Date: 20030422
Docket: T-1879-02
Neutral citation: 2003 FCT 464
Toronto, Ontario Tuesday the 22nd day of April, 2003
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
JERRY PRIMROSE, AGNES MELINDA SPENCE, SHIRLEY LOUISE LINKLATER, WILLIAM ELVIS THOMAS, D'ARCY LINKLATER, DAVID M. SPENCE and
JIMMY HUNTER-SPENCE in their personal capacity and also on behalf of the NISICHAWAYASIHK CREE NATION in their capacity as CHIEF AND
COUNCIL OF THE NISICHAWAYASIHK CREE NATION
Applicants
- and -
JIMMY D. SPENCE, CAROL PRINCE, GORDON HART, DENNIS BUNN,
SHIRLEY LINKLATER and RON D. SPENCE comprising the
NISICHAWAYASIHK CREE NATION APPEAL COMMITTEE appointed by the NISICHAWAYASIHK CREE NATION pursuant to Section 19 of the
Nisichawayasihk Cree Nation Laws Election Code, 1998-E1 dated August 9, 2002 and
the said NISICHAWAYASIHK CREE NATION APPEAL COMMITTEE and
LILLIAN GAIL GOSSFELD-MCDONALD, J.D. MOORE, GLEN FRANCOIS,
ALPHEUS MOODY AND CAROL KOBLISKI
Respondents
- and -
ELLA MOOSE
Intervener
REASONS FOR ORDER AND ORDER
[1] The Nisichawayasihk Cree Nation of Manitoba conducts it elections for Chief and Council in accordance with the provisions of the Nisichawayasihk Cree Nation Laws Election Code, 1998-E1, amended August 9, 2002 (the "Code"). On July 17, 2002, Chief and Council called the election under review; pursuant to the Code a nomination meeting was held on August 14, 2002, and the election took place on August 28, 2002. However, the results of the election were challenged by appeals filed with the Nisichawayasihk Cree Nation ("NCN") Appeal Committee. Upon consideration of the appeals, the Appeal Committee made calls for a new election.
[2] The Applicants, who are the successful candidates for Chief and Council, challenge the authority of the Appeal Committee to make the decision leading to the calls for a new election. The challenge is defended by the members of the Appeal Committee (the "Appeal Committee Respondents"), and five unsuccessful candidates who filed appeals (the "Appellant Respondents"). The Intervener Electoral Officer generally supports the Applicants' challenge. Thus, the present judicial review application requires a review of the decision of the Appeal Committee to determine whether it had the jurisdiction to, in effect, upset the expressed will of the electorate.
A. What is the distribution of power under the Code?
[3] It is agreed that the Code is the result of wide consultation with the membership of the NCN, and by vote of the membership, codifies band custom governing elections and is the law to be followed in selecting officials to serve in the government of the NCN. The preamble to the Code (Applicants' Application Record, ("AAR"), Vol.1, pp.36 - 63) makes this very clear:
WHEREAS: The Nisichawayasihk Cree Nation believes that the Creator made the lands and the citizens of the Nisichawayasihk Cree Nation. The Creator gave us laws that define our rights and responsibilities and govern all our relationships so that we may live in harmony with nature and mankind.
WHEREAS: The Nisichawayasihk Cree Nation has maintained its freedom, spiritual beliefs, languages, culture and traditions and has exercised powers of self-government from the beginning of time.
WHEREAS: The Nisichawayasihk Cree Nation wishes to make laws in writing for the governance of its citizens, the protection of its lands, the use of its resources, and the election of its government.
THEREFORE THIS LAW by and with the advice of the citizens of the Nisichawayasihk Cree Nation, is enacted as follows:
[4] The following selected provisions of the Code state the intention of the membership of the NCN as to how elections are to be conducted:
Appointment.
4(1) Subject to subsection (2), at least forty-five (45) days prior to the expiry of its term of office, council shall appoint an elector who communicates in Cree and English, as the electoral officer for purposes of this Code.
Powers and duties of the electoral officer.
8(1) The electoral officer shall:
(a) exercise general direction and supervision over the administrative conduct of elections;
(b) ensure the voters list is prepared and posted in at least five (5) public locations on reserve at least fourteen (14) days prior to the date of the election;
(c) enforce fairness, impartiality and compliance with this Code on the part of all election officers;
(d) issue to [sic] instructions to any deputy electoral officers and other officers appointed by council as may be necessary to ensure the duties in this Code are carried out; and
(e) perform such other duties as are prescribed by this Code.
Special powers of electoral officer.
8(2) In addition to other powers, duties and functions of the electoral officer under this Code, the electoral officer may:
(a) where an emergency arises, extend the time or dates for doing anything under this Code;
(b) increase the number of election officers;
(c) increase the number of polling stations;
(d) prescribe forms for the purposes of this Code;
(e) generally adapt the provisions of this Code to existing circumstances; and
(f) exercise such other powers as are prescribed by or under this Code;
but the electoral officer may not change the dates of the nomination meeting or election or extend the hour for the opening or closing of an ordinary or advance poll or for accepting a nomination paper on the day fixed for the close of nominations in an election unless the election cannot proceed as a result of an emergency which affects NCN, such as a flood, forest fire or death of a member or other person.
