MARY LINDA WHITFORD v. ALICIA MOOSOMIN, 2022 FC 436

Date: 20220330 Docket: T-474-20 Citation: 2022 FC 436 Ottawa, Ontario, March 30, 2022 PRESENT: The Hon Mr. Justice Henry S. Brown BETWEEN: MARY LINDA WHITFORD AND ALICIA MOOSOMIN Applicants and CLINTON WUTTUNEE, LUX BENSON, JASON CHAKITA, MANDY CUTHAND, DANA FALCON, HENRY GARDIPY, GARY NICTOINE, SAMUEL WUTTUNEE, SHAWN WUTTUNEE, BURKE RATTE, and RED PHEASANT FIRST NATION Respondents JUDGMENT AND REASONS Table of Contents I. Nature of the matter 4 A.

Summary of conclusions,

definitions, and note re references to the records 5

(1) Summary of mail-in ballot procedures and conclusions 5

(2) A note on references 8

(3) Needs of band members for financial support and Band Member Assistance [BMA] 9 II. Facts 10 A. Statutory Regime 10 B. Background facts 11

(1) March 20, 2020 Election Results 13

(2) Procedural background and Justice Aylen’s Order dated August 30, 2021 15 III. Issues 25 IV. The Law 26 A. Relevant provisions of the First Nations Elections Act, SC 2014, c 5 [FNEA] 26 B. Relevant provisions of the First Nations Elections Regulations, SOR/2015-86 [FNER] 28 C. Jurisprudence 33

(1) In

Summary 43

(2) Change in the Respondents’ position in oral argument 46

(3) Determination of the Respondents’ objections to tabs in the Applicant’s Record 53 (

a) Re Tabs 86 – 251: Exhibits put to witnesses being cross-examined without advance notice or ruling on admissibility 54 (

b) Re Tabs 252 – 260: Admissibility of Mr Ratte’s Reply to Undertakings of May 18, 2021, Tabs 252 – 260 58 (

i) Mr Ratte’s Affidavit of July 23, 2021 70 (ii) Direction to produce May 18, 2021 RTU for examination 75 V. Analysis 77 A. Outline of facts 77

(1) The team of candidates and supporters 78

(2) Those who engaged in serious electoral fraud 79

(3) Requesting Mail-in Ballots for others 79

(4) Leroy Nicotine Jr. 80

(5) Driving voters to the polls 82

(6) Shelley Wuttunee 82

(7) Assistance with Voter Declaration forms, non-compliance with subsection 5(6) of FNER (witness attestation to elector’s choice of candidate where assistance given) 83

(8) Red Pheasant employees 84

(9) Election result generally 85

(10) Many Request for Mail-in Ballots 86 B. Role of Mr Ratte and his email exchange with Indigenous Services Canada regarding Requests for Mail-in Ballots 87

(1) Naming Mr Ratte and his role in this contestation 87

(2) Allowing First Nation members to distribute Request for Mail-in Ballot forms to other members 88 C. Ballot-by-ballot review of alleged FNEA and or FNER contraventions and or serious electoral fraud 90

(1) Robin Dean Wuttunee 91 (

a) Admissibility of transcripts and CD copies of Robin Wuttunee’s phone calls from ERC to Councillor Samuel Wuttunee and Councillor Jason Chakita 93 (

b) Exchange of lists between Chief Wuttunee and Mr Ratte of electors with whose requests for Mail-in Ballots were accepted or not 105 (

c) Falsification of elector identification documents (ID) 115

(2) Rickell Frenchman and Romellow Meechance 130

(3) Breanna Wahobin and Jerette Wahobin 143

(4) Michael Ernest Stevens and Ardella Benson 148

(5) Arnold Bruce Wuttunee 150

(6) Tomas Pritchard 155

(7) Dion Bugler 160

(8) Paul Tobaccojuice 166

(9) Wendall John Albert 175

(10) Veronica Whitford 179

(11) Wesley Wuttunee 186

(12) Burton Ward 190

(13) Voter Declaration and mail-in ballots where elector voted in person 193 D.

Summary of conclusions regarding Respondents and named supporters 198

(1) Chief Clinton Wuttunee 198

(2) Councillor Gary Nicotine 203

(3) Councillor Lux Benson 204

(4) Councillor Jason Chakita 205

(5) Councillor Mandy Cuthand 205

(6) Councillor Dana Falcon 206

(7) Councillor Henry Gardipy 206

(8) Councillor Samuel Wuttunee 207

(9) Councillor Shawn Wuttunee 207

(10) Leroy Nicotine Jr. 208

(11) Shelley Wuttunee 209

(12) Band employees Cody Benson (Band Manager), Austin Ahenakew (Chief Financial Officer) and Deloris Peyachew (Indian Registry Administrator) 209 VI. Conclusion 210 VII. Costs 210 I. Nature of the matter [ 1 ] This is an application pursuant to

section 31 of the First Nations Elections Act , SC 2014, c 5 [ FNEA ] contesting the validity of the March 20, 2020 Red Pheasant First Nation [Red Pheasant] elections for Chief and Councillors [Election].

Red Pheasant is an Indian Band within the meaning of the Indian Act , RSC 1985, c I-5 [ Indian Act ]. [ 2 ] The Respondent Burke Ratte [Mr Ratte] was this First Nation’s Electoral Officer and is named only to facilitate discovery and source documents. [ 3 ] The Respondent Red Pheasant is named for the limited purpose of a potential cost award against it in relation to these proceedings. [ 4 ] The other Respondents are the successful Chief and Councillors in the Election, who I will henceforth refer to as the Respondents, given the limited roles of Mr Ratte and Red Pheasant. [ 5 ] The Applicants Mary Linda Whitford and Alicia Moosomin are electors and members of Red Pheasant. [ 6 ] The Applicants allege the Respondents and others acting on their behalf engaged in various forms of serious electoral fraud in the Election.

The Applicants seek 1) an Order setting aside the elections of the Chief and all 8 Councillors of Red Pheasant, pursuant to sections 31 and 35 of the FNEA and 2) costs on a solicitor and client basis jointly and severally against the Respondents and Red Pheasant. [ 7 ] The Respondents oppose the contestation and ask that it be dismissed with costs on a solicitor client basis.

I agreed to entertain cost submissions after a decision on the merits because at that time Red Pheasant will require separate legal representation on the issue of costs. [ 8 ] Mr Ratte asked that the application be dismissed and proposed an all-inclusive cost award of $20,000.00 if he is successful. [ 9 ] Red Pheasant did not make cost submissions. The Court was told at the hearing that Red Pheasant is now separately represented for the purpose of making cost submissions after the release of this decision on the merits. A.

Summary of conclusions,

definitions, and note re references to the records

(1) Summary of mail-in ballot procedures and conclusions [ 10 ] The Applicants seek to set aside the elections of the Chief and all 8 Councillors of the Red Pheasant First Nation under FNEA and or FNER as construed and applied in jurisprudence. FNEA permits [ " “may” " ] this Court to set aside such elections where two conditions are met: 1) a provision of FNEA is contravened (per

section 31), and 2) the contravention is likely to have affected the result of the election (per subsection 35(1) ). The " “magic number” " test is used in the second part, and asks if the number of rejected votes is equal to or greater than the successful candidate's margin of victory ( Opitz v Wrzesnewskyj , 2012 SCC 55 [ Opitz ] at para 73 ). [ 11 ] To protect the integrity of FNEA elections this Court (and the Superior Courts) may also annul FNEA election results where the integrity of the election was corrupted by serious electoral fraud ( Papequash v Brass , 2018 FC 325 [ Papequash FC ] at para 36 ).

In this respect, jurisprudence establishes that attempts by electoral candidates or their agents to purchase the votes of constituents are an insidious practice that corrodes and undermines the integrity of any electoral process ( Papequash FC at 38).

Put another way, in Gadwa v Kehewin First Nation , 2016 FC 597 [ Gadwa ] at para 88 , a candidate who engages in vote buying is attempting to corrupt the election process. [ 12 ] Therefore, regardless of the number of votes a candidate purchased, or attempted to purchase, and regardless of whether the candidate wins the election by a greater margin than the number of votes that were purchased (i.e. less than the magic number), this may not save the candidate; in the Court’s discretion, his or her election may and in some cases must be vitiated.

This is the case because fraud, corruption and illegal election practices are serious ( Opitz at para 43, Gadwa at para 88). [ 13 ] The central and principle issue in this case is whether and to what extent any of the Respondents were involved in vote buying. If they were, they were involved in serious electoral fraud for which reason their election may be annulled regardless of the number of votes obtained. Vote buying and selling are also contraventions of subsections 16(

f) and 17(

b) respectively of FNEA .

