Date: 19980408
Docket: T-82-98
BETWEEN:
RONALD VINCENT MORIN and ANNAMARIE GAIL DEMCHUK
on her own behalf and on behalf of non-resident members
of the Enoch Cree Nation
Applicants
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
as represented by the Minister of Indian and Northern Affairs Canada
and the Attorney General of Canada and the ENOCH CREE NATION
Respondents
Let the attached certified transcript of my Order and Reasons for Order, delivered orally from the Bench at the city of Ottawa, by teleconference between Ottawa and Edmonton, on March 18, 1998, be filed to comply with section 51 of the Federal Court Act.
__________________________
Judge
Ottawa, Ontario
April 7, 1998
0001
01
01
02 IN THE FEDERAL COURT OF CANADA
02
03
03 TRIAL DIVISION
04
04
05 _________________________________________________
05
06
06 Court Number T-82-98
07
07
08 BETWEEN:
08
09
09 HER MAJESTY THE QUEEN IN RIGHT OF CANADA
10
10 Applicant
11
11
12 - and -
12
13
13 RONALD VINCENT MORIN ET AL
14
14 Respondents
15
15
16
16
17 __________________________________
17
18 MOTION
18
19 by Teleconference
19
20 March 18, 1998
20 Held at the Federal Court of Canada
21 between Edmonton, Alberta, and Ottawa, Ontario
21 __________________________________
22
22
23
23
24 TAKEN BEFORE:
24
25
25
26 The Honourable Mr. Justice Richard
26
0002
01 APPEARANCES
01
02 TAKEN BEFORE:
02
03
03 The Honourable Mr. Justice Richard
04
04
05 ______________________________________
05
06
06
07 Barbara S. Ritzen, Esq. For the Applicant
07 D. B. Titosky, Esq.
08
08
09 Karin E. Buss, Esq. For Ronald Morin
09 R. C. Secord, Esq.
10
10
11 Mr. R. Sharphead For Enoch Cree Nation
11
12
12 _______________________________________
13
13
14
14 K. Dobransky Court Registrar, Edmonton
15
15 L. Martel Court Registrar, Ottawa
16
16
17
17
18 C. R. Enders, CSR(A) Court Reporter
18
19
19
20 * * * * * * * * * * * * * * *
20
21
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24
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26
0003
01 TABLE OF CONTENTS
02 SUBMISSION BY MS. RITZEN 4
03
04 SUBMISSION BY MS. BUSS 31
05
06 SUBMISSION BY MR. SECORD 57
07
08 DISCUSSION 58
09
10 REPLY SUBMISSION BY MS. RITZEN 63
11
12 DECISION 70
13
14 CERTIFICATE OF TRANSCRIPT 89
15
19 THE COURT: By originating notice of motion
20 filed in the Trial Division at Edmonton, Alberta, on
21 January 19, 1998, Ronald Vincent Morin and
22 Annamarie Gail Demchuk on her own behalf and on behalf
23 of the non-resident members of the Enoch Cree Nation as
24 applicants filed an originating notice of motion
25 seeking, amongst other things, a declaration ordering
26 the Order-in-Council P.C. 1997-1915, dated
0071
01 December 17, 1997, is invalid or unlawful.
02 Two, an Order compelling the
03 Minister of Indian Affairs to provide a copy of her
04 report and recommendations.
05 Three, an Order directing the
06 respondents to provide to the applicant reasons for the
07 Minister's determination that there was a contravention
08 of 77 (1) of the Indian Act, and an Order granting a
09 constitutional exemption of the operation of the
10 ordinary residence requirements in
11 77 (1) of the Indian Act to the Enoch Cree Nation, or,
12 alternatively, an Order declaring 77(1) of the
13 Indian Act to the extent that it requires residency to
14 be a qualification to vote for a chief of a band to be
15 of no force and effect, because it contravenes
16 Section 15 of the Charter.
17 An Order staying execution of
18 Order-in-Council P.C. 1997-1915 until the merits of this
19 application are determined, and an Order enjoining the
20 Enoch Cree Nation from proceeding with the by-election
21 scheduled for January 29, 1998, or any other election
22 until the application is heard and determined by the
23 Court.
24 The applicant through counsel
25 filed a notice of a motion, which came before
26 Mr. Justice Rouleau by way of teleconference at Ottawa
0072
01 and Edmonton on January 26, 1998. The motion brought by
02 Ronald Vincent Morin sought an Order staying the
03 execution of an Order-in-Council 1997-1915 until the
04 merits of the applicant's judicial review application,
05 filed January 19, 1998, are determined.
