Ottawa, Ontario, March 3, 2006
PRESENT: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
Applicant
and
SWANRIVER FIRST NATION, ALBERTA
CHARLES CHALIFOUX,
THERESA WILLIER, LEON CHALIFOUX, DARRYLSOUND,
CLAYTON TWIN
COUNCILLORS OF THE SWAN RIVERFIRST NATION
BUDDY GIROUX
GERALD GIROUX JUNIOR
RON SUNSHINE, ELECTORAL OFFICER
Respondents
REASONS FOR ORDER AND ORDER
[1] Mr. John Giroux, the applicant, is a member of the Swan River First Nation who, on March 11, 2005, was re-elected as a member of the Band Council by a margin of three votes. Two appeals were brought in respect of that result by other members of the Swan River First Nation, namely Buddy Giroux and Gerald Giroux Junior. The Swan River First Nation Election Appeal Committee ("Committee") upheld each appeal, finding that John Giroux had engaged in corrupt election practices and that persons voted in the March 2005 election who were not entitled to vote. As a result, John Giroux was removed from the office of Band Councillor, a by-election was to be called, and John Giroux was ineligible to be a candidate in such by-election. John Giroux brings this application for judicial review of the decision of the Committee.
PRELIMINARY OBSERVATIONS
[2] The respondents to this application are the Swan River First Nation, four other individuals who were elected Band Councillors in the March 2005 election, the two individuals who appealed John Giroux's election, and the electoral officer. Proof of service was filed establishing service upon all of the respondents of both the notice of application and John Giroux's application record. However, no respondent filed any notice of appearance, responding evidence or application record.
[3] At the commencement of oral argument one of the named respondents, Acting Chief Mr. Leon Chalifoux, was allowed to speak to the Court. He read and tendered a written statement from the elders of the Swan River First Nation to the effect that: they supported the decision of the Committee; the Band Council and membership are the only entities with authority to make decisions under their custom election law; this matter does not belong in the courts; and they support a settlement of this dispute by the formation of a new, independent appeal body to review the decision removing John Giroux from office. An excerpt of a letter dated August 26, 2005 from Indian and Northern Affairs Canada was tendered that confirmed that a quorum of the Band Council had decided to reconvene the Committee to hear Mr. Giroux's appeal. The Committee was to be "an independent and anonymous [sic] body consisting of three (3) individuals with electoral and legal knowledge that are in no way affiliated with the First Nation or its members".
[4] Mr. Chalifoux and counsel for Mr. Giroux confirmed that notwithstanding this decision by the Band Council, a new, independent Committee had not been constituted, nor has any by-election been held. Thus, there remains a vacancy on the Band Council.
[5] As I advised Mr. Chalifoux, counsel for Mr. John Giroux, and those members of the Swan River First Nation that attended in Court, I agree that the best outcome of this application would be a resolution of this dispute, acceptable to all interested parties, which would be reached within the Swan River First Nation. However, no such resolution has been achieved in the period of almost one year that has elapsed since the election.
[6] Mr. Chalifoux advised that he was confident that any resolution could be reached within 30 days. In the result, I advised all those in Court that I would hear the oral argument advanced on Mr. John Giroux's behalf and reserve my decision until at least March 3, 2006. If the matter was not resolved by March 3, 2006, the Court would then render its decision. The parties were encouraged to use their best efforts to resolve this dispute within the community before that date.
[7] I was satisfied that I could hear oral argument on Mr. John Giroux's behalf in the absence of any responding evidence or argument because of the failure of the respondents to enter an appearance (Rule 145) and because I was satisfied that the respondents had been served with notice of the present hearing (Rule 38).
[8] The parties have advised the Court that no settlement has been reached. In the result, this decision is released in order to prevent any further delay. For the reasons that follow, I have decided that the application for judicial review should be allowed and decision of the Committee will be set aside.
THE EVIDENCE ADDUCED BY MR. JOHN GIROUX
[9] Mr. Giroux provided three affidavits in which he swore to the following facts.
[10] Within the Swan River First Nation there are six main family groups the: Giroux, Chalifoux, Courtoreille, David, Sowan (Sound) and Twin families. Each family votes for a member to represent the family's interests on the Band Council. On March 11, 2005, John Giroux was elected as Band Councillor representing the Giroux family for a term commencing in March of 2005 and ending in March of 2008. This was his second term on the Band Council, having been elected in the previous election of March 8, 2002. One of the respondents, Buddy Giroux, unsuccessfully ran against John Giroux in the 2005 election.
[11] Elections at the Swan River First Nation are governed by the Customary Election Regulations ("Regulations"), which were first adopted on May 12, 1993. Though the Regulations are written in modern form, they were intended to reflect the customary election practices of the Band. In order to prepare the Regulations, a community consultation process had taken place that included consultation with elders of the Swan River First Nation. The Regulations have been amended twice, first in 1996 and then in 2002. The 2002 amendments were made after consideration of the Supreme Court of Canada's decision in Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, in which it was held that the exclusion of off-reserve members of an Indian band from the right to vote in Band elections was inconsistent with section 15 of the Charter of Rights and Freedoms and was not saved by section 1. The Regulations, as amended on February 5, 2002 allowed for, among other things, voting by off-reserve members.
[12] In preparation for the 2005 Swan River First Nation election, applications for Band membership were received from 20 potential new voters from the various family groups. These were considered by the Membership Committee in 2004. The Membership Committee comprises a member of each family group. In 2004 the Committee was composed of: Esther Giroux, Hugh Chalifoux, Ruby Sound, Darryl Davis, Wade Twin and Doris Courtoreille. Three of the 20 membership applicants were from the Giroux family group-Peggy Lee-Ann Lafleur, Judy Boilly and Cara Laboucane. Mr. John Giroux says that, pursuant to the Swan River First Nation's Membership Code ("Code"), two of the applicants were "automatic" applicants whose membership was non-discretionary and not subject to appeal (Lafleur and Boilly), and that the third (Laboucane) had previously been approved for Band membership and had received benefits of Band membership, but had lost her documentation.
