2018 FC, 2018 FC 1199

Date: 20181128 Docket: T-596-16 Citation: 2018 FC 1199 Ottawa, Ontario, November 28, 2018 PRESENT: The Honourable Madam Justice McVeigh BETWEEN: MICHELLE GOOD Applicant and CHIEF ELECT CLINTON WUTTUNEE AND COUNCILLORS ELECT LUX BENSON, MANDY CUTHAND, DANA FALCON, HENRY “BOSS” GARDIPY AND GARY SAUVE NICOTINE Respondents JUDGMENT AND REASONS I. Introduction [ 1 ] This is an appeal arising from the March 18, 2016 Red Pheasant First Nation election. [ 2 ] The Applicant, Michelle Good [Good], is a Red Pheasant First Nation band member who resides in British Columbia. She applied to this Court under

section 30 of the First Nations Elections Act , SC 2014, c5 [“ FNEA ”] for judicial review of the election. [ 3 ] It was confirmed at the start of the hearing that Good is a practising lawyer in British Columbia, but is representing herself in this matter as a member of the Red Pheasant First Nation. [ 4 ] Good brought an application for an interlocutory injunction and it was dismissed on August 19, 2016, by Justice Gagné, with costs payable by Good to the Respondents. [ 5 ] The tenor of the allegations can be garnished from the closing paragraph of Good’s submissions in her Memorandum of Fact and Law.

She submits at paragraph 189: The Red Pheasant Respondents have done everything in their power to subvert this appeal by nefarious means. It is a reasonable conclusion that these acts of bribery and intimidation are the desperate or arrogant acts of persons determined to conceal their corruption of the 2016 Red Pheasant Election. [ 6 ] Good’s Notice of Application [Notice] does not set out any relief sought, but does apply for nine different declarations and an order that a new election be called.

The Notice further demands that election observers be engaged and assigned at the expense of the Minister to ensure the election is lawfully commissioned, and also to have observers at all advance polls to prevent mail-in ballots being cast fraudulently. [ 7 ] Good’s Memorandum of Fact and Law seeks the following relief: 190. A declaration that the Minister delegated her duty to consult to the Band Council with respect to opting—out of s.74 (

l) of the Indian Act in favour of opting in to the FNEA ; 191. A declaration that the Red Pheasant Band Council also had a duty to consult its members seeking their consensus with respect to opting-out of $.74(

l) of the Indian Act in favour of opting in to the FNEA pursuant to s.2(3) of the Indian Act; 192. A declaration that the Red Pheasant Band Council breached their duty to consult with respect to opting-out of of [ sic ] s.74(1) of the Indian Act in favour of opting in to the FNEA ; 193. A declaration that the November BCR is based on a misrepresentation that the Band Council consulted its membership with respect to opting out of s.74(1) and is thus void and without legal authority; 194.

A declaration that the March 2016 Red Pheasant Election, arising as it does from the void November BCR is a nullity and a new election be ordered; 195. A declaration that the Red Pheasant Band Council breached its fiduciary duty to its members by misrepresenting to the Minister that its members had been consulted; and 196. A declaration that the Minister breached her fiduciary duty by failing to uphold her duty arising from the Honour of the Crown to ensure that consultation had occurred upon delegating that duty to the Band Council. 197.

A finding that respondents Clinton Wuttunee, Mandy Cuthand, Henry “Boss” Gardipy, Garry Sauve Nicotine, Shawn Wuttunee, Dana Falcon and Lux Benson engaged in corrupt practices contrary to

section 14(

b) and (c); 16 (a) (c) (

d) and (

e) of the FNEA and as such are disqualified as candidates pursuant to the FNEA and subject to penalties listed therein.”

[ 8 ] At the hearing, the Court confirmed that even if the Application for Judicial Review was successful, a number of Good’s requests for relief were unobtainable. It was further confirmed that if Good was successful, I could exercise my discretion to set aside the impugned election. [ 9 ] I am dismissing the application for the reasons that follow. II. Background [ 10 ] Good has filed appeals in all of the last three previous elections.

This is the first appeal under the FNEA . [ 11 ] In a previous appeal arising out of the March 20, 2014 election, Good applied for judicial review of the decision of the Director General of the Policy Development and Coordination Branch, representing the Minister of Aboriginal Affairs and Northern Development Canada (known as INAC). Good argued that INAC erred when they denied an appeal after Good made serious allegations of misconduct of the Electoral Officer and corruption in the form of vote buying for Councillor Charles Meechance and Chief Stewart Baptiste.

The Director General, without conducting an investigation, had denied the appeal. That decision was judicially reviewed by Justice Russell in Good v Canada (Attorney General), 2016 FC 1272 , which was released on November 15, 2016. [ 12 ] Justice Russell examined the allegation that both the delegate and the electoral officer demonstrated a reasonable apprehension of bias, and that the delegate acted in a manner that was procedurally unfair. Good further submitted that the delegate attempted to deceive the Court by giving false evidence.

Justice Russell held: [92] In the present case, I think that all I can say is that reviewable errors were committed by the Elections Unit of INAC in dealing with the appeal in bypassing s. 14 of the Regulations and failing to implement an appropriate investigation under s 13 of the Act when dealing with the allegations and evidence of vote-buying by Chief Baptiste. [93] I wish to make it clear, however, that this does not mean that I think Chief Baptiste engaged in vote-buying for the 2014 election or would have been found to have done so if the Elections Unit had not committed reviewable errors.

All that means is that the elections Unit did not handle this aspect of the Applicant’s appeal appropriately and in accordance with the Act and the Regulations. [ 13 ] Justice Russell did not return the matter for reconsideration, given the results of the 2016 election. [ 14 ] Moving on to discuss the appeal before me now, the appeal of this election is governed under the statutory regime of the FNEA . 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, RSC , 1985, c I-5 [“ Indian Act ”]. [ 15 ] The FNEA is a relatively new statute that came into force in April of 2015, along with the associated First Nations Elections Regulations , SOR/2015-86 [“ FNEA Regulations ”]. In order to opt into the provisions, a proper Band Council Resolution [“BCR”] in favour of being governed by the FNEA must be submitted to the Minister.

The Minister then adds the First Nations to the FNEA Schedule. [ 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. An election followed on March 18, 2016. [ 17 ] On April 12, 2016, after the election results became known, Good filed an application under

section 30 of the FNEA in the Federal Court to review the election. She went on to allege in her Memorandum of Fact and Law that the election and the election process contravened numerous sections of the FNEA , including sections 14 (b), (c), (d), and (e), 16 (a), (b), (c), (e), and (f), 17 (b), 18 , and 19 (a), and alleged that the Electoral Officer failed to comply with section 24(1). [ 18 ] Good also requested judicial review of numerous other decisions, including the decision of the Minister to add the Red Pheasant First Nation to the FNEA

Schedule (which she alleged was a breach of fiduciary duty), and the decision of the Red Pheasant First Nation Band Council to join the FNEA

Schedule in the first place. [ 19 ] Note that the Applicant requests differing remedies in her Memorandum of Fact and Law (see paragraph 7 above), in contrast to the Notice of Application. In the Memorandum of Fact and Law, she asks for a declaration that a number of the Respondents breached sections 14 (b), 14 (c), and 16 (a), (b), (c), (d), and (e), whereas in the Notice of Application she also requests a declaration that sections14 (

d) and (e), 17 (b), 18 , and 19 (

a) were contravened during the election, but leaves out

section 16 (a). [ 20 ] The parties underwent what can only be described as extensive case management, and many months of back and forth between the parties ensued without much progress. By and large, the parties were unsuccessful in working out many issues in case management proceedings, and at the judicial review hearing, there were still a number of outstanding issues. III. Preliminary Motions and Issues [ 21 ] At the commencement of the hearing, the parties made submissions regarding two motions.

