Whitford v. Red Pheasant First Nation

Whitford v. Red Pheasant First Nation
Court (s) Database
Federal Court Decisions
Date
2022-03-30
Neutral citation
2022 FC 436
File numbers
T-474-20
Decision Content
Date: 20220330
Docket: T-474-20
Citation: 2022 FC 436
Ottawa, Ontario, March 30, 2022
PRESENT: The Hon Mr. Justice Henry S. Brown
BETWEEN:
MARY LINDA WHITFORD AND ALICIA MOOSOMIN
Applicants
and
CLINTON WUTTUNEE, LUX BENSON, JASON CHAKITA, MANDY CUTHAND, DANA FALCON, HENRY GARDIPY, GARY NICTOINE, SAMUEL WUTTUNEE, SHAWN WUTTUNEE, BURKE RATTE, and RED PHEASANT FIRST NATION
Respondents
JUDGMENT AND REASONS
Table of Contents
I. Nature of the matter 4
A. Summary of conclusions, definitions, and note re references to the records 5
(1) Summary of mail-in ballot procedures and conclusions 5
(2) A note on references 8
(3) Needs of band members for financial support and Band Member Assistance [BMA] 9
II. Facts 10
A. Statutory Regime 10
B. Background facts 11
(1) March 20, 2020 Election Results 13
(2) Procedural background and Justice Aylen’s Order dated August 30, 2021 15
III. Issues 25
IV. The Law 26
A. Relevant provisions of the First Nations Elections Act, SC 2014, c 5 [FNEA] 26
B. Relevant provisions of the First Nations Elections Regulations, SOR/2015-86 [FNER] 28
C. Jurisprudence 33
(1) In Summary 43
(2) Change in the Respondents’ position in oral argument 46
(3) Determination of the Respondents’ objections to tabs in the Applicant’s Record 53
(a) Re Tabs 86 – 251: Exhibits put to witnesses being cross-examined without advance notice or ruling on admissibility 54
(b) Re Tabs 252 – 260: Admissibility of Mr Ratte’s Reply to Undertakings of May 18, 2021, Tabs 252 – 260 58
(i) Mr Ratte’s Affidavit of July 23, 2021 70
(ii) Direction to produce May 18, 2021 RTU for examination 75
V. Analysis 77
A. Outline of facts 77
(1) The team of candidates and supporters 78
(2) Those who engaged in serious electoral fraud 79
(3) Requesting Mail-in Ballots for others 79
(4) Leroy Nicotine Jr. 80
(5) Driving voters to the polls 82
(6) Shelley Wuttunee 82
(7) Assistance with Voter Declaration forms, non-compliance with subsection 5(6) of FNER (witness attestation to elector’s choice of candidate where assistance given) 83
(8) Red Pheasant employees 84
(9) Election result generally 85
(10) Many Request for Mail-in Ballots 86
B. Role of Mr Ratte and his email exchange with Indigenous Services Canada regarding Requests for Mail-in Ballots 87
(1) Naming Mr Ratte and his role in this contestation 87
(2) Allowing First Nation members to distribute Request for Mail-in Ballot forms to other members 88
C. Ballot-by-ballot review of alleged FNEA and or FNER contraventions and or serious electoral fraud 90
(1) Robin Dean Wuttunee 91
(a) Admissibility of transcripts and CD copies of Robin Wuttunee’s phone calls from ERC to Councillor Samuel Wuttunee and Councillor Jason Chakita 93
(b) Exchange of lists between Chief Wuttunee and Mr Ratte of electors with whose requests for Mail-in Ballots were accepted or not 105
(c) Falsification of elector identification documents (ID) 115
(2) Rickell Frenchman and Romellow Meechance 130
(3) Breanna Wahobin and Jerette Wahobin 143
(4) Michael Ernest Stevens and Ardella Benson 148
(5) Arnold Bruce Wuttunee 150
(6) Tomas Pritchard 155
(7) Dion Bugler 160
(8) Paul Tobaccojuice 166
(9) Wendall John Albert 175
(10) Veronica Whitford 179
(11) Wesley Wuttunee 186
(12) Burton Ward 190
(13) Voter Declaration and mail-in ballots where elector voted in person 193
D. Summary of conclusions regarding Respondents and named supporters 198
(1) Chief Clinton Wuttunee 198
(2) Councillor Gary Nicotine 203
(3) Councillor Lux Benson 204
(4) Councillor Jason Chakita 205
(5) Councillor Mandy Cuthand 205
(6) Councillor Dana Falcon 206
(7) Councillor Henry Gardipy 206
(8) Councillor Samuel Wuttunee 207
(9) Councillor Shawn Wuttunee 207
(10) Leroy Nicotine Jr. 208
(11) Shelley Wuttunee 209
(12) Band employees Cody Benson (Band Manager), Austin Ahenakew (Chief Financial Officer) and Deloris Peyachew (Indian Registry Administrator) 209
VI. Conclusion 210
VII. Costs 210
I. Nature of the matter
[1] This is an application pursuant to section 31 of the First Nations Elections Act, SC 2014, c 5 [FNEA] contesting the validity of the March 20, 2020 Red Pheasant First Nation [Red Pheasant] elections for Chief and Councillors [Election]. Red Pheasant is an Indian Band within the meaning of the Indian Act, RSC 1985, c I-5 [Indian Act].