Council resolution commences election.
10(2) Every election shall be commenced by a council resolution calling an election, which council resolution shall be provided to the electoral officer forthwith.
Election order.
10(3) Upon receipt of a resolution under subsection (2), the electoral officer shall immediately issue an order:
(a) fixing the date, not more than fourteen (14) days and not fewer than seven (7) days from the date of the order for the filing of nomination papers by the candidates;
(b) fixing the date of the election no less than seven (7) days and no more than fourteen (14) days from the date of the close of nominations;
(c) fixing the date for a nominating meeting to be held, which date shall be no more than three (3) days after the date for filing nomination papers;
(d) fixing the date and time of advance polls; and
(e) fixing the location of the polling places and the hours during which the polls will be open,
and post the order in at least five (5) conspicuous places on reserve.
Candidate qualifications.
12(1) A person is qualified and eligible to be nominated for, and elected to, the positions of chief or councillor if the person:
(a) is an elector;
(b) is able to communicate in the English or Cree languages;
(c) is ordinarily resident on reserve on [sic] the lands immediately adjacent to the reserve as determined by the factors in ss. 12(2) prior to the date of the nominating meeting referred to in ss.12(5); and
(d) at the time nomination papers are filed provides the electoral officer with a written criminal records check confirming the person has never been convicted of an indictable offence,
but a person shall not run for the positions of chief and councillor during the same election.
Nomination Papers.
12(3) Any twenty-five (25) or more electors ordinarily resident on reserve or the lands immediately adjacent to the reserve, may nominate a candidate by signing and filing with the electoral officer, at any time after the date of the order calling the election and before 1:00 in the afternoon of the day fixed for the close of nominations, a nomination paper in a form prescribed by the electoral officer.
Requirements for validity.
12(4) A nomination paper is not valid and shall not be acted upon by the electoral officer unless it is accompanied by:
(a) a non-refundable fee of fifty dollars ($50.00), which fee shall be placed by the electoral officer in a separate election account to be used to help fund election costs;
(b) written consent that the person nominated will run for the office nominated;
(c) directions about how that person's name is to appear on the ballot; and
(d) a two inch by two inch black and white photograph of the candidate for use in the preparation of the ballot.
Nomination meeting.
12(5) The electoral officer shall attend the nomination meeting and announce orally and in written form the names of the persons who have been nominated, whether they qualify and whether they are prepared to allow their names to be placed on the ballot.
Candidates to be present.
12(6) Subject to subsection (7), all electors nominated shall attend the nomination meeting to confirm that they wish to stand for office and to outline their reasons for seeking office, or the electoral officer shall declare the nomination to be null and void, unless in the sole discretion of the electoral officer it is determined there are special circumstances which prevent a nominee from complying with this subsection.
Application for a recount.
20(1) Within seven (7) days after the election any candidate may request a recount by submitting such request to the electoral officer, in which case the electoral officer shall give all candidates and electors three (3) days notice that a recount has been requested, following which the electoral officer shall immediately convene a meeting of the candidates and the deputy returning officer to recount the ballots.
Factors to consider.
20(2) During the recount the electoral officer shall:
(a) carefully examine all ballots used in the election and decide whether ballots were properly considered spoiled, discared or rejected, and if not, include such ballots in the count of votes for each candidate; and
(b) following the recount either:
(i) declare the candidates with the most votes elected, or
(ii) if there is a tie between the candidates with the most votes, declare the candidates tied and request council to call a by-election for the candidates who are tied, in accordance with section 11.
Appeal of electoral officer's decision.
20(3) Any candidate who requested a recount pursuant to subsection (1) may appeal the decision of the electoral officer to the Appeal Committee within seven (7) days of the decision.
Recount by Appeal Committee.
20(4) Upon receipt of an appeal, the Appeal Committee shall within seven (7) days convene a panel of at least three (3) members to conduct a recount in accordance with subsection (4).
Corrupt practice appeal.
20(5) Within seven (7) days after the election any candidate or elector who voted may file an appeal with the Appeal Committee if that person has reasonable grounds to believe there was:
(a) a violation of this Code which may affect the results of the election; or
(b) a corrupt practice in connection with the election, which may affect the results of the election.
Other Appeals.
20(6) Within seven (7) days of any decision under this Code which adversely affects the rights of any candidate or elector, that person may file an appeal with the Appeal Committee.
Notice of appeal.
20(7) An appeal filed under subsection (5) or (6) shall outline the grounds of appeal and the facts upon which the appeal is based, supported by a statutory declaration of the person filing the appeal.
Investigation.
20(8) Upon receipt of an appeal under subsections (5) or (6) the Appeal Committee shall investigate the matter as it considers necessary, but shall provide an opportunity for any candidate or appellant to make oral or written representations.
Dismissal of appeal.
20(9) Where the Appeal Committee finds the grounds of appeal are not established or do not affect the outcome of the election, it shall dismiss the appeal.
Upholding subsection (5) appeals.
