2017 FC, 2017 FC 1038

Date: 20171115 Docket: T-199-15 Citation: 2017 FC 1038 BETWEEN: KENNETH HENRY JR., GARY ROBERTS, CECIL JAMES, AND EVELYN ALEXANDER in their capacity as current members of the elected Chief and Council of the ROSEAU RIVER ANISHINABE FIRST NATION Applicants and THE ROSEAU RIVER ANISHINABE FIRST NATION CUSTOM COUNCIL, SHERELYN HAYDEN, GOLORIA ANTOINE, HEATHER LITTLEJOHN, GLADYS NELSON, RODNEY PATRICK, FRANK PAUAL, MARTHA LAROQUE, GRACE SMIT H, CHARLIE NELSON, EDWARD SMITH, BERNIE HENRY, LORRAINE EDWARDS Respondents REASONS FOR ORDER MANDAMIN J. [ 1 ] On May 16, 2016, I considered the Report of Ms.

Sherri Thomas, the Electoral Officer for the Roseau River Anishinabe First Nation [the RRAFN] concerning an election appeal filed after the March 12, 2015 RRAFN elections for chief and councillors. The appeal had concerned an allegation that a successful candidate bought the vote of an elector by giving her money on the day of the election. [ 2 ] The Electoral Officer concluded the preponderance of evidence did not support the allegation that the councillor had intended to buy the elector's vote when he gave her money.

In providing some money in response to her request, the councillor was most likely acting in a manner consistent with his pre-established pattern of lending or giving her money from time to time. The evidence was that it was common practice for members of the RRAFN council to lend money to community members from their own pockets. While contradictions in the evidence of witnesses would require the assessment of credibility, it did not appear that requiring witnesses to provide their evidence viva voce would do much to change the result.

The Electoral Officer recommended dismissal of the appeal. [ 3 ] After hearing submissions from legal counsel for the Electoral Officer and counsel for the other Parties on the law and the evidence, I issued my May 16, 2016 Order dismissing the election appeal.

In doing so, I indicated reasons would follow. [ 4 ] I have chosen to write these reasons because I am of the view this particular proceeding offers an opportunity to address not only the intersection of Indigenous law with Canadian jurisprudence but also the alternative Indigenous process of seeking resolution through agreement as contrasted with the process of litigation and adjudication. [ 5 ] I must begin by expressing my appreciation for the invaluable participation and co-operation by all Parties and their respective counsel. [ 6 ] My reasons follow. I.

Background [ 7 ] I begin by noting that this proceeding specifically relates to Indigenous law on First Nation governance. These reasons are delayed in part because of the press of other matters but more so because I wanted to give some thought to the matter. A. Indigenous Laws and Canadian Jurisprudence [ 8 ] The law in Canada has followed its own unique development reflecting the diverse historical nature of Canadian society. In addition to the common law and civil law, courts and governments, the latter through statues and treaties, have recognised and utilized Indigenous

law. [9] Shortly after Canadian Confederation in1867, the Quebec Superior Court decided the case of Connolly v Woolrich (1 CNLC 70;[1867] QJ No 1 (QL)) holding a marriage in accordance with the Cree practice in what is now Manitoba was a valid marriage such thatthe son of that union was entitled to inherit a portion of his father's estate under Canadian law.

In doing so, the Court gave recognition toIndigenous marital law, noting that the government of the time had not abrogated Indigenous marriage customs within the area where thetraditional ceremony took place and that the ""Court must acknowledge and enforce them."" (at paras 143-144 [cited to QL]) [10] A more contemporaneous example is the seminal case of Calder v British Columbia (AG) ( (SCC), [1973] SCR 313,34 DLR (3d) 145). This case involved a claim by the Nishga for a declaration that they held Aboriginal title to their traditional lands inBritish Columbia.

Although the Calder appeal was dismissed on technical grounds, the Supreme Court of Canada held that Aboriginaltitle was cognizable in Canadian courts, although divided on the issue of extinguishment. The Supreme Court has since found thatAboriginal title in addition to being cognizable under our Canadian legal system continued to exist in the instance of the 2014 case ofTsilhqot'in Nation v British Columbia (2014 SCC 44, [2014] 2 SCR 257). [11] The validity of Indigenous laws may also be recognized by legislation.

