Returning officer was appointed for election. Chief instructed band manager to prepare and post notices of election. Election notices were not posted so chief posted election notices himself. Applicants argued election was called on short notice of 13 days. Customary band practice was to post notices of election 21 to 30 days in advance of poll. Applicants argued it was customary band practice for returning officer to take complete control of election process. Returning officer was not engaged until four days before election. Returning officer had control of ballot boxes until end of polling. Custody of ballot boxes was unclear after that. One individual took control of boxes. Same individual was elected chief. In election of two female councilors there were 45 spoiled ballots. Applicant sought to set aside results of band election. Number of total ballots printed was never disclosed. Application for judicial review was allowed. Band’s election was not conducted in accordance with principles of natural justice. Short notice was not technical defect but rather went to heart of process. Origin of high number of spoiled ballots was misalignment of names on ballots. Closeness of votes for female councilors established causal and material connection between irregularity and outcome of vote. Fact band election was conducted by secret ballot process indicated band custom reflected democratic principles and election had to conform to fundamental principles of natural justice and fairness. Principles of fairness and impartiality were not respected in election process. Election results were set aside. New election was to be called and conducted according to customary band practices within three months.
Poker v. Mushuau Innu First Nation
(Jan. 3, 2012, F.C., Rennie J., File No. T-458-10) 211 A.C.W.S. (3d) 250 (15 pp.).