Baptiste v. Chief and Council Date:, 2013 BCPC 57

Citation: Baptiste v. Chief and Council Date: 20130312 2013 BCPC 0057 File No: 39510 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: MARIE BAPTISTE PETITIONER AND: CHIEF and COUNCIL RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C.D. CLEAVELEY Appearing on her own behalf: Ms. M. Baptiste Appearing for the Respondents: Mr. D.A. Paul, Q.C. Place of Hearing: Kamloops , B.C. Date of Hearing: February 18, 2013

Date of Judgment: March 12, 2013 [ 1 ] On December 4, 2012, Marie Baptiste filed a Petition, against Chief and Council of the Kamloops Indian Band (hereinafter called the “Band”), seeking the following relief: • We, the undersigned, request that the November, 2012 Election be set aside and that a new election of Chief and Council be called, • And that immediate procedures be taken to ensure that all the off-reserve members have a fair and equal opportunity to cast their votes. [ 2 ] The Band opposes the Petition both procedurally and substantively.

Procedurally, the Band argues that this court has no jurisdiction because: • The Petition asks for relief which cannot be granted under the Tk’emlups te Secwepemc Custom Election Regulations, • The Petition was filed outside of the 15 day limitation period as set out in the Regulations; [ 3 ] Substantively, the Band argues that, on the facts of the case, the Petition ought to be dismissed. [ 4 ] At a pre-trial hearing on December 14, 2012, it was decided that the case would be heard in two stages.

First, the jurisdictional issue would be determined, and then if necessary, the merits of the case would be argued. [ 5 ] The following is my decision on the jurisdictional issues. [ 6 ] The factual issue raised in the Petition relates to the mail-in ballot package which was mailed to off-Reserve members prior to the Band elections on November 10, 2012. [ 7 ] In an affidavit filed by the Band, Marcus Hadley, the Band’s Electoral Officer, deposed that in accordance with the election regulation he mailed the mail-in ballot package to 377 off-Reserve voters. [ 8 ] The package contained the following documents: two ballots (one for Chief and one for Councillors), a stamped and addressed return envelope, a ballot envelope, an Electoral Declaration Form, a Voter Instructions Sheet, a Notice of Polls, a statement concerning the ability of the off-Reserve voter to vote in person, and a list of acclaimed candidates. [ 9 ] Within the package, the Notice of Polls and the two ballots contained the polling date of November 10, 2012. [ 10 ] In his affidavit, Mr.

Hadley, in paragraphs 10, 12 and 13, explained the error which resulted in the Petition being filed. 10. In preparing the Packages, I printed and proof read, and had my assistants proof read and package each of the required documents in batches of fifth (50). On or about October 12, 2012, which I was travelling on business, I received a call from one of my assistants stating that she was short one batch (50) of the Voter Instructions Sheets . I emailed her a Voter Instruction Sheet , which she printed.

She then called me to tell me that the document contained the wrong date for the Polling Day in that the year cited was 2010 instead of 2012. I instructed my assistant to change the year to 2012 by hand and make copies of the corrected document, which she did. 12. On or about October 30, 2012, I received a telephone call from an Off-Reserve Voter asking why the date of the Polling Day on her Voter Instruction Sheet was different from the date of the Polling Day on the Notice of Polls in the Package. She stated that the former was November 27, 2012, while the date on the latter was November 10, 2012. 13.

Upon examining my files I discovered that the Voter Instruction Sheet I had emailed to my assistant on or about October 12, 2012, and which she had corrected by hand contained the date “November 27, 2010” and that the date that appeared on the Voter Instructions Sheet actually mailed-out was “November 27, 2012”. This was the case for fifty (50) of the Packages: the remaining three- hundred and twenty-seven

(327) Packages contained the Voter Instructions Sheet with the correct date of the Advance Polls and Polling Day of November 3, 2012, and November 10, 2012. The fifty

(50) Packages with the incorrect date of the Polling Day on the Voter Instructions Sheet also contained the Notice of Polls with the correct date of the Advance Polls and Polling Day of November 3, 2012, and November 10, 2012, and the ballots with the correct date of the Polling Day of November 10, 2012. [ 11 ] In his affidavit, Mr. Hadley also deposed that upon discovering the error “there was no time to redo the Packages and have them arrive on time ...”. As well, Mr. Hadley had no information as to which off-Reserve voters would have received the incorrect information as contained on the Voter Instructions Sheet.

[ 12 ] Prior to polling day, Mr. Hadley had received five inquiries from off-Reserve voters asking for clarification of the polling date. He gave them the correct date, November 10, 2012. [ 13 ] By polling date, November 10, 2012, 14 mail-in ballot envelopes had been received. [ 14 ] In Ms. Baptiste’s written submission to me, which I accept pursuant to Regulation 21 (7) and (8), it is clear that Ms. Baptiste knew, as early as November 20, 2012, of the error in the Voter Instructions Sheet. Mr. Hadley, in his affidavit, also states that Ms.