A Rule 312 motion was brought by the Applicant and a Rule 302 motion was brought by the Respondents. [ 22 ] The Applicant’s motion for leave to file additional affidavits pursuant to Rule 312 of the Federal Courts Rules , SOR/98-106 [“FCR”] was granted. The Respondent Attorney General’s [“AG”] and the Respondent Red Pheasant First Nation’s motions pursuant to

Rule 302 of the FCR were granted. Accordingly, the hearing was limited to the appeal of the election results. An oral decision on both ofthese motions was provided at the hearing, as summarized below, and an order granted to that effect dated April 3, 2018. A. Rule 302 [23] In the Rule 302 motion, the Respondents argued that there were multiple issues raised against multiple bodies with 10 distinctrequests for relief in Good’s application. On January 3, 2017, the Respondent Red Pheasant First Nation filed a Notice of Motion raisingRule 302.

On January 27, 2017, the AG filed a Notice of Motion in agreement with the Respondent Red Pheasant First Nation’ssubmission on Rule 302. Both the Red Pheasant First Nation and the AG made submissions on the Rule 302 motion at the hearing. [24] The Respondents submit that this Court must limit the judicial review to a single decision against a single administrative body. [25] Good argued that the AG’s decision to put the band on the FNEA

Schedule after receiving the BCR was inherently a part of theelection, and that the Rule 302 motion should therefore be dismissed. In Good’s submission, the AG allowing the Red Pheasant FirstNation to proceed under the FNEA breached a duty to consult. [26] The AG submitted conversely that as the decision of the Minister regarding the FNEA

Schedule is entirely separate from the othermatters at issue in the application, the application should be discontinued against them. [27] The AG submitted that on November 15, 2015, the Saskatchewan regional office of INAC received a BCR from Red Pheasant FirstNation requesting that the Minister add the Red Pheasant First Nation to the FNEA Schedule. Specific to this motion, Good challengedthe decision of the Red Pheasant Band Council to opt to conduct the election under the provisions of the FNEA. [28] I agreed with the Respondents that judicial review must proceed on a single decision.

Rule 302 of the FCR stipulates thatapplications for judicial review should be limited to one decision.

Thus, where the review of multiple decisions is sought, an applicationfor each decision must be sought (Servier Canada Inc v Canada (Health), 2007 FC 196; Truehope Nutritional Support Ltd v Canada(Attorney General), 2004 FC 658). [29] The Court will make an exception to Rule 302 when an applicant challenges a continuing course of conduct arising from thedecision of the same body (Mahmood v Canada, (FC), [1998] FCJ No 1345 at para 10; Lessard-Gauvin v Canada(Attorney General), 2016 FC 227). [30] In this matter, I find that Good is challenging multiple decisions that do not arise from the decisions of the same body.

I do notaccept Good’s submission that there is only one official decision for review. [31] This is of a completely different factual matter than the circumstance in Shotclose v Stoney First Nation, 2011 FC 750 [Shotclose],which Good relies on in her submissions. In Shotclose, the applicants were challenging not one specific decision by the Chief andCouncil, but were rather challenging all of decisions and actions taken by the Chief and Council leading up to the failure to properlyconduct the 2010 election.

This is clearly factually distinct from the multiple decisions put forward by Good for review, where Goodinitially sought review of the decision of the former Chief, the decision of the Minister to place the Red Pheasant First Nation on theFNEA Schedule, the actions of the Electoral Officer (later discontinued by Good), the actions of the current Chief, and the contravenednature of the election itself. [32] In addition, the Applicant filed her application on April 13, 2016, well after the 30-day statutory timeline (Federal Courts Act, s.18.1(2)) given to file an application for judicial review in respect of the other decisions.

I note, however, that this is not determinative inthis decision as the application is not in respect of a tribunal’s decision or order (Friends of the Oldman River Society v Canada (Min ofTransport), (SCC), [1992] 1 SCR 3). [33] I find that the single decision that will be reviewed arises from the March 18, 2016 election, which is the decision identified in theNotice of Application made pursuant to the FNEA and the relevant FNEA Regulations. Good’s Notice of Application was filed pursuantto

section 30 of the FNEA, and

section 30 only pertains to the validity of FNEA elections. [34] I awarded costs to the AG in an April 3, 2018 Order that indicated that a lump sum award would be determined within theapplication for judicial review. The AG subsequently withdrew their request for costs for this motion and none are awarded to the AGfor this motion. B.

Rule 312 [35] Good brought a motion to file the additional affidavits and the cross-examination transcripts of: Sandra Arias, dated February 9,2017; Michelle Good #6, dated January 17, 2017; Elsie Wuttunee #2, dated January 16, 2017; Eldon Wuttunee, dated January 16, 2017;Chief Clinton Wuttunee, dated January 22, 2018; and Dana Falcon, dated January 22, 2018. [36] The Respondents opposed these being filed. The Respondents submitted that the additional affidavits are, on an individual analysis,barred by the rules of hearsay and other evidentiary issues, and are not saved by any principled exceptions.

In addition, relying on the testin Strykiwsky v Stony Mountain, (FC), the Respondents submitted that the late filing of the affidavit evidencesignificantly prejudiced the Respondents, as it would place additional cost and effort on the Respondents after cross-examinations hadalready been completed on an already impecunious Red Pheasant First Nation.

The Respondents submit that no reasonable or validexplanation for the delay in filing the affidavits exists. [37] In respect of the Rule 312 motion, I granted the Applicant leave to file the additional affidavits and the cross-examinationtranscripts of: Sandra Arias, dated February 9, 2017; Michelle Good #6, dated January 17, 2017; Elsie Wuttunee #2, dated January 16,2017; Eldon Wuttunee, dated January 16, 2017; Clinton Wuttunee, dated January 22, 2018; Dana Falcon, dated January 22, 2018.

[ 38 ] In admitting these affidavits, there is no prejudice to the Respondents as the Court can still assign what weight, if any, is to be given the filed affidavits and cross-examinations. [ 39 ] I allow these affidavits and cross-examinations evidence into the record to ensure that all the evidence that could possibly be before the Court is so the matter can finally proceed. C.

Discontinuance against Parties [ 40 ] Good discontinued the application against the Attorney General after the Rule 302 motion was successful. [ 41 ] Counsel for the remaining Respondents requested that the matter be discontinued against the following: Howard McMaster (deceased), Sabrina Baptiste, Larry Wuttunee, former Chief Stewart Baptiste Jr., Shawn Wuttunee, Ryan Buglar and the Red Pheasant First Nation.

Good agreed to discontinue against Howard McMaster, Ryan Bugler, Sabrina Baptiste, and the Red Pheasant First Nation. [ 42 ] The matter was discontinued against those parties and they will therefore be removed from the style of cause. [ 43 ] I will not entertain any of the arguments or make any finding regarding evidence against Howard McMaster (deceased) given that he has been discontinued against. [ 44 ] After the hearing, Good wrote to the Court explaining that she changed her mind about discontinuing against the Red Pheasant First Nation.

I subsequently issued written directions to the parties reminding them that the submissions are closed. Reasonable diligence before or during the hearing could have resolved this issue, and to continue to allow counsel to change her mind after the fact would result in this issue proceeding by installment. Although there are exceptions, counsel changing her mind is not one of them ( Varco Canada Ltd v Pason Systems Corp , 2011 FC 467 at para 15 ). IV. Issue [ 45 ] The issue is: A .

Has the Applicant discharged its burden to satisfactorily prove that the FNEA has been contravened and if so, did it likely affect the election result? V. The law [ 46 ] The relevant provisions of the FNEA are as follows: Ballots Prohibition 14 A person must not, in connection with an election, (

a) provide a false name in order to obtain a ballot; (

b) possess a ballot that was not provided to them in accordance with the regulations; (

c) purchase a mail-in ballot that was issued to another person; (

d) sell or give away a mail-in ballot; or (

e) print or reproduce a ballot with the intention that the print or reproduction be used as a genuine ballot, unless that person is authorized to do so under the regulations. Bulletins de vote Interdictions 14 Nul ne peut, relativement à une élection :

a) demander un bulletin de vote sous un faux nom;

b) avoir en sa possession un bulletin de vote qui ne lui a pas été fourni en conformité avec les règlements;

c) acheter le bulletin de vote postal d’une autre personne;

d) vendre ou donner un bulletin de vote postal;

e) sauf s’il y est autorisé par règlement, imprimer ou reproduire un bulletin de vote dans l’intention que l’impression ou la reproduction soit utilisée comme bulletin authentique.

