; Truehope Nutritional Support Ltd v Canada (Attorney General), 2004 FC 658).
[29] The Court will make an exception to Rule 302 when an applicant challenges a continuing course of conduct arising from the decision of the same body (Mahmood v Canada, [1998] FCJ No 1345 at para 10; Lessard-Gauvin v Canada (Attorney General), 2016 FC 227).
[30] In this matter, I find that Good is challenging multiple decisions that do not arise from the decisions of the same body. I do not accept Good’s submission that there is only one official decision for review.
[31] This is of a completely different factual matter than the circumstance in Shotclose v Stoney First Nation, 2011 FC 750 [Shotclose], which Good relies on in her submissions. In Shotclose, the applicants were challenging not one specific decision by the Chief and Council, but were rather challenging all of decisions and actions taken by the Chief and Council leading up to the failure to properly conduct the 2010 election. This is clearly factually distinct from the multiple decisions put forward by Good for review, where Good initially sought review of the decision of the former Chief, the decision of the Minister to place the Red Pheasant First Nation on the FNEA Schedule, the actions of the Electoral Officer (later discontinued by Good), the actions of the current Chief, and the contravened nature of the election itself.
[32] In addition, the Applicant filed her application on April 13, 2016, well after the 30-day statutory timeline (Federal Courts Act, s. 18.1(2)) given to file an application for judicial review in respect of the other decisions. I note, however, that this is not determinative in this decision as the application is not in respect of a tribunal’s decision or order (Friends of the Oldman River Society v Canada (Min of Transport), [1992] 1 SCR 3).
[33] I find that the single decision that will be reviewed arises from the March 18, 2016 election, which is the decision identified in the Notice of Application made pursuant to the FNEA and the relevant FNEA Regulations. Good’s Notice of Application was filed pursuant to section 30 of the FNEA, and section 30 only pertains to the validity of FNEA elections.
[34] I awarded costs to the AG in an April 3, 2018 Order that indicated that a lump sum award would be determined within the application for judicial review. The AG subsequently withdrew their request for costs for this motion and none are awarded to the AG for this motion.
B. Rule 312
[35] Good brought a motion to file the additional affidavits and the cross-examination transcripts of: Sandra Arias, dated February 9, 2017; Michelle Good #6, dated January 17, 2017; Elsie Wuttunee #2, dated January 16, 2017; Eldon Wuttunee, dated January 16, 2017; Chief Clinton Wuttunee, dated January 22, 2018; and Dana Falcon, dated January 22, 2018.
[36] The Respondents opposed these being filed. The Respondents submitted that the additional affidavits are, on an individual analysis, barred by the rules of hearsay and other evidentiary issues, and are not saved by any principled exceptions. In addition, relying on the test in Strykiwsky v Stony Mountain, 2000 CanLII 16155 (FC), the Respondents submitted that the late filing of the affidavit evidence significantly prejudiced the Respondents, as it would place additional cost and effort on the Respondents after cross-examinations had already been completed on an already impecunious Red Pheasant First Nation. The Respondents submit that no reasonable or valid explanation for the delay in filing the affidavits exists.
[37] In respect of the Rule 312 motion, I granted the Applicant leave to file the additional affidavits and the cross-examination transcripts of: Sandra Arias, dated February 9, 2017; Michelle Good #6, dated January 17, 2017; Elsie Wuttunee #2, dated January 16, 2017; Eldon Wuttunee, dated January 16, 2017; Clinton Wuttunee, dated January 22, 2018; Dana Falcon, dated January 22, 2018.
[38] In admitting these affidavits, there is no prejudice to the Respondents as the Court can still assign what weight, if any, is to be given the filed affidavits and cross-examinations.
[39] I allow these affidavits and cross-examinations evidence into the record to ensure that all the evidence that could possibly be before the Court is so the matter can finally proceed.
C. Discontinuance against Parties
[40] Good discontinued the application against the Attorney General after the Rule 302 motion was successful.
