Date: 20220330  
Docket: T-474-20  
Citation: 2022 FC 436  
Ottawa, Ontario, March 30, 2022  
PRESENT: The Hon Mr. Justice Henry S. Brown  
BETWEEN:  
MARY LINDA WHITFORD AND ALICIA MOOSOMIN  
Applicants  
and  
CLINTON WUTTUNEE, LUX BENSON, JASON CHAKITA, MANDY CUTHAND,  
DANA FALCON, HENRY GARDIPY, GARY NICTOINE, SAMUEL WUTTUNEE,  
SHAWN WUTTUNEE, BURKE RATTE, and RED PHEASANT FIRST NATION  
Respondents  
JUDGMENT AND REASONS  
Table of Contents  
I. Nature of the matter ................................................................................................................ 4  
A. Summary of conclusions, definitions, and note re references to the records...................... 5  
(1) Summary of mail-in ballot procedures and conclusions .............................................. 5  
(2) A note on references..................................................................................................... 8  
(3) Needs of band members for financial support and Band Member Assistance [BMA] 9  
II. Facts ...................................................................................................................................... 10  
A. Statutory Regime .............................................................................................................. 10  
B. Background facts .............................................................................................................. 11  
(1) March 20, 2020 Election Results................................................................................ 13  
Page: 2  
(2) Procedural background and Justice Aylen’s Order dated August 30, 2021 ............... 15  
Issues................................................................................................................................. 25  
The Law ............................................................................................................................ 26  
III.  
IV.  
A. Relevant provisions of the First Nations Elections Act, SC 2014, c 5 [FNEA] ............... 26  
B. Relevant provisions of the First Nations Elections Regulations, SOR/2015-86 [FNER]. 29  
C. Jurisprudence .................................................................................................................... 33  
(1) In Summary ................................................................................................................ 43  
(2) Change in the Respondents’ position in oral argument.............................................. 46  
(3) Determination of the Respondents’ objections to tabs in the Applicant’s Record..... 53  
(a) Re Tabs 86 251: Exhibits put to witnesses being cross-examined without advance  
notice or ruling on admissibility ....................................................................................... 54  
(b) Re Tabs 252 260: Admissibility of Mr Ratte’s Reply to Undertakings of May 18,  
2021, Tabs 252 260........................................................................................................ 58  
(i) Mr Ratte’s Affidavit of July 23, 2021................................................................. 70  
(ii) Direction to produce May 18, 2021 RTU for examination................................. 75  
V. Analysis................................................................................................................................. 77  
A. Outline of facts.................................................................................................................. 77  
(1) The team of candidates and supporters....................................................................... 78  
(2) Those who engaged in serious electoral fraud............................................................ 79  
(3) Requesting Mail-in Ballots for others ........................................................................ 79  
(4) Leroy Nicotine Jr........................................................................................................ 80  
(5) Driving voters to the polls .......................................................................................... 82  
(6) Shelley Wuttunee........................................................................................................ 82  
(7) Assistance with Voter Declaration forms, non-compliance with subsection 5(6) of  
FNER (witness attestation to elector’s choice of candidate where assistance given)........... 83  
(8) Red Pheasant employees ............................................................................................ 84  
(9) Election result generally............................................................................................. 85  
(10)  
Many Request for Mail-in Ballots .......................................................................... 86  
B. Role of Mr Ratte and his email exchange with Indigenous Services Canada regarding  
Requests for Mail-in Ballots..................................................................................................... 87  
(1) Naming Mr Ratte and his role in this contestation ..................................................... 87  
(2) Allowing First Nation members to distribute Request for Mail-in Ballot forms to  
other members....................................................................................................................... 88  
C. Ballot-by-ballot review of alleged FNEA and or FNER contraventions and or serious  
electoral fraud ........................................................................................................................... 90  
(1) Robin Dean Wuttunee ................................................................................................ 91  
(a) Admissibility of transcripts and CD copies of Robin Wuttunee’s phone calls from  
ERC to Councillor Samuel Wuttunee and Councillor Jason Chakita............................... 93  
(b) Exchange of lists between Chief Wuttunee and Mr Ratte of electors with whose  
requests for Mail-in Ballots were accepted or not .......................................................... 105  
(c) Falsification of elector identification documents (ID).......................................... 115  
(2) Rickell Frenchman and Romellow Meechance........................................................ 130  
(3) Breanna Wahobin and Jerette Wahobin ................................................................... 143  
(4) Michael Ernest Stevens and Ardella Benson............................................................ 148  
(5) Arnold Bruce Wuttunee............................................................................................ 150  
(6) Tomas Pritchard........................................................................................................ 155  
Page: 3  
(7) Dion Bugler .............................................................................................................. 160  
(8) Paul Tobaccojuice..................................................................................................... 166  
(9) Wendall John Albert................................................................................................. 175  
(10)  
(11)  
(12)  
(13)  
Veronica Whitford ................................................................................................ 179  
Wesley Wuttunee.................................................................................................. 186  
Burton Ward.......................................................................................................... 191  
Voter Declaration and mail-in ballots where elector voted in person .................. 193  
D. Summary of conclusions regarding Respondents and named supporters....................... 198  
(1) Chief Clinton Wuttunee............................................................................................ 198  
(2) Councillor Gary Nicotine ......................................................................................... 203  
(3) Councillor Lux Benson............................................................................................. 204  
(4) Councillor Jason Chakita.......................................................................................... 205  
(5) Councillor Mandy Cuthand ...................................................................................... 205  
(6) Councillor Dana Falcon............................................................................................ 206  
(7) Councillor Henry Gardipy........................................................................................ 206  
(8) Councillor Samuel Wuttunee.................................................................................... 207  
(9) Councillor Shawn Wuttunee..................................................................................... 208  
(10)  
(11)  
(12)  
Leroy Nicotine Jr. ................................................................................................. 208  
Shelley Wuttunee.................................................................................................. 209  
Band employees Cody Benson (Band Manager), Austin Ahenakew (Chief  
Financial Officer) and Deloris Peyachew (Indian Registry Administrator) ....................... 210  
Conclusion ...................................................................................................................... 210  
VI.  
VII. Costs................................................................................................................................ 210  
Page: 4  
I.  
Nature of the matter  
[1]  
This is an application pursuant to section 31 of the First Nations Elections Act, SC 2014,  
c 5 [FNEA] contesting the validity of the March 20, 2020 Red Pheasant First Nation [Red  
Pheasant] elections for Chief and Councillors [Election]. Red Pheasant is an Indian Band within  
the meaning of the Indian Act, RSC 1985, c I-5 [Indian Act].  
[2]  
The Respondent Burke Ratte [Mr Ratte] was this First Nation’s Electoral Officer and is  
named only to facilitate discovery and source documents.  
[3]  
The Respondent Red Pheasant is named for the limited purpose of a potential cost award  
against it in relation to these proceedings.  
[4]  
The other Respondents are the successful Chief and Councillors in the Election, who I  
will henceforth refer to as the Respondents, given the limited roles of Mr Ratte and Red  
Pheasant.  
[5]  
The Applicants Mary Linda Whitford and Alicia Moosomin are electors and members of  
Red Pheasant.  
[6]  
The Applicants allege the Respondents and others acting on their behalf engaged in  
various forms of serious electoral fraud in the Election. The Applicants seek 1) an Order setting  
aside the elections of the Chief and all 8 Councillors of Red Pheasant, pursuant to sections 31  
 
Page: 5  
and 35 of the FNEA and 2) costs on a solicitor and client basis jointly and severally against the  
Respondents and Red Pheasant.  
[7]  
The Respondents oppose the contestation and ask that it be dismissed with costs on a  
solicitor client basis. I agreed to entertain cost submissions after a decision on the merits because  
at that time Red Pheasant will require separate legal representation on the issue of costs.  
[8]  
Mr Ratte asked that the application be dismissed and proposed an all-inclusive cost award  
of $20,000.00 if he is successful.  
[9]  
Red Pheasant did not make cost submissions. The Court was told at the hearing that Red  
Pheasant is now separately represented for the purpose of making cost submissions after the  
release of this decision on the merits.  
A.  
Summary of conclusions, definitions, and note re references to the records  
(1)  
Summary of mail-in ballot procedures and conclusions  
[10] The Applicants seek to set aside the elections of the Chief and all 8 Councillors of the  
Red Pheasant First Nation under FNEA and or FNER as construed and applied in jurisprudence.  
FNEA permits [“may”] this Court to set aside such elections where two conditions are met: 1) a  
provision of FNEA is contravened (per section 31), and 2) the contravention is likely to have  
affected the result of the election (per subsection 35(1)). The “magic number” test is used in the  
   
Page: 6  
second part, and asks if the number of rejected votes is equal to or greater than the successful  
candidate's margin of victory (Opitz v Wrzesnewskyj, 2012 SCC 55 [Opitz] at para 73).  
[11] To protect the integrity of FNEA elections this Court (and the Superior Courts) may also  
annul FNEA election results where the integrity of the election was corrupted by serious electoral  
fraud (Papequash v Brass, 2018 FC 325 [Papequash FC] at para 36). In this respect,  
jurisprudence establishes that attempts by electoral candidates or their agents to purchase the  
votes of constituents are an insidious practice that corrodes and undermines the integrity of any  
electoral process (Papequash FC at 38). Put another way, in Gadwa v Kehewin First Nation,  
2016 FC 597 [Gadwa] at para 88, a candidate who engages in vote buying is attempting to  
corrupt the election process.  
[12] Therefore, regardless of the number of votes a candidate purchased, or attempted to  
purchase, and regardless of whether the candidate wins the election by a greater margin than the  
number of votes that were purchased (i.e. less than the magic number), this may not save the  
candidate; in the Court’s discretion, his or her election may and in some cases must be vitiated.  
This is the case because fraud, corruption and illegal election practices are serious (Opitz at para  
43, Gadwa at para 88).  
[13] The central and principle issue in this case is whether and to what extent any of the  
Respondents were involved in vote buying. If they were, they were involved in serious electoral  
fraud for which reason their election may be annulled regardless of the number of votes obtained.  
Page: 7  
Vote buying and selling are also contraventions of subsections 16(f) and 17(b) respectively of  
FNEA.  
[14] The vote buying in this case almost entirely related to Mail-in Ballots. The vote buying  
took place in relation to two steps involved in obtaining and sending back a Mail-in Ballot. The  
first step in the Mail-in Ballot process is for an elector to send to the Elections Officer a Request  
for Mail-in Ballot per section 15 of FNER in prescribed form (5-D), together with a copy of the  
elector’s ID and his or her address. Notably, a Request for Mail-in Ballot may be sent to the  
Electoral Officer electronically, that is by photo text message (a text message accompanied by an  
electronic photograph of the Request for Mail-in Ballot form), in addition to being sent by mail  
or by hand.  
[15] If the request is accepted the second step entails the Electoral Officer mailing the elector,  
at the address given, a package containing a Mail-in Ballot and a Voter Declaration form. Upon  
receipt, of the package, the elector marks the Mail-in Ballot, puts it into a sealed envelope, and  
mails or delivers it to the Electoral Officer in a package which must also contain a Voter  
Declaration form duly signed by the elector and witnessed per subsection 17(1) of FNER.  
Notably, while an elector may ask for the assistance of another person to mark their ballot, in  
that case the Voter Declaration form must not only be signed by a witness who attests the elector  
is the person whose name is set out in the form, but which also attests that the ballot was marked  
in the manner directed by the elector (subsection 5(6) of FNER).  
Page: 8  
[16] While the Applicants established a number of contraventions of FNEA, in my view none  
of the contraventions are likely to have affected the result of the Election in that none triggered  
the magic number per Opitz. That is, in no case was the difference between the successful  
candidate’s vote equal to or greater than the successful candidate's margin of victory.  
[17] However, I am satisfied on a balance of probabilities that several of the Respondent  
candidates engaged in serious electoral fraud namely vote buying and related activities, such that  
the integrity of their elections were corrupted. In the result, in the exercise of the Court’s  
discretion, the elections of the Respondents Chief Clinton Wuttunee and Councillor Gary  
Nicotine will be annulled regardless of the number of votes they obtained. I also find on a  
balance of probabilities that Councillors Lux Benson, Jason Chakita, Mandy Cuthand, Henry  
Gardipy, Samuel Wuttunee, and Shawn Wuttunee engaged in serious electoral fraud, but on a  
lesser scale, such that their elections might be, but in my discretion are not annulled. In addition I  
find on a balance of probabilities that supporters Leroy Nicotine Jr. and Shelley Wuttunee  
engaged in multiple instances of serious electoral fraud, in respect of which the FNEA gives this  
Court no remedy to impose.  
(2)  
A note on references  
[18] The material filed in this contestation totalled 7,565 pages including authorities. Where I  
refer to the specific record, I use the shorthand AR to mean ApplicantsRecord, and RR for  
Respondents’ Record. Because the records are filed in PDF format, the page numbers on the hard  
copy do not match the PDF page number used in the PDF search bar at the bottom of the screen.  
 