Prohibition — any person 16 A person must not, in connection with an election, (

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

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

c) knowingly use a forged ballot; (

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

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 (

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. Interdictions générales 16 Nul ne peut, relativement à une élection :

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

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

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

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

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) 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 17 An elector must not, in connection with an election, (

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

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. Interdictions visant l’électeur 17 Nul électeur ne peut, relativement à une élection :

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

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. Secrecy of voting 18 Voting at an election is to be conducted by secret ballot. Vote secret 18 Le vote à une élection se tient par scrutin secret. Prohibition — elector 19 An elector must not, in connection with an election, (

a) show their ballot, when marked, to reveal the name of the candidate for whom the elector has voted, other than in accordance with the regulations; or (

b) in the polling station, openly declare for whom the elector intends to vote or has voted. Interdictions visant l’électeur 19 Nul électeur ne peut, relativement à une élection :

a) montrer son bulletin de vote, une fois marqué, pour révéler le nom du candidat pour lequel il a voté, sauf en conformité avec les règlements;

b) dans un bureau de scrutin, déclarer ouvertement en faveur de qui il a l’intention de voter ou pour qui il a voté.

Contested Elections Means of contestation 30 The validity of the election of thechief or a councillor of aparticipating First Nation may becontested only in accordance withsections 31 to 35. Contestation de l’élection Mode de contestation 30 La validité de l’élection du chefou d’un conseiller d’une premièrenation participante ne peut êtrecontestée que sous le régime desarticles 31 à 35.

Contestation of election 31 An elector of a participating FirstNation may, by application to acompetent court, contest the electionof the chief or a councillor of thatFirst Nation on the ground that acontravention of a provision of thisAct or the regulations is likely tohave affected the result.

Contestation 31 Tout électeur d’une premièrenation participante peut, par requête,contester devant le tribunalcompétent l’élection du chef ou d’unconseiller de cette première nationpour le motif qu’une contravention àl’une des dispositions de la présenteloi ou des règlements avraisemblablement influé sur lerésultat de l’élection. Court may set aside election 35

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

section 31 is established, setaside the contested election. Duties of court clerk

(2) If the court sets aside an election,the clerk of the court must send acopy of the decision to the Minister. Décision du tribunal 35

(1) Au terme de l’audition, letribunal peut, si le motif visé àl’article 31 est établi, invaliderl’élection contestée. Transmission de la décision

(2) Lorsque le tribunal invalide uneélection, le greffier expédie unexemplaire de la décision auministre. [47] The purpose of the FNEA is to provide alternative electoral processes for indigenous communities in Canada. A relatively recentlyproclaimed 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 conduct during anelection, have however been considered in Papequash v Brass, 2018 FC 325 [Papequash] and Cyr v McNab, 2016 SKQB 357 [Cyr],appeal allowed in

part in McNabb v Cyr, 2017 SKCA 27 [McNabb], and Paquachan v Louison, 2017 SKQB 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. The test requiresthe Applicant to establish that a provision was contravened and that the contravention likely affected the election result. Contraventionsunlikely to have affected the result of the election will not trigger overturning the election.

The requisite standard of proof forestablishing this test is the balance of probabilities (Papequash at para 33; McNabb at para 36). [50] Both Justice Barnes in this Court (Papequash) and the Saskatchewan Court of Appeal in McNabb have also adopted the SupremeCourt of Canada’s approach with the Canada Elections Act used in Wrzesnewskyj v Canada (AG), 2012 SCC 55 (sub nom Opitz vWrzesnewskyj [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 is reflected in theonus and evidentiary burden imposed on an applicant to demonstrate that a contravention that likely affected the result ofan election has occurred.

Using the language of CEA, McLachlin C.J.C., who wrote 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 of establishing, on abalance of probabilities, that there were “irregularities … that affected the result of the election”: 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 a breach of theFNEA, an applicant must establish a prima facie case, after which the burden switches to the respondent to refute it (Paquachan): [23] The Burden of Proof: To assist in the implementation of the burden of proof to determine whether a contravention of theFNEA likely affected the result of the election, the framework offered by Justice Rothstein at para 61 in Opitz respecting theCanada 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. [ 56 ] In this case, it was confirmed at the hearing with both remaining parties that this was not a situation that would need to have a " “reverse magic number” " test. VI. Analysis A. Evidence [ 57 ] Pursuant to

section 30 of the FNEA , the appeal proceeds as a judicial review. Evidence in a judicial review proceeding is dealt with by the Court through examination of the affidavits before it. [ 58 ] Unfortunately, the record before me is complicated by numerous affidavits which included redacted affidavits, supplementary affidavits, and late filed affidavits. [ 59 ] In the materials filed there were in total approximately 52 affidavits with 27 cross-examinations listed.

At the start of the hearing, this evidentiary record was canvassed as the Prothonotary had not allowed a number of affidavits, and certain pieces of evidence had been withdrawn. Included in the 52 affidavits were two affidavits by affiants who were redacting their previous affidavits. There are multiple cross-examinations of several affiants on various affidavits. For example, there were six affidavits of Michelle Good in the file, and not all of them were properly before the Court or numbered correctly.

This made the matter more complex and unnecessarily difficult to reconcile. [ 60 ] Many of the affidavits contain hearsay evidence, argument, and irrelevant or inflammatory comments. This is unacceptable to the Court. This is inappropriate, and this is not a good use of judicial resources. Not only is such a record unfair to the Judge, but it is also unfair to the Respondents as the Respondents cannot know exactly what the relevant allegation is, or the specific evidence that supports the allegation.

The Court has to unnecessarily deal with a mishmash of evidence that is comprised of volumes of affidavits, supplementary affidavits, cross-examinations and recanted affidavits. [ 61 ] Attached as Appendix “A” is a list of the affidavits and their status as best as can be determined, notwithstanding the issues noted above. [ 62 ] As noted above, many of the affidavits contain hearsay or double hearsay without meeting any principled exceptions to the hearsay rule. In addition, there were redacted affidavits, and affidavits attaching affidavits, that were unsworn and attached as exhibits to other affidavits.

No weight will be given to hearsay evidence or to unsworn affidavits as per Rule 81 of the FCR . [ 63 ] I also note that no independent evidence or corroborative evidence was given to support the Applicant’s allegation that many of the affidavits were crafted to be self-serving for a nefarious purpose. [ 64 ] I was asked to make an inference as to the truth of the matter if an affidavit was not cross-examined on. In this exceptional matter, due to the number of affidavits, and a lack of direction on what specific allegations the evidence referred to, I will not make that inference.

I will respect that the main witnesses on both sides were cross-examined, and it was only a few of the more outlier affiants that were not. [ 65 ] Further support to do so is found in Cyr at paragraph 74 , where Justice Schwann noted that drawing a negative inference from an absent witness would shift the statutorily imposed burden of proof onto the respondent. I find that as per the statute and the relevant case law, as was the holding in paragraph 50 of Cyr, the applicant must bear the legal burden of proof.

I will examine the evidence of the affiants not cross-examined with the same lens as the cross-examined affiants. B. Allegations [ 66 ] Good did not set out in her Memorandum of Fact and Law the specific incidents and the corresponding evidence that would establish a prima facie case that met the test of " “likely to have affected” " the result of the election. Instead, Good made a running list of facts regarding the " “corrupt practices” " that took place at Red Pheasant, a " “he said, she said” " , and general accusations of actions that would breach the relevant sections of the FNEA .

I will wade through the morass of affidavits and cross-examinations relevant to each allegation to make a finding. This too is unacceptable and made the matter lengthy and complex. [ 67 ] As per the FNE A and the relevant jurisprudence, the issue that I must decide is whether, on a balance of probability the prohibited

act occurred. If I find that the prohibited act occurred, I must determine whether the contravention affected the outcome of the election. Good no longer raises any allegations against Howard McMaster, so as noted above I will not deal with any allegations regarding Howard McMaster. Nor will I deal with any evidence against any of the parties that have been discontinued against or the evidence that related to decisions other than the 2016 decision. [ 68 ] In the interest of justice, I have broadly diagrammed, from the written and oral submissions, what the specific allegations before the Court are.