[ 14 ] The vote buying in this case almost entirely related to Mail-in Ballots. The vote buying took place in relation to two steps involved in obtaining and sending back a Mail-in Ballot. The first step in the Mail-in Ballot process is for an elector to send to the Elections Officer a Request for Mail-in Ballot per

section 15 of FNER in prescribed form (5-D), together with a copy of the elector’s ID and his or her address. Notably, a Request for Mail-in Ballot may be sent to the Electoral Officer electronically, that is by photo text message (a text message accompanied by an electronic photograph of the Request for Mail-in Ballot form), in addition to being sent by mail or by hand. [ 15 ] If the request is accepted the second step entails the Electoral Officer mailing the elector, at the address given, a package containing a Mail-in Ballot and a Voter Declaration form.

Upon receipt, of the package, the elector marks the Mail-in Ballot, puts it into a sealed envelope, and mails or delivers it to the Electoral Officer in a package which must also contain a Voter Declaration form duly signed by the elector and witnessed per subsection 17(1) of FNER .

Notably, while an elector may ask for the assistance of another person to mark their ballot, in that case the Voter Declaration form must not only be signed by a witness who attests the elector is the person whose name is set out in the form, but which also attests that the ballot was marked in the manner directed by the elector ( subsection 5(6) of FNER ). [ 16 ] While the Applicants established a number of contraventions of FNEA , in my view none of the contraventions are likely to have affected the result of the Election in that none triggered the magic number per Opitz .

That is, in no case was the difference between the successful candidate’s vote equal to or greater than the successful candidate's margin of victory. [ 17 ] However, I am satisfied on a balance of probabilities that several of the Respondent candidates engaged in serious electoral fraud namely vote buying and related activities, such that the integrity of their elections were corrupted. In the result, in the exercise of the Court’s discretion, the elections of the Respondents Chief Clinton Wuttunee and Councillor Gary Nicotine will be annulled regardless of the number of votes they obtained.

I also find on a balance of probabilities that Councillors Lux Benson, Jason Chakita, Mandy Cuthand, Henry Gardipy, Samuel Wuttunee, and Shawn Wuttunee engaged in serious electoral fraud, but on a lesser scale, such that their elections might be, but in my discretion are not annulled. In addition I find on a balance of probabilities that supporters Leroy Nicotine Jr. and Shelley Wuttunee engaged in multiple instances of serious electoral fraud, in respect of which the FNEA gives this Court no remedy to impose.

(2) A note on references [ 18 ] The material filed in this contestation totalled 7,565 pages including authorities. Where I refer to the specific record, I use the shorthand AR to mean Applicants’ Record, and RR for Respondents’ Record. Because the records are filed in PDF format, the page numbers on the hard copy do not match the PDF page number used in the PDF search bar at the bottom of the screen. Therefore I have provided both, the first is the reference to the hard copy page number, and the second refers to the PDF search bar.

(3) Needs of band members for financial support and Band Member Assistance [BMA] [ 19 ] A defence frequently raised by the Respondents is that band members of this First Nation require assistance throughout the year, and their needs did not stop during the Election. The Chief and Councillors therefore should not be faulted for giving money to First Nation members during the Election, provided it seems such assistance is provided as a coincidence and did not entail the purchase of votes. In this connection there is evidence First Nations received only $255 a month from Red Pheasant, and many needed far more.

It was said the calls came in to the Chief and Councillors every day and in some cases all day long. [ 20 ] I do not doubt the needs of these First Nation members arise throughout the year. However Red Pheasant has a procedure in place by which members in need may be paid Band Member Assistance [BMA] with the authority of the Chief and a Councillor, which requests are dealt with on a less formal basis without Council meetings.

That said, in fact and as Chief Wuttunee and Chief Financial Officer Austin Ahenakew both testified, there are special forms to be completed before BMA would be paid. [ 21 ] Thus I conclude this First Nation has records of legitimate BMA payments. It is also apparent the required forms should be kept for audit purposes.

I see no reason why such records would not be kept for BMA payments made during an election period. [ 22 ] I endorse what my colleague Justice McVeigh observed in Good v Canada (Attorney General), 2018 FC 1199 [ Good ] which involved this same First Nation: [295] This leads me to make an unrequested observation that the Respondents have put themselves in situations that bring their actions into question by giving money during election campaigns to individuals that request it when they are in times of need.

While I recognize that members of the band will still need support during an election-period, many solutions exist. For example a moratorium on candidates giving out financial help during elections could be supplemented by having a separate fund and an independent person to administer the provision of cash for these emergencies. II. Facts A. Statutory Regime [ 23 ] This contestation is brought under the FNEA , which came into force in April of 2015 along with the associated First Nations Elections Regulations , SOR/2015-86 [ FNER ],

section 31 of which requires the matter proceed by application. As summarized by Justice McVeigh Good , supra , " “the FNEA legislates a process for First Nations and Indigenous communities to elect their Band Council members. The process under the FNEA operates in parallel and in addition to other processes set out in section 74(1) of the Indian Act .” " [ 24 ] In order to fall under the FNEA , a First Nation such as Red Pheasant must opt in. To opt into the provisions, a Band Council Resolution in favour of elections governed by the FNEA must be passed by the First Nation and submitted to the Minister, who adds the

First Nations to the FNEA

Schedule if relevant criteria are met (see

section 3). As per Justice McVeigh in Good at para 16 , " “on November 5, 2015, the Red Pheasant First Nation Band Council signed a BCR in favour of opting into the FNEA . On January 4, 2016, after receiving the BCR, the Minister added the Red Pheasant First Nation to the FNEA Schedule.” " B. Background facts [ 25 ] Every recent election of the Red Pheasant First Nation has been appealed. The most recent previous appeal also involved the current chief, Chief Clinton Wuttunee [Chief Wuttunee], and was considered by this Court in Good , supra . There Ms.

Good applied for judicial review of the March 18, 2016 band election in which Chief Wuttunee was elected Chief. Justice McVeigh declined to set aside the 2016 election, finding " “[t]he Applicant has not discharged its burden to satisfactorily prove that the FNEA has been contravened and even if there was a contravention found in the evidence it is not likely to have affected the results of the 2016 election.” " Costs and disbursements in a lump sum of $100,000.00 were awarded to the respondents (Chief Wuttunee and Councillors Lux Benson, Mandy Cuthand, Dana Falcon, Henry Gardipy, and Shawn Wuttunee). Ms.

Good is not a party to the present application. [ 26 ] The case at bar concerns the election of Chief Wuttunee and eight Councillors on March 20, 2020.

The Applicants allege each of the Respondents together with and or their agents or persons acting on their behalf contravened the FNEA , the FNER and/or other applicable laws and engaged in electoral corruption, which contraventions include, but are not limited to, vote buying, forging Requests for Mail-In Ballots, paying electors to request their Mail-in Ballots, forging Mail-in Ballot Voter Declaration Forms and forging identity documents. [ 27 ] The agents or persons acting on behalf of the Respondents are not named as Respondents. However they are named in this proceeding and were served with it.

They appeared through the same counsel as the named Respondents.

They are alleged to include but are not limited to Shelley Wuttunee (wife of Councillor Shawn Wuttunee), Leroy Nicotine Jr., Cody Benson (Band Manager for Red Pheasant and son of Councillor Lux Benson), Austin Ahenakew (Chief Financial Officer for Red Pheasant) and Deloris Peyachew (Indian Registry Administrator for Red Pheasant). [ 28 ] As summarized by Justice Aylen as Case Management Judge (the Amended Notice of Application itself is 20 pages long; the Amended Notice of Motion was approved by Order of Prothonotary Molgat April 6, 2021) by Order dated August 30, 2021 [Tab 30 of the Applicant’s Record], the Applicants plead: A.

The Participants unlawfully possessed a large number of mail-in ballots (which were not their respective mail-in ballots) which they forged and thereafter filed with Mr. Ratte; B. Mr. Ratte was deceived by the Participants and others when he received forged documents and unknowingly accepted a large number of requests for mail-in ballots on behalf of other electors directly from the Participants by text message; C. Several persons attended polling stations and were permitted by Mr. Ratte to deposit several mail-in ballots, notwithstanding the limitation that an elector may only vote once; D. Mr.

Ratte was deceived by the Participants and others when he received forged documents and unknowingly mailed and delivered a large number of mail-in ballots to persons other than the electors in question; and E. Mr. Ratte has failed to deliver certified election results.

(1) March 20, 2020 Election Results [ 29 ] I accept the affidavit evidence of Electoral Officer Burke Ratte [Mr Ratte], dated August 27, 2020, that 1,869 eligible electors were registered to vote in the Election. [ 30 ] According to the " “Statement of Votes” " attached as Exhibit " “D” " to the same affidavit [RR 0317, PDF 0322], a total of 1084 ballots were cast for Chief with 6 rejected at the ballot box. Chief Wuttunee received 648 votes.

