2015 FC, 2015 FC 1053

Date: 20150908 Docket: T-32-15 Citation: 2015 FC 1053 Ottawa, Ontario, September 8, 2015 PRESENT: The Honourable Madam Justice Strickland BETWEEN: ANDREW ORR AND PAUL HOULE Applicants and PEERLESS TROUT FIRST NATION Respondent JUDGMENT AND REASONS [ 1 ] This is an application for judicial review of the January 8, 2015 decision of Lornes J.

Ternes who, in accordance with the Customary Election Regulations of the Peerless Trout First Nation (“Election Regulations”), acted as the Election Appeal Arbitrator (“Arbitrator”) with respect to two appeals concerning the Peerless Trout First Nation (“PTFN”) election held on October 30, 2014. The application is brought pursuant to s 18.1 of the Federal Courts Act, RSC 1985 c 41. Background [ 2 ] The Arbitrator, in fact, made two decisions as two separate appeals from the subject election were placed before him. Orr Appeal [ 3 ] The first concerned the Applicant, Mr. Andrew Orr, who is a member of the PTFN. Mr.

Orr was nominated to run for Chief in the October 30, 2014 election, but was told by the Election Officer, Mr. Albert Oostendorp (“Election Officer” or “Electoral Officer”), that he could not do so. This was because s 9.3(

c) of the Election Regulations states that any elector who is a plaintiff in a civil action against the PTFN is not eligible to be nominated and Mr. Orr had commenced a civil action against the PTFN in the Court of Queen’s Bench of Alberta in 2011, seeking compensation in the amount of $2,817,720.00 that he claims to be owed for his work on a PTFN land claim. This action is ongoing. [ 4 ] By notice of appeal (“Notice of Appeal”) dated October 31, 2014, Mr. Orr appealed this decision. He submitted that the Electoral Officer erred in the

interpretation and application of the Election Regulations, that s 9.3(

c) of the Election Regulations should be declared to be of no force and effect because it violates ss 2(

b) and (d), 3, 15, 30, 35, and 36 of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982 c 11 (“ Charter ”), and that the provision is contrary to the rule of law and an abuse of power as it is an attempt to prevent members of the PTFN from bringing actions against its government. The election appeal by Mr. Orr proceeded before the Arbitrator by way of written submissions. [ 5 ] Mr. Orr also filed an action in the Court of Queen’s Bench of Alberta on July 3, 2014, seeking to have s 9.3(

c) declared invalid on the grounds that it was contrary to the Charter . Master in Chambers Smart (“Master Smart”) rendered a decision in that matter on January 5, 2014, Orr v Peerless Trout First Nation , 2015 ABQB 5 [ Orr QB ]. The pleadings that were before Master Smart were also submitted to the Arbitrator. The Orr QB decision is described below because the same issues were asserted before the Arbitrator, some of which are also pursued by Mr.

Orr in this judicial review. [ 6 ] In Orr QB , Master Smart noted that pursuant to s 74(1) of the Indian Act , RSC 1951, c 29, the Minister of Indian Affairs and Northern Development may permit a First Nation to determine for itself its election code, which the members of the PTFN have done by way of the Election Regulations. However, a community election code adopted by a First Nation is subject to Charter scrutiny ( Taypotat v Taypotat , 2013 FCA 192 [ Taypotat ]). [ 7 ] Master Smart described the issues before him as follows: [2] Mr. Orr alleges that s 9.3(

c) is unconstitutional and aimed at preventing PTFN members from bringing actions against the band. Mr. Orr asks that s 9.3(

c) be declared invalid per s 52 of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982 c 11 (“ Constitution ”) because it violates ss 2(b), 2(d), 3, 15, 30, 35 and 36 of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982 c 11 (“ Charter ”). [3] Finally, Mr. Orr argues that s 9.3(

c) is an attempt by government to prevent citizens exercising their fundamental right to bring an action against it and is ultra vires . [ 8 ] In addressing Mr. Orr’s argument that the purpose of s 9.3(

c) was to prevent PTFN members from suing the PTFN council and therefore is ultra vires , Master Smart found that the cases cited by Mr. Orr did not stand for the general proposition that Canadian governments cannot enact legislation to prevent legal action against them by their citizens and, moreover, did not support the suggestion that there is a fundamental right to bring legal action against governments arising from the Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5 ( “ Constitution ” ) or the Charter . Regarding Mr. Orr’s argument that the provision violated

his freedom of expression under s 2(b), Master Smart noted that Mr. Orr did not address the point that the activity of running for Chiefwas an attempt to convey meaning. He noted the respondent’s observation that the exclusion from being a member of Council did notdeprive an individual from voting or otherwise taking

part in the election process, or making submissions to Council or lobbying itsmembers, attending meetings and voicing opinions. Master Smart found the circumstances in the case before him were analogous tothose in Baier v Alberta, 2007 SCC 31 [Baier] and, as in that case, there was a limit on access to a platform but not a statutory limit onfreedom of expression. [9] Similarly, Master Smart found that Mr. Orr had not addressed how nomination for public office was protected by freedom ofassociation. The restriction on the activity did not infringe on Mr. Orr’s ability to establish, belong to and maintain an association, anddid not infringe his s 2(

d) right of freedom of association. Master Smart also found that s 3 of the Charter does not apply to band councilelections (Crow v Blood Band, [1996] FCJ No 119 at para 23 [Crow v Blood Band]; Haig v Canada, (SCC), [1993] 2SCR 995 at 1033 [Haig]). Additionally, he applied the two part test for s 15(1), equality, as outlined in R v Kapp, 2008 SCC 41 [R vKapp], and found that the distinction in the case before him was that of having an unresolved civil suit against the PTFN.

He found thatthis distinction was not based on an analogous ground to those enumerated in s 15(1) nor did it perpetuate a disadvantage so as to infringeon the equality guarantee of s 15(1) of the Charter. In the absence of any supporting explanation as to the alleged breach, Master Smartwas also unable to conclude that s 35 or s 36 was violated such that s 9.3(

c) is of no force and effect. Houle Appeal [10] Mr. Paul Houle is also a member of the PTFN, he ran for the position of Chief in the October 30, 2014 election. [11] On the day of the election there were two polling stations, one at Trout Lake and another at Peerless Lake. The ElectoralOfficer supervised the Peerless Lake polling station with polling clerk Jackie Laboucan. Assistant Electoral Officer Earl Laboucansupervised the Trout Lake polling station with polling clerks Rose Sowan and Penny Gullion. Mr. James Alook was elected as Chief,receiving 173 votes, while Mr.

Houle came in second with 129 votes. [12] After the election, Mr. Houle filed a Notice of Appeal on November 2, 2014, alleging numerous breaches of the ElectionRegulations including: • Bribery, contrary to s 16.1(

c) of the Election Regulations, as Mr. Alook had promised a voter that the voter’s family would be nextto receive housing; • The ballots for the Chief and Council were in the same box, contrary to s 11.2(

b) of the Election Regulations, which stipulates thatthe ballots should be separate; • The ballot box from Trout Lake was brought to the Peerless Lake polling station by the Assistant Electoral Officer Earl Laboucan,and the ballots were separated with the assistance of Linda Noskiye, who was not a scrutineer, a polling clerk, or an electoral officer.This was contrary to s 12.1 of the Election Regulations, which states that the Electoral Officer or polling clerk shall open each ballot boxand count the votes immediately upon the close of the polling station; • Linda Noskiye, sister-in-law of Mr.

Alook and member of the PTFN, assisted with the election, contrary to s 8.4 of the ElectionsRegulations which states that the Electoral Officer shall appoint polling clerks and interpreters, and that the interpreters shall not bemembers of the PTFN; • The Assistant Electoral Officer instructed Linda Noskiye to assist voters at the polling station, and she remained at the pollingstation at Trout Lake throughout the day; • The Electoral Officer had already been an Electoral Officer for a previous PTFN election, contrary to s 13(2) of the CanadaElections Act; • There should have been two ballot accounts and vote results, one from each Electoral Officer, because there were two pollingstations; • Rose Cardinal, sister-in-law of Mr.

Alook, was a scrutineer at the Peerless Lake polling station, but the necessary documentationwas not provided. She remained outside of the polling station talking to voters, when she should have been inside with the ElectoralOfficer; and • A blind voter may not have been handled appropriately according to the procedures outlined for dealing with the blind. [13] The appeal by Mr. Houle proceeded by way of an oral hearing held on December 18, 2014.

