Federal Court Decisions

Date: 20020429

Docket: T-33-02

Neutral citation: 2002 FCT 483

Ottawa, Ontario, April 29, 2002

Present:           The Honourable Madam Justice Tremblay-Lamer

BETWEEN:

                                                                     JAMES GABRIEL

                                                                                                                                                    Applicant

                                                                            - and -

                                               MOHAWK COUNCIL OF KANESATAKE

                                                             and STEVEN BONSPILLE

                                                                                                                                              Respondents

                                                  REASONS FOR ORDER AND ORDER

[1]                 The Court is seized with an application for an interlocutory order pursuant to section 18.2 of the Federal Court Act, R.S.C. 1985, c. F-7 setting aside a resolution of the Mohawk Council of Kanesatake ("the respondents") removing James Gabriel ("the applicant") as Grand Chief of the Council. The applicant also wishes to be reinstated as Grand Chief until the final order is rendered in this matter.

Background

[2]                 The judicial review proceeding commenced by the applicant touches on a sensitive issue, namely, the process by which Council members may be selected or removed for reasons of non-confidence. This issue and the events surrounding the applicant's removal as Grand Chief have divided the Mohawk Community of Kanesatake. To better understand how the present motion came about, a brief overview of the events of the past ten years may be helpful.

[3]                 The Mohawk Community of Kanesatake is a registered Band under the Indian Act, R.S.C. 1985, c. I-5. It is currently governed by a Council composed of six Chiefs and one Grand Chief. Prior to 1991, the selection and appointment of the Grand Chief and other Chiefs was made by the Six Nations Traditional Hereditary Clan Mothers in accordance with Band custom. Under that system, if a Chief was reprimanded more than three times, he or she would be dismissed from office.

[4]                 In 1992, a Draft Election Code ("the Code") was adopted in principle by the Band. The Code called for the democratic election of Council members for a three-year term, in accordance with stringent rules to assure fair elections using a secret ballot. The Code has been used to conduct by-elections and general elections within the Community since that time. It was also used to ratify the Land Governance Agreement with the federal government in 2000.

[5]                 The applicant first became Grand Chief in 1996 following a by-election to replace then Grand Chief Jerry Peltier, against whom a vote of non-confidence had been conducted. He was subsequently re-elected in 1998 and 2001. During his time in office, he strongly supported police initiatives to control criminal activities in the territories, particularly involving the illegal drug trade.

[6]                 The 2001 elections saw four new members elected to Council. The new members did not share the applicant's views. Their focus was on public accountability, rather than police and security matters.

[7]                 Tensions flared following a September 26, 2001 police raid on the house of Robert Gabriel, who was suspected of growing and selling marijuana. No drugs were found during that raid. However, the police concluded that there was strong evidence of illegal activities, such as a large underground bunker set up for hydroponic agriculture. In the weeks that followed, shots were fired at the police station. The applicant also claims to have been assaulted by Robert Gabriel.

[8]                 A public meeting was scheduled for November 22, 2001 to which all registered Kanesatake Band members were invited. The agenda did not mention the issue of removal of the applicant as Grand Chief. At the meeting, which proceeded as scheduled, Robert Gabriel requested that a meeting be held for a vote of non-confidence in the applicant. This motion was adopted and it was decided that a special public meeting to hold a vote on the status of the applicant as Grand Chief would take place on December 6, 2001. Only those who resided in Kanesatake or Oka would be allowed to vote on the issue.

[9]                 Three days before that special public meeting was to be held, the applicant sent a notice to all resident and non-resident members of the community encouraging them to put a stop to the vote. Nevertheless, the special public meeting took place as scheduled. The applicant lost the vote by a count of 207 to 130.

[10]            The decision to officially remove the applicant came the next day when the respondent Council adopted a resolution, accepting the vote conducted at the special public meeting. The Council also decided that Steven Bonspille would act as interim Grand Chief until a new Grand Chief would be elected either by means of a by-election or at the next regularly-scheduled elections, in July 2004.

