Assiniboine v. Meeches, 2013 FCA 177 (2013)

Parts:Assiniboine v. Meeches
Reporting Judge:BLAIS C.J.
Docket Number:A-102-13, A-101-13
 
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Federal Court of Appeal - Assiniboine v. Meeches [Anonymoused]

Source: http://decisions.fca-caf.gc.ca/en/2013/2013fca177/2013fca177.html

Date: 20130705

Dockets: A-102-13

A-101-13

Citation: 2013 FCA 177

CORAM: BLAIS C.J.

MAINVILLE J.A.

NEAR J.A.

BETWEEN:

Docket: A-102-13

GEORGE ASSINIBOINE,

MARVIN DANIELS and RUTH ROULETTE

Appellants and

DENNIS MEECHES

Respondent

BETWEEN:

Docket: A-101-13

DAVID MEECHES

Appellant and

DENNIS MEECHES

Respondent

Heard at Winnipeg, Manitoba, on June 25, 2013.

Judgment delivered at Ottawa, Ontario, on July 5, 2013.

REASONS FOR JUDGMENT BY: MAINVILLE J.A.

CONCURRED IN BY: BLAIS C.J.

NEAR J.A.

Date: 20130705

Dockets: A-102-13

A-101-13

Citation: 2013 FCA 177

CORAM: BLAIS C.J.

MAINVILLE J.A.

NEAR J.A.

BETWEEN:

Docket: A-102-13

GEORGE ASSINIBOINE,

MARVIN DANIELS and RUTH ROULETTE

Appellants and

DENNIS MEECHES

Respondent

BETWEEN:

Docket: A-101-13

DAVID MEECHES

Appellant and

DENNIS MEECHES

Respondent

REASONS FOR JUDGMENT

MAINVILLE J.A.

[1] This concerns two consolidated appeals from a judgment of Russell J. of the Federal Court (the “Application Judge”) dated February 26, 2013 and cited as 2013 FC 196 (the “Reasons”) which declared that the Long Plain First Nation Election Appeal Committee (the “Election Appeal Committee” or “Committee”) had made a final and binding decision requiring new elections for the offices of the Chief and all the councillors.

BACKGROUND AND CONTEXT

(a) Overview of the litigation

[2] The Long Plain First Nation (the “First Nation”) is a band within the meaning of the Indian Act , R.S.C. 1985, c. I-5. It is governed by a Chief and four councillors forming the council of the band under the Indian Act . They are elected for three year terms pursuant to the Long Plain First Nation Election Act (the “Election Act” or the “Act”), an election code adopted by the First Nation. The last elections were held in April 2012, and resulted in the election of the appellant David Meeches as Chief, and of the appellants George Assiniboine, Marvin Daniels and Ruth Roulette as councillors. Barbara Esau, who is not a party to these appeals, was also elected councillor at that time.

[3] The Election Act designates the Chief and the councillors as the “Tribal Government”. This is an expression borrowed from American Indian law. Though the expression “Long Plain First Nation Government” may be more appropriate, I will nevertheless refer to the “Tribal Government” in these reasons in light of its use in the Election Act.

[4] Various appeals challenging the results of the April 2012 elections were submitted to the Election Appeal Committee constituted under the Election Act. One of the appeals was made by the respondent Dennis Meeches, who had unsuccessfully run against the appellant David Meeches in the election for the office of Chief. After reviewing the appeals before it, the Election Appeal Committee concluded that the election process overall appeared to have been fairly conducted. It nevertheless recommended that the elections be set aside and new elections be held.

[5] An application for judicial review was subsequently filed in the Federal Court on behalf of the First Nation seeking to set aside that decision. Concurrently, a motion was brought seeking to stay the decision pending the final determination of that application. The stay motion was dismissed by Harrington J. (the “Motion Judge”) on the ground that the Election Appeal Committee had simply recommended that new elections be held, and that this recommendation was not a “decision” or an “order” that had to be accepted or acted upon by the Tribal Government. The Motion Judge however noted that if an order was issued by the Election Appeal Committee calling for new elections, then a new stay motion could be submitted, if need be. The First Nation discontinued its application shortly thereafter.

[6] The respondent Dennis Meeches then initiated his own application for judicial review before the Federal Court. That application was dealt with in the judgment under appeal. The Application Judge found that he was not bound by the prior decision of the Motion Judge. He rather concluded that the Committee had made a binding decision calling for new elections.