[13] All 20 applications for membership were unanimously approved by the Band Council in December of 2004. Due to inadvertence on the part of the membership clerk, the list of approved applicants was not posted, but later Band Council Resolutions approving each applicant's membership were posted. Section 7.5 of the Code states that there is a 30-day period during which persons may appeal against the inclusion to Band membership of any of the approved applicants. No appeals in respect of the three additions to the Giroux family were made after the posting of the December 2004 Band Council Resolutions, nor was there any appeal concerning the three approved Giroux family applicants when a List of Electors, including their names, was posted in February of 2005.
[14] The Band Council sought and obtained legal advice regarding the fact that the approved membership list had not been posted. In a letter dated February 3, 2005, the Council was advised by its lawyers that no steps were required to rectify the issue because the Membership Code did not specifically require the membership list to be posted.
[15] As stated above, John Giroux won the March 11, 2005 election by a margin of three votes. The respondents Buddy Giroux and Gerald Giroux Junior appealed against his election. Appeals of election results are governed by the Regulations. In his appeal, Gerald Giroux accused John Giroux of passing the amended Election Regulations in 2002 without doing proper consultation. Buddy Giroux concentrated his appeal primarily on the failure to post the names of Lafleur, Boilly and Laboucane so that an appeal of their inclusion to membership could be made.
[16] Although he had asked for further particulars of the allegations being made against him, prior to the hearing John Giroux was only given Buddy Giroux's and Gerald Giroux's notices of appeal. The notices did not specify what allegations were to be made against John Giroux; instead, the notices quoted the sections of the Regulations, Code and Indian Act, R.S. 1985, c. I-5, upon which each appellant intended to rely.
[17] Prior to the hearing, through a letter from his counsel, John Giroux made an unspecified allegation of a reasonable apprehension of bias, suggesting "that certain members of the Committee have expressed views and opinions such that a reasonable apprehension of bias has been created". Notwithstanding this objection, no member of the Committee was disqualified from hearing the appeal.
[18] At the hearing before the Committee, John Giroux heard Buddy Giroux and Gerald Giroux present their cases against him. Each presented their reasons for their appeal, referred to written notes, and called witnesses. In response, John Giroux presented materials relating to prior legal proceedings that were said to have dealt with the validity of the 2002 amendments to the Regulations. He also referred to the legal advice provided to the Band as a result of the failure to post the list of new members.
[19] The appeal was then adjourned so that the Committee could seek legal advice; however, no legal advice was obtained. The Committee met again on March 24, 2005 and informed John Giroux that he had been found guilty of corrupt election practices and that a by-election would be called to elect a different representative for the Giroux family. Pursuant to section 17.3 of the Regulations, John Giroux was ineligible to be a candidate in the by-election since it was his removal from office which had prompted the by-election.
[20] In an attempt to stop the by-election from taking place, John Giroux applied to this Court for an interlocutory injunction. The Band Council subsequently informed John Giroux that it would review his removal as Councillor and that he would be reinstated as a Councillor. In a decision dated May 3, 2005, my colleague Mr. Justice Pinard dismissed the application for an interlocutory injunction as being moot, since a resolution of the Band Council, dated May 2, 2005, resolved to cancel the by-election. This, however, never occurred, and in July and August of 2005 a number of Band Council members made attempts to again call a by-election for the Giroux family.
[21] For whatever reason, a by-election has yet to be called.
THE RELEVANT PROVISIONS OF THE CODE AND THE REGULATIONS
[22] The following provisions are found in the Membership Code:
5.1 Persons made eligible to apply for membership under the Indian Act as amended on April 17, 1985
(a) The following person who lost membership and Indian Status prior to April 17, 1985, are entitled for membership in the Band upon acquiring Indian Status pursuant to s. 6(1) (c) of the Indian Act:
(i) women who married a person who was not Indian;
(ii) persons born of a marriage entered into after the 4th day of September 1951, and who had attained the age of twenty one years, whose mother and whose father's mother were not status Indians;
(iii) illegitimate child of a female Indian Band member whose names were struck from the Band Membership list by Indian Affairs;
(iv) persons who were non-voluntarily enfranchised.
(b) The above persons are automatically entitled to have their names entered on the Swan River Indian Band Membership List, maintained by the Band, upon submitting to the Band Council an application with satisfactory written proof that their names have been re-entered on the Indian Registry pursuant to s. 6(1) (c).
(c) Membership granted to the above persons is not subject to appeal.
[...]
7.1 All applications for membership in the Band shall be submitted by the applicant or the Band member parent of the infant applicant in writing to the Band Council with all necessary documentation and proof required to establish the eligibility of the applicant.
7.2 Within ninety (90) days of receipt of completed applications, they shall be reviewed by the Band Council.
7.3 Upon reviewing the application for the persons eligible under s. 4.1, s. 5.1, s. 5.2(a) and s. 5.2(b) and determining all necessary proof has been provided, the Band Council shall place their names on the Membership List. This decision is not subject to appeal.
7.4 Upon reviewing the application for persons eligible under s. 5.2(c); 5.3; 5.4; and 5.5 and determining that;
(a) the applicant is duly eligible for membership;
(b) their submission to membership will not be harmful and not adversely affect the interests of the Band;
(c) the applicant intends to respect the traditions and customs of the Band:
The Band Council shall either approve or reject the application.
7.5 In the event that the application is approved, the applicant's name be entered on the Band list subject to no appeal of their decision within thirty (30) days
7.6 In the event the application is rejected, the applicant shall be immediately notified in writing of the decision and the reason therefore within ten (10) days.