[41] Counsel for the remaining Respondents requested that the matter be discontinued against the following: Howard McMaster (deceased), Sabrina Baptiste, Larry Wuttunee, former Chief Stewart Baptiste Jr., Shawn Wuttunee, Ryan Buglar and the Red Pheasant First Nation. Good agreed to discontinue against Howard McMaster, Ryan Bugler, Sabrina Baptiste, and the Red Pheasant First Nation.
[42] The matter was discontinued against those parties and they will therefore be removed from the style of cause.
[43] I will not entertain any of the arguments or make any finding regarding evidence against Howard McMaster (deceased) given that he has been discontinued against.
[44] After the hearing, Good wrote to the Court explaining that she changed her mind about discontinuing against the Red Pheasant First Nation. I subsequently issued written directions to the parties reminding them that the submissions are closed. Reasonable diligence before or during the hearing could have resolved this issue, and to continue to allow counsel to change her mind after the fact would result in this issue proceeding by installment. Although there are exceptions, counsel changing her mind is not one of them (Varco Canada Ltd v Pason Systems Corp, 2011 FC 467 at para 15).
IV. Issue
[45] The issue is:
Has the Applicant discharged its burden to satisfactorily prove that the FNEA has been contravened and if so, did it likely affect the election result?
V. The law
[46] The relevant provisions of the FNEA are as follows:
Ballots
Prohibition
14 A person must not, in connection with an election,
(a) provide a false name in order to obtain a ballot;
(b) possess a ballot that was not provided to them in accordance with the regulations;
(c) purchase a mail-in ballot that was issued to another person;
(d) sell or give away a mail-in ballot; or
(e) print or reproduce a ballot with the intention that the print or reproduction be used as a genuine ballot, unless that person is authorized to do so under the regulations.
Bulletins de vote
Interdictions
14 Nul ne peut, relativement à une élection :
a) demander un bulletin de vote sous un faux nom;
b) avoir en sa possession un bulletin de vote qui ne lui a pas été fourni en conformité avec les règlements;
c) acheter le bulletin de vote postal d’une autre personne;
d) vendre ou donner un bulletin de vote postal;
e) sauf s’il y est autorisé par règlement, imprimer ou reproduire un bulletin de vote dans l’intention que l’impression ou la reproduction soit utilisée comme bulletin authentique.
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.
Interdictions générales
16 Nul ne peut, relativement à une élection :
a) voter ou tenter de voter sachant qu’il est inhabile à voter;
b) inciter une autre personne à voter sachant que celle-ci est inhabile à voter;
c) faire sciemment usage d’un faux bulletin de vote;
d) déposer dans une urne un bulletin de vote sachant qu’il n’y est pas autorisé par règlement;
e) par intimidation ou par la contrainte, inciter une autre personne à voter ou à s’abstenir de voter, ou encore à voter ou à s’abstenir de voter pour un candidat donné;
f) offrir de l’argent, des biens, un emploi ou toute autre contrepartie valable en vue d’inciter un électeur à voter ou à s’abstenir de voter, ou encore à voter ou à s’abstenir de voter pour un candidat donné.
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.
Interdictions visant l’électeur
17 Nul électeur ne peut, relativement à une élection :
a) voter intentionnellement plus d’une fois à l’égard de chacun des postes de chef ou de conseiller;
b) accepter ou convenir d’accepter de l’argent, des biens, un emploi ou toute autre contrepartie valable pour voter ou s’abstenir de voter, ou encore pour voter ou s’abstenir de voter pour un candidat donné.
Secrecy of voting
18 Voting at an election is to be conducted by secret ballot.
Vote secret
18 Le vote à une élection se tient par scrutin secret.
Prohibition — elector
19 An elector must not, in connection with an election,
(a) show their ballot, when marked, to reveal the name of the candidate for whom the elector has voted, other than in accordance with the regulations; or
(b) in the polling station, openly declare for whom the elector intends to vote or has voted.
