Judgments

Decision Information

Decision Content

T-1452-87
Yvonne Leaf, Lloyd Benedict, Angela Barnes, Al- exander Roundpoint and the Mohawk Council of Akwesasne (Applicants)
v.
The Honourable Jeanne Sauvé in Council as represented by the Attorney General (Respondent)
INDEXED AS: LEAF V. CANADA (GOVERNOR GENERAL IN COUNCIL)
Trial Division, Jerome A.C.J.—Toronto, August 27; Ottawa, September 25, 1987.
Native peoples — Elections — Application to quash Order in Council setting aside election — Electoral officer allowing candidate nominated for both chief and councillor to run for chief only — Application dismissed — Electoral officer exceeding authority under Indian Band Election Regulations — Parliament delegating to Governor in Council authority to ensure elections conducted in accordance with Act — Failure to conform to Regulations indicating election not conducted in accordance with Act as required by Indian Act, s. 74 — Regulations, s. 5(6) (governing withdrawal of candidate) intended to ensure candidate removed only upon own wish — No express requirement of one election for both positions — S. 4(3), providing for nomination of chief or councillor, governing conduct of nominating meetings, not limiting substantive right to run for office — Act, s. 79(b) not restricting Minister's authority to investigate violations of Act only in light of Regulations, ss. 12, 13 and 14 — Where serious argument of irregularity, better for Minister to err on side of recommending setting election aside.
Judicial review — Prerogative writs — Certiorari — Application to quash Order in Council setting aside election on Indian reserve — Applicants notified in writing of appeal of election — Applicants not responding to invitation to comment — Departmental officials interviewing electoral officer and three of unsuccessful candidates — Application dismissed — No unfairness amounting to breach of principles of natural justice — Both sides heard — Applicants choosing not to participate in appeal process — Certiorari not issuing when statutory remedies not exhausted.
This is an application for certiorari to quash an Order in Council which purports to set aside an election which took place on the Akwesasne Band Indian reserve. The applicants were elected councillors in the impugned elections. Pursuant to an Order in Council, the chief is elected by the whole commu-
nity at the same time as the councillors are elected. The community decided that candidates should not run for both chief and councillor and, if nominated for both positions, would have to decline one. Nine out of ten candidates nominated for both positions withdrew from one or both. One candidate, Lawrence Francis, replied that he intended to run for both positions. The electoral officer removed him as a candidate for both positions, but then decided to accept his nomination for chief. Mr. Francis lost the election. An appeal was lodged. Although all the candidates were advised by letter of the appeal, only the elected chief responded. A departmental offi cial interviewed the electoral officer and three of the unsuccess ful candidates. By Order in Council, the election was set aside. The applicants rely upon paragraph 79(b) of the Indian Act in submitting that, as there had been no violation of the Act, there is no basis for the Order in Council. They also argue that the Minister's representatives failed to observe the principles of natural justice in not interviewing all candidates who ran in the overturned election.
Held, the application should be dismissed.
Subsection 5(6) of the Regulations governs the withdrawal of a nominated candidate. The intention of the subsection is to ensure that a candidate will be removed from the ballot only in accordance with his own wish. In this case, a candidate was removed against his will by order of the electoral officer. This was a violation of subsection 5(6).
Contrary to the applicants' claim, that Parliament intended there to be but one election for both chief and councillors, neither the Act nor the Regulations expressly requires that there be only one election, and subsection 74(1) uses the word "elections" to describe how council is to be selected.
The applicants submit that subsection 4(3) of the Regula tions, which provides for the nomination of a candidate as chief or councillor, precludes nomination to both positions. However, this interpretation would not necessarily preclude a double candidacy since it could still be said that he was running for "chief or councillor". But more importantly, a regulation gov erning the conduct of nominating meetings should not be used to limit the substantive right of an eligible person to run for office.
In any case, the electoral officer exceeded her authority by removing Mr. Francis' name from the ballot. The Regulations do not bestow on an electoral officer the authority to decide for how many positions a candidate may run. Thus there has been a breach of the Indian Band Election Regulations.