8. Appeals
8.1 A member of the Band, or the applicant, may appeal the decision of the Band Council regarding the approval or rejection of an application pursuant to s. 7.4.
8.2 The appeal and the reasons therefore shall be made by signed letter to the Band Council within thirty (30) days of the decision of the Council.
8.3 Within six (6) months of the appeal, the Band Council will hold a Membership Vote to determine whether the applicant shall be added to the Membership List.
8.4 The Band Council shall appoint [an] Electoral Officer who shall be responsible for conducting the Membership Vote including posting notices, arranging for polling stations and ballots, supervising voting, counting votes and posting results.
8.5 The electors shall be given thirty (30) days' notice of the Membership Vote. The notice shall be publicly posted on the Reserves stating the time place and date of the Band Membership Vote. A list of eligible electors shall be attached. The list of persons whose applications have been appealed, with [an] indication of their approval or rejection by the Band Council, shall also be posted with the notice.
8.6 The Membership Vote shall be conducted by secret ballot. The ballot shall read as follows:
"Do you approve the following persons being admitted to the membership of the Swan River Indian Band?"
This question shall be followed by a listing of the names of applicants and opposite their name [a] box marked YES or NO.
8.7 Those name[s] receiving approval of a majority [of] the electors of the Band shall have their names added to the Band Membership List.
The Regulations contain the following relevant provisions:
7.2 Requirement to Register
Any Elector not registered to a Family Group on the List of Electors must notify the Electoral Officer at least twenty-one (21) days prior to the date set for the Election of Councillors as to Family Group with which they wish to be registered. Within twenty-four (24) hours of receiving such notification, the Electoral Officer must update the List of Electors including those attached to the Notices of Nomination.
7.3 Request to Amend List of Electors
If any Elector does not agree with the registration of an Elector to a particular Family Group they may, at least fifteen (15) days prior to the date set for the Election or By-election for Councillors, submit a written request to the Electoral Officer to have the list of Electors amended.
[...]
12.1 Grounds for Appeal of Election of Councillors
Within five (5) consecutive days of and including the Election Day, or in the event a Councillor elected by acclamation, within five (5) consecutive days of and including the day nominations close, any Elector within a Family Group may appeal the results of an Election, By-election or Run-off Election of a Councillor for their Family Group if, on reasonable probable grounds they believe:
a) An error was made in the interpretation or application of the Regulations materially and directly affecting the conduct and outcome of the Election, By-election or Run-off Election;
b) A Candidate did not meet the eligibility requirements set forth in 6.5;
c) A Candidate was guilty of promoting or aiding corrupt Election practices including, but not limited to, bribery, threats and intimidation of Candidates, Electors, the Electoral Officer or Polling Clerks;
d) A person voted who was not eligible to vote; or
e) Any other circumstance or event materially and directly affecting the conduct and outcome of the Election, By-election or Run-off Election.
[...]
12.3 Notice of Appeal
a) An Appeal may be made by forwarding a Notice of Appeal in writing to the Electoral Officer outlining the grounds for the appeal together with a cash deposit of One Hundred ($100.00) Dollars.
b) The Notice of Appeal must be received by the Electoral Officer within five (5) days from the Election Day giving rise to the appeal.
12.4 The Electoral Officer will:
a) In the case of an appeal with respect to an Election, By-election or Run-off Election for Councillors, forward the Notice of Appeal to all Candidates within the same Family Group as the appellant;
[...]
c) In either event, post a Notice of Appeal in public places on the Swan River Reserve and any other locations designated by the Council.
12.5 Election Appeal Committee
a) The Election Appeal Committee for an Appeal of an Election, By-election or Run-off Election of a Councillor will consist of the Council excluding the individual in respect of which the appeal is brought
[...]
12.6 Meeting of the Election Appeal Committee
Subject to 12.7, within fourteen (14) days of receiving the Notice of Appeal, the Electoral Officer will convene a meeting of the Committee for the purpose of hearing the appeal. The meeting will be chaired by the Electoral Officer who will not be entitled to vote.
12.7 Notice of the meeting must be posted in the same manner as the Notice of Appeal and delivered to the appellant at least three (3) days prior to the date set for the meeting.
12.8 The appellant, the individual in respect of which the appeal is brought and other interested parties or their representatives may present oral or written submissions to the Committee at the meeting.
12.9 Within five (5) days of the meeting, the Committee will promptly make one of the following decisions:
a) To deny the appeal on the basis the evidence presented did not fully and properly establish the necessary grounds for an appeal;
b) To uphold the grounds for an appeal but allow the results of the Election in question to stand as the infraction did not materially or directly affect the result of the Election; or
c) To uphold the appeal and call for:
i) a New Election, By-election or Run-off Election;
ii) a new Election, By-election or Run-off Election for only those offices materially and directly affected; or
iii) a Run-off Election.
12.l0 Forthwith, the Electoral Officer shall notify affected parties of the decision.
[...]
18.1 Approval by Council
Any amendment(s) to the Regulations must first be approved by a quorum of the Council.
18.2 Approval of Amendments by Electors
Once approved by a quorum of Council, amendments must then be approved by a majority of the Electors from each of at least four (4) of the Family Groups signifying their approval in a Petition. The Petition must include a copy of the proposed amendments, each Electors name, their Family Group, whether they approve or disapprove of the proposed amendments, their signature and the date on which it was signed. Each Elector's signature must be witnessed by another individual who is at least eighteen (18) years of age.