Interdictions visant l’électeur
19 Nul électeur ne peut, relativement à une élection :
a) montrer son bulletin de vote, une fois marqué, pour révéler le nom du candidat pour lequel il a voté, sauf en conformité avec les règlements;
b) dans un bureau de scrutin, déclarer ouvertement en faveur de qui il a l’intention de voter ou pour qui il a voté.
Contested Elections
Means of contestation
30 The validity of the election of the chief or a councillor of a participating First Nation may be contested only in accordance with sections 31 to 35.
Contestation de l’élection
Mode de contestation
30 La validité de l’élection du chef ou d’un conseiller d’une première nation participante ne peut être contestée que sous le régime des articles 31 à 35.
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.
Contestation
31 Tout électeur d’une première nation participante peut, par requête, contester devant le tribunal compétent l’élection du chef ou d’un conseiller de cette première nation pour le motif qu’une contravention à l’une des dispositions de la présente loi ou des règlements a vraisemblablement influé sur le résultat de l’élection.
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.
Duties of court clerk
(2) If the court sets aside an election, the clerk of the court must send a copy of the decision to the Minister.
Décision du tribunal
35 (1) Au terme de l’audition, le tribunal peut, si le motif visé à l’article 31 est établi, invalider l’élection contestée.
Transmission de la décision
(2) Lorsque le tribunal invalide une élection, le greffier expédie un exemplaire de la décision au ministre.
[47] The purpose of the FNEA is to provide alternative electoral processes for indigenous communities in Canada. A relatively recently proclaimed piece of legislation, the FNEA has received little judicial consideration to this point.
[48] The judicial principles and interpretative approach to the FNEA, and the provisions governing prohibited conduct during an election, have however been considered in Papequash v Brass, 2018 FC 325 [Papequash] and Cyr v McNab, 2016 SKQB 357 [Cyr], appeal allowed in part in McNabb v Cyr, 2017 SKCA 27 [McNabb], and Paquachan v Louison, 2017 SKQB 239 [Paquachan].
[49] The cases cited clarify the statutory test to set aside an election under section 31 and section 35(1) of the FNEA. The test requires the Applicant to establish that a provision was contravened and that the contravention likely affected the election result. Contraventions unlikely to have affected the result of the election will not trigger overturning the election. The requisite standard of proof for establishing this test is the balance of probabilities (Papequash at para 33; McNabb at para 36).
[50] Both Justice Barnes in this Court (Papequash) and the Saskatchewan Court of Appeal in McNabb have also adopted the Supreme Court of Canada’s approach with the Canada Elections Act used in Wrzesnewskyj v Canada (AG), 2012 SCC 55 (sub nom Opitz v Wrzesnewskyj [Opitz]) in interpreting the FNEA.
[51] The Saskatchewan Court of Appeal in McNabb, in citing Opitz, noted:
[26] It is clear from the minority reasons of the Supreme Court in Opitz that the presumption of regularity is reflected in the onus and evidentiary burden imposed on an applicant to demonstrate that a contravention that likely affected the result of an election has occurred. Using the language of CEA, McLachlin C.J.C., who wrote for the minority, explained:
[169] Election results benefit from a “presumption of regularity”: Dewdney Election Case, 1925 CanLII 314 (BC CA), [1925] 3 D.L.R. 770 (B.C.C.A.), at p. 771. This reflects the fact that the applicant bears the burden of establishing, on a balance of probabilities, that there were “irregularities … that affected the result of the election”: see Beamish, at para. 39. …
[emphasis added]
[52] In adopting the ruling in Opitz in their interpretation of the FNEA, the courts have confirmed that when alleging a breach of the FNEA, an applicant must establish a prima facie case, after which the burden switches to the respondent to refute it (Paquachan):
[23] The Burden of Proof: To assist in the implementation of the burden of proof to determine whether a contravention of the FNEA likely affected the result of the election, the framework offered by Justice Rothstein at para 61 in Opitz respecting the Canada Elections Act is instructive. First, the applicant must prove a prima facie case of irregularity (or in this instance, "contravention"), leaving to the respondent the opportunity to refute the alleged contravention or that the contravention likely did not affect the election result.