It is on the basis of the specific allegations that I must make my finding. C. Particular Evidence [ 69 ] Before I lay out the specific and relevant allegations in front of me, I will deal with the evidence of Jeffery Tisnic (Meechance) and Nisha Wuttunee. As well, I will look at the circumstances related to Chief and Councillors giving cash to members of the band before I deal with the specific allegations as this is pervasive theme throughout the evidence.

(1) Jeffery Tisnic (Meechance) [ 70 ] Jeffery, born on February 5, 1997, also goes by the names " “Jeffery Meechance” " , " “Jeffery Tisnic Meechance” " or " “Jeffery Tisnic” " [Jeffery]. Jeffery filed an affidavit in support of the appeal. He was crossed-examined on his affidavit on February 10, 2018. [ 71 ] At the time of the cross-examination, he was living in or around Edmonton managing Tim Hortons’ restaurants, and had been so occupied for approximately three years. Jeffery had moved to Edmonton to take the job at Tim Hortons sometime after the election.

Before Edmonton, Jeffery had lived in or around Saskatoon where he had obtained his Grade 12 education. [ 72 ] Jeffery voted in the election with a mail-in ballot that he alleges he was paid for by Gary Nicotine [Gary]. He further stated on cross-examination that Gary never provided support, whether in the form of foodstuff or financial support to himself or his family but Chief Clinton Wuttunee [Chief Clinton] has. Though Jeffery stated that Chief Clinton provided financial support only for the purpose of purchasing ballots, and did not provide any other kind of financial support to him.

Jeffery asserted that Mandy Cuthand [Mandy] gave him $40 via e-transfer to purchase his vote, and Henry Gardipy [Henry] gave him between $60 to $100 to purchase his vote. [ 73 ] On page 297 of the recorded transcript, Jeffery stated on the record : A.—well, I came outside with my ballot, and then I didn't let him take it, and he gave me about, like, 60 to $100. I'm not too sure, like, how much it was because it was two years ago, but -— yeah. I didn't let him take it. He was trying to take it, but I didn't let him take it. Q. Okay. A.

Yeah. ‘Cause I know I could get more money for it, like, if I get more ‘X’s, yeah. Q. Okay. So, you were in the business of trying to sell your ballot? A. Yes. [ 74 ] Later Jeffery during cross-examination said that he absolutely was not in the business of selling his ballot, and when he was reminded he was under oath, said, " “No, I was needing financial help because I was going through a –hard times” " .

Jeffery asserted at this point during the cross-examination that he needed financial support because he was not working. [ 75 ] Jeffery admitted on cross-examination that he tried to sell his vote by contacting all of the current Chief and Council, but he said he did not attempt to sell his vote to anyone that he was supporting, such as the former Chief Baptiste: Q. Ms. Good- He asked the question, did you text all of the current Chief and Council. A. I guess so, yes. Q. That wasn’t so hard to answer, was it? … Q. What about Stewart Baptiste, did you ask him? A. No. Q. Did you ask Sandra Arias? A.

I don’t know who that is. [ 76 ] On Facebook, Jeffery purportedly attempted to shine a light on corruption in the Red Pheasant First Nation. At the end of his post, Jeffery, as per Exhibit “C” of his affidavit, finished his message with the hashtags of #IdleNoMore, #NoMoreCorruption, #Decolonize, and #SetThemUp. The hashtag # SetThemUp seems to indicate the potential will to bring ill-repute to the relevant parties. This is indeed troubling. [ 77 ] Even as a first time voter, Jeffery decided that he would try and sell his vote for money and appeared non-repentant about it.

During the cross-examination, Jeffery was asked about how he came up with the strategy of deciding to sell his vote by contacting candidates. He answered as such:

A.—it’s a way to make money. We did not think it was wrong. We had to survive. We need to put food in our bellies, we need to put gas in our vehicles. People did not know it was wrong. [ 78 ] Jeffery was also questioned about how Henry had helped Raelynn (Jeffery’s sister) and Jeffery move from one house to another.

While Jeffery admitted to this, he also stated that he had no idea any of these people had been helping his family over the years. [ 79 ] Jeffery further stated on cross-examination that he was taken advantage of because he is a first time voter. [ 80 ] Indeed, I do not find him to be a credible witness. His credibility was further diminished by a number of flippant, inconsistent, and implausible statements. For example, Jeffery had texted " “LOL” " in response to an apparent threat against him.

Maintaining that he considered this a threat on cross-examination, Jeffery stated that he wrote " “LOL” " as he was " “being hysterical” " . [ 81 ] Jeffery was also cross-examined as to when he texted to request Chief Clinton for money for his father’s funeral expenses. While Good objected to this line of questioning, as the text messages were not exhibits to Jeffery’s affidavit. I note the texts were marked as exhibits to his cross examination. Jeffery asserted that the texts referenced on the cross-examination were never sent.

I have no evidence they were not sent and in fact, the Respondents produced them so it can be inferred they were sent.

This inconsistency with documentary evidence further impugns Jeffery’s credibility as a witness. [ 82 ] The significant contradictions in Jeffery’s evidence given in cross-examination come into further stark contrast when compared against Henry’s evidence given in cross-examination and Chief Clinton’s evidence. [ 83 ] The evidence given by these individuals cannot be so easily explained as being self-serving for the Respondents; rather the contradictory evidence given by both individuals is corroborated by exhibited documentation.

For example, Jeffery had texted Chief Clinton on April 10, 2018, that " “…you actually help the people. First time in Chief history. I am grateful for all the help you do for me and my family and relations” " . When cross-examined on this, Jeffery was evasive and stated that he had never written such a message. Such an answer, while under oath, further impugns Jeffery’s credibility. [ 84 ] Jeffery even took the opportunity to make misrepresentations on non-material facts.

For example, Jeffery stated that Henry is his relative, but when asked about this at cross-examination, he could not provide any explanation as to how they were related. [ 85 ] Gary provided evidence that he is a friend of Jeffery’s mother and has helped the family out over the span of decades. As stated by Gary when cross-examined on this issue, the help provided has been through financial means, as well as other forms of assistance, and that Gary considered those forms of assistance to be part of his job as a councillor.

Gary affirmed that he did not give Jeffery a list of candidates to vote for. [ 86 ] In one instance, Jeffery asked for financial support from Gary via text message. In the exhibited text exchange, Jeffery was very persistent that he should be given $60, so much so that Gary went to his house. Gary stated on the record that when he went to the house, Gary told Jeffery that he wasn’t there to buy a vote, but would help him if he needed help, as Jeffery was crying to him on the cell, and out of respect for Jeffery’s mother.

Gary did not remember if he gave Jeffery the money, but remembers that Jeffery’s sister Raelynn was also in the vehicle. It is of note that Raelynn never filed an affidavit. [ 87 ] Henry’s evidence in cross-examination is equally unequivocal that Henry was there to help Jeffery and his family: Q. You met with him. A. Yeah. Q Did you give him $100.00? A. I gave him $100 for groceries and whatever he wanted for him and his boyfriend there at the time. He said they were short some money for—for groceries.

I helped Jeffery out on a daily basis with his family, tobacco, drove his mom for groceries, drove Jeffery everywhere to move to his places, wherever he stayed, so I was just—I thought it was just another— another day, you now, helping –helping a—helping a young man, 18 years old… [ 88 ] During cross-examination, Henry further confirmed his motivations for providing assistance in the context of Jeffery’s father’s funeral expenses: Q. What about this business about—was it his father’s funeral? A. Yeah. Q. Tell us about that. A. Well, he wanted help to go for his father’s funeral.

He died, so we gave him a BMA from the band. Q. BMA, what’s that? A. Band member assistance. I think it was a cheque for $400 to help get him there and back. You know, we helped him at his time of death. [ 89 ] Jeffery’s denial that he or his family ever received any support is contradicted then by the evidence of Henry, Chief Clinton, and Gary.