Page: 9  
Therefore I have provided both, the first is the reference to the hard copy page number, and the  
second refers to the PDF search bar.  
(3)  
Needs of band members for financial support and Band Member Assistance  
[BMA]  
[19] A defence frequently raised by the Respondents is that band members of this First Nation  
require assistance throughout the year, and their needs did not stop during the Election. The  
Chief and Councillors therefore should not be faulted for giving money to First Nation members  
during the Election, provided it seems such assistance is provided as a coincidence and did not  
entail the purchase of votes. In this connection there is evidence First Nations received only $255  
a month from Red Pheasant, and many needed far more. It was said the calls came in to the Chief  
and Councillors every day and in some cases all day long.  
[20] I do not doubt the needs of these First Nation members arise throughout the year.  
However Red Pheasant has a procedure in place by which members in need may be paid Band  
Member Assistance [BMA] with the authority of the Chief and a Councillor, which requests are  
dealt with on a less formal basis without Council meetings. That said, in fact and as Chief  
Wuttunee and Chief Financial Officer Austin Ahenakew both testified, there are special forms to  
be completed before BMA would be paid.  
[21] Thus I conclude this First Nation has records of legitimate BMA payments. It is also  
apparent the required forms should be kept for audit purposes. I see no reason why such records  
would not be kept for BMA payments made during an election period.  
 
Page: 10  
[22] I endorse what my colleague Justice McVeigh observed in Good v Canada (Attorney  
General), 2018 FC 1199 [Good] which involved this same First Nation:  
[295] This leads me to make an unrequested observation that the  
Respondents have put themselves in situations that bring their  
actions into question by giving money during election campaigns  
to individuals that request it when they are in times of need. While  
I recognize that members of the band will still need support during  
an election-period, many solutions exist. For example a  
moratorium on candidates giving out financial help during  
elections could be supplemented by having a separate fund and an  
independent person to administer the provision of cash for these  
emergencies.  
II.  
A.  
Facts  
Statutory Regime  
[23] This contestation is brought under the FNEA, which came into force in April of 2015  
along with the associated First Nations Elections Regulations, SOR/2015-86 [FNER], section 31  
of which requires the matter proceed by application. As summarized by Justice McVeigh Good,  
supra, “the FNEA legislates a process for First Nations and Indigenous communities to elect  
their Band Council members. The process under the FNEA operates in parallel and in addition to  
other processes set out in section 74(1) of the Indian Act.”  
[24] In order to fall under the FNEA, a First Nation such as Red Pheasant must opt in. To opt  
into the provisions, a Band Council Resolution in favour of elections governed by the FNEA  
must be passed by the First Nation and submitted to the Minister, who adds the First Nations to  
the FNEA Schedule if relevant criteria are met (see section 3). As per Justice McVeigh in Good  
at para 16, on November 5, 2015, the Red Pheasant First Nation Band Council signed a BCR in  
   
Page: 11  
favour of opting into the FNEA. On January 4, 2016, after receiving the BCR, the Minister added  
the Red Pheasant First Nation to the FNEA Schedule.”  
B.  
Background facts  
[25] Every recent election of the Red Pheasant First Nation has been appealed. The most  
recent previous appeal also involved the current chief, Chief Clinton Wuttunee [Chief  
Wuttunee], and was considered by this Court in Good, supra. There Ms. Good applied for  
judicial review of the March 18, 2016 band election in which Chief Wuttunee was elected Chief.  
Justice McVeigh declined to set aside the 2016 election, finding “[t]he Applicant has not  
discharged its burden to satisfactorily prove that the FNEA has been contravened and even if  
there was a contravention found in the evidence it is not likely to have affected the results of the  
2016 election.” Costs and disbursements in a lump sum of $100,000.00 were awarded to the  
respondents (Chief Wuttunee and Councillors Lux Benson, Mandy Cuthand, Dana Falcon,  
Henry Gardipy, and Shawn Wuttunee). Ms. Good is not a party to the present application.  
[26] The case at bar concerns the election of Chief Wuttunee and eight Councillors on March  
20, 2020. The Applicants allege each of the Respondents together with and or their agents or  
persons acting on their behalf contravened the FNEA, the FNER and/or other applicable laws and  
engaged in electoral corruption, which contraventions include, but are not limited to, vote  
buying, forging Requests for Mail-In Ballots, paying electors to request their Mail-in Ballots,  
forging Mail-in Ballot Voter Declaration Forms and forging identity documents.  
 
Page: 12  
[27] The agents or persons acting on behalf of the Respondents are not named as Respondents.  
However they are named in this proceeding and were served with it. They appeared through the  
same counsel as the named Respondents. They are alleged to include but are not limited to  
Shelley Wuttunee (wife of Councillor Shawn Wuttunee), Leroy Nicotine Jr., Cody Benson (Band  
Manager for Red Pheasant and son of Councillor Lux Benson), Austin Ahenakew (Chief  
Financial Officer for Red Pheasant) and Deloris Peyachew (Indian Registry Administrator for  
Red Pheasant).  
[28] As summarized by Justice Aylen as Case Management Judge (the Amended Notice of  
Application itself is 20 pages long; the Amended Notice of Motion was approved by Order of  
Prothonotary Molgat April 6, 2021) by Order dated August 30, 2021 [Tab 30 of the Applicant’s  
Record], the Applicants plead:  
A. The Participants unlawfully possessed a large number of mail-in  
ballots (which were not their respective mail-in ballots) which they  
forged and thereafter filed with Mr. Ratte;  
B. Mr. Ratte was deceived by the Participants and others when he  
received forged documents and unknowingly accepted a large  
number of requests for mail-in ballots on behalf of other electors  
directly from the Participants by text message;  
C. Several persons attended polling stations and were permitted by  
Mr. Ratte to deposit several mail-in ballots, notwithstanding the  
limitation that an elector may only vote once;  
D. Mr. Ratte was deceived by the Participants and others when he  
received forged documents and unknowingly mailed and delivered  
a large number of mail-in ballots to persons other than the electors  
in question; and  
E. Mr. Ratte has failed to deliver certified election results.  
Page: 13  
(1)  
March 20, 2020 Election Results  
[29] I accept the affidavit evidence of Electoral Officer Burke Ratte [Mr Ratte], dated August  
27, 2020, that 1,869 eligible electors were registered to vote in the Election.  
[30] According to the “Statement of Votes” attached as Exhibit “D” to the same affidavit [RR  
0317, PDF 0322], a total of 1084 ballots were cast for Chief with 6 rejected at the ballot box.  
Chief Wuttunee received 648 votes. The runners-up were Todd Baptiste who received 424 votes,  
and Lester “George” Nicotine who received 6 votes.  
[31] 1084 ballots were cast for Councillors with 1 rejected. Votes obtained for Councillors  
were:  
Councillor Henry Gardipy: 637 votes  
Councillor Shawn Wuttunee: 634 votes  
Councillor Lux Benson: 619 votes  
Councillor Jason Chakita: 615 votes  
Councillor Dana Falcon: 607 votes  
Councillor Gary Nicotine: 599 votes  
Councillor Samuel Wuttunee: 597 votes  
Councillor Mandy Cuthand: 585 votes  
[32] The runners up were:  
Angus (Peyachew) Donna: 252 votes  
Stewart Sr. Baptiste: 238 votes  
Keith (Tyson) Wuttunee: 234 votes  
Kellie Wuttunee: 167 votes  
Chuckie Harriet Nicotine: 159 votes  
Dickie Lee Baptiste-Bull: 149 votes  
Alvin Leroy Nicotine: 145 votes  
Charlotte Benson: 142 votes  
Charles Meechance: 139 votes  
 
Page: 14  
Sabrina Theresa Peyachew (Baptiste): 139 votes  
Alvin Baptiste: 126 votes  
Michael (Mike) Wuttunee: 126 votes  
Glen (Peanut) Bugler: 102 votes  
Gerald Meechance: 96 votes  
Edgar Baptiste: 77 votes  
Carolyn Rose Kiskotagan: 75 votes  
Elvin Fredrick Nicotine: 74 votes  
Langford Douglas Wuttunee: 72 votes  
Margaret (Bepee) Nicotine (Benson): 69 votes  
Ida Wuttunee: 68 votes  
Jacob Moosomin/Moosuk: 68 votes  
Dennis Russel Nicotine: 64 votes  
Lynale Benson: 60 votes  
Deanna Bugler Arcand: 55 votes  
Rudy W. Wuttunee: 52 votes  
Andrea Nicotine: 27 votes  
Ellen Cuthand: 17 votes  
Trevor (Topdog) Cuthand: 11 votes  
[33] As deposed by Mr Ratte at paras 9-12 [RR 0177-0180, PDF 0182-0185], a total of 748  
Request for Mail-in Ballots were received and accepted. 684 Mail-in Ballot packages were  
received by the Electoral Officer of which 32 were rejected.  
[34] Mr Ratte’s Reply to Undertakings dated May 18, 2021 [May 18, 2021 RTU] reveal the  
following individuals submitted Requests for Mail-in Ballots to Mr Ratte by photo text message:  
1.  
2.  
3.  
4.  
5.  
6.  
7.  
8.  
Chief Wuttunee submitted 521 [AR Tab 253]  
Councillor Gary Nicotine submitted 164 [AR Tab 254]  
Councillor Shawn Wuttunee submitted 24 [AR Tab 255]  
Councillor Dana Falcon submitted 18 [AR 256]  
Councillor Henry Gardipy submitted 25 [AR Tab 257]  
Councillor Mandy Cuthand submitted 49 [AR Tab 258]  
Councillor Samuel Wuttunee submitted 31 [AR Tab 259]  
Band Manager Cody Benson submitted 22 [AR Tab 260]  
Page: 15  
[35] Parenthetically, the Respondents objected to Mr Ratte’s May 18, 2021 RTU forming part  
of the evidence, however as discussed below, I find no merit in that objection.  
(2)  
Procedural background and Justice Aylen’s Order dated August 30, 2021  
[36] As with the election of 2018 considered by Justice McVeigh in Good, this case had  
extensive case management because the parties were unable or unwilling to work out many  
issues. The proceedings were marred by antagonism and refusals to co-operate.  
[37] The matter was originally case managed by Prothonotary Molgat. As it moved closer to a  
hearing, it became case managed by Justice Aylen. Justice Aylen heard a number of motions –  
including motions brought by both sides to strike all affidavits filed by the other resulting in  
Justice Aylen’s August 30, 2021 Order.  
[38] Justice Aylen criticized the conduct of this litigation:  
[2] With the exception of the Respondent, Mr Ratte, and his  
counsel, the conduct of the parties and their counsel throughout  
this proceeding has left much to be desired. Over the last 16  
months, the parties and their counsel were repeatedly warned by  
the previous Case Management Judge and then by me (following  
my appointment in June 2021) that their behaviour to date has  
shown a shocking disregard for the principle of proportionality, as  
well as an unacceptable unwillingness or inability to communicate  
or otherwise cooperate in advancing the proceeding in an efficient  
manner.  
[39] Justice Aylen’s Order dated August 30, 2021, dealt with six motions. Materially for these  
purposes Justice Aylen Ordered as follows; my comments follow where required.  
 