The runners-up were Todd Baptiste who received 424 votes, and Lester " “George” " Nicotine who received 6 votes. [ 31 ] 1084 ballots were cast for Councillors with 1 rejected. Votes obtained for Councillors were: • Councillor Henry Gardipy: 637 votes • Councillor Shawn Wuttunee: 634 votes • Councillor Lux Benson: 619 votes • Councillor Jason Chakita: 615 votes • Councillor Dana Falcon: 607 votes • Councillor Gary Nicotine: 599 votes • Councillor Samuel Wuttunee: 597 votes • Councillor Mandy Cuthand: 585 votes [ 32 ] The runners up were: • Angus (Peyachew) Donna: 252 votes

• Stewart Sr.

Baptiste: 238 votes • Keith (Tyson) Wuttunee: 234 votes • Kellie Wuttunee: 167 votes • Chuckie Harriet Nicotine: 159 votes • Dickie Lee Baptiste-Bull: 149 votes • Alvin Leroy Nicotine: 145 votes • Charlotte Benson: 142 votes • Charles Meechance: 139 votes • Sabrina Theresa Peyachew (Baptiste): 139 votes • Alvin Baptiste: 126 votes • Michael (Mike) Wuttunee: 126 votes • Glen (Peanut) Bugler: 102 votes • Gerald Meechance: 96 votes • Edgar Baptiste: 77 votes • Carolyn Rose Kiskotagan: 75 votes • Elvin Fredrick Nicotine: 74 votes • Langford Douglas Wuttunee: 72 votes • Margaret (Bepee) Nicotine (Benson): 69 votes • Ida Wuttunee: 68 votes • Jacob Moosomin/Moosuk: 68 votes • Dennis Russel Nicotine: 64 votes • Lynale Benson: 60 votes • Deanna Bugler Arcand: 55 votes • Rudy W.

Wuttunee: 52 votes • Andrea Nicotine: 27 votes • Ellen Cuthand: 17 votes • Trevor (Topdog) Cuthand: 11 votes [ 33 ] As deposed by Mr Ratte at paras 9-12 [RR 0177-0180, PDF 0182-0185], a total of 748 Request for Mail-in Ballots were received and accepted. 684 Mail-in Ballot packages were received by the Electoral Officer of which 32 were rejected. [ 34 ] Mr Ratte’s Reply to Undertakings dated May 18, 2021 [ " “May 18, 2021 RTU” " ] reveal the following individuals submitted Requests for Mail-in Ballots to Mr Ratte by photo text message: 1. Chief Wuttunee submitted 521 [AR Tab 253] 2.

Councillor Gary Nicotine submitted 164 [AR Tab 254] 3. Councillor Shawn Wuttunee submitted 24 [AR Tab 255] 4. Councillor Dana Falcon submitted 18 [AR 256] 5. Councillor Henry Gardipy submitted 25 [AR Tab 257] 6. Councillor Mandy Cuthand submitted 49 [AR Tab 258] 7. Councillor Samuel Wuttunee submitted 31 [AR Tab 259] 8. Band Manager Cody Benson submitted 22 [AR Tab 260]

[ 35 ] Parenthetically, the Respondents objected to Mr Ratte’s May 18, 2021 RTU forming part of the evidence, however as discussed below, I find no merit in that objection.

(2) Procedural background and Justice Aylen’s Order dated August 30, 2021 [ 36 ] As with the election of 2018 considered by Justice McVeigh in Good , this case had extensive case management because the parties were unable or unwilling to work out many issues. The proceedings were marred by antagonism and refusals to co-operate. [ 37 ] The matter was originally case managed by Prothonotary Molgat. As it moved closer to a hearing, it became case managed by Justice Aylen.

Justice Aylen heard a number of motions – including motions brought by both sides to strike all affidavits filed by the other – resulting in Justice Aylen’s August 30, 2021 Order. [ 38 ] Justice Aylen criticized the conduct of this litigation: [2] With the exception of the Respondent, Mr Ratte, and his counsel, the conduct of the parties and their counsel throughout this proceeding has left much to be desired.

Over the last 16 months, the parties and their counsel were repeatedly warned by the previous Case Management Judge and then by me (following my appointment in June 2021) that their behaviour to date has shown a shocking disregard for the principle of proportionality, as well as an unacceptable unwillingness or inability to communicate or otherwise cooperate in advancing the proceeding in an efficient manner. [ 39 ] Justice Aylen’s Order dated August 30, 2021, dealt with six motions.

Materially for these purposes Justice Aylen Ordered as follows; my comments follow where required. [ 40 ] Regarding the FIRST MOTION, Justice Aylen Ordered: 1. The Applicants’ motion for an order that Mr. Stooshinoff and the firm of Stooshinoff Bitzer be removed as counsel of record and disqualified from acting for any of the parties is dismissed, without prejudice to the Applicants’ right to seek similar relief in relation to the cost phase of the application. [ Court Comment : This is one of the reasons costs will be determined after this Decision is released.

The Applicants have appealed this part of the Order to the Federal Court of Appeal.] 2. The Applicants shall pay to the Respondents, Clinton Wuttunee, Lux Benson, Jason Chakita, Mandy Cuthand, Dana Falcon, Henry Gardipy, Gary Nicotine, Samuel Wuttunee, Shawn Wuttunee and the Red Pheasant First Nation, their costs of the motion to remove Mr. Stooshinoff as counsel of record, with the quantum of costs to be fixed by the hearings judge. [Emphasis added] [ Court Comment : These costs will be determined after this Decision is released.

The Applicants have appealed this part of the Order to the Federal Court of Appeal; a decision is reserved.] [ 41 ] Regarding the SECOND MOTION, Justice Aylen Ordered: 8. The affidavit of John Benson sworn August 27, 2020 is hereby struck. [ Court Comment : The Affidavit was struck because of improper conduct by Respondents’ counsel Mr. Stooshinoff during Mr Benson’s cross examination including as found Justice Aylen: “John Benson repeatedly turns his back to the Court Reporter (while on video) despite repeated requests to turn around so that his face could be seen”, and “Mr.

Stooshinoff not only encouraged this behaviour, but engaged in repeated private conversations with the witness during his cross- examination, even after such conversations were repeatedly objected to by counsel for the Applicants.” Therefore, Justice Aylen was satisfied that “this misconduct has had the effect of frustrating the cross-examination of John Benson and demonstrates a complete disregard for this proceeding.”] 9. The balance of the Applicants’ motion to strike the affidavits relied upon by the Respondents is dismissed. 10.

The Applicants’ request for an order compelling the Respondents [including Mr Ratte, ed.] to answer all questions refused from the cross-examinations of the Respondents’ affiants is dismissed, without prejudice to the right of the Applicants to ask the hearings judge to draw an adverse inference from the affiants’ refusals to answer the questions. [Emphasis added] [ Court Comment : I have drawn many adverse inferences where appropriate from refusals to answer relevant questions on cross-examination.] 11.

The Applicants’ request for an order compelling the Respondents to answer all undertakings given at the cross- examinations of the Respondents’ affiants is dismissed. 12. The Applicants’ request for an order compelling the Respondents’ affiants to attend for further cross-examination is dismissed. [ Court Comment : The Applicants have appealed parts 9, 10, 11 and 12 of this Order to the Federal Court of Appeal. A decision of the Federal Court of Appeal is reserved.] [ 42 ] Regarding the THIRD MOTION, Justice Aylen Ordered:

14. The Applicants are granted leave, pursuant to Rule 312, to file the affidavit of Tomas Pritchard sworn February 8, 2021. 15. The Respondents shall serve, and file proof of service of, any additional affidavit(

s) to respond to the affidavit of Mr. Pritchard by no later than September 13, 2021. 16. The parties shall be afforded an opportunity to conduct cross-examinations in relation to the affidavit of Mr. Pritchard and any other affidavit(

s) served by the Respondents in response thereto. The parties shall complete any such cross- examinations by no later than October 4, 2021. In relation to such cross-examinations: (

a) The party tendering the affiant shall accept service of any Direction to Attend and attendance money. (

b) Any dispute regarding a request for production in a Direction to Attend shall be raised with the Court forthwith and shall be addressed by the Court in advance of the cross-examination at issue, by way of informal motion to be heard at a case management conference. (

c) The parties shall cooperate in the scheduling of the cross-examinations. Should the Court find that any party has failed to do so, the Court will impose cost sanctions against such party and their counsel, if appropriate. (

d) The parties shall confirm the cross-examination

schedule with the Court by no later than September 24, 2021. If the parties are unable to agree on a

schedule for the cross-examinations, they shall so advise the Court by no later than September 24, 2021 and at that time provide the Court with their respective proposed schedules and the Court will unilaterally impose a

schedule based on the proposed schedules of the parties. 17. There shall be no award of costs in relation to the Rule 312 motion. [ Court Comment : The Applicants appealed para 17 of this Order to the Federal Court of Appeal. The Respondents seek a variance so that CDs of certain telephone conversations by Robin Wuttunee from prison are not allowed in evidence. I deal with this issue in these Reasons. The Respondents also asked for a stay of this hearing but no stay was granted. A decision of the Federal Court of Appeal is reserved.] [ 43 ] Regarding the FOURTH MOTION, Justice Aylen Ordered: 3.