[2] The Respondent Burke Ratte [Mr Ratte] was this First Nation’s Electoral Officer and is named only to facilitate discovery and source documents.
[3] The Respondent Red Pheasant is named for the limited purpose of a potential cost award against it in relation to these proceedings.
[4] The other Respondents are the successful Chief and Councillors in the Election, who I will henceforth refer to as the Respondents, given the limited roles of Mr Ratte and Red Pheasant.
[5] The Applicants Mary Linda Whitford and Alicia Moosomin are electors and members of Red Pheasant.
[6] The Applicants allege the Respondents and others acting on their behalf engaged in various forms of serious electoral fraud in the Election. The Applicants seek 1) an Order setting aside the elections of the Chief and all 8 Councillors of Red Pheasant, pursuant to sections 31 and 35 of the FNEA and 2) costs on a solicitor and client basis jointly and severally against the Respondents and Red Pheasant.
[7] The Respondents oppose the contestation and ask that it be dismissed with costs on a solicitor client basis. I agreed to entertain cost submissions after a decision on the merits because at that time Red Pheasant will require separate legal representation on the issue of costs.
[8] Mr Ratte asked that the application be dismissed and proposed an all-inclusive cost award of $20,000.00 if he is successful.
[9] Red Pheasant did not make cost submissions. The Court was told at the hearing that Red Pheasant is now separately represented for the purpose of making cost submissions after the release of this decision on the merits.
A. Summary of conclusions, definitions, and note re references to the records
(1) Summary of mail-in ballot procedures and conclusions
[10] The Applicants seek to set aside the elections of the Chief and all 8 Councillors of the Red Pheasant First Nation under FNEA and or FNER as construed and applied in jurisprudence. FNEA permits [“may”] this Court to set aside such elections where two conditions are met: 1) a provision of FNEA is contravened (per section 31), and 2) the contravention is likely to have affected the result of the election (per subsection 35(1)). The “magic number” test is used in the second part, and asks if the number of rejected votes is equal to or greater than the successful candidate's margin of victory (Opitz v Wrzesnewskyj, 2012 SCC 55 [Opitz] at para 73).
[11] To protect the integrity of FNEA elections this Court (and the Superior Courts) may also annul FNEA election results where the integrity of the election was corrupted by serious electoral fraud (Papequash v Brass, 2018 FC 325 [Papequash FC] at para 36). In this respect, jurisprudence establishes that attempts by electoral candidates or their agents to purchase the votes of constituents are an insidious practice that corrodes and undermines the integrity of any electoral process (Papequash FC at 38). Put another way, in Gadwa v Kehewin First Nation, 2016 FC 597 [Gadwa] at para 88, a candidate who engages in vote buying is attempting to corrupt the election process.
[12] Therefore, regardless of the number of votes a candidate purchased, or attempted to purchase, and regardless of whether the candidate wins the election by a greater margin than the number of votes that were purchased (i.e. less than the magic number), this may not save the candidate; in the Court’s discretion, his or her election may and in some cases must be vitiated. This is the case because fraud, corruption and illegal election practices are serious (Opitz at para 43, Gadwa at para 88).
[13] The central and principle issue in this case is whether and to what extent any of the Respondents were involved in vote buying. If they were, they were involved in serious electoral fraud for which reason their election may be annulled regardless of the number of votes obtained. Vote buying and selling are also contraventions of subsections 16(f) and 17(b) respectively of FNEA.
[14] The vote buying in this case almost entirely related to Mail-in Ballots. The vote buying took place in relation to two steps involved in obtaining and sending back a Mail-in Ballot. The first step in the Mail-in Ballot process is for an elector to send to the Elections Officer a Request for Mail-in Ballot per section 15 of FNER in prescribed form (5-D), together with a copy of the elector’s ID and his or her address. Notably, a Request for Mail-in Ballot may be sent to the Electoral Officer electronically, that is by photo text message (a text message accompanied by an electronic photograph of the Request for Mail-in Ballot form), in addition to being sent by mail or by hand.