Decision Under Review Orr Appeal [14] The Arbitrator noted that the Orr appeal was addressed entirely in writing, largely relying on the materials filed in Orr QB,which addressed the same questions as were pursued on the appeal before him. For the reasons he set out, the Arbitrator agreed withMaster Smart’s conclusion that s 9.3(

c) did not offend the Charter, and that it was not otherwise ultra vires the PTFN Council. As such,he dismissed the appeal. [15] Regarding Mr. Orr’s submissions that s 9.3(

c) is ultra vires, an abuse of process and contrary to the rule of law, the Arbitrator

disagreed with Mr. Orr’s position that s 9.3(

c) is intended to prevent PTFN members from suing the PTFN Council and instead foundthat the provision was directed towards ensuring that the Chief and Councillors fully and properly carry out their duties andresponsibilities under the Election Regulations. Rather than being an abuse of power or contrary to the rule of law, the Arbitrator foundthat the

section demonstrated responsible government. He also agreed with Master Smart’s conclusion in Orr QB that the cases cited byMr.

Orr, Amax Potash Ltd v Saskatchewan, (SCC), [1977] 2 SCR 576 [Amax Potash]; Air Canada v British Columbia(Attorney General), (SCC), [1986] 2 SCR 539 [Air Canada]; and Kingstreet Investments Ltd v New Brunswick(Department of Finance), 2007 SCC 1 [Kingstreet] did not stand for the general proposition that Canadian governments cannot enactlegislation to prevent legal action against them by their citizens and, moreover, did not support the suggestion that there is a fundamentalright to bring legal action against governments arising from the Constitution or the Charter. [16] As to s 2(

b) of the Charter, the Arbitrator agreed with the PTFN that s 9.3(

c) of the Election Regulations is not a violation ofthe freedom of expression under s 2(

b) of the Charter, reasoning that Mr. Orr continues to have the right to vote, the rights of PTFNmembership and can continue to press his views in the community and with the government of the PTFN. The Arbitrator further foundthat it was Mr. Orr’s choice to pursue the course he felt necessary in suing the PTFN, which was a direct and serious conflict with thoseduties expected of a Chief or Councillor. The Arbitrator also agreed with Master Smart’s statement in Orr QB that s 9.3(

c) is not astatutory limitation on freedom of expression. [17] With respect to s 2(

d) of the Charter, the Arbitrator found that s 9.3(

c) of the Election Regulations did not infringe on Mr.Orr’s freedom of association, agreeing with Master Smart’s conclusion in Orr QB that Mr. Orr had not addressed how the activity ofnomination for public office is one that is protected by the right to freedom of association. The restriction on the activity did not infringeon Mr. Orr’s ability to establish, belong to and maintain an association.

As a member of the PTFN, he and the collective of the membersas electors determine who forms the PTFN Council to pursue common goals. [18] The Arbitrator stated that s 3 of the Charter protects the democratic rights of Canadians. Further, in Baier the Supreme Courtof Canada established that this includes voting and candidacy rights, but only in relation to the House of Commons and provinciallegislatures (Baier at para 39; Taypotat at para 28). The Arbitrator found that Crow v Blood Band at para 22, cited by Master Smart inOrr QB also supports that s 3 does not apply to band council elections.

Accordingly, the Arbitrator concluded that this Charter right didnot apply to PTFN elections. [19] Regarding Mr. Orr’s argument that his equality rights under s 15(1) of the Charter were violated by the impugned provision,the Arbitrator again noted that s 9.3(

c) of the Election Regulations is directed toward preventing serious conflicts of interest, and is not aperpetuation of prejudice as against Mr. Orr. The Arbitrator referred to the two part test set out in R v Kapp, cited by Master Smart inOrr QB, and agreed with Master Smart that there was no evidence to demonstrate that having an unresolved civil suit as against PTFN isan enumerated or analogous ground of s 15(1) discrimination. He also agreed that Mr.

Orr would be able to run for office once the suit isresolved and that there was no disadvantage perpetuated to infringe the equality guarantee of s 15(1) of the Charter. [20] As to s 1 of the Charter, the Arbitrator found that, in the event that he was wrong in finding s 9.3(

c) of the ElectionRegulations was consistent with the Charter, then any inconsistency was demonstrably justifiable in a free and democratic society unders 1. He noted that a Chief of a First Nation who is suing his own Nation for $2.8 million dollars, even if for good reason, could not beexpected to be unbiased and able to fully and properly carry out his statutory duties. Applying the test set out in R v Oakes, (SCC), [1986] 1 SCR 103 [Oakes], the Arbitrator found that the objective of s 9.3(

c) was pressing and substantial in intending toavoid significant conflicts of interests that would impair government members from satisfying duties and responsibilities. Further, thereis a rational connection between the objective of s 9.3(

c) and the means to achieve the objective, as the prohibition ensures that Councilmembers suing the PTFN cannot use their position to gain information that would harm the PTFN in litigation. The provision is alsominimally impairing, given that the disqualified elector would still retain the right to vote, lobby and influence the Council in a lawfulmanner. And, finally, the Arbitrator found that the objective served by s 9.3(

c) and its impact was proportional, as once the civillitigation is resolved, the elector would be able to stand for nomination. [21] The Arbitrator also noted that Mr. Orr’s written submissions asserting that ss 30, 35, and 36 were violated by s 9.3(

c) had notbeen further developed. [22] In the result, the Arbitrator dismissed Mr. Orr’s appeal, finding that the Election Officer properly applied s 9.3(

c) of theElection Regulations, which the Arbitrator found did not infringe the Charter. And in the event that he was wrong in that regard, theArbitrator also found that the provision was reasonable and justified under s 1 of the Charter. Houle Appeal [23] The Arbitrator first dealt with the allegation of a corrupt election practice, a ground of appeal pursuant to s 16.1(

c) of theElection Regulations. In his Notice of Appeal Mr. Houle claimed that Mr. Alook had promised an elector that the elector’s family wouldbe next to get housing benefits if the elector would vote for Mr. Alook. The electors were subsequently identified as Mr. and Mrs.Trindle. As a preliminary matter, Mr. Houle had sought to add additional witnesses because he was concerned that the Trindles wouldnot be available to testify.

The Arbitrator ruled that the Election Regulations were a complete code which set out the mandatoryrequirements for valid notices of appeal and that, after the timeline for Notice of Appeal had expired, he had no power to acceptadditional witnesses and material facts to support Mr. Houle’s argument. The Arbitrator similarly ruled at the hearing when Mr. Houlesought to testify and provide hearsay evidence as to the allegations of bribery. He noted that Mr. Houle was not previously listed as awitness and did not provide a “will say” disclosure before the hearing. The Arbitrator did not allow Mr.

Houle to testify on the basis offairness to the Respondent and in recognition that, if heard, the weight of such hearsay evidence would be minimal. Because theTrindles did not testify, and because no other evidence was presented to support the allegation of bribery, the Arbitrator found that Mr.Orr had not proven that Mr. Alook was guilty of this allegation. In doing so, the Arbitrator also took note of the unchallenged statutorydeclaration of the PTFN Band Manager, Mr. Chris Wilson, attaching the PTFN Interim Housing Rental Policy (“Housing Policy”).

Under the Housing Policy the Peerless Trout First Nation Housing Authority (“Authority”) acts as an appeal body from the housingdecisions of the PTFN staff. PTFN Council members cannot sit as members of that Authority. PTFN staff and the Authority thereby

provide an institutionalized insulation between the PTFN Council and housing decisions, which the Arbitrator stated was an example ofsound governance. [24] The Arbitrator then addressed Mr. Houle’s the numerous allegations that the Electoral Officer and polling clerks participatedin improper activities contrary to ss 16.1(

d) and (

e) of the Election Regulations. [25] Regarding s 11.2(b), the Arbitrator found that there was no requirement for separate ballot boxes to hold ballots for Chief andthose for Councillors. Instead, he found that having one ballot box was appropriate given that the ballots for Chief were coloured andballots for Councillors were white. [26] The Arbitrator found that the evidence established that Mr.

Earl Laboucan, the Assistant Electoral Officer (whom theArbitrator also referred to as the Deputy Electoral Officer), on the request of the Electoral Officer, left the polling station to transportsurplus blank ballots from the Trout Lake polling station to the Peerless Lake polling station. The absence was for between one and twohours, during which time between 75 to 100 votes were cast. Subsection 11.7 of the Election Regulations requires the Election Officer toinitial ballots, hand ballots to voters and supervise the ballot box.

If the Assistant Electoral Officer was absent, the votes cast during thattime were potentially in question. However, the Arbitrator found that the necessary absence of the Assistant Electoral Officer wasregrettable but not fatal.

