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Indigenous - First Nations Elections Act (FNEA). Kehewin Cree Nation v. Watchmaker
In Kehewin Cree Nation v. Watchmaker (Fed CA, 2023) the Federal Court of Appeal considers (and dismisses) an appeal of an earlier successful JR by an election candidate under the First Nations Elections Act:[2] The respondent, unsuccessful in his candidacy for re-election as Chief, appealed the result by filing documents with the Deputy Electoral Officer. The Electoral Officer rejected the respondent’s filing because it was a few minutes late. In the Electoral Officer’s view, the seven-day deadline for appeals under section 15 of the First Nation’s Election Act expired on the exact minute the seven days ran out, rather than, for example, at the end of the seventh calendar day.
[3] The Federal Court quashed the Electoral Officer’s decision. ...
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[5] ... The Electoral Officer unreasonably interpreted the Election Act in two ways: (1) by adding the condition that he screen appeals for validity and (2) by usurping the Election Appeal Committee’s adjudicative role in the appeals process. The Elections Act provides no overlap between the Electoral Officer’s role in the election process and the Election Appeal Committee’s role in the appeals process; it carefully assigns separate, independent responsibilities to the two: Election Act, ss. 3, 6, 7, 10, 11, 12, 13, 14, and Appendix E (Electoral Officer’s roles) and ss. 4, 5, and 15 (Election Appeal Committee’s roles). On no reasonable reading of the Election Act does the Electoral Officer have the authority to withhold appeals from the Committee or to interpret the seven-day deadline. Indeed, during oral argument, counsel for the appellant candidly and fairly conceded that there was no authority. . Whitford v. Chakita
In Whitford v. Chakita (Fed CA, 2023) the Federal Court of Appeal considered an appeal under the First Nations Election Act (FNEA), where the trial division found fraud in an election but didn't order that all of the impugned candidates election victories be annulled. In these quotes the court reviews the FNEA and considers the trial court's discretion in annulling election victories:[30] The FNEA was enacted in 2014, creating a statutory code governing the election of chiefs and councillors of participating First Nations. Amongst other things, the enactment of the FNEA was intended to move away from the "“antiquated and paternalistic”" approach to First Nations’ governance that existed under the Indian Act, R.S.C., 1985, c. I-5. Under the Indian Act regime, disputed election appeals were heard by the Minister of Indian Affairs and Northern Development and ultimately decided by the Governor in Council: Senate, Debates of the Senate (Hansard), 2nd Session, 41st Parliament, Vol. 149, No. 29 (January 29, 2014) at pp. 269a-270a.
[31] The FNEA does not apply automatically to all First Nations elections – individual First Nations must agree to be governed by this regime. First Nations opt into the regime by having their Band Council provide the Minister of Indigenous Services with a resolution requesting that the First Nation be added to the list of participating First Nations attached as a schedule to the Act. The RPFN is a participating First Nation.
[32] The FNEA provides a statutory mechanism whereby elections may be contested. Of particular relevance to this case is section 30 of the Act, which provides that the validity of an election for the Chief or a Councillor of a participating First Nation may only be contested in accordance with sections 31 to 35 of the Act.
[33] Also relevant is section 31 of the FNEA, which states that electors of a participating First Nation may contest the election of the Chief or a Councillor of that First Nation "“on the ground that a contravention of a provision of this Act or the regulations is likely to have affected the result”". Finally, subsection 35(1) of the Act states that a court may set aside a contested election "“if the ground referred to in section 31 is established”". The FNEA does not contain any conditions or limitations that make annulment mandatory in any case.
[34] The question for determination is thus whether, having found that the integrity of the 2020 election had been corrupted, it was open to the Federal Court to decline to annul the election of the six respondents who had been found to have engaged in electoral misconduct, or whether the entire election had to be annulled.
V. Analysis
[35] In order to situate the issue to be determined in its legislative context, it is necessary to start by reiterating what the FNEA says with respect to the Federal Court’s remedial powers in contested election cases. Subsection 35(1) of the FNEA provides, in its entirety, that "“[a]fter hearing the application, the court may, if the ground referred to in section 31 is established, set aside the contested election” [my emphasis]".
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VI. The Jurisprudence with respect to the Annulment of Elections in Cases of Serious Electoral Fraud
[43] I agree with the appellants that the jurisprudence they have cited could have supported a finding by the Federal Court that the entire 2020 election should be annulled. The misconduct committed by the members of Team Clinton (other than Dana Falcon) and their agents was serious, and it reflected very poorly on the state of democratic governance within the RPFN.