20(10) For appeals filed under subsection (5), if the Appeal Committee finds the grounds of appeal have been established and that the outcome of the election has been affected, it shall immediately notify the electoral officer and council, and council shall within twenty-one (21) days call:
(a) a new election if the outcome of the entire election was affected; or
(b) a by-election for only those seats affected where the outcome of only part of the election was affected,
in accordance with this Code.
Upholding subsection (6) appeals.
20(11) For appeals filed under subsection (6), the Appeal Committee may uphold the decision, or where it finds the grounds of appeal have been established, it may substitute its decision for that originally made.
Final decision.
20(12) A decision of the Appeal Committee pursuant to subsections (9), (10), and (11) shall be final and binding on all electors.
Judicial review.
20(13) A decision of the Appeal Committee may be reviewed by a court of competent jurisdiction solely by reason that the Appeal Committee failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction under this Code.
[5] Two important features of the Code give an indication of how the self government intention of the NCN membership is to be viewed: the Oath of Allegiance that elected officials are required to take, and the provisions of s.20(13) as quoted above. The Oath of Allegiance required to be taken by the newly elected Chief and each Counsellor, which is a schedule to the Code (AAR, Vol.1, p.60), reads as follows:
I -----------------before the Creator and members of the Nisichawayasihk Cree Nation, do swear or solemnly affirm that I will be faithful and bear true allegiance to the laws of the Nisichawayasihk Cree Nation and Canada.
[6] Thus, while the self government interests of the NCN are paramount, the Code recognizes that these government interests are, nevertheless, to be conducted within the laws of Canada. The Code provides certain rights to the NCN membership with respect to elections, but so do the laws of Canada. The Code lays out an internal appeal procedure according to the provisions of the Code to challenge aspects of an election, but it also provides an external review procedure by the Federal Court of Canada according to the laws of Canada. It seems clear that the intention of the NCN membership in providing these rights of challenge, is to guarantee that the results of an election are fair and just for all; that is, no one gains an advantage.
[7] Thus, with respect to an election, the Code places power in the hands of a number of people to ensure that the results of the election are fair and just according to the law expressed in the Code.
[8] It is important to make mention of the relationship to be expected of those that hold power. The preamble makes it very clear that it is to be one of respect. The respect necessary for the good governance of the NCN can only be accomplished by adherence to the words of the Code; it is the law.
B. How should the Code be interpreted?
[9] The Code is a statement of the electoral law of the NCN. As such, it is akin to a "statute" passed by the Government of Canada or one of the Provinces or Territories. The modern approach to "statutory" interpretation to finding the "correct" interpretation, that is the interpretation intended by those that brought it into being, is explained this way:
Today, in every case, the meaning that emerges from reading the words in their immediate context must be considered in light of a larger context and tested against other sources of legislative meaning. The purpose of the legislation must be taken into account, even where the meaning appears to be clear, and so must the consequences. At the end of the day, a court may decide to go with its first impression, the meaning that emerged simply from reading the test. But no modern court would consider it appropriate to adopt that meaning, however, "plain", without first going through the work of interpretation. (Drieger on the Construction of Statutes, 3rd edition, pp.3-4)
[10] In the present case, apart from the words of the Code itself, the only evidence with respect to what is intended comes in the form of two election "Handbooks" prepared by authors unknown.
[11] Prior to the Code's acceptance by the NCN membership by secret ballot in 1998, an explanatory guide was prepared and circulated entitled the Nisichawayasihk Cree Nation Election Code Handbook (Intervener's Record (IR), pp. 27-40). The opening to the Handbook provides an explanation of the process used by the NCN to establish its electoral law:
How was the Election Code developed?
A survey was conducted and our lawyer first drafted the Code on the basis of the survey. Then a number of workshops were held in Nelson House, including several before the last election and changes were made based on what our members said. The final Election Code is a combination of surveys and comments at the workshops.
How does the Election Code become law?
The draft Election Code has been reviewed with members at workshops, by Chief and Council and has been sent to Ottawa for comments from INAC officials. Comments from these discussions were incorporated into the final Election Code.
Members of Nisichawayasihk Cree Nation living in Nelson House who are entitled to vote for Chief and Council must now approve the law. Council has decided to conduct a secret ballot vote by sending a ballot box door to door in Nelson House. The results of this vote will then be sent to the Minster of Indian Affairs along with the final copy of the Election Code. The Minister will then issue an Order to remove Nisichawayasihk Cree Nation from the Indian Act.
However, the explanation in the Handbook of the various provisions of the Code is only descriptive of the provisions themselves. Thus, apart from the words of the Code itself, this Handbook does not provide any evidence to assist in determining what community members wanted to accomplish in their law governing their elections.
[12] The second "Handbook" is the Nisichawayasihk Cree Nation Election Officials' Handbook (IR, p.78-96). It is agreed that this document was not in wide circulation at the time of the election under review but is only intended for the use of those persons charged with election responsibility. The Officials' Handbook contains an opinion about the meaning to be placed on s.20(6) of the Code which is cited in support of the argument advanced by the Respondent Appeal Committee. This argument is addressed in Section C(4) below.
