2012 QCCQ 16349, 2012 QCCQ 16349

Bearskin c. Wadden 2012 QCCQ 16349 COURT OF QUÉBEC “Administrative and Appeals Division” CANADA PROVINCE OF QUÉBEC DISTRICT OF ABITIBI LOCALITY OF CHISASIBI N°: 640-80-000005-111 DATE: December 17, 2012 ______________________________________________________________________ BY THE HONOURABLE CLAUDE BIGUÉ, J.C.Q. ______________________________________________________________________ CONRAD BEARSKIN Petitioner vs.

BRIAN WADDEN , in his capacity as Returning Officer for the Cree Nation of Chisasibi Respondent and THE CREE NATION OF CHISASIBI Intervenor ______________________________________________________________________ JUDGMENT on a petition for the contestation of an election (Section 78 of the Cree-Naskapi (of Québec) Act, S.C. 1984 chap. 18 ) ______________________________________________________________________ [ 1 ] This is a petition requesting to declare invalid the election of a councillor of the Council of the Cree Nation of Chisasibi.

ISSUES RAISED: [ 2 ] Should the contestation be dismissed because the written notice was submitted to the Returning Officer after the delay of five (5) days starting from the election, as provided by section 78(1) of the Act? [ 3 ] If the petition is heard on the substance, was there non-compliance with the Act [1] , with a by-law made by a band council pursuant to

section 64 [2] , or with a regulation made under section 67(1) a) [3] , in respect of the election of a council member on September 28, 2011? [ 4 ] Should the election be declared invalid for any irregularities found in the process?

THE FACTS: [ 5 ] The petitioner was a candidate for the position of councillor for the Cree Nation of Chisasibi at an individual election held on September 28, 2011. [ 6 ] The respondent, Brian Wadden, has been the Returning Officer for the Cree Nation of Chisasibi, since his appointment by way of a resolution on December 7, 2010. [ 7 ] At the beginning of September 2011, Councillor Sarah Pashagunskum spoke to the Chief, informing him that she was moving to Oujebougoumou and that she would resign shortly. [ 8 ] In a letter dated September 13, 2011, Councillor Pashagunskum formally resigned. [ 9 ] Her resignation was accepted on September 14 at a band meeting, and a directive was given to the Corporate Secretary to proceed with an election for the position of one (1) councillor. [ 10 ] On September 19, a notice of election was posted at different locations in the community. [ 11 ] Ten (10) persons were nominees for the individual election that was held on September 28, 2011. [ 12 ] Mr.

Roderick Pachano obtained 116 of the 403 votes expressed by the electors. He was declared elected. Petitioner Bearskin terminated in second place with 80 votes.

[ 13 ] Petitioner Conrad Bearskin is contesting the election of Mr. Pachano, alleging non-compliance of the Returning Officer with many sections of the law and the by-law. ANALYSIS: - The five-day delay for a contestation: [ 14 ]

Section 109 of the Election By-Law states that the procedure for the contestation of an election shall be governed by

section 78 of the Act. [ 15 ] The procedure is the following: ➢ a candidate or fifteen electors can contest the election; ➢ the delay for contestation is five days of the election day; ➢ a written notice of contestation must be submitted to the Returning Officer; ➢ on receipt of such a notice, the Returning Officer shall, within two weeks, prepare and submit to the Court a petition for contestation of the election. [ 16 ] The five-day delay of the Act is confirmed by

section 107 of the Election By-Law. [ 17 ] The election was held on September 28. Consequently, the deadline was October 3, for a notice of contestation. [ 18 ] While dated October 3, 2011, the notice of contestation was actually sent to respondent Brian Wadden, Returning Officer, on October 4, 2011. Prior to that, Mr. Bearskin had written a letter to the Corporate Secretary on September 30, on his disagreement with the election. [ 19 ] The written notice is the starting point of the contestation procedure. If was received by the respondent on the sixth day.

The letter dated September 30 was sent to the wrong person, the Corporate Secretary. The law is precise: the written notice shall be sent to the Returning Officer. Such is the law. Such is also

section 107 of the Election By-Law. [ 20 ] The five-day delay is one of forfeiture, not of prescription (section 2875 ss. of the Civil Code of Québec ). [ 21 ] When the law provides for a brief delay, even an extremely brief delay, the objective and the reason for such a short delay have to be considered. [ 22 ] In electoral matters, it has been decided that the delay for the contestation of an election is imperative, peremptory: Judge Dominique Goulet, in her judgment rendered in the case of Thérien c. Psenak , qualifies the delay as “prefix” or imperative [4] . [ 23 ] The latter case law was an

interpretation of the Act respecting elections and referendums in municipalities, R.S.Q. c. E-2.2 . [ 24 ] Although it concerns a municipality, this judgment is also applicable to an election concerning another form of local government, the “band council”, terms used by the Act.