Subsection 2(1) of the Indian Act, RSC 1985, c I-5, forinstance provides that the leadership (council) of certain First Nations, Indian Bands to use Indian Act parlance, may be chosen by'custom', in other words by the Indigenous law of that First Nation. It is this governance aspect of Indigenous law that is underconsideration in this proceeding. B. Custom Election Laws [12] Many First Nations choose to create election laws, which detail their customary practice, and set them down in a constitution or anelection act.

Usually these codes set out the eligibility for voters and candidates, the election process and an appeal mechanism.

Whenthere is a challenge to the validity or compliance with a provision of the election law, or there is an alleged breach of natural justice in theelection or appeal process that cannot be resolved within the First Nation, an applicant may choose to bring an application for judicialreview in the Federal Court. [13] I canvassed the jurisdiction of the Federal Court to conduct judicial reviews of First Nations' governance issues in Gamblin vNorway House Cree Nation Band Council (2012 FC 1536, [2013] 2 CNLR 193). In that case I concluded the Federal Court did havejurisdiction to hear such matters.

However, while the Federal Court has the jurisdiction to adjudicate First Nations custom governanceissues arising, the law that the Court applies usually is the Indigenous law of the First Nation in question. [14] The Federal Court receives a number of applications for judicial review on First Nations custom governance issues each year.Litigation over such applications can be both bruising for community members and costly for the First Nation while only resolvingnarrow legal issues.

Such court proceedings can cause acrimony amongst First Nation members and leave hard feelings afterward. [15] The Federal Court, in its consultations through the Federal Court Aboriginal Law Bar Liaison Committee and sessions withIndigenous elders, notably at Turtle Lodge, Manitoba and Kitigan Zibi, Quebec, has explored alternatives for resolving such disputesmore in keeping with the Indigenous practice of resolving disputes through agreement. [16] An alternative process for dispute resolution was first set out in the 2012 First Nations Dispute Resolution Pilot Project.

Thisprocess is now incorporated into the Federal Court Practice Guidelines for Aboriginal Law Proceedings. [17] The Aboriginal dispute resolution process proceeds by agreement of the parties. All the while, it is to be remembered that theoption remains for parties to proceed by way of litigation in court if they so choose. II. The Present Application [18] The RRAFN select their leaders by their own Indigenous laws: the Roseau River Anishinabe First Nation Constitution [RRAFNConstitution] and the Roseau River Anisihinabe First Nation Election Act [RRAFN Election Act].

Their legislation created two entities,the Custom Council consisting of family representatives and the Chief and Council consisting of elected First Nations representatives. [19] In the past, the RRAFN experienced issues between these two entities which lead to multiple applications for judicial review inFederal Court as demonstrated by the adjudicated decisions in 2003 FCT 168, 2009 FC 655, 2013 FC 180 and 2014 FC 1215. [20] In the present application, the road to resolution took a different path. [21] In January 2015, a dispute arose between the family Custom Council and the elected Council.

The Applicants, the RRAFN Chiefand Council, applied for an urgent injunctive order related to the impending election for chief and council. The substantive disputeconcerned the jurisdiction, authority and makeup of the RRAFN Custom Council but the immediate issue concerned the conduct of theimpending RRAFN election.

The elected Chief and Council had chosen an electoral officer to conduct the election but the CustomCouncil disputed that decision contending it should chose the electoral officer. [22] Following the procedure for the First Nation Dispute Resolution, I convened an informal teleconference with legal counsel for thecontending Parties to explore the prospects for resolving the issues in a way satisfactory to all Parties.

Out of this discussion, all Parties -the Applicants, the Respondents and other interested Parties - agreed to a consent order to have joint electoral officers functioning with ajudicial officer, myself, to administratively decide election disputes in keeping with the provisions of the RRAFN Election Act. [23] In assuming this role, I followed the precedent set by Justice François Lemieux in Mohawks of Akwesasne v Canada (HumanResources and Social Development), 2010 FC 754, 191 ACWS (3d) 401, where he undertook to decide the issue of costs although themain substance of the application had been resolved by agreement of the parties.

Justice Lemieux undertook this role as the settlement

agreement reached in resolving the application included a term " "that the payment of costs shall be determined by this Court acting as an arbitrator based upon written submissions filed with the Court, which determination shall be binding upon the parties and not subject to appeal." " (at para 5) A. The Initial Consent Order [ 24 ] On February 16, 2015 I issued the Consent Order which reflected the agreement of the Parties. It provided for two Co-Electoral Officers, one appointed by the Applicant Chief and Council and one appointed by the Respondent Custom Council.