[13] In my opinion, apart from the Officials' Handbook being some evidence of the intended meaning of s.20(6), there is no other reliable evidence which, in addition to the words of the Code, gives insight into the intended meaning of its provisions.
C. What is the correct interpretation of the powers and responsibilities conferred by the Code?
[14] With respect to the analysis which follows, I find that the correct interpretation of the powers and responsibilities of the Electoral Officer, any Appellants, and the Federal Court comes only from the words of the Code itself.
1. The Electoral Officer
[15] The usual powers and duties which might be expected of an Electoral Officer are set out in s.8(1). However, s.8(2) provides "special powers", the most wide-ranging being that found in s.8(2)(e) which gives the Electoral Officer the power to "generally adapt the provisions of this Code to existing circumstances". It is important to note that no direction limit is placed on this extraordinary power. The latter part of s.8(2) also provides an emergency power. Some examples provided as to what would constitute an emergency are "flood, forest fire or death of a member or other person". However, it appears from the words of the provision that this list is not exhaustive; examples are given only as guidance to the Electoral Officer to help her or him decide what constitutes an emergency.
[16] In my opinion, the extraordinary power stated in s.8(2)(e), and the emergency power are jurisdiction conferring provisions, and, as such, the actions of an Electoral Officer taken pursuant to them can be challenged in a properly brought appeal to the Appeal Committee, and the decision of the Appeal Committee can be reviewed in a properly brought judicial review application to the Federal Court as allowed according to s.20(13) of the Code.
2. Appellants
[17] Only the appeal provisions of s.20(5) and s.20(6) are in issue before me for decision in the present application. These two provisions set out certain mandatory requirements for an appeal to be brought to the Appeal Committee. Thus, the power of an Appellant to raise a challenge under either provision comes with certain stated responsibilities. Under both s.20(5) and s.20(6), the appeal must be filed within 7 days of the action complained of. In addition, s.20(7) requires that the appeal filed contain two important statements: the grounds of appeal and the facts upon which the appeal is based. In addition, an appeal under either provision must be supported by a statutory declaration.
[18] Thus, there is no ambiguity whatever in what is required of an appeal. There is also no provision in the Code which allows anyone, including the Appeal Committee, to give relief and let an appeal stand if any of the mandatory requirements are not met.
3. The Federal Court
[19] By s.20(13), it is clear that the NCN wants to confer power to the Federal Court to be involved in the electoral business of the NCN on a properly brought application for judicial review under the Federal Court Act. However, it is also clear that the NCN only wants this involvement within a narrow scope. I read this provision as saying that the NCN wishes to control its own election affairs without outside interference, but with recognition that the laws of Canada apply with respect to certain critical requirements of all governmental decision-making; that is, was the process just, and did the decision-maker concerned have the authority to make the decision? By s.20(13), the Federal Court is also authorized to force a decision-maker to make a decision where the Code so requires.
[20] Thus, on the basis of s.20(13), I find that I have the power to decide whether the Appeal Committee had the authority to make the decision leading to the calls for a new election. My responsibility in exercising this power is to apply the laws of Canada.
a. What is the standard against which the jurisdictional decisions of the Appeal Committee are to be judged?
[21] The standard of review is the degree of liberty or "deference" to be provided to a decision-making body, such as the Appeal Committee, to reach its own decisions as it sees fit. How much is to be provided might depend on a number of factors such as the expertise of the body and the nature of the question it is called upon to decide. However, when it comes to reaching a decision about its own authority to act, the law is well established that the body must be "correct" in the answer. This general principle is stated by the Supreme Court of Canada in Pezim v. British Columbia Securities Commission, [1994] 2 S.C.R. 557 where at paragraph 63 Justice Iacobucci says this:
At the correctness end of the spectrum, where deference in terms of legal questions is at its lowest, are those cases where the issues concern the interpretation of a provision limiting the tribunal's jurisdiction (jurisdictional error) or where there is a statutory right of appeal which allows the reviewing court to substitute its opinion for that of the tribunal and where the tribunal has no greater expertise than the court on the issue in question, as for example in the area of human rights. See for example Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, and University of British Columbia v. Berg, [1993] 2 S.C.R. 353.
[22] In their written and oral presentations, both counsel for the Respondent Appeal Committee and counsel for the Appellant Respondents have argued that the jurisdictional decisions of the Appeal Committee should stand and not be judged by such a strict standard as correctness. Two arguments are offered: because the Code is an expression of NCN self-government, the Appeal Committee is in the best position to decide what the Code means; and, indeed, the law of Canada requires that jurisdictional decisions of the Appeal Committee be judged on the more tolerant standard of whether they are merely "reasonable". As a result, the Respondents argue that the Appeal Committee "has the right to be wrong", and everyone should accept this. I do not accept these arguments.
[23] As explained above, even within the NCN's aspiration for self-government, the preamble to the Code requires the Appeal Committee to follow the law expressed in the Code, and also the law of Canada. Under the Code, the Appeal Committee is only one of a number of holders of power; it does not have a paramount authority.