The evidence provided in contradiction to Jeffery’s narrative is corroborated by texts. [ 90 ] Jeffery’s claim that he was intimidated so much that he had to move to Edmonton was contradicted by his own testimony at cross- examination, where he acknowledged that he moved to Edmonton for a job. He certainly does not seem easily intimidated from his

behaviour shown in texts and on Facebook and his cross-examination. [ 91 ] There was discussion that he was not presented for cross-examination. Nothing turns on that at this stage, as he was eventually cross-examined, but I will mention it only to show the credibly issues with Jeffery are evident in his general lack of respect for the Court process.

The Respondents submits that contrary to Good’s assertion, they never refused to examine him, and that it defies logic that the Chief Clinton would pay for a room for him to attend for his cross-examination and then not cross-examine him. [ 92 ] As noted above, I find then that Jeffery’s evidence is unreliable. Jeffery’s attitude in the cross-examination, flexible relationship with the truth, and his propensity to erupt and lash out gives me no confidence in his evidence.

For example, in cross-examination, Jeffery attempted to explain the contradiction between him swearing that he was intimidated enough to move, but that he responded with " “LOL” " to the impugned threatening messages. As evidenced from the excerpts of the transcript, Good has to step in to try and calm him down while he is being cross-examined: Q. Mr. Stooshinoff: Laugh out loud, hysterical. That’s your word, isn’t it, Jeffery? It’s hysterical? A. No. Q. Yeah. All right. Paragraph 13. A. Read it. Q. You read it. A. You read it. Get—get— Ms Good: Calm down. A. –Lux to read it. See if he can read, just kidding.

Ms Good: Just relax. It’s okay. Just relax, okay Just read— A. On— Ms Good: —the paragraph A. I’ll actually— Ms Good: You don’t have to read it out loud. A. I’ll actually read, the only educated one in this fucking room, the one who fucking dropped out of college. [ 93 ] Later during the cross-examination, Jeffery made a reprehensible remark in alluding to the spouse for counsel for the Respondents, who had only recently passed away. Good had to intervene again in that instance, but the behaviour is disgraceful, and provides further indication of Jeffery’s reliability as an affiant with little conscience: Q.

Did you ask Chief: (as read) Would you be able to help me out with $40, Chief? A. Let me see it, then. Q. Bottom, bottom. A. It seems like a fraud because they’re all frauds. Ms. Good: I don’t see any phone numbers or anything; right? A. Me neither. Q. Mr. Stooshinoff: Did you say that, Jeffery? A. Let me just look this over. Q. Hang on to that eagle feather. It may help protect you from your perjury. A. That’s not perjury. This is inaccurate. Phone number—it says email, no phone number, Shirpinoff (sic) I feel so sorry if you had a wife, oh my God. (spoken in foreign language). Ms.

Good: I’m sorry for that, Nicholas. A. Do you have a wife, I’m sorry? Ms. Good: Don’t say that. Don’t talk about that. A. Okay. Ms. Good: Come here.

A. It’s not my concern. I’m here about this affidavit not about him. Ms. Good: That’s right. [ 94 ] In the cross-examination of Mandy Cuthand, Mandy stated that he gave Jeffery $40 for fuel. It was after this discussion of the $40 when Jeffery started talking about ballots and " “x’s” " , at which point Mandy stopped talking to Jeffery. The text message stated, " “Its Jeffery meechance adeles other son. I am wondering if you could help me out with $40. I am trying to get funds, I was asked to go to Kamsack to do a ceremony. I am voting for you too.

You have my x. okay?” " [ 95 ] Mandy’s evidence is that he e-transferred Jeffery the $40 on February 17, 2016, and then on that same day Jeffery asked him for $50 in exchange for his mother’s, sister’s, and his own ballot. Mandy stated that he did not respond to the second request. I choose to believe Mandy’s explanation of why he provided Jeffery with $40 on February 17, 2016, and that it was for fuel and not to buy his vote. [ 96 ] The text messages have many requests from Jeffery for money for school books and gas.

Though the exhibit of the text messages does not have phone numbers, it is useful to provide an additional evidentiary component that serves to corroborate what the Chief and Councillors have said and to determine that Jeffery is not credible. [ 97 ] Chief Clinton provided hearsay evidence that Jeffery had schizophrenia and had been in mental health facilities throughout his life, as he had been told this by Jeffery’s mother and sister.

There was no medical evidence to support this allegation, and it is not necessary for me to make a finding regarding his ability to swear an affidavit, as I find him not to be a credible witness and I will not accept any of his evidence, as I find his evidence was tailored and will give it no weight.

(2) Nisha Wuttunee [ 98 ] Nisha Stewart Wuttunee [Nisha] who provided evidence for the applicant filed 4 affidavits one of which recanted the others. He was then cross-examined on October 30, 2017. [ 99 ] In response to recanting his affidavits, I was provided Good’s Affidavit #6 which addresses the circumstances surrounding Nisha’s provision of the affidavits. The affidavit of Eldon Wuttunee [Eldon], who considers himself to be Nisha’s uncle " “in the Cree way” " , provides evidence that Good says corroborates and contrasts against Nisha’s account in Affidavit #4 as does his wife " “Aunty” " Elsie Wuttunee [Elsie]’s affidavit. [ 100 ] A

summary of the allegations made by Nisha in his first 3 affidavits is that Chief Clinton supplied Nisha with cash, and gave him alcohol to have him swear a new affidavit and recant his previous affidavits. [ 101 ] Nisha’s narrative in Affidavit #4 alleges that following the band election in 2016, he was contacted by Elsie regarding the election appeal. Elsie expressed her concern that the Chief and Council were planning to take away traditional lands from traditional land owners. Nisha swore in his recanting affidavit that he was misled by Elsie and Good about Chief Clinton’s proposed traditional land policy.

Rather, after having talked to Chief Clinton on or around September 6, 2016, he felt that the Chief and Council were taking Red Pheasant First Nation in the " “right direction” " . He disputes Good’s assertion that he recanted his previous affidavits because he was " “bought” " by the Chief and Council, and he presented text messages as corroborating evidence. [ 102 ] Nisha lives with his grandmother at her house on reserve as do his uncle and father. In his Affidavit #1, his evidence is that his grandmother has dementia and his uncle has a severe intellectual disorder.

Nisha stated they were never alone that day, yet the Electoral Officer stated that he came to the house and they voted. That was confirmed by the band membership officer. [ 103 ] In Affidavit #2, Nisha stated that 3 weeks before the election, Chief Clinton gave him a $100 e-transfer through a third party, as he does not have online banking. Nisha said in his affidavit that Chief Clinton said " “remember to vote for me” " .

He was given another $50 a few days before the election, with another reminder to vote for Chief Clinton, and then a further $50 via e-transfer that was delivered in cash by Chief Clinton’s brother. Nisha stated further that a rumor was circulating that Chief Clinton would pay $100 if you took a photo of your ballot showing that you voted for him. Nisha said that he took a photo of his ballot, but never collected any money from Chief Clinton because he had voted for his friend running for Chief, Todd Baptiste.

He attached the photo of his ballot as an exhibit to the affidavit and noted that there was no security at the polling station to prevent photos. He further stated that vote buying has always been part of the Red Pheasant First Nation elections. [ 104 ] In Affidavit #3, Nisha states that Chief Clinton called him on May 17, 2006 (this must be a typographical error, and the intended date was likely May 17, 2016). Chief Clinton allegedly said that he had 21 affidavits against him, and later texted that he was concerned that the affidavit was not actually signed by Nisha.

Nisha’s evidence was that Chief Clinton came and gave his a 60oz bottle of alcohol and $50, and then asked him to go to Regina with him to swear a new affidavit. His evidence is that he took the alcohol and money, but did not swear a new affidavit, although Chief Clinton did text him during the evening to see if he was drinking. On May 18, 2016, on direction from Good, he went to the RCMP and filed a complaint that Chief Clinton was " “trying to pressure him to withdraw my evidence in this Appeal Application” " .