[53] In Opitz, the majority only dealt with “irregularities”. The type of contravention, then, is important and relevant.
[54] Not every contravention will justify triggering the overturning the election. As was held at paragraph 34 in Papequash, in cases involving technical procedural questions, a careful mathematical approach, like the “reverse magic number” test, may be utilized to establish the likelihood of a different outcome. In a case involving assertions of fraud, on the other hand, an annulment “may be justified regardless of the proven number of invalid votes”. Justice Barnes held at paragraph 34 of Papequash that the latter situation is “particularly the case where allegations of vote buying are raised…”
[55] Given the consideration by Justice Barnes and the Saskatchewan Court of Appeal, it also cannot be overlooked that this Court retains discretion on overturning elections, even in situations involving fraud or other forms of corruptions. In Opitz, for example, the majority stated that annulling an election would disenfranchise not only those whose votes were disqualified, but also for every elector who cast a vote. Therefore, assuming that the two-part test is met to establish a contravention of FNEA, the Court must carefully utilize its discretion before annulling an election.
[56] In this case, it was confirmed at the hearing with both remaining parties that this was not a situation that would need to have a “reverse magic number” test.
VI. Analysis
A. Evidence
[57] Pursuant to section 30 of the FNEA, the appeal proceeds as a judicial review. Evidence in a judicial review proceeding is dealt with by the Court through examination of the affidavits before it.
[58] Unfortunately, the record before me is complicated by numerous affidavits which included redacted affidavits, supplementary affidavits, and late filed affidavits.
[59] In the materials filed there were in total approximately 52 affidavits with 27 cross-examinations listed. At the start of the hearing, this evidentiary record was canvassed as the Prothonotary had not allowed a number of affidavits, and certain pieces of evidence had been withdrawn. Included in the 52 affidavits were two affidavits by affiants who were redacting their previous affidavits. There are multiple cross-examinations of several affiants on various affidavits. For example, there were six affidavits of Michelle Good in the file, and not all of them were properly before the Court or numbered correctly. This made the matter more complex and unnecessarily difficult to reconcile.
[60] Many of the affidavits contain hearsay evidence, argument, and irrelevant or inflammatory comments. This is unacceptable to the Court. This is inappropriate, and this is not a good use of judicial resources. Not only is such a record unfair to the Judge, but it is also unfair to the Respondents as the Respondents cannot know exactly what the relevant allegation is, or the specific evidence that supports the allegation. The Court has to unnecessarily deal with a mishmash of evidence that is comprised of volumes of affidavits, supplementary affidavits, cross-examinations and recanted affidavits.
[61] Attached as Appendix “A” is a list of the affidavits and their status as best as can be determined, notwithstanding the issues noted above.
[62] As noted above, many of the affidavits contain hearsay or double hearsay without meeting any principled exceptions to the hearsay rule. In addition, there were redacted affidavits, and affidavits attaching affidavits, that were unsworn and attached as exhibits to other affidavits. No weight will be given to hearsay evidence or to unsworn affidavits as per Rule 81 of the FCR.
[63] I also note that no independent evidence or corroborative evidence was given to support the Applicant’s allegation that many of the affidavits were crafted to be self-serving for a nefarious purpose.
[64] I was asked to make an inference as to the truth of the matter if an affidavit was not cross-examined on. In this exceptional matter, due to the number of affidavits, and a lack of direction on what specific allegations the evidence referred to, I will not make that inference. I will respect that the main witnesses on both sides were cross-examined, and it was only a few of the more outlier affiants that were not.