THE DECISION OF THE COMMITTEE
1. The appeal of Gerald Giroux Junior
[23] As appears from the reasons of the Committee attached to a Band Council Resolution dated April 4, 2005 that removed Mr. Giroux from office, the Committee found that John Giroux had not fulfilled his responsibility towards his family members regarding the 2002 amendments to the Regulations. The Committee referred to Schedule B, number 5 of the Regulations which was said to require Mr. Giroux to formulate, review and consult with members of his family group about the amendments. Instead, the Committee found that "John appeared to consult with only selective members of his family group excluding Gerald who belongs to the Giroux family group".
[24] The Committee also found that in connection with the 2002 amendments, John Giroux passed around petitions that contravened section 18.2 and Schedule B of the Regulations. Section 18.2 states that a petition must include a copy of the proposed amendments, each elector's name, their family group, whether they approve or disapprove of the proposed amendments, their signature, the date and a witness' signature. The Committee found that the petition that John Giroux circulated did not list all eligible voters of the Giroux family and also that Gerald was not given an opportunity to approve or disapprove of the proposed amendments.
[25] The Committee noted that there were discrepancies between the Band Council Resolution 457-38-01-02, dated January 28, 2002 (circulated with the petition) and the January 28, 2002 minutes from the meeting approving of the amendments. The discrepancies were stated to be as follows:
1) The January 28, 2002 minutes approving the amendments did not have the amendment to section 8.7 in the minutes but yet the BCR that was signed by John and circulated with the petition, had the additional amendment [to] 8.7 on it.
This was not approved in the January 28meeting minutes, to include an amendment to section 8.7.
The Committee finds that this invalidates the amendment to section 8.7 to the Swan River customary election regulations. Section 8.7 deals with allowing for [mail-in] ballots.
2) The other discrepancy is that the minutes say that the amendment to section 9.1 was to be deleted but in the BCR 457-38-01-02 [distributed] with the proposed amendments, section 9.1 was not deleted and remained on the BCR and is nowhere to be seen in the January 28 meeting minutes approving the proposed 9.1 amendment.
3) On the BCR [circulated] with the proposed amendments and the clause under the amendment section 9.1 that was said to be deleted, there is an additional clause that was not part of the approved January 28, 2002 minutes but yet it was included in the BCR.
The Committee found that this was an act of fraud for John to circulate Band Council Resolution 457-38-01-02 with the petition knowing there were additional clauses on the Band Council Resolution that were not approved at the January 28 meeting.
[26] The Committee therefore "held that John Giroux is guilty of 12.1(c) corrupt election practices by John committing fraud in circulating unapproved amendments on the BCR that allowed voters to vote that were not eligible to be placed on the voters list". The Committee also found that Mr. Giroux's failure to allow "all members of the Giroux family group to participate in the amendment process" violated 12.1(c). Lastly, the Committee found that John violated 12.1(c) by "being selective in membership and amendment approvals of his family group, and by John allowing new voters to vote in the 2002 election and the 2005 election when John knew they were not eligible". As a result, section 12.1(d) of the Regulations was contravened: persons voted in the 2005 election who were not entitled to vote.
2. Appeal of Buddy Giroux
[27] This appeal concerned the failure of the Membership Committee or the Band Council to post the names of proposed additions to the membership list. A letter from Jerome Slavik, the lawyer who was involved in the creation of the Band membership Code, dated May 23, 1997, read:
The decision of the council (approved applications) must be posted for a period of 30 days. Any member or applicant may appeal the decision. If no appeal is submitted in writing within 30 days, the decision of council stands.
[28] The Committee noted that because the approved additions to the Band membership list were not posted as such, Buddy Giroux and the rest of the Giroux family did not have an opportunity to review the approved applications since they were completely unaware that new members were being added to the Band membership. If John Giroux had followed proper procedure "by posting the names of the newly approved applications" "as defined to him by Jerome", Buddy Giroux would then have had an opportunity to review the council's decisions. John was found to be "dishonest" in allowing this to happen.
[29] The Committee held that voters who were ineligible to vote voted in the 2005 election, as they were added to the Band's Membership contrary to the provisions of the Swan River Membership Code. This would have affected the outcome of the 2005 election. Furthermore, the Committee found that this constituted corrupt election practices by John Giroux, who was therefore guilty of breaching 12.1(c) of the Regulations.
3. The Issues Raised by John Giroux
[30] The issues may be framed as follows:
1. What is the standard of review to be applied to questions of procedural fairness?
2. Did the Committee breach the requirements of procedural fairness in the following respects:
a. by refusing to give particulars to Mr. Giroux;
b. by refusing a requested adjournment;
c. by failing to remedy a reasonable apprehension of bias; and
d. by failing to give adequate reasons for its decision.
3. What is the standard of review to be applied to the substantive decision of the Committee?
4. Did the Committee commit a reviewable error in reaching its decision by:
a. basing its decision upon irrelevant considerations and a lack of evidence; and
b. reaching an unreasonable and perverse conclusion.
THE CONSIDERATION OF THE ISSUES
1. What is the standard of review to be applied to questions of procedural fairness?
[31] I accept Mr. Giroux's submission that it is only in respect of the review of the Committee's substantive decision that a pragmatic and functional analysis is required in order to determine the appropriate standard of review. Evaluating whether the requirements of procedural fairness have been met is a legal question, to be answered by the Court. See on this point, Canadian Union of Public Employees (C.U.P.E.) v. Ontario(Minister of Labour), [2003] 1 S.C.R. 539 at paragraphs 100 to 103.
2. Did the Committee breach the requirements of procedural fairness?
[32] The content of the duty of fairness is not constant or absolute, but varies from situation to situation and must be decided in the specific context of each case. All of the circumstances must be considered in order to ascertain what the duty of procedural fairness requires in any particular case. As the majority of the Supreme Court of Canada observed in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph 22, the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made, so that those affected by a decision are able to put forward their position and evidence fully and have them considered by the decision-maker.