He further stated that he had no doubt that Chief Clinton would continue to try to pressure him. [ 105 ] My review of the text messages leads me to a different

interpretation. In the exhibited text messages, Chief Clinton does ask, " “Well did u make this affidavit?” " and Nisha’s response is " “I’ll jump in with you…No” " . Clinton then asks " “Will u sign one to state you never did this affidavit? I’m on my way” " . Nisha later says the signature " “kind of looks like it” " . [ 106 ] The actual text messages do not support the statements made in the affidavit. There is no mention of any offer as to whether Nisha can change his affidavit. Nisha texted " “LOL Captain Morgan spiced.

Text when you get here” " , to which Chief Clinton texted back, " “IDK cuz…Sounding sketchy” " (“IDK” being short for “I don’t know”). [ 107 ] In Affidavit #4, Nisha recanted his prior sworn statements to " “set the record straight” " and to provide an explanation as to why he is recanting his sworn statement.

[ 108 ] As noted above, Nisha stated that he was contacted by Elsie and was told that the Chief and Council were planning on taking away traditional lands from traditional land owners and he believed her as she is very politically connected. This made him angry as his family owns some of the traditional lands and he would do anything to protect his family’s lands. [ 109 ] Elsie gave him Good’s phone number and when he called her.

Good allegedly steered the conversation towards vote buying, and although he had not sold his vote or seen vote buying in this election, he was very upset about the Chief going to take away the traditional land. He stated that he did lie about his grandmother and uncle not voting and he did not contact the Electoral Officer Howard McMaster as he claimed he had.

He further says Elsie gave him alcohol and food after he swore his first affidavit. [ 110 ] Regarding what he said in his second affidavit, Nisha stated in Affidavit #4 that he did vote for the Todd Baptiste, but was not paid by anyone for his vote despite what he said in his earlier affidavit. Further Nisha’s evidence is that he did not receive anything from the current Chief and Council to recant his previous affidavits. [ 111 ] In Affidavit #4 he said that Good and Elsie told him to go to the RCMP and lay a complaint, and he did so as he was desperate to save their traditional lands.

Nisha swore that he was not pressured by Chief Clinton, but was pressured by Good to swear the affidavits and to round up people to swear affidavits to remove the Chief and Council. He attached text messages to show that Good was continuing to pressure him. On cross-examination, it became clear on the evidence that Nisha had addiction issues at the time he was swearing affidavits: Q. And now you’re saying it isn’t— A. No. I’m only saying this shit because I needed the money for drugs. That’s what the whole point is for. Q. I understand that. … Q.

We’re at paragraph 8 already, and you have agreed that everything up to that point is true. A. Yeah, but it—it was all lies to get my—my crack money. That’s all it was for. [ 112 ] He later stated that he received money, as was the common practise for the Chief and Council to give numerous items to their constituents, including money for a trip or food or gas money or pampers. He had asked the Chief Clinton for money to go to Regina to see his girlfriend. He then said he was paid for work that he did, and to not show up for examination for discovery after Chief Clinton drove him there and paid for a hotel room.

Later it came out that he was given the money to pay a fine so that he could go back to work to get his license back. [ 113 ] The cross-examination is telling as it is contradictory and confusing. Nisha admitted in cross-examination to being a heavy drinker, and being an addicted drug user of crack cocaine. Nisha said he would put forth evidence to feed his drug habit. [ 114 ] In Chief Clinton’s affidavit, he discusses Nisha, and sets out exactly when and why he provided money to Nisha. Chief Clinton also confirmed that Nisha had known addiction issues with alcohol and cocaine.

In his cross-examination, Chief Clinton confirmed that he gave Nisha money at Nisha’s request. [ 115 ] Note that Eldon is Good’s first cousin and Elsie is his wife. Elsie in Affidavit #3, confirmed that Nisha is vulnerable and suffers from substance abuse, is unemployed, and lives in extreme poverty. Eldon further confirmed in his affidavit that Nisha has substance abuse issues and always needs money for basics such as food.

Eldon has on multiple occasions given Nisha money to help him. [ 116 ] In Good’s cross-examination, her evidence was that Nisha told her that he was paid $2000 to swear the recanting Affidavit #4 and that and she accused Nisha of accepting a bribe. [ 117 ] The evidence makes it clear, unfortunately, that Nisha will say and do anything to obtain money to feed his addictions.

I will not give any weight to any of the evidence of Nisha, as he is unreliable and has addiction issues that he has admitted to. [ 118 ] Using Nisha to further the narrative of either party, given his obvious vulnerable situation and the complex issues that face communities due to systemic mistreatment of Indigenous peoples, is reprehensible. Based on the above, I will give his evidence no weight.

(3) Money to Assist Band Members in Need [ 119 ] Permeating throughout the evidence is the practice of Chief and Council providing band members with money. Good says that is this practice cannot be characterized as " “helping people” " , but rather that it is election corruption, that this kind of evidence is clandestine in nature, and that the conduct is corrupt. [ 120 ] A main allegation, then, that has been presented in a number of affidavits revolves around cash being given to band members by the Chief and Council at the time of the election and with respect to the appeal.

This is evidenced Good alleges by recorded e-transfers, as well as the requests and responses of the individuals as evidenced by print outs of text messages and Facebook chats. [ 121 ] In this context, the texts and Facebook chats have little weight, as they are open to various

interpretations and inferences. The meaning behind the messages is tarnished by opinion or hearsay and is unreliable in many cases. [ 122 ] I have evidence before me from both supporters of the appeal and the Respondents regarding the practise of the Red Pheasant First Nation’s Chief and Council providing cash to band members in need throughout the year.

[ 123 ] This has been the tradition for many years, and evidence was led by both parties to the effect that the Red Pheasant First Nation is not a wealthy First Nation, and that many of its members are in need of assistance for food, gas, and other necessities. [ 124 ] What is further evidenced in all the material is that people text or solicit the Chief and Council for cash; if the Chief or Council deem the request as a legitimate one, the Chief or Councillor will typically give them the money from their own pockets or accounts, and on occasion from a band account. [ 125 ] This practice does not stop during election campaigning.

Thus, the providing of money by a Councillor to a band member can be coloured or interpreted as buying a vote or may in fact be buying a vote, even though this practise is done regularly outside of the election period. [ 126 ] The evidence of Sandra Arias [Sandra] is relevant to this. Sandra is an appeal supporter and a former Councillor. Sandra was asked in her cross-examination about whether she was ever approached by people for money to help them out. Sandra agreed that she had a similar experience and had helped out members of the community, but that did not mean that there was vote purchasing occurring: Q.

Let me try it this way: It is the way of life on Red Pheasant First Nation for members of the First Nation to continually ask councillors for financial support, correct? A. Yes. Q. And that would happen 24 hours a day and 365 days a year, correct? A. Yes. Q. And it wouldn’t matter if it was election time or not correct? A. Yes. Q. Were you asked for money during election time when you ran in an election? A. Yes Q. Did you give people money? A. No Q. Never? A. No Q. Not for— … Q. …While you were running as a candidate for councillor did you ever give people money for food or gas or diapers or cigarettes? … A.

No Q. No one asked you for money? A. Yes, a lot of people asked me for money, and my response was always that it is a very dangerous line when you’re asking a candidate for money in terms of—and mentioning the election. I would always say if you need help with fuel, I can put fuel in your vehicle. Q. And did you? A. One occasion I did help a lady out, yes. Q. Sure. But you’ll agree with me just because you’re helping out members of your community— A. But it wasn’t—yes… Q. –doesn’t mean you’re buying their ballot? A.

I agree with you. [ 127 ] Another supporter of the appeal, Archie Nicotine [Archie], in cross-examination said: Q. Do you agree with me that councillors on Red Pheasant are asked on a regular basis for money from members of the band? A. Yes

Q. Have you asked Chief Wuttunee or any of the elected councillors for money? A. For help, yep. [ 128 ] Archie, provided evidence that he asked Chief Clinton for $150 to take a DWI Course so he could get his Driver’s Licence back. Chief Clinton gave him the money and Archie gave evidence that the check came from the Men’s Wellness account and though Archie said he really wanted the money for his Driver’s Licence it was an abuse as it was not related to his health.

This is not relevant to the election but is relevant as evidence that people ask the Chief and Councillors for money all the time when they have needs and no money. [ 129 ] In Chief Clinton’s Affidavit #1 at paragraph 8, he stated: Jeffery texted me several times " for financial assistance, just like many band members do in Red Pheasant.