Given that only one Election Officer is appointed and that there were two polling stations, the Arbitratorinterpreted the Election Regulations as allowing polling clerks to ensure the election process is conducted in a proper way when theElectoral Officer is necessarily not available, and observed that Rose Sowan and Penny Gullion had remained and continued on in theircapacity as polling clerks. [27] The Arbitrator next addressed the issue of the counting of the Trout Lake ballots at Peerless Lake.

He found that the evidenceestablished that after the polls closed at 8:00 pm, the Deputy Electoral Officer and the two polling clerks locked the Trout Lake ballotbox, left the polling station and travelled together to the Peerless Lake polling station.

The Arbitrator accepted the evidence of theDeputy Electoral Officer that they did not stop and that the ballot box remained in their possession during that trip and that the reasonwhy the ballots had not been counted at the Trout Lake polling station immediately after the closing of the polls, as required by s 12.1 ofthe Election Regulations, was that the Deputy Electoral Officer was under the impression that the hall had to be vacated by 8:30 p.m. [28] The Arbitrator also found that, while the Electoral Officer was required to fill out a form titled Form #9 Ballot Account andVote Result for each polling station under s 12.3 of the Election Regulations, he had only filled out one composite form with noinformation about specific polling stations. [29] The Arbitrator found that the evidence was consistent that after the Electoral Officer and his assistant counted the votes forthe Peerless Lake polling station (for the Chief only), the Deputy Electoral Officer accompanied by Ms.

Sowan and Ms. Gullionproceeded to the front of the Peerless Lake hall with the Trout Lake ballot box. He accepted the evidence of the Deputy ElectoralOfficer that he unlocked the box, spilled the ballots on the table in front of the crowd of approximately 90 to 100 people, picked up a fewballots that fell off the table, separated the coloured Chief ballots from the white Councillor ballots and read the name off each ballot tothe crowd, and showed the ballot to the crowd.

He also accepted the evidence of witnesses that Penny Gullion, Rose Sowan, and LindaNoskiye sorted the ballots into coloured and white piles, and the evidence of the Deputy Electoral Officer that the Electoral Officer andhis polling clerk, Jackie Laboucan, were present when the ballots were counted at the counting table, and the evidence of the ElectoralOfficer that that Ms. Rosie Cardinal, scrutineer for Mr. Alook, was also at the counting table. [30] The Arbitrator then turned to the allegation that an elector had been improperly assisted.

He referred to the evidence that anunidentified elector had asked for assistance at the Trout Lake polling station and, when asked by the polling clerk if he would prefer thatLinda Noskiye assist him, he agreed. There was also a suggestion that one or two other electors may have been assisted by a pollingclerk but this was unclear as was who assisted them, if anyone.

However, the Arbitrator found that if assistance was required, then theproper form to record the event was not completed as required by ss 11.5 or 11.6 of the Election Regulations. [31] The Arbitrator found that the evidence was consistent that the Electoral Officer had accepted Rose Cardinal as a scrutineer forMr. Alook, but did not provide her appointment in writing as required by s 11.4 of the Election Regulations. [32] As to the allegations of improper activities by Ms.

Linda Noskiye, the Arbitrator found that the evidence established that Ms.Noskiye, an elector, was in attendance for the entire time that the Trout Lake polling station was open, contrary to s 11.7(

j) of theElection Regulations, which states that electors are to immediately leave the polling station after voting. The Arbitrator accepted theevidence of the Deputy Electoral Officer that Ms. Noskiye was in attendance to help Trout Lake election officials identify electors, andrejected the allegations that she was acting as a polling clerk by counting ballots. The Arbitrator accepted the Deputy Electoral Officer’stestimony that he had asked Ms. Noskiye to help sort the ballots and that he did not see her doing anything inappropriate, untoward, orunusual to cheat.

Other witnesses confirmed that she helped sort the ballots and then sat down. The Arbitrator also found that if she didaid an elector to vote, then she should have been required to fill out form #6 or #7, as appropriate, but this was not done which woulddraw one vote into question. [33] As to the claim that the Canada Election Act disqualified Mr. Oostendorp from serving as the Election Officer, the Arbitratornoted that this ground was not further pursued.

The Arbitrator accepted that the Canada Elections Act only applies to the elections ofmembers to the House of Commons, and that the Election Regulations are a complete written code governing PTFN elections. [34] As to the other reasons grounding the appeal (s 12.3 - Form 9, s 11.4, s 16.2 and ss 11.6, 11.6(6) and s 11.6), they overlappedwith and were addressed by the foregoing. [35] In

summary, the Arbitrator found that ss 12.1, 11.5 (or 11.6) and 11.4 of the Election Regulations were imperfectly conducted. He then examined whether these grounds for appeal materially affected the outcome of the election. [36] The key to that analysis was s 16.8(

b) of the Election Regulations, being whether one or more of the identified instances ofimperfect conduct materially affected the result of the election. The Arbitrator noted that both parties relied on Beamish et al vMiltenberger and the Returning Officer for the Electoral District of Thebacha, (NWT SC), [1997] NWTR 160

[ Beamish ] for the proposition that, where the election statute in question has gaps addressing controverted elections, such gaps are to be addressed by the common law, being that there is a presumption that an election result is valid and will be overturned only if it can be shown that such irregularities would have affected the results of the election on the balance of probabilities.

Further, that both parties had also referenced Opitz v Wrzesnewskyj , 2012 SCC 55 [ Opitz ], where the majority referred to the “magic numbers test” as the test to determine, when considering an irregularity, if the election results would have been different. The test requires an election be annulled if the number of invalid votes is equal to, or greater than, the successful candidate’s plurality. [ 37 ] The Arbitrator held that one vote may have been improperly counted, and Mr. Alook obtained 44 more votes for Chief than Mr. Houle.

The Arbitrator further held that none of the three infractions materially affected the results of the election. [ 38 ] As such, he upheld Mr. Houle’s appeal but allowed the election results to stand. Finding that the appeal was fundamentally lacking in merit, he also ordered, pursuant to s 16.11 of the Election Regulations, that Mr.

Houle pay half of the costs of the election appeal arbitration, including the hall rental, transcription services, the oral hearing lunch, post-election costs of the Electoral Officer and Assistant Electoral Officer related to and arising out of the election appeal arbitration and the fees and expenses of the Election Appeal Arbitrator. Issues [ 39 ] I would frame the issues as follows: 1. What is the applicable standard of review? 2. Did the Arbitrator err in finding that s 9.3(

c) of the Election Regulations was not unconstitutional? 3. Did the Arbitrator err in not allowing Mr. Houle to add other witnesses? 4. Did the Arbitrator err in finding that the breaches of the Election Regulations regarding electoral practices did not materially affect the result? 5. Did the Arbitrator err in ordering Mr. Houle to pay costs? Issue 1: What is the applicable standard of review? [ 40 ] The Applicants submit that each of the matters raised in this judicial review involve constitutional analysis, statutory

interpretation and questions of law, requiring the standard of correctness ( Multani v CSMB , 2006 SCC 6 at paras 16-23 , 30). Further, that issues of procedural fairness in an administrative hearing are to be reviewed on the correctness standard ( CUPE v Ontario (Minister of Labour) , 2003 SCC 29 at paras 100-103 ). [ 41 ] The Respondent agrees that correctness should be applied to the Arbitrator’s

interpretations of the Constitution and the Charter and to issues of procedural fairness. However, the Respondent submits that the reasonableness standard applies to the Arbitrator’s findings of fact to which the Constitution and the Charter are to be applied, including whether on those facts s 9.3(

c) of the Election Regulations is reasonable and justifiable in a free and democratic society ( Doré v Barreau du Quebec , 2012 SCC 12 at paras 44 , 54-48 [ Doré ]); to the Arbitrator’s

interpretation of the Election Regulations ( Fort McKay First Nation v Orr , 2012 FCA 269 at paras 8-11 [ Fort McKay ]; Testawich v Duncan’s First Nation , 2014 FC 1052 at para 16 [ Testawich ]); and, to the Arbitrator’s findings of fact to which the Election Regulations are applied ( Testawich at para 23 ). [ 42 ] In my view, the second issue has two aspects. The first is whether the Arbitrator erred in finding that s 9.3(

c) of the Election Regulations is not unconstitutional. As stated in Doré at paragraph 43 , “There is no doubt that when a tribunal is determining the constitutionality of a law, the standard of review is correctness ( Dunsmuir , at para 58)” . Thus, to the extent that the Arbitrator was considering whether s 9.3(

c) conflicted with s 3 of the Charter or unwritten democratic rights, the standard of review is correctness. Doré is otherwise of little assistance as it concerned a challenge to the constitutionality of a discretionary administrative decision as opposed to the constitutionality of a law . [ 43 ] The second aspect of this issue is whether s 9.3(

c) attempts to prevent members of the PTFN from bringing actions against their government and is therefore contrary to the rule of law, an abuse of power and an arbitrary action. Thus, this pertains to the Arbitrator’s

interpretation of s 9.3(c). In Fort McKay , when dealing with a First Nation Council’s decision to suspend a councillor by way of a resolution, the Federal Court of Appeal stated that the question was whether that decision could be supported on a reasonable reading of the relevant provisions of the subject election code (at para 21) and applied the reasonableness standard of review when interpreting its provisions. [ 44 ] Further, in Testawich , this Court referenced Fort McKay at paras 10-11 ; D’Or v St.