[65] Further support to do so is found in Cyr at paragraph 74, where Justice Schwann noted that drawing a negative inference from an absent witness would shift the statutorily imposed burden of proof onto the respondent. I find that as per the statute and the relevant case law, as was the holding in paragraph 50 of Cyr, the applicant must bear the legal burden of proof. I will examine the evidence of the affiants not cross-examined with the same lens as the cross-examined affiants.
B. Allegations
[66] Good did not set out in her Memorandum of Fact and Law the specific incidents and the corresponding evidence that would establish a prima facie case that met the test of “likely to have affected” the result of the election. Instead, Good made a running list of facts regarding the “corrupt practices” that took place at Red Pheasant, a “he said, she said”, and general accusations of actions that would breach the relevant sections of the FNEA. I will wade through the morass of affidavits and cross-examinations relevant to each allegation to make a finding. This too is unacceptable and made the matter lengthy and complex.
[67] As per the FNEA and the relevant jurisprudence, the issue that I must decide is whether, on a balance of probability the prohibited act occurred. If I find that the prohibited act occurred, I must determine whether the contravention affected the outcome of the election. Good no longer raises any allegations against Howard McMaster, so as noted above I will not deal with any allegations regarding Howard McMaster. Nor will I deal with any evidence against any of the parties that have been discontinued against or the evidence that related to decisions other than the 2016 decision.
[68] In the interest of justice, I have broadly diagrammed, from the written and oral submissions, what the specific allegations before the Court are. It is on the basis of the specific allegations that I must make my finding.
C. Particular Evidence
[69] Before I lay out the specific and relevant allegations in front of me, I will deal with the evidence of Jeffery Tisnic (Meechance) and Nisha Wuttunee. As well, I will look at the circumstances related to Chief and Councillors giving cash to members of the band before I deal with the specific allegations as this is pervasive theme throughout the evidence.
(1) Jeffery Tisnic (Meechance)
[70] Jeffery, born on February 5, 1997, also goes by the names “Jeffery Meechance”, “Jeffery Tisnic Meechance” or “Jeffery Tisnic” [Jeffery]. Jeffery filed an affidavit in support of the appeal. He was crossed-examined on his affidavit on February 10, 2018.
[71] At the time of the cross-examination, he was living in or around Edmonton managing Tim Hortons’ restaurants, and had been so occupied for approximately three years. Jeffery had moved to Edmonton to take the job at Tim Hortons sometime after the election. Before Edmonton, Jeffery had lived in or around Saskatoon where he had obtained his Grade 12 education.
[72] Jeffery voted in the election with a mail-in ballot that he alleges he was paid for by Gary Nicotine [Gary]. He further stated on cross-examination that Gary never provided support, whether in the form of foodstuff or financial support to himself or his family but Chief Clinton Wuttunee [Chief Clinton] has. Though Jeffery stated that Chief Clinton provided financial support only for the purpose of purchasing ballots, and did not provide any other kind of financial support to him. Jeffery asserted that Mandy Cuthand [Mandy] gave him $40 via e-transfer to purchase his vote, and Henry Gardipy [Henry] gave him between $60 to $100 to purchase his vote.
[73] On page 297 of the recorded transcript, Jeffery stated on the record :
A.—well, I came outside with my ballot, and then I didn't let him take it, and he gave me about, like, 60 to $100. I'm not too sure, like, how much it was because it was two years ago, but -— yeah. I didn't let him take it. He was trying to take it, but I didn't let him take it.
Q. Okay.
A. Yeah. ‘Cause I know I could get more money for it, like, if I get more ‘X’s, yeah.
Q. Okay. So, you were in the business of trying to sell your ballot?
A. Yes.
[74] Later Jeffery during cross-examination said that he absolutely was not in the business of selling his ballot, and when he was reminded he was under oath, said, “No, I was needing financial help because I was going through a –hard times”. Jeffery asserted at this point during the cross-examination that he needed financial support because he was not working.