[44] Indeed, the Federal Court did not disagree with the appellants on this point. At paragraph 17 of its reasons, the Federal Court expressly noted that the electoral misconduct of Councillors Lux Benson, Jason Chakita, Mandy Cuthand, Henry Gardipy, Samuel Wuttunee, and Shawn Wuttunee was such that it could have annulled their elections, but that the Court was nevertheless exercising its discretion not to do so.
[45] However, the question for determination is not whether it would have been open to the Federal Court to annul the 2020 election in its entirety, but whether the Court erred in law or committed a palpable and overriding error in declining to do so with respect to the election of the individuals identified above.
[46] In answering this question, the starting point for the Court’s analysis is the decision of the Supreme Court of Canada in Opitz v. Wrzesnewskyj, 2012 SCC 55. While Opitz was a case decided under the Canada Elections Act, S.C. 2000, c. 9 (CEA), portions of the CEA closely mirror those found in the FNEA.
[47] In describing the basis for the exercise of judicial discretion to annul elections in Opitz, the Supreme Court stated that where it is determined that an elected candidate was ineligible to run for office, a court must declare the election null and void: in such circumstances, it is as if no election had been held. However, where there are irregularities, fraud or corrupt or illegal practices that affected the result of the election, "“a court may annul the election” [my emphasis]". The Court went on in Opitz to state that in such cases, the Court must decide whether the election was compromised in such a way as to justify its annulment: at para. 22.
[48] It is noteworthy that while the Supreme Court stated in Opitz that elections must be annulled in ineligibility cases, courts may annul elections where there has been fraud or corrupt or illegal practices. Importantly, the Supreme Court did not state that courts must annul elections in every case where serious electoral fraud or contraventions of the relevant electoral legislation have been identified.
[49] This point was discussed in Papequash FC, a case decided under the FNEA. There, the Federal Court observed that while serious electoral fraud can vitiate an election result, "“what must not be overlooked, however, is the Court’s admonition [""in ""Opitz""] that a reviewing court retains a discretion to decline to annul an election even in situations involving fraud or other forms of corruption”": Papequash FC, at para. 36. The Federal Court’s decision in Papequash FC was subsequently affirmed by this Court in Papequash FCA. While this Court did not specifically address this point, it did say that the Federal Court had “correctly applied the jurisprudence in the context of this case”: at para. 13.
[50] The Court went on in Papequash FC to observe that at paragraph 81 of McEwing v. Canada (Attorney General), 2013 FC 525 (another case decided under the CEA), the Federal Court had noted that Opitz does not provide authority for the proposition that the Court may overturn election results in every case in which electoral fraud, corruption or illegal practices have been demonstrated. The corollary to this is that a court is not required to do so in every case involving electoral fraud, corruption or illegal practices.
[51] The Federal Court went on in McEwing to observe that the majority in Opitz had cautioned that annulling an election disenfranchises not only those persons whose votes were disqualified, but every elector who voted in the riding. It is true that the Federal Court went on in McEwing to state that courts should only exercise their discretion to annul an election where there is serious reason to believe that the results would have been different but for the fraud, or when an electoral candidate or agent is directly involved in the fraud: at para. 82. The Court did not, however, state that the courts must do so in such cases.
[52] In Good v. Canada (Attorney General), 2018 FC 1199, the Federal Court reiterated that the Court retains discretion not to overturn elections, even in cases involving fraud or other forms of corruption: at para. 55. There are numerous other decisions to the same effect: see, for example, Flett v. Pine Creek First Nation, 2022 FC 805 at para. 17; Bird v. Paul First Nation, 2020 FC 475 at para. 31; Paquachan v. Louison, 2017 SKQB 239 at paras. 20, 25.
[53] It is true that that the Federal Court came to the opposite conclusion in Gadwa v. Kehewin First Nation, 2016 FC 597. There, the Court observed that candidates who engage in vote buying are attempting to corrupt the election process. Consequently, regardless of the number of votes that the candidate purchased, or attempted to purchase, and regardless of whether the candidate wins the election by a greater margin than the number of votes that were purchased, this cannot save the candidate and his or her election must still be vitiated: at para. 88.
[54] It is also true that the Federal Court’s decision in Gadwa was affirmed by this Court in Gadwa FCA, without comment on this point.
[55] It must be noted, however, that Gadwa was not a case decided under the FNEA. The election in issue had been carried out under the provisions of the Kehewin First Nation’s custom election act, and the Federal Court’s comments must be read with this in mind.