The Respondents’ motion for relief pursuant to Rule 94(2) in relation to the Direction to Attend dated June 9, 2020 and served on Clinton Wuttunee is dismissed as moot. Costs of the motion shall be payable in the cause. [ 44 ] Regarding the FIFTH MOTION, Justice Aylen dealt with requests by the Respondents to be relieved of their obligation to produce certain documents. Justice Aylen agreed to reduce the number of documents, however she ordered the Respondents affected to produce a narrower range of documents: 4.

The Respondents’ motion for an order pursuant to Rule 94(2) that the Respondents’ affiants, Clinton R. Wuttunee, Dana Falcon, Gary Nicotine, Henry Gardipy, Jason Chakita, John Benson, Lux Benson, Mandy Cuthand, Samuel Wuttunee, Shawn Wuttunee, Austin Akenakew, Cody Benson and Shelly Wuttunee, be relieved from the production of documents sought by the Applicants in their Directions to Attend dated September 4, 2020 and all subsequent Directions to Attend served by the Applicants is granted, with the exception of the following requests for production: (

a) In relation to the Directions to Attend served on Clinton Wuttunee: (

i) All emails, letters, text messages, Facebook messages, or other correspondence between January 1 and March 20, 2020 in his possession, power or control that include Burke Ratte. (ii) All emails, letters, text messages, Facebook messages, or other correspondence between January 1 and March 20, 2020 in his possession, power or control that include Robin Wuttunee or anyone on his behalf, or that relate or refer to Robin Wuttunee. (iii) All communications that he had with the family of Arnold Bruce Wuttunee referred to at paragraph 16 of his affidavit. (iv) All documents referring or relating to him looking into the matter for Robin Dean Wuttunee and being advised that he was not eligible to vote, as referred to at paragraph 26 of his affidavit. (

v) All emails, letters, text messages, Facebook messages, or other correspondence between January 1 and March 20, 2020 in his possession, power or control that include, or that relate or refer to, Patricia Bird. (

b) In relation to the Directions to Attend served on Austin Ahenakew: (

i) The “directive” referred to at paragraph 15 of his affidavit and documents referring or relating to same. (

c) In relation to the Directions to Attend served on Henry Gardipy: (

i) With reference to paragraph 5 of his affidavit, all documents referring or related to the request made by Michael Earnest Stevens that Mr. Gardipy assist him with his D-5 request for a mail-in ballot. (

d) In relation to the Directions to Attend served on Cody Benson: (

i) All documents referring or relating to the decision to grant a Band Member Assistance payment of $400 to

Heather Meechance referred to at paragraph 13 of his affidavit, and all documentation referring or relating to the payment of same to Heather Meechance. (

e) In relation to the Directions to Attend served on Gary Nicotine: (

i) All emails, letters, text messages, Facebook messages or other correspondence requesting financial assistance that he received from Heather Meechance regarding her request for “help to buy groceries” and his response referred to at paragraph 16 of his affidavit. (ii) All documents requesting or relating to the decision to grant a Band Member Assistance payment of $400 to Heather Meechance referred to at paragraph 16 of his affidavit, and all documentation referring or relating to the payment of same to Heather Meechance. (

f) In relation to the Directions to Attend served on Jason Chakita: (

i) All emails, letters, text messages, Facebook messages or other correspondence between January 1 and March 20, 2020 between him and Robin Dean Wuttunee or anyone on his behalf. 5. The documents ordered to be produced in paragraph 4 shall be provided to the Applicants by no later than September 13, 2021. 6.

The Applicants shall pay to the Respondents their costs of the Rule 94(2) motion referenced in paragraph 4 in the amount of $10,000.00, inclusive of fees, disbursements and taxes. [ Court Comment : The Applicants appealed parts 4 and 6 of this Order to the Federal Court of Appeal; its decision is reserved.] [ 45 ] Regarding the SIXTH MOTION, Justice Aylen Ordered: 7. The Respondents’ motion to strike the affidavits relied upon by the Applicants is dismissed. 13.

The costs of the two motions to strike the affidavits shall be determined by the hearings judge . [Emphasis added] [ Court Comment : I will determine costs regarding both motions after the release of this Decision.] [ 46 ] The Applicants appealed the Order of Justice Aylen to the Federal Court of Appeal on September 8, 2021. The Respondents moved to vary. The appeal book is filed. Both the Applicants and Respondents have filed their Memoranda. The appeal was set down for a hearing on March 15, 2022.

Judgment is reserved. [ 47 ] I will decide the issues before me as they stand and given the various Orders of Justice Aylen. [ 48 ] Both parties made submissions in response to the particulars set out in the August 30, 2021 Order of Justice Aylen, exchanged multiple letters but continued to disagree. In the result Justice Aylen made further Orders dated September 28 and October 8, 2021: 1. The cross-examination of Mr. Pritchard by the Respondents (other than Mr. Ratte) shall proceed on September 30, 2021 at 9:00 a.m. (Saskatchewan time) by Zoom video-conference.

Counsel for the Applicants shall make themselves or someone from their office available to attend. 2. The cross-examination of Mr. Ratte by the Applicants shall proceed on October 4 , 2021. 3. The cross-examinations of Leroy Nicotine Jr., Clinton Wutunee and Marie Adam by the Applicants shall proceed all on October 2, 2021. In the event that the parties are unable to agree on an in-person venue for the cross-examinations, they shall proceed by Zoom [ 49 ] In her

preamble to the September 28, 2021 Order, Justice Aylen reserved the following to the hearings judge, i.e., to this Court: CONSIDERING that the Court will not entertain the Applicants’ request for the issuance of an order requiring Mr. Pritchard to attend for cross-examination. A Direction to Attend has been served for Mr. Pritchard’s cross-examination and he is required to attend, failing which the Respondents may make submissions before the hearings judge as to whether his evidence should be struck ; CONSIDERING that the admissibility of the answers to undertakings of Mr.

Ratte will be a matter for the parties to address before the hearings judge ; CONSIDERING that, based on the submissions of the Applicants, the Court will not compel the production of an unredacted version of the document produced by Austin Ahenakew in furtherance of paragraph 4(b)(

i) of the Order. The Applicants may make whatever submissions they deem appropriate before the hearings judge regarding any alleged improper redactions; CONSIDERING that the issue of whether the affidavits served by the Respondents in response to the affidavit of Mr. Pritchard constitute proper responding evidence as contemplated by the Order is a matter to be addressed before the hearings judge ;

[Emphasis added] [ Court Comment : Where applicable these Reasons deal with these matters. The first matter is not relevant because Mr Pritchard attended. I deal with the second issue namely Mr Ratte’s May 18, 2021 RTU in these Reasons.] [ 50 ] On October 8, 2021, Justice Aylen further Ordered: 1. The Respondents’ motion is granted and Mr. Nicotine Jr. is relieved from the request for production nos. 5 and 6 as sought by the Applicants in their Direction to Attend dated September 24, 2021. 2. The Applicants shall forthwith pay to the Respondents (other than Mr.

Ratte) their costs of this motion fixed in the amount of $1,500.00. [ 51 ] The Applicants appealed the Order dated October 8, 2021 to the Federal Court of Appeal on October 18, 2021. An appeal book has not been filed and the appeal is not yet set down for a hearing. [ 52 ] For completeness, I note three other matters. [ 53 ] First, two business days before the start of the hearing before me on January 11 and 12, 2022, the Applicants moved to file an affidavit commissioned in October 2021.

I dismissed this motion because the three-month delay was not explained, with the following endorsement: The Applicant conducted cross-examination of Mr. Nicotine Jr. on October 12, 2021, and on January 5, 2022 moved for leave to file an affidavit dated October 13, 2021. Today is January 6, 2022. An unexplained delay of almost three months is not readily excused. It puts the Respondent in a difficult position although the Respondent had notice of the subject affidavit for some time. However the Court has not, the matter is set to be argued in two business days, i.e., tomorrow Friday, and Monday next week.

The hearing is scheduled to start Tuesday January 11, 2022. The Court has the evidence of Mr. Nicotine Jr. and his cross-examination which of course may be addressed by counsel at the hearing. The Motion is dismissed with costs in the cause. [ 54 ] Second, a day or so after the hearing, counsel for the Respondents, ex parte (without serving Applicants’ counsel), electronically filed a document uncomplimentary to Applicants’ counsel (without any explanation; it was already in its Record) along with its Memorandum in Word (which I had requested).

I ordered the document removed from the Court file (although it remains in the Record) because there was no explanation for the ex parte filing except its uncomplimentary nature. Respondents’ counsel subsequently delivered a written apology. [ 55 ] Thirdly, before the hearing I issued a Direction with specific e-formatting requirements for any compendia the parties wished to file. A compendium from each party is in my view a practical necessity, although not one in the Rules, in a large record file like this.