[11]            One month later, on January 7, 2002, the applicant filed a notice of application for judicial review. On February 21, 2002, he filed a motion for an interlocutory injunction requesting and Order that the applicant be reinstated as Grand Chief until final disposition of the judicial review.

[12]            It is well-recognized that the test to be applied in considering whether an injunction is appropriate is the three-stage test articulated by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. In order to succeed, the applicant must establish that his attack on the decision of the Council removing him as Grand Chief of the Mohawk Council of Kanesatake raises a serious issue, that irreparable harm would result if he remained out of office until a determination is made as to the legality of the Council's decision, and that the balance of convenience operates in favour of reinstating him.

Serious Issue

[13]            The applicant submits that there is a strong prima facie case that the resolution dismissing him based on a vote excluding non-residents is illegal because it discriminates against non-residents. I agree.

[14]            In Corbière v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, the Supreme Court of Canada held that the exclusion of off-reserve members of an Indian band from the right to vote in band elections, pursuant to subsection 77(1) of the Indian Act, amounted to discrimination. This principle was reiterated in a recent decision of the Federal Court, Medeiros v. Ginoogaming First Nation, [2001] F.C.J. No. 1812. In the case at bar, the exclusion from voting of band members living outside the territories resulted in the disenfranchising of a major sector of the population that elected the Council members. Such a practice appears to undermine the right to vote to elections granted to non-residents by the Supreme Court of Canada in Corbière, supra. This is a serious issue.

[15]            The applicant further submits that a strong prima facie case can be made that there is no custom for dismissing Council members by votes of non-confidence. Again, I agree.

[16]            The appropriate custom for the choice of band council in situations not governed by section 74 of the Indian Act, R.S.C. 1985, c. I-5, must "include practices for the choice of a council which are generally acceptable to members of the band upon which there is a broad consensus." Bigstone v. Big Eagle (1992), 52 F.T.R. 109; Bone v. Sioux Valley Indian Band No. 290 (1996), 107 F.T.R. 133.

[17]            The Code was adopted by the Band following a plebiscite held on May 31, 1991, and a public meeting held on May 20, 1992. I am satisfied, at this stage, that there is strong evidence that it represents the custom for choice of council members, upon which there is a broad consensus.

[18]            However, it appears, that resolution 035/0102/00069 was not adopted in accordance with the Code. In fact, the Department of Indian and Northern Affairs Canada, in a letter dated January 31, 2002, expressed its concern regarding the validity of the respondent's December 7, 2001 decision:

The Department of Indian and Northern Affairs Canada (INAC) cannot act upon the Kanesatake Mohawk Council Resolution 035/0102/00069 of December 7, 2001, which accepts the results of the vote held on December 6, 2001, removes James Gabriel as Grand Chief of the Mohawk Council of Kanesatake (MCK) and appoints Steven L. Bonspille to this position. This resolution purports to affect the selection of your Band Council members and does not seem to be adopted in accordance with your custom election code ...

The foregoing raises the question of certainty and authority of the Mohawk Council of Kanesatake to conduct business of the Band.

[19]            The respondents argue that a custom existed of dismissing Council members by votes of non-confidence. However, the evidence suggests that prior to the Code, the selection and appointment of the Grand Chief and other Chiefs was made by the Six Nations Traditional Hereditary Clan Mothers in accordance with Band custom. Under that system, if a Chief was reprimanded more than three times, he or she would be dismissed from office. There is no evidence that votes of non-confidence had anything to do with this system.

[20]            The only two instances cited in support of such a custom occurred because of resignations and did not exclude the vote of band members living outside of the territories.

[21]            In any event, as mentioned above, a custom must include practices generally acceptable to members of the band and upon which there is a broad consensus. That is precisely the basis upon which the Code was adopted. The Code was intended to provide the grounds upon which a member could cease to be a member of Council. Any electoral process that does not respect the Code does not appear to represent the generally-accepted practice and should not be viewed as the custom of the Band. This raises a serious issue.

