JIM BOUCHER Appellant v. CECILIA FITZPATRICK, 2012 FCA 212

Federal Court of Appeal Cour d'appel fédérale Date: 20120725 Docket: A-94-12 Citation: 2012 FCA 212 CORAM: DAWSON J.A. GAUTHIER J.A. STRATAS J.A. BETWEEN: JIM BOUCHER Appellant and CECILIA FITZPATRICK Respondent Heard at Vancouver, British Columbia, on June 19, 2012. Judgment delivered at Ottawa, Ontario, on July 25, 2012. REASONS FOR JUDGMENT BY: GAUTHIER J.A. CONCURRED IN BY: DAWSON J.A. STRATAS J.A. Date: 20120725 Docket: A-94-12 Citation: 2012 FCA 212 CORAM: DAWSON J.A. GAUTHIER J.A. STRATAS J.A. BETWEEN:

JIM BOUCHER Appellant and CECILIA FITZPATRICK Respondent REASONS FOR JUDGMENT GAUTHIER J.A. [ 1 ] Jim Boucher appeals from the decision of the Federal Court (reported as 2012 FC 294 ) allowing the judicial review application of Cecilia Fitzpatrick and setting aside the decision of the Appeal Arbitrator and the April 5, 2011 election of the Chief of the Fort McKay First Nation. [ 2 ] For the reasons that follow, I believe that the Appeal Arbitrator correctly interpreted the Election Code. Therefore, the application should have been dismissed and this appeal should be allowed. Factual Background [ 3 ] Prior to the April 5, 2011 election and in accordance with

section 5.1 of the Election Code of the Fort McKay First Nation (the Band), the Band council appointed a member of the Alberta Bar practising in the area of municipal law as the returning officer (“Returning Officer”). [ 4 ] The parties to the appeal were both candidates nominated for the office of Chief. In addition, twelve candidates were nominated for the four offices of Councillor.

Separate ballots were used by the electors to vote for the office of Chief and for the office of Councillor. [ 5 ] The Returning Officer interpreted the Election Code as giving her the power to allow a friend or relative to assist an incapacitated voter. She established a voting procedure permitting incapacitated electors to designate an individual to assist them in marking their ballots. [ 6 ] According to the evidence of the Returning Officer before the Appeal Arbitrator, she prepared special forms for this purpose.

The first one was to be signed by her after asking an incapacitated elector whether he or she wanted a specific individual to help him or her. Upon receiving an affirmative answer, the Returning Officer would initial a form (Form 11) that is very similar to the one used under the Local Authorities Election Act , R.S.A. 2000, c. L-20 , for municipal elections in Alberta. She would then require the specified individual to read and sign a statement which provided that: 1. he or she was a friend or relative of the incapacitated elector and; 2. he or she would: (

a) read the ballot to the incapacitated elector; (

b) mark the ballot in accordance with the incapacitated elector’s instructions; and, (

c) keep secret all information that might come to him or her by virtue of providing the assistance. [ 7 ] In the present case, the above statement was read to the persons who assisted the incapacitated electors at the centre of the appeal.

[ 8 ] After a re-counting of the votes, Mr. Boucher was elected Chief with a total of 163 votes, while Ms. Fitzpatrick received 162 votes. [ 9 ] Ms. Fitzpatrick filed a Notice of Appeal pursuant to

section 81.1 of the Election Code of the Band, seeking an Order setting aside the election for the Chief and the Councillors. Ms. Fitzpatrick alleged, among other things, that an elector had illegally voted twice (the second time by marking a ballot on behalf of the incapacitated elector) and that this was a breach of the Election Code that could directly affect the outcome of the election of the Chief. [ 10 ] The appeal heard by the Appeal Arbitrator focussed on one incapacitated person, Ms. Maggie Bouchier, an elder of the Band who is blind and was assisted at the voting station by her first cousin, Ms. Powder.

However, it is not disputed that a total of 6 incapacitated electors were effectively assisted by a person other than the Returning Officer during the April 5, 2011 election. It is not clear if any of the other incapacitated electors were blind. [ 11 ] Given the number of votes separating the four successful candidates for the office of Councillor from the next unsuccessful candidate, it is not disputed that, as found by the Appeal Arbitrator, the issue raised by Ms. Fitzpatrick could have no impact on the results of the election of the four Councillors.