Page: 16  
[40] Regarding the FIRST MOTION, Justice Aylen Ordered:  
1. The Applicants’ motion for an order that Mr. Stooshinoff and  
the firm of Stooshinoff Bitzer be removed as counsel of record and  
disqualified from acting for any of the parties is dismissed, without  
prejudice to the Applicants’ right to seek similar relief in relation  
to the cost phase of the application.  
[Court Comment: This is one of the reasons costs will be  
determined after this Decision is released. The Applicants have  
appealed this part of the Order to the Federal Court of Appeal.]  
2. The Applicants shall pay to the Respondents, Clinton Wuttunee,  
Lux Benson, Jason Chakita, Mandy Cuthand, Dana Falcon, Henry  
Gardipy, Gary Nicotine, Samuel Wuttunee, Shawn Wuttunee and  
the Red Pheasant First Nation, their costs of the motion to remove  
Mr. Stooshinoff as counsel of record, with the quantum of costs to  
be fixed by the hearings judge.  
[Emphasis added]  
[Court Comment: These costs will be determined after this  
Decision is released. The Applicants have appealed this part of the  
Order to the Federal Court of Appeal; a decision is reserved.]  
[41] Regarding the SECOND MOTION, Justice Aylen Ordered:  
8. The affidavit of John Benson sworn August 27, 2020 is hereby  
struck.  
[Court Comment: The Affidavit was struck because of improper  
conduct by Respondents’ counsel Mr. Stooshinoff during Mr  
Benson’s cross examination including as found Justice Aylen:  
“John Benson repeatedly turns his back to the Court Reporter  
(while on video) despite repeated requests to turn around so that  
his face could be seen”, and “Mr. Stooshinoff not only encouraged  
this behaviour, but engaged in repeated private conversations with  
the witness during his cross-examination, even after such  
conversations were repeatedly objected to by counsel for the  
Applicants.” Therefore, Justice Aylen was satisfied that “this  
misconduct has had the effect of frustrating the cross-examination  
of John Benson and demonstrates a complete disregard for this  
proceeding.”]  
Page: 17  
9. The balance of the Applicants’ motion to strike the affidavits  
relied upon by the Respondents is dismissed.  
10. The Applicants’ request for an order compelling the  
Respondents [including Mr Ratte, ed.] to answer all questions  
refused from the cross-examinations of the Respondents’ affiants is  
dismissed, without prejudice to the right of the Applicants to ask  
the hearings judge to draw an adverse inference from the affiants’  
refusals to answer the questions.  
[Emphasis added]  
[Court Comment: I have drawn many adverse inferences where  
appropriate from refusals to answer relevant questions on cross-  
examination.]  
11. The Applicants’ request for an order compelling the  
Respondents to answer all undertakings given at the cross-  
examinations of the Respondents’ affiants is dismissed.  
12. The Applicants’ request for an order compelling the  
Respondents’ affiants to attend for further cross-examination is  
dismissed.  
[Court Comment: The Applicants have appealed parts 9, 10, 11  
and 12 of this Order to the Federal Court of Appeal. A decision of  
the Federal Court of Appeal is reserved.]  
[42] Regarding the THIRD MOTION, Justice Aylen Ordered:  
14. The Applicants are granted leave, pursuant to Rule 312, to file  
the affidavit of Tomas Pritchard sworn February 8, 2021.  
15. The Respondents shall serve, and file proof of service of, any  
additional affidavit(s) to respond to the affidavit of Mr. Pritchard  
by no later than September 13, 2021.  
16. The parties shall be afforded an opportunity to conduct cross-  
examinations in relation to the affidavit of Mr. Pritchard and any  
other affidavit(s) served by the Respondents in response thereto.  
The parties shall complete any such cross-examinations by no later  
than October 4, 2021. In relation to such cross-examinations:  
(a) The party tendering the affiant shall accept  
service of any Direction to Attend and attendance  
money.  
Page: 18  
(b) Any dispute regarding a request for production  
in a Direction to Attend shall be raised with the  
Court forthwith and shall be addressed by the Court  
in advance of the cross-examination at issue, by  
way of informal motion to be heard at a case  
management conference.  
(c) The parties shall cooperate in the scheduling of  
the cross-examinations. Should the Court find that  
any party has failed to do so, the Court will impose  
cost sanctions against such party and their counsel,  
if appropriate.  
(d) The parties shall confirm the cross-examination  
schedule with the Court by no later than September  
24, 2021. If the parties are unable to agree on a  
schedule for the cross-examinations, they shall so  
advise the Court by no later than September 24,  
2021 and at that time provide the Court with their  
respective proposed schedules and the Court will  
unilaterally impose a schedule based on the  
proposed schedules of the parties.  
17. There shall be no award of costs in relation to the Rule 312  
motion.  
[Court Comment: The Applicants appealed para 17 of this Order to  
the Federal Court of Appeal. The Respondents seek a variance so  
that CDs of certain telephone conversations by Robin Wuttunee  
from prison are not allowed in evidence. I deal with this issue in  
these Reasons. The Respondents also asked for a stay of this  
hearing but no stay was granted. A decision of the Federal Court of  
Appeal is reserved.]  
[43] Regarding the FOURTH MOTION, Justice Aylen Ordered:  
3. The Respondents’ motion for relief pursuant to Rule 94(2) in  
relation to the Direction to Attend dated June 9, 2020 and served  
on Clinton Wuttunee is dismissed as moot. Costs of the motion  
shall be payable in the cause.  
Page: 19  
[44] Regarding the FIFTH MOTION, Justice Aylen dealt with requests by the Respondents to  
be relieved of their obligation to produce certain documents. Justice Aylen agreed to reduce the  
number of documents, however she ordered the Respondents affected to produce a narrower  
range of documents:  
4. The Respondents’ motion for an order pursuant to Rule 94(2)  
that the Respondents’ affiants, Clinton R. Wuttunee, Dana Falcon,  
Gary Nicotine, Henry Gardipy, Jason Chakita, John Benson, Lux  
Benson, Mandy Cuthand, Samuel Wuttunee, Shawn Wuttunee,  
Austin Akenakew, Cody Benson and Shelly Wuttunee, be relieved  
from the production of documents sought by the Applicants in their  
Directions to Attend dated September 4, 2020 and all subsequent  
Directions to Attend served by the Applicants is granted, with the  
exception of the following requests for production:  
(a) In relation to the Directions to Attend served on  
Clinton Wuttunee:  
(i) All emails, letters, text messages, Facebook  
messages, or other correspondence between January  
1 and March 20, 2020 in his possession, power or  
control that include Burke Ratte.  
(ii) All emails, letters, text messages, Facebook  
messages, or other correspondence between January  
1 and March 20, 2020 in his possession, power or  
control that include Robin Wuttunee or anyone on  
his behalf, or that relate or refer to Robin Wuttunee.  
(iii) All communications that he had with the family  
of Arnold Bruce Wuttunee referred to at paragraph  
16 of his affidavit.  
(iv) All documents referring or relating to him  
looking into the matter for Robin Dean Wuttunee  
and being advised that he was not eligible to vote, as  
referred to at paragraph 26 of his affidavit.  
(v) All emails, letters, text messages, Facebook  
messages, or other correspondence between January  
1 and March 20, 2020 in his possession, power or  
control that include, or that relate or refer to,  
Patricia Bird.  
Page: 20  
(b) In relation to the Directions to Attend served on  
Austin Ahenakew:  
(i) The “directive” referred to at paragraph 15 of his  
affidavit and documents referring or relating to  
same.  
(c) In relation to the Directions to Attend served on  
Henry Gardipy:  
(i) With reference to paragraph 5 of his affidavit, all  
documents referring or related to the request made  
by Michael Earnest Stevens that Mr. Gardipy assist  
him with his D-5 request for a mail-in ballot.  
(d) In relation to the Directions to Attend served on  
Cody Benson:  
(i) All documents referring or relating to the  
decision to grant a Band Member Assistance  
payment of $400 to Heather Meechance referred to  
at paragraph 13 of his affidavit, and all  
documentation referring or relating to the payment  
of same to Heather Meechance.  
(e) In relation to the Directions to Attend served on  
Gary Nicotine:  
(i) All emails, letters, text messages, Facebook  
messages or other correspondence requesting  
financial assistance that he received from Heather  
Meechance regarding her request for “help to buy  
groceries” and his response referred to at paragraph  
16 of his affidavit.  
(ii) All documents requesting or relating to the  
decision to grant a Band Member Assistance  
payment of $400 to Heather Meechance referred to  
at paragraph 16 of his affidavit, and all  
documentation referring or relating to the payment  
of same to Heather Meechance.  
(f) In relation to the Directions to Attend served on  
Jason Chakita:  
(i) All emails, letters, text messages, Facebook  
messages or other correspondence between January  
Page: 21  
1 and March 20, 2020 between him and Robin Dean  
Wuttunee or anyone on his behalf.  
5. The documents ordered to be produced in paragraph 4 shall be  
provided to the Applicants by no later than September 13, 2021.  
6. The Applicants shall pay to the Respondents their costs of the  
Rule 94(2) motion referenced in paragraph 4 in the amount of  
$10,000.00, inclusive of fees, disbursements and taxes.  
[Court Comment: The Applicants appealed parts 4 and 6 of this  
Order to the Federal Court of Appeal; its decision is reserved.]  
[45] Regarding the SIXTH MOTION, Justice Aylen Ordered:  
7. The Respondents’ motion to strike the affidavits relied upon by  
the Applicants is dismissed.  
13. The costs of the two motions to strike the affidavits shall be  
determined by the hearings judge.  
[Emphasis added]  
[Court Comment: I will determine costs regarding both motions  
after the release of this Decision.]  
[46] The Applicants appealed the Order of Justice Aylen to the Federal Court of Appeal on  
September 8, 2021. The Respondents moved to vary. The appeal book is filed. Both the  
Applicants and Respondents have filed their Memoranda. The appeal was set down for a hearing  
on March 15, 2022. Judgment is reserved.  
[47] I will decide the issues before me as they stand and given the various Orders of Justice  
Aylen.  
Page: 22  
[48] Both parties made submissions in response to the particulars set out in the August 30,  
2021 Order of Justice Aylen, exchanged multiple letters but continued to disagree. In the result  
Justice Aylen made further Orders dated September 28 and October 8, 2021:  
1. The cross-examination of Mr. Pritchard by the Respondents  
(other than Mr. Ratte) shall proceed on September 30, 2021 at 9:00  
a.m. (Saskatchewan time) by Zoom video-conference. Counsel for  
the Applicants shall make themselves or someone from their office  
available to attend.  
2. The cross-examination of Mr. Ratte by the Applicants shall  
proceed on October 4, 2021.  
3. The cross-examinations of Leroy Nicotine Jr., Clinton Wutunee  
and Marie Adam by the Applicants shall proceed all on October 2,  
2021. In the event that the parties are unable to agree on an in-  
person venue for the cross-examinations, they shall proceed by  
Zoom  
[49] In her preamble to the September 28, 2021 Order, Justice Aylen reserved the following to  
the hearings judge, i.e., to this Court:  
CONSIDERING that the Court will not entertain the Applicants’  
request for the issuance of an order requiring Mr. Pritchard to  
attend for cross-examination. A Direction to Attend has been  
served for Mr. Pritchard’s cross-examination and he is required to  
attend, failing which the Respondents may make submissions  
before the hearings judge as to whether his evidence should be  
struck;  
CONSIDERING that the admissibility of the answers to  
undertakings of Mr. Ratte will be a matter for the parties to address  
before the hearings judge;  
CONSIDERING that, based on the submissions of the Applicants,  
the Court will not compel the production of an unredacted version  
of the document produced by Austin Ahenakew in furtherance of  
paragraph 4(b)(i) of the Order. The Applicants may make whatever  
submissions they deem appropriate before the hearings judge  
regarding any alleged improper redactions;  
Page: 23  
CONSIDERING that the issue of whether the affidavits served by  
the Respondents in response to the affidavit of Mr. Pritchard  
constitute proper responding evidence as contemplated by the  
Order is a matter to be addressed before the hearings judge;  
[Emphasis added]  
[Court Comment: Where applicable these Reasons deal with these  
matters. The first matter is not relevant because Mr Pritchard  
attended. I deal with the second issue namely Mr Ratte’s May 18,  
2021 RTU in these Reasons.]  
[50] On October 8, 2021, Justice Aylen further Ordered:  
1. The Respondents’ motion is granted and Mr. Nicotine Jr. is  
relieved from the request for production nos. 5 and 6 as sought by  
the Applicants in their Direction to Attend dated September 24,  
2021.  
2. The Applicants shall forthwith pay to the Respondents (other  
than Mr. Ratte) their costs of this motion fixed in the amount of  
$1,500.00.  
[51] The Applicants appealed the Order dated October 8, 2021 to the Federal Court of Appeal  
on October 18, 2021. An appeal book has not been filed and the appeal is not yet set down for a  
hearing.  
[52] For completeness, I note three other matters.  
[53] First, two business days before the start of the hearing before me on January 11 and 12,  
2022, the Applicants moved to file an affidavit commissioned in October 2021. I dismissed this  
motion because the three-month delay was not explained, with the following endorsement:  
The Applicant conducted cross-examination of Mr. Nicotine Jr. on  
October 12, 2021, and on January 5, 2022 moved for leave to file  
Page: 24  
an affidavit dated October 13, 2021. Today is January 6, 2022. An  
unexplained delay of almost three months is not readily excused. It  
puts the Respondent in a difficult position although the Respondent  
had notice of the subject affidavit for some time. However the  
Court has not, the matter is set to be argued in two business days,  
i.e., tomorrow Friday, and Monday next week. The hearing is  
scheduled to start Tuesday January 11, 2022. The Court has the  
evidence of Mr. Nicotine Jr. and his cross-examination which of  
course may be addressed by counsel at the hearing. The Motion is  
dismissed with costs in the cause.  
[54] Second, a day or so after the hearing, counsel for the Respondents, ex parte (without  
serving Applicants’ counsel), electronically filed a document uncomplimentary to Applicants’  
counsel (without any explanation; it was already in its Record) along with its Memorandum in  
Word (which I had requested). I ordered the document removed from the Court file (although it  
remains in the Record) because there was no explanation for the ex parte filing except its  
uncomplimentary nature. Respondents’ counsel subsequently delivered a written apology.  
[55] Thirdly, before the hearing I issued a Direction with specific e-formatting requirements  
for any compendia the parties wished to file. A compendium from each party is in my view a  
practical necessity, although not one in the Rules, in a large record file like this. Regrettably,  
Registry staff failed to send the Direction to the Applicants or Respondents, only to Mr Ratte.  
My direction was resent during the hearing. The Applicants managed to file a hyperlinked  
Compendium. At the end of their submissions, the Applicants asked if the Court would  
appreciate a thematically arranged compendium in both electronic and hard copy and I agreed;  
these were subsequently delivered. The Respondents did not file a compendium at the hearing.  
At the end of the hearing they requested leave to file a compendium, to which I agreed, again  
because of the size of the record (approximately 7,565 pages with authorities).  
Page: 25  
[56] However, the Respondents’ material did not comply with my Direction: it contained both  
new argument and new material. In addition, while the Direction permitted a two page summary  
of argument, the Respondents filed four pages single spaced, i.e., contrary to both Rule 65 and  
the Direction, effectively three times longer than permitted. This resulted in a justified objection  
by the Applicants. I issued a further Direction permitting refiling - but only if accompanied by a  
certification of compliance by Respondents’ counsel, which was subsequently delivered. The  
Respondents submitted that I had allowed the Applicants a noncompliant submission. I declined  
to engage in further post-hearing back and forth.  
III.  
Issues  
[57] The Applicants submit the issues are:  
1.  
2.  
3.  
4.  
How should this Honourable Court determine the facts?  
Was the FNEA or the FNER contravened?  
Should the Election be set aside?  
What costs if any should be awarded to the successful party?  
[58] The Respondents submit the issues are:  
1.  
2.  
Was the FNEA or the FNER contravened?  
Should the Election be set aside?  
[59] In my respectful view the issues are twofold:  
1. Have the Applicants discharged their burden to prove the  
FNEA and or FNER were contravened and if so, is it likely to  
have affected the result of the Election?  
 