[22]            The respondents submit that the applicant acquiesced to the procedure that saw him removed and that, in the context of a contested Band election, he should be barred from seeking a writ of quo warranto.

[23]            Firstly, the evidence of acquiescence must be clear. At this stage, I am not satisfied that it is. The correspondence suggests that the applicant made efforts to put a stop to the illegal vote.

[24]            Secondly, the first ground for application for judicial review in the present case is based on subsection 18.1(4) of the Federal Court Act, and purports to set aside the decision of December 7, 2001 as being discriminatory and made against Band custom. Thus, the acquiescence of the applicant in that context would not be considered.

[25]            The respondents acknowledge that at this stage a prolonged examination of the merits of the case is not desirable, given the complexity of the factual issues involved. At this stage, I am satisfied, on the basis of the evidence before me, that the applicant has demonstrated a strong prima facie case.

Irreparable Harm

[26]            The applicant argues that he will suffer irreparable harm, which cannot be quantified in monetary terms, should I refuse to grant an interlocutory injunction reinstating him as Grand Chief of the Mohawk Council of Kanesatake pending a final order in the matter. The jurisprudence makes it clear that the office of Chief is political and that the law concerning wrongful dismissal does not provide for remedies for loss of elective office. This was recognized by my colleague MacKay J. in Frank v. Bottle et al (1993), 65 F.T.R. 89 at paras. 27-28 where he said:

In my view the law concerning wrongful dismissal, and damage awards for that, deals with situations of employer-employee relations and it does not provide for remedies for loss of elective office. The Chief is not an employee of Council nor in my view can he be considered an employee of the Tribe. The office of Chief is political, filled by valid election, with attendant responsibilities that transcend any concept that he is an employee of the Tribe, just as is the office of council member.

... Without determining the issues which are not before the Court, in my view, he would have no claim in damages for wrongful dismissal and probably no realistic monetary claim for loss of reputation.

See also Jock v. Canada , [1991] 2 F.C. 355 at para. 51 (T.D.) where Teitelbaum J. explained that as elected officials, the grand chief and chiefs are not deputies or servants and thus cannot be dismissed at the will of someone else.

[27]            Therefore, if I did not grant an injunction and the applicant subsequently succeeded with his application for judicial review, he would not be entitled to the relief normally available to employees who have been dismissed. This, in my view, constitutes irreparable harm.

[28]            Further, the position of Grand Chief is a prestigious one. In the words of MacKay J. "[t]he position of Chief is one of great honour within the Tribe ... ." (Frank v. Bottle et al, supra, at para.26).

[29]            The Grand Chief acts as a spokesperson for the Council and the community. This is a very important role, as he can speak out on various policies and issues affecting the community and have a considerable impact on public opinion. Loss of prestige cannot be compensated in damages.

[30]            Finally, the applicant was removed less than six months after having been reelected for a term of three years to the position of Grand Chief in elections conducted according to the new electoral system implemented in 1992. Every day out of office is time gone where he cannot speak out on behalf of the policies for which he was elected and which are of importance to the community, including his fight against illegal drug practices in the community. In effect, if an injunction were not granted and the applicant were to succeed with his application for judicial review, he would not have served most of his term. In my view, such a result amounts to irreparable harm.

Balance of convenience

[31]            The respondents submit that, where the constitutionality or the legality of election provisions are contested, the balance favours preservation of the election result until such time as a definitive declaration may be made by the Court.

[32]            The respondents draw an analogy between the Federal Court of Appeal's decision in Canada (Attorney General) v. Gould, [1984] 1 F.C. 1133 (C.A.), affirmed by [1984] 2 S.C.R. 124 ("Gould"), and the present situation. In Gould, a penitentiary inmate, prohibited from voting by paragraph 14(4)(e) of the Canada Elections Act, R.S.C. 1970 (1^st Suppl.) c. 14, had commenced an action in the Trial Division seeking a declaration that paragraph 14(4)(e) was invalid as contrary to section 3 of the Charter. However, the election was at hand, so the inmate applied to the Trial Division for an interlocutory mandatory injunction that he be permitted to vote. Because the election would be held before his application for judicial review could be heard, the decision on the injunction application would effectively dispose of the application. Mahoney J.A. held that this was not permissible as it amounted to an interim declaration of right. He added that the proper purpose of an interlocutory injunction was to preserve or restore the status quo, not to give the plaintiff his remedy, until trial (Gould, supra at 1140).