Regrettably, Registry staff failed to send the Direction to the Applicants or Respondents, only to Mr Ratte. My direction was resent during the hearing. The Applicants managed to file a hyperlinked Compendium. At the end of their submissions, the Applicants asked if the Court would appreciate a thematically arranged compendium in both electronic and hard copy and I agreed; these were subsequently delivered. The Respondents did not file a compendium at the hearing.

At the end of the hearing they requested leave to file a compendium, to which I agreed, again because of the size of the record (approximately 7,565 pages with authorities). [ 56 ] However, the Respondents’ material did not comply with my Direction: it contained both new argument and new material. In addition, while the Direction permitted a two page

summary of argument, the Respondents filed four pages single spaced, i.e., contrary to both Rule 65 and the Direction, effectively three times longer than permitted. This resulted in a justified objection by the Applicants. I issued a further Direction permitting refiling - but only if accompanied by a certification of compliance by Respondents’ counsel, which was subsequently delivered. The Respondents submitted that I had allowed the Applicants a noncompliant submission. I declined to engage in further post-hearing back and forth. III. Issues [ 57 ] The Applicants submit the issues are: 1 .

How should this Honourable Court determine the facts? 2 . Was the FNEA or the FNER contravened? 3 . Should the Election be set aside? 4 . What costs if any should be awarded to the successful party? [ 58 ] The Respondents submit the issues are: 1 . Was the FNEA or the FNER contravened? 2 . Should the Election be set aside? [ 59 ] In my respectful view the issues are twofold: 1 . Have the Applicants discharged their burden to prove the FNEA and or FNER were contravened and if so, is it likely to have affected the result of the Election?

2 .

Was the Election corrupted by serious elector fraud such that the integrity of the electoral process is in question and an annulment justified regardless of the proven number of invalid votes, as in the case when there is serious reason to believe that the results would have been different but for the fraud, or when an electoral candidate or agent is directly involved in the fraud: Papequash v Brass , 2018 FC 325 [Barnes J] at paras 34-36 , McEwing v Canada (Attorney General) , 2013 FC 525 [Mosley J] at paras 81-82 , Gadwa v Kehewin First Nation , 2016 FC 597 [Strickland J] at para 88 . [ 60 ] That said, while the Applicants have established that FNEA was contravened, in no instances was the contravention likely to have affected the result of the Election.

Therefore the answer to question 1 is " “No” " . Only the second question remains to be determined and is the focus of these Reasons. IV. The Law A. Relevant provisions of the First Nations Elections Act , SC 2014, c 5 [ FNEA ] [ 61 ] Sections 30, 31 and 35 of the FNEA provides for the contestation of an election: Means of contestation " " Mode de contestation " " 30 The validity of the election of the chief or a councillor of a participating First Nation may be contested only in accordance with sections 31 to 35.

" " 30 La validité de l’élection du chef ou d’un conseiller d’une première nation participante ne peut être contestée que sous le régime des articles 31 à 35.

" " Contestation of election " " Contestation " " 31 An elector of a participating First Nation may, by application to a competent court, contest the election of the chief or a councillor of that First Nation on the ground that a contravention of a provision of this Act or the regulations is likely to have affected the result. 31 Tout électeur d’une première nation participante peut, par requête, contester devant le tribunal compétent l’élection du chef ou d’un conseiller de cette première nation pour le motif qu’une contravention à l’une des dispositions de la présente loi ou des règlements a vraisemblablement influé sur le résultat de l’élection.

" " … … " " Court may set aside election Décision du tribunal " " 35

(1) After hearing the application, the court may , if the ground referred to in

section 31 is established, set aside the contested election . 35

(1) Au terme de l’audition, le tribunal peut , si le motif visé à l’article 31 est établi, invalider l’élection contestée. " " [Emphasis added] [Je souligne] " " [ 62 ] Sections 16 and 17 of the FNEA set out " “prohibitions” " , that is, activities which constitute " “contravention” " of FNEA, although I note there are other provisions in FNEA that might be contravened: Prohibition — any person " " Interdictions générales " " 16 A person must not, in connection with an election, " " 16 Nul ne peut, relativement à une élection: " " (

a) vote or attempt to vote knowing that they are not entitled to vote; " "

a) voter ou tenter de voter sachant qu’il est inhabile à voter; " " (

b) attempt to influence another person to vote knowing that the other person is not entitled to do so; " "

b) inciter une autre personne à voter sachant que celle-ci est inhabile à voter; " " (

c) knowingly use a forged ballot;

c) faire sciemment usage d’un faux bulletin de vote; " "

(

d) put a ballot into a ballot box knowing that they are not authorized to do so under the regulations;

d) déposer dans une urne un bulletin de vote sachant qu’il n’y est pas autorisé par règlement; " " (

e) by intimidation or duress, attempt to influence another person to vote or refrain from voting or to vote or refrain from voting for a particular candidate; or

e) par intimidation ou par la contrainte, inciter une autre personne à voter ou à s’abstenir de voter, ou encore à voter ou à s’abstenir de voter pour un candidat donné; " " (

f) offer money, goods, employment or other valuable consideration in an attempt to influence an elector to vote or refrain from voting or to vote or refrain from voting for a particular candidate.

f) offrir de l’argent, des biens, un emploi ou toute autre contrepartie valable en vue d’inciter un électeur à voter ou à s’abstenir de voter, ou encore à voter ou à s’abstenir de voter pour un candidat donné. " " Prohibition — elector Interdictions visant l’électeur " " 17 An elector must not, in connection with an election, 17 Nul électeur ne peut, relativement à une élection: " " (

a) intentionally vote more than once in respect of any given position of chief or councillor; or

a) voter intentionnellement plus d’une fois à l’égard de chacun des postes de chef ou de conseiller; " " (

b) accept or agree to accept money, goods, employment or other valuable consideration to vote or refrain from voting or to vote or refrain from voting for a particular candidate.

b) accepter ou convenir d’accepter de l’argent, des biens, un emploi ou toute autre contrepartie valable pour voter ou s’abstenir de voter, ou encore pour voter ou s’abstenir de voter pour un candidat donné. " " B. Relevant provisions of the First Nations Elections Regulations, SOR/2015-86 [FNER] [ 63 ] Sections 15 to 17 of the FNER allow electors to vote by Mail-in Ballot: Mail-in ballot " " Demande de bulletin de vote postal " " 15 An elector who wants to receive a mail-in ballot must make a written request to the electoral officer that includes a copy of their proof of identity.

" " 15 L’électeur qui désire obtenir un bulletin de vote postal présente au président d’élection une demande écrite accompagnée de la copie d’une preuve d’identité. " " Mail-in ballot package " " Trousse de vote postale " " 16

(1) No later than 30 days before the day on which the election is to be held, the electoral officer must mail to every elector who has made a written request a mail-in ballot package consisting of " " 16

(1) Au plus tard le trentième jour avant l’élection, le président d’élection envoie par la poste à l’électeur qui en a fait la demande écrite une trousse comprenant les éléments suivants: " " (

a) a ballot, initialed on the back by the electoral officer or deputy electoral officer; " "

a) un bulletin de vote portant au verso les initiales du président d’élection ou du président d’élection adjoint; " "

(

b) an outer return envelope that is pre-addressed to the electoral officer and, if the elector’s address is in Canada, is postage- paid;

b) une enveloppe-réponse adressée au président d’élection et, si l’adresse de l’électeur se trouve au Canada, affranchie; " " (

c) an inner envelope marked “Ballot” for insertion of the completed ballot;

c) une enveloppe intérieure portant la mention « bulletin de vote » dans laquelle doit être inséré le bulletin de vote rempli; " " (

d) a voter declaration form;

d) un formulaire de déclaration d’identité; " " (

e) instructions regarding voting by mail-in ballot;

e) les instructions relatives au vote par bulletin de vote postal; " " (

f) the notice set out in

section 14;

f) l’avis visé à l’article 14; " " (

g) a statement that the elector may vote in person at a polling station on the day of the election, or at an advance polling station if applicable, in lieu of voting by mail-in ballot, if

g) une mention indiquant que l’électeur peut, au lieu de voter par bulletin de vote postal, voter en personne à un bureau de vote le jour de l’élection ou à un bureau de vote par anticipation, le cas échéant, dans les cas suivants: " " (

i) they return the unused mail-in ballot to the electoral officer or deputy electoral officer, or (

i) il retourne son bulletin de vote postal inutilisé au président d’élection ou au président d’élection adjoint, " " (ii) they provide the electoral officer or deputy electoral officer with a sworn affidavit stating that they have lost their mail-in ballot; and (ii) il fournit au président d’élection ou au président d’élection adjoint une déclaration sous serment indiquant qu’il a perdu son bulletin de vote postal; " " (

h) a list of the names of any candidates who were elected by acclamation.

h) le cas échéant, une liste mentionnant le nom des candidats élus par acclamation. " " Six or more days before election Délai de reception " "

(2) If an elector makes a written request for a mail-in ballot six or more days before the day on which the election is to be held, the electoral officer must mail, or deliver at an agreed time and place, a mail-in ballot package to the elector as soon as feasible after receipt of the request.