Students, single mothers and " " grandmothers al have financial hardships and they struggle day to day at times, and it’s a common occurrence for Chief and Council to get requests from band " members for financial assistance daily. [ 130 ] Chief Clinton also made it clear that this provision of assistance did not extend simply to Jeffery, and stated in the affidavit at paragraph 11: … I have dealt with these two individuals many of times in the past, as they were always requesting financial assistance from my program. [ 131 ] Chief Clinton stated in response to the affidavit of Marie Baptiste [Marie] that: 12.

On January 19, 2016, Marie texted me asking for financial assistance, stating that she really needed the help. I informed her that Chief Stewart Baptiste had depleted the Brighter Futures budget in August 2015. 13. Marie stated that all she needed was $60 to get to and from work 14. On February 9, 2016, she texted me again asking for money to help her get her wife back from Cold Lake as she got sick, couldn’t work and was hospitalized. 15. On February 10, 2016, she texted me again asking for gas money to get to Edmonton for a job interview. I informed her that I was going to announce my candidacy for Chief.

She phoned me and I asked her if her mother had spoken to her about my intention to run for Chief. She said yes and that she would support me. I told her I would honour her request and e- transferred her some gas money to get to Edmonton for her interview. [ 132 ] In Chief Clinton’s cross-examination at page 906 of the transcript, he indicated: Q. All right, And so when you say Jeffery was saying you should help me out with gas money, how do you interpret that? A. Well, it’s just we help people out every day daily 365 days of the year, you know.

Like, last night I was getting text messages from band members at 3:00 in the morning asking for an E-transfer you know, it’s daily. It’s not an uncommon occurrence to help people out from our own pockets with gas money or whatever the emergency is. There is all kinds of emergencies. Q. Okay. So the reference to giving gas money, is that in the context of buying a ballot? A. No Q. Well, what is it in the context of? A. Well, even though there’s an election going on, it’s still the same thing every day, people are asking for assistance.

And the band is not a rich band, we don’t have, you know, excess dollars to just—you know, it’s got to be budgeted, so we’re on budgets, and , you know a lot of times we’re just giving people money from our pockets to help them with their daily—daily struggles and requests. [ 133 ] The Respondent Dana Falcon [Dana]’s affidavit evidence is also relevant to this issue. Dana swore the following: 2. In reply to Marie Wuttunee’s Affidavit dated May 20, 2016, on March 14, 2016, Marie contacted me with a personal request to assist her financially for fuel to get to work.

I was able to assist her and sent it to her at her request an e-transfer in the amount of $20.00. 3. At no time before or after the financial transfer was there any discussion with her regarding vote buying. The money was given to Marie to assist her as she had requested. [ 134 ] The affidavit evidence put forward by Dana supplements and corroborates the explanation put forward by the Respondents that the Chief and Council assisted people with their day-to-day expenses as a matter of practice both within and outside of the election period. [ 135 ] Henry Gardipy’s sworn evidence further corroborates this narrative.

Henry stated the following at paragraph 6 of his affidavit, " “I restate that as an incumbent Band Councillor, I assist numerous people of the Red Pheasant First Nation. I have helped Marie in the past and will continue to assist her in the future.” " [ 136 ] Mandy Cuthand’s affidavit is also relevant. The relevant affidavit evidence is reproduced below:

" 3. In response to the Affidavit of Marie Baptiste dated May 20, 2016, we were running for election, and campaigning for Council. We help people with problems " , such as no gas, no food, bills, etc. I would help when needed, but I can’t say what I helped Marie with. I think it was gas. I never told her to vote for me. It was her own choice when she got to the polling station. [ 137 ] In the cross-examination of Lux Benson [Benson], Benson provides further perspective on the issue of Chief and Council providing financial assistance to the community, garnished from 18 years of experience as a Councillor: Q.

Now, just why are people asking for money, for what purposes? A. I’ll clarify that in the best way I can. I lived there all my life. I’ve been a leader for my community for going on 18 years now, and I’ve sat on different portfolios, one of them which was the social development portfolio; I looked after welfare. And I’m aware—the thing is, is we are short-funded by the government where band members only get 255 a month, and some of them have kids, like three, four kids, to provide for. Q. Out of that $255 a month? A.

Out of $255 a month they have to buy their pampers, their food, their little bit of clothing they can buy. That’s all they get in that one month, so that’s why they go to chief and council and that’s why we give—we give out money, just the goodness of our heart as –as our position as a leader. Like, a long time ago, you go back to our people, like, my—my late dad and my grandpa’s time, they were hunters, they provided for the people, and that’s how they became a leader, they would help provide for the people. So it’s extended on now to us, to our generation.

Now nobody is hunting, but there is –financial— wise we try and help out whatever we can.

That’s how we help our people because they’ve struggling. ….. [ 138 ] I find that there is credible evidence to establish that there was a practice where the Chief and Council would and did provide money (cash or e-transfers) and other forms of assistance to band members in this impoverished band from their own pockets in addition to providing assistance from the band accounts. [ 139 ] The issue then before me is to determine in each situation that is presented in the affidavits as to whether the contributions by the individuals should be considered to be philanthropic, or whether these contributions were for the purposes of campaigning or vote purchasing.

The Respondents has provided a methodical refutation to the allegations. D. Issue Analysis Has the Applicant discharged its burden to satisfactorily prove that the FNEA has been contravened? And if so did it affect the election? (

a) Allegation #1-Filling out Blank Ballots for Support and joining Wuttunee’s slate of candidates (corrupt practice) [ 140 ] In her Amended Affidavit, Sandra states that Dana approached her two weeks before March 11, 2016 and told her that " “Wuttunee’s team was going to win and that they had runners all over buying ballots.” " No first name is provided, but I assume " “Wuttunee” " refers to Chief Clinton, and not one of the other candidates with the same last name (such as Keith Wuttunee), who is also mentioned in the Amended Affidavit. [ 141 ] In Sandra’s Amended Affidavit, she further stated that the slates of candidates are called " “teams” " and often have names such as " “Team United” " .

Dana allegedly approached Sandra to join their team, to which Sandra was non-committal. [ 142 ] Sandra’s evidence (paragraphs 15-18 ) was that: Wuttunee told me that he needed working councillors and that Falcon was going to be his right-hand man. He told me that he had 80 blank ballots that had not yet been filled out and that they were meeting that night to fill them out. Wuttunee and Falcon told me that these ballots would be filled out as votes for me if I agreed to join their team. All I had to do for these ballots was to convince my supporters to vote for Wuttunee’s team.

Again, I was non-comital in my response. … Over the final week before the election, the offer was first reduced to 50 ballots and then to 30 ballots in return for convincing my supporters to vote for Wuttunee’s team. I did not accept the offer. I was not successful in my bid for council and lost by a gap of 30 votes. [ 143 ] Good’s submissions regarding this allegation are that Chief Clinton and Dana were unlawfully in control of enough blank ballots to control the outcome of the election.

At the hearing, Good submitted that such a practice was corrupt, affected the integrity of the election, and breached the prohibitions set out in the FNEA . Good alleges that this practice is essentially vote buying by Chief Clinton, as Chief Clinton used a surrogate to do it for him. [ 144 ] Good created and filed a

summary of the walked in 8C ballots. I allowed Good to file this

summary against the objection of the Respondents. During oral argument, it was discovered that the

summary Good filed did not correspond with the actual ballots in the record. Good then chose to withdraw the

summary. [ 145 ] I note that this allegation overlaps with the next allegation regarding walk-in ballots. [ 146 ] Sandra’s affidavit evidence is that Chief Clinton and Dana told her that 80 blank ballots would be filled out as votes for her if she

agreed to join their team, and convince supporters to vote for Chief Clinton team: Q. All right. And do you have any evidence that Dana Falcon was talking about the physical ballots as opposed to delivering the votes to support you? A. They won by quite a large margin. Q. That’s your evidence? A. It— Q. I’m just asking A. I would have had the evidence had I gone to meet with them that evening, later on that evening. Q. But should have, could have, would have, might have, you don’t have any evidence? A. Yes. Q. Correct? A.