06 Two, an interlocutory injunction
07 enjoining the Enoch Cree Nation from proceeding with the
08 by-election scheduled for January 29, 1998, or any other
09 election until the judicial review application is heard
10 and determined by the Court.
11 Three, such other relief as the
12 Honourable Court deems just.
13 The application was based on the
14 following grounds:
15 One, an election for chief and
16 council of the Enoch Cree Nation was held on
17 June 12, 1997, at which time the applicant
18 Ronald Vincent Morin was as chief. In a letter dated
19 January 6, 1998, Ronald Vincent Morin received formal
20 notice from the Department of Indian Affairs and
21 Northern Development that the election of chief had been
22 set aside pursuant to Order-in-Council number
23 1997-1915.
24 Three, the Enoch Cree Nation's
25 proceeding with the by-election for the position of
26 chief, originally scheduled for January 28, 1998, but
0073
01 which has been rescheduled for January 29, 1998.
02 Four, on January 19, 1998, the
03 applicants filed a judicial review application on the
04 grounds that Order-in-Council 1997-1915 is void due to a
05 failure to observe the principles of natural justice by
06 the Minister in investigating and reaching a decision
07 with respect to the Enoch Cree Nation's election of
08 June 12, 1997, and that the said Order-in-Council is of
09 no force and effect, because it is inconsistent with
10 Section 15 of the Charter.
11 Five, if the by-election proceeds
12 on January 29, 1998, as scheduled, the applicants of the
13 Enoch Cree Nation will suffer irreparable harm,
14 including the violation of non-resident band members'
15 constitutional right to vote, and the balance of the
16 convenience favours the status quo as a by-election
17 without determination of the validity of 77 (1), and the
18 validity of Order-in-Council 1997-1915 will render the
19 procedures and outcome of the by-election invalid.
20 Justice Rouleau's Order and
21 Reasons for Order is dated January 27, 1998. In
22 paragraph 4 of his reasons, Mr. Justice Rouleau states,
23 and I quote:
24 It was agreed in light of the difficulties
25 facing the Enoch Cree Nation at election time a
26 practical solution was the only avenue of
0074
01 approach.
02 At paragraph 12, he stated, and I
03 quote:
04 All parties were in agreement that the
05 application for judicial review should be
06 stayed. The Order-in-Council of December 17,
07 1997, shall remain in full force and effect,
08 pending the outcome of a newly-scheduled
09 election for chief of the Enoch Cree Nation.
10 Paragraph 14 he stated, and I
11 quote:
12 It was also agreed that all members of the
13 Enoch Cree Nation who are presently registered
14 and recognized at the band headquarters as
15 members of the band shall be considered
16 ordinarily resident and shall be entitled to
17 vote in future elections as well as referenda
18 held on the reserve. However, it must be in
19 the absolute discretion of the band council to
20 delete or add to the band list, provided they
21 comply with the Indian Act, the regulations
22 governing Indian band elections, and my
23 interpretation of the definition of ordinarily
24 resident.
25 He went on in paragraph 15 to
26 state, and I quote again:
0075
01 It was further agreed and hereby ordered that
02 the election of chief Morin is set aside and a
03 new election for chief of the Enoch Cree Nation
04 reserve should be held on March 20, 1998.
05 In paragraph 11 of his reasons, he
06 had found as a fact that:
07 All registered band members of the Enoch Cree
08 Nation who were living off-reserve are hereby
09 found to be temporarily absent, that is in
10 accordance with paragraph 3 (d) of the Act, and
11 that they are ordinarily residents of the
12 reserve for the purpose of elections.
13 Accordingly, Mr. Justice Rouleau
14 ordered that a notice of election be posted in
15 compliance with the regulations no later than
16 February 6th, 1998, and a list of eligible voters be
17 made available at the band office and accessible to all
18 band members, and in conjunction with the election for
19 chief, there shall be held a referendum to determine if
20 the band membership wishes to return to election by
21 tribal custom rather than pursuant to the Indian band
22 election regulations enacted under the Indian Act.