The failure to conform to the Regulations respecting nomina tions means that the election was not conducted in accordance with the Act. Section 74 of the Act requires elections to be "in accordance with this Act." By section 76, which provides for Orders in Council to be made dealing with nomination meet ings, appointment and duties of electoral officers and the manner in which voting shall be carried out, Parliament has delegated to the Governor in Council the authority to ensure
that elections are conducted "in accordance with this Act." The Regulations made under this section form part of the particu lars of that requirement.
In sections 12, 13 and 14 of the Regulations, the Minister is required to investigate and report on violations of the Act or Regulations. It would be inconsistent to restrict the authority under paragraph 79(b) to violations of the Act only. The Minister was authorized to make a recommendation and the Governor in Council to exercise her authority under paragraph 79(b).
There was no unfairness in the procedure utilized by the Minister's representatives. All interested parties were given an opportunity to participate in the appeal process, but the appli cants chose not to respond in writing when notified of the appeal of the election. Had they done so, no doubt they would have been interviewed.
Also, it has been held that it is inappropriate to grant the discretionary remedy of certiorari when there is an adequate avenue to resolve the dispute provided in the statute. The applicants should have responded to the Minister's invitation to state their case.
Finally, where there is a serious argument that an election was irregular, it is in the interests of all parties for the Minister to err on the side of recommending that it be set aside.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Indian Act, R.S.C. 1970, c. I-6, ss. 74(1), 75, 76, 77, 79. Indian Band Election Regulations, C.R.C., c. 952, ss. 4(3), 5(6), 12 (as am. by SOR/85-409, s. 4), 13, 14.
CASES JUDICIALLY CONSIDERED
REFERRED TO:
Attorney General of Canada v. Inuit Tapirisat of Canada et al., [1980] 2 S.C.R. 735; 115 D.L.R. (3d) 1; Jasper Park Chamber of Commerce v. Governor General in Council, [1983] 2 F.C. 98; (1982), 141 D.L.R. (3d) 54 (C.A.); Thorne's Hardware Ltd. et al. v. The Queen et al., [1983] 1 S.C.R. 106; 143 D.L.R. (3d) 577; Harelkin v. University of Regina, [1979] 2 S.C.R. 561; 96 D.L.R. (3d) 14.
COUNSEL:
Andrew J. Roman for applicants. Roslyn J. Levine for respondent.
SOLICITORS:
The Public Interest Advocacy Centre, Toronto, for applicants.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order ren dered in English by
JEROME A.C.J.: The applicants are plaintiffs in an action for a declaration that Order in Council 1987-858, dated April 30, 1987, is invalid (Federal Court file T-1453-87). They also filed motions for certiorari, a stay of execution, a determination of a preliminary question of law and directions. The motions came on for hearing in Toronto, Ontario, on August 27, 1987, and at the request of the parties, we proceeded with the application for certiorari and adjourned the others pending its outcome.
The impugned Order in Council purports to set aside an election which took place in June, 1986 on the Akwesasne Band Indian reserve. Each of the individual applicants was elected at that time to represent the Cornwall Island District of the reserve on the Mohawk Council of Akwesasne, the Band's governing body. The affidavit evidence indicates that until 1986, the council was com posed of four councillors elected from each of the three districts of Akwesasne and a chief who was then elected by and from the twelve councillors. In late 1985 the council passed a resolution to change this system to one in which the chief would be elected by the whole community at the same time the councillors were elected from each district. An Order in Council was passed authorizing the change.
On May 2, 1986 Cecilia Square, Justice of the Peace for Akwesasne, was appointed electoral offi cer by the council. On May 31, 1986, at a public meeting, the community reached a consensus that candidates would not be allowed to run for both chief and councillor and, if nominated to both positions, would have to decline one. As she con sidered this a reasonable interpretation of subsec tion 4(3) of the Indian Band Election Regulations [C.R.C., c. 952], the electoral officer accepted this position.
Nominations were taken for candidates for the election, to be held June 21, 1986. When the
electoral officer received all the nominations she found that ten people had been nominated for both chief and councillor. She wrote to each of these ten candidates on June 9, 1986, informing them they had to decide which post they would contest. Nine of the ten withdrew from one or both of their nominations. One of the candidates, Lawrence Francis, sought the advice of an official in the Statutory Requirements section of the Department of Indian Affairs. Informed that it was permissible to run for both positions and that council did not have the power to change the electoral laws, he replied to the electoral officer by letter stating his intention to continue to run for both positions. Mr. Francis was removed as a candidate for both posi tions for a short time, but the electoral officer later decided to accept his nomination for chief as he had formerly held that office.