(2) Si l’électeur soumet une demande écrite de bulletin de vote postal six jours ou plus avant la date de l’élection, le président d’élection lui envoie la trousse par la poste ou la lui remet à l’heure et au lieu convenus, et ce, dans les plus brefs délais après la réception de la demande. " " Voters list Registre " "

(3) The electoral officer must indicate on the voters list, next to the name of each elector to whom a mail-in ballot package was mailed or delivered, that a package has been provided to that elector and keep a record of the date on which, and the address to which, each package was mailed or delivered.

(3) Le président d’élection note, en regard du nom de l’électeur sur la liste des électeurs, qu’une trousse lui a été envoyée par la poste ou remise et tient un registre de l’adresse et de la date de l’envoi ou de la remise. " " … … " " Mail-in ballot Vote par la poste " " 17

(1) An elector may vote by mail-in ballot by 17

(1) L’électeur qui vote par bulletin de vote postal: " " (

a) marking the ballot with a cross, check mark or other mark that clearly indicates the elector’s choice, but does not identify the elector, next to the name of the candidates for whom they intend to vote;

a) marque son bulletin, en regard du nom des candidats pour qui il souhaite voter, en apposant une croix, un crochet ou toute autre marque qui indique clairement son choix mais ne permet pas de; " " (

b) folding the ballot in a manner that conceals the candidates’ names and any marks on the ballot without hiding the initials on the back;

b) plie le bulletin de manière à cacher le nom des candidats ainsi que toute marque sans toutefois cacher les initiales qui figurent au verso; " " (

c) placing the ballot in the inner envelope and sealing that envelope;

c) insère le bulletin dans l’enveloppe intérieure et cachette l’enveloppe; " " (

d) completing and signing the voter declaration form;

d) remplit et signe le formulaire de déclaration d’identité; " " (

e) placing the inner envelope and the completed voter declaration form in the outer envelope; and

e) insère l’enveloppe intérieure et le formulaire de déclaration d’identité rempli dans l’enveloppe-réponse; " " (

f) delivering or mailing the mail-in ballot package to the electoral officer or deputy electoral officer before the time at which the polls close.

f) avant la fermeture du scrutin, remet la trousse ou l’envoie par la poste au président d’élection ou au président d’élection adjoint. " " Assistance of another person Assistance " "

(2) If an elector is unable to vote in the manner set out in subsection (1), the elector may enlist the assistance of another person.

(2) L’électeur qui est incapable de voter de la manière prévue au paragraphe (1) peut demander l’assistance d’une personne. " " Voided mail-in ballot Nullité du bulletin de vote " "

(3) A mail-in ballot is void if the mail-in ballot package is not received by the electoral officer or deputy electoral officer before the time at which the polls close.

(3) Le bulletin de vote postal est nul si le président d’élection ou le président d’élection adjoint n’a pas reçu la trousse avant la fermeture du scrutin. " " [ 64 ] Importantly, subsection 5(6) of the FNER states that an elector who enlists the assistance of another with a Mail-in Ballot pursuant to subsection 17(2) of the FNER¸ must have a witness sign their Voter Declaration Form. Note that all Mail-in Ballots require a Voter Declaration form; the one provided by subsection 5(6) requires this extra safeguard: Witness " " Témoin " "

(5) A voter declaration form must contain the name, address, telephone number and signature of a witness who is at least 18 years of age and who attests to the fact that the person completing and signing the voter declaration form is the person whose name is set out in the form. " "

(5) Le formulaire de déclaration d’identité contient le nom, l’adresse, le numéro de téléphone et la signature d’un témoin âgé d’au moins dix-huit ans attestant que la personne qui a rempli et signé le formulaire de déclaration d’identité est celle dont le nom figure sur le formulaire. " " Witness Témoin d’une personne incapable

(6) The voter declaration form of the elector who enlisted the assistance of another person under subsection 17(2) must be signed by a witness that attests to the fact that the elector is the person whose name is set out in the form and that the ballot was marked in the manner directed by the elector. 5(6) Dans la cas d’une personne qui demande l’assistance d’une personne pour voter en vertu du paragraphe 17(2), la déclaration d’identité de l’électeur est signée par un témoin qui atteste que le bulletin de vote a été marqué selon les instructions de l’électeur et que cet électeur est celui dont le nom figure sur le formulaire. [Emphasis added] " " [Je souligne] " " C.

Jurisprudence [ 65 ] In their respective Memoranda, the parties generally agree on the governing law and referred to a number of cases including the leading case Papequash v Brass , 2018 FC 325 [ Papequash FC ] , per Justice Barnes. I say the leading case because the Federal Court of Appeal dismissed an appeal from Papequash FC appeal stating it " “correctly applied the jurisprudence” " . Therefore I set out the following from Papequash FC : XIV. The Law [32] The Applicants challenge the Key First Nation Band election held on October 1, 2016 under sections 31 and 35(1) of the First Nations Elections Act , above.

Those provisions authorize the Court to set aside a band election provided that there is satisfactory proof of the contravention of the Act or the regulations that is likely to have affected the election result. Included among the prohibitions listed in

section 16 of the Act is the following: 16 A person must not, in connection with an election, " " 16 Nul ne peut, relativement à une élection: (

a) vote or attempt to vote knowing that they are not entitled to vote; " "

a) voter ou tenter de voter sachant qu’il est inhabile à voter; (

b) attempt to influence another person to vote knowing that the other person is not entitled to do so; " "

b) inciter une autre personne à voter sachant que celle-ci est inhabile à voter; (

c) knowingly use a forged ballot; " "

c) faire sciemment usage d’un faux bulletin de vote; (

d) put a ballot into a ballot box knowing that they are not authorized to do so under the regulations;

d) déposer dans une urne un bulletin de vote sachant qu’il n’y est pas autorisé par règlement; (

e) by intimidation or duress, attempt to influence another person to vote or refrain from voting or to vote or refrain from voting for a particular candidate; or

e) par intimidation ou par la contrainte, inciter une autre personne à voter ou à s’abstenir de voter, ou encore à voter ou à s’abstenir de voter pour un candidat donné;

(

f) offer money, goods, employment or other valuable consideration in an attempt to influence an elector to vote or refrain from voting or to vote or refrain from voting for a particular candidate.

f) offrir de l’argent, des biens, un emploi ou toute autre contrepartie valable en vue d’inciter un électeur à voter ou à s’abstenir de voter, ou encore à voter ou à s’abstenir de voter pour un candidat donné. [Emphasis added] [Je souligne] [33] The Applicants carry the burden of proof of establishing, on a balance of probabilities, that a contravention of the Act has occurred that is likely to have affected the election results: see McNabb v Cyr , 2017 SKCA 27 at para 36 , [2017] SJ No 132.

Where sufficient evidence of corruption is adduced, the evidentiary burden may shift to the Respondents. [34] Not every contravention of the Act or regulations will justify the annulment of a band election. A distinction is not infrequently made between cases involving technical procedural irregularities and those involving fraud or corruption. In the former situation, a careful mathematical approach (eg reverse magic number test) may be called for to establish the likelihood of a different outcome.

However, where an election has been corrupted by fraud such that the integrity of the electoral process is in question, an annulment may be justified regardless of the proven number of invalid votes. One reason for adopting a stricter approach in cases of electoral corruption is that the true extent of the misconduct may be impossible to ascertain or the conduct may be mischaracterized.

This is particularly the case where allegations of vote buying are raised and where both parties to the transaction are culpable and often prone to secrecy: see Gadwa v Kehewin First Nation , 2016 FC 597 , [2016] FCJ No 569 (QL) . [35] In Opitz v Wrzesnewskyj , 2012 SCC 55 , 351 DLR (4th) 579, the Court considered language in the Canada Elections Act , SC 2000, c 9 that closely mirrors that found in

section 31 of the First Nations Elections Act , above. In describing the basis for the exercise of judicial discretion in cases involving procedural irregularities or fraud, the Court had this to say: [22] Under those provisions, if the grounds in para. (

a) of s. 524(1) are established (the elected candidate was ineligible), then a court must declare the election null and void. In such circumstances it is as if no election was held. By contrast, if the grounds in para. (

b) are established (there were irregularities, fraud or corrupt or illegal practices that affected the result of the election), a court may annul the election. Under these circumstances, a court must decide whether the election held was compromised in such a way as to justify its annulment. [23] In deciding whether to annul an election, an important consideration is whether the number of impugned votes is sufficient to cast doubt on the true winner of the election or whether the irregularities are such as to call into question the integrity of the electoral process.