Germain , 2014 FCA 28 at paras 5-6 ; York v Lower Nicola Indian Band , 2013 FCA 26 at para 6 [ York ]; Tsetta v Band Council of the Yellowknives Dene First Nation , 2014 FC 396 at para 22 [ Tsetta ]; and, Ferguson v Lavallee , 2014 FC 569 at para 63 , in concluding that the standard for reviewing an election appeal committee’s

interpretation and application of election regulations is reasonableness (at paras 16 and 21). Further, that in applying the reasonableness standard the Court must defer to factual determinations made by the decision-maker ( Testawich at para 23 ). Accordingly, I see no reason why the reasonableness standard would not also apply to

interpretation of the Election Regulations by the Arbitrator who was appointed to hear the election appeal in accordance with s 16 of those regulations. [ 45 ] The third issue is framed by Mr. Houle as one of procedural fairness. The standard of correctness applies to questions of procedural fairness ( Khosa v Canada (Minister of Citizenship and Immigration) , 2009 SCC 12 at para 43 ; York at para 6 ; Tsetta ; Minde v Ermineskin Cree Nation , 2008 FCA 52 at para 32 ; Khela v Mission Institution , 2014 SCC 24 at para 79 ; Testawich at para 15 ). The

Respondent submits that this issue also encompasses the Arbitrator’s

interpretation of the Election Regulations. As set out above, suchinterpretation would attract the reasonableness standard. [46] Similarly, with respect to the fourth issue, the Arbitrator’s finding that the breaches of the Election Regulations did notmaterially affect the election result, this required the Arbitrator to interpret and apply the test set out in s 16.8(

b) of the ElectionRegulations. This attracts the reasonableness standard as does the fifth issue which required the Arbitrator to interpret and apply s 16.11of the Election Regulations concerning costs. Issue 2: Did the Arbitrator err in finding that s 9.3(

c) of theElection Regulations was not unconstitutional? Mr. Orr’s Position [47] On judicial review Mr. Orr focused primarily on the issue of s 9.3(

c) in the context of his democratic rights. He submittedthat the Constitution contains four foundational values, which are fundamental to the constitutional law within Canada, being federalism,democracy, constitutionalism and the rule of law, which are “clearly implicit in the very nature of a Constitution” (Reference reSecession of Quebec, (SCC), [1998] 2 SCR 217 at paras 49-54 [Re Secession of Quebec]). Moreover, althoughunwritten, democracy is recognized in the

preamble to the Constitution and is an “essential interpretive consideration” (Re Secession ofQuebec at paras 61-69) originating in the Magna Carta and developed in the English Bill of Rights. Therefore, contrary to theArbitrator’s and Master Smart’s decisions, Mr. Orr argued that s 3 of the Charter is to be interpreted to include democratic governmentto all citizens within Canada. It is not subject to the notwithstanding power in s 33 of the Charter and is to be broadly interpreted(Charter, ss 3-4, 33 and 35). Mr.

Orr submits that although the wording of s 3 refers only to Parliament and to the legislative assemblies,it is clear from Tsilhqot’in v British Columbia, 2014 SCC 44 at paras 138-144 [Tsilhqot’in] that s 35 was not fully in the minds of thedrafters when the Charter was drafted. [48] Mr. Orr submits that Baier does not actually support the Arbitrator’s decision, as it is distinguishable and primarily dealt withwhether s 2(

b) of the Charter applied, and did not address issues respecting ss 1, 3 or 15 of the Charter or constitutional democraticrights. Mr. Orr further submits that the Supreme Court of Canada limited Baier’s application in Greater Vancouver TransportationAuthority v Canada Federation of Students, 2009 SCC 31 , [2009] 2 SCR 295 at paras 13-16, 27 and 35-36 [Greater VancouverTransportation Authority]. [49] Mr.

Orr submits that the Election Regulations must comply with the constitutional right to democracy, which includes, but isbroader than the rights specifically stated in s 3 of the Charter (Thompson v Leq’A:Mel First Nation Council, 2007 FC 707 at para 8[Thompson]). Drawing parallels to Taypotat, Mr. Orr submits that the rule of law shields all Canadians from arbitrary state action andpermits a citizen to sue the government. Mr. Orr submits that s 9.3(

c) is contrary to democracy and the rule of law, and is an abuse ofpower as it is plainly an attempt by the PTFN to prevent its members from bringing actions against the PTFN government. In order for s9.3(

c) to be justified by s 1 of the Charter, it must be established that there is a constitutionally valid purpose or objective achieved bythe limit, and no such proof was provided by the PTFN in the appeal arbitration. Prior to the passage of the Charter, it was held thatgovernments could not prevent citizens from bringing actions against them because such legislation was ultra vires (Amax Potash, AirCanada, Kingstreet). Mr. Orr takes the position that any concerns about Mr. Orr’s lawsuit against the PTFN could be appropriatelydealt with by the conflict of interest provisions contained in

Schedule “C” of the Election Regulations. Mr. Orr therefore argues thatthere is no pressing or substantial concern requiring a limitation on his democratic right to run in an election. [50] Mr. Orr submits that the fundamental principle of democracy within the Constitution goes beyond limiting a Charter right sothat any limitation on democracy is a limitation of the core fundamental rights of the Constitution (Sauvé v Canada (Chief ElectoralOfficer), 2002 SCC 68 at paras 24, 28-46 [Sauvé]). He submits that there should be considered to be a distinction between the rightsunder s 3 of the Charter and the democratic rights contained in the

preamble to the Constitution such that the provisions of the Chartercannot limit the democracy that is fundamental to Canada as contained in the

preamble (New Brunswick Broadcasting Co v Nova Scotia, (SCC), [1993] 1 SCR 319 at pp 368, 373-378). The Respondent’s Position [51] The Respondent’s position is that s 9.3(

c) is not unconstitutional, it does not offend any of the sections of the Charterpreviously raised, nor does it offend unwritten democratic values. [52] The Respondent submits that s 9.3(

c) does not infringe on Mr. Orr’s s 2(

b) Charter rights because that right does notguarantee any particular method or location of expression. Nor does the impugned provision infringe on Mr. Orr’s s 2(

d) Charter rightto freedom of association because that right only protects against the state precluding an activity because of its associational nature,thereby discouraging the collective pursuit of goals. The Respondent points out that s 9.3(

c) does not stop Mr. Orr from running foroffice because of its associational nature. Subsection 9.3(

c) also does not infringe on Mr. Orr’s s 3 Charter rights, because s 3 onlyguarantees rights in relation to the House of Commons and provincial legislatures; it does not apply to the PTFN Council (Baier at para39; Taypotat at para 28, Orr QB at para 17). The Respondent submits that s 9.3(

c) does not discriminate contrary to s 15(1) of theCharter, because it does not create a distinction based on an enumerated or analogous ground; nor does it create a disadvantage byperpetuating prejudice or stereotyping of persons who sue as plaintiffs in civil courts (Taypotat at para 44; Baier at paras 63-65; Orr QBat para 22) [53] The Respondent also submits that s 9.3(

c) of the Election Regulations is not invalidated by s 35 of the Charter, which, on thecontrary, recognizes and affirms the aboriginal right of self-government of the PTFN to enact the Election Regulations, or by s 36 of theCharter, which is only available to provincial and federal governments privy to the types of agreements contemplated in that section.