[56] Indeed, the Federal Court judge deciding Gadwa came to the opposite conclusion in a case governed by the FNEA. That is, in Flett, the judge concluded that the Court does indeed have discretion under section 35(1) of the FNEA to decline to annul an election in cases where electoral fraud, corruption or illegal practices have been demonstrated: at para. 17.
[57] From this, I am satisfied that, as a matter of law, the Federal Court ultimately retains discretion as to whether to order a new election, even in cases involving fraud or other forms of electoral corruption. What remains to be determined is whether the Court made any palpable and overriding errors in declining to annul the election of the six respondents who had been found to have engaged in serious electoral fraud in this case.
VII. Other Relevant Considerations
[59] As noted earlier, annulling an election has broad and serious consequences, disenfranchising not only those whose votes were disqualified (or bought, in this case), but the votes cast by all of the electors, including those who voted without contravening electoral legislation: Opitz, at para. 48.
[60] Permitting elections to be overturned too lightly also increases the potential for future litigation. By extension, it undermines certainty in the democratic process, which has inherent value in its own right in a democracy: Opitz, at paras. 48, 49; McEwing, at para. 56; Flett, at para. 17.
[61] Furthermore, the Supreme Court observed in Opitz that ordering a new election "“is not a perfect answer”", as it "“will always be colored by the perceived outcome of the election it superseded”". New elections may also be inconvenient for voters, and there can be no guarantee that the new election will itself be free from additional problems, including fraud. In addition, frequent new elections undercut democratic stability by calling into question the security and efficiency of the voting mechanics, and this may lead to disillusionment or voter apathy: Opitz, at para. 48, citing Professor Steven F. Huefner, "“Remedying Election Wrongs”" (2007), 44 Harv. J. on Legis. 265, at pp. 295-96.
[62] There is another consideration that courts may take into account in challenges to elections involving First Nations. That is, the FNEA contemplates outside institutions (namely the courts) being asked to interfere in the democratic process of First Nations. While this involvement was expressly contemplated by Parliament in enacting the FNEA, and while the RPFN expressly asked to have its elections governed by the FNEA, courts must nevertheless be mindful of the fact that one of the purposes of the FNEA was to move away from the "“antiquated and paternalistic”" approach to First Nations’ governance that existed under the Indian Act. . Wuttunee v. Whitford
In Wuttunee v. Whitford (Fed CA, 2023) the Federal Court of Appeal considered whether First Nations Election Act (FNEA) candidates found to have committed electoral fraud should have their elections annulled. In this quote the court reviews relevant case law:V. The Canada Elections Act Cases
[35] The starting point of this review must be the decision of the Supreme Court of Canada in Opitz v. Wrzesnewskyj, 2012 SCC 55. While Opitz involved a challenge to an election conducted under the provisions of the Canada Elections Act, S.C. 2000, c. 9 (CEA), that Act uses similar language to that in issue here. That is, paragraph 524(1)(b) of the CEA provides that an elector or candidate may contest an election on the grounds that "“there were irregularities, fraud or corrupt or illegal practices that affected the result of the election”".
[36] It should be noted that the electoral challenge in Opitz was based on administrative errors. There were no allegations of fraud, corruption or illegal practices or any other wrongdoing by a candidate or political party, and the Court’s comments must be understood with this in mind.
[37] The Supreme Court stated in Opitz that where there were irregularities, fraud or corrupt or illegal practices that affected the result of the election, a court may annul the election. Under these circumstances, a court must decide whether the election was compromised in such a way as to justify its annulment: at para. 22.
[38] In deciding whether to annul an election in a given case, the Supreme Court stated that "“an important consideration is whether the number of impugned votes is sufficient to cast doubt on the true winner of the election or whether the irregularities are such as to call into question the integrity of the electoral process”": Opitz, at para. 23, [my emphasis].
[39] In considering the meaning of the phrase "“that affected the result of the election”", the Supreme Court stated that "“‘[a]ffected the result’ asks whether someone not entitled to vote, voted”". The Court went on to state that "“[m]anifestly, if a vote is found to be invalid, it must be discounted, thereby altering the vote count, and in that sense, affecting the election’s result”": Opitz, at para. 25.
[40] After considering the centrality of the constitutional right to vote, the enfranchising purpose of the CEA, the text and context of section 524 and the competing democratic values engaged, the Supreme Court concluded that an "“irregularit[y] ... that affected the result”" of an election "“is a breach of statutory procedure that has resulted in an individual voting who was not entitled to vote”". The Court observed that "“[s]uch breaches are serious because they are capable of undermining the integrity of the electoral process”": all quotes from Opitz, at para. 51. The Court recognized, however, that a declaration that an election is annulled is "“the ultimate public consequence of violating provisions of the Act, and accordingly should be reserved for serious cases”": Opitz, at para. 70.