[15] If the request is accepted the second step entails the Electoral Officer mailing the elector, at the address given, a package containing a Mail-in Ballot and a Voter Declaration form. Upon receipt, of the package, the elector marks the Mail-in Ballot, puts it into a sealed envelope, and mails or delivers it to the Electoral Officer in a package which must also contain a Voter Declaration form duly signed by the elector and witnessed per subsection 17(1) of FNER. Notably, while an elector may ask for the assistance of another person to mark their ballot, in that case the Voter Declaration form must not only be signed by a witness who attests the elector is the person whose name is set out in the form, but which also attests that the ballot was marked in the manner directed by the elector (subsection 5(6) of FNER).
[16] While the Applicants established a number of contraventions of FNEA, in my view none of the contraventions are likely to have affected the result of the Election in that none triggered the magic number per Opitz. That is, in no case was the difference between the successful candidate’s vote equal to or greater than the successful candidate's margin of victory.
[17] However, I am satisfied on a balance of probabilities that several of the Respondent candidates engaged in serious electoral fraud namely vote buying and related activities, such that the integrity of their elections were corrupted. In the result, in the exercise of the Court’s discretion, the elections of the Respondents Chief Clinton Wuttunee and Councillor Gary Nicotine will be annulled regardless of the number of votes they obtained. I also find on a balance of probabilities that Councillors Lux Benson, Jason Chakita, Mandy Cuthand, Henry Gardipy, Samuel Wuttunee, and Shawn Wuttunee engaged in serious electoral fraud, but on a lesser scale, such that their elections might be, but in my discretion are not annulled. In addition I find on a balance of probabilities that supporters Leroy Nicotine Jr. and Shelley Wuttunee engaged in multiple instances of serious electoral fraud, in respect of which the FNEA gives this Court no remedy to impose.
(2) A note on references
[18] The material filed in this contestation totalled 7,565 pages including authorities. Where I refer to the specific record, I use the shorthand AR to mean Applicants’ Record, and RR for Respondents’ Record. Because the records are filed in PDF format, the page numbers on the hard copy do not match the PDF page number used in the PDF search bar at the bottom of the screen. Therefore I have provided both, the first is the reference to the hard copy page number, and the second refers to the PDF search bar.
(3) Needs of band members for financial support and Band Member Assistance [BMA]
[19] A defence frequently raised by the Respondents is that band members of this First Nation require assistance throughout the year, and their needs did not stop during the Election. The Chief and Councillors therefore should not be faulted for giving money to First Nation members during the Election, provided it seems such assistance is provided as a coincidence and did not entail the purchase of votes. In this connection there is evidence First Nations received only $255 a month from Red Pheasant, and many needed far more. It was said the calls came in to the Chief and Councillors every day and in some cases all day long.
[20] I do not doubt the needs of these First Nation members arise throughout the year. However Red Pheasant has a procedure in place by which members in need may be paid Band Member Assistance [BMA] with the authority of the Chief and a Councillor, which requests are dealt with on a less formal basis without Council meetings. That said, in fact and as Chief Wuttunee and Chief Financial Officer Austin Ahenakew both testified, there are special forms to be completed before BMA would be paid.
[21] Thus I conclude this First Nation has records of legitimate BMA payments. It is also apparent the required forms should be kept for audit purposes. I see no reason why such records would not be kept for BMA payments made during an election period.
[22] I endorse what my colleague Justice McVeigh observed in Good v Canada (Attorney General), 2018 FC 1199 [Good] which involved this same First Nation:
[295] This leads me to make an unrequested observation that the Respondents have put themselves in situations that bring their actions into question by giving money during election campaigns to individuals that request it when they are in times of need. While I recognize that members of the band will still need support during an election-period, many solutions exist. For example a moratorium on candidates giving out financial help during elections could be supplemented by having a separate fund and an independent person to administer the provision of cash for these emergencies.
II. Facts
A. Statutory Regime
[23] This contestation is brought under the FNEA, which came into force in April of 2015 along with the associated First Nations Elections Regulations, SOR/2015-86 [FNER], section 31 of which requires the matter proceed by application. As summarized by Justice McVeigh Good, supra, “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.”
[24] In order to fall under the FNEA, a First Nation such as Red Pheasant must opt in. To opt into the provisions, a Band Council Resolution in favour of elections governed by the FNEA must be passed by the First Nation and submitted to the Minister, who adds the First Nations to the FNEA Schedule if relevant criteria are met (see section 3). As per Justice McVeigh in Good at para 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.”