Legal advice concerning this decision was later sought by the electoral officer and one of the other candidates. The answers received indicated there might be problems with the decision but did not provide a clearer interpretation of the statutory requirements.
Mr. Francis lost the election for chief on June 21, 1986. Because of the circumstances surround ing his candidacy and several other sources of concern about the election, a group called the Ad Hoc Committee for a Fair Election was formed and launched an appeal of the election. A notice of appeal was sent to the Department of Indian Affairs. By letter dated July 18, 1986, the Depart ment advised the electoral officer and all candi dates including the applicants, that an appeal had been lodged. The letter enclosed a copy of the notice of appeal, and invited written comments. The only response received was from Michael Mitchell, the elected chief, writing on behalf of the council.
In October, 1986, an official of the Department visited Akwasasne to conduct an investigation of the election. He reports that he interviewed the
electoral officer and three of the unsuccessful can didates. He did not interview the applicants.
On April 30, 1987 Order in Council P.C. 1987- 858 was issued which set aside the election of the individual applicants. The Order reads as follows:
WHEREAS the Minister of Indian Affairs and Northern Development is satisfied that there was a violation of the Indian Act that might have affected the results of the election of Lloyd Benedict, Yvonne Leaf, Angela Barnes, and Alex Roundpoint as councillors of the Cornwall Island district of the Mohawks of Akwesasne Band of Indians in that the nomination of Lawrence Francis for the position of councillor of the said district was improperly withdrawn:
AND WHEREAS the details of the election of a chief and councillors of the Mohawks of Akwesasne Band of Indians are set out in the schedule hereto.
THEREFORE, HER EXCELLENCY THE GOVERNOR GENERAL IN COUNCIL, on the recommendation of the Minister of Indian Affairs and Northern Development, pursuant to paragraph 79(b) of the Indian Act, is pleased hereby to set aside the election on June 21, 1986 of Lloyd Benedict, Yvonne Leaf, Angela Barnes, and Alex Roundpoint as councillors of the Cornwall Island district of the Mohawks of Akwesasne Band of Indians, in the Province of Ontario.
In May of 1987 the candidates, the electoral offi cer and the council were all notified of the con tents of this order. It is this order which is the subject of this application for certiorari.
The statutory provisions relevant to this applica tion are section 79 of the Indian Act, R.S.C. 1970, c. I-6 and sections 12 [as am. by SOR/85-409, s. 4], 13 and 14 of the Indian Band Election Regulations, C.R.C., c. 952:
79. The Governor in Council may set aside the election of a chief or a councillor on the report of the Minister that he is satisfied that
(a) there was corrupt practice in connection with the election;
(b) there was a violation of this Act that might have affected the result of the election; or
(c) a person nominated to be a candidate in the election was ineligible to be a candidate.
12. (1) Within 30 days after an election, any candidate at the election or any elector who gave or tendered his vote at the election who has reasonable grounds for believing that
(a) there was corrupt practice in connection with the election,
(b) there was a violation of the Act or these Regulations that might have affected the result of the election, or
(c) a person nominated to be a candidate in the election was ineligible to be a candidate,
may lodge an appeal by forwarding by registered mail to the Assistant Deputy Minister particulars thereof duly verified by affidavit.
(2) Where an appeal is lodged pursuant to subsection (1), the Assistant Deputy Minister shall, within 7 days of the receipt of the appeal, forward a copy of the appeal together with all supporting documents by registered mail to the elector al officer and to each candidate in the electoral section.
(3) Any candidate may, within 14 days of the receipt of the copy of the appeal, forward to the Assistant Deputy Minister by registered mail a written answer to the particulars set out in the appeal together with any supporting documents relating thereto duly verified by affidavit.
(4) All particulars and documents filed in accordance with the provisions of this section shall constitute and form the record.
13. (1) The Minister may, if the material that has been filed is not adequate for deciding the validity of the election com plained of, conduct such further investigation into the matter as he deems necessary, in such manner as he deems expedient.