[41] The Supreme Court went on to observe that the test used by Canadian courts in assessing contested election applications was the "“magic number”" test. As noted earlier, this test provides that an election must be annulled if the number of rejected votes is equal to or larger than the successful candidate’s margin of victory: Opitz, at para. 71. This is an approach advocated by Chief Wuttunee and Councillor Nicotine.
[42] The Supreme Court nevertheless recognized that there were shortcomings to the "“magic number”" test in that it favours the challenger as it assumes that all of the rejected votes were cast for the successful candidate, which is highly improbable. That said, no alternative test had been developed that would be reliable and that would not compromise the secrecy of the ballot: Opitz, at para. 72. Consequently, while the Supreme Court applied the "“magic number”" test in Opitz, it did not rule out the possibility that a "“more realistic method for assessing contested election applications might be adopted by a court in a future ""case”": Opitz, at para. 73.
[43] Like Opitz, McEwing v. Canada (Attorney General), 2013 FC 525, involved an electoral challenge brought under the CEA. The applicants in McEwing sought the annulment of the results of a general election in six electoral districts because of efforts to suppress votes.
[44] The Federal Court stated in McEwing that the phrase "“that affected the result of the election”" required that one or more votes be improperly cast or denied in a riding and that this had an effect on the outcome in that riding: at para. 71. Where an election is marred by procedural irregularities or electoral fraud, even one invalid or suppressed vote could, in principle, affect the result. However, this may not justify the annulment of the election: McEwing, at para. 72.
[45] Observing that in Opitz, the Supreme Court had not foreclosed the use of a test other than the "“magic number”" test, the Federal Court noted that the question had been left open as to whether irregularities calling into question the integrity of an electoral process could justify the annulment of the election. According to the Federal Court, this was more likely to be the case where there was electoral fraud, corruption or illegality: McEwing, at para. 76.
[46] The Court went on to state that the assessment as to whether fraud affecting the result of the election is sufficient to warrant annulling the election result is a matter that falls within the judge’s discretion: McEwing, at para. 79. In exercising this discretion, the Court observed that in Opitz, the Supreme Court had cited Cusimano v. Toronto (City), 2011 ONSC 7271, [2011] OJ No 5986 (QL) at para. 62 as authority for the proposition that an election will only be annulled where the irregularity "“either violates a fundamental democratic principle or calls into question whether the tabulated vote actually reflects the will of the electorate”": Opitz, at para. 43 [my emphasis].
[47] Finally, the Federal Court noted in McEwing that in Opitz, the Supreme Court had observed that annulling an election would disenfranchise not only those persons whose votes were disqualified (in the context of an irregularities case), but every elector who voted in the riding: McEwing, at para. 82, citing Opitz, at para. 43. Consequently, the Federal Court stated that a court should only exercise its discretion to annul an election where there is serious reason to believe that the results would have been different but for the fraud, or where an electoral candidate or agent is directly involved in the fraud: McEwing, at para. 83.
VI. The First Nations Elections Act Cases
[48] The meaning of the phrase "“likely to have affected the result”" has also been considered in the context of challenges to elections conducted under the FNEA. The most relevant of these cases for our purposes are the decisions of the Federal Court in Papequash v. Brass, 2018 FC 325 (Papequash FC) and of this Court in Papequash FCA.
[49] The Papequash cases involved an application for judicial review brought under sections 31 and 35 of the FNEA. The applicants sought to set aside an election held by the Key First Nation Band on the basis that there had been widespread unethical election practices, including the misuse of Band funds to purchase votes or to persuade candidates not to run for the election.
[50] In deciding that the election should be annulled, the Federal Court observed that not every contravention of the Act or regulations will justify the annulment of a band election, and that a distinction should be made between cases involving technical procedural irregularities and those involving fraud or corruption. A mathematical approach (such as the "“magic number”" test) may be appropriate to establish the likelihood of a different outcome where there are procedural irregularities. Where, however, an election has been corrupted by fraud such that the integrity of the electoral process is in question, an annulment may be justified regardless of the proven number of invalid votes: Papequash FC, at para. 34.