Thus, the appeal in respect of the election of the Councillors could not meet the prerequisites set out in

section 81.1.1 or 81.1.2 of the Election Code, which provide that the breach or irregularity complained of must have “affected the outcome of the elections” [ 12 ] After a hearing, the Appeal Arbitrator dismissed the allegation that there was a breach of the Election Code that could directly affect the outcome of the election of the Chief. [ 13 ] Before discussing the basis of the decision of the Appeal Arbitrator and of the Federal Court, it is useful to reproduce the provisions of the Election Code to which the parties referred to. The Election Code 7. Duties of returning officer 7.1.

In addition to performing the duties specified in this Code, a returning officer shall: […] 7.1.2 retain and appoint polling clerks and other persons as required; […] 7.1.11 do all other things necessary for the conduct of an election. 38. Secrecy of vote 38.1. While an elector is in a voting compartment for the purpose of marking the elector’s ballot, no other person, except a person who has been permitted to assist an incapacitated elector, may enter the voting compartment or be in a position from which the person can see how the elector marks the elector’s ballot. 39. Maintenance of secrecy 39.1.

No person shall be required to disclose in any proceedings, including proceedings for a controverted election, whether the person has voted for a particular candidate. 40. Number of votes 40.1. An elector in an election may vote once. […] 45. Disposal of marked ballot

[…] 45.3. After the elector’s ballots are deposited in the ballot box, the elector shall forthwith leave the voting station. 48. Persons at voting station 48.1. Except for the returning officer, election officials, agents of candidates authorized to attend at the voting station and the electors who are for the time being actually engaged in voting, no other person is entitled to be present, nor shall any other person be permitted to be present, in the voting station during the time appointed for voting.

For greater certainty, the persons prohibited from the voting station include candidates, unless attending for the purposes of casting their own vote, and members of the media. 51. Interpreter 51.1. If an elector does not understand the English language, the returning officer may allow or appoint an interpreter to translate any statements, questions, or documents as necessary to allow the elector to vote. 51.2. The interpreter may not be an elector or member. 54. Advance vote stations 54.3.

The returning officer or his agent may, on the advance voting day, attend with electors who are shut in, in hospital, or otherwise incapable of physically attending at a voting station for the purposes of receiving that elector’s vote. Any votes received from such electors shall be held in a separate ballot box which is then sealed so that no ballots can be deposited in it without breaking the seal, and the ballot box must remain like that and be stored in a secure place until it is opened for the counting of ballots at the close of the voting stations on election day. 57.

Incapacitated elector at voting station 57.1. The returning officer, at the request of an elector who is unable to read or is incapacitated by blindness or another physical condition from marking the elector’s ballot in the usual manner may, at the elector’s request, mark the vote of that elector on the elector’s ballot in the manner directed by that elector, and shall immediately deposit the ballot in the ballot box. 57.2. No candidate or agent shall be present in the voting compartment at the marking of a ballot under this section. 81. Permitted grounds of appeal 81.1.

A candidate or elector who voted in the election, may appeal an election on the basis that: 81.1.1. the returning officer made an error in the

interpretation or application of the Code which affected the outcome of the election; 81.1.2. a person voted in the election who was ineligible to vote and provided false information or failed to disclose information relevant to their right to vote and their participation affected the outcome of the election; […] The Decision of the Appeal Arbitrator [ 14 ] In his detailed decision, after summarising the evidence, the Appeal Arbitrator reviewed the relevant provisions of the Election Code and concluded that the Returning Officer did not err in her

interpretation of

section 57 of the Election Code. He agreed that while this provision gives her the power to assist the incapacitated electors when so requested in marking their ballot, she was not the only person that could do so. He found that she was entitled to allow Ms. Powder to assist Ms. Bouchier in the voting compartment after signing the form she had created for that purpose. [ 15 ] It is to be noted that there was no evidence that Ms. Powder did not perform her duty in accordance with the undertaking she signed. Although she could not actually see what Ms. Powder did, Ms.