[54] The Respondent further submits that s 9.3(

c) of the Election Regulations is not contrary to an unwritten constitutionalprinciple or democratic right protecting a citizen’s right to sue his or her government, nor, in any event, does the provision prevent amember from suing the PTFN. With respect to Mr. Orr’s reliance on Re Secession of Quebec, the Respondent points out that in that casethe Supreme Court of Canada cautioned against dispensing with the written text of the Constitution and, to the contrary, confirmed thatthere are compelling reasons to insist upon the primacy of the written Constitution (Re Secession of Quebec at para 53).

The Respondentsubmits that Mr. Orr also ignored the Supreme Court’s direction in Baier that s 3 protects voting rights and candidacy only in relation tothe House of Commons and provincial legislature, and that it is not for the Supreme Court to create constitutional rights in respect of athird order of government where the words of the Constitution read in context do not do so (at para 39).

Further, the Respondent arguesthat neither the Supreme Court in Tsilhqot’in or Greater Vancouver Transportation Authority or this Court in Thompson are authority forignoring the Supreme Court’s caution, and, in Taypotat the Federal Court of Appeal confirmed that s 3 does not apply to a First Nation’selection law (at para 28). [55] The Respondent submits that none of the “foundational principles” address whether a citizen may or may not sue agovernment for breach of contract nor do the cases cited by Mr. Orr establish such a constitutional right. [56] The Respondent submits that the intention of s 9.3(

c) of the Election Regulations was to avoid obvious and blatant conflicts ofinterest that would preclude an elected member from fully and properly carrying out his duties. Therefore, the PTFN was not abusing itsself-governing powers by addressing this serious concern in the eligibility criteria. [57] The Respondent also submits that it was reasonable for the Arbitrator to find in the alternative that, even if he was wrong ands 9.3(

c) breached Mr. Orr’s constitutional rights, then the provision was saved under s 1 of the Charter as reasonable and justifiable in afree and democratic society. The evidence established that the intention of s 9.3(

c) is to avoid obvious and blatant conflicts of interest. The Respondent therefore submits that the Arbitrator reasonably and correctly found that on the facts before him there was a rationalconnection between the pressing and substantial objective and the prohibition enacted by the PTFN by s 9.3(c), that the sectionminimally impaired Mr. Orr’s rights and that it was proportional. Analysis [58] Subsection 9.3(

c) of the Election Regulations states as follows: 9.3 Electors Eligible for Nomination … (

c) Any Elector who is a plaintiff in a civil action against the PTFN is not eligible to be Nominated. [59] Similarly, electors convicted of an unpardoned indictable offence or charged with an indictable offence at the time of thenomination are not eligible to be nominated, nor are electors employed by the PTFN or a PTFN Business Entity (ss 9.3(

b) and (

d) of theElection Regulations). [60] As I understand the first aspect of Mr. Orr’s submission, it is that democracy is a foundational constitutional value which isunwritten but recognized in the

preamble of the Constitution. This is distinct from and broader than the rights arising from s 3 of theCharter, and the Charter provisions cannot limit the foundation right of democracy. Further, Mr. Orr argues that s 3 of the Charter isnot limited in application but serves to recognize that the foundational value of democracy extends to every aspect of all politicalinstitutions and all levels of governments. This is why Mr. Orr believes that it is not saved by ss 1, 33 or 35 of the Charter. [61] To address this, I first set out the portion of the

preamble of the Constitution relied upon by Mr. Orr in support of his position: WHEREAS the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into OneDominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of theUnited Kingdom: [62] Mr. Orr’s argument with respect to the

preamble appears to stem from and relies heavily on references to Re Secession ofQuebec. There, in considering the first question in that matter, being whether under the Constitution, the National Assembly legislatureor Government of Quebec can affect the secession of Quebec from Canada unilaterally, the Supreme Court of Canada conducted ananalysis of the underlying constitutional principles: [49] What are those underlying principles? Our Constitution is primarily a written one, the product of 131 years of evolution.

Behindthe written word is an historical lineage stretching back through the ages, which aids in the consideration of the underlying constitutionalprinciples. These principles inform and sustain the constitutional text: they are the vital unstated assumptions upon which the text isbased. The following discussion addresses the four foundational constitutional principles that are most germane for resolution of thisReference: federalism, democracy, constitutionalism and the rule of law, and respect for minority rights. These defining principlesfunction in symbiosis.

No single principle can be defined in isolation from the others, nor does any one principle trump or exclude theoperation of any other. [50] Our Constitution has an internal architecture, or what the majority of this Court in OPSEU v. Ontario (Attorney General), (SCC), [1987] 2 S.C.R. 2, at p. 57, called a “basic constitutional structure”. The individual elements of the Constitution arelinked to the others, and must be interpreted by reference to the structure of the Constitution as a whole.

As we recently emphasized inthe Provincial Judges Reference, certain underlying principles infuse our Constitution and breathe life into it. Speaking of the rule of lawprinciple in the Manitoba Language Rights Reference, supra, at p. 750, we held that “the principle is clearly implicit in the very nature ofa Constitution”. The same may be said of the other three constitutional principles we underscore today. [51] Although these underlying principles are not explicitly made part of the Constitution by any written provision, other than in some

respects by the oblique reference in the

preamble to the Constitution Act, 1867 , it would be impossible to conceive of our constitutionalstructure without them. The principles dictate major elements of the architecture of the Constitution itself and are as such its lifeblood. [52] The principles assist in the

interpretation of the text and the delineation of spheres of jurisdiction, the scope of rights andobligations, and the role of our political institutions. Equally important, observance of and respect for these principles is essential tothe ongoing process of constitutional development and evolution of our Constitution as a “living tree”, to invoke the famous descriptionin Edwards v. Attorney-General for Canada, (UK JCPC), [1930] A.C. 124 (P.C.), at p. 136. As this Court indicated inNew Brunswick Broadcasting Co. v.

Nova Scotia (Speaker of the House of Assembly), (SCC), [1993] 1 S.C.R. 319,Canadians have long recognized the existence and importance of unwritten constitutional principles in our system of government. [53] Given the existence of these underlying constitutional principles, what use may the Court make of them?

In theProvincial Judges Reference, supra, at paras. 93 and 104, we cautioned that the recognition of these constitutional principles (themajority opinion referred to them as “organizing principles” and described one of them, judicial independence, as an “unwrittennorm”) could not be taken as an invitation to dispense with the written text of the Constitution. On the contrary, we confirmedthat there are compelling reasons to insist upon the primacy of our written constitution.

A written Constitution promotes legalcertainty and predictability, and it provides a foundation and a touchstone for the exercise of constitutional judicial review. However, we also observed in the Provincial Judges Reference that the effect of the

preamble to the Constitution Act, 1867 was toincorporate certain constitutional principles by reference, a point made earlier in Fraser v. Public Service Staff Relations Board, (SCC), [1985] 2 S.C.R. 455, at pp. 462-63. In the Provincial Judges Reference, at para. 104, we determined thatthe

preamble “invites the courts to turn those principles into the premises of a constitutional argument that culminates in thefilling of gaps in the express terms of the constitutional text”. [54] Underlying constitutional principles may in certain circumstances give rise to substantive legal obligations (have “full legalforce”, as we described it in the Patriation Reference, supra, at p. 845), which constitute substantive limitations upon governmentaction. These principles may give rise to very abstract and general obligations, or they may be more specific and precise in nature.

Theprinciples are not merely descriptive, but are also invested with a powerful normative force, and are binding upon both courts andgovernments. “In other words”, as this Court confirmed in the Manitoba Language Rights Reference, supra, at p. 752, “in the process ofConstitutional adjudication, the Court may have regard to unwritten postulates which form the very foundation of the Constitution ofCanada”. It is to a discussion of those underlying constitutional principles that we now turn. … [61] Democracy is a fundamental value in our constitutional law and political culture.

While it has both an institutional and anindividual aspect, the democratic principle was also argued before us in the sense of the supremacy of the sovereign will of a people, inthis case potentially to be expressed by Quebecers in support of unilateral secession. It is useful to explore in a

summary way thesedifferent aspects of the democratic principle. [62] The principle of democracy has always informed the design of our constitutional structure, and continues to act as an essentialinterpretive consideration to this day. A majority of this Court in OPSEU v. Ontario, supra, at p. 57, confirmed that “the basicstructure of our Constitution, as established by the Constitution Act, 1867 , contemplates the existence of certain politicalinstitutions, including freely elected legislative bodies at the federal and provincial levels”.