23 Finally, all registered members of
24 the band shall be entitled to vote in all future
25 elections for chief and councillors on the Enoch Cree
26 Nation, regardless of the outcome of the referendum.
0076
01 On February 5, 1998, the
02 respondent, Her Majesty in Right of Canada, filed a
03 motion with the Court, which was heard by teleconference
04 by Mr. Justice Nadon, who made the following Order:
05 The delay to appeal the Order of Rouleau J.,
06 dated January 27, 1998, is extended to
07 February 13, 1998, in respect of that part of
08 the application which seeks a reconsideration
09 of the Order of January 27, 1998, shall direct
10 and hereby do so that it be brought before
11 Rouleau J. prior to February 13, 1998.
12 The application insofar as it
13 seeks to obtain an Order staying posting of a
14 notice of election no later than
15 February 6, 1998, is denied. In respect to a
16 stay of the elections to be held on
17 March 20, 1998, the parties did not argue this
18 point before me. The applicants wish to
19 cross-examine Marcel Boutet on his affidavit.
20 After the examination has taken place, the
21 Crown may, if it so wishes, apply to be heard
22 on that issue.
23 The court records indicate that
24 Her Majesty in Right of Canada appealed against the
25 Order of Mr. Justice Rouleau dated January 27, 1998, by
26 filing a notice of appeal in the Federal Court of Appeal
0077
01 on February 12, 1998.
02 There is also a note to file
03 indicating that Mr. Justice Rouleau indicated that he
04 would be prepared to hear the application for
05 reconsideration upon his return, Friday the 3rd day of
06 April, 1998, if the appeal has not been heard.
07 By letter dated March 12, 1998,
08 addressed to the Registry of the Federal Court of
09 Canada, local office, Edmonton, Alberta, Her Majesty the
10 Queen and in accordance with Justice Nadon applied that
11 it be heard that the issue of the holding of the
12 elections on March 20, 1998. As you will recall that
13 Mr. Justice Nadon in his Order had said:
14 With respect to a stay of the elections to be
15 held on March 20th, 1998, the parties did not
16 argue this point before me. It is the
17 applicants' wish to cross-examine Marcel Boutet
18 on his affidavit. After the examination has
19 taken place, the Crown may, if it so wishes,
20 reapply to be heard on that issue.
21 Accordingly, application by Her Majesty was
22 heard before me in Ottawa by means of a
23 teleconference between Edmonton and Ottawa.
24 The counsel for the parties are
25 agreed that the stay application is brought pursuant to
26 Section 18.2 of the Federal Court Act, which provides
0078
01 that on an application for judicial review the Court may
02 make such interim Orders as it considers appropriate,
03 pending the final disposition of the application.
04 Counsel for Her Majesty in Right
05 of Canada seeks a stay of Mr. Justice Rouleau, in
06 particular that part of the Order that the elections for
07 the chief are to be held on March 20th and that a
08 referendum is to be held in time, that that part of the
09 Order be stayed until such time as the motion for
10 reconsideration has been heard by Mr. Justice Rouleau,
11 or the appeal has been heard by the Federal Court of
12 Appeal. I understood it to mean the latter of the two,
13 unless, of course, the appeal became moot by reason of
14 the reconsideration.
15 It is well-settled law that the
16 three-stage test in Manitoba AG v. Metropolitan Stores
17 Limited reported in 1987, 1 FCR (1) 10 should be applied
18 to applications for stays. At the first stage, the
19 applicant must demonstrate a serious question to be
20 tried. This test should generally be determined by the
21 Court on the basis of common sense and an extremely
22 limited review of the merits. The threshold to satisfy
23 this test is a low one.
24 At the second stage, the applicant
25 must establish that it will suffer irreparable harm if
26 the relief is not granted. The third stage requires an
0079
01 assessment of the balance of convenience.
02 The moving party, Her Majesty,
03 filed two supporting affidavits, that of Marcel Boutet,
04 the director of the Edmonton Regional Office of Indian
05 and Northern Affairs Canada, and that of Gaetan Pilon,
06 who is employed by the Government of Canada, and is the
07 Manager, Elections, Band Governance, and Estates as
08 directed in the Department of Indian and Northern
09 Affairs.
10 In his affidavit Mr. Pilon states
11 that the Enoch Cree Nation has conducted elections in
12 accordance with the electoral provisions contained in
13 the Indian Act since 1953. In his affidavit he also
14 states that regarding the residency requirements for
15 electors when entering into a community electoral
16 system, it is not automatic that bands include
17 off-reserve members in their definition of an elector of
18 the band, and he goes on to give some statistics showing
19 that some bands have even added more stringent the
20 criteria for their electors.