Bouchier confirmed that she had no reason to believe that the marking was not done according to her instructions. There was no allegation that Ms. Powder had tried to influence Ms. Bouchier in any way. The Decision of the Federal Court [ 16 ] The application judge, applying the standard of correctness, held that the Arbitrator erred in his

interpretation of the Election

Code. [17] He reasoned that under normal circumstances, electors are required to mark their own ballot, free from any outside influencein the voting compartment (Reasons, paragraph 63). Any exception to such principle would have to be explicitly stated in the ElectionCode. He noted in that respect that there were no provisions in the Election Code similar to

section 57.1 in respect of friends or relativesof an incapacitated elector. [18] The application judge added that his conclusion was supported by

section 48.1 of the Election Code, which in his view clearlyprohibits an elector’s friends or relatives from being present at the voting station, let alone in the voting compartment. In his view, toconstrue

section 57.1 of the Election Code in the manner suggested by Mr. Boucher and adopted by the Appeal Arbitrator wouldcontradict

section 48.1 (Reasons, paragraph 54). [19] Hence, the application judge, after noting that the number of votes in question was sufficient to void the outcome of theChief’s election given that there was no way of knowing whom the affected ballots were cast for, concluded that this election “must beset aside” (Reasons, paragraphs 65-66). Issues on Appeal [20] Mr. Boucher raises two issues: 1. Did the application judge err in his

interpretation of the Election Code? 2. Did the application judge err by granting the relief sought by Ms. Fitzpatrick, apparently without exercising his judicialdiscretion after weighing all the relevant circumstances? Analysis [21] The parties agree that the first issue before the application judge and before us is a pure question of law reviewable under thecorrectness standard. While, obviously, parties’ views as to the applicable standard of review do not bind the Court, in this appeal, I donot need to say more on the applicable standard, given that in my view, the Appeal Arbitrator’s

interpretation was both correct andreasonable. Thus this issue becomes irrelevant. [22] It is trite law that the granting of relief by way of judicial review is in essence discretionary. This Court will not interfere withsuch discretionary decision unless it is satisfied that the application judge has seriously misapprehended the facts or given insufficientweight to relevant factors or proceeded on a wrong principle of law (Elders Grain Co. v. Ralph Misener (The), 2005 FCA 139, [2005] 3 F.C.R. 367 at paragraph 13, Mayne Pharma (Canada) Inc. v.

Aventis Pharma Inc., 2005 FCA 50, 38 C.P.R. (4th) 1 at paragraph 9). [23] The Respondent argues that the application judge applied the correct approach and came to the right conclusion, given thevery clear terms of

section 48.1 providing that no one other than those persons expressly listed in that

section may be present at thevoting station. She also submits that on proper reading of the Election Code as a whole, particularly

section 51.2 dealing withinterpreters, it is clear that the intent was to avoid having an elector or any member of the Band present at the voting station in anycapacity whatsoever, except while engaged in the actual process of voting. As I understand this submission, the Respondent argues thateven if someone other than the Returning Officer was entitled to assist an incapacitated elector in the voting compartment, such personcould not be an elector or band member as these words are defined in the Code. [24] I cannot agree. [25] The Election Code must be construed using the general principles of statutory

interpretation and the modern approach set out in E.A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at page 87 and adopted by the Supreme Court ofCanada in numerous decisions since Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193. [26] It is for this reason that, in my view, the application judge erred by unduly focussing on

section 48.1, giving it too muchweight in the overall context.

[ 27 ] It is not disputed that election legislation which includes the Election Code under review, should be construed in a manner consistent with its object of providing all eligible voters with an opportunity to exercise their basic democratic right – the right to vote. [ 28 ] The

interpretation suggested by the Respondent would mean that incapacitated electors who are uncomfortable dealing with a person such as a returning officer who is unfamiliar to them (as may be the case with some electors as mentioned by the Returning Officer in her testimony before the Appeal Arbitrator) would end up losing their right to vote. [ 29 ] I also note that the concept that incapacitated electors may be assisted by a friend or relative of their choice in the voting compartment to mark their ballot appears to be well accepted.