The Cree Nation opted for the word “council” only in the Election By-Law. [ 25 ] The principle is that a delay for contesting an election shall not be extended, for reasons of fast outcome of an election contestation, for the sake of sound public administration [5] . [ 26 ] Consequently, the petition has to be dismissed on the ground that the notice was submitted late, the five-day delay being strict and imperative. - Substantive issue: [ 27 ] Nevertheless, the Court shall analyse, comment and decide on the substantive issue. [ 28 ] For that purpose, the Court shall analyze each allegation submitted in the petition to contest the election.

These allegations are stated in the “particulars” drafted by lawyer Lisa De Montigny between April 13, 2012 when she started representing the petitioner until June 12, 2012 when she ceased her representing him. - Mr. Bearskin was not able to have a run-off election: [ 29 ] The petitioner wished that a second round be held in the elections, in order for him to get a chance at being elected with a clear majority (50 % plus 1). That is what he calls a “run-off” election. This is his main allegation for contesting the election. But the respondent refused, his decision based on

section 101 of the Elections By-Law. [ 30 ] The respondent was right. Only candidates for the offices of chief and deputy chief have to obtain “not less” than a clear majority of the votes to be declared elected, as clearly provided in sections 99 and 100 of the Election By-Law. If there is no clear majority after one round, there is a second round “between the two candidates having obtained the highest number of votes in respect of the offices of chief and deputy chief” (section 102 of the By-Law). [ 31 ] As for the office of councillor, as stated in

section 101, the candidate receiving the highest number of valid votes shall be declared elected councillor. There is no second round. The only exception, pursuant to

section 102 of the By-Law, is in the case of a tie vote, as far as the position of councillor is concerned.

[ 32 ] The Election By-Law no. 2009-003 came into force in April 2010 and has never been quashed according to

section 55 and ss. of the Act, nor declared void by a Court decision. Sections 99 to 102 are then valid and Mr. Bearskin’s contention for a run-off election is ill-founded. Finally, the present petition is not challenging the legality of the Election By-Law. - The Chief was on holidays during the time of the election and moreover he was not aware that an election was scheduled: [ 33 ] This is the second major issue raised by Mr. Bearskin. However, no provision of the Act or of the Election By-Law provides that the Chief has to be present when a council decides to call a band election. [ 34 ] Section 76(2) of the Act provides that calling an election is a decision of the band council.

Section 5 of the Cree-Naskakpi Band Election Regulations [6] confirms the Act on that issue. So does

section 7 of the Election By-Law. [ 35 ] Moreover, according to sections 33 and 76 of the Act, it is the duty of the band council to call an election “forthwith”. Indeed, if there is no decision within ten (10) days (of the vacancy), section 77(1) provides that “the Returning Officer shall hold the election in question” notwithstanding a decision by the council. So the council has to act promptly and not wait for the Chief, if he is unavailable. [ 36 ] There is one exception only, that is, when a vacancy occurs less than six months before the expiration of the office, meaning before the next general election.

In such a case, the council may decide that no individual election will be held. This is not the case here, where the resigning councillor had been elected for a five-year term ending in 2015. [ 37 ] When the Chief is absent,

section 34 of the Act provides that the Deputy Chief shall act as chair at council meetings. [ 38 ] The letter of resignation was sent to the Chief, with the mention that the former councillor’s resignation had been previously discussed with him. A copy of that letter was also sent to all council members. All of them were aware that an election had to be called.

Chief Rupert confirmed in Court that he was aware that an election was being called, but he did not know the exact date, since he was hunting on September 14, and he stayed in the bush for two weeks. [ 39 ] There is no provision in the law or in the By-Law stipulating that the Chief has to be part of a decision to call an election. This allegation is consequently ill-founded. - There was no resolution from the Chief and the council to call an election. The Deputy Chief only mandated the Returning Officer to proceed to the said election: [ 40 ] This is the third major issue, according to Mr. Bearskin.

However, a resolution was duly adopted by the Council on September 14, 2001. The Council was then chaired by the Deputy Chief: Ms. Daisy House Lameboy’s testimony confirms the decision of the Council. The resignation of the former councillor was accepted and a directive was given by way of a resolution to the Corporate Secretary Edna Kanatewat to proceed with an election.