[24] In my opinion, the legal argument presented by the Respondents does not stand up to rigorous inspection. In the course of the hearing, the Respondents argued that the well recognized authority cited above requiring jurisdictional matters to be decided on the standard of correctness has, in some way, been overtaken by recent pronouncements of the Supreme Court of Canada. In particular, the case of New Brunswick v. Moreau-Bérubé, [2002] 1 S.C.R. 249 was cited as an example.
[25] Moreau-Bérubé concerns a challenge to a conclusion reached by the Judicial Council of New Brunswick that a judge should be removed from office due to contentious remarks she made from the bench. In Moreau-Bérubé, the issue before the Supreme Court of Canada was with respect to the standard that should be used to review the conclusion reached, not with respect to whether the Judicial Council had jurisdiction to reach the conclusion. That is, the decision-making jurisdictional authority of the Judicial Council to reach the conclusion it did was not in question; it had the jurisdiction to reach a conclusion because the case had been referred to it after an inquiry had been conducted. In the present case, unlike that in Moreau-Bérubé, the decision-making authority of the Appeal Committee is in question; therefore, I find there is no change in the law.
[26] I find that the standard against which the decision of the Appeal Committee must be judged with respect to its own jurisdiction to act is correctness. That is, in my opinion, the Appeal Committee does not have the right to be wrong; it has the obligation to be right.
4. The Appeal Committee
[27] For the purposes of the present judicial review, the Appeal Committee is required to correctly decide whether it has the authority to act on an appeal filed under either s.20(5) or s.20(6) of the Code. Thus, ascertaining the correct meaning of these two provisions is essential. As mentioned above, the Respondents rely on portions of the Officials' Handbook as a guide to the interpretation of s.20(6) of the Code. The portions relied upon are as follows:
After the nomination papers have been filed and before the nomination meeting, the Electoral Officer must review all of the nomination papers and decide whether the candidates are qualified. If a person who has filed a nomination paper is not qualified, that person must be disqualified by the Electoral Officer and not allowed to run in the election. This decision of the Electoral Officer can be appealed to the Appeal Committee within 7 days of the Electoral Officer's decision. [see ss.20(6)] (IR, p.82)
...
Once the nomination meeting is over and the Electoral Officer has decided whether a person is qualified to run, that decision cannot be changed. After the meeting the Nominating Meeting Report -Form 10 should be completed. Decisions of the Electoral Officer to disqualify a candidate can be appealed to the Appeal Committee within 7 days of the decision being made. If the Appeal Committee upholds the Electoral Officer's decision then the person will not be able to run in that election. If the Appeal Committee overturns the Electoral Officer's decision, the person will be able to run. [see ss.20(6) and (11)] (IR, p.84)
...
The third type of appeal allowed under the Election Code is an appeal which adversely affects the rights of any candidate or elector. For example, if the Electoral Officer disqualifies a candidate for some reason or an elector is not allowed to vote, they could file and appeal because their rights have been affected. (IR, p.94) [Emphasis added]
[28] Counsel for the Respondents argue that I should give weight to the opinion of the unknown person who drew the Officials' Handbook and find that s.20(6) is only intended to grant relief to candidates who have been disqualified by the Electoral Officer. The purpose of this argument is to have me make a ruling that appeals with respect to persons qualified as candidates can only be made under s.20(5) of the Code. The effect of this argument being accepted would be to neutralize the Applicants' argument that appeals with respect to all decisions of the Electoral Officer qualifying candidates must be filed within 7 days of the nomination meeting. That is, if appeals with respect to decisions qualifying candidates can be properly made only under s.20(5), the appeals in the present case on this issue were filed in time; while they were not filed within 7 days of the Nomination Meeting as would be required if they were under s.20(6), they were filed within 7 days of the election as required by s.20(5).
[29] I do not accept this argument.
[30] In the first place, I cannot put weight on an opinion about the intended meaning of the Code without knowing who gave the opinion and under what circumstances. Second, the quotations contain statements which conflict with the Respondents' interpretation. The opinion expresses that "once the nomination meeting is over and the Electoral Officer has decided whether a person is qualified to run, that decision cannot be changed". If this statement is a correct interpretation, then whether an appeal is filed under s.20(5) or s.20(6), a qualified candidate is protected from a challenge of the decision of the Electoral Officer. Since the appeals filed in the present case challenge the status of successful qualified candidates, this opinion does not only point to the conclusions the Respondents foster. Third, in the third passage quoted above, the statement supporting the Respondents' position is only made by way of example. As such, it is inconclusive.
[31] For these reasons, I give no weight to the Officials' Handbook as a guide to interpretation.
D. What happened in the electoral process to generate appeals?
[32] Decisions made by the Electoral Officer prior to the election generated the appeals which are at the base of the decisions under review. Section 12(1) of the Code sets out candidate qualifications; prior to the Nomination Meeting of August 14, 2002, the Electoral Officer made decisions with respect to certain candidates, qualifying two where a question existed as to their residence, but disqualifying 17 for failure to meet the criminal record requirement, and five for failing to meet the filing deadline requirement.