Baptiste telephoned him on or about November 21, 2012 and asked if he knew of the error in the Voter Instructions Sheet. [ 15 ] Attached to these Reasons as

Schedule “1” is a copy of the Voter Instructions Sheet, with the incorrect date of November 27, 2012. [ 16 ] In

summary, the Petition is based on the four erroneous references in the Voter Instructions Sheet to the polling date of November 27, 2012. Ms. Baptiste argues that this mistake disenfranchised a number of off-Reserve voters, which can be only remedied by having the election set aside and a new election held. LEGISLATION [ 17 ] The relevant provisions of the Tk’emlups te Sewepemc Customs Elections Regulations are as follows: 2.

DEFINITIONS BY CUSTOM “Polling Day” means the day designated in subsection 18(1) of this Regulation. 18. POLLING DAY 1. Polling Day shall be the second Saturday of November in the year of an Election. 21. APPEALS AND PROCEDURES TO REMOVE A PERSON FROM OFFICE. 1. The: (

a) validity of the election of a Council Member; or (

b) right of a Council Member to hold office must not be determined except in accordance with this section. 2. A Council Member, or any ten (10) or more Electors, may file a petition with the Judge praying for a declaration that: (

a) the election of a Council Member is invalid because: (

i) the Election was not conducted in accordance with this Regulation such that the results of the Election may have been affected. (ii) the Council Member was not qualified to be a Candidate or (iii) there was a Corrupt Practice in connection with the election; or, (

b) a Council Member is disqualified from holding office. 4. A petition made under subsection (2)(

a) must be filed with the Judge within fifteen (15) days from the date of the Polling Day or the Tie Breaker Poll, as the case may be. 6. If the Judge is satisfied that there are reasonable grounds for supporting the declaration prayed for, the Judge must require the petitioners to deposit the amount of five hundred dollars ($500.00) with the Service Delivery Manager as security for the costs of the Council Member petitioned against. 11. If a petition is made under subsection (2)(a), the Judge must make a declaration that, based on the evidence before the Judge: (

a) the election of the Council Member was valid; or (

b) the election of the Council Member was invalid. 13. If it appears to the Judge that the Election was conducted in good faith and in accordance with the principles of this Regulation, the election of the Candidate must not be declared invalid only by reason only of: (

a) an irregularity or noncompliance with these Regulations; or (

b) a mistake in the use of forms or notices, unless the irregularity, noncompliance or mistake materially affected the result of the election. ISSUES [ 18 ] In its written argument, the Band argued that the Petition must fail for two reasons: • Firstly, the Petition must fail because the action was commenced outside the 15 day limitation period which is clearly prescribed by Regulation 21(4);

• Secondly, the Petition must fail because it does not seek a remedy or relief prescribed by the Regulation. The only relief that theybe sought is prescribed by Regulation 21(11) (a declaration that the election of the Council Member was valid or the election of theCouncil Member was invalid). [19] In response, Ms. Baptiste argues that it is not the election which she seeks to overturn, but the election of all Council Members,including the Chief. This is why the Respondents are as set out in the Petition as “Chief and Council”. ANALYSIS [20] I shall firstly deal with the nature of the relief sought by Ms.

Baptiste, and then consider the 15 day limitation period issue. [21] In her Petition, Ms. Baptiste asserts that the spirit and intent of the election regulation was not met because the off-Reserve voterswere given confusing information as to the correct polling date and the date for receipt of the mail-in ballots. Effectively, Ms. Baptiste’sassertions falls squarely within Section 21(2)(a)(i), there has been a breach of the Regulation and the results of the election may havebeen affected. [22] The relief sought by Ms.

Baptiste, a self-represented litigant, is somewhat confusing, and some of it is beyond the scope of thishearing. By this I mean that Ms. Baptiste, in her claim for relief, asks that the “election be set aside and that a new election of Chief andCouncil be called”. Section 21(11) does not give me any authority to make an order regarding immediate procedures be put in place toensure that off-Reserve members have a fair and equal opportunity to vote. [23] I do agree with Mr. Paul that Ms. Baptiste has asked for too much when she requests that “a new election of Chief and Council becalled”.

Clearly, Section 21(11) requires me to make a declaration that the election of a Council Member is either valid or invalid. I donot have any jurisdiction to order a new election. [24] Mr. Paul is also likely correct that Ms. Baptiste ought to have paid security of $3,500.00 if she was challenging the election of allCouncil Members. This oversight, for which I am partly responsible, does not materially affect the validity of Ms. Baptiste’s Petition. [25] In Nisichawayasihk Cree Nation v. Nisichawayasihk Cree Nation (appeal Committee), [2003] F.C.J.

No. 657, a case relied uponby the Band, the court said: 56 It is clear on the record that no appeal was filed by any party alleging as a ground the Electoral Officer’s decision with respect tocriminal record checks required under s. 12(1)(d). The Code is clear: the Appeal Committee can only act on properly filed appeals. Ifind that the Appeal Committee has no jurisdiction to act on its own motion to introduce grounds of appeal not stated in a properly filedappeal document. [26] Mr.

Paul relies upon this authority and suggests to me that I have no authority to order any relief other than what is asked for in thePetition. [27] I do not take any issue with this argument, but I cannot see on the wording of the Petition that new relief is being added. A plainand simple reading of the Petition clearly indicates that the Petition is directed to “Chief and Council”. It is not directed to the Band inits own right. [28] It is my view that Ms.