B. Background facts
[25] Every recent election of the Red Pheasant First Nation has been appealed. The most recent previous appeal also involved the current chief, Chief Clinton Wuttunee [Chief Wuttunee], and was considered by this Court in Good, supra. There Ms. Good applied for judicial review of the March 18, 2016 band election in which Chief Wuttunee was elected Chief. Justice McVeigh declined to set aside the 2016 election, finding “[t]he Applicant has not discharged its burden to satisfactorily prove that the FNEA has been contravened and even if there was a contravention found in the evidence it is not likely to have affected the results of the 2016 election.” Costs and disbursements in a lump sum of $100,000.00 were awarded to the respondents (Chief Wuttunee and Councillors Lux Benson, Mandy Cuthand, Dana Falcon, Henry Gardipy, and Shawn Wuttunee). Ms. Good is not a party to the present application.
[26] The case at bar concerns the election of Chief Wuttunee and eight Councillors on March 20, 2020. The Applicants allege each of the Respondents together with and or their agents or persons acting on their behalf contravened the FNEA, the FNER and/or other applicable laws and engaged in electoral corruption, which contraventions include, but are not limited to, vote buying, forging Requests for Mail-In Ballots, paying electors to request their Mail-in Ballots, forging Mail-in Ballot Voter Declaration Forms and forging identity documents.
[27] The agents or persons acting on behalf of the Respondents are not named as Respondents. However they are named in this proceeding and were served with it. They appeared through the same counsel as the named Respondents. They are alleged to include but are not limited to Shelley Wuttunee (wife of Councillor Shawn Wuttunee), Leroy Nicotine Jr., Cody Benson (Band Manager for Red Pheasant and son of Councillor Lux Benson), Austin Ahenakew (Chief Financial Officer for Red Pheasant) and Deloris Peyachew (Indian Registry Administrator for Red Pheasant).
[28] As summarized by Justice Aylen as Case Management Judge (the Amended Notice of Application itself is 20 pages long; the Amended Notice of Motion was approved by Order of Prothonotary Molgat April 6, 2021) by Order dated August 30, 2021 [Tab 30 of the Applicant’s Record], the Applicants plead:
A. The Participants unlawfully possessed a large number of mail-in ballots (which were not their respective mail-in ballots) which they forged and thereafter filed with Mr. Ratte;
B. Mr. Ratte was deceived by the Participants and others when he received forged documents and unknowingly accepted a large number of requests for mail-in ballots on behalf of other electors directly from the Participants by text message;
C. Several persons attended polling stations and were permitted by Mr. Ratte to deposit several mail-in ballots, notwithstanding the limitation that an elector may only vote once;
D. Mr. Ratte was deceived by the Participants and others when he received forged documents and unknowingly mailed and delivered a large number of mail-in ballots to persons other than the electors in question; and
E. Mr. Ratte has failed to deliver certified election results.
(1) March 20, 2020 Election Results
[29] I accept the affidavit evidence of Electoral Officer Burke Ratte [Mr Ratte], dated August 27, 2020, that 1,869 eligible electors were registered to vote in the Election.
[30] According to the “Statement of Votes” attached as Exhibit “D” to the same affidavit [RR 0317, PDF 0322], a total of 1084 ballots were cast for Chief with 6 rejected at the ballot box. Chief Wuttunee received 648 votes. The runners-up were Todd Baptiste who received 424 votes, and Lester “George” Nicotine who received 6 votes.
[31] 1084 ballots were cast for Councillors with 1 rejected. Votes obtained for Councillors were:
· Councillor Henry Gardipy: 637 votes
· Councillor Shawn Wuttunee: 634 votes
· Councillor Lux Benson: 619 votes
· Councillor Jason Chakita: 615 votes
· Councillor Dana Falcon: 607 votes
· Councillor Gary Nicotine: 599 votes
· Councillor Samuel Wuttunee: 597 votes
· Councillor Mandy Cuthand: 585 votes
[32] The runners up were:
· Angus (Peyachew) Donna: 252 votes
· Stewart Sr. Baptiste: 238 votes
· Keith (Tyson) Wuttunee: 234 votes
· Kellie Wuttunee: 167 votes
· Chuckie Harriet Nicotine: 159 votes
· Dickie Lee Baptiste-Bull: 149 votes
· Alvin Leroy Nicotine: 145 votes
· Charlotte Benson: 142 votes
· Charles Meechance: 139 votes
· Sabrina Theresa Peyachew (Baptiste): 139 votes
· Alvin Baptiste: 126 votes
· Michael (Mike) Wuttunee: 126 votes
· Glen (Peanut) Bugler: 102 votes
· Gerald Meechance: 96 votes
· Edgar Baptiste: 77 votes
· Carolyn Rose Kiskotagan: 75 votes
· Elvin Fredrick Nicotine: 74 votes
· Langford Douglas Wuttunee: 72 votes
· Margaret (Bepee) Nicotine (Benson): 69 votes
· Ida Wuttunee: 68 votes
· Jacob Moosomin/Moosuk: 68 votes
· Dennis Russel Nicotine: 64 votes
· Lynale Benson: 60 votes
· Deanna Bugler Arcand: 55 votes
· Rudy W. Wuttunee: 52 votes
· Andrea Nicotine: 27 votes
· Ellen Cuthand: 17 votes
· Trevor (Topdog) Cuthand: 11 votes
[33] As deposed by Mr Ratte at paras 9-12 [RR 0177-0180, PDF 0182-0185], a total of 748 Request for Mail-in Ballots were received and accepted. 684 Mail-in Ballot packages were received by the Electoral Officer of which 32 were rejected.