The two Co- Electoral Officers would decide electoral matters jointly and where they were not in agreement, they would seek such direction or order from myself as may be appropriate on an urgent basis. [ 25 ] The Consent Order also provided that any appeal would be decided by consensus of the two Co-Electoral Officers and, if no consensus, they would refer the appeal to myself whose decision would be binding as though it were a decision of a duly appointed appeal committee under the RRAFN Election Act .

Otherwise and throughout, the RRAFN Election Act remained in force. [ 26 ] The RRAFN election for Chief and Council proceeded on

schedule on March 12, 2016. B. The Allegation Arising from the Election and Subsequent Court Orders [ 27 ] There was an appeal after the March 12, 2015 RRFN election concerning an allegation of vote buying by one of the candidates who was elected as a councillor. The Co-Electoral Officers did not agree on whether or not to accept the appeal, one viewing the appeal as deficient in form, the other viewing the appeal as substantive in content. When it was time to refer the question to me, a difficulty arose because one of the Co-Electoral Officers was no longer available. [ 28 ] On receiving the report of the appeal by the remaining Co-Electoral Officer, I issued a June 30, 2015 Direction that:

i) the appeal was to be considered validly made for the purpose of initiating the appeal process; ii) notice was to be provided to the councillor whose election was being appealed; iii) a report on the election and its results was to be prepared together with the rules, regulations or procedures that applied in addition to the RRAFN Election Act if any; and iv) the Parties were to participate in a teleconference on the next steps to be followed. [ 29 ] After the teleconference with the Parties, I followed up with a September 1, 2015 Direction indicating that the Parties were to determine how they wished the election appeal to proceed and further directed to the Federal Court Registry to provide all Parties with the relevant documentation on file with the Court in order that every Party would be fully apprised of the history of the proceeding. [ 30 ] After the further teleconference with the Parties and on their consent, I issued the November 3, 2015 Consent Order that in proceeding to hear and decide the election appeal:

i) standing was granted, in relation to this election appeal, to: i . the remaining Electoral Officer, Ms. Sherri Anne Thomas ii . Mr.

Cecil James, the Councillor whose election was appealed, separate from his capacity as a Councillor of the Applicant; ii) the election appeal would be treated as a validly submitted; iii) the Electoral Officer would have authority to investigate the allegations with all witness statements being confirmed by affidavit, and confirm other evidence obtained in the investigation process though her own affidavit; in exercising this authority the Electoral Officer was also able to come before the court if requiring an order for her to examine property or non-party witnesses; iv) Mr.

James, along with the Applicant and Respondent, would be served with all applicable reports and affidavits obtained by the Electoral Officer and Mr. James would also provide any responding affidavit to all parties;

v) after the exchange of affidavits, each would have the opportunity to cross-examine on the affidavits and file transcripts thereof; vi) on completion of cross-examinations, the RRAFN Custom Counsel, the RRAFN Chief and Council,and Mr. James were to serve written representations in respect of the Election Appeal on the Electoral Officer and each other; vii) the Parties were to then requisition a hearing before myself. The Electoral Officer, Mr.

James, the Chief and Council, and the Custom Council were all entitled to make representations to the Court at the hearing. [ 31 ] As previously noted, all Parties consented to my jurisdiction as the proper authority for consideration and determination of the election appeal as per the earlier February 16, 2016 Order. [ 32 ] Finally, the November 3rd Order specified this Court may consider relevant sources of law, including but not limited to the RRAFN Election Act , the RRAFN Constitution , as well as all relevant Canadian legislation and jurisprudence.

While not expressly stated, the process adopted effectively followed Rule 52(1) of the Federal Courts Rules , SOR/98-106.