[33]            The respondents argue that these principles should apply to the case at bar in the sense that the injunction sought amounts to an interim declaration of right. I disagree. The Gould case is easily distinguished. In the case at bar, the applicant is not seeking to have a Band custom declared invalid. Rather, he is seeking the revision of a decision that he claims was made contrary to Band custom. An injunction here will not finally dispose of the matter. It will simply restore the status quo ante pending the final order in this matter. At the end of the day, if the applicant is unsuccessful in his application for judicial review, he will have to step down as Grand Chief.

[34]            Given these distinctions, I find that the Gould case does not apply to the present case.

[35]            After careful consideration of the evidence before me and the able arguments presented from both parties, I am satisfied that the balance of convenience favours the applicant.

[36]            I do not accept the respondent's argument that subsequent decisions of Council would be viewed by the community as irrevocably tarnished.

[37]            The legality and validity of the Council's resolution is at the heart of the debate and will be resolved on the merits of the case. Any decision made by Council using the same procedure would raise the same concern, i.e. that it may be discriminatory or contravene the electoral custom. This risk could not be prevented by the granting of, or the refusal to grant, an injunction.

[38]            With regard to the respondents' suggestion that the granting of an injunction would exacerbate an already explosive situation before the removal of the applicant and would present a threat to the peace and security of the community, I am not persuaded by this argument. The evidence is that the majority of citizens are law abiding. The only evidence presented of violent behaviour concerns incidents related to the execution of search warrants in connection to illegal drug activities. The fear of further intimidation tactics cannot be a valid ground for the Court to refuse the injunction relief.

[39]            With regard to the argument that the residents of the community have expressed a consensus that Mr. Gabriel should be removed, again, if the vote process was tainted because it discriminates against the non-residents, it is difficult to conclude that there was a consensus.

[40]            Further, the respondent Steven Bonspille should not be seen to benefit from this privileged position since the process that enabled him to get there is now being contested. Considering the fact that the applicant was removed from office and replaced by the respondent Steven Bonspille without a by-election being called (a by-election would have ensured that the entire community, not only the ones living on the territory, agreed with the removal of the applicant), it is pressing that the applicant be allowed to resume his duties as Grand Chief until a final decision is made in this matter.

[41]            Finally, the respondents' actions might be seen as undermining the new democratic system implemented in 1992. Any delay in supporting the new custom of the Code, which was adopted subsequent to a plebiscite and a public meeting, can only weaken its legitimacy.

[42]            The respondent urges the Court to leave the matter in the political arena where it belongs and states that if the applicant had not commenced an application for judicial review, a by-election would have been held within the following months and the matter resolved. I reject this argument as purely speculative. The evidence suggests that between the time the removal resolution was adopted and the filing of notice of application for judicial review by the applicant, the respondents had over a month to call a by-election. Yet they did nothing.

[43]            Towards the end of the hearing, counsel for the applicant, Mr. Peter Annis, suggested that his client would be willing to drop his application for judicial review on the condition that the respondents immediately hold a general election to elect a new Grand Chief. While it is not for the court to decide if it is the preferable course of action, I cannot stress enough how important it is for both parties, in order to serve the community's best interest, to consider working together to resolve their differences, something that neither the current injunction order nor the judicial review application can achieve.

                                                O R D E R

[44]            The motion for an interlocutory injunction is granted. The status quo as it was prior to the decision of December 7, 2001 is restored.

[45]            The Council is required to reinstate the applicant as Grand Chief of the Mohawk Council of Kanesatake until such time as the final Order is rendered in this matter or that the parties otherwise agree. The whole with costs.

                                                                      "Danièle Tremblay-Lamer"

J.F.C.C.