[34] Mr Ratte’s Reply to Undertakings dated May 18, 2021 [“May 18, 2021 RTU”] reveal the following individuals submitted Requests for Mail-in Ballots to Mr Ratte by photo text message:
1. Chief Wuttunee submitted 521 [AR Tab 253]
2. Councillor Gary Nicotine submitted 164 [AR Tab 254]
3. Councillor Shawn Wuttunee submitted 24 [AR Tab 255]
4. Councillor Dana Falcon submitted 18 [AR 256]
5. Councillor Henry Gardipy submitted 25 [AR Tab 257]
6. Councillor Mandy Cuthand submitted 49 [AR Tab 258]
7. Councillor Samuel Wuttunee submitted 31 [AR Tab 259]
8. Band Manager Cody Benson submitted 22 [AR Tab 260]
[35] Parenthetically, the Respondents objected to Mr Ratte’s May 18, 2021 RTU forming part of the evidence, however as discussed below, I find no merit in that objection.
(2) Procedural background and Justice Aylen’s Order dated August 30, 2021
[36] As with the election of 2018 considered by Justice McVeigh in Good, this case had extensive case management because the parties were unable or unwilling to work out many issues. The proceedings were marred by antagonism and refusals to co-operate.
[37] The matter was originally case managed by Prothonotary Molgat. As it moved closer to a hearing, it became case managed by Justice Aylen. Justice Aylen heard a number of motions – including motions brought by both sides to strike all affidavits filed by the other – resulting in Justice Aylen’s August 30, 2021 Order.
[38] Justice Aylen criticized the conduct of this litigation:
[2] With the exception of the Respondent, Mr Ratte, and his counsel, the conduct of the parties and their counsel throughout this proceeding has left much to be desired. Over the last 16 months, the parties and their counsel were repeatedly warned by the previous Case Management Judge and then by me (following my appointment in June 2021) that their behaviour to date has shown a shocking disregard for the principle of proportionality, as well as an unacceptable unwillingness or inability to communicate or otherwise cooperate in advancing the proceeding in an efficient manner.
[39] Justice Aylen’s Order dated August 30, 2021, dealt with six motions. Materially for these purposes Justice Aylen Ordered as follows; my comments follow where required.
[40] Regarding the FIRST MOTION, Justice Aylen Ordered:
1. The Applicants’ motion for an order that Mr. Stooshinoff and the firm of Stooshinoff Bitzer be removed as counsel of record and disqualified from acting for any of the parties is dismissed, without prejudice to the Applicants’ right to seek similar relief in relation to the cost phase of the application.
[Court Comment: This is one of the reasons costs will be determined after this Decision is released. The Applicants have appealed this part of the Order to the Federal Court of Appeal.]
2. The Applicants shall pay to the Respondents, Clinton Wuttunee, Lux Benson, Jason Chakita, Mandy Cuthand, Dana Falcon, Henry Gardipy, Gary Nicotine, Samuel Wuttunee, Shawn Wuttunee and the Red Pheasant First Nation, their costs of the motion to remove Mr. Stooshinoff as counsel of record, with the quantum of costs to be fixed by the hearings judge.
[Emphasis added]
[Court Comment: These costs will be determined after this Decision is released. The Applicants have appealed this part of the Order to the Federal Court of Appeal; a decision is reserved.]