[33] Rule 52 of the Federal Courts Rules provides: "Role of assessor " "52

(1) The Court may call on an assessor " "(

a) to assist the Court in understandingtechnical evidence; or " "(

b) to provide a written opinion in aproceeding. " "Fees and disbursements " "

(2) An order made under subsection (1)shall provide for payment of the fees anddisbursements of the assessor. " "Communications with assessor " "

(3) All communications between the Courtand an assessor shall be in open court. " "Form and content of question " "

(4) Before requesting a written opinion froman assessor, the Court shall allow the partiesto make submissions in respect of the formand content of the question to be asked. " "Answer by assessor " "

(5) Before judgment is rendered, the Courtshall provide the parties with the questionsasked of, and any opinion given by, anassessor and give them an opportunity tomake submissions thereon. " " " "Services d’un assesseur " "52

(1) La Cour peut demander à unassesseur : " "

a) de l’aider à comprendre des éléments depreuve techniques; " "

b) de fournir un avis écrit dans une instance." "Honoraires et débours " "

(2) L’ordonnance rendue en application duparagraphe (1) doit prévoir le paiement deshonoraires et débours de l’assesseur. " "Communications avec l’assesseur " "

(3) Les communications entre la Cour etl’assesseur se font en audience publique. " "Forme et contenu de la question " "

(4) Avant de demander un avis écrit del’assesseur, la Cour donne aux partiesl’occasion de présenter leurs observations surla forme et le contenu de la question àsoumettre. " "Réponse de l’assesseur " "

(5) Avant de rendre jugement, la Courtransmet aux parties la question soumise etl’avis de l’assesseur et leur donne l’occasionde présenter leurs observations à cet égard. " " " [34] A leading case on the role of assessors is Porto Seguro Companhia De Seguros Gerais v Belcan SA, (SCC),[1997] 3 SCR 1278, 153 DLR (4th) 577.

In that case, the Supreme Court modified the existing rule to permit assessors to give the judgeassistance on technical matters and on matters of disputed facts so long as the advice is disclosed to the parties who are to have the rightof response (at para 40). [35] When assessors advise judges on matters of fact in dispute between the parties, natural justice requires disclosure of the questionsput to the assessor and the assessor's response, as well as a right of response by the parties. [36] As an aside, the role assigned to the Electoral Officer in this proceeding has paralleled the discussions of the Federal CourtAboriginal Law Bar Liaison Committee on the proposal for the use of Assessors in Aboriginal law proceedings.

C. The Role of the Electoral Officer [37] The Electoral Officer investigated the allegation contained in the March 13, 2015 appeal of the March 12, 2015 election betweenNovember 2015 and March 2016 by interviewing witnesses. She was assisted in this exercise by legal counsel. In conducting thisinvestigation she was assisting the Court in the determination of how to dispose of the election appeal and was not an advocate for oneparty or another. III. The Issues to be Addressed [38] There are two questions arising in this appeal; the first is a legal issue: Is vote buying a valid ground of appeal?

The second isfactual in nature, being whether the facts disclose vote buying in the election. A. Is Vote Buying a Ground for Appeal in an RRAFN Election? [39] There is no specific prohibition to ""vote buying"" in the RRAFN Election Act. Paragraph 4(

i) sets out: (

i) Any candidate who is running for office is not eligible, who is fraudulant [fraudulent] or criminal in his/her actions togain electors' support. [40] Subsection 10(

b) of the RRAFN Election Act sets out grounds for an election appeal:

i) election practices which contravene the Act. [and] ii) illegal or criminal activity on the part of a candidate which might discredit the high integrity of the tribalgovernment of the Roseau River Anishinabe First Nation. [41] Having reviewed the memorandum of fact and law prepared by the Electoral Officer I agree with her conclusion that vote buyingwas a valid ground for appeal of the election result.

Without restating the entirety of her analysis, the Electoral Officer suggested that fora valid appeal issue to exist ""vote buying"" needed to be, according to the RRAFN Election Act, either ""fraudulent"", ""illegal"" or""criminal"". [42] In looking at these grounds the Electoral Officer stated that although vote buying is immoral it might not amount to fraudulentmisrepresentation.

She further observed that although vote buying in relation to a First Nation's council election is not explicitly outlinedin the Criminal Code, RSC 1985, c C-46, it most closely relates to the offence of purchasing public office, s 124, and criminal fraud, s380(1), although it, vote buying, may not fit the Criminal Code's exact requirements. [43] The Electoral Officer notes that the use of the word illegal encompasses not only criminal matters but also matters against othertypes of law such as other statutes, the common law, equity and Indigenous law.

