Docket No.: T-1769-06
Citation: 2006 FC 1220
Ottawa, Ontario, October 13, 2006
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
CHIEF VICTOR BUFFALO, on his own behalf
and on behalf of the SAMSON INDIAN BAND
also known as SAMSON CREE NATION
and the SAMSON INDIAN BAND
also known as SAMSON CREE NATION
Applicants
- and –
DARRELL REGAN BRUNO,
DARWIN SOOSAY and LARRON NORTHWEST
Respondents
REASONS FOR ORDER AND ORDER
1. Introduction
[1] The Applicants bring this motion for interim relief seeking an order staying or suspending the operation of the October 2, 2006, decision of the Samson Cree Nation Election Appeal Board (EAB) pending determination of the underlying judicial review application of that decision. The decision purports to suspend the government of the Samson Cree Nation and orders a new election for Councillors of the Samson Cree Nation be held on Tuesday, October 17, 2006. The Applicants specifically seek an order enjoining and prohibiting the holding of any new election for Councillors under the October 2, 2006 decision and an order confirming that, pending this Court’s determination of the underlying judicial review application, the Councillors declared elected on May 19, 2005 and inaugurated on June 3, 21005 shall continue to hold office and to conduct the day to day affaires of the Samson Cree Nation.
2. Background
[2] The results of the May 19, 2005 election held at the Samson Cree Nation were challenged by two unsuccessful candidates. Two appeals were filed and upheld by the EAB. The first appeal, the “Soosay” Appeal, is based on the impugned candidacy of a successful candidate, Mr. Larron Northwest, whose nomination is said to offend section 4 of the Samson Cree Nation Election Law, specifically, a candidate with a criminal record having committed indictable offences. The second appeal, the “Bruno” Appeal, challenges the Electoral Supervisor’s decision to allow voting to continue after 6:00pm, contravening section 58 of the Election Law. On June 8, 2005 in allowing the appeals, the EAB ordered that a new election be held on June 23, 2005.
[3] The Applicants were successful in securing a stay of the election pending judicial review of the June 8, 2005 decision of the EAB. Ultimately, on July 4, 2006, the Federal Court of Appeal allowed the Appeals “in part”. The Court sent the Bruno complaint back for reconsideration with the express directions that the proper interpretation of section 58 of the Election Law was that it only closed the voting location at 6:00 p.m. and that the Electoral Supervisor had properly exercised her discretion under section 16 of the Election Law to allow voters already inside the location when the doors were closed at 6:00 p.m. to casts their ballots. The court of Appeal also sent the Soosay complaint back to the EAB for full reconsideration, having determined that Mr. Northwest had not received a fair hearing.
[4] The EAB’s decision on reconsideration of the two complaints, as directed by the Federal Court of Appeal, is the object of the underlying judicial review application to this motion. It is common ground between the parties that the EAB respected the principles of natural justice and afforded Mr. Northwest an opportunity to make submissions. The hearing in reconsideration of the complaints was fair.
3. The impugned decision
[5] The EAB decision first considered the Bruno Appeal. The EAB observed that the issue of poll closure had not arisen on appeal before in Samson Cree Nation. Notwithstanding the Federal Court of Appeal’s directions, the EAB held that despite practices of other communities and the interpretation of the words “poll” and “voting location” the practice of the Samson Cree Nation is to cease voting at 6:00 p.m. The EAB noted that over 300 people were let into the voting location and were allowed to cast their votes well after 6:00 p.m. and by so doing affected the outcome of the election. The EAB also determined that, in future, the Electoral Supervisor shall seek advice from the EAB Chairperson in advance of the 6:00 p.m. deadline when such a situation arises, and provided that there be 12 voting stations in order to process the voters at an acceptable rate.
[6] In respect to the Soosay Appeal, the EAB found that since Mr. Northwest had been convicted of indictable offences after the date of the coming into force of section 4 of the Election Law, there was no need to refer to external interpretation aides to understand the meaning of section 4 and how it should be applied. The EAB held that the provision was clear; a member is not eligible to become or remain a Chief or member of the Council for Samson Cree Nation if he is convicted of an indictable offence after the date this provision comes into force. It matters not whether Mr. Northwest obtained a cultural pardon, which is not disputed, or a legal pardon under the Criminal Records Act. What matters, in the EAB’s view, is that he was convicted of indictable offences and as a consequence is ineligible as a candidate in the election.
[7] The EAB concluded that Mr. Northwest was disqualified under section 4 of the Election Law and ordered a new election to be held on October 17, 2006.
[8] The Applicants’ judicial review application is based upon the following arguments:
(a) The EAB has no jurisdiction or power to suspend the government of the Samson Cree Nation;
(b) The EAB decision purports to remove or restrict the discretion given to the Electoral Supervisor under section 16 of the Election Law;
(c) The EAB decision fails to respect Federal Court of Appeal directions in respect to the closing of the voting location after 6:00 p.m.;
(d) The decision disqualifying Mr. Northwest notwithstanding the Cree Cultural Pardon he received is based upon an erroneous interpretation of section 4 of the Election Law.
[9] Section 4 of the Cree Nation Election Law provides as follows:
4. A Samson Cree member is not eligible to become or remain a Chief or member of the Council for Samson Cree Nation if he:
(a) is convicted of an indictable offence after the date this declaration comes into force;
(b) has an existing criminal record which includes as [sic] indictable offences as at the date this Declaration comes into force:
(i) unless such member has been granted a pardon through a Cree cultural and traditional ceremony conducted by an elder of the Samson Cree Nation recognized for such purposes by Chief and Council; or
(ii) unless such member has been granted a pardon through the legal system
(c) was guilty, in connection with an election, of corrupt practice, accepting or offering a bribe, dishonestly or other wrongful conduct.