As is apparent from an earlier line ofdecisions emanating from this Court, including Switzman v. Elbling, (SCC), [1957] S.C.R. 285, Saumur v. City ofQuebec, (SCC), [1953] 2 S.C.R. 299, Boucher v. The King, (SCC), [1951] S.C.R. 265, and Reference reAlberta Statutes, (SCC), [1938] S.C.R. 100, the democracy principle can best be understood as a sort of baseline againstwhich the framers of our Constitution, and subsequently, our elected representatives under it, have always operated. It is perhaps for thisreason that the principle was not explicitly identified in the text of the Constitution Act, 1867 itself.

To have done so might haveappeared redundant, even silly, to the framers. As explained in the Provincial Judges Reference, supra, at para. 100, it is evident that ourConstitution contemplates that Canada shall be a constitutional democracy. Yet this merely demonstrates the importance of underlyingconstitutional principles that are nowhere explicitly described in our constitutional texts. The representative and democratic nature of ourpolitical institutions was simply assumed. [63] Democracy is commonly understood as being a political system of majority rule. It is essential to be clear what this means.

Theevolution of our democratic tradition can be traced back to the Magna Carta (1215) and before, through the long struggle forParliamentary supremacy which culminated in the English Bill of Rights of 1689, the emergence of representative political institutions inthe colonial era, the development of responsible government in the 19th century, and eventually, the achievement of Confederation itselfin 1867. “[T]he Canadian tradition”, the majority of this Court held in Reference re Provincial Electoral Boundaries (Sask.), (SCC), [1991] 2 S.C.R. 158, at p. 186, is “one of evolutionary democracy moving in uneven steps toward the goal of universalsuffrage and more effective representation”.

Since Confederation, efforts to extend the franchise to those unjustly excluded fromparticipation in our political system — such as women, minorities, and aboriginal peoples — have continued, with some success, to thepresent day. [64] Democracy is not simply concerned with the process of government. On the contrary, as suggested in Switzman v. Elbling,supra, at p. 306, democracy is fundamentally connected to substantive goals, most importantly, the promotion of self-government. Democracy accommodates cultural and group identities: Reference re Provincial Electoral Boundaries, at p. 188.

Put another way, asovereign people exercises its right to self-government through the democratic process. In considering the scope and purpose of theCharter , the Court in R. v.

Oakes, (SCC), [1986] 1 S.C.R. 103, articulated some of the values inherent in the notion ofdemocracy (at p. 136): The Court must be guided by the values and principles essential to a free and democratic society which I believe to embody, to name buta few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide varietyof beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation ofindividuals and groups in society.

[65] In institutional terms, democracy means that each of the provincial legislatures and the federal Parliament is elected by popularfranchise. These legislatures, we have said, are “at the core of the system of representative government”: New Brunswick Broadcasting,supra, at p. 387. In individual terms, the right to vote in elections to the House of Commons and the provincial legislatures, and tobe candidates in those elections, is guaranteed to “Every citizen of Canada” by virtue of s. 3 of the Charter.

Historically, thisCourt has interpreted democracy to mean the process of representative and responsible government and the right of citizens to participatein the political process as voters (Reference re Provincial Electoral Boundaries, supra) and as candidates (Harvey v. New Brunswick(Attorney General), (SCC), [1996] 2 S.C.R. 876). In addition, the effect of s. 4 of the Charter is to oblige the House ofCommons and the provincial legislatures to hold regular elections and to permit citizens to elect representatives to their politicalinstitutions.

The democratic principle is affirmed with particular clarity in that s. 4 is not subject to the notwithstanding power containedin s. 33. [Emphasis added] [63] Thus, while Mr. Orr is correct that democracy is an underlying principle of the Constitution, the question, as recognized bythe Respondent, is whether this amounts to a constitutional guarantee that members of the PTFN can run for elected office of the PTFNCouncil. In my view, Mr. Orr provides no authority that would support such a finding. [64] Further, when considering Mr.

Orr’s position, it is important to recall that Re Secession of Quebec specifically stated that theright to vote in elections to the House of Commons and the provincial legislature and to be candidates “in those elections” is granted byvirtue of s 3 of the Charter (at para 65). It also recognized the primacy of the written Constitution (at para 54). [65]

Section 3 of the Charter states: 3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and tobe qualified for membership therein. [66] It has been held, considering the central and fundamental role of s 3 in the Charter, that it is particularly important to apply abroad and purposeful

interpretation to the right and that the importance of the right is signaled by its exemption from legislative overrideunder s 33’s notwithstanding clause (Frank v Canada (Attorney General), 2014 ONSC 907 [Frank] at para 65; Sauvé at paras 11, 33-35). Further, that the purpose of s 3 of the Charter is to grant every Canadian citizen the right to play a meaningful role in the selectionof elected representatives (Frank at para 92). [67] However, contrary to Mr.

Orr’s assertion, and as pointed out by the Respondent, the Supreme Court of Canada did address s 3of the Charter in Baier, discussed further below, in a brief but clear manner at para 39: Voting and candidacy rights are explicitly protected in s. 3 of the Charter but only in relation to the House of Commons andprovincial legislatures. The intervener Public School Boards' Association of Alberta submits that school boards as institutions of localgovernment have constitutional status in the "conventional or quasi-constitutional sense".

However, it is not for this Court to createconstitutional rights in respect of a third order of government where the words of the Constitution read in context do not do so. [Emphasis added] [68] Justice Rothstein in his concurring opinion remarked on Justice Lebel’s comment: …I understand his idea to be that because the democratic rights enshrined in s. 3 of the Charter extend only to Parliamentary andlegislative elections, the Charter does not protect the right to participate in other elections. (at para 56) [69] The limitation of the application of s 3 to federal and provincial legislatures originates with the Supreme Court’s decision inHaig, where Justice L’Heureux-Dubé affirmed that s 3 was clear and unambiguous in that it was limited to the elections of provincial andfederal representatives.

This

interpretation was also followed in Crow v Blood Band, which involved an aboriginal election. [70] It is also of note that the applicant in Taypotat sought to invalidate sections of the First Nation election legislation requiring acandidate for a band election to have attained a minimum education level. The Federal Court of Appeal dismissed the applicant’s s 3claim, relying on Baier to find that s 3 is limited to the elections of provincial and federal representatives, stating: [27] The appellant’s submissions under

section 3 of the Charter can also be easily dismissed. That

section provides that “[e]verycitizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to bequalified for membership therein.” (« Tout citoyen canadien a le droit de vote et est éligible aux élections législatives fédérales ouprovinciales.») [28] The Supreme Court of Canada stated in Haig v. Canada, (SCC), [1993] 2 S.C.R. 995 at p. 1033, that “[s]ection 3of the Charter is clear and unambiguous as is its purpose: it is limited to the elections of provincial and federal representatives.” Theappellant nevertheless submits that

section 3 extends to elections to governance structures of First Nations as these structures should bedeemed as equivalent to “legislative assemblies” taking into account aboriginal peoples’ inherent right to self-governance. Thissubmission cannot however be sustained in light of Baier v. Alberta, 2007 SCC 31, [2007] 2 S.C.R. 673 where Rosthstein J., writing forthe majority, noted the following, at para. 39: Voting and candidacy rights are explicitly protected in s. 3 of the Charter but only in relation to the House of Commons and provinciallegislatures.

The intervener Public School Boards’ Association of Alberta submits that school boards as institutions of local governmenthave constitutional status in the “conventional or quasi-constitutional sense”. However, it is not for this Court to create constitutionalrights in respect of a third order of government where the words of the Constitution read in context do not do so.

[29] Moreover, should

section 3 of the Charter apply to First Nation elections, the logical result would be that non-aboriginal Canadian citizens would be entitled to participate in such elections. That result would defeat the very purpose of aboriginal self- government. I consequently find no merit in the appellant’s submissions with respect to

section 3 of the Charter . [ 71 ] While the Federal Court of Appeal’s decision was ultimately overturned by the Supreme Court ( Kahkewistahaq First Nation v Taypotat , 2015 SCC 30 ), it was on other grounds. [ 72 ] Given this clear line of authorities, it is my view that the Arbitrator did not err in finding that s 3 of the Charter does not apply to the PTFN election and, therefore, that s 9.3(

c) is not unconstitutional because it does not conflict with s 3 of the Charter . Further, while the Supreme Court in Re Secession of Quebec found that the

preamble to the Constitution invited the courts to turn to the unwritten underlying principles, including democracy, as a basis for filling gaps in the express terms of the constitutional text, this line of authorities also demonstrates that this is not a circumstance where such an analysis is necessary. To use the words of that Court, s 3 is clear and unambiguous and it is not for this Court to create constitutional rights in respect of a third order of government where the words of the Constitution read in context do not do so. [ 73 ] I would also note that many of the cases referenced by Mr.