[75] Jeffery admitted on cross-examination that he tried to sell his vote by contacting all of the current Chief and Council, but he said he did not attempt to sell his vote to anyone that he was supporting, such as the former Chief Baptiste:
Q. Ms. Good- He asked the question, did you text all of the current Chief and Council.
A. I guess so, yes.
Q. That wasn’t so hard to answer, was it?
…
Q. What about Stewart Baptiste, did you ask him?
A. No.
Q. Did you ask Sandra Arias?
A. I don’t know who that is.
[76] On Facebook, Jeffery purportedly attempted to shine a light on corruption in the Red Pheasant First Nation. At the end of his post, Jeffery, as per Exhibit “C” of his affidavit, finished his message with the hashtags of #IdleNoMore, #NoMoreCorruption, #Decolonize, and #SetThemUp. The hashtag #SetThemUp seems to indicate the potential will to bring ill-repute to the relevant parties. This is indeed troubling.
[77] Even as a first time voter, Jeffery decided that he would try and sell his vote for money and appeared non-repentant about it. During the cross-examination, Jeffery was asked about how he came up with the strategy of deciding to sell his vote by contacting candidates. He answered as such:
A.—it’s a way to make money. We did not think it was wrong. We had to survive. We need to put food in our bellies, we need to put gas in our vehicles. People did not know it was wrong.
[78] Jeffery was also questioned about how Henry had helped Raelynn (Jeffery’s sister) and Jeffery move from one house to another. While Jeffery admitted to this, he also stated that he had no idea any of these people had been helping his family over the years.
[79] Jeffery further stated on cross-examination that he was taken advantage of because he is a first time voter.
[80] Indeed, I do not find him to be a credible witness. His credibility was further diminished by a number of flippant, inconsistent, and implausible statements. For example, Jeffery had texted “LOL” in response to an apparent threat against him. Maintaining that he considered this a threat on cross-examination, Jeffery stated that he wrote “LOL” as he was “being hysterical”.
[81] Jeffery was also cross-examined as to when he texted to request Chief Clinton for money for his father’s funeral expenses. While Good objected to this line of questioning, as the text messages were not exhibits to Jeffery’s affidavit. I note the texts were marked as exhibits to his cross examination. Jeffery asserted that the texts referenced on the cross-examination were never sent. I have no evidence they were not sent and in fact, the Respondents produced them so it can be inferred they were sent. This inconsistency with documentary evidence further impugns Jeffery’s credibility as a witness.
[82] The significant contradictions in Jeffery’s evidence given in cross-examination come into further stark contrast when compared against Henry’s evidence given in cross-examination and Chief Clinton’s evidence.
[83] The evidence given by these individuals cannot be so easily explained as being self-serving for the Respondents; rather the contradictory evidence given by both individuals is corroborated by exhibited documentation. For example, Jeffery had texted Chief Clinton on April 10, 2018, that “…you actually help the people. First time in Chief history. I am grateful for all the help you do for me and my family and relations”. When cross-examined on this, Jeffery was evasive and stated that he had never written such a message. Such an answer, while under oath, further impugns Jeffery’s credibility.
[84] Jeffery even took the opportunity to make misrepresentations on non-material facts. For example, Jeffery stated that Henry is his relative, but when asked about this at cross-examination, he could not provide any explanation as to how they were related.
[85] Gary provided evidence that he is a friend of Jeffery’s mother and has helped the family out over the span of decades. As stated by Gary when cross-examined on this issue, the help provided has been through financial means, as well as other forms of assistance, and that Gary considered those forms of assistance to be part of his job as a councillor. Gary affirmed that he did not give Jeffery a list of candidates to vote for.
[86] In one instance, Jeffery asked for financial support from Gary via text message. In the exhibited text exchange, Jeffery was very persistent that he should be given $60, so much so that Gary went to his house. Gary stated on the record that when he went to the house, Gary told Jeffery that he wasn’t there to buy a vote, but would help him if he nee