[33] At the nomination meeting on August 14, 2002, the Electoral Officer announced her disqualification decisions. But, as a result of consultation with all candidates and the community at that event, the Electoral Officer changed her mind; she qualified all 5 who filed late, and qualified all 17 on the criminal record deficiency by adopting a creative response to a very difficult problem.
[34] The written criminal record check required by s.12(1)(d) is expected to be provided by the RCMP. However, it appears that there was wide spread misunderstanding about what information and time is required of the RCMP to obtain a written confirmation that a candidate does not have a criminal record. The Electoral Officer became aware very late in the electoral process that the RCMP checks could not be provided before the election by those that had applied for one, in good faith, to the RCMP. The Electoral Officer's decision to rectify the problem experienced by these candidates was to take a sworn declaration from each of them that they did not have a criminal record. On this basis, all 17 were allowed to stand for election.
[35] At the conclusion of the Electoral Officer's decision-making at the Nomination meeting, there were no objections or complaints about the residence of any candidate that she had announced, and there were no objections or complaints on any ground to the eligibility of any candidate that she announced (see: the Affidavit of Ella Moose, sworn February 26, 2003, IR, pp. 4-10).
[36] It is clear that all of the Electoral Officer's decisions respecting candidate qualifications were made under s.8(1) and/or s.8(2) of the Code.
E. What jurisdictional decisions did the Appeal Committee make?
[37] In its decision of October 22, 2002, the Appeal Committee made a number of findings with respect to "violations" of the Code (see AAR, pp.9-18).
[38] An appeal was filed by each of the Appellant Respondents: Glen Francois, Carol Kobliski, Alpheus Moody and Jimmy D. Moore (AAR, Vol 1, pp. 120-134). Each Appellant Respondent filed a separate appeal document, each dated September 3, 2002, but the grounds and facts supporting each appeal are found in an attached letter jointly signed by all four and dated September 2, 2002. Each appeal document shows that its contents were sworn before a Commissioner of Oaths.
[39] Even though each appeal document cites that the appeal is being brought under both s.20(5) and s.20(6) of the Code, the letter filed with the appeal documents states that the appeals are brought pursuant to s.20(5)(a) of the Code; in addition, the grounds cited in the letter are only with respect to polling, voting, and voter assistance procedures. None of these appeals challenged the decisions of the Electoral Officer made at the nomination meeting of August 14, 2002.
[40] Thus, I find that the four appeals filed are, indeed, s.20(5) appeals. Even though each of the four appeals were not supported by a statutory declaration as required by s.20(7) of the Code, the Appeal Committee decided that it had jurisdiction to hear and decide the appeals; they were all dismissed on the grounds and facts provided in the letter of September 2, 2002. Thus, the disposition of these appeals has no impact on the outcome of the present application and need not be considered further.
[41] Appellant Respondent Lillian Gail Gossfeld-McDonald also filed an appeal (AAR, Vol.1, pp.155-163). Ms. Gossfeld-McDonald's appeal document cites that the appeal is under both s.20 (5)(a) and s.20(6) of the Code, is supported by a statutory declaration, and does provide an outline of the grounds of appeal and the facts relied upon. The grounds stated are as follows:
Violations of the following sections of our Election Code:
Section 8(2): "Special powers of Electoral Officer"
Section 12(1): Candidate qualifications"
Section 12(5): "Nomination meeting"
Section 14(1): "Form of ballots"
In this appeal, the violations are stated to be: under s.8(2), the Electoral Officer's presumed exercise of her emergency powers to allow late filing; under s.12(1), the Electoral Officer's residency decision made under s.12(1)(a); under s.12(5), the failure of the Electoral Officer to, at the nomination meeting, announce in written form the persons who have been nominated; and under s.14(1), the failure of the ballots to be in English and Cree. With respect to the late filing and residency decisions, no names are mentioned. There is no mention in this appeal about the Electoral Officer's decision respecting criminal record checks.
[42] In its decision, the Appeal Committee found that it had jurisdiction to make a decision with respect to the residency requirement in s.12(1)(c); it found that there was a clear violation of this requirement in respect of two named individuals allowed to run by the Electoral Officer at the Nomination Meeting. In addition, the Appeal Committee found that, with respect to four named individuals allowed to run by the Electoral Officer despite late filing of nomination papers in apparent contravention of s.12(3) of the Code, the Electoral Officer did not have proper authority to reverse these disqualifications and permit late filing of nomination papers. In making these findings, the appeal filed by Ms. Gossfeld-McDonald was not specifically mentioned.
[43] In its decision, the Appeal Committee also concentrated a good deal of effort on the decision of the Electoral Officer at the nomination meeting allowing persons to run for election despite not being able to comply with the precise criminal record check requirements of s.12(1)(d). On this point, the Appeal Committee confirms that, during its deliberations, the Electoral Officer pointed out her special powers in s.8(2) of the Code. However, in effective response, the Appeal Committee went so far as to state that s.8(2) is "so vague as to render it meaningless", and found that certain of the candidates had not complied with s.12(1)(d).