21 Mr. Boutet's affidavit, it is
22 stated in paragraph 6 that the counsel for the
23 respondent Her Majesty was not instructed to consent to
24 a determination of which members of the Enoch Cree
25 Nation would be considered to be ordinarily resident and
26 entitled to vote in an election. Further in the
0080
01 affidavit, Mr. Boutet states at paragraph 9, and I
02 quote:
03 I have been contacted by several members of the
04 Enoch Cree Nation and do verily believe that
05 the issue of permitting members of the Enoch
06 Cree Nation to vote in an election when they do
07 not reside on the reserve has caused dissension
08 within the band.
09 At paragraph 10 he states:
10 I have been advised by several members of the
11 Enoch Cree Nation and do verily believe that if
12 the election is held on March 20, 1998, in the
13 manner so ordered, it will cause further
14 dissension within the band.
15 In paragraph 12 he states:
16 If an election proceeds on March 20, 1998, in a
17 manner so ordered, I believe that the results
18 will be challenged.
19 Mr. Boutet was cross-examined on
20 his affidavit, and he was asked whether he knew the
21 people who apparently told him that an election would
22 result in dissension within the band, and without
23 repeating textually the cross-examination, Mr. Boutet
24 agreed that he did not know these people. Accordingly,
25 I find that his conclusions, at the best, they are
26 speculative.
0081
01 His conclusions are not shared by
02 Mr. Morin, who swore an affidavit on March 17, 1998, in
03 connection with this proceeding. Paragraph 2 of his
04 affidavit he states, and I quote:
05 It is my distinct recollection that all of the
06 band councillors who spoke and all of the
07 lawyers who spoke for the band members {and I
08 interject here. He is referring to the
09 teleconference between Ottawa and Edmonton held
10 on January 26, 1998; and I continue} were in
11 agreement that it was desirable for all band
12 members to vote at the upcoming by-election
13 because of the unique situation of the Enoch
14 Cree band.
15 This is, as I understand, a
16 reference to the Reasons of Mr. Justice Rouleau in
17 paragraph 10 where he stated that:
18 It was also agreed that because of the housing
19 shortage, which has persisted on this reserve
20 for many years, thus many registered band
21 members must live off the reserve, this Court
22 must interpret ordinary resident as defined in
23 Section 3 of the regulations governing Indian
24 band elections.
25 In paragraph 11, if particular
26 circumstances and facts give rise to a difficulty, lack
0082
01 of housing did not appear to be addressed under
02 Section 3 of the regulations.
03 In the affidavit of Mr. Morin, in
04 paragraph 6:
05 The Enoch Cree Nation has held two band
06 meetings and one community information meeting
07 in the last week, and from speaking to band
08 members who attended the meeting and other band
09 members, it appears to me all of the band
10 members are prepared for and wish to proceed
11 with the election scheduled for
12 March 20, 1998.
13 On March 9, 1998, and this is in
14 paragraph 7:
15 We held a band meeting on the specific issue of
16 eligibility to vote in band elections,
17 including the by-election to be held on
18 March 20th, 1998. At this meeting, eight of
19 our nine councillors spoke to the 50 or so band
20 members who were present. Five of the council
21 members spoke in favour of all band members
22 voting at band elections, including the one on
23 March 20, 1998. Two council members spoke
24 against it. One council member was equivocal,
25 and one council member was absent.
26 Those council members who spoke in
0083
01 favour of all band members voting received
02 resounding applause from the band members
03 present.
04 Paragraph 8:
05 At a community information meeting, which we
06 held on March 16, 1998, whenever the topic of
07 the upcoming election and the eligibility of
08 all band members to vote was referred to, there
09 was overwhelming applause in the audience.
10 Continues at paragraph 13, and I
11 quote:
12 I know of no irreparable harm that the band
13 will suffer as a result of proceeding with the
14 election on March 20, 1998. If we do not
15 proceed with this election, I believe that the
16 membership's frustration at the interference of
17 the Department of Indian Affairs in band
18 affairs will heighten considerably. This
19 sentiment was expressed to me over and over
20 again at the recent band meetings.
21 Further, failure to proceed with
22 the election and referendum on March 20, 1998,
23 will result in the present climate of
24 uncertainty and political frustration being
25 increased, as there will be no chief elected,
26 and thus no substantive leadership for the
0084
01 band, and without the referendum, we cannot
02 move forward to put in place an election code
03 to resolve this matter once and for all
04 amongst ourselves.
05 Continued at paragraph 14:
06 There is presently an acting chief, who is not
07 elected by the general membership, and he does
08 not command the same authority with council and
09 the band membership as an elected chief. For
10 the Enoch Cree Nation, an acting chief cannot
11 make decisions that affect band policy or
12 treaty rights. The acting chief's role is
13 limited and tantamount to that of a chairman.