[7] The respondent subsequently filed a motion in the Federal Court seeking an order pursuant to Rule 431 of the Federal Courts Rules , SOR/98-106 compelling compliance with the judgment of the Application Judge. That motion was dismissed by Strickland J. on April 11, 2013 on the ground that the judgment was purely declaratory and could therefore not be enforced under Rule 431.

[8] The appellants subsequently sought an order from this Court staying the judgment of the Application Judge. I granted this stay on April 29, 2013 for reasons cited as 2013 FCA 114. In light of the circumstances, I further ordered that the consolidated appeals be expedited.

(b) The Election Act

[9] It is appropriate to reproduce upfront the principal provisions of the Election Act which are at issue.

[10] Article Five of the Election Act provides for the conduct of a candidate during an election. It specifically forbids vote buying and states the consequences for a candidate engaging in the practice:

5.4 No buying of votes in any manner, i.e. giving money, buying alcohol, or anything given or exchanged of monetary value between Nomination Day and Election Day.

...

5.11 Failure to adhere to Sections 5.1 to 5.10 will lead to disqualification of the candidate.

[11] Article Eight of the Election Act deals with the Election Appeal Committee. It notably provides for the following regarding the composition, duties and authorities of the Committee:

8.1 The Election Appeal Committee shall consist of three (3) non-Tribal members.

...

8.5 The Election Appeal Committee shall have the authority ... to investigate and determine whether any elected official has vacated his/her office as a result of the provisions of Article 18 herein.

8.6 The Election Appeal Committee shall investigate a substantial matter brought before them relating to ... an allegation pursuant to Article 5 or Article 17 upon receiving a written request to investigate. The written request shall be delivered to the Election Appeal Committee by any elector.

8.7 The Election Appeal Committee shall have the discretion to determine the scope of any investigation and upon completion; ( sic ) the Election Appeal Committee shall provide to the Tribal Government their findings within two (2) days, in writing.

8.8 In the event the Election Appeal Committee recommends that the elected official has vacated his or her office pursuant to a breach, the Tribal Government shall declare the office vacant and forthwith call a By-election. The declaration shall be in the form of a Band Council Resolution passed at a duly convened meeting of the Tribal Government.

[12] Article Twelve of the Act deals with nomination appeals. It sets out an appeal mechanism for candidates who have been found by the Electoral Officer to be ineligible to run in an election:

12.1 If a candidate is found to be ineligible by the Electoral Officer, with respect to his/her nomination, he/she may appeal within two (2) days of the close of the nomination meeting.

12.2 The candidate must submit a letter, with supporting documentation, stating the reasons for his/her nomination appeal.

12.3 The Election Appeal Committee will immediately convene a meeting with the ineligible candidate appealing to present his/her nomination appeal.

12.4 The Election Appeal Committee will discuss and make a recommendation within three (3) days of the nomination meeting as to whether or not the ineligible candidate is to be re-instated.

12.5 The decision of the Election Appeal Committee shall be binding and final.

[13] Article Seventeen concerns election appeals. It sets out the provisions governing an appeal of the results of an election:

17.1 Any candidate or elector has the right to appeal the results of an election within seven (7) days from the date of the election.

17.2 Grounds for an appeal are restricted to election practices that contravene this Election Act.

17.3 An appeal must be in writing duly signed to the Electoral Officer and must contain details and supporting documentation as to the grounds upon which the appeal is being made and include a non-refundable deposit fee of $100.00 by certified cheque, money order, bank draft or cash and which monies are to be applied toward the appeal costs.

17.4 The Election Appeal Committee shall determine as to whether or not an appeal hearing should take place.

17.5 If it is determined that there is sufficient evidence to warrant an appeal hearing, the Election Appeal Committee shall schedule a formal meeting two (2) days after the election appeal deadline.

17.6 An appeal hearing will take the form of a formal meeting consisting of:

The Electoral Officer

The Election Appeal Committee

The candidate or elector making the appeal.

17.7 The decision of the Election Appeal Committee shall be irrevocable, binding, and final. The decision must be made public within (2) ( sic ) days of the appeal hearing with the decision being posted at the Tribal Government office, Administration office, and Keeshkeemaqua Conference Centre.

[14] Article Eighteen is entitled “Vacancy” and deals with various disqualifications of elected Tribal Government members, including disqualifications related to corrupt election practices:

18.1 Any office of the Tribal Government becomes vacant when the person who holds office:

...

d. Has been found guilty of corrupt practice in connection with the election pursuant to a decision of the Election Appeal Committee. A corrupt practice shall include, but not be limited to, tampering with the election process, bribery, or coercion related to the election, campaigning while the polls are open, and anything else the Election Appeal Committee deems to be a corrupt practice.

...

i. If...

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