[44] In the end result, on each of the findings just described, the Appeal Committee called for a new election pursuant to s.20(10) of the Code. By s.20(10), only with respect to s.20(5) appeals, when the Appeal Committee decides that the grounds of an appeal are established and the outcome of the election has been affected, the Appeal Committee is required to notify the Electoral Officer and the Council, and upon being so notified, the Council is required to call a new election. But, it is important to note that it appears the Council also has a responsibility to make a decision; upon receiving notice it is only required to call a new election if it determines that the outcome of the entire election was affected.
[45] In any event, it seems that the Appeal Committee's calls for a new election were intended to be the notice that it found it was required to give. As it is clear it had no authority to do anything else, for the purposes of this application, I find that the "calls for a new election" constitute a decision to give "notice" pursuant to s.20(10) of the Code.
F. Was the Appeal Committee correct in the jurisdictional decisions it made?
[46] The Applicants' primary argument, supported by the intervener Electoral Officer, is that the Appeal Committee had no jurisdiction to render an opinion with respect to any of the decisions made by the Electoral Officer at the August 14, 2002 nomination meeting. On what I consider to be the correct interpretation of the words used in s.20(5) and s.20(6) of the Code, I completely agree.
[47] In my opinion, s.20(5) and s.20(6) are not ambiguous provisions; read together with s.20(1)-(4), they speak to a well thought out general appeal scheme intended by the membership of the NCN.
[48] Section 20(5) is intended to deal with problems experienced during the course of an election. The provision begins with the heading "Corrupt Practice Appeal" and goes on to describe the circumstances upon which an appeal can be brought, that is, either for a violation of the Code which may affect the results of the election already held, or a corrupt practice in connection with the election already held which may affect the results of the election. As the provision is focussed on problems experienced within an election already held, an appeal must be filed within 7 days of the election.
[49] On the other hand, s.20(6) is intended to deal with problems experienced going into an election. The provision speaks to only a certain kind of problem: a "decision" that adversely affects the rights of a candidate or elector. If either a candidate or an elector has grounds to believe this to be true, he or she can appeal the decision. Section 20(6) does not impose any restrictions on which candidate or which elector might apply: both qualified and unqualified candidates and electors can immediately use the provision to ensure that, going into an election, all is well.
[50] While it is true that a disqualified candidate or elector would be anxious to appeal to be able to run, so might a qualified candidate or elector feel adversely affected by other candidates or electors being qualified. For example, in her appeal as a qualified but unsuccessful candidate, Ms. Gossfeld-McDonald's complaint about late filing candidates being allowed to run is that "the increase in candidates spread out the vote" (AAR, Vol.1, p.156). Had her complaint been dealt with before the election as s.20(6) intends, perhaps she would not feel so agrieved were she to lose.
[51] With respect to an appeal filed under s.20(6), by s.20(11) of the Code, the Appeal Committee has broad powers to rectify any adverse effect on any candidate or elector before the election takes place. To have it otherwise would cause the kind of highly detrimental governance and community turmoil experienced by the NCN after the election in the present case. This, in my opinion, cannot be an intended consequence of a correct interpretation of the Code.
[52] In the present case, the Respondents argue that it would be practically impossible to put into effect the interpretation of the Code that I have just made. That is, it is argued that, for example, there just would not be time for the Appeal Committee to deal with appeals arising from decisions made by the Electoral Officer at the Nomination Meeting of August 14th, given that the election date was August 28th. I reject this argument. While I agree that the Appeal Committee would be under some pressure to deal with appeals in the 7-day period between the appeal filing deadline and the election, it would just have to get to work and do the job; the Code lays down the expectation that it shall be done. It is clear to me that the purpose of imposing this requirement is to ensure that a clean, uncontested slate of candidates is produced before a qualified NCN electorate on election day. This being the case, only an appeal under s.20(5) can precipitate the overturning of the vote.
[53] On this basis, I find that the Appeal Committee had no jurisdiction to entertain an appeal with respect to any of the decisions made by the Electoral Officer during the nomination meeting of August 14, 2002. This is so because no appeal with respect to these decisions was filed within 7 days of August 14, 2002, being August 21, 2002. Therefore, since Ms. Gossfeld-McDonald's appeal was not filed until September 2, 2002, I find that the Appeal Committee had no jurisdiction to consider it.
[54] I do not accept the argument that an appellant's failure to follow the requirements of the Code is a mere technicality which should not impede the Appeal Committee from deciding upon an appeal not filed in compliance with the Code. The Code is clear: appeal requirements are mandatory. The Appeal Committee is not master over these requirements.
[55] It is important to note that, by s.8(2), only the Electoral Officer has power to "bend the rules". There is no authority for anyone else given power under the Code to do anything but follow the exact provisions as written.
[56] It is clear on the record that no appeal was filed by any party alleging as a ground the Electoral Officer's decision with respect to criminal record checks required under s.12(1)(d). The Code is clear: the Appeal Committee can only act on properly filed appeals. I find that the Appeal Committee has no jurisdiction to act on its own motion to introduce grounds of appeal not stated in a properly filed appeal document.
[57] Therefore, by purporting to act under s.20(5) on what are s.20(6) appeal issues arising from the decisions the Electoral Officer made at the nomination meeting of August 14, 2002, I find that the Appeal Committee was not correct in the jurisdictional decisions it made. Accordingly, I find that the Appeal Committee had no jurisdiction to give notice pursuant to s.20(10) of the Code.