Orr do not seem to be on point or to deal with similar issues. For example, reference is made to paragraphs 138-144 of Tsilhqot’in in support of the view that although the wording of s 3 refers only to Parliament and the legislative assemblies, this was not at the forefront of the minds of the drafters of the Charter . However, those paragraphs mainly concern the principle of interjurisdictional immunity and its relationship with s 35 of the Charter .

In support of his assertion that the Election Regulations must comply with the constitutional right to democracy, which includes but is broader than the rights set out is s 3 of the Charter , Mr. Orr references Thompson at para 8 , however, neither that paragraph or that decision stand for that proposition. [ 74 ] Mr. Orr also submits that s 9.3(

c) of the Election Regulations is contrary to the rule of law, an abuse of power and an arbitrary action as it is an attempt to prevent members of the PTFN from bringing actions against the government of the PTFN and because it excludes a person from running for office if they do so and that this cannot be saved by s 1. [ 75 ] Again, while it is correct that Re Secession of Quebec describes constitutionalism and the rule of law, that case does not state, as Mr. Orr appears to suggest, that the rule of law provides that a citizen may sue the government when there is a breach of contract between them.

Rather, the rule of law, amongst other things, requires that all government action must comply with the law, including the Constitution . [ 76 ] Master Smart found, and the Arbitrator agreed, that the decisions relied upon by Mr. Orr, Amax Potash, Air Canada and Kingstreet, did not stand for the general proposition that Canadian governments cannot enact legislation to prevent legal action against them by their citizens or that there is a fundamental right to bring legal action against governments under or arising from the Constitution or the Charter . Mr.

Orr again cites those cases on judicial review of the Arbitrator’s decision as support for the same argument. However, in Amax Potash the Supreme Court of Canada responded to a constitutional question finding that s 5(7) of The Proceedings Against the Crown Act, RSS 1965, c 87 was ultra vires the legislation of Saskatchewan in so far as it purported to bar recovery of taxes paid under a statute or statutory provisions which was beyond the legislation jurisdiction of the legislature of Saskatchewan. It does not stand for the proposition cited by Mr.

Orr, nor do Air Canada or Kingstreet , both of which also concerned the collection and retention of taxes pursuant to ultra vires legislation. [ 77 ] The Arbitrator also did not accept Mr. Orr’s view of the intent of s 9.3(

c) but found instead that it was directed towards ensuring that the Chief and Councillors of the PTFN could fully and properly carry out their duties and responsibilities under the Election Regulations and that it was demonstrative of good government. [ 78 ] There was evidence before the Arbitrator to support that

interpretation. Specifically, the affidavit of Mr. Alook, sworn on July 11, 2014 which states that: 8. Peerless Trout First Nation included

section 9.3(

c) in its Customary Election Regulations to ensure that no member of an already small governing Council has an obvious conflict of interest in carrying out his or her duties as a member of Council. [ 79 ] Subsection 3.5 of the Election Regulations states that the Chief and Council shall carry out the duties as set out in

Schedule “B” and in accordance with the Conflict of Interest Guidelines set out in

Schedule “C” of those regulations. Amongst other duties,

Schedule “B” requires the Council to ensure the financial affairs of the First Nation are managed in a responsible, transparent, and accountable manner at all times keeping in mind the First Nation’s best long term interests; to develop and implement structures, by- laws, and policies to ensure the proper financial management and control of all funds and assets; and, to prepare and present an annual budget.

Schedule “C” states that the Council must not directly or indirectly engage in any personal or business activity which competes or conflicts with the interests of the PTFN or compromises their ability to serve its interests. Council must deal fairly and impartially with PTFN members, showing no favouritism, prejudice or bias in any decisions affecting their rights or interests. Councillors shall not make any decisions or use their office or powers to provide extraordinary benefits for themselves personally or for their immediate family members.

They also must not use or communicate information acquired in their capacity as Councillor for their personal gain or for the benefits or harm of any other person. [ 80 ] In my view, the Arbitrator did not err in concluding that the eligibility requirement was not an abuse of power or contrary to the rule of law. As noted by Master Smart and referenced by the Arbitrator, the cases cited by Mr. Orr do not support the suggestion that there is a constitutionally guaranteed right to bring legal action against the government.

Further, the Arbitrator reasonably interpreted the Election Regulations to find that their intent was not to prevent lawsuits from being commenced by members of the PTFN against its government. It was open to him to find that the s 9.3(

c) eligibility requirement was directed instead toward ensuring that the PTFN Chief and Councillors were able to fully and properly carry out their duties and responsibilities and demonstrated responsible government. It was also open to him to find that the eligibility requirement did not constitute an abuse of power, particularly in a circumstance such as this where there was a pre-existing conflict presented by Mr. Orr’s significant lawsuit against the PTFN and considering the duties associated with assuming the role of Chief or Councillor described in

Schedule “B” of the Election Regulations. The affidavit of Mr.

Alook also supported this conclusion. Reasonableness is concerned with the existence of justification, transparency and intelligibilitywithin the decision-making process as well as whether the decision falls within the range of possible, acceptable outcomes which aredefensible in respect of the facts and the law (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47). As the Arbitrator’s

interpretation ofs 9.3(

c) was reasonable, there is no basis for interference by this Court. [81] The Arbitrator also found that, even if he was wrong about the constitutionality of s 9.3(c), it was saved by s 1 of the Charter. He applied the Oakes test in reaching that conclusion in respect of s 15(1) as well as ss 2(b), 2(

d) and 3 of the Charter. [82] The Oakes test requires that four criteria be satisfied by a law that qualifies as a reasonable limit that can be demonstrablyjustified in a free and democratic society: i. sufficiently important objective – the law must pursue an objective that is sufficiently important to justify limiting aCharter right; ii. rational connection – the law must be rationally connected to the objective; iii. least drastic means – the law must impair the right no more than is reasonably necessary to accomplish the objective; and iv. proportionate relief – the law must not have a disproportionately severe effect on the persons to whom it applies. [83] In the context of the s 1 analysis, Mr.

Orr submits that no proof of the purpose of s 9.3(

c) was provided by the PTFN and,therefore, that it did not meet its burden of establishing that it served a constitutionally valid purpose or objective. However, as notedabove, there was affidavit evidence on this point as provided by Mr. Alook, describing the objective of the impugned provision. Assuch, the Arbitrator found that the objective of s 9.3(

c) is pressing and substantial as it is intended to avoid significant conflicts of interestthat would impair governing members from satisfying their statutory duties and responsibilities. [84] Mr. Orr also submits that there is no rational connection between denying the democratic right to participate as a candidate ina PTFN election and the existence of the civil action against the PTFN. However, in my view, the Arbitrator did not err in finding thatthere was a rational connection between the objective of s 9.3(

c) and the means to achieve the objective as the prohibition on eligibilityto stand for office serves to ensure electors who are suing the PTFN cannot obtain and thereby use their position to gain information thatwould harm the PTFN in litigation and to ensure that they are able to carry out their duties while in office. In my view, one of, if not themost significant aspects of any Councillor’s duties is concerned with the proper financial management of the PTFN. It would seemobvious that a member who is suing the PTFN for a significant sum would have a clear and pre-existing conflict.

And, while Schedule“C” may well serve to identify what constitutes a conflict of interest concerning sitting Councillors, s 9.3(

c) serves to preclude personswith known and obvious conflicts from assuming that office. Similarly, electors employed by the PTFN or a PTFN Business Entitywould not be eligible (ss 9.3(

b) and (d)) to seek office. [85] Nor, in my view, did the Arbitrator err in finding that s 9.3(

c) was minimally impairing, as an elector who has beendisqualified from being nominated still retains the right to vote and the ability to lobby and influence Council members in a lawfulmanner. I agree with that conclusion and would add that, upon resolution of the lawsuit, eligibility to stand for office will be restored. Nor did the Arbitrator err in concluding that the objective is served by s 9.3(

c) and the impact is proportional because once the civillitigation is resolved, the elector’s eligibility to stand for nomination will be restored. [86] Mr. Orr relies on Sauvé to argue that if prisoners cannot be restricted from voting because the cost to our core democraticvalues would be too high, then his right to run for office should also not be denied on the ground that he has a breach of contract actionagainst the PTFN. In my view, Sauvé does not provide analogous support for Mr. Orr’s position.

