Federal Court

Aboriginal Peoples

Allegations of corrupt practices to be reconsidered

Application by band member for judicial review of Appeal Board’s decision. Applicant applied to Appeal Board after respondent band’s election, alleging corrupt practices took place and challenging the definition of “elector” in Alexander Tribal Government Customary Election Regulations as violating s. 15 of Canadian Charter of Rights and Freedoms. Application claimed respondent councillors provided financial help to families in exchange for votes. Appeal Board rejected appeal, finding there was no evidence of corruption and it did not have jurisdiction to hear constitutional question. Applicant argued chair acted unfairly in communicating privately with respondents and erred in its interpretation of Regulations by finding it did not have jurisdiction to decide constitutionality of elector definition. Application allowed in part. Chair phoned respondents to inform them about allegations of witness who claimed he was paid $1,300 for votes. Respondents denied allegations with some explanation and told chair they would not appear at hearing. Chair reported conversation to applicant and other panel members. Communicating privately with two important witnesses against whom serious allegations were made was breach of procedural fairness. Chair and respondents discussed substance of allegations and reporting conversation to applicant, who had no opportunity to cross-examine respondents, did not remedy breach. Decision invalid as result on this fundamental breach of procedural fairness, and allegations of corrupt practices to be reconsidered. On second issue, appeal board rightly concluded it did not have jurisdiction. Purpose of appeal board was to inquire into legitimacy of election process. Section 17 of Regulations specifically stated questions of inclusion or exclusion of persons from voter’s list was matter for Electoral Officer, so drafter clearly intended to confer upon Electoral Officer jurisdiction to interpret definition of elector, to exclusion of appeal board, whose jurisdiction conferred by s. 29 did not refer to electors or lists.

Yellowdirt v. Comité d’appeal en Matiere (Jan. 11, 2013, F.C., Simon Noël J., File No. T-1791-11) 230 A.C.W.S. (3d) 322.

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