Page: 26  
2.  
Was the Election corrupted by serious elector fraud such that  
the integrity of the electoral process is in question and an  
annulment justified regardless of the proven number of  
invalid votes, as in the case when there is serious reason to  
believe that the results would have been different but for the  
fraud, or when an electoral candidate or agent is directly  
involved in the fraud: Papequash v Brass, 2018 FC 325  
[Barnes J] at paras 34-36, McEwing v Canada (Attorney  
General), 2013 FC 525 [Mosley J] at paras 81-82, Gadwa v  
Kehewin First Nation, 2016 FC 597 [Strickland J] at para 88.  
[60] That said, while the Applicants have established that FNEA was contravened, in no  
instances was the contravention likely to have affected the result of the Election. Therefore the  
answer to question 1 is “No”. Only the second question remains to be determined and is the  
focus of these Reasons.  
IV.  
A.  
The Law  
Relevant provisions of the First Nations Elections Act, SC 2014, c 5 [FNEA]  
[61] Sections 30, 31 and 35 of the FNEA provides for the contestation of an election:  
Means of contestation Mode de contestation  
30 The validity of the election 30 La validité de l’élection du  
of the chief or a councillor of chef ou d’un conseiller d’une  
a participating First Nation  
may be contested only in  
première nation participante  
ne peut être contestée que  
accordance with sections 31 to sous le régime des articles 31  
35.  
à 35.  
Contestation of election  
Contestation  
31 An elector of a  
31 Tout électeur d’une  
participating First Nation  
may, by application to a  
competent court, contest the  
election of the chief or a  
première nation participante  
peut, par requête, contester  
devant le tribunal compétent  
l’élection du chef ou d’un  
   
Page: 27  
councillor of that First Nation conseiller de cette première  
on the ground that a  
nation pour le motif qu’une  
contravention à l’une des  
dispositions de la présente loi  
ou des règlements a  
vraisemblablement influé sur  
le résultat de l’élection.  
contravention of a provision  
of this Act or the regulations  
is likely to have affected the  
result.  
Court may set aside election Décision du tribunal  
35 (1) After hearing the  
35 (1) Au terme de l’audition,  
application, the court may, if  
the ground referred to in  
section 31 is established, set  
aside the contested election.  
le tribunal peut, si le motif  
visé à l’article 31 est établi,  
invalider l’élection contestée.  
[Emphasis added]  
[Je souligne]  
[62] Sections 16 and 17 of the FNEA set out “prohibitions”, that is, activities which constitute  
“contravention” of FNEA, although I note there are other provisions in FNEA that might be  
contravened:  
Prohibition any person  
Interdictions générales  
16 A person must not, in  
16 Nul ne peut, relativement à  
connection with an election,  
une élection:  
(a) vote or attempt to vote  
knowing that they are not  
entitled to vote;  
a) voter ou tenter de voter  
sachant qu’il est inhabile à  
voter;  
(b) attempt to influence  
another person to vote  
knowing that the other  
person is not entitled to do  
so;  
b) inciter une autre  
personne à voter sachant  
que celle-ci est inhabile à  
voter;  
(c) knowingly use a forged  
c) faire sciemment usage  
ballot;  
d’un faux bulletin de vote;  
(d) put a ballot into a ballot  
d) déposer dans une urne  
box knowing that they are  
un bulletin de vote sachant  
Page: 28  
not authorized to do so  
under the regulations;  
qu’il n’y est pas autorisé  
par règlement;  
(e) by intimidation or  
duress, attempt to influence  
another person to vote or  
refrain from voting or to  
vote or refrain from voting  
for a particular candidate;  
or  
e) par intimidation ou par  
la contrainte, inciter une  
autre personne à voter ou à  
s’abstenir de voter, ou  
encore à voter ou à  
s’abstenir de voter pour un  
candidat donné;  
(f) offer money, goods,  
employment or other  
f) offrir de l’argent, des  
biens, un emploi ou toute  
autre contrepartie valable  
en vue d’inciter un électeur  
à voter ou à s’abstenir de  
voter, ou encore à voter ou  
à s’abstenir de voter pour  
un candidat donné.  
valuable consideration in  
an attempt to influence an  
elector to vote or refrain  
from voting or to vote or  
refrain from voting for a  
particular candidate.  
Prohibition elector  
Interdictions visant  
l’électeur  
17 An elector must not, in  
17 Nul électeur ne peut,  
connection with an election,  
relativement à une élection:  
(a) intentionally vote more  
than once in respect of any  
given position of chief or  
councillor; or  
a) voter intentionnellement  
plus d’une fois à l’égard de  
chacun des postes de chef  
ou de conseiller;  
(b) accept or agree to  
accept money, goods,  
employment or other  
valuable consideration to  
vote or refrain from voting  
or to vote or refrain from  
voting for a particular  
candidate.  
b) accepter ou convenir  
d’accepter de l’argent, des  
biens, un emploi ou toute  
autre contrepartie valable  
pour voter ou s’abstenir de  
voter, ou encore pour voter  
ou s’abstenir de voter pour  
un candidat donné.  
Page: 29  
Relevant provisions of the First Nations Elections Regulations, SOR/2015-86 [FNER]  
B.  
[63] Sections 15 to 17 of the FNER allow electors to vote by Mail-in Ballot:  
Mail-in ballot  
Demande de bulletin de vote  
postal  
15 An elector who wants to  
receive a mail-in ballot must  
make a written request to the  
electoral officer that includes  
a copy of their proof of  
identity.  
15 L’électeur qui désire  
obtenir un bulletin de vote  
postal présente au président  
d’élection une demande écrite  
accompagnée de la copie  
d’une preuve d’identité.  
Mail-in ballot package  
Trousse de vote postale  
16 (1) No later than 30 days  
before the day on which the  
election is to be held, the  
electoral officer must mail to  
16 (1) Au plus tard le  
trentième jour avant  
l’élection, le président  
d’élection envoie par la poste  
every elector who has made a à l’électeur qui en a fait la  
written request a mail-in  
ballot package consisting of  
demande écrite une trousse  
comprenant les éléments  
suivants:  
(a) a ballot, initialed on the  
back by the electoral  
officer or deputy electoral  
officer;  
a) un bulletin de vote  
portant au verso les  
initiales du président  
d’élection ou du président  
d’élection adjoint;  
(b) an outer return  
b) une enveloppe-réponse  
adressée au président  
d’élection et, si l’adresse  
de l’électeur se trouve au  
Canada, affranchie;  
envelope that is pre-  
addressed to the electoral  
officer and, if the elector’s  
address is in Canada, is  
postage-paid;  
(c) an inner envelope  
marked “Ballot” for  
insertion of the completed  
ballot;  
c) une enveloppe intérieure  
portant la mention «  
bulletin de vote » dans  
laquelle doit être inséré le  
bulletin de vote rempli;  
 