In that case, the Supreme Court ofCanada was dealing with a prisoner’s right to vote, which is protected by s 3 of the Charter, and found that the provision denying thatright failed the rational connection part of the Oakes test. In the present case, we are dealing with an elector’s ability to run for office ina band election, which is not protected by s 3 of the Charter, and the rational connection is met. Nor does Figueroa v Canada (AttorneyGeneral), 2003 SCC 37, also relied on by Mr. Orr support his position.

The Oakes test must be applied in the context specific to the caseunder consideration. [87] In my view, the Arbitrator did not err in concluding that s 9.3(

c) of the Election Regulations is not inconsistent with Mr. Orr’ss 3 Charter rights nor in his alternate analysis that, in any event, any such inconsistency is saved by s 1. Further, I am not satisfied byMr. Orr’s submissions that there is a separate constitutionally guaranteed right to run for office in a band council election premised onthe underlying principle of democracy, nor that s 9.3(

c) is an abuse of authority or contrary to the rule of law. Issue 3: Did the Arbitrator err in not allowing Mr. Houle to addother witnesses? Mr. Houle’s Position [88] Mr. Houle takes issue with the fact that the Arbitrator strictly applied the requirements of the Election Regulations withrespect to Mr. Houle, but did not do so when considering the alleged breaches of the Election Regulations by the PTFN. The Arbitratorfound the breaches to be “imperfectly conducted” election practices which could be overlooked. Mr.

Houle argues that an electionappeal tribunal must act in accordance with procedural fairness (Sparvier v Cowessess Indian Band No 73, (FC),[1993] 3 FC 142 [Sparvier]). [89] Specifically, Mr. Houle submits that the period of 5 days given to file a Notice of Appeal is unreasonably short, particularlywith respect to a corrupt election practice. Mr. Houle further submits that the Arbitrator erred in finding that he did not have the powerto accept additional witnesses. Mr. Houle argues that the Arbitrator breached his duty of procedural fairness by failing to determine the

procedure to be followed with regard to fairness and equality, as required under s 16.5(

f) of the Election Regulations, in deciding that hecould not hear the testimony of other witnesses, including Mr. Houle, regarding the bribery allegations, when the Trindles were notavailable. Mr. Houle submits that the Arbitrator should have allowed the hearsay evidence as the test for doing so was met in thesecircumstances (R v Smith, (SCC), [1992] 2 SCR 915, pp 932-4 [Smith]). The Respondent’s Position [90] The Respondent submits the Arbitrator’s

interpretation of ss 16.1, 16.2, 16.5, 16.6 and 16.7 of the Election Regulations in notpermitting additional witnesses or new allegations to be made at the hearing and not allowing hearsay evidence was reasonable andcorrect and that the Arbitrator did not breach the rules of procedural fairness or natural justice. Referring to the case cited by theApplicants, Sparvier, the Respondent points out that the most basic requirements of natural justice are that of notice, opportunity to makerepresentations and an unbiased tribunal, all of which were provided by the Arbitrator.

The Respondent takes the position that, given thestatutory election/governance regime established by the Election Regulations, more was not required. [91] The Respondent submits that the mandatory language of s 16.2, the specified powers of the Arbitrator found in ss 16.5 and16.8, and the express restriction of the Arbitrator to those powers as found in ss 16.5 and 16.8 of the Election Regulations means that theArbitrator had no power to extend the 5-day limitation either directly or indirectly (Kehewin Cree Nation v Mulvey, 2013 ABCA 294 atparas 4, 9-11). [92] The Respondent also submits that the proposed hearsay evidence did not fall within the parameters for the admissibility ofhearsay evidence laid down in the Smith case, as neither the necessity nor reliability components of the test were met.

Therefore, it wasreasonable and correct for the Arbitrator not to hear Mr. Houle’s hearsay evidence. Analysis [93] The following provisions of the Election Regulations are relevant to this issue: 16.2 Notice of Appeal (

a) A Notice of Appeal in writing and signed by the Appellant shall be forwarded to the Electoral Officer outlining the grounds for theAppeal and with a cash deposit or certified cheque payable to the PTFN of One Hundred Dollars ($100.00) delivered to the ElectoralOfficer. The Notice of Appeal shall state: … (iv) the names of any witnesses the appellant intends to call or a statement that the appellant does not intend to call any witnesses; and, (

b) The Notice of Appeal must be received in the prescribed Form by the Electoral Officer within five (5) days of the Election Day. … (

d) The Electoral Officer shall reject and return any appeal documents that: (

i) are not received within 5 days of the Acclamation, Election, By-election, or Run-off Election as the case may be. (ii) are not received with the required filing fee; or (iii) do not contain all the information required by

section 16.2(a). … 16.5 Election Appeal Arbitrator Powers The Election Appeal Arbitrator has the following powers: (

a) To determine the time, place and date of the appeal hearing; (

b) To determine whether the appeal hearing is open to Members and who may or may not attend the appeal hearing; (

c) To determine questions or law arising in the course of the appeal hearing; (

d) To rule on any objections made in the appeal hearing; (

e) To order production of documents which are material and relevant to the appeal; (

f) To determine the procedure to be followed having regard for fairness and equality between the parties to the hearing; (

g) To determine the manner in which evidence is to be admitted; and (

h) The Arbitrator is not bound by rules of evidence and has the power to determine admissibility, relevance and weight of any evidence. 16.6 No Powers The Election Appeal Arbitrator does not have the power:

(

a) To subpoena any witness or compel any person to give evidence at an appeal hearing excepting that the Electoral Officer is acompellable witness; or (

b) To order any relief not specifically permitted by these Regulations. 16.7 These Regulations set out all the powers of the Election Appeal Arbitrator and neither the Arbitration Act of Alberta or theCommercial Arbitration Act of Canada or any other like legislation applies to the Election Appeal Arbitrator or to appeal hearings underthese Regulations. [94] In Sparvier, Justice Rothstein, then of this Court, found that principles of natural justice and procedural fairness apply to bandelection processes: [57] While I accept the importance of an autonomous process for electing band governments, in my opinion, minimum standards ofnatural justice or procedural fairness must be met.

I fully recognize that the political movement of Aboriginal People taking more controlover their lives should not be quickly interfered with by the courts. However, members of bands are individuals who, in my opinion, areentitled to due process and procedural fairness in procedures of tribunals that affect them.

To the extent that this court has jurisdiction,the principles of natural justice and procedural fairness are to be applied. [95] As pointed out by the Respondent, Justice Rothstein at paras 61 to 63 then went on to state that the basic requirementsapplicable to an appeal tribunal for a band election issue was an unbiased tribunal, notice, and the opportunity to make representations(also see Polson v Long Point First Nation, 2007 FC 983 at para 47). [96] As stated by the Supreme Court of Canada in Baker v Canada, (SCC), [1999] 2 SCR 817, the content of theduty of procedural fairness is to be determined in the specific context of each case (at para 21).

And, as stated by the Federal Court ofAppeal in Meeches v Meeches, 2013 FCA 177 [Meeches], referencing Mavi v Canada (Attorney General), 2011 SCC 30 (at para 38), thequestion in every case is “what the duty of procedural fairness may reasonably require of an authority in the way of specific proceduralrights in a particular legislative and administrative context”. [97] In this case, the Arbitrator was of the view that the Election Regulations are a complete code that set out mandatoryrequirements for valid appeal notices such as identifying grounds and supporting material facts and the names of witnesses that theappellant relies on.

He concluded that he had no power to accept additional witnesses to support Mr. Houle’s argument after the timelinefor the Notice of Appeal had expired. In his decision, he states that he made a similar ruling at the oral hearing on December 18, 2014when Mr. Houle sought to testify and provide hearsay evidence as to the allegations of bribery but was not listed as a witness and did notprovide a “will say” disclosure before the hearing.

The Arbitrator did not permit him to testify “in fairness to the Respondent and inrecognition that if heard, the weight of such hearsay evidence would be minimal”. [98] With respect to Mr. Houle’s submission that the 5 day appeal period is unreasonably short, it must be noted that this is thetimeframe stipulated by s 16.2(

b) of the Election Regulations which were adopted by the PTFN, it was not a time period imposed by theArbitrator. Mr. Houle has not challenged the validity of that provision. Further, the Election Regulations require the Election Officer toreject any appeal document not received within that period (s 16.5(d)(i)) and the Arbitrator does not have the power to order any reliefnot specifically permitted by the Election Regulations (s 16.6(b)). Accordingly, in my view, the Arbitrator did not have authority toamend the appeal period. [99] As to Mr. Houle’s reference to the procedural fairness requirement of adequate notice as described in Sparvier, in my view, itis of little a

[…]