(2) Such investigation may be held by the Minister or by any person designated by the Minister for the purpose.
(3) Where the Minister designates a person to hold such an investigation, that person shall submit a detailed report of the investigation to the Minister for his consideration.
14. Where it appears that
(a) there was corrupt practice in connection with an election,
(b) there was a violation of the Act or these Regulations that might have affected the result of an election, or
(c) a person nominated to be a candidate in an election was ineligible to be a candidate,
the Minister shall report to the Governor in Council accordingly.
The applicants attack the validity of the Order in Council on two main grounds. The first flows from the language of paragraph 79(b). They argue that what has occurred here amounts to a breach of the Regulations (I also note their contention that no such breach took place). Accordingly, since there was no violation of the Act -there is no basis for the report of the Minister and no basis for the Order in Council. Second, they argue that in the conduct of the investigation, representatives of the Minister failed to observe the principles of natural justice in not interviewing all candidates who ran in the overturned election.
This application also raises three other issues. First, it now appears to be well-established that in appropriate circumstances an Order in Council is subject to review in this Court by way of certio- rari. (See, for example, Attorney General of Canada v. Inuit Tapirisat of Canada et al., [1980] 2 S.C.R. 735; 115 D.L.R. (3d) 1; Jasper Park Chamber of Commerce v. Governor General in Council, [1983] 2 F.C. 98; (1982), 141 D.L.R. (3d) 54 (C.A.); and Thorne's Hardware Ltd. et al. v. The Queen et al., [1983] 1 S.C.R. 106; 143 D.L.R. (3d) 577.) Indeed, counsel for the respond ent raised no jurisdictional objection in this case.
Secondly, the action and the adjourned motions to which I referred in the introductory paragraph, undoubtedly raise questions regarding the validity of the Minister's investigation and recommenda tion to the Governor in Council. This application, however, concerns itself solely with the validity of the Order in Council made under section 79.
This raises a third question. Should I go beyond the wording of section 79 and consider the infor mation on which the Order in Council was based, or should I conclude that the section provides a complete authority to issue such an order once the Minister's recommendation is received by the Gov ernor in Council? I am inclined to the latter view, but I am happily relieved of the burden of a specific determination since I find that the appli cants' submission fails on its merits.
Was there a breach of the Indian Band Election Regulations? Withdrawal of a nominated candi date is governed by subsection 5(6) which reads:
5....
(6) Any candidate who has been nominated may withdraw at any time after his nomination, but not later than 48 hours before the time of the opening of the poll, by filing with the electoral officer a written withdrawal of his nomination, signed by himself in the presence of the electoral officer, a justice of the peace, a notary public, or a commissioner for oaths, and any votes cast for any such candidate shall be null and void.
The intention of this subsection is clearly to ensure that a duly nominated candidate will only be removed from the ballot by his own wish. In this case a candidate was removed against his will by order of the electoral officer. This constitutes a violation of subsection 5(6) and an excess of the electoral officer's authority, which is also set out in the Regulations.
The applicants dispute this finding. They claim that the electoral officer's actions in this matter were in fact a fulfillment of the policy behind the Regulations. They begin with the assumption that Parliament's intention, as expressed in the Act and Regulations, is that there should be only one elec tion for both chief and councillors. It follows from this that one candidate should not be allowed to run for both positions. If successful, such a candi date would be unable to fulfill his responsibilities to both offices and a second election would be required to fill the vacancy.
The applicants also rely on subsection 4(3) of the Regulations for the proposition that a candi date may not be nominated for two offices. Section 4 of the Regulations deals with nomination meet ings. Subsection 4(3) reads as follows:
4....
(3) At the time and place specified in the notice, the elector al officer shall declare the meeting open for the purpose of receiving nominations, and any person who is an elector may propose or second the nomination of any duly qualified person to serve as a chief or councillor, and the meeting shall remain open for not less than 2 hours after commencement when, if the number of .persons nominated to serve on the band council does not exceed the requisite number, the electoral officer shall declare the persons so nominated to be duly elected. [Emphasis added.]
The applicants state that the underlined portion of this section means that a candidate may only be nominated for chief or councillor, not both. This rather strained reading is apparently required by the overriding goal of one election.