Page: 30  
(d) a voter declaration  
d) un formulaire de  
form;  
déclaration d’identité;  
(e) instructions regarding  
voting by mail-in ballot;  
e) les instructions relatives  
au vote par bulletin de vote  
postal;  
(f) the notice set out in  
f) l’avis visé à l’article 14;  
section 14;  
(g) a statement that the  
elector may vote in person  
at a polling station on the  
day of the election, or at an  
advance polling station if  
applicable, in lieu of voting  
by mail-in ballot, if  
g) une mention indiquant  
que l’électeur peut, au lieu  
de voter par bulletin de  
vote postal, voter en  
personne à un bureau de  
vote le jour de l’élection ou  
à un bureau de vote par  
anticipation, le cas échéant,  
dans les cas suivants:  
(i) they return the  
unused mail-in ballot to  
the electoral officer or  
deputy electoral officer,  
or  
(i) il retourne son  
bulletin de vote postal  
inutilisé au président  
d’élection ou au  
président d’élection  
adjoint,  
(ii) they provide the  
electoral officer or  
deputy electoral officer  
with a sworn affidavit  
stating that they have  
lost their mail-in ballot;  
and  
(ii) il fournit au  
président d’élection ou  
au président d’élection  
adjoint une déclaration  
sous serment indiquant  
qu’il a perdu son  
bulletin de vote postal;  
(h) a list of the names of  
any candidates who were  
elected by acclamation.  
h) le cas échéant, une liste  
mentionnant le nom des  
candidats élus par  
acclamation.  
Six or more days before  
election  
Délai de reception  
(2) If an elector makes a  
(2) Si l’électeur soumet une  
written request for a mail-in  
demande écrite de bulletin de  
ballot six or more days before vote postal six jours ou plus  
the day on which the election avant la date de l’élection, le  
is to be held, the electoral  
président d’élection lui envoie  
Page: 31  
officer must mail, or deliver at la trousse par la poste ou la lui  
an agreed time and place, a  
mail-in ballot package to the  
elector as soon as feasible  
after receipt of the request.  
remet à l’heure et au lieu  
convenus, et ce, dans les plus  
brefs délais après la réception  
de la demande.  
Voters list  
Registre  
(3) The electoral officer must (3) Le président d’élection  
indicate on the voters list, next note, en regard du nom de  
to the name of each elector to l’électeur sur la liste des  
whom a mail-in ballot  
package was mailed or  
électeurs, qu’une trousse lui a  
été envoyée par la poste ou  
remise et tient un registre de  
l’adresse et de la date de  
l’envoi ou de la remise.  
delivered, that a package has  
been provided to that elector  
and keep a record of the date  
on which, and the address to  
which, each package was  
mailed or delivered.  
Mail-in ballot  
Vote par la poste  
17 (1) An elector may vote by 17 (1) L’électeur qui vote par  
mail-in ballot by  
bulletin de vote postal:  
(a) marking the ballot with  
a cross, check mark or  
other mark that clearly  
indicates the elector’s  
choice, but does not  
identify the elector, next to  
the name of the candidates  
for whom they intend to  
vote;  
a) marque son bulletin, en  
regard du nom des  
candidats pour qui il  
souhaite voter, en apposant  
une croix, un crochet ou  
toute autre marque qui  
indique clairement son  
choix mais ne permet pas  
de;  
(b) folding the ballot in a  
manner that conceals the  
candidates’ names and any  
marks on the ballot without  
hiding the initials on the  
back;  
b) plie le bulletin de  
manière à cacher le nom  
des candidats ainsi que  
toute marque sans toutefois  
cacher les initiales qui  
figurent au verso;  
(c) placing the ballot in the  
inner envelope and sealing  
that envelope;  
c) insère le bulletin dans  
l’enveloppe intérieure et  
cachette l’enveloppe;  
Page: 32  
(d) completing and signing  
the voter declaration form;  
d) remplit et signe le  
formulaire de déclaration  
d’identité;  
(e) placing the inner  
envelope and the  
completed voter  
declaration form in the  
outer envelope; and  
e) insère l’enveloppe  
intérieure et le formulaire  
de déclaration d’identité  
rempli dans l’enveloppe-  
réponse;  
(f) delivering or mailing  
the mail-in ballot package  
to the electoral officer or  
deputy electoral officer  
before the time at which  
the polls close.  
f) avant la fermeture du  
scrutin, remet la trousse ou  
l’envoie par la poste au  
président d’élection ou au  
président d’élection  
adjoint.  
Assistance of another person Assistance  
(2) If an elector is unable to  
vote in the manner set out in  
subsection (1), the elector  
may enlist the assistance of  
another person.  
(2) L’électeur qui est  
incapable de voter de la  
manière prévue au paragraphe  
(1) peut demander l’assistance  
d’une personne.  
Voided mail-in ballot  
Nullité du bulletin de vote  
(3) A mail-in ballot is void if  
the mail-in ballot package is  
not received by the electoral  
officer or deputy electoral  
officer before the time at  
which the polls close.  
(3) Le bulletin de vote postal  
est nul si le président  
d’élection ou le président  
d’élection adjoint n’a pas reçu  
la trousse avant la fermeture  
du scrutin.  
[64] Importantly, subsection 5(6) of the FNER states that an elector who enlists the assistance  
of another with a Mail-in Ballot pursuant to subsection 17(2) of the FNER¸ must have a witness  
sign their Voter Declaration Form. Note that all Mail-in Ballots require a Voter Declaration  
form; the one provided by subsection 5(6) requires this extra safeguard:  
Witness  
Témoin  
(5) A voter declaration form  
must contain the name,  
(5) Le formulaire de  
déclaration d’identité contient  
Page: 33  
address, telephone number  
and signature of a witness  
le nom, l’adresse, le numéro  
de téléphone et la signature  
who is at least 18 years of age d’un témoin âgé d’au moins  
and who attests to the fact that dix-huit ans attestant que la  
the person completing and  
signing the voter declaration  
form is the person whose  
name is set out in the form.  
personne qui a rempli et signé  
le formulaire de déclaration  
d’identité est celle dont le  
nom figure sur le formulaire.  
Witness  
Témoin d’une personne  
incapable  
(6) The voter declaration form 5(6) Dans la cas d’une  
of the elector who enlisted the personne qui demande  
assistance of another person  
under subsection 17(2) must  
be signed by a witness that  
attests to the fact that the  
elector is the person whose  
name is set out in the form  
l’assistance d’une personne  
pour voter en vertu du  
paragraphe 17(2), la  
déclaration d’identité de  
l’électeur est signée par un  
témoin qui atteste que le  
and that the ballot was marked bulletin de vote a été marqué  
in the manner directed by the  
elector.  
selon les instructions de  
l’électeur et que cet électeur  
est celui dont le nom figure  
sur le formulaire.  
[Emphasis added]  
[Je souligne]  
C.  
Jurisprudence  
[65] In their respective Memoranda, the parties generally agree on the governing law and  
referred to a number of cases including the leading case Papequash v Brass, 2018 FC 325  
[Papequash FC], per Justice Barnes. I say the leading case because the Federal Court of Appeal  
dismissed an appeal from Papequash FC appeal stating it “correctly applied the jurisprudence”.  
Therefore I set out the following from Papequash FC:  
XIV. The Law  
[32] The Applicants challenge the Key First Nation Band election  
held on October 1, 2016 under sections 31 and 35(1) of the First  
 