Since voting is conducted by secret ballot in Canada, this assessment cannot involve an investigation into voters’ actual choices. If a court is satisfied that, because of the rejection of certain votes, the winner is in doubt, it would be unreasonable for the court not to annul the election. [36] In light of the above statement, the idea that serious electoral fraud can vitiate an election result cannot be seriously doubted.

What must not be overlooked, however, is the Court’s admonition that a reviewing court retains a discretion to decline to annul an election even in situations involving fraud or other forms of corruption. This was a point more recently noted in McEwing v Canada (Attorney General) , 2013 FC 525 , [2013] 4 FCR 63, where Justice Richard Mosley stated: [81] What may constitute a corrosive effect on the integrity of the electoral process will depend on the facts of each case.

I do not read the comments of the majority in paragraph 43 of Opitz as providing authority for the proposition that the Court may overturn election results in every case in which electoral fraud, corruption or illegal practices have been demonstrated.

In that paragraph, the Supreme Court cited Cusimano v Toronto (City) , 2011 ONSC 7271 , [2011] OJ No 5986 (QL) at para 62 : “An election will only be set aside where the irregularity either violates a fundamental democratic principle or calls into question whether the tabulated vote actually reflects the will of the electorate.” [82] At paragraph 48 of Opitz , the majority cautioned that annulling an election would disenfranchise not only those persons whose votes were disqualified (in the context of an irregularities case) but every elector who voted in the riding.

That suggests, in my view, that the Court should only exercise its discretion to annul when there is serious reason to believe that the results would have been different but for the fraud or when an electoral candidate or agent is directly involved in the fraud . [37] Justice Mosley’s remark that electoral corruption conducted by a candidate or agent ought generally to be treated more strictly is also reflected in the following passage from Justice Cecily Y.

Strickland’s decision in Gadwa v Kehewin First Nation , above: [88] It must first be stated that a candidate who engages in vote buying is attempting to corrupt the election process. Therefore, regardless of the number of votes that the candidate purchased, or attempted to purchase, and regardless of whether the candidate wins the election by a greater margin than the number of votes that were purchased, this cannot save the candidate and his or her election must still be vitiated.

Fraud, corruption and illegal election practices are serious ( Opitz at para 43 ). [38] What can be taken from the relevant authorities is that attempts by electoral candidates or their agents to purchase the votes of constituents are an insidious practice that corrodes and undermines the integrity of any electoral process. [Emphasis added]

[66] As noted the jurisprudence cited by Barnes J in Papequash FC was upheld by the Federal Court of Appeal in Rodney Brass vPapequash, 2019 FCA 245 [Papequash FCA]. Justice Boivin JA, (Webb and Near JJA, concurring) held: [13] It bears emphasis that the Judge thoroughly reviewed the filed affidavits, which, for the most part remainedunchallenged. The Judge also considered the relevant sections in the FNEA and correctly applied the jurisprudence in thecontext of this case (Gadwa v. Kehewin First Nation, 2016 FC 597, [2016] F.C.J. No. 569 (QL), aff’d 2017 FCA 203; Opitzv.

Wrzesnewskyj, 2012 SCC 55, [2012] 3 S.C.R. 76).

On the basis of the record before him, it was open to the Judge to makea finding of “widespread and openly conducted vote buying activity” and to conclude that “the integrity of the Key FirstNation Band election conducted on October 1, 2016 was sufficiently corrupted by the misconduct of Rodney Brass, GlenO’Soup, Sidney Keshane, and Angela Desjarlais” to order that the election be set aside (Judge’s reasons at paras 39 and 40). [Emphasis added] [67] Notably, electoral corruption by a candidate or agent ought generally to be treated more strictly and the resulting election may beannulled: see Papequash FC at paras 34 to 38, McEwing v Canada (Attorney General), 2013 FC 525 [Mosley J] at paras 81, quoted inPapequash FC at para 36, and Gadwa v Kehewin First Nation, 2016 FC 597 [Gadwa] at para 88 quoted in Papequash FC at para 37.Justice Barnes put it this way in Papequash FC at para 34: "“However, where an election has been corrupted by fraud such that theintegrity of the electoral process is in question, an annulment may be justified regardless of the proven number of invalid votes.”" JusticeBarnes cited to Gadwa as did the Federal Court of Appeal in upholding Papequash FC. [68] In Gadwa, Justice Strickland held: [88] It must first be stated that a candidate who engages in vote buying is attempting to corrupt the election process.Therefore, regardless of the number of votes that the candidate purchased, or attempted to purchase, and regardless ofwhether the candidate wins the election by a greater margin than the number of votes that were purchased, this cannot savethe candidate and his or her election must still be vitiated.

Fraud, corruption and illegal election practices are serious (Opitzat para 43). [Emphasis added] [69] Gadwa was also upheld by the Federal Court of Appeal: see Joly v Gadwa, 2017 FCA 203 [Gadwa FCA] where Justice Rennie JA(Webb and Boivin JJA, concurring) held: [3] I would dismiss the appeal for the reasons given by the Federal Court judge.

No error has been identified either in thejudge’s assessment of the standard of review of the Elections Officer’s decision, nor in the application of that standard to theevidence before her. [70] Good v Canada (Attorney General), 2018 FC 1199 [Good], per Justice McVeigh is to the same effect and see paras 54 and 55: [47] The purpose of the FNEA is to provide alternative electoral processes for indigenous communities in Canada.

Arelatively recently proclaimed piece of legislation, the FNEA has received little judicial consideration to this point. [48] The judicial principles and interpretative approach to the FNEA, and the provisions governing prohibited conductduring an election, have however been considered in Papequash v Brass, 2018 FC 325 [Papequash] and Cyr v McNab, 2016SKQB 357 [Cyr], appeal allowed in

part in McNabb v Cyr, 2017 SKCA 27 [McNabb], and Paquachan v Louison, 2017SKQB 239 [Paquachan]. [49] The cases cited clarify the statutory test to set aside an election under

section 31 and section 35(1) of the FNEA. Thetest requires the Applicant to establish that a provision was contravened and that the contravention likely affected theelection result.

Contraventions unlikely to have affected the result of the election will not trigger overturning the election.The requisite standard of proof for establishing this test is the balance of probabilities (Papequash at para 33; McNabb atpara 36). [50] Both Justice Barnes in this Court (Papequash) and the Saskatchewan Court of Appeal in McNabb have also adopted theSupreme Court of Canada’s approach with the Canada Elections Act used in Wrzesnewskyj v Canada (AG), 2012 SCC 55(sub nom Opitz v Wrzesnewskyj [Opitz]) in interpreting the FNEA. [51] The Saskatchewan Court of Appeal in McNabb, in citing Opitz, noted: [26] It is clear from the minority reasons of the Supreme Court in Opitz that the presumption of regularity isreflected in the onus and evidentiary burden imposed on an applicant to demonstrate that a contravention thatlikely affected the result of an election has occurred.

Using the language of CEA, McLachlin C.J.C., whowrote for the minority, explained: [169] Election results benefit from a “presumption of regularity”: Dewdney Election Case,(BC CA), [1925] 3 D.L.R. 770 (B.C.C.A.), at p. 771. This reflects the fact that the applicant bears the burden ofestablishing, on a balance of probabilities, that there were “irregularities … that affected the result of theelection”: see Beamish, at para. 39. … [emphasis added] [52] In adopting the ruling in Opitz in their

interpretation of the FNEA, the courts have confirmed that when alleging abreach of the FNEA, an applicant must establish a prima facie case, after which the burden switches to the respondent torefute it (Paquachan):

[23] The Burden of Proof: To assist in the implementation of the burden of proof to determine whether a contravention of the FNEA likely affected the result of the election, the framework offered by Justice Rothstein at para 61 in Opitz respecting the Canada Elections Act is instructive. First, the applicant must prove a prima facie case of irregularity (or in this instance, "contravention"), leaving to the respondent the opportunity to refute the alleged contravention or that the contravention likely did not affect the election result. [53] In Opitz , the majority only dealt with “irregularities”.

The type of contravention, then, is important and relevant. [54] Not every contravention will justify triggering the overturning the election. As was held at paragraph 34 in Papequash , in cases involving technical procedural questions, a careful mathematical approach, like the “reverse magic number” test, may be utilized to establish the likelihood of a different outcome. In a case involving assertions of fraud, on the other hand, an annulment “may be justified regardless of the proven number of invalid votes”.

Justice Barnes held at paragraph 34 of Papequash that the latter situation is “particularly the case where allegations of vote buying are raised…” [55] Given the consideration by Justice Barnes and the Saskatchewan Court of Appeal, it also cannot be overlooked that this Court retains discretion on overturning elections, even in situations involving fraud or other forms of corruptions. In Opitz , for example, the majority stated that annulling an election would disenfranchise not only those whose votes were disqualified, but also for every elector who cast a vote.

