How to Nullify An Election in 4 Easy Steps: Poker v Mushuau Innu First Nation
Though a few weeks old by now, the recent decision by the Federal Court in Poker v Mushuau Innu First Nation, 2012 FC 1 [Innu], was too interesting to go without comment. In Innu, the Court set aside a First Nation Band Council election due to a series of shortcomings in the election process.
The Mushuau Innu First Nation is located in Labrador near Davis Inlet. In 1983 the Band Council chose to incorporate. Subsequently, in 2000, the Corporation’s Board of Directors adopted By-Law No.1 – the Band’s Constitution. Amongst other provisions, the Constitution sets out governmental requirements and electoral procedures.
Specifically, Articles 5.2-5.8 set provisions requiring that elections be called between the 25th and 35th month of an electoral term, that a voters list be posted at least two weeks prior to any election by the Returning Officer appointed by the Council, and that the four persons receiving the highest numbers of votes case (2 female, 2 male) be Councillors. The terms of the Constitution were historically supplemented by customary practices, namely the marking of ballots in secret, the writing of candidate’s names in English and Innu-eimun, and the use of telephone and off-reserve voting.
Citing Laboucan v Loonskin, 2008 FC 193, Justice Rennie held that the appropriate legal test for determining the validity of an election involved a two-step analysis. First, in light of the reality that no election is ever perfect, the party challenging the election must demonstrate a “substantial problem” with the electoral process. If this threshold is met, the burden shifts to the respondent to show that the results are still reliable in spite of the problems.
Justice Rennie opted to set aside the election on the basis of four shortcomings:
Notice – Article 5.3 of the Band Constitution requires that elections be held one month after the date of the election call. Band practice had typically seen the Band Manager [Ms Katie Rich] appoint a Returning Officer to run the election in its entirety from start to finish. Though the Band Council decided that there would be an election on January 10, 2010, no steps were taken in furtherance of this until February 20, 2010, when notice was posted for an election to be held thirteen days later on March 5. The Chief, Prote Poker, ended up posting the requisite notice on February 20 when he realized that the Returning Officer, Ms. Veronica Rich Voisey, was not engaged in the process. Despite the responsibilities associated with her position, Ms. Voisey would not become involved in the process until four days before the actual election!
Control of the Ballot Box – Justice Rennie captured the problems regarding control of the ballot box succinctly:
“The polling ended at 5:00pm. Ms Veronica Rich Voisey, the Returning Officer, had control of the ballot boxes up until this point. Thereafter, custody of the ballot boxes becomes unclear. It was conceded by counsel for the applicant that the right of the returning officer to maintain control of the ballot boxes became an issue between Ms. Katie Rich and some members of the Band with the result that the RCMP were called. The RCMP declined to take custody of the boxes, and in the end, Simeon Tshakapesh took control of the boxes. Counting began at 6:00pm and Simeon Tshakapesh was elected Chief.”
Spoiled Ballots – 13% of all votes cast in the election were spoiled. This abnormally high number stemmed from two major problems with the ballots themselves. First, the check boxes beside each candidate’s name were not properly aligned. Second, ballots were only printed in English, and not in Innu-eimun. When the Returning Officer, Ms. Voisey, attempted to bring this issue to the Band Council’s attention, she wad told “not to worry” about it.
Failure To Account for the Number of Ballots Printed – Ms. Voisey was not supplied with an updated voters list when she was appointed Returning Officer. Instead, she was told she “did not need one.” Likewise, the number of total ballots printed was never disclosed. As a result, deceased members of the Band were on the voters list. Likewise, the number of phone-in ballots was not known.
Off-reserve voting took place without scrutineers and scrutineers were also not allowed to be present during ballot counting. In combination with the lack of process to identify and verify phone-in voters and the unexplained one hour gap between the close of polls and ballot count, Justice Rennie found ample reason to be suspicious of the final results. This suspicion was amplified by the reality that, mathematically, the number of spoiled ballots could have resulted in up to four different female candidates winning a spot as Councillor.
As a result of the short notice on which the election was held, the loss of control over the number and form of ballots that resulted in an “unacceptably high” number of spoiled ballots, and the loss of control of the ballot box itself, Justice Rennie found that the “substantial problem” threshold had been met. Unsurprisingly, in light of the aforementioned problems, the respondents were unable to rebut the presumption by demonstrating that the election was nonetheless reliable. As such, the election results were overturned and a new election was ordered, pursuant to s.18.1 of the Federal Courts Act, RSC 1985, c F-7 [FCA].
Justice Rennie also issued a writ of quo warranto, but to ensure that the Band maintained a functioning governmental structure during the election, stayed its effect until the fulfillment of the new election. Of interest, recognizing the “extraordinary and discretionary” nature of the remedy, Justice Rennie characterized the remedies available pursuant to s.18.1 of the FCA as anchored in the “historic prerogative relief of the courts of equity.” If this is in fact the case, it suggests the available remedies under the FCA are virtually limitless.
In reality, the Innu decision is somewhat academic. The action was initiated after the Band’s 2010 election. Thus, irrespective of the outcome of the case, there would have been an election in 2012 for a new Band Council pursuant to the Band Constitution. Nonetheless, the decision marks a rare instance in which an election was judicially overturned, and helps solidify the appropriate standard for assessing the validity of an election. Although Elections Canada’s past performance reassures us that such a scenario is unlikely to come about during a federal election, Innu could have major implications in future elections of greater significance should such circumstances arise at a national level!