ORDER
For the reasons provided, for want of jurisdiction, I hereby quash the Nisichawayasihk Cree Nation's Appeal Committee's decision of October 22, 2002 to give notice pursuant to s.20(10) of the Nisichawayasihk Cree Nation Laws Election Code.
In my opinion, none of the individual parties to this judicial review, whether they be Applicants, Respondents, or Intervener, should bear any costs for bringing this matter to decision. I have no doubt of the good faith of all concerned to seek a ruling on the correct interpretation of the Nisichawayasihk Cree Nation Election Code, and no one should be, in effect, penalised for seeking this result.
Accordingly, I make no order as to costs, but respectfully suggest that the Nisichawayasihk Cree Nation itself, through its Chief and Council, provide reasonable reimbursement to individual parties who have incurred personal out-of-pocket or legal expenses.
"Douglas R. Campbell"
J.F.C.C.
FEDERAL COURT OF CANADA
NAMES OF SOLICITORS AND SOLICITORS OF RECORD
DOCKET: T-1879-02
STYLE OF CAUSE: JERRY PRIMROSE, AGNES MELINDA SPENCE, SHIRLEY LOUISE LINKLATER, WILLIAM ELVIS THOMAS, D'ARCY LINKLATER, DAVID M. SPENCE and JIMMY HUNTER-SPENCE in their personal capacity and also on behalf of the NISCHAWAYASIHK CREE NATION in their capacity as CHIEF AND COUNCIL OF THE NISICHAWAYASIHK CREE NATION
Applicants
- and -
JIMMY D. SPENCE, CAROL PRINCE, GORDON HART, DENNIS BUNN, SHIRLEY LINKLATER and RON D. SPENCE comprising the NISICHAWAYASIHK CREE NATION APPEAL COMMITTEE appointed by the NISICHAWAYASIHK CREE NATION pursuant to Section 19 of the Nisichawayasihk Cree Nation Laws Election Code, 1998-E1 dated August 9, 2002 and the said NISICHAWAYASIHK CREE NATION APPEAL COMMITTEE and LILLIAN GAIL GOSSFELD-MCDONALD, J.D. MOORE, GLEN FRANCOIS, ALPHEUS MOODY AND CAROL KOBLISKI
Respondents
- and -
ELLA MOOSE
Intervener
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY APRIL 16, 2003
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: TUESDAY APRIL 22, 2003
APPEARANCES BY: Dorothy E. McDonald
For the Applicants
Page: 2
APPEARANCES BY: Nicole C. Harley
(Continued) For the Respondents
Nisichawaysihk Cree Nation Appeal
Committee
Harley Schachter
For the Respondents
Gail Gossfeld-McDonald, J.D. Moore,
Glen Francois, Alpheus Moody, Carol Koblisky
Anthony H. Dalmyn
For the Intervener
SOLICITORS OF RECORD:
Dorothy E. McDonald
PO Box 45003 RPO Regent
Winnipeg, MB R2C 5C7
For the Applicants
Levene Tadman Gutkin Golub
Barristers & Solicitors
700 - 330 St. Mary Avenue
Winnipeg, MB R3C 3Z5
For the Respondents
Nisichawaysihk Cree Nation Appeal Committee
Duboff, Edwards, Haight & Schachter
1900 - 155 Carlton Street
Winnipeg, MBR3C 4H8
For the Respondents
Gail Gossfeld-McDonald, J.D.Moore, Glen Francois,
Alpheus Moody, Carol Koblisky
Brodsky & Company
1212 - 363 Broadway
Winnipeg, MB R3C 3N9
For the Intervener
FEDERAL COURT OF CANADA
Date: 20030422
Docket: T-1879-02
BETWEEN:
JERRY PRIMROSE, AGNES MELINDA SPENCE, SHIRLEY LOUISE LINKLATER, WILLIAM ELVIS THOMAS, D'ARCY LINKLATER, DAVID M. SPENCE and JIMMY HUNTER-SPENCE in their personal capacity and also on behalf of the NISCHAWAYASIHK CREE NATION in their capacity as CHIEF AND COUNCIL OF THE NISICHAWAYASIHK CREE NATION
Applicants
- and -
JIMMY D. SPENCE, CAROL PRINCE, GORDON HART, DENNIS BUNN, SHIRLEY LINKLATER and RON D. SPENCE comprising the NISICHAWAYASIHK CREE NATION APPEAL COMMITTEE appointed by the NISICHAWAYASIHK CREE NATION pursuant to Section 19 of the Nisichawayasihk Cree Nation Laws Election Code, 1998-E1 dated August 9, 2002 and the said NISICHAWAYASIHK CREE NATION APPEAL COMMITTEE and LILLIAN GAIL GOSSFELD-MCDONALD, J.D. MOORE, GLEN FRANCOIS, ALPHEUS MOODY AND CAROL KOBLISKI
Respondents
- and -
ELLA MOOSE
Intervener
REASONS FOR ORDER
AND ORDER