Therefore, assuming that the two-part test is met to establish a contravention of FNEA , the Court must carefully utilize its discretion before annulling an election. [Emphasis added] [ 71 ] In Papequash FC Justice Barnes concluded the authority to annul for corruption and fraud continues in an FNEA contestation because the language of the Canada Elections Act, SC 2000, c 9 [ CEA ] " “closely mirrors” " language found in

section 31 of the FNEA . Justice Barnes cites to Opitz v Wrzesnewskyj , 2012 SCC 55 [ Opitz ], where Justices Rothstein and Moldaver JJ. (for the majority) considered the statutory language of the CEA : [19]

Part 20 of the Act deals with contested elections. Section 524(1) provides: 524.

(1) Any elector who was eligible to vote in an electoral district, and any candidate in an electoral district, may, by application to a competent court, contest the election in that electoral district on the grounds that (

a) under

section 65 the elected candidate was not eligible to be a candidate; or (

b) there were irregularities, fraud or corrupt or illegal practices that affected the result of the election. [20] The remedy the court may provide is in s. 531(2): 531. . . .

(2) After hearing the application, the court may dismiss it if the grounds referred to in paragraph 524(1)(

a) or ( b ), as the case may be, are not established and, where they are established, shall declare the election null and void or may annul the election, respectively . The use of the word “respectively” means that where the grounds in s. 524(1)(

a) are established, a court must declare the election null and void; where the grounds in s. 524(1)(

b) are established, a court may annul the election. Conversely, a court may not annul an election unless the grounds in s. 524(1)(

b) are established. [21] The French version of the Act confirms this

interpretation: 531. . . .

(2) Au terme de l’audition, [le tribunal] peut rejeter la requête; si les motifs sont établis et selon qu’il s’agit d’une requête fondée sur les alinéas 524(1)

a) ou b ), il doit constater la nullité de l’élection du candidat ou il peut prononcer son annulation. [22] Under those provisions, if the grounds in para. (

a) of s. 524(1) are established (the elected candidate was ineligible), then a court must declare the election null and void. In such circumstances it is as if no election was held. By contrast, if the grounds in para. (

b) are established (there were irregularities, fraud or corrupt or illegal practices that affected the result of the election), a court may annul the election. Under these circumstances, a court must decide whether the election held was compromised in such a way as to justify its annulment. [23] In deciding whether to annul an election, an important consideration is whether the number of impugned votes is sufficient to cast doubt on the true winner of the election or whether the irregularities are such as to call into question the integrity of the electoral process.

Since voting is conducted by secret ballot in Canada, this assessment cannot involve an investigation into voters’ actual choices. If a court is satisfied that, because of the rejection of certain votes, the winner is in doubt, it would be unreasonable for the court not to annul the election. [Emphasis in original] [ 72 ] To compare,

section 31 of the FNEA provides: Contestation of election " " Contestation " "

31 An elector of a participating First Nation may , by application to a competent court, contest the election of the chief or a councillor of that First Nation on the ground that a contravention of a provision of this Act or the regulations is likely to have affected the result. " " 31 Tout électeur d’une première nation participante peut , par requête, contester devant le tribunal compétent l’élection du chef ou d’un conseiller de cette première nation pour le motif qu’une contravention à l’une des dispositions de la présente loi ou des règlements a vraisemblablement influé sur le résultat de l’élection.

" " [Emphasis added] [Je souligne] [ 73 ] Justice McVeigh in Good recognized that the majority in Opitz only dealt with " “irregularities” " . However, the Supreme Court noted at para 43 of Opitz : [43] The common thread between the words “irregularities, fraud or corrupt or illegal practices” is the seriousness of the conduct and its impact on the integrity of the electoral process. Fraud, corruption and illegal practices are serious. Where they occur, the electoral process will be corroded.

In associating the word “irregularity” with those words, Parliament must have contemplated mistakes and administrative errors that are serious and capable of undermining the integrity of the electoral process . (See Cusimano v. Toronto (City) , 2011 ONSC 7271 , 287 O.A.C. 355, at para. 62 .) [Emphasis added] [ 74 ] From this, Justice Strickland in Gadwa held at para 88: [88] It must first be stated that a candidate who engages in vote buying is attempting to corrupt the election process.

Therefore, regardless of the number of votes that the candidate purchased, or attempted to purchase, and regardless of whether the candidate wins the election by a greater margin than the number of votes that were purchased, this cannot save the candidate and his or her election must still be vitiated. Fraud, corruption and illegal election practices are serious ( Opitz at para 43 ). [Emphasis added]

(1) In

Summary [ 75 ]

Section 31 of the FNEA requires an applicant to establish on a balance of probabilities (1) a contravention of a provision of FNEA or the regulations occurred, and (2) that the contravention " “is likely to have affected the result” " of the election. If that is the case, the Court may set aside the election under

section 35. [ 76 ] The " “magic number test” " in Opitz is the test used to determine when a contravention is likely to have affected the result of the Election and whether the result of the Election should be annulled. The magic number test is described in Opitz at paras 71-73 : 71 To date, the only approach taken by Canadian courts in assessing contested election applications has been the “magic number” test referred to in O'Brien (p. 93).

On this test, the election must be annulled if the rejected votes are equal to or outnumber the winner's plurality ( Blanchard , at p. 320). 72 The “magic number” test is simple. However, it inherently favours the challenger. It assumes that all of the rejected votes were cast for the successful candidate. In reality, this is highly improbable. However, no alternative test has been developed.

No evidence has been presented in this case to support any form of statistical test that would be reliable and that would not compromise the secrecy of the ballot. 73 Accordingly, for the purposes of this application, we would utilize the magic number test. The election should be annulled when the number of rejected votes is equal to or greater than the successful candidate's margin of victory.

However, we do not rule out the possibility that another, more realistic method for assessing contested election applications might be adopted by a court in a future case. [Emphasis added] [ 77 ] Contraventions that are not likely to have affected the result will not generally trigger setting aside the election ( Papequash FC per Barnes J at para 33; Good per McVeigh J, at para 49 , and McNabb v Cyr , 2017 SKCA 27 per Jackson, Caldwell and Whitmore JJ.A at para 36). [ 78 ] Importantly this Court and the Superior Courts have the discretion to annul an election of a Chief and or Councillor(

s) when there is serious electoral fraud, and in particular where an electoral candidate or agent is directly involved in the fraud. See McEwing at paras 81 and 82 , cited in Papequash FC at para 36. See also Good at paras 54 and 55 , Opitz at para 43, McNabb at para 45. [ 79 ] This case centres on vote buying in the context of Mail-in Ballots. Most electors voted by mail; the Election was held during the COVD-19 pandemic. Vote buying in this case took place in each of the two steps of the Mail-in Ballot process. In the first step an elector makes a formal Request for Mail-in Ballot and submits ID.

If approved by the Electoral Officer, the second step involves sending the elector a blank Mail-in Ballot in a package: the ballot must be marked, put into a sealed envelope and mailed back or delivered inside another envelope to the Electoral Officer with a signed Voter Declaration form.

[80] In my view being directly involved in offering to or purchasing either a Request for Mail-in Ballot or a Mail-in Ballot and or VoterDeclaration form are both acts of serious electoral fraud (Papequash FC at para 34 and Gadwa at para 88).

In this connection, JusticeMosley in McEwing noted at para 69 with respect to definition of electoral fraud: "“any action or instance meeting the dictionarydefinition of fraud would constitute electoral fraud where it was done in contravention of a provision of the" "Canada Elections Act orwhere it served to defeat a process provided for in that Act.”" Moreover, the ordinary meaning of the term "“fraud”" refers to "“An act orinstance of deception, an artifice by which the right or interest of another is injured, a dishonest trick or stratagem”" (Oxford EnglishDictionary (February 28, 2022) sub verbo "“fraud”", online: <https://www.oed.com/view/Entry/74298?rskey=HGrc2W&result=1#eid>);and an "“intentional perversion of truth in order to induce another to part with something of value or to surrender a legal right”"(Merriam-Webster.com Dictionary (February 24, 2022) sub verbo "“fraud”", online: <https://www.merriam-webster.com/dictionary/fraud>).

(2) Change in the Respondents’ position in oral argument [81] The Respondents in their Memorandum largely agreed with the position of the Applicants on the dual remedy under the FNEA:either setting aside an election where a contravention is likely to have affected the result, or the annulment of an election. See forexample Respondents’ Memorandum para 102: 102.

The leading case authorities on applications brought pursuant to the FNEA challenging First Nation elections inSaskatchewan are: the Saskatchewan Court of Appeal decision in McNabb v Cyr, 2017 SKCA 27; the SaskatchewanQueen’s Bench decision Paquachan v Louison, 2017 SKQB 239; and the Federal Court of Canada decisions in Good v.Wuttunee 2018 FC 1199 and Papequash v. Brass, 2018 FC 325. All of those

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