The latter also testified that she executed that order by giving instructions to the Returning Officer to initiate the electoral process. [ 41 ] Here is the text of the resolution (exhibit D-3): “The Council accepts her resignation and a directive is given to Corporate Secretary to proceed with an election for one (1) councillor.” [ 42 ] The literal wording of the resolution is not that the council decides “to hold an election”, terms used in

section 76 of the Act. The resolution is a directive to the Corporate Secretary, a public officer who follows up after council meetings, to instruct the Returning Officer. The wording could have been more accurate. However, the resolution uses the words “to proceed with an election”. It is clear enough to express the Council’s decision to hold an election. [ 43 ] This explains why some considered that no clear resolution had been adopted.

It also explains why the Deputy Chief, and not the Chief, was chairing the Council at the time the decision was made: the Deputy Chief was acting on behalf of the Chief during his holidays. [ 44 ] The resolution is consistent with sections 76 and 77 of the Act, which foresee that when a vacancy arises, it is the obligation of the council to decide to hold an election. The letter of resignation was submitted to the Council on September 14. The resigning councillor had already moved to another community.

There was clearly a vacancy according to the Act, and the Council could not postpone the decision to call an election. [ 45 ] The overall evidence is that the resolution of September 14 met with the prescriptions of the Law and that its content was sufficient to call an election. - Support of the Community members (459 signatures): [ 46 ] This issue and the following were raised subsequently by the petitioner in the written “particulars” of the petition. A contestation can be initiated by a defeated candidate or by at least 15 electors.

The high number of electors (459) supporting the contestation of an election does not mean that the election will be automatically declared invalid. Moreover, an election (secret ballot) cannot be overturned by a “petition” bearing signatures of persons who signed publicly. In the case at bar, the document signed by community people did not contain any reasons for which they had signed it.

Consequently, a list of signatures (“petition”) cannot overturn an election. - The election was not called by the Council: [ 47 ] As said earlier in this judgment, the election was called following a resolution of the Council, duly adopted on September 14, 2011. - A copy of the electoral list was not appended to either the nomination notice or the election notice:

[ 48 ] The allegation is that the electoral list was not posted with the notices (election and nomination). [ 49 ] This

interpretation is ill-founded.

Section 35, paragraph 2, of the Electoral By-Law uses the term “ forthwith upon ” for the posting of the nomination and election notice. Consequently, the notice of Election and the notice of Nomination are but one document, not two. The electoral list must not necessarily be posted at the same time as the notice of election. The electoral list will be made available after the election notice.

Section 31 stipulates that the final electoral list shall be posted at least two (2) clear days following the closing of the nominations. [ 50 ] The notice of election bears the date of September 19. The electoral list, as appears on the document itself (exhibit P-7), was drafted on September 20, 2011. Consequently, the list, 46 pages long and bearing 2753 names, was available within two days of the election notice and before the closing of the nominations. As a matter of fact, we have no evidence of an official “posting”, but we have no evidence that it was not posted either.

The burden of evidence was on the petitioner and he did not meet it. However, we know that the list was available at all pertinent times, at least at the offices of the Cree Nation. [ 51 ] After referring to many Court decisions, Judge Denis Lavergne of the Court of Québec, in the case of Danyluk v. Wemindji Band , summarizes from the jurisprudence that in order to render an election invalid on the grounds of section 78(2)

b) of the Act, the breach of a formality must: ➢ Fundamentally vitiate the democratic process; and ➢ Vitiate the choice of the electors [7] . [ 52 ] In the Danyluk decision, Judge Denis Lavergne writes that a breach of a formality “does not automatically and necessarily follow that it vitiates the election.

Not every breach voids an election [8] ”. [ 53 ] Judge Lavergne quotes Justice Russell when the latter says that, apart from fraud or bribery and other corrupt practices, “honest mistakes by election workers will not justify voiding an election unless the departure from prescribed procedures is so substantial that the only conclusion is that the election was not an election [9] ”. [ 54 ] Judge Lavergne also refers to many Court decisions in his very well drafted judgment, and I will not refer again to the same authorities nor reiterate the same comments. [ 55 ] Amongst the judgments enumerated in the Danyluk decision, we can refer notably to the cases of Raymond c.

Dupont [10] , Dompierre v. Provost [11] and Racine v. Thériault [12] . [ 56 ] A more recent decision confirmed that the same principles still apply [13] . The non-observance of minor formalities does not justify declaring void an election. A Court will declare an election void, when fraud or the violation of a formality that has a determinant effect on the election results is discovered. [ 57 ] The Court must balance the public and private interest, and consider the right of the population to the free expression of a democratic choice.