[41] Regarding the SECOND MOTION, Justice Aylen Ordered:
8. The affidavit of John Benson sworn August 27, 2020 is hereby struck.
[Court Comment: The Affidavit was struck because of improper conduct by Respondents’ counsel Mr. Stooshinoff during Mr Benson’s cross examination including as found Justice Aylen: “John Benson repeatedly turns his back to the Court Reporter (while on video) despite repeated requests to turn around so that his face could be seen”, and “Mr. Stooshinoff not only encouraged this behaviour, but engaged in repeated private conversations with the witness during his cross-examination, even after such conversations were repeatedly objected to by counsel for the Applicants.” Therefore, Justice Aylen was satisfied that “this misconduct has had the effect of frustrating the cross-examination of John Benson and demonstrates a complete disregard for this proceeding.”]
9. The balance of the Applicants’ motion to strike the affidavits relied upon by the Respondents is dismissed.
10. The Applicants’ request for an order compelling the Respondents [including Mr Ratte, ed.] to answer all questions refused from the cross-examinations of the Respondents’ affiants is dismissed, without prejudice to the right of the Applicants to ask the hearings judge to draw an adverse inference from the affiants’ refusals to answer the questions.
[Emphasis added]
[Court Comment: I have drawn many adverse inferences where appropriate from refusals to answer relevant questions on cross-examination.]
11. The Applicants’ request for an order compelling the Respondents to answer all undertakings given at the cross-examinations of the Respondents’ affiants is dismissed.
12. The Applicants’ request for an order compelling the Respondents’ affiants to attend for further cross-examination is dismissed.
[Court Comment: The Applicants have appealed parts 9, 10, 11 and 12 of this Order to the Federal Court of Appeal. A decision of the Federal Court of Appeal is reserved.]
[42] Regarding the THIRD MOTION, Justice Aylen Ordered:
14. The Applicants are granted leave, pursuant to Rule 312, to file the affidavit of Tomas Pritchard sworn February 8, 2021.
15. The Respondents shall serve, and file proof of service of, any additional affidavit(s) to respond to the affidavit of Mr. Pritchard by no later than September 13, 2021.
16. The parties shall be afforded an opportunity to conduct cross-examinations in relation to the affidavit of Mr. Pritchard and any other affidavit(s) served by the Respondents in response thereto. The parties shall complete any such cross-examinations by no later than October 4, 2021. In relation to such cross-examinations:
(a) The party tendering the affiant shall accept service of any Direction to Attend and attendance money.
(b) Any dispute regarding a request for production in a Direction to Attend shall be raised with the Court forthwith and shall be addressed by the Court in advance of the cross-examination at issue, by way of informal motion to be heard at a case management conference.
(c) The parties shall cooperate in the scheduling of the cross-examinations. Should the Court find that any party has failed to do so, the Court will impose cost sanctions against such party and their counsel, if appropriate.
(d) The parties shall confirm the cross-examination schedule with the Court by no later than September 24, 2021. If the parties are unable to agree on a schedule for the cross-examinations, they shall so advise the Court by no later than September 24, 2021 and at that time provide the Court with their respective proposed schedules and the Court will unilaterally impose a schedule based on the proposed schedules of the parties.
17. There shall be no award of costs in relation to the Rule 312 motion.
[Court Comment: The Applicants appealed para 17 of this Order to the Federal Court of Appeal. The Respondents seek a variance so that CDs of certain telephone conversations by Robin Wuttunee from prison are not allowed in evidence. I deal with this issue in these Reasons. The Respondents also asked for a stay of this hearing but no stay was granted. A decision of the Federal Court of Appeal is reserved.]
[43] Regarding the FOURTH MOTION, Justice Aylen Ordered:
3. The Respondents’ motion for relief pursuant to Rule 94(2) in relation to the Direction to Attend dated June 9, 2020 and served on Clinton Wuttunee is dismissed as moot. Costs of the motion shall be payable in the cause.
[44] Regarding the FIFTH MOTION, Justice Aylen dealt with requests by the Respondents to be relieved of their obligation to produce certain documents. Justice Aylen agreed to reduce the number of documents, however she ordered the Respondents affected to produce a narrower range of documents:
4. The Respondents’ motion for an order pursuant to Rule 94(2) that the Respondents’ affiants, Clinton R. Wuttunee, Dana Falcon, Gary Nicotine, Henry Gardipy, Jason Chakita, John Benson, Lux Benson, Mandy Cuthand, Samuel Wuttunee, Shawn Wuttunee, Austin Akenakew, Cody Benson and Shelly Wuttunee, be relieved from the production of documents sought by the Applicants in their Directions to Attend dated September 4, 2020 and all subsequent Directions to Attend served by the Applicants is granted, with the exception of the following requests for production:
(a) In relation to the Directions to Attend served on Clinton Wuttunee:
(i) All emails, letters, text messages, Facebook messages, or other correspondence between January 1 and March 20, 2020 in his possession, power or control that include Burke Ratte.