The Electoral Officer states that under the common lawbribing someone to vote a certain way is an offence, citing Henry Hardcastle, Bushby's Manual on the Practice of Elections, 4th ed(London: Stevens and Haynes, 1874) at 107-115 [Bushby's]. She concludes by stating that if this did not cause vote buying to fall withinthe criminal or illegal grounds to appeal the election, statutory

interpretation would, to avoid an absurd result, read in a provision againstvote buying to the RRAFN Election Act. [44] Having examined the Electoral Officer's analysis I agree with the end result that vote buying is a valid ground for appeal under theRRAFN Election Act and below I set out my analysis of how I arrived at this conclusion. [45] The modern rule for statutory

interpretation was set out by the Supreme Court of Canada in Re Rizzo & Rizzo Shoes Ltd, (SCC), [1998] 1 SCR 27 at 41, 36 OR (3d) 418, where the Court cited with approval the following statement of ElmerDriedger: Today there is only one principle or approach, namely the words of

an Act are to be read in their entire context and in theirgrammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention ofParliament. [46] This approach has application with custom governance legislation enacted by First Nations, with this Court using this principle inthe past to examine the purpose of a different First Nation's Election Act in Meeches v Meeches, 2013 FC 196, 428 FTR 208. In this case,Justice James Russell, when using the

interpretation technique outlined in Rizzo, found at paragraph 85 that: The purpose of the Election Act is to ensure fair elections that lead to legitimate government.

It is not the purpose ofElection Act to allow officers who may have come to power in an unfair election to remain in power at their own discretion.The Election Act must be read in a way that makes sense of its obvious purposes. [47] Although an appeal of this decision was allowed in part, the Federal Court of Appeal upheld Justice Russell's purposefulinterpretation of the sections at issue (2013 FCA 177 at paras 43-45, [2014] 1 CNLR 267). [48] Turing to the present case, a reading of the RRAFN Election Act as a whole discloses it has as its purpose the holding of fairelections that reflect the free choice of the RRAFN electors in deciding their leadership.

The practice of vote buying is a corrupt practiceand contrary the holding of fair elections. [49] The RRAFN Election Act also requires at subsection 12 (

a) that elected officials shall ""[u]phold the Declaration as cited in thisAct."" In examining the materials there are two declarations provided with the Act. One Declaration is found within

section 1 of the Actand provides general statement, much like a

preamble, that includes a statement that those seeking office ""must have demonstratedcharacteristics which reflect[] Trust, Fairness, Confidence and Competence."" The other declaration, which is appended to the end of theAct, is titled ""Declaration of Office for Elected Officials"" in which a number of undertakings are listed for those elected including thatthey must promise and declare that they ""have NOT received and WILL NOT receive payment or reward for the exercises of anycorrupt practice or illegal execution of this office."" [emphasis in original] [50] In interpreting these two declarations and the Act as a whole, it is clear that those who do not have the characteristics of fairness,such as those who engage in corrupt practice to receive a reward in the execution of their office, are in turn eligible for removal fromoffice under subsection 14(

a) of the RRAFN Election Act. [51] A prohibition against unfair and corrupt practice for those in office, but not for those in the process of seeking election to thatoffice, would be illogical and certainly contrary to the overall purpose of the RRAFN Election Act which is the holding of fair electionsthat reflect the free choice of the RRAFN electors in deciding their leadership. [52] As a result I conclude that the immoral and corrupt practice of vote buying is contrary to the public interest of the RRAFN to havefree and fair elections and is therefore contrary to the RRAFN Election Act. [53] In arriving at this position I would read the term 'corrupt practice' as included in the RRAFN Election Act's paragraphs 4(

i) and 10(b)(ii) reference to 'criminal' actions or activity such that vote buying is a ground for appeal in a RRAFN election appeal. [54] Although when looking at the word 'criminal' on its own the first response is to consider criminal offences, in the context of theRRAFN Election Act it is clearly intended to mean more than just criminal offences given the associated references in paragraphs 4(

i) and10(b)(ii) to ""actions to gain electors' support"" and ""activity … which might discredit the high integrity of the tribal government of the