In the case referred to, Judge Lavergne decided that the electoral choice would be more seriously affected if the election were to be cancelled [14] , for a formality that is not “essential”. [ 58 ] In such circumstances, posting a list is a secondary requirement, and missing to it does not “compromise the exercise of a democratic right on the ground of the non- observance of formalities that do not cause a prejudice to the free and full expression of a choice [15] ”. [ 59 ] This is not “an offence or a non-compliance (that) materially affected the result of the election”, under the meaning of section 78(7) of the Act.

We will also have later comments concerning the formalities that can be adapted by the Returning Officer to the situation of an individual election, as clearly stipulated in

section 7 on the By-Law; Paragraphs 84 ss. of this judgment will comment on

section 7. - The Returning Officer did not mail a copy of the election notice to each of the non-resident electors: [ 60 ] This allegation was not supported by the evidence. According to

section 2803 of the Civil Code of Québec , a person wishing to assert a right shall prove the facts on which his claim is based. The petitioner did not meet the burden of evidence here. - The election notice was not posted in a conspicuous place (section 37 of the By-Law): [ 61 ] This allegation is not supported by the evidence. On the contrary, Ms. House Lameboy confirmed that 20 copies of the election notice were posted in the community centre, at the hospital, at the gas station, and other places. Numerous announcements were also made on the community radio. Mr.

Bearskin did not prove what conspicuous place had been forgotten in the posting operation. - The returning Officer did not make the necessary corrections to the electoral list, nor did he indicate the beneficiary number or date of birth of each elector (sections 27 and 28 of the By-Law). [ 62 ] There was no complaint on that subject, and there was no evidence that some corrections to the list were requested of or made by the Returning Officer (section 29).

This is a secondary formality, as previously discussed. - There were no addresses for the non-resident electors (s. 33 of the By-Law): [ 63 ] There were no complete addresses. However, places of residence or communities of residence were indicated on the list. This is a secondary formality. The same analysis as the one set out in paragraphs 51 to 59 applies. Adding non-residents’ addresses on an electoral list is a secondary formality.

Section 33 provides that the Membership Clerk (not the Returning Officer) shall deliver to the Returning Officer the electoral list together with (it can be two different documents) the last known addresses. It does not mean that the

electoral list must contain the electors’ complete addresses. At last, this formality would only apply to general elections since it has to be done at least 30 days before the date on which an election is to be held. This is not consistent with

section 77 that requires the council to call an individual election within 10 days. - The notice should have been written in the Cree Language also (section 5): [ 64 ] As stated in

section 5 of the By-Law, the notices prepared under the Election By-Law should have been drafted not only in English, but also in the Cree Language. Nobody testified that he or she missed the information concerning the election because the notices were not drafted in the Cree language. However, this failure was not proven to have changed anything in the electoral process and to have had a significant impact on the election results. Once again,

section 2803 C.C.Q. applies. - The electoral notice was not substantially in the form of

Schedule 1 (section 35): [ 65 ] The main elements of

Schedule 1 were contained in the election notice. Nobody came to complaint. There were 10 candidates at the election. There was certainly not a shortage of candidates. There was no evidence that the election notice, as drafted, would have changed the result of the election. - The polls’ operating hours were from 10 a.m. to 7 p.m. instead of 9 a.m. to 8 p.m., and the date of the election was less than 10 days from the closing of the nominations (sections 54 and 55): [ 66 ] The same reasoning applies as in the previous paragraph.

This did not have an impact on the result of the elections. [ 67 ] Nobody testified that he or she was unable to vote because the polls were closed between 9 a.m. and 10 a.m. or between 7 p.m. and 8 p.m. - The election notice was dated September 19, 2011 but was not posted on that day: [ 68 ] No evidence was provided to confirm the day of the posting. There is no default, even if the posting was not made on the same date as printed on the notice itself. - The date set for the election was during the goose-hunting season (“goose break”): [ 69 ] No

section in the Law or in the By-Law prohibits an election to be held during the “goose break”. This allegation is rejected for that sole reason. [ 70 ] Nevertheless, no evidence was provided in order to confirm the dates of the goose-hunting season in 2011, especially the start date. [ 71 ] In the year 2007, the general elections were held on September 20, 2007. [ 72 ] We have no evidence that the “goose break” had started when the elections were held on September 28, 2011. - There was no date set for a travelling poll: [ 73 ] A travelling poll is not compulsory: ➢

Section 8

a) and 90 of the Election By-Law; ➢

Section 5 and 6

d) of the Cree-Naskapi Band Elections Regulations [16] . [ 74 ] Being optional, a travelling poll is not an essential formality. - The nomination for councillors should have begun not less than eight days after the posting of the nomination notice and should have continued for at least eleven (11) days before the closing (section 47): [ 75 ] The petitioner was able to get nominated for the election. There was no evidence that a person missed the opportunity to be nominated for that election. Ten candidates ran for the office of councillor.