Page: 34  
Nations Elections Act, above. Those provisions authorize the Court  
to set aside a band election provided that there is satisfactory proof  
of the contravention of the Act or the regulations that is likely to  
have affected the election result. Included among the prohibitions  
listed in section 16 of the Act is the following:  
16 A person must not, in  
connection with an election,  
16 Nul ne peut, relativement à  
une élection:  
(a) vote or attempt to vote  
knowing that they are not  
entitled to vote;  
a) voter ou tenter de voter  
sachant qu’il est inhabile à  
voter;  
(b) attempt to influence  
another person to vote  
knowing that the other  
person is not entitled to do  
so;  
b) inciter une autre personne à  
voter sachant que celle-ci est  
inhabile à voter;  
(c) knowingly use a forged  
ballot;  
c) faire sciemment usage d’un  
faux bulletin de vote;  
(d) put a ballot into a ballot  
box knowing that they are  
not authorized to do so  
under the regulations;  
d) déposer dans une urne un  
bulletin de vote sachant qu’il  
n’y est pas autorisé par  
règlement;  
(e) by intimidation or  
duress, attempt to influence  
another person to vote or  
refrain from voting or to  
vote or refrain from voting  
for a particular candidate;  
or  
e) par intimidation ou par la  
contrainte, inciter une autre  
personne à voter ou à  
s’abstenir de voter, ou encore  
à voter ou à s’abstenir de  
voter pour un candidat donné;  
(f) offer money, goods,  
employment or other  
f) offrir de l’argent, des biens,  
un emploi ou toute autre  
contrepartie valable en vue  
d’inciter un électeur à voter ou  
à s’abstenir de voter, ou  
encore à voter ou à s’abstenir  
de voter pour un candidat  
donné.  
valuable consideration in  
an attempt to influence an  
elector to vote or refrain  
from voting or to vote or  
refrain from voting for a  
particular candidate.  
[Emphasis added]  
[Je souligne]  
Page: 35  
[33] The Applicants carry the burden of proof of establishing, on a  
balance of probabilities, that a contravention of the Act has  
occurred that is likely to have affected the election results: see  
McNabb v Cyr, 2017 SKCA 27 at para 36, [2017] SJ No 132.  
Where sufficient evidence of corruption is adduced, the evidentiary  
burden may shift to the Respondents.  
[34] Not every contravention of the Act or regulations will justify  
the annulment of a band election. A distinction is not infrequently  
made between cases involving technical procedural irregularities  
and those involving fraud or corruption. In the former situation, a  
careful mathematical approach (eg reverse magic number test) may  
be called for to establish the likelihood of a different outcome.  
However, where an election has been corrupted by fraud such that  
the integrity of the electoral process is in question, an annulment  
may be justified regardless of the proven number of invalid votes.  
One reason for adopting a stricter approach in cases of electoral  
corruption is that the true extent of the misconduct may be  
impossible to ascertain or the conduct may be mischaracterized.  
This is particularly the case where allegations of vote buying are  
raised and where both parties to the transaction are culpable and  
often prone to secrecy: see Gadwa v Kehewin First Nation, 2016  
FC 597, [2016] FCJ No 569 (QL).  
[35] In Opitz v Wrzesnewskyj, 2012 SCC 55, 351 DLR (4th) 579,  
the Court considered language in the Canada Elections Act, SC  
2000, c 9 that closely mirrors that found in section 31 of the First  
Nations Elections Act, above. In describing the basis for the  
exercise of judicial discretion in cases involving procedural  
irregularities or fraud, the Court had this to say:  
[22] Under those provisions, if the grounds in  
para. (a) of s. 524(1) are established (the elected  
candidate was ineligible), then a court must declare  
the election null and void. In such circumstances it  
is as if no election was held. By contrast, if the  
grounds in para. (b) are established (there were  
irregularities, fraud or corrupt or illegal practices  
that affected the result of the election), a court may  
annul the election. Under these circumstances, a  
court must decide whether the election held was  
compromised in such a way as to justify its  
annulment.  
[23] In deciding whether to annul an election, an  
important consideration is whether the number of  
impugned votes is sufficient to cast doubt on the  
Page: 36  
true winner of the election or whether the  
irregularities are such as to call into question the  
integrity of the electoral process. Since voting is  
conducted by secret ballot in Canada, this  
assessment cannot involve an investigation into  
voters’ actual choices. If a court is satisfied that,  
because of the rejection of certain votes, the winner  
is in doubt, it would be unreasonable for the court  
not to annul the election.  
[36] In light of the above statement, the idea that serious electoral  
fraud can vitiate an election result cannot be seriously doubted.  
What must not be overlooked, however, is the Court’s admonition  
that a reviewing court retains a discretion to decline to annul an  
election even in situations involving fraud or other forms of  
corruption. This was a point more recently noted in McEwing v  
Canada (Attorney General), 2013 FC 525, [2013] 4 FCR 63,  
where Justice Richard Mosley stated:  
[81] What may constitute a corrosive effect on  
the integrity of the electoral process will depend on  
the facts of each case. I do not read the comments of  
the majority in paragraph 43 of Opitz as providing  
authority for the proposition that the Court may  
overturn election results in every case in which  
electoral fraud, corruption or illegal practices have  
been demonstrated. In that paragraph, the Supreme  
Court cited Cusimano v Toronto (City), 2011 ONSC  
7271, [2011] OJ No 5986 (QL) at para 62: “An  
election will only be set aside where the irregularity  
either violates a fundamental democratic principle  
or calls into question whether the tabulated vote  
actually reflects the will of the electorate.”  
[82] At paragraph 48 of Opitz, the majority  
cautioned that annulling an election would  
disenfranchise not only those persons whose votes  
were disqualified (in the context of an irregularities  
case) but every elector who voted in the riding. That  
suggests, in my view, that the Court should only  
exercise its discretion to annul when there is serious  
reason to believe that the results would have been  
different but for the fraud or when an electoral  
candidate or agent is directly involved in the fraud.  
[37] Justice Mosley’s remark that electoral corruption conducted  
by a candidate or agent ought generally to be treated more strictly  
Page: 37  
is also reflected in the following passage from Justice Cecily Y.  
Strickland’s decision in Gadwa v Kehewin First Nation, above:  
[88] It must first be stated that a candidate who  
engages in vote buying is attempting to corrupt the  
election process. Therefore, regardless of the  
number of votes that the candidate purchased, or  
attempted to purchase, and regardless of whether  
the candidate wins the election by a greater margin  
than the number of votes that were purchased, this  
cannot save the candidate and his or her election  
must still be vitiated. Fraud, corruption and illegal  
election practices are serious (Opitz at para 43).  
[38] What can be taken from the relevant authorities is that  
attempts by electoral candidates or their agents to purchase the  
votes of constituents are an insidious practice that corrodes and  
undermines the integrity of any electoral process.  
[Emphasis added]  
[66] As noted the jurisprudence cited by Barnes J in Papequash FC was upheld by the Federal  
Court of Appeal in Rodney Brass v Papequash, 2019 FCA 245 [Papequash FCA]. Justice Boivin  
JA, (Webb and Near JJA, concurring) held:  
[13] It bears emphasis that the Judge thoroughly reviewed the filed  
affidavits, which, for the most part remained unchallenged. The  
Judge also considered the relevant sections in the FNEA and  
correctly applied the jurisprudence in the context of this case  
(Gadwa v. Kehewin First Nation, 2016 FC 597, [2016] F.C.J. No.  
569 (QL), aff’d 2017 FCA 203; Opitz v. Wrzesnewskyj, 2012 SCC  
55, [2012] 3 S.C.R. 76). On the basis of the record before him, it  
was open to the Judge to make a finding of “widespread and  
openly conducted vote buying activity” and to conclude that “the  
integrity of the Key First Nation Band election conducted on  
October 1, 2016 was sufficiently corrupted by the misconduct of  
Rodney Brass, Glen O’Soup, Sidney Keshane, and Angela  
Desjarlais” to order that the election be set aside (Judge’s reasons  
at paras 39 and 40).  
[Emphasis added]  
Page: 38  
[67] Notably, electoral corruption by a candidate or agent ought generally to be treated more  
strictly and the resulting election may be annulled: see Papequash FC at paras 34 to 38,  
McEwing v Canada (Attorney General), 2013 FC 525 [Mosley J] at paras 81, quoted in  
Papequash FC at para 36, and Gadwa v Kehewin First Nation, 2016 FC 597 [Gadwa] at para 88  
quoted in Papequash FC at para 37. Justice Barnes put it this way in Papequash FC at para 34:  
“However, where an election has been corrupted by fraud such that the integrity of the electoral  
process is in question, an annulment may be justified regardless of the proven number of invalid  
votes.” Justice Barnes cited to Gadwa as did the Federal Court of Appeal in upholding  
Papequash FC.  
[68] In Gadwa, Justice Strickland held:  
[88] It must first be stated that a candidate who engages in vote  
buying is attempting to corrupt the election process. Therefore,  
regardless of the number of votes that the candidate purchased, or  
attempted to purchase, and regardless of whether the candidate  
wins the election by a greater margin than the number of votes that  
were purchased, this cannot save the candidate and his or her  
election must still be vitiated. Fraud, corruption and illegal election  
practices are serious (Opitz at para 43).  
[Emphasis added]  
[69] Gadwa was also upheld by the Federal Court of Appeal: see Joly v Gadwa, 2017 FCA  
203 [Gadwa FCA] where Justice Rennie JA (Webb and Boivin JJA, concurring) held:  
[3] I would dismiss the appeal for the reasons given by the Federal  
Court judge. No error has been identified either in the judge’s  
assessment of the standard of review of the Elections Officer’s  
decision, nor in the application of that standard to the evidence  
before her.  
Page: 39  
[70] Good v Canada (Attorney General), 2018 FC 1199 [Good], per Justice McVeigh is to the  
same effect and see paras 54 and 55:  
[47] The purpose of the FNEA is to provide alternative electoral  
processes for indigenous communities in Canada. A relatively  
recently proclaimed piece of legislation, the FNEA has received  
little judicial consideration to this point.  
[48] The judicial principles and interpretative approach to the  
FNEA, and the provisions governing prohibited conduct during an  
election, have however been considered in Papequash v Brass,  
2018 FC 325 [Papequash] and Cyr v McNab, 2016 SKQB 357  
[Cyr], appeal allowed in part in McNabb v Cyr, 2017 SKCA 27  
[McNabb], and Paquachan v Louison, 2017 SKQB 239  
[Paquachan].  
[49] The cases cited clarify the statutory test to set aside an  
election under section 31 and section 35(1) of the FNEA. The test  
requires the Applicant to establish that a provision was  
contravened and that the contravention likely affected the election  
result. Contraventions unlikely to have affected the result of the  
election will not trigger overturning the election. The requisite  
standard of proof for establishing this test is the balance of  
probabilities (Papequash at para 33; McNabb at para 36).  
[50] Both Justice Barnes in this Court (Papequash) and the  
Saskatchewan Court of Appeal in McNabb have also adopted the  
Supreme Court of Canada’s approach with the Canada Elections  
Act used in Wrzesnewskyj v Canada (AG), 2012 SCC 55 (sub nom  
Opitz v Wrzesnewskyj [Opitz]) in interpreting the FNEA.  
[51] The Saskatchewan Court of Appeal in McNabb, in citing  
Opitz, noted:  
[26] It is clear from the minority reasons of the  
Supreme Court in Opitz that the presumption of  
regularity is reflected in the onus and evidentiary  
burden imposed on an applicant to demonstrate that  
a contravention that likely affected the result of an  
election has occurred. Using the language of CEA,  
McLachlin C.J.C., who wrote for the minority,  
explained:  
[169] Election results benefit from a “presumption  
of regularity”: Dewdney Election Case, 1925  
CanLII 314 (BC CA), [1925] 3 D.L.R. 770  
Page: 40  
(B.C.C.A.), at p. 771. This reflects the fact that the  
applicant bears the burden of establishing, on a  
balance of probabilities, that there were  
“irregularities … that affected the result of the  
election”: see Beamish, at para. 39. …  
[emphasis added]  
[52] In adopting the ruling in Opitz in their interpretation of the  
FNEA, the courts have confirmed that when alleging a breach of  
the FNEA, an applicant must establish a prima facie case, after  
which the burden switches to the respondent to refute it  
(Paquachan):  
[23] The Burden of Proof: To assist in the  
implementation of the burden of proof to determine  
whether a contravention of the FNEA likely affected  
the result of the election, the framework offered by  
Justice Rothstein at para 61 in Opitz respecting the  
Canada Elections Act is instructive. First, the  
applicant must prove a prima facie case of  
irregularity (or in this instance, "contravention"),  
leaving to the respondent the opportunity to refute  
the alleged contravention or that the contravention  
likely did not affect the election result.  
[53] In Opitz, the majority only dealt with “irregularities”. The  
type of contravention, then, is important and relevant.  
[54] Not every contravention will justify triggering the overturning  
the election. As was held at paragraph 34 in Papequash, in cases  
involving technical procedural questions, a careful mathematical  
approach, like the “reverse magic number” test, may be utilized to  
establish the likelihood of a different outcome. In a case involving  
assertions of fraud, on the other hand, an annulment “may be  
justified regardless of the proven number of invalid votes”. Justice  
Barnes held at paragraph 34 of Papequash that the latter situation  
is “particularly the case where allegations of vote buying are  
raised…”  
[55] Given the consideration by Justice Barnes and the  
Saskatchewan Court of Appeal, it also cannot be overlooked that  
this Court retains discretion on overturning elections, even in  
situations involving fraud or other forms of corruptions. In Opitz,  
for example, the majority stated that annulling an election would  
disenfranchise not only those whose votes were disqualified, but  
also for every elector who cast a vote. Therefore, assuming that the  
Page: 41  
two-part test is met to establish a contravention of FNEA, the Court  
must carefully utilize its discretion before annulling an election.  
[Emphasis added]  
[71] In Papequash FC Justice Barnes concluded the authority to annul for corruption and  
fraud continues in an FNEA contestation because the language of the Canada Elections Act, SC  
2000, c 9 [CEA] “closely mirrors” language found in section 31 of the FNEA. Justice Barnes  
cites to Opitz v Wrzesnewskyj, 2012 SCC 55 [Opitz], where Justices Rothstein and Moldaver JJ.  
(for the majority) considered the statutory language of the CEA:  
[19] Part 20 of the Act deals with contested elections. Section  
524(1) provides:  
524. (1) Any elector who was eligible to vote in an  
electoral district, and any candidate in an electoral  
district, may, by application to a competent court,  
contest the election in that electoral district on the  
grounds that  
(a)  
under section 65 the elected candidate was  
not eligible to be a candidate; or  
(b)  
there were irregularities, fraud or corrupt or  
illegal practices that affected the result of the  
election.  
[20] The remedy the court may provide is in s. 531(2):  
531. . . .  
(2) After hearing the application, the court may  
dismiss it if the grounds referred to in paragraph  
524(1)(a) or (b), as the case may be, are not  
established and, where they are established, shall  
declare the election null and void or may annul the  
election, respectively.  
The use of the word “respectively” means that where the grounds  
in s. 524(1)(a) are established, a court must declare the election  
null and void; where the grounds in s. 524(1)(b) are established, a  
Page: 42  
court may annul the election. Conversely, a court may not annul an  
election unless the grounds in s. 524(1)(b) are established.  
[21] The French version of the Act confirms this interpretation:  
531. . . .  
(2) Au terme de l’audition, [le tribunal] peut rejeter  
la requête; si les motifs sont établis et selon qu’il  
s’agit d’une requête fondée sur les alinéas 524(1)a)  
ou b), il doit constater la nullité de l’élection du  
candidat ou il peut prononcer son annulation.  
[22] Under those provisions, if the grounds in para. (a) of s. 524(1)  
are established (the elected candidate was ineligible), then a court  
must declare the election null and void. In such circumstances it is  
as if no election was held. By contrast, if the grounds in para. (b)  
are established (there were irregularities, fraud or corrupt or illegal  
practices that affected the result of the election), a court may annul  
the election. Under these circumstances, a court must decide  
whether the election held was compromised in such a way as to  
justify its annulment.  
[23] In deciding whether to annul an election, an important  
consideration is whether the number of impugned votes is  
sufficient to cast doubt on the true winner of the election or  
whether the irregularities are such as to call into question the  
integrity of the electoral process. Since voting is conducted by  
secret ballot in Canada, this assessment cannot involve an  
investigation into voters’ actual choices. If a court is satisfied that,  
because of the rejection of certain votes, the winner is in doubt, it  
would be unreasonable for the court not to annul the election.  
[Emphasis in original]  
[72] To compare, section 31 of the FNEA provides:  
Contestation of election Contestation  
31 An elector of a  
31 Tout électeur d’une  
participating First Nation  
may, by application to a  
competent court, contest the  
election of the chief or a  
première nation participante  
peut, par requête, contester  
devant le tribunal compétent  
l’élection du chef ou d’un  
councillor of that First Nation conseiller de cette première  
on the ground that a nation pour le motif qu’une  
Page: 43  
contravention of a provision  
of this Act or the regulations  
is likely to have affected the  
result.  
contravention à l’une des  
dispositions de la présente loi  
ou des règlements a  
vraisemblablement influé sur  
le résultat de l’élection.  
[Emphasis added]  
[Je souligne]  
[73] Justice McVeigh in Good recognized that the majority in Opitz only dealt with  
“irregularities”. However, the Supreme Court noted at para 43 of Opitz:  
[43] The common thread between the words “irregularities, fraud  
or corrupt or illegal practices” is the seriousness of the conduct and  
its impact on the integrity of the electoral process. Fraud,  
corruption and illegal practices are serious. Where they occur, the  
electoral process will be corroded. In associating the word  
“irregularity” with those words, Parliament must have  
contemplated mistakes and administrative errors that are serious  
and capable of undermining the integrity of the electoral process.  
(See Cusimano v. Toronto (City), 2011 ONSC 7271, 287 O.A.C.  
355, at para. 62.)  
[Emphasis added]  
[74] From this, Justice Strickland in Gadwa held at para 88:  
[88] It must first be stated that a candidate who engages in vote  
buying is attempting to corrupt the election process. Therefore,  
regardless of the number of votes that the candidate purchased, or  
attempted to purchase, and regardless of whether the candidate  
wins the election by a greater margin than the number of votes that  
were purchased, this cannot save the candidate and his or her  
election must still be vitiated. Fraud, corruption and illegal election  
practices are serious (Opitz at para 43).  
[Emphasis added]  
(1)  
In Summary  
 