It is incorporated in the Federal and Alberta legislation (the two most pertinent here). However, that is not to say that, to exist, such right must be drafted in the same manner as in the Canada Elections Act , S.C. 2000, c. 9 or in the Alberta legislation. [ 30 ] The Respondent asserts the right of every eligible elector to vote in secrecy and to do so without influence from others. [ 31 ] However,

section 38.1 of the Election Code entitled “Secrecy of vote” expressly recognizes that incapacitated electors may be in the voting compartment with a person who has been permitted to assist them. [ 32 ] The Appeal Arbitrator found the reference to “a person” in

section 38.1 rather than to the well defined expression “returning officer” supported his view that a returning officer is not the only person who can assist an incapacitated person in the voting compartment. I agree. [ 33 ] Like the Appeal Arbitrator, I also find that the presence of

section 57.2, which expressly prohibits a candidate or his agent from being in the voting compartment with an incapacitated person who requires assistance in marking his or her ballot, as well as the use of the permissive ‘may’ and ‘at the request of’ in

section 57.1, support the conclusion that the Returning Officer is not the only person that can be allowed to assist an incapacitated elector including Ms. Bouchier. [ 34 ] It is evident that if a person is permitted to accompany an incapacitated elector in the voting compartment, such person must be at the voting station while the incapacitated elector is “engaged in the process of voting” within the meaning of

section 48.1 which deals with “Persons at voting stations”. [ 35 ] Also, once again despite the language that would otherwise appear to exclude his or her presence there in

section 48.1, an interpreter allowed to assist electors who do not understand English pursuant to

section 51.1 must also be present at the voting station. [ 36 ] In both cases, the general principle set out in

section 48.1 that only those persons actively engaged in the process of voting should be present at the voting station is in my view respected. [ 37 ] Can the Court read into

section 57.2 a further exception in respect of members or electors in general, based on the general intent alluded to by the Respondent particularly on the wording of

section 51.2? I do not think so. Both exclusions (51.2 and 57.2) are clear and the fact that the drafters felt the need to expressly exclude members and electors only in

section 51.2 indicates, in my view that such exclusion is not implicit in

section 57.2 and was not intended to apply to the persons referred to in

section 38.1. [ 38 ] Both parties agreed that the Election Code could have been drafted more clearly. This is true and the Band may decide to amend it in due course now that it has the benefit of at least one election. But, this does not justify interfering with the decision of the Appeal Arbitrator. [ 39 ] Finally, it is also worth mentioning that it may be good practice for a returning officer to explain to incapacitated electors the choices that are available to them. [ 40 ] With respect to the second issue, I note that recently this Court in Dennis v.

Adams Lake Indian Band , 2011 FCA 37 , 419 N.R. 385 at paragraphs 28-31 , discussed the impact of the then-recent decision of the Supreme Court of Canada in MiningWatch Canada v. Canada (Fisheries and Oceans) , 2010 SCC 2 , [2010] 1 S.C.R. 6 . Stratas J.A. writing for the Court said that in exercising its discretion to

quash or not a decision of an administrative body, even when there are grounds for doing so, a reviewing court must consider the broadest range of practical factors and “legal error or non- compliance should not be given undue weight: the practicalities may outweigh the legalities.” [ 41 ] Although I believe that, in this matter, there may have been an arguable case for this Court to substitute its discretion for that of the application judge and to exercise it differently, in light of my conclusion in respect of the first issue, it is not necessary to say anything further in that respect. [ 42 ] I would allow the appeal with costs both in this Court and the Federal Court and set aside the decision of the Federal Court.

Making the judgment that the Federal Court should have given, I would dismiss the application for judicial review. “Johanne Gauthier” J.A. “I agree Eleanor R. Dawson J.A.” “I agree David Stratas J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-94-12 STYLE OF CAUSE: JIM BOUCHER v. CECILIA FITZPATRICK PLACE OF HEARING: Vancouver, British Columbia DATE OF HEARING: June 19, 2012 REASONS FOR JUDGMENT BY: GAUTHIER J.A. CONCURRED IN BY: DAWSON J.A

STRATAS J.A. DATED: July 25, 2012 APPEARANCES : Graham S. Ragan FOR THE APPELLANT Priscilla Kennedy FOR THE RESPONDENT SOLICITORS OF RECORD : Gowling Lafleur Henderson LLP Ottawa , Ontario FOR THE APPELLANT Davis LLP Vancouver , British Columbia FOR THE RESPONDENT