[10] In order to succeed on their motion for interlocutory relief the applicants must establish that there is a serious issue to be tried in the underlying application for judicial review, that irreparable harm would result to the Applicants if the interlocutory injunction is not granted, and that the balance of convenience operates in favor of staying the operation of the October 2, 2006 decision of the EAB.
4. Serious Issue
[11] I am satisfied that the Applicants have raised serious issues in the underlying application. In respect to the Soosay complaint, there appears to be an arguable case as to whether a pardon can be invoked in respect of a conviction on an indictable offence made after the date of the coming into force of the Election Law. There is also an arguable case as to whether the pardon at issue was obtained through a Cree cultural and traditional ceremony conducted by an elder of the Band recognized for that purpose by its Chief and Counsel. In its findings the EAB held that it was not necessary to address the issue of the recognition of the Elder who conducted the pardon ceremony since the validity of the pardon is not in question. The EAB essentially rejected arguments that a pardon obtained for indictable offences committed subsequent to the coming into force of the Election Law, would have no effect on eligibility, notwithstanding arguments in respect to operation of the Criminal Records Act.
[12] I am also of the view that the October 2, 2006 decision of the EAB raises a serious issue in respect to the Bruno complaint. From the reasons for decision it is arguable that the EAB fails to comply with the directions of the Federal Court of Appeal and apply the Court’s interpretation of section 58 of the Election Law regarding the close of the voting location.
[13] It is not for this Court to determine the above issues on their merits at this time. Given the low threshold required to be met, I am of the view that the Applicants have met their burden of establishing serious issues for the purpose of this motion. See: RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 (QL) at para. 49.
5. Irreparable harm
[14] The Supreme Court of Canada in RJR MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, held that, “At this stage the only issue to be decided is whether a refusal to grant relief could so adversely affect the applicants’ own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the results of the interlocutory application.”
[15] While the Applicants’ evidence in respect to irreparable harm is rather meager, I am nevertheless satisfied, in the circumstances that by allowing the October 17, 2006 election to proceed would result in irreparable harm to the Applicants. An eventual decision on the merits setting aside the 2006 decision of the EAB would have the effect of creating uncertainty in the Samson Cree Nation as to the legitimacy and authority of its elected Council. Such a result would serve to further undermine the election process, the very corner stone of democratic institutions. In this sense, the harm could not be remedied and is consequently irreparable.
6. Balance of convenience
[16] In assessing the balance of convenience the Court must take into account the public interest which in this instance must be assessed by considering the needs and best interest of the Samson Cree Nation. The balance of convenience is “a determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits”. See Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110 (QL), at paragraph 35.
[17] There is already in the Samson Cree Nation considerable uncertainty in respect to the status of Council charge with the responsibility of governing the community. This situation must not be further exacerbated.
[18] By granting the interim order prohibiting the holding of the election until the matters raised in the underlying judicial review are resolved, I would temporarily suspend what would otherwise be a validly ordered election. By granting the interim order I would be preserving the status quo until the issues raised in respect to decisions made by the EAB which essentially triggered the election call be determined.
[19] In my view, while the present circumstances are less than ideal, the situation would be far more uncertain if the elections were held and the Applicants were ultimately successful in the their underlying application. In that event questions as to the legitimacy of the election, otherwise validly and democratically held, would be raised. Further uncertainty and disruption would result regarding the status of the newly elected Council in the Samson Cree Nation, not to mention issues that may arise regarding the status of the Council elected following the May 19, 2005 election.
[20] It is preferable, in my view, to grant an interim order preventing the holding of the election until the validity of decisions of the EAB which triggered the election call is determined. In the circumstances, I am satisfied that the Applicants will suffer the greater harm should the October 17, 2006 election be allowed to proceed than would the Respondents should the interim order issue. The balance of convenience therefore favors the Applicants.
8. Conclusion
[21] This is the case where the optimum result on this motion would be to preserve the status quo until the issues raised in the underlying application are resolved. I find the words of Lord Diplock in American Cyanamid Co v. Ethicon Ltd, [1975] 2 WLR 316, à propos. At paragraph 35 of his decision, he wrote that “where other factors appear to be evenly balanced it is a counsel of prudence … to preserve the status quo”.
[22] I am satisfied that the applicant has satisfied the tripartite test set out in RJR Macdonald Inc., supra, for the granting of an interlocutory injunction.
[23] For the above reasons the motion will be granted.
ORDER
THIS COURT ORDERS that:
1. The motion is granted;
2. The operation of the October 2, 2006, decision of the Samson Cree Nation Election Appeal Board (EAB) is stayed pending final disposition of the underlying application for judicial review filed on October 4, 2006;
3. An interlocutory injunction is granted enjoining the Samson Cree Nation from proceeding with the election scheduled for October 17, 2006, pending final disposition of the underlying application for judicial review filed on October 4, 2006;
4. The Applicants shall have their costs on this motion.
“Edmond P. Blanchard”
Judge
FEDERAL COURT
SOLICITORS OF RECORD
STYLE OF CAUSE: CHIEF VICTOR BUFFALO et al. v. DARRELL REGAN BRUNO et al.
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: October 11, 2006
REASONS FOR ORDER AND ORDER: Blanchard J.
APPEARANCES:
David C. Rolf FOR THE APPLICANTS
Swan Beaver FOR THE RESPONDENTS
Bruno and Soosay
SOLICITORS OF RECORD:
Parlee McLaws LLP FOR THE APPLICANTS
Edmonton, Alberta
Taylor Beaver FOR THE RESPONDENT
Edmonton, Alberta