Page: 44  
[75] Section 31 of the FNEA requires an applicant to establish on a balance of probabilities (1)  
a contravention of a provision of FNEA or the regulations occurred, and (2) that the  
contravention “is likely to have affected the result” of the election. If that is the case, the Court  
may set aside the election under section 35.  
[76] The “magic number test” in Opitz is the test used to determine when a contravention is  
likely to have affected the result of the Election and whether the result of the Election should be  
annulled. The magic number test is described in Opitz at paras 71-73:  
71  
To date, the only approach taken by Canadian courts in  
assessing contested election applications has been the “magic  
number” test referred to in O'Brien (p. 93). On this test, the  
election must be annulled if the rejected votes are equal to or  
outnumber the winner's plurality (Blanchard, at p. 320).  
72  
The “magic number” test is simple. However, it inherently  
favours the challenger. It assumes that all of the rejected votes  
were cast for the successful candidate. In reality, this is highly  
improbable. However, no alternative test has been developed. No  
evidence has been presented in this case to support any form of  
statistical test that would be reliable and that would not  
compromise the secrecy of the ballot.  
73  
Accordingly, for the purposes of this application, we would  
utilize the magic number test. The election should be annulled  
when the number of rejected votes is equal to or greater than the  
successful candidate's margin of victory. However, we do not rule  
out the possibility that another, more realistic method for assessing  
contested election applications might be adopted by a court in a  
future case.  
[Emphasis added]  
[77] Contraventions that are not likely to have affected the result will not generally trigger  
setting aside the election (Papequash FC per Barnes J at para 33; Good per McVeigh J, at para  
49, and McNabb v Cyr, 2017 SKCA 27 per Jackson, Caldwell and Whitmore JJ.A at para 36).  
Page: 45  
[78] Importantly this Court and the Superior Courts have the discretion to annul an election of  
a Chief and or Councillor(s) when there is serious electoral fraud, and in particular where an  
electoral candidate or agent is directly involved in the fraud. See McEwing at paras 81 and 82,  
cited in Papequash FC at para 36. See also Good at paras 54 and 55, Opitz at para 43, McNabb at  
para 45.  
[79] This case centres on vote buying in the context of Mail-in Ballots. Most electors voted by  
mail; the Election was held during the COVD-19 pandemic. Vote buying in this case took place  
in each of the two steps of the Mail-in Ballot process. In the first step an elector makes a formal  
Request for Mail-in Ballot and submits ID. If approved by the Electoral Officer, the second step  
involves sending the elector a blank Mail-in Ballot in a package: the ballot must be marked, put  
into a sealed envelope and mailed back or delivered inside another envelope to the Electoral  
Officer with a signed Voter Declaration form.  
[80] In my view being directly involved in offering to or purchasing either a Request for Mail-  
in Ballot or a Mail-in Ballot and or Voter Declaration form are both acts of serious electoral  
fraud (Papequash FC at para 34 and Gadwa at para 88). In this connection, Justice Mosley in  
McEwing noted at para 69 with respect to definition of electoral fraud: “any action or instance  
meeting the dictionary definition of fraud would constitute electoral fraud where it was done in  
contravention of a provision of the Canada Elections Act or where it served to defeat a process  
provided for in that Act.” Moreover, the ordinary meaning of the term “fraud” refers to “An act  
or instance of deception, an artifice by which the right or interest of another is injured, a  
dishonest trick or stratagem” (Oxford English Dictionary (February 28, 2022) sub verbo “fraud”,  
Page: 46  
online: <https://www.oed.com/view/Entry/74298?rskey=HGrc2W&result=1#eid>); and an  
“intentional perversion of truth in order to induce another to part with something of value or to  
surrender a legal right” (Merriam-Webster.com Dictionary (February 24, 2022) sub verbo  
“fraud”, online: <https://www.merriam-webster.com/dictionary/fraud>).  
(2)  
Change in the Respondentsposition in oral argument  
[81] The Respondents in their Memorandum largely agreed with the position of the Applicants  
on the dual remedy under the FNEA: either setting aside an election where a contravention is  
likely to have affected the result, or the annulment of an election. See for example Respondents’  
Memorandum para 102:  
102. The leading case authorities on applications brought pursuant  
to the FNEA challenging First Nation elections in Saskatchewan  
are: the Saskatchewan Court of Appeal decision in McNabb v Cyr,  
2017 SKCA 27; the Saskatchewan Queen’s Bench decision  
Paquachan v Louison, 2017 SKQB 239; and the Federal Court of  
Canada decisions in Good v. Wuttunee 2018 FC 1199 and  
Papequash v. Brass, 2018 FC 325. All of those cases cite with  
approval McEwing v. Canada (Attorney General), 2013 FC 525  
and the Supreme Court of Canada decision in Opitz v.  
Wrzesnewskyj, 2012 SCC 55 (CanLII), [2012] 3 SCR 76.  
[82] The Respondents’ summary of law notably in items 3 to 7 at para 111 of their  
Memorandum also generally aligns with the Applicants’ submissions:  
1) The Applicant bears the onus, on a balance of probabilities to  
establish:  
a) That there was a “contravention” of the electoral process,  
FNEA or the Regs; and  
b) That such contravention has affected the outcome of the  
election.  
 
Page: 47  
2) If that threshold is met, the Respondents may then:  
a) Refute the alleged contravention; or  
b) If not refuted, show that the contravention has not  
affected the election result numbers.  
3) Not every proven but unrefuted “contravention” will trigger the  
overturning of an election. The so called “reverse magic  
numbers testwill be the appropriate test to apply to determine  
the extent to which an election outcome was affected and  
whether the election should then be overturned. See Opitz at  
para. 23:  
“23. In deciding whether to annul an election, an important  
consideration is whether the number of impugned votes is  
sufficient to cast doubt on the true winner of the election or  
whether the irregularities are such as to call into question the  
integrity of the electoral process. Since voting is conducted by  
secret ballot in Canada, this assessment cannot involve an  
investigation into voters’ actual choices. If a court is satisfied  
that, because of the rejection of certain votes, the winner is in  
doubt, it would be unreasonable for the court not to annul the  
election.”  
4) In cases involving fraud or other forms of corruption an  
annulment of the election “may be justified regardless that the  
proven number of invalid votes” in particular in cases where  
allegations of vote buying are proved. (See Good at para 54 and  
Gadwa)  
5) The court will in every circumstance retain the discretion to  
refuse to overturn an election, even in situations involving fraud  
or other forms of corruption. (See Good at para 55)  
6) A critical aspect the court must consider in such cases is that  
annulling an election will disenfranchise, not only those whose  
votes are disqualified, but also the vote of every elector who  
cast a legitimate vote. Therefore, the further test set out in  
Papequash at para 39 is applied.  
7) The Court must consider the test found in McEwing and weight  
any corrupt activity or other “contraventions” found in the  
circumstances balanced against whether there was a “corrosive  
effect” emanating from the corrupt activity, which “violates a  
fundamental democratic principle or calls into question whether  
the tabulated vote actually reflects the will of the electorate”.  
Page: 48  
[Emphasis in Original]  
[Emphasis added]  
[83] However, counsel for the Respondents took a different approach at the beginning of their  
oral submissions. The day prior, they had filed a one page itemization of authorities.  
[84] In oral submissions, the Respondents argued the FNEA only authorizes a court to set  
aside an election if a contravention of the FNEA is established that is likely to have affected the  
result. They took the position this was the only issue for the Court, essentially submitting the  
Court had no power to annul in the case of serious electoral fraud not affecting the result of the  
election.  
[85] In this, and with respect, they seemed to argue Justice Barnes in Papequash FC, Justice  
Mosely in McEwing, Justice Strickland in Gadwa, and Justice McVeigh in Good fell into error,  
as did the Federal Court of Appeal in ruling Justice Barnes “considered the relevant sections in  
the FNEA and correctly applied the jurisprudence in the context of this case (Gadwa v. Kehewin  
First Nation, 2016 FC 597, [2016] F.C.J. No. 569 (QL), aff’d 2017 FCA 203; Opitz v.  
Wrzesnewskyj, 2012 SCC 55, [2012] 3 S.C.R. 76).”  
[86] The Respondents submit that to impugn conduct of a Chief or Councillor that does not  
meet the magic number test, i.e., is not likely to have affected the result, a challenger must seek  
and obtain a conviction of the candidate on criminal charges under sections 16 or 17 or  
elsewhere in the FNEA.  
Page: 49  
[87] Parenthetically, this might entail a complaint to the police, followed by the police in their  
discretion conducting an investigation, then police in their discretion laying criminal charges. A  
prosecutor would then be involved in deciding to prosecute, another discretionary matter. There  
then might be a criminal trial - or in a case where multiple offenders are involved (as possibly in  
this case) - many separate trials possibly before different judges at different times. Trials may be  
conducted either by summary proceeding of by way of indictment (many offences are hybrid per  
subsection 39(1) of FNEA) giving rise to differing appeal routes.  
[88] This different argument raised matters generally canvassed at the hearing, in terms of  
comity between judges of this Court, stare decisis in terms of the Federal Court of Appeal (and  
Supreme Court of Canada in that Opitz is involved), and whether Parliament intended a Chief or  
Councillor(s) to have impunity against their election(s) being set aside under FNEA if they  
contravened the FNEA but the contravention(s) is/were not likely to have affected the result. As I  
understood them, the Respondents answered these concerns by citing to the laying of criminal  
charges for contravention(s).  
[89] The Respondents submitted this interpretation should have been put to both Justice  
Barnes in Papequash FC and to the Federal Court of Appeal, but was not. They said “very  
junior” counsel carried Papequash FC in both courts. They had a transcript of the Federal Court  
to establish their new argument was not raised before Barnes J. I did not hear them say why  
Justices Strickland in Gadwa and McVeigh in Good did not consider or accept this argument.  
Page: 50  
[90] When asked, the Respondents agreed Justice Barnes in Papequash FC found the power to  
annul an election under FNEA because section 31 of FNEA “closely mirrors” similar provisions  
(section 524) of the CEA at issue in Opitz.  
[91]  
In this connection, Papequash FC holds:  
[35] In Opitz v Wrzesnewskyj, 2012 SCC 55, 351 DLR (4th) 579,  
the Court considered language in the Canada Elections Act, SC  
2000, c 9 that closely mirrors that found in section 31 of the First  
Nations Elections Act, above. In describing the basis for the  
exercise of judicial discretion in cases involving procedural  
irregularities or fraud, the Court had this to say:  
[22] Under those provisions, if the grounds in  
para. (a) of s. 524(1) are established (the elected  
candidate was ineligible), then a court must declare  
the election null and void. In such circumstances it  
is as if no election was held. By contrast, if the  
grounds in para. (b) are established (there were  
irregularities, fraud or corrupt or illegal practices  
that affected the result of the election), a court may  
annul the election. Under these circumstances, a  
court must decide whether the election held was  
compromised in such a way as to justify its  
annulment.  
[23] In deciding whether to annul an election, an  
important consideration is whether the number of  
impugned votes is sufficient to cast doubt on the  
true winner of the election or whether the  
irregularities are such as to call into question the  
integrity of the electoral process. Since voting is  
conducted by secret ballot in Canada, this  
assessment cannot involve an investigation into  
voters’ actual choices. If a court is satisfied that,  
because of the rejection of certain votes, the winner  
is in doubt, it would be unreasonable for the court  
not to annul the election.  
[36] In light of the above statement, the idea that serious electoral  
fraud can vitiate an election result cannot be seriously doubted.  
[Emphasis added]  
Page: 51  
[92] With respect, I am not persuaded the Respondents’ new argument should be considered.  
To begin with, major last minute new arguments should not be accepted. The Court and  
opposing parties are entitled to deal with a contestation based on proper pleadings accurately  
setting out their positions. The Respondents were served with the underlying Notice of  
Application on April 17, 2020. They had ample time to develop and plead their case properly. Of  
course, basic arguments may be fleshed out, but here the Respondents have turned their case  
around: their oral submissions go against their written submissions.  
[93] Moreover, this Court is bound by the doctrine of comity to adhere to the endorsement of  
the legal proposition that, in addition to setting aside an election where a candidate contravened  
the FNEA that is likely to have affected the result, this Court has the discretion to annul an  
election if an “election has been corrupted by fraud such that the integrity of the electoral process  
is in question. As a result, an annulment may be justified regardless of the proven number of  
invalid votes” particularly where an electoral candidate or agent is directly involved in the fraud  
as Justice Barnes put it in Papaquash FC at para 34-36, as Justice Mosely found in McEwing at  
para 81-82, as Justice Strickland found in Gadwa at para 88, and as followed by Justice McVeigh  
in Good.  
[94] Justice Harrington discusses comity in Sing v Canada (Citizenship and Immigration),  
2011 FC 956 at para 17 and 18 and endorsed Justice Dawson (as she then was):  
[17] Even if I were minded, without the benefit of jurisprudence on  
point, to have come to a different conclusion, the decisions in  
Malik and Luongo, above, are reasonable and judicial comity  
requires that I follow them.  
[18] In Baron v. Canada (Minister of Public Safety and Emergency  
Preparedness), 2008 FC 341, 324 FTR 133, Madam Justice  
Page: 52  
Dawson set out circumstances which would justify a refusal to  
follow a prior decision of the same court:  
[52] A judge of this Court, as a matter of judicial  
comity, should follow a prior decision made by  
another judge of this Court unless satisfied that: (a)  
subsequent decisions have affected the validity of  
the prior decision; (b) the prior decision failed to  
consider some binding precedent or relevant statute;  
or (c) the prior decision was unconsidered; that is,  
made without an opportunity to fully consult  
authority. If any of those circumstances are found to  
exist, a judge may depart from the prior decision,  
provided that clear reasons are given for the  
departure and, in the immigration context, an  
opportunity to settle the law is afforded to the  
Federal Court of Appeal by way of a certified  
question. See: Re Hansard Spruce Mills Ltd., [1954]  
4 D.L.R. 590 at page 591 (B.C.C.A.), and Ziyadah  
v. Canada (Minister of Citizenship and  
Immigration), [1999] 4 F.C. 152 (T.D.).  
[95] I am also bound by stare decisis; first level courts must accept and apply the law  
determined by appellate courts to which their decisions may be appealed. That is exactly the  
situation here. I therefore follow Justice Barnes in Papequash FC because the Federal Court of  
Appeal in Papequash FCA held Papequash FC “correctly applied the jurisprudence”. To recall,  
Papaquash FC was appealed to the Federal Court of Appeal which not only dismissed the appeal  
(with high costs), but affirmed the law as set out by Justice Barnes, saying: “[13] It bears  
emphasis that the Judge thoroughly reviewed the filed affidavits, which, for the most part  
remained unchallenged. The Judge also considered the relevant sections in the FNEA and  
correctly applied the jurisprudence in the context of this case (Gadwa v. Kehewin First Nation,  
2016 FC 597, [2016] F.C.J. No. 569 (QL), aff’d 2017 FCA 203; Opitz v. Wrzesnewskyj, 2012  
SCC 55, [2012] 3 S.C.R. 76).” [Emphasis added].  
Page: 53  
[96] Therefore, I will proceed without considering this argument of the Respondents.  
(3)  
Determination of the Respondents’ objections to tabs in the Applicant’s Record  
[97] The Respondents objected to the admissibility of three categories of documents in the  
Applicants’ Record. I propose to deal with two categories now.  
[98] The Respondents summarize their position in relation to different categories of  
documents in their Memorandum at para 131:  
131. The Respondents submit that of the 260 Tabs submitted by  
the Applicants in their Record, the following are not appropriately  
before this Court:  
-
Tabs 50 59, the ERC recordings  
inappropriately accessed without consent [to  
be dealt with in the context of Robin  
Wuttunee’s ballot];  
-
-
Tabs 86 251, the Exhibits inappropriately  
brought during cross-examination; and  
Tabs 252 260, The reply to undertakings  
of Burke Ratte are not subject to a Motion  
for inclusion into evidence; furthermore an  
“examining party has no right to request or  
demand” an undertaking to produce  
documents during a cross-examination on an  
affidavit (See Preventous Collaborative  
Health v. Canada 2020 Canlii 32965 (FC))  
and the Respondents object to their inclusion  
in the Applicant’s Record.  
 