[33] In order to determine what in any case the duty of fairness requires, one must consider a number of factors, including:
(a) the nature of the decision being made and the process followed in making it;
(b) the nature of the statutory scheme and the terms of the statute pursuant to which the decision-maker operates;
(c) the importance of the decision to the individual or individuals affected by the decision;
(d) the legitimate expectations of the person challenging the decision; and
(e) the choices of procedure made by the decision-maker.
See: Baker, cited above, at paragraphs 23 through 27.
[34] This Court has previously considered these factors in the context of the appeal process provided for in the Regulations in Sound v. Swan River First Nation, [2004] 1 F.C.R. 336. There, my colleague Madam Justice Heneghan wrote at paragraphs of 47 through 52:
47 When these factors are considered in the present case, I conclude that the duty of fairness was breached by the Committee. The applicant did not know the specific allegations made against him by Robert Sound, or the evidence submitted by Robert Sound to support such allegations. The notice of appeal letter provides only a brief glimpse of the allegations. In my opinion, this letter does not provide enough information about the alleged improprieties in election practices that would enable the applicant to know the exact nature of the evidence against him and the case to be met.
48 First, the nature of the decision being made is regulatory and adversarial. The purpose of the appeal process and the Committee's decision is to discover improper conduct in elections and punish individuals accordingly, by stripping them of their elected official status. Another purpose is to protect the integrity of the election process established by the Swan River Nation. The Committee must decide, on the evidence presented, whether it could be fully and properly established that the applicant was guilty of corrupt election practices, pursuant to paragraph 12.1(c) of the Regulations.
49 Second, the regulatory scheme governs all aspects of elections and the holding of elected office for the Swan River First Nation. The scheme is intended to reflect the customary election practices of the Swan River First Nation and was first adopted in 1993 after a community consultation process. The process to be followed in an appeal, as required by the Regulations, is through a hearing convened by the Committee. At the hearing, the appellant, the candidate whose election is being appealed and other interested parties are permitted to present oral or written submission to the Committee. A degree of openness and fairness is already inherent in this process by the provision of a hearing before the Committee.
50 Third, the decision under review is one which can be expected to have a significant impact on the applicant's employment and financial stability. The cross-examination of Leon Chalifoux reveals that band councillors receive a monthly salary and expenses for travel. Perhaps more importantly, the impact of this decision is significant on the applicant's reputation in the community. Furthermore, the respondent, Robert Sound, also has an important stake in the Committee's decision as he apparently believes the allegations of corrupt election practice set out in his notice of appeal and desires to participate in a By-election for the position held by the applicant for the Sound family group.
51 Fourth, it is not apparent that the applicant had a legitimate expectation that any particular procedure, beyond that expressly stated in the Regulations, was to be followed by the Committee. The applicant, as an elected Band councillor at the time, had sat on the Committee hearing of an appeal of a Mr. Dwain Davis. Mr. Davis had appealed against the "whole election". The fact that the applicant did not complain of the procedure followed in the Davis appeal is not a ground, in my opinion, to find that he should be precluded from now claiming that the principles of natural justice were denied during the hearing of Robert Sound's appeal against the applicant's own election.
52 Fifth, the procedure chosen by the Committee itself in this case was that both the appellant and the candidate whose election was being appealed, as well as other interested parties, such as elders and members of Robert Sound's family, had a chance to present their submissions to the Committee, orally, without having an opportunity to hear the other side. Neither side was provided with written representations of the other side prior to the hearing. The applicant had been provided only with the brief notice of appeal filed by Robert Sound.
[35] I adopt Madam Justice Heneghan's application of the factors set out in Baker to the Regulations and the evidence before me. I would add the following three observations. First, with respect to the nature of the statutory scheme, the Regulations do not provide for any appeal from the Committee, although its decisions may be reviewed by this Court. Second, with respect to the importance of the decision, it must be remembered that election outcomes profoundly affect not just a candidate, but also the members of the community who the candidate is to represent. Third, as in Sound, the evidence in this case does not establish any legitimate expectation as to process, except that the process would be compliant with responsibilities articulated by this Court in Sound. There, Madam Justice Heneghan wrote at paragraph 54:
54 In my opinion, the Committee should have allowed the applicant an opportunity to hear, or receive in writing, the specific allegations made by the respondent, Robert Sound. Ideally, this should have been done prior to the hearing, allowing a reasonable amount of time for the applicant to prepare a response to the allegations. Further, the respondent Robert Sound, should then have been provided with a copy of the applicant's representations, prior to the hearing of the Committee. However, this also could have been afforded at the hearing itself, by permitting the applicant to hear the allegations and evidence tendered by Robert Sound and allowing Robert Sound the same in respect to the applicant's evidence. In failing to provide a fair procedure, the Committee breached the duty of fairness which should have been afforded to the applicant and to the respondent, Robert Sound, as well.
[36] Turning then to the conclusion to be reached after consideration of the "Baker" factors, the nature of the decision, the process required by the Regulations, the absence of any right of appeal, and the importance of the decision all point to the content of the duty of fairness being more, rather than less, extensive. Regard must be had, however, to the procedural choices made by the Committee.
[37] With this in mind, I now turn to the specific concerns raised by Mr. Giroux.
(a) Did the duty of fairness require the Committee to provide particulars of the allegations made against Mr. Giroux prior to the hearing?
[38] As Madam Justice Heneghan observed in Sound, ideally before the hearing Mr. Giroux should have received notice of the specific allegations made against him. To provide such particulars at the hearing runs the risk that, after hearing the allegations of those opposing the election, procedural fairness would require the hearing to be adjourned in order for a reasonable amount of time to be provided to the elected person in order to allow that person a fair opportunity to prepare a response. Here, however, the Committee chose to follow the procedure whereby particulars were provided at the appeal hearing.