(ii) All emails, letters, text messages, Facebook messages, or other correspondence between January 1 and March 20, 2020 in his possession, power or control that include Robin Wuttunee or anyone on his behalf, or that relate or refer to Robin Wuttunee.
(iii) All communications that he had with the family of Arnold Bruce Wuttunee referred to at paragraph 16 of his affidavit.
(iv) All documents referring or relating to him looking into the matter for Robin Dean Wuttunee and being advised that he was not eligible to vote, as referred to at paragraph 26 of his affidavit.
(v) All emails, letters, text messages, Facebook messages, or other correspondence between January 1 and March 20, 2020 in his possession, power or control that include, or that relate or refer to, Patricia Bird.
(b) In relation to the Directions to Attend served on Austin Ahenakew:
(i) The “directive” referred to at paragraph 15 of his affidavit and documents referring or relating to same.
(c) In relation to the Directions to Attend served on Henry Gardipy:
(i) With reference to paragraph 5 of his affidavit, all documents referring or related to the request made by Michael Earnest Stevens that Mr. Gardipy assist him with his D-5 request for a mail-in ballot.
(d) In relation to the Directions to Attend served on Cody Benson:
(i) All documents referring or relating to the decision to grant a Band Member Assistance payment of $400 to Heather Meechance referred to at paragraph 13 of his affidavit, and all documentation referring or relating to the payment of same to Heather Meechance.
(e) In relation to the Directions to Attend served on Gary Nicotine:
(i) All emails, letters, text messages, Facebook messages or other correspondence requesting financial assistance that he received from Heather Meechance regarding her request for “help to buy groceries” and his response referred to at paragraph 16 of his affidavit.
(ii) All documents requesting or relating to the decision to grant a Band Member Assistance payment of $400 to Heather Meechance referred to at paragraph 16 of his affidavit, and all documentation referring or relating to the payment of same to Heather Meechance.
(f) In relation to the Directions to Attend served on Jason Chakita:
(i) All emails, letters, text messages, Facebook messages or other correspondence between January 1 and March 20, 2020 between him and Robin Dean Wuttunee or anyone on his behalf.
5. The documents ordered to be produced in paragraph 4 shall be provided to the Applicants by no later than September 13, 2021.
6. The Applicants shall pay to the Respondents their costs of the Rule 94(2) motion referenced in paragraph 4 in the amount of $10,000.00, inclusive of fees, disbursements and taxes.
[Court Comment: The Applicants appealed parts 4 and 6 of this Order to the Federal Court of Appeal; its decision is reserved.]
[45] Regarding the SIXTH MOTION, Justice Aylen Ordered:
7. The Respondents’ motion to strike the affidavits relied upon by the Applicants is dismissed.
13. The costs of the two motions to strike the affidavits shall be determined by the hearings judge.
[Emphasis added]
[Court Comment: I will determine costs regarding both motions after the release of this Decision.]
[46] The Applicants appealed the Order of Justice Aylen to the Federal Court of Appeal on September 8, 2021. The Respondents moved to vary. The appeal book is filed. Both the Applicants and Respondents have filed their Memoranda. The appeal was set down for a hearing on March 15, 2022. Judgment is reserved.
[47] I will decide the issues before me as they stand and given the various Orders of Justice Aylen.
[48] Both parties made submissions in response to the particulars set out in the August 30, 2021 Order of Justice Aylen, exchanged multiple letters but continued to disagree. In the result Justice Aylen made further Orders dated September 28 and October 8, 2021:
1. The cross-examination of Mr. Pritchard by the Respondents (other than Mr. Ratte) shall proceed on September 30, 2021 at 9:00 a.m. (Saskatchewan time) by Zoom video-conference. Counsel for the Applicants shall make themselves or someone from their office available to attend.