Page: 54  
(a)  
Re Tabs 86 251: Exhibits put to witnesses being cross-examined without  
advance notice or ruling on admissibility  
[99] The Respondents say these Tabs, each of which is a marked Exhibit, were nonetheless  
inappropriately put to witnesses during cross-examination. I disagree.  
[100] This group of Exhibits has 166 Tabs, totalling 1,191 pages. Included are a very wide  
variety of different documents. They appear to include many if not all documents exhibited by  
the Applicants in their cross-examinations of the Respondents’ witnesses. These include  
Directions to Attend, blank election documents including blank ballots, a lengthy affidavit of Mr  
Ratte filed in another contestation (Papequash FC), the 2015 FNEA handbook, copies of the  
FNEA regulations and many, many other documents. I will not enumerate them all because the  
objection is generic and made by the Respondents in respect of each document or set of  
documents in these Tabs.  
[101] The Respondents object to each of these 166 Tabs because they did not have advance  
notice of them. They submit the documents ought to have been disclosed to the Respondents in  
advance of the cross-examinations by way of application or motion before being put to their  
witnesses on cross-examination. The Respondents’ Memorandum argues:  
132. The listed exhibits ought to have been disclosed by number to  
the Respondents in advance of the cross-examinations by way of  
application or motion, facilitating argument before this Honourable  
Court over their inclusion. If the documents were found to be  
admissible in evidence, then the Court may also have granted time  
to review the documents with the proposed witnesses prior to  
cross-examination. The Respondents submit however that such a  
process is not permitted in the context of an Application for  
judicial review. At the very least, there should have been a Motion  
 
Page: 55  
made by the Applicants for leave to do what was done. No such  
Motion or request was ever made.  
133. The Respondents advised the Applicants of the above  
objection, in reply to their service email, that such materials are not  
admissible. (See our email of Thursday, November 4, 2021  
10:28 AM in regards to the Service of the Applicants’ Record)  
Based on all of the foregoing, the Respondents seek an order of the  
Court that all of those materials be declared inadmissible and  
struck from the record.  
[Emphasis in original]  
[102] The Respondents offer no authority to support their argument.  
[103] In effect, they ask the Court to rule that witnesses being cross-examined on an application  
are entitled to advance notice of documents to be put to them, and need answer questions only  
where such documents are pre-approved by the Court on motion by the cross-examining party.  
[104] With respect, the jurisprudence is against the Respondents. As set out in Thibodeau v  
Edmonton Regional Airport Authority, 2021 FC 146 [Thibodeau Edmonton] at para 14: “The  
person may also be cross-examined on documents relevant to the determination of the issue even  
if those documents are not mentioned in the affidavit filed (Sierra at para 9).” Sierra Club of  
Canada v Canada (Minister of Commerce), [1998] FCJ No 1673 (QL) [Sierra Club]; states at  
para 9:  
9 The law as to the scope of cross-examination on affidavits is well  
developed. I touch on some relevant aspects. To begin, it is not  
confined by the four corners of an affidavit, but includes matters  
relevant to the determination of the issue in respect of which the  
affidavit is filed: Weight Watchers International Inc. v. Weight  
Watchers of Ontario Ltd. (No. 2) (1972), 6 C.P.R. (2d) 169 (Fed.  
T.D.), at 171 and 172, a decision of Mr. Justice Heald as he then  
was.  
Page: 56  
[105] See also Federal Courts Practice 2022, (Toronto: Thomson Reuters Canada, 2021)  
which in its commentary on Rule 83 (Cross-examination on affidavits) notes: Thibodeau v.  
Edmonton Regional Airport Authority, 2021 CarswellNat 540, 2021 FC 146 It is generally  
recognized that the scope of a cross-examination on affidavit is more limited than an  
examination for discovery. The affiant must answer all questions upon which he can be fairly  
expected to have knowledge, without being evasive, which relate to the principal issue in the  
proceeding upon which his affidavit touches. The affiant may also be cross-examined on  
documents relevant to the determination of the issue even if those documents are not mentioned  
in the affidavit filed.”  
[106] To the same effect is, and I also adopt the decision of Justice Roy in Thibodeau v Halifax  
International Airport Authority, 2019 FC 1149 [Thibodeau Halifax] at para 28:  
[28] Cross-examination is an important tool in our adversarial  
system: someone who testifies, whether in court or by affidavit, is  
not immune from inquisitorial questions. Such witnesses bring  
forward evidence that must be open to questioning. Where, in  
addition, there are rules of admissibility, such as in this case the  
prior availability of the same material and the rule against the  
splitting of one’s own case, cross-examination should be permitted  
in that regard. Put another way, whoever provides evidence is  
subject to cross-examination. As Justice Muldoon said in Swing  
Paints Ltd. v Minwax Co. [1984] 2 FC 521, p 531, evasive  
testimony is not permitted. He went on to say:  
The person making the affidavit must submit  
himself to cross-examination not only on matters  
specifically set forth in his affidavit, but also to  
those collateral questions which arise from his  
answers. Indeed he should answer all questions,  
upon which he can be fairly expected to have  
knowledge, without being evasive, which relate to  
the principal issue in the proceeding upon which his  
affidavit touches if it does.  
[Emphasis added]  
Page: 57  
[107] Justice Russell in Ottawa Athletic Club inc. (Ottawa Athletic Club) v Athletic Club Group  
inc., 2014 FC 672 [Ottawa Athletic Club] recently concluded there isn’t any mechanism to  
require disclosure in advance of the cross-examination. Justice Russell reviewed the law on  
undertakings generally, and specifically concluded that there is no mechanism requiring  
documentary disclosure by the examining party in advance of cross-examination:  
[141] Nor is there any mechanism to require disclosure in advance  
of the cross-examination (rather than at the cross-examination),  
though cost considerations could arise where a party is  
“ambushed” with an excessive volume of documents at the cross-  
examination: Sierra Club, above, at paras 10, 14-16, 20.  
[108] I decline to establish such a precedent in any event. I see no reason why witnesses should  
not be subject to cross-examination on documents they have not seen before, and several reasons  
why they should. To order otherwise would eliminate valuable spontaneity from cross-  
examinations. In addition, it is well known that during a cross-examination counsel may not  
speak to their witness about matters that might come up during cross-examination, see  
Archambault v Ministre du Revenu National, [1998] FCJ No 635 [per Tremblay-Lamer J.] at  
para 21. To do as the Respondents suggest would open the door to those very discussions in  
advance of cross-examinations, with the same deleterious effect. This could result in carefully  
scripted lawyer-coached answers frustrating the search for the very truth for which cross-