[39] On the particular facts of this case, I conclude that such choice of procedure by the Committee did not violate the requirements of procedural fairness. I reach that conclusion because the minutes of the hearing before the Committee show that Mr. Giroux was able to respond to the allegations by referring to the Sound decision, and another decision, as they related to the validity of the 2002 amendments to the Regulations. He was able to provide copies of the letter of legal advice to the Band with respect to the failure to post the list of approved applications for membership and the Band Counsel Resolutions with respect to the acceptance of the membership applications of the three new members of the Giroux family. Mr. Giroux did not seek any adjournment after hearing the allegations against him and he adduced no evidence before this Court of facts, evidence or argument that he was unable to adduce or advance because he did not receive particulars of the allegations against him in advance of the hearing. On this evidence Mr. Giroux has not satisfied me that he did not have enough information to allow him to respond intelligently to the case against him.
[40] I find, therefore, that Mr. Giroux's participatory right to put forward his evidence and argument fully was not violated by the failure of the Committee to see that particulars were provided before the hearing. I caution, however, that the same conclusion might not be reached in another case on different evidence. I echo Madam Justice Heneghan's comments that ideally particulars should be provided in advance of any hearing before the Committee. This could easily be accomplished, for example, by requiring detailed notices of appeal which would be provided to the person who is subject to the appeal before the hearing.
(b) Did the duty of fairness require the Committee to adjourn the hearing at Mr. Giroux's request so that he could obtain particulars?
[41] As noted above, Mr. Giroux did not seek an adjournment once the appeal hearing commenced. An adjournment was only sought so that Mr. Giroux could obtain particulars before the hearing commenced. For the reasons given above with respect to Mr. Giroux's request for particulars, I find that procedural fairness did not require that the hearing be adjourned for that purpose.
(c) Was there a reasonable apprehension of bias?
[42] The test at law for the existence of the reasonable apprehension of bias was described in the following terms by the Supreme Court of Canada in Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 at page 394:
[...] the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically―and having thought the matter through―conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly." [Underlining added]
[43] As a matter of law, a high threshold must be met in order to establish either bias or the apprehension of bias. See: R. v. S. (R.D.), [1997] 3 S.C.R. 484 at page 532; and Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259 at paragraph 76.
[44] In the present case, the evidence establishes that only a vague expression of concern with respect to bias was put before the Committee. In correspondence to the electoral officer, Mr. Giroux's counsel expressed his concerns as follows:
Further, our client is concerned with regard to the composition of the appeal committee and suggests that certain members of the committee have expressed views and opinions such that a reasonable apprehension of bias has been created. As such, our client will be opposing the make up of the appeal committee on Monday, March 21st, 2005.
[45] The evidence advanced on Mr. Giroux's behalf in this proceeding in support of his allegation of bias is, in its entirety, as follows:
54. In addition, due to previous history with a number of members of the Appeal Committee, I objected to the constitution of the committee as I felt there was a reasonable apprehension of bias on the part of some of the members.
[...]
66. I am advised by my counsel, and believe that there is merit to my application for judicial review in that:
(a) the Election Appeal Committee breached the requirements of natural justice since:
[...]
(ii) there was a reasonable apprehension of bias in one of the decision-makers since the respondent Leon Chalifoux remained a member of the Election Appeal Committee notwithstanding that he had appealed against my election previously.
[46] In my view, this evidence falls short of meeting the evidentiary threshold required to establish bias. Even if Mr. Chalifoux had appealed against Mr. Giroux's election in a prior election, without evidence as to the grounds of such appeal I am not satisfied that on this evidence an informed person, viewing the matter realistically and practically, and having thought the matter through, would think it more likely than not that Mr. Chalifoux would not decide the issues before him fairly.
[47] Put more simply, on the evidence before me, it is impossible to reach a conclusion as to whether a reasonable apprehension of bias arose from Mr. Chalifoux's membership on the Committee.
(d) Did the Committee breach its obligation to provide adequate reasons?
[48] The Committee did provide reasons for its decision. What is at issue is the adequacy of those reasons.
[49] In Via Rail Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25, the Federal Court of Appeal considered the obligation to provide adequate reasons. Mr. Justice Sexton, writing for the Court, described the obligation in the following terms:
21 The duty to give reasons is only fulfilled if the reasons provided are adequate. What constitutes adequate reasons is a matter to be determined in light of the particular circumstances of each case. However, as a general rule, adequate reasons are those that serve the functions for which the duty to provide them was imposed. In the words of my learned colleague Evans J.A., "[a]ny attempt to formulate a standard of adequacy that must be met before a tribunal can be said to have discharged its duty to give reasons must ultimately reflect the purposes served by a duty to give reasons." [See Note 7 below]
22 The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion. [See Note 8 below] Rather, the decision maker must set out its findings of fact and the principal evidence upon which those findings were based. [See Note 9 below] The reasons must address the major points in issue. The reasoning process followed by the decision maker must be set out [See Note 10 below] and must reflect consideration of the main relevant factors. [See Note 11 below]
[Footnotes omitted]
[50] In the present case, the reasons attached to the Band Council Resolution that removed Mr. Giroux from office are sufficient to convey to Mr. Giroux why he was removed from office and what evidence and factors the Committee considered in reaching its decision. They are also sufficient to enable the Court to determine the correctness or reasonableness of the Committee's decision. I find, therefore, that the reasons of the Committee were adequate.
[51] Having found that the evidence before me does not establish any breach of the requirements of procedural fairness, I turn to consider the substance of the Committee's decision. First, it is necessary to determine the deference owed, as a matter of law, to that decision by application of the pragmatic and functional analysis.