You are correct. [ 147 ] In the re-examination, Sandra further said that Dana had stated to her that he could bring 80 blank ballots that she could help fill out to bolster her campaign. [ 148 ] In contrast, the Respondents’ position is that the Wuttunee team wanted Sandra and her brother to join their slate of candidates, and if she did join their slate, they could swing votes her way as they did with all the candidates that were on their team.

In other words, they argue that the Wuttunee team did not provide blank ballots, but rather provided the opportunity to gain 80 potential votes. [ 149 ] In the cross-examination of Dana, he stated that he did talk to Sandra about working together with Chief Clinton and himself both before the election campaign and throughout the election period. [ 150 ] In Dana’s affidavit, he denied there ever being a discussion with Sandra and himself about the delivery of the 80 blank legal ballots to be filled out to her as she deposes.

He does confirm that he and Sandra ran on the same slate last election and were elected, so he hoped to work together again. [ 151 ] He does say that Elder Gerald Wuttunee who is Sandra’s uncle wanted Dana to approach Sandra so that the two families could work together. On redirect : A. well. We talked about, like, a blocked vote type of thing, like, aligning families because Gerald had his part of the family, and he—he wanted, like, myself and Sandra and Chief Baptiste all—or sorry, Chief Wuttunee to all work together just to have, like, a stronger alignment, I guess, with his family and— Q.

And Sandra was part of that family? A. Yes that’s his niece. Q. And were there any so-called 80 blank ballots? A. No. there was no talk about ballots or any ballots that I’ve seen. [ 152 ] Sandra’s Amended Affidavit stated that she was intimidated by the Chief and others, including Gary. [ 153 ] Good alleges that Sandra was intimidated by the now deceased Michael Cote, who was the step-son of Councillor Gary.

It was argued that Gary may harbour unhappiness because of his step son being incarcerated for an incident involving Sandra that happened in 2003. [ 154 ] However, in her cross-examination, Sandra stated clearly that she is not intimidated by the current Chief. When crossed-examined she admitted that she was not intimidated by the current Chief, Council or other Respondents, and that her affidavit referred to something that happened in or around 2012: Q. You’re talking about an incident that happened sometime in around 2010 or 2012? A. 2012. Q.

But nothing related to this current chief and council, the parties named in relation to this litigation? Nobody tried to intimidate you, Sandra, with regard to not speaking out about this election that’s the subject of this lawsuit, the 2016 election? A. I don’t think that I was—that’s what I was referring to in my Affidavit. Q Well, that’s what I thought you were referring to. So your answer to my question is, no, nobody tried to intimidate me and stop me from speaking out about this 2016 election?

A. No. [ 155 ] Based on the evidence before me, it is clear that Sandra is not intimated, so any allegation regarding the intimidation of Sandra affecting the election is unfounded. [ 156 ] In cross-examination, it was confirmed that Sandra had no personal issues with Dana. In fact, Sandra had been on Council in 2012 with Dana, and they had successfully run together on the same slate in 2012. In cross-examination, Sandra stated, " “He is very mild mannered, yeah.” " [ 157 ] She further confirmed in cross-examination that: Q. So he was urging you to join with him on a slate? A. Yes Q. and you refused? A.

I had considered it, but ultimately I did refuse, yes. Q. Did you join another slate? A. I was already currently running with another group of people. Q. Well, that makes sense, then. So which group of people or slate or team was that? A. I was running with Chief Candidate Todd Baptiste and his group of supporters. … Q. And did your brother also run with— A. My brother did run, yes. Q. Nathan? … A. Oh, yes. Yes, my brother, Nathan Arias, did run as well. Q. And neither of you were successful; is that correct? A.

That is correct. [ 158 ] Chief Clinton’s evidence in his affidavit dated January 20, 2018, says: 4. …I deny that there was any discussion between Sandra Arias and myself to provide illegal ballots to her as the Applicant claims. I deny offering to hand over to her blank ballots at any time. We did have a general discussion in which it was proposed that we work together to join support that each of us had amongst band members. 5.

I did ask Sandra Arias to work with us in the election campaign, however, I deny making any sort of offer to her to engage in any illegal or corrupt activity. [ 159 ] She was re-examined on this, but Good’s questions were leading questions and at some points, Good was directly supplying answers. For example, Good asked: Q. And you gave evidence—or you were asked if Dana Falcon had stated to you that he could bring you the vote, that he could bring you support in the form of their supporters voting for you.

In your Affidavit you swear that he had said that there were 80 blank ballots that were going to be filled out that night and that they would be given to bolster your campaign, that they would be given to you; is that correct? A. Yes. I should— Q. But they were not—your evidence is that the ballots were being filled out that night, correct? A. Yes, that they were inviting me to fill them out with them, so they would ensure that my name would be on them and that — Q.

Correct. [ 160 ] When Dana was cross-examined by Good on December 29, 2016, there were no questions regarding the alleged meeting or the blank ballots. [ 161 ] I counted the 8C ballots in evidence and found only 7 ballots where Dana had solemnly declared that he had a ballot package of a named person and that he actually delivered. Even if the number count is minutely off, it is far from the alleged 80 ballots that Dana supposedly had and was filling out and delivering.

[ 162 ] In cross-examination it was explored why she was not paid after disrupting Council session. Her lack of forthrightness in other matters, as well as the corroborating evidence of Chief Clinton and Dana, leads me to believe that there were not blank ballots that were going to be filled out. [ 163 ] Rather, I find that she is a strong successful woman that had been elected as a supporter of one group, and when she chose not to be part of that block, she lost.

The allegations have reasonable explanations given by the Respondents that were also at the " “meeting” " and I will prefer their evidence. [ 164 ] I find that Sandra and her brother were asked to join the Wuttunee slate of candidates, and not that they would have 80 blank ballots to fill out with her selected. In the last election (2012-2014 interim) that Sandra had won, she had been part of the Wuttunee slate of candidates. [ 165 ] Having slates or teams of candidates in political elections is not uncommon. Sandra herself confirms as much: Q. Okay. Now— A.

And it’s done in every type of election, municipal, provincial, federal. Q. Because you will appreciate that in election talk people will frequently say I can deliver 100 votes for you, right? You have heard that kind of talk? A. Oh, yes. Q. That’s not the same thing as handing over to you official unsigned ballots? A. No, it is not. [ 166 ] I do not find it a violation of the FNEA or any common-law principles to be asked to join a slate of candidates. I find on the evidence before me that Dana, on behalf of a slate of candidates, did try to have Sandra join their slate.

This political maneuvering would appear to be what occurs in many elections, and is a recognized part of the political process. [ 167 ] This allegation has not been proven on a balance of probabilities. (

b) Allegation #2- Walk-in ballots [ 168 ] Good alleges that the fraud that occurred was facilitated by the overbroad use of Form 5D ( Form to Request a Mail-in Ballot ) and Form 8C ( Declaration of Person Delivering a Mail-in Ballot Package ) which allowed illegally obtained ballot forms to be placed in the ballot box, therefore controlling the outcome of the election. [ 169 ] Good stated that if a member lived off-reserve, the member can fill out a request to receive a ballot, and then the Electoral Officer would then mail it to them. [ 170 ] Good argued that Chief Clinton and Dana would use a Form 5D to get a ballot, and then send it to someone other than that person so they could pick the blank ballot and then the Wuttunee team would then fill out the blank ballot and then walk the ballot in. (

i) Jennifer Peyachew & Sam Wuttunee [ 171 ] Jennifer Peyachew [Jennifer] filed an affidavit that indicates that on or about March 5, 2016, she was picked up by Sam Wuttunee [Sam], a candidate for Council from work. Sam then took her to another candidate, Charles Meechance [Charles]’s house. She stated in her affidavit that Charles had blank 5D Forms in his house. She says she signed one to request mail-in ballots. She said she put a Lloydminister address that was not hers on the 5D Form. [ 172 ] Jennifer’s affidavit states that her ballot package arrived in Lloydminister and Stayce Peyachew [Stayce] took a picture of the ballot package and posted it on Facebook on March

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