I have several difficulties with this argument. First, it is by no means clear to me that Parliament intended that there be only one election. Such an
intention is nowhere expressed in the Act or Regu lations and subsection 74(1) uses the plural "elec- tions" to describe how council is to be selected. Where the chief is elected by the councillors, clearly only one election is necessary. But where both chief and councillors are elected directly, there is no indication in the Act that there may not be two elections, one for each position. Indeed, two elections in that situation seems to me much the more logical solution, and would certainly solve the problem that has arisen here. Either there could be two separate nominating procedures, or candidates could allow their names to stand for both chief and councillor and decide whether to run in the second election after seeing the results of the first. I find nothing in the Act or Regula tions which expressly directs otherwise.
I also am not prepared to overturn this Order in Council on the basis of the applicants' interpreta tion of subsection 4(3) of the Regulations. The contention is that someone may only be nominated for "chief or councillor", not "chief and council lor". I am not sure that such an interpretation would necessarily have precluded Mr. Francis' double candidacy since, in allowing his name to stand for both positions, it could be said he was running for "chief or councillor". But much more importantly, I do not think a regulation designed to govern the conduct of nominating meetings should be used to limit the substantive right of an eligible person to run for office. I am not prepared to assume, without much clearer language, that Parliament intended to deal with such an impor tant issue in this indirect manner. I therefore do not agree that subsection 4(3) of the Regulations requires a candidate to run for only one office.
The uncertainty surrounding this question has been best illustrated by the conflicting advice dis pensed by the Department of Indian Affairs. Mr.
Francis was apparently told he could run for both positions. Other parties received much vaguer advice and were given to believe the Band could determine this issue for itself. The applicants have also produced a letter from the British Columbia regional office stating that no candidate is to run for two positions at once. Finally, we have the Minister's advice to the Governor in Council that the withdrawal of one of Mr. Francis's nomina tions against his will was illegal.
In light of all this controversy, was the electoral officer within her rights to decide to follow the Band's wishes and disallow all double nomina tions? I think not. The officer's duties are set out explicitly in the Regulations. Following the nomi nation meeting, her job is to count the nominations for each position, declare elected the acclaimed candidates, declare that a poll shall be taken if necessary and prepare ballots containing the names of the candidates. She is also to witness and accept any legal withdrawals by candidates. Nowhere is she given the authority to decide for how many positions a candidate may run or to remove from the ballot candidates who have been duly nominated. While I agree the former issue is still an open question, this uncertainty did not create additional powers in the electoral officer. It was open to the Minister to find that in removing Mr. Francis' name from the ballot she had exceed ed her lawful authority.
Contrary to the applicants' submissions, there fore, I find that there has indeed been a breach of the Indian Band Election Regulations.
Nor can I accept the suggestion that the irregularity can be confined to the Regulations. The authority to hold elections for band councils and chiefs is found in subsection 74(1) of the Indian Act, which reads:
74. (1) Whenever he deems it advisable for the good govern ment of a band, the Minister may declare by order that after a day to be named therein the council of the band, consisting of a chief and councillors, shall be selected by elections to be held in accordance with this Act.
In order to fulfill the requirements of this subsec tion, the elections must be held "in accordance with this Act". Several other sections amplify that requirement. Subsection 74(3) allows the Gover nor in Council to order whether the chief is to be elected directly or by the councillors and that a majority of votes will determine the winners. Sec tions 75 and 77 specify who is eligible to be a candidate and an elector, respectively. And section 76 provides for Orders in Council to be made dealing with, among other things, meetings to nominate candidates, the appointment and duties of electoral officers and the manner in which voting shall be carried out. By this section, Parlia ment has delegated to the Governor in Council the authority, by Regulation, to establish procedures which ensure that elections are conducted "in accordance with this Act". The Regulations made under this section form part of the particulars of that requirement. In the present case, the failure to conform with the Regulations respecting nomi nations means that this election was not conducted "in accordance with this Act" and therefore that it constitutes a violation of subsection 74(1).
It is also helpful to consider the Regulations dealing with election appeals. In sections 12, 13 and 14, quoted above, the Minister is expressly obliged to investigate and report on "a violation of the Act or these Regulations". Since the Minister's report to the Governor in Council must include any violation of the Act or Regulations, it would be inconsistent in the extreme to restrict her au thority under paragraph 79(b) to one or the other only.