3. The standard of review to be applied to the substantive decision of the Committee
[52] Mr. Giroux argues that the proper standard of review is correctness and supports such conclusion by the following pragmatic and functional analysis:
1. Existence of a Privative Clause: the Indian Act authorizes matters relating to elections to be dealt with in Band regulations. The Indian Act does not contain a privative clause, nor do the Regulations of the Swan River First Nation.
2. Expertise of the Tribunal: The questions of whether the Regulations were properly amended and whether it is necessary to post approved Membership applications are questions of law. Courts have a greater degree of expertise on matters of law than the Committee, which does not possess any special expertise regarding election practices or conducting hearings. This implies a higher level of scrutiny by the Court.
3. Purpose of the Act as a Whole, and the Provision in Particular: The intent behind the Act is to provide autonomy to groups such as the Swan River First Nation. This implies a lower level of scrutiny by reviewing. However, the decision does not involve "polycentric" considerations since the appeals involved the bipolar opposition of the parties instead of a balancing of costs and benefits between many different parties. Furthermore, the courts have recognized that the intent of self-regulation does not preclude courts from judicial review of Band election procedures.
4. Nature of the Problem: determining whether the amended Regulations are valid and whether it is legally necessary to post approved Membership applications are both questions of law, implying a high level of scrutiny by a reviewing court.
[53] In summary, Mr. Giroux argues that the majority of the aspects of the pragmatic and functional analysis point to a high level of scrutiny by a reviewing court and therefore the proper standard of review is correctness.
[54] I respectfully disagree with that conclusion. Dealing with the required elements of the pragmatic and functional analysis I am of the view that:
1. The absence of a clause either prohibiting or granting any right of appeal from the Committee is a neutral factor, which implies neither deference nor enhanced scrutiny.
2. While courts have greater expertise with respect to the interpretation of legislation and regulations, the Committee has significantly greater expertise on matters such as knowledge of the Band's customs (for example whether Membership applications were posted in the past). The Committee also has superior expertise on factual matters such as whether the 2002 petition said to have been distributed by Mr. Giroux contained the names of all eligible voters.
3. I accept that the intent of the Indian Act and the Regulations is to provide autonomy to bands such as the Swan River First Nation and that this counsels deference. At the same time, to the extent that the Committee was adjudicating upon Mr. Giroux's right to hold office greater scrutiny of its decision is warranted.
4. I disagree that the question before the Committee should be characterized as a pure question of law. The inquiry was far more fact based: did Mr. Giroux engage in a corrupt election practice and did ineligible voters vote in the election. Great deference should be accorded to the Committee's factual determinations. To the extent that the Committee was obliged to consider what, as a matter of law, constitutes a corrupt election practice under the Regulations, little deference is owed to the Committee's legal interpretation of the Regulations.
[55] In summary, I conclude that the Committee's legal interpretation of the Regulations should be reviewed on the standard of correctness and its conclusions of fact on the most deferential standard, patent unreasonableness. Questions of mixed fact and law should be reviewed on the intermediate standard of reasonableness simpliciter.
4. Did the Committee commit any reviewable error in reaching its decision?
[56] The Committee's decision may be summarized as follows:
1. Mr. Giroux was guilty of corrupt election practices because:
(i) when amendments were proposed in 2002 to the Regulations Mr. Giroux:
-breached his obligation under paragraph 5 of Schedule B of the Regulations by failing to consult with all of the members of his family group;
-violated the Regulations because all eligible voters of the Giroux family group were not listed in the petition that was distributed in 2002 so that the relevant petition did not comply with section 18.2 of the Regulations; and
-was dishonest because he circulated a Band Council Resolution with the petition that did not comply with the minutes of the Band Council meeting at which the resolution was passed.
(ii) he allowed the new voters to vote in the 2002 and 2005 elections when he knew they were not eligible to vote.
(iii) he knew that the decision of the Band Council approving new members must be posted for 30 days. It was a corrupt election practice for Mr. Giroux not to follow the procedure to post the list of approved members.
(iv) he denied Buddy Giroux, the Giroux family as a whole and the Band membership an effective right to appeal the decision because he did not post the list of approved members.
2. Mr. Giroux allowed people who were not qualified to vote in the 2005 election to vote in that election.
[57] To the extent that the Committee relied upon alleged misconduct on Mr. Giroux's part relating to the process that led to the 2002 amendment of the Regulations, it is my respectful view that the Committee erred in law by having regard to matters that were irrelevant.
[58] Interpreted properly, section 12.1 of the Regulations must relate to conduct that materially and directly affected the conduct and outcome of the election in question. I reach this conclusion on the basis of the plain meaning of the words used in section 12.1, particularly in 12.1(e) which refers to any "other circumstance or event materially and directly affecting the conduct and outcome of the Election" and, as explained below, because any other interpretation would result in an absurd result.
[59] I acknowledge that the amendments to the Regulations in 2002 broadened the electorate and so would, in that sense, impact upon all future elections. However, even assuming without deciding that Mr. Giroux engaged in some impropriety that led to the amendment of the Regulations in 2002, by 2005 that misconduct was too remote in time to, as a matter of law, amount to a corrupt election practice. To reach any other conclusion would lead to the absurd result that Mr. Giroux could never win an election without being subject to disqualification for promoting or aiding corrupt election practices as a result of his activities in 2002.
[60] Any concerns regarding the validity of the 2002 amendments should have been challenged at that time. Since then: two elections have been conducted pursuant to the amended Regulations; a court challenge brought in respect of the validity of the 1996 and 2002 amendments was, by consent, dismissed; no appeal was brought in respect of the approval of membership of any person the appellants believed was not entitled to vote in 2005 (as permitted by section 8.1 of the Code); and after the list of electors was finalized for the 2005 election no appeal was brought by anyone with respect to the registration of any of the new electors to a particular Family Group (as permitted by section 7.3 of the Regulations).