Baptiste is challenging the validity of the individual elections of Chief and Councillors on the basis of theconfusion relating to the polling date as contained in the Voter Instructions Sheet. I do not fault Ms. Baptiste for the less than perfectwording of her Petition. All Council Members would have known by reading the Petition in its entirety that Ms. Baptiste waschallenging the election of each Council Member, and the facts upon which the challenge was based. [29] To conclude this aspect of the case, Ms.

Baptiste’s Petition clearly sets out her position as to why the election was not conductedfairly and the reason why she believes the result may have been affected. Ms. Baptiste may have not set out the relief which she isseeking in a clear manner, but it is obvious that she is challenging the validity of the election of each Council Member. [30] In regards to the 15 day limitation period, Ms. Baptiste argues that the running of time should start on November 27, 2012, thepolling date as indicated on the Voters Instruction Sheet. If this is the correct

interpretation of Regulation 21(4), the Petition was filed intime. [31] In his submission, Mr. Paul provided the following analysis: Regulation 18(1) provides that the polling date shall be the secondSaturday of November in the year of an election. The second Saturday in November, 2012 was November 10, 2012 (the date set out inthe Notice of Polls). [32] Regulation 21(4) states that a Petition claiming the relief sought by Ms. Baptiste must be filed within 15 days of the polling date(November 10, 2012). The limitation period would expire on Sunday, November 25, 2012. To this analysis I would add, that becausethe last day for the filing of the Petition fell on a Sunday, the

Interpretation Act, R.S.C. 1985, c. I-21, s. 26 extends the limitation periodto November 26, 2012. [33] Mr. Paul also argues that within the Regulations there are no exceptions or discretionary power to extend the limitation period andthat the validity of the election must be determined within the framework of Regulation 21. [34] In support of this argument I was directed to two well known authorities on the subject of statutory

interpretation: R. v. MultiformManufacturing Co., (SCC), [1990] 2 S.C.R. 624 at paragraphs 9 and 10 and R. v. McIntosh, (SCC),[1995] 1 S.C.R. 686.

[ 35 ] Both decisions quote Maxwell on the “Interpretation of Statutes” [12 Edition 1969]: “A statute should be interpreted in a manner consistent with the plain meaning of its terms. Where the language of the statute is plain and admits of only one meaning, the task of

interpretation does not arise.” [ 36 ] More to the point, I was directed to three cases which consider Band election laws. [ 37 ] In Big “C” First Nation v. Big “C” First Nation (Election Appeal Tribunal) , [1994] F.C.J. No. 784 , Federal Court of Canada - Trial Division, Strayer, J. held that the Tribunal erred in law and in jurisdiction when it extended the time for filing of an appeal outside of the 30 days provided for in the Regulations. There was no provision in the Regulations for an extension of the time to file an appeal. [ 38 ] In Nisichawayasihk Cree Nation v.

Nisichawayasihk Cree Nation (Appeal Committee) , Federal Court of Canada – Trial Division, Campbell, J. held that the Appeal Committee had no jurisdiction to entertain an appeal which was filed outside of the seven day limitation period. The decision of the Appeal Committe calling for a new election was set aside. [ 39 ] In Bugle v. Lameman , [1997] F.C.J. No. 560 , Federal Court of Canada – Trial Division, Campbell, J. said: 2 First, I find that the Tribal Election Law is the all-encompassing code of legal authority to elect and remove a Chief and Council of the Beaver Lake First Nation.

Thus, it is only within the words of this law itself that any authority can be found to remove Chief Lameman from his office. I find that the words of the Tribal Election Law must be strictly construed; that is, I cannot be liberal in interpreting their meaning because, in my view, the results of removal from office are so severe that a strict

interpretation is required. [ 40 ] The law regarding statutory

interpretation and the need for litigants to comply strictly with time requirements when challenging elected Band officials could not be clearer. It is essential that litigants strictly comply with any limitation period. [ 41 ] In this case, Regulation 21 is very clear on its face and is a complete code. No

interpretation is required. A Petition seeking relief under Regulation (2)(

a) must be filed within 15 days from the polling date, which was November 10, 2012. That did not occur in this case. [ 42 ] The Band election law cases to which I referred confirm that election laws must be strictly adhered to because of the potentially serious consequence, removal of an elected official from office. [ 43 ] Ms. Baptiste filed her Petition on December 4, 2012. This is eight days outside of the required timeframe as set out in Regulation 21(4). [ 44 ] The Petition is not properly before me and I have no jurisdiction to hear it. [ 45 ] Before concluding I will add these comments.

If I had the authority to extend the timeframe for the filing of the Petition, I would not have exercised my discretion in Ms. Baptiste’s favour. Ms. Baptiste knew, on or about November 21, 2012, of the error in the Voters Instruction Sheet. On these facts, the Petition could have been filed before November 26, 2012. [ 46 ] To conclude, the Petition is dismissed. ___________________________ C.D. Cleaveley Provincial Court Judge