2. The cross-examination of Mr. Ratte by the Applicants shall proceed on October 4, 2021.
3. The cross-examinations of Leroy Nicotine Jr., Clinton Wutunee and Marie Adam by the Applicants shall proceed all on October 2, 2021. In the event that the parties are unable to agree on an in-person venue for the cross-examinations, they shall proceed by Zoom
[49] In her preamble to the September 28, 2021 Order, Justice Aylen reserved the following to the hearings judge, i.e., to this Court:
CONSIDERING that the Court will not entertain the Applicants’ request for the issuance of an order requiring Mr. Pritchard to attend for cross-examination. A Direction to Attend has been served for Mr. Pritchard’s cross-examination and he is required to attend, failing which the Respondents may make submissions before the hearings judge as to whether his evidence should be struck;
CONSIDERING that the admissibility of the answers to undertakings of Mr. Ratte will be a matter for the parties to address before the hearings judge;
CONSIDERING that, based on the submissions of the Applicants, the Court will not compel the production of an unredacted version of the document produced by Austin Ahenakew in furtherance of paragraph 4(b)(i) of the Order. The Applicants may make whatever submissions they deem appropriate before the hearings judge regarding any alleged improper redactions;
CONSIDERING that the issue of whether the affidavits served by the Respondents in response to the affidavit of Mr. Pritchard constitute proper responding evidence as contemplated by the Order is a matter to be addressed before the hearings judge;
[Emphasis added]
[Court Comment: Where applicable these Reasons deal with these matters. The first matter is not relevant because Mr Pritchard attended. I deal with the second issue namely Mr Ratte’s May 18, 2021 RTU in these Reasons.]
[50] On October 8, 2021, Justice Aylen further Ordered:
1. The Respondents’ motion is granted and Mr. Nicotine Jr. is relieved from the request for production nos. 5 and 6 as sought by the Applicants in their Direction to Attend dated September 24, 2021.
2. The Applicants shall forthwith pay to the Respondents (other than Mr. Ratte) their costs of this motion fixed in the amount of $1,500.00.
[51] The Applicants appealed the Order dated October 8, 2021 to the Federal Court of Appeal on October 18, 2021. An appeal book has not been filed and the appeal is not yet set down for a hearing.
[52] For completeness, I note three other matters.
[53] First, two business days before the start of the hearing before me on January 11 and 12, 2022, the Applicants moved to file an affidavit commissioned in October 2021. I dismissed this motion because the three-month delay was not explained, with the following endorsement:
The Applicant conducted cross-examination of Mr. Nicotine Jr. on October 12, 2021, and on January 5, 2022 moved for leave to file an affidavit dated October 13, 2021. Today is January 6, 2022. An unexplained delay of almost three months is not readily excused. It puts the Respondent in a difficult position although the Respondent had notice of the subject affidavit for some time. However the Court has not, the matter is set to be argued in two business days, i.e., tomorrow Friday, and Monday next week. The hearing is scheduled to start Tuesday January 11, 2022. The Court has the evidence of Mr. Nicotine Jr. and his cross-examination which of course may be addressed by counsel at the hearing. The Motion is dismissed with costs in the cause.
[54] Second, a day or so after the hearing, counsel for the Respondents, ex parte (without serving Applicants’ counsel), electronically filed a document uncomplimentary to Applicants’ counsel (without any explanation; it was already in its Record) along with its Memorandum in Word (which I had requested). I ordered the document removed from the Court file (although it remains in the Record) because there was no explanation for the ex parte filing except its uncomplimentary nature. Respondents’ counsel subsequently delivered a written apology.
[55] Thirdly, before the hearing I issued a Direction with specific e-formatting requirements for any compendia the parties wished to file. A compendium from each party is in my view a practical necessity, although not one in the Rules, in a large record file like this. Regrettably, Registry staff failed to send the Direction to the Applicants or Respondents, only to Mr Ratte. My direction was resent during the hearing. The Applicants managed to file a hyperlinked Compendium. At the end of their submissions, the Applicants asked if the Court would appreciate a thematically arranged compendium in both electronic and hard copy and I agreed; these were subsequently delivered. The Respondents did not file a compendium at the hearing. At the end of the hearing they requested leave to file a compendium, to which I agreed, again because of the size of the record (approximately 7,565 pages with authorities).
[56] However, the Respondents’ material did not comply with my Direction: it contained both new argument and new material. In addition, while the Direction permitted a two page summary of argument, the Respondents filed four pages single spaced, i.e., contrary to both Rule 65 and the Direction, effectively three times longer than permitted. This resulted in a justified objection by the Applicants. I issued a further Direction permitting refiling - but only if accompanied by a certification of compliance by Respondents’ counsel, which was subsequently delivered. The Respondents submitted that I had allowed the Applicants a noncompliant submission. I declined to engage in further post-hearing back and forth.
III. Issues
[57] The Applicants submit the issues are:
How should this Honourable Court determine the facts?
Was the FNEA or the FNER contravened?
Should the Election be set aside?
What costs if any should be awarded to the successful party?
[58] The Respondents submit the issues are:
Was the FNEA or the FNER contravened?
Should the Election be set aside?
[59] In my respectful view the issues are twofold:
Have the Applicants discharged their burden to prove the FNEA and or FNER were contravened and if so, is it likely to have affected the result of the Election?
Was the Election corrupted by serious elector fraud such that the integrity of the electoral pr