I therefore find that this violation of the Indian Band Election Regulations authorizes the Minis ter to make a recommendation and the Governor in Council to exercise her authority under para graph 79(b) of the Act.
The applicants' second argument is that the Order in Council is vitiated because the Minister's report on which it was based was written in viola-
tion of the principles of natural justice. The main complaint on this issue is that the Minister's inves tigator failed to interview the applicants as suc cessful candidates in the election. It is argued, therefore, that his report to the Minister "was not prepared thoroughly and fairly and was either actually biased or would give rise to a reasonable apprehension of bias". The Minister's report is said to be similarly tainted.
The process to be followed by the Minister on an election appeal is set out in sections 12 to 14 of the Regulations reproduced above. By subsections 12(2) and 12(3), when an appeal is lodged, the first step is for a copy of the appeal to be mailed to the electoral officer and each candidate in the electoral section. Any candidate may, within 14 days of receiving his copy, respond in writing to the particulars set out in the appeal. If the Minis ter feels he does not have enough information after this exchange to determine the validity of the election, he may "conduct such further investiga tion into the matter as he deems necessary, in such a manner as he deems expedient" (Subsection 13(1) of the Regulations). Finally, if it appears that there has been corrupt practice, a violation of the Act or Regulations or improper nominations, the Minister is to report to the Governor in Coun cil accordingly.
It is apparent from these provisions that the Minister has considerable discretion in determin ing how an investigation is to be carried out and whether there will be a report. The applicants correctly argue that such discretion must be exer cised fairly. To decide whether the Minister and his delegates have acted fairly, the whole process of the investigation must be examined. Immediate ly after the filing of the appeal a letter was sent to each candidate and the electoral officer notifying them of the grounds of appeal and inviting written replies. None of the individual applicants chose to respond to this letter. Then, in October of 1986 a Department official conducted an investigation under section 13. He visited the reserve and spoke to each of the two "sides" in this dispute: the electoral officer and the unsuccessful candidates. On the basis of the information he gathered
reports were prepared, first for the Minister and then for the Governor in Council.
The question before me is whether this proce dure was fair to these applicants. I believe it was. They were given an opportunity to respond to the specific grounds of appeal, which they declined. The investigating official spoke to the electoral officer who was in the best position to defend the validity of the election. Had there been some written response from the applicants, indicating that they had information connected with the appeal, no doubt they would also have been inter viewed. There has been no allegation that the information gathered was wrong or incomplete. I am satisfied therefore that all interested parties were given a fair opportunity to participate in the appeal process.
My decision on this issue is also influenced by the fact that certiorari is a discretionary remedy. Courts are generally reluctant to grant it in review proceedings where there is a route of appeal pro vided by statute (See Harelkin v. University of Regina, [1979] 2 S.C.R. 561; 96 D.L.R. (3d) 14). Here, the statutory appeal mechanism provides an entirely adequate avenue for the resolution of this dispute. When it was undertaken by the Minister, these applicants should have accepted the invita tion to state their case, but they declined. It would be inappropriate to now grant them discretionary relief by way of certiorari to attack the Order in Council which is the ultimate result of that process.
There is one other factor which tips the scale against setting this Order in Council aside. Where there is a serious argument that the election was irregular, it is in the interests of all parties for the Minister to err on the side of recommending that it be set aside. The alternative is to perpetuate a situation in which a section of the Band is unrepre- sented on council or where confusion exists as to the right of successful candidates to hold office.
I should add, as an observation, that it would be beneficial if this application were to result in a definitive legal interpretation of the electoral laws which would provide clear guidance in future Band elections. It will not. I do wish to repeat, however, that the Act and the Regulations indicate Parlia ment's intention to give each Band two choices in conducting elections. One is to elect the councillors and have the councillors elect the chief. The second, which was selected in the present case, is to have direct elections for both at the same time. Where the latter choice is exercised, the safer course would be to conduct the elections separate ly. This would permit candidates and electors to know the results of one before proceeding with the nominations and voting for the other. In my view, nothing in the Act or Regulations prevents such an arrangement.
This application for certiorari must therefore be dismissed. There will be no order as to costs.
 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.