Here again, this is a secondary formality. - The entire election process lasted less than 10 days (9 days): [ 76 ] The same comments apply to this allegation as the ones in the previous paragraphs. This did not affect the integrity of the process. There were no complaints about the situation, except after petitioner Bearskin provided the Court with his particulars on the petition. - The candidates had two days only to deposit their nomination: [ 77 ] This individual election involved only one position. A general election is for 13 council members, including a chief and a deputy chief.

Although short, the nomination process resulted in 10 nominations. The Court has no evidence that anybody else would have been in nomination, should the delays been longer. This is then a technical breach or a secondary irregularity. - The candidates were not able to campaign: [ 78 ] No

section of the By-Law sets the length of the electoral campaign. [ 79 ] Although short, the duration of the campaign was the same for all 10 candidates. This is a secondary irregularity.

- The nomination papers were not in the forms of

Schedule 2 and half of them were not even signed by the candidates but still accepted by the Returning officer: [ 80 ] The forms that were provided by the Returning Officer were similar to the form of

Schedule 2. The main difference is that each nomination of a candidate was to be supported by two electors only instead of the five electors prescribed by

section 43 of the election By-Law and in the form appended as

Schedule 2 to the By-Law. [ 81 ] Once again, this is a secondary irregularity, since the ten nominations for candidate had one mover, and one seconder. [ 82 ] Even the five forms that were not signed by the candidates in order to confirm in writing their acceptance, were considered by the Returning Officer: included is the nomination form of petitioner Conrad Bearskin, who never signed his acceptance on the form. He accepted by phone, like four other nominees. Once again, Officer Wadden gave democracy a chance, because five of the nominees did not sign the form.

No candidate was excluded. [ 83 ] After the closing of the nominations, Mr. Bearskin and all the others who did not sign their acceptation, were candidates, considered themselves as candidates, and were considered as such by the electors. Therefore, this irregularity had no impact on the result of the election. - Many secondary irregularities? [ 84 ] Why did Mr. Bearskin find so many irregularities concerning that individual election for a councillor? The answer can be found directly in

section 7 of the Election By-Law, which stipulates that the provisions generally apply to general elections: “In the case of a vacancy, election for the position of an individual councillor shall be held in accordance with the Act and the provision of this by-law shall apply thereto with such modifications as the circumstances require .” (Underlined sections are by the Tribunal) [ 85 ]

Section 23 of the Electoral By-Law provides that the Returning Officer shall make decisions and take any measures as he deems necessary to ensure the fair and orderly conduct of the elections. [ 86 ] Some of the irregularities are due to a lack of experience. Mr. Wadden was appointed one year before this individual election. [ 87 ] Some of the irregularities may be explained because of the application of a new electoral by-law adopted in 2009, replacing the former by-law (85-006) dating back to 1985, which had been in force for 24 years. Mr.

Wadden’s good faith was not challenged. [ 88 ] The Returning Officer used some forms that applied to the previous by-law. [ 89 ] This also explains why petitioner Conrad Bearskin was hoping to return to the former “run-off” system applicable to councillors at that time. [ 90 ] Deputy Chief Daisy House Lameboy explained to the Court that By-Law 2009-003 had been discussed extensively in the Community before being adopted in 2010. [ 91 ] Mr.

Bearskin has not proven his allegations that the outcome of the election was affected by the irregularities, or, as stipulated in section 78(7) of the Act, that “these offences and non-compliance materially affected the result of the election.” [ 92 ] FOR THESE REASONS, THE COURT: [ 93 ] DISMISSES the petition. [ 94 ] ORDERS that the deposit be refunded to Mr. Conrad Bearskin. [ 95 ] WITHOUT costs. __________________________________ CLAUDE BIGUÉ, J.C.Q. Mr. Conrad Bearskin, petitioner, personally Me Deborah Hawken Nelligan, O’Brien, Payne For the respondent and the intervenor Date of hearing: June 18, 2012