Roseau River Anishinabe First Nation" " respectively. In examining these associated references criminal is to be interpreted as also including " "scandalous [or] deplorable" " ( The Canadian Oxford Dictionary , 2nd ed, sub verbo " "criminal" " ) conduct such as corrupt practices, including vote buying. [ 55 ] In arriving at such an

interpretation it also prevents the absurd result noted above of persons being prohibited, only while holding office, from corrupt practices. This method of

interpretation in such a way as to avoid absurd results has been recently affirmed by the Supreme Court in Tran v Canada (Public Safety and Emergency Preparedness) , 2017 SCC 50 at paragraph 31 , [2017] SCJ No 50 (QL), with the Court referencing paragraph 27 of Rizzo for the proposition " "that the legislature does not intend to produce absurd consequences." " [ 56 ] Although not part of my reasons, I would note that since my oral determination of this matter, this Court has also, in another case where a custom election act and vote buying was at issue, found that " "corrupt practice" " should be a ground of election appeal even when there were no explicit grounds for election appeal provided in the First Nation's custom election act nor any reference to " "corrupt practice" " or " "vote buying" " , with the only related reference being that elected officials could be removed from office for misconduct, misfeasance, or neglect of duty ( Gadwa v Kehewin First Nation , 2016 FC 597 at paras 78-80 , [2016] FCJ No 569 (QL), upheld in its entirety by the Federal Court of Appeal in 2017 FCA 203 , [2017] FCJ No 914 (QL)).

B. What is Involved in Vote Buying? [ 57 ] At common law, bribery occurs when a vote is procured from an elector for valuable consideration.

Both the impugned candidate and compromised elector must agree to the exchange of consideration in return for a promise to vote a certain way and, at common law, no bribery occurs if no condition is placed on the consideration given ( Bushby's at 107-109). [ 58 ] In McKay v Glen (1880), 3 SCR 641, 1880 CanLII 27 (SCC) , the Supreme Court of Canada declined to find bribery where a candidate had made unconditional charitable gifts absent proof that they were offered for the purpose of influencing voting.

In Generux v Cuthbert (1884), 9 S.C.R. 102, 1884 CanLII 37 (SCC) , the Supreme Court found the defendant had committed a corrupt practice contrary to

section 96 of the Dominion Elections Act , 1874, 37 Vic, c 9, but did not find he committed bribery where pre-paid train tickets were given to voters in order to allow them to vote in an election but where voters were not asked to vote for a particular candidate. [ 59 ] In other words, there is no bribery, or vote buying, when money is given without any condition to vote in a certain way. IV. The Electoral Officer's Findings of Fact [ 60 ] The Electoral Officer interviewed electors, including the elector who appealed the election.

The Electoral Officer confirmed their information by having each provide affidavits confirming their statements. [ 61 ] The Electoral Officer also interviewed other electors who gave evidence refuting the allegations. Again she took affidavits from each. [ 62 ] All of the Parties, including the candidate whose election was appealed, had the opportunity to cross examine the deponents on their affidavits. [ 63 ] At the conclusion of the process, the Electoral Officer reported that the uncontroverted evidence was:

i) that the candidate and the elector met in person on the day of the election; ii) that the candidate gave the elector $20 on the day of the election; iii) that the candidate had a history of giving or lending money to the elector; and iv) that the elector did not vote in the election. [ 64 ] What is clear in the Electoral Officer's report is that the elector requested money from the candidate. When the candidate asked her to vote for him, she suggested he should " "hook it up" " with the money given either as a loan or gift. [ 65 ] The candidate had lent money to the elector previously.

The candidate testified under cross-examination that First Nations members would frequently approach him for money in varying amounts given his position as a sitting councillor and that other members of the Council had engaged in this practice. [ 66 ] Generally, this practice of loans was discontinued during elections. The candidate personally did not see any loans or gifts by other Council members during the election period. He admitted struggling with the idea of giving or loaning money to the elector before the polling station closed.

He relented to her request when he was satisfied the elector would not vote because she appeared intoxicated, stated she had no identification, and as a result would be disqualified from voting. [ 67 ] The Electoral Officer carefully assessed the evidence gathered. The only credible evidence is that the candidate did not expressly ask the elector to vote for him in exchange for money. The suggestion for cash for a vote was raised by the elector.

The evidence tends to show the candidate was acting in a manner consistent with his pre-established relationship with the elector, namely he would lend her money from time to time. The candidate considered such to be a loan but was aware it may not be repaid. [ 68 ] The elector's allegation that the candidate approached her to buy her vote was not supported by other witnesses present at the exchange of the money. In

summary, the allegation that the candidate intended to buy the elector's vote was not supported by the preponderance of the evidence.