[61] While this is a sufficient basis upon which to conclude that the Committee was not entitled to look at Mr. Giroux's alleged conduct with respect the amendment of the Regulations in 2002, I also note that the obligations referred to by the Committee found at paragraph 5 of Schedule B of the Regulations are obligations placed upon the Chief and Council as a whole. Schedule B provides in paragraph 5 that the powers and authority of the "Chief and Council" include:
5. Formulating, reviewing, and approving amendments to the Membership Code, Customary Election Regulations, By-laws, legislation, or other acts or policies of the First Nation and consulting with the membership with respect to any such amendments.
[62] The Committee provided no explanation for its conclusion that these were obligations of Mr. Giroux alone. Even if I assume that he was delegated some responsibility by the Chief and Council in respect of his family members, the Committee provided no explanation as to why any irregularity in the amendment of the Regulations did not affect the validity of the 2002 election, or the validity of the election of the four other Band Councillors in 2005. Those four Band Councillors comprised the Committee that considered the appeals.
[63] I now turn to consider the Committee's decision that Mr. Giroux committed a corrupt election practice in respect of the three electors added to the list of electors as members of the Giroux Family Group in 2005, and that three ineligible persons voted in the election.
[64] The Code states that membership applications are to be submitted in writing to the Band Council (section 7.1) which is the entity stated to be responsible for reviewing and approving or rejecting applications (sections 7.2, 7.3, and 7.4). As noted above, to the extent that the Membership Committee may provide recommendations to the Band Council it is relevant that at the material time Mr. Giroux was not a member of the Membership Committee. It is therefore significant that the Committee's reasons do not consider the following relevant facts and matters:
1. Given that Membership applications are required to be decided by the Band Council, apparently after it receives a recommendation from the Membership Committee, how was it that it was Mr. Giroux's personal responsibility to post the list of approved applications so that the failure to post the list was a corrupt election practice on Mr. Giroux's part?
2. The Code contains no obligation to post the list of approved new members.
3. While the practice of the Swan River First Nation was to post the names of new members for a period of 30 days (concurrent with the appeal period), the Swan River First Nation received a written legal opinion from its counsel, dated February 3, 2005, which advised that the pre-election grant of membership to 20 new members was valid, hence the new members were entitled to all of the benefits of Band membership.
4. The new Membership information was posted approximately 45 days after Council approved the applications on December 6, 2004. The Band Council Resolutions approving the applications were posted in or about the first week of January 2005. No appeals were brought with respect to any new membership.
5. No request was made to the electoral officer to amend the list of electors.
6. 20 new members were added to the Band, only three of which were added to the Giroux family group, while 17 others were added to other family groups. If the failure to post the list of new members vitiated their membership, how was it that the election of the other Band Councillors was not invalidated on the ground that persons voted who were not eligible to vote?
[65] These were, in my respectful view, significant relevant evidence and matters that the Committee was obliged to consider when reaching its decision. Where a decision-maker fails to mention in its reasons evidence before it that is relevant to its finding and that points to a different conclusion than that reached by the decision-maker, a reviewing court may conclude that the decision-maker reached its decision without regard to the evidence before it. In the present case, the matters set out above were of such significance that the Committee ought to have dealt with them in its reasons. Because it failed to do so, I find the Committee's decision with respect to the effect of the fact that three new members were added to Band membership in 2005 was made without regard to the evidence before the Committee. That is an error that requires intervention by the Court, even on the most deferential standard of review.
[66] It follows that the application for judicial review is allowed and the Committee's decision is set aside.
[67] Mr. Giroux also seeks an order declaring that his election was valid, an order that he be paid his entitlements retroactive to March 11, 2005, an order requiring the Committee to publish a notice indicating that he was duly elected and was not guilty of corrupt election practices, and costs.
[68] In my view, it is not for this Court to determine the validity of Mr. Giroux's election, particularly on the basis of the evidentiary record before the Court. Rather, it is appropriate that such decision be made within the First Nation by a differently constituted Election Appeal Committee.
[69] With respect to costs, I see no reason why Mr. Giroux should not be paid costs. As a matter of law, costs are generally awarded to the successful party. I therefore order that Mr. Giroux is entitled to his costs, payable by the Swan River First Nation. I fix those costs in the amount of $3,500.00 on account of fees, disbursements and GST. In fixing costs at this level I have approximated an assessment made on the basis of column III of the table to Tariff B of the Federal Courts Rules, SOR/2004-283.
ORDER
[70] THEREFORE, THIS COURT ORDERS THAT:
1. The application for judicial review is allowed and the decision of the Election Appeal Committee to the effect that Mr. Giroux was guilty of corrupt election practices in the 2005 election is hereby set aside.
2. The matter is remitted for redetermination in accordance with these reasons by a differently constituted Election Appeal Committee of the Swan River First Nation, constituted as an independent body composed of three individuals with electoral and legal knowledge in accordance with the decision of the Band Council as set out in the excerpt of the letter from Indian and Northern Affairs Canada that the respondents filed with the Court as Exhibit B and the statement of the Elders filed as Exhibit A.
3. The respondent Swan River First Nation shall pay to John Giroux the costs of this application forthwith. Those costs are fixed in the amount of $3,500.00 in respect of fees, disbursements and GST.
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-719-05
STYLE OF CAUSE: JOHN GIROUX
Applicant
and
SWAN RIVER FIRST NATION, ALBERTA ET AL.
Respondents
PLACE OF HEARING: EDMONTON, ALBERTA
DATE OF HEARING: JANUARY 31, 2006
APPEARANCES:
CHANTELL M. GHOSH FOR THE APPLICANT
NO APPEARANCE FOR THE RESPONDENTS
SOLICITORS OF RECORD:
MILLER THOMSON LLP FOR THE APPLICANT
BARRISTERS AND SOLICITORS
EDMONTON, ALBERTA