[51] The Federal Court explained a stricter approach should be taken in cases of electoral corruption because the true extent of the misconduct may be impossible to ascertain or the conduct may be mischaracterized. This is especially so where allegations of vote buying are raised, where both parties to the transaction are culpable and often prone to secrecy: Papequash FC, at para. 34, citing Gadwa v. Kehewin First Nation, 2016 FC 597 (Gadwa FC), aff’d in Joly v. Gadwa, 2017 FCA 203 (Gadwa FCA). Moreover, electoral corruption conducted by a candidate or agent ought generally to be treated more strictly: Papequash FC, at para. 37. See also Gadwa FC, at para. 88.
[52] The Federal Court further observed in Papequash FC that the Supreme Court had held that a Court may annul an election where there is fraud or corrupt or illegal practices that affected the result of the election or where the irregularity violates a fundamental democratic principle: citing Opitz, at para. 43.
[53] According to the Federal Court, attempts by electoral candidates to purchase the votes of constituents involves "“an insidious practice that corrodes and undermines the integrity of any electoral process”": Papequash FC, at para. 38. In such cases, the court must decide whether the election held was compromised in such a way as to justify its annulment: Papequash FC, at para. 35, citing Opitz, at para. 22.
[54] From this, the Federal Court was satisfied that serious electoral fraud could vitiate an election result. Whether it was appropriate to annul a specific election depended on the facts of the individual case: Papequash FC, at para. 36, citing McEwing, at para. 81.
[55] In deciding whether to do so, however, a Court must keep in mind that annulling an election disenfranchises not only those persons whose votes were disqualified (or bought in this case), but every elector who voted in the election. As a consequence, a Court should only exercise its discretion to annul an election where, amongst other things, there is serious reason to believe that an electoral candidate or agent is directly involved in the fraud: Papequash FC, at para. 36, citing McEwing, at para. 82. See also Opitz, at para. 48.
[56] The Federal Court found in Papequash FC that there was clear evidence of widespread and openly conducted vote buying activity carried out by several individuals. The Court was further satisfied that the integrity of the Key First Nation Band election had been sufficiently corrupted by the misconduct of candidates such that the election had to be annulled and a new election conducted: at paras. 39, 40. Importantly, nowhere in the decision does the Federal Court find that the number of votes affected by the corrupt practices in issue were sufficient to have changed the winners of the election.
[57] This Court subsequently found that the Federal Court had considered the relevant sections of the FNEA in Papequash FC and that it had correctly applied the jurisprudence in the context of the case. Consequently, this Court dismissed the appeal by the candidates whose conduct was in issue: Papequash FCA.
[58] It bears repeating that one of the principles applied by the Federal Court in Papequash FC and approved by this court in Papequash FCA was that a distinction had to be made between cases involving technical procedural irregularities and those involving fraud or corruption. While a strictly mathematical approach may be appropriate where there are procedural irregularities, an annulment may be justified, regardless of the proven number of invalid votes, where an election has been corrupted by fraud such that the integrity of the electoral process is in question: Papequash FC, at para. 34.
[59] Before concluding this section of these reasons, it is also worth mentioning an observation made in Cyr SKCA, another case decided under the FNEA. There, the Saskatchewan Court of Appeal noted the Supreme Court’s statement in Opitz that in deciding whether to annul an election, an important consideration is "“whether the number of impugned votes is sufficient to cast doubt on the true winner of the election or whether the irregularities are such as to call into question the integrity of the electoral process”": at para. 44 [my emphasis].
[60] The conduct at issue in Cyr SKCA involved irregularities resulting from negligence or inadvertence, and there was no evidence of fraud or bad faith or any other questions as to the integrity of the election process in that case. As a result, the Court was satisfied that use of the "“magic number”" test was appropriate. The Court nevertheless went on in Cyr SKCA to refer to the extract from Opitz quoted in the previous paragraph, observing that the majority decision in Opitz also stated that "“whether the overall integrity of the electoral process had been called into question by proven irregularities”" was also "“an important consideration”" in deciding whether an election should be annulled. However, because of the finding in Cyr SKCA that the application of the "“magic number”" test was appropriate, the Saskatchewan Court of Appeal held that this second consideration "“had no bearing on the exercise of judicial discretion”" in that case: at para. 49.
[61] The Saskatchewan Court of Appeal thus appears to have understood paragraph 23 of Opitz to identify two separate considerations relevant to the exercise of the Court’s discretion to annul an election. The first of these is whether the number of impugned votes is sufficient to cast doubt on the true winner of the election, and the second is whether the irregularities in the election were such as to call into question the integrity of the electoral process.
[62] From all of this, I understand that the result of an election may well be affected where the misconduct in question is sufficiently severe that the integrity of the election was seriously corroded and compromised.
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