14 Continues, and it will be my last
15 quote, paragraph 15:
16 I believe a referendum on the issue of band
17 custom election must be held in conjunction
18 with the by-election for chief. It has been
19 the experience of our band that there is
20 generally a poor turnout of the electorate for
21 referendums, unless they are held in
22 conjunction with an election or by-election for
23 chief and council.
24 It is to be noted that the
25 by-election is to be held for the election of a chief
26 only, and the council is composed of eight councillors,
0085
01 who are elected, so that the election which has been
02 ordered by Mr. Justice Rouleau to be held on
03 March 20, 1998, is for one of the positions on council,
04 that of chief, and the Enoch Cree Nation is not faced
05 with the election of an entire council.
06 There is no question in my mind
07 that the applicant before me, the moving party,
08 Her Majesty the Queen, has demonstrated a serious
09 question to be tried. The question regarding the
10 interpretation of Section 3 of the regulations governing
11 Indian band elections is a serious issue. It involves
12 an interpretation of the expressions ordinarily
13 resident, ordinary residence, temporary absence, and the
14 moving party has satisfied me that the first element of
15 the tripartite test has been satisfied.
16 However, the moving party, Her
17 Majesty the Queen, has not satisfied me that the second
18 element of the tripartite test has been satisfied, in
19 particular that the applicant has not established that
20 it will suffer irreparable harm if the relief is not
21 granted, and the affidavit evidence to which I have
22 referred earlier does not support a claim of irreparable
23 harm.
24 Even if the election of the chief
25 were to be contested, this is something that is provided
26 for in the Indian Act. There is an appeal provision in
0086
01 the Indian Act, which allows a candidate or an elector
02 to petition the Minister. In fact, this is what was
03 done with respect to the election of Mr. Morin, so the
04 mere fact that an election may be contested is not
05 evidence of irreparable harm in itself.
06 Counsel for Her Majesty referred
07 to the Batchewana decision. There the stay was granted
08 by Mr. Justice Stone in the Federal Court of Appeal
09 pending a disposition of a leave application in the
10 Supreme Court of Canada. We are dealing with the
11 election or by-election, I should say, for a chief, not
12 for the entire council, and the appeal taken by the
13 moving party in the Federal Court of Appeal would likely
14 not be disposed of as quickly as a leave application
15 would be in the Supreme Court of Canada for
16 understandable reasons. This would mean that the Enoch
17 band and its council would not have a chief, an elected
18 chief for some period of time.
19 I also note that the band consists
20 of some 680 persons who are band members, and I'm told
21 that 440 of them are ordinarily resident on the reserve
22 and 220 are off the reserve, so that 30 percent of the
23 band members are off-reserve.
24 The referendum which the council
25 is proposing to hold is, based on the material before me
26 and representations made by counsel for the responding
0087
01 party, is for the purpose of consulting. As a matter of
02 fact, if one goes through the that were placed before
03 me, this becomes even more apparent. The referendum
04 questions read as follows:
05 One, and it is divided into two
06 parts, (a) do you agree that chief and council should be
07 elected by rules and procedures developed by the band
08 and approved by a majority of the members of the band,
09 or (b) do you agree that the Enoch Cree Nation should
10 adopt a tribal custom election bylaw to govern the
11 election of chief and council?
12 The second question:
13 Do you agree that all the members
14 of the Enoch Cree Nation, including those members who do
15 not live on the reserve, be able to vote for chief and
16 council?
17 Now, counsel for Her Majesty
18 referred me to the departmental policy concerning
19 reversion to a custom, but this referendum which is
20 proposed, as I understand it, based on the
21 representations made to me, is not to propose a
22 particular electoral code but merely consultation on
23 those two broad questions. Clearly the balance of
24 convenience does not weigh any more in favour of the
25 moving party than the responding party, and I think if
26 anything, the balance of convenience is more in favour
0088
01 of the responding party on this motion.
02 The notice of election has been
03 posted in accordance with the Order of
04 Mr. Justice Nadon. There has been an ongoing campaign,
05 so I'm informed by counsel, for the election to the
06 position of chief, and that by-election or election is
07 to be held Friday, March 20th, and we are now on
08 March 18th.
09 Accordingly, the application for a
10 stay is dismissed.
11 REGISTRAR MARTEL: This special sitting of the
12 Federal Court by teleconference between Edmonton and
13 Ottawa is now concluded.
14 (PROCEEDINGS CONCLUDED AT 12:20 P.M.)
15