[ 69 ] While the contradictions between the evidence of the witnesses require assessments of credibility, which is outside the Electoral Officer's jurisdiction, she was of the view that that requiring witnesses to provide their evidence viva voce would not change the assessment of the evidence. [ 70 ] As a result the Electoral Officer recommended that I dismiss the appeal. V. Decision on the Appeal [ 71 ] Legal counsel for the Electoral Officer made submissions based on the Memorandum of Fact and Law which I append as Appendix A. Legal counsel for Mr.

James concurred with both the legal analysis and recommendation to dismiss the Appeal. Legal counsel for the Applicant Chief and Council agreed with the analysis that vote buying was prohibited by the RRAFN Election Act but refrained from submissions on the Appeal. The Respondent Custom Council took no position. [ 72 ] I agreed and accepted the facts as discerned by the Electoral Officer. In accepting the recommendation based on those facts, I issued my May 16, 2016 Order dismissing the Appeal. VI.

Further Observations by the Court [ 73 ] I would add that in this proceeding there were a number of features that accorded with the advice given by the Elders advising the Federal Court to have regard to resolving disputes by agreement. These are measures that ensured those involved the opportunity to participate and be heard, to present and examine evidence and to make submissions on what should be the outcome:

i) all participants had the opportunity to contribute in determining a way to move forward and agreed with the procedures that I set out in the consent court orders; ii) other than the teleconferences and the final hearing, the events were conducted in the RRAFN community or at locations acceptable to all; iii) the law that governed was the law of the RRAFN, namely the RRAFN Election Act ; iv) the Electoral Officer was a member of the RRAFN and had a depth of knowledge of the First Nation that went well beyond what a Court could learn in the course of any application;

v) the Electoral Officer was neutral in that she was not an advocate of any party but rather engaged in a fact finding process to assist me in coming to a decision on the appeal; additionally, the Electoral Officer was well supported by legal counsel; vi) all Parties had the opportunity to present evidence to the Electoral Officer and participate in examination on affidavits by witnesses; vii) the focus of the gathering of evidence was to ascertain what happed and not on challenging or discrediting the evidence of others. viii) the entire process emphasized finding ways to agree on a process to reach a resolution of the issue at hand. [ 74 ] I attach the following as appendices to these reasons: A .

Memorandum of Fact and Law of the Electoral Officer, B . February 16, 2015 Consent Order, C . November 3, 2015 Consent Order, D . May 16, 2016 Order, E .

Part III, subsection A - Dispute Resolution Through Dialogue, Federal Court Practice Guidelines for Aboriginal Law Proceedings. [ 75 ] In closing, it was my sense of the outcome, as represented to me in the May 16, 2016 hearing, that there was no acrimony or dissatisfaction with this result. The approach followed avoided protracted litigation of issues and enabled the 2015 RRAFN election process to proceed to an acceptable conclusion. “Leonard S. Mandamin” Judge Ottawa, Ontario November 15, 2017 APPENDIX A

APPENDIX B

APPENDIX C

APPENDIX D

APPENDIX E

FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-199-15 STYLE OF CAUSE: KENNETH HENRY JR., GARY ROBERTS, v THE ROSEAU RIVER ANISHINABE FIRST NATION PLACE OF HEARING: Winnipeg, Manitoba DATE OF HEARING: May 16, 2016 REASONS FOR ORDER: MANDAMIN J.

DATED: November 15, 2017 APPEARANCES : ANTHONY LAFONTAINE GUERRA For The Applicant SHERRI THOMAS MARKUS BUCHART FOR THE APPLICANT CECIL JAMES COREY SHEFMAN For The APPLICANT ROSEAU RIVER ANISHINABE FIRST NATION (RRAFN) CHIEF AND COUNCIL ROHITH MASCARENHAS FOR THE RESPONDENTS SOLICITORS OF RECORD : Myers Weinberg LLP Barristers &Solicitors Winnipeg, Manitoba For The Applicant SHERRI THOMAS P.

Michael Jerch Law Corporation Barristers & Solicitors Winnipeg, Manitoba FOR THE APPLICANT CECIL JAMES Boudreau Law Barristers & Solicitors Winnipeg, Manitoba FOR THE APPLICANT ROSEAU RIVER ANISHINABE FIRST NATION (RRAFN) CHIEF AND COUNCIL Hill Sokalski Walsh Olson LLP Barristers & Solicitors Winnipeg, Manitoba For The Respondents