Whitford v. Red Pheasant First Nation

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 Applicants’ Record, 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 Respondents’ position 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 test” will 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-

examination is designed. In addition, I very much doubt the efficacy of expending Court time on

pre-approving all such documents without proper context.

[109] I conclude Tabs 86 to 251 are properly in evidence.

Page: 58

(b)

Re Tabs 252 – 260: Admissibility of Mr Ratte’s Reply to Undertakings of

May 18, 2021, Tabs 252 – 260

[110] In brief, Mr Ratte gave a number of undertakings to produce documents at his cross-

examination of October 26, 2020. He supplied the promised answers and documents in the

answers and productions contained in his May 18, 2021 RTU.

[111] Tabs 252 – 260 are documents forming part of his May 18, 2021 RTU. They are copies

of the text messages Mr Ratte exchanged on his cell phone with the Respondents, some of which

concern Requests for Mail-in Ballots the Applicants say were obtained in contravention of FNEA

and or FNER and or by serious electoral fraud. Other issues of controversy between the parties

are also discussed in these text messages.

[112] When Mr Ratte was asked for communications between himself and the Respondents, it

turned out Mr Ratte’s cell phone was no longer working. However he still had it. Mr Ratte

consented and undertook to try to have communications recovered by data recovery experts. The

Tabs in question are the very documents recovered from Mr Ratte’s cell phone by his data

recovery experts.

[113] The Respondents, and those who supported them, objected to being cross-examined on

these documents, alleging Mr Ratte’s May 18, 2021 RTU was not admissible evidence. Justice

Aylen ordered this issue determined by the hearings judge.

Page: 59

[114] In my respectful view, there is no merit to these objections. The documents at Tabs 252

to 260 of Mr Ratte’s May 18, 2021 RTU are admissible.

[115] Some background first. Mr Ratte was originally cross-examined on September 14, 2020

on his affidavit dated August 27, 2020, during the course of which he gave a number of

undertakings. He re-attended cross-examination pursuant to these undertakings on October 26,

2020 at which time he gave further undertakings. Mr Ratte subsequently delivered his May 18,

2021 RTU [AR Tab 252].

[116] The parties are sharply divided on whether Mr Ratte’s May 18, 2021 RTU and its

contents (Tabs 252 to 260) are admissible.

[117] While Mr Ratte takes no position on this issue in his Memorandum, when he was cross-

examined on October 4, 2021, per his counsel’s letter of September 24, 2021, he submitted that if

the Applicants wished to seek production of additional material, or if they objected in any way to

the May 18, 2021 RTU, they should have brought a motion pursuant to the June 18, 2021

direction of Justice Aylen.

[118] Before Justice Aylen, who was asked to decide this issue, the Respondents agreed with

Mr Ratte.

[119] The Applicants disagreed. They asked Justice Aylen for leave to include the May 18,

2021 RTU documents in their Applicants Record, saying “….This issue is important to the just

Page: 60

resolution of this election appeal on its merits. The Applicants seek to have this issue addressed

during case management and in the circumstances an order is sought expressly granting leave for

its inclusion into the Applicants’ Record” [Applicants’ letter of September 24, 2021].

[120] Justice Aylen found in favour of the Applicants. By Amended Order of September 28,

2021, she ruled the admissibility of the May 18, 2021 RTU is a matter for this Court to decide on

hearing the application: “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; ….” [Emphasis

added].

[121] The Respondents persisted in this objection in their Memorandum. They argue Mr

Ratte’s May 18, 2021 RTU should not be admitted into evidence because the Amended Order of

Justice Aylen dated September 28, 2021 also states:

Considering the Applicants had the opportunity to bring a motion

regarding the production of documents made by Mr. Ratte and

declined to do so within the timetable set by the Court. The Court

will not permit such a motion to be brought now, formally or

informally, and will make no order requiring Mr. Ratte to produce

the six photo text messages or to send any further communication

to TrueData. Contrary to the assertion of the Applicants, this issue

does not fall within paragraph 16(b) of the Order;

[122] Notably, the paragraph of Justice Aylen’s preamble relied upon by the Respondents is in

the same Order that contains the preamble relied on by the Applicants: both are in Justice

Aylen’s Amended Order of September 28, 2021. In my respectful view, the provision of that

Order dealing directly with the admissibility of the answers to undertakings of Mr Ratte must

Page: 61

govern because it is made in direct response to the Applicants’ submission of September 24,

2021. It is unambiguous and placed ahead the clause relied on by the Respondents.

[123] Therefore, as Justice Aylen Ordered, the admissibility of Mr Ratte’s May 18, 2021 RTU,

is properly “a matter for the parties to address before the hearings judge” at this time.

[124] The Respondents outline their argument in their Memorandum:

128 In regard to the Undertakings of Burke Ratte referenced by the

Applicants, we refer the Court to paragraph 41 supra, of our

review of the Applicants facts statements. The Applicants have

inappropriately asked for undertakings in relation to affidavits and

then have not made motion for the unenforceable undertakings’

admission into evidence. Instead, those Undertakings were used in

a clandestine and indirect manner. During cross-examinations the

Applicants introduced those materials “by surprise” and without

prior notice to the Respondents.

129 Those exhibit documents were actually sent by email to

Respondents’ counsel during the cross-examinations hearing at the

same moment they were introduced. The surprise introduction of

those materials was met with strenuous objection in every instance

as is clearly evidenced in all of the transcripts of the cross-

examinations of the Respondents witnesses. Even then, the

Applicants did not make application under section 53 of the

Federal Court Act for the introduction of those materials. The

Respondents do not agree that the undertakings themselves form

part of a witness’s evidence, as the Applicants assert. However,

that would not alter the requirement motions must be made for

such evidence to become admissible.

130 It is noteworthy, the Applicants received the undertaking

documents from the Electoral Officer on September 14, 2020 and

then proceeded to cross-examine the Respondents’ witnesses on

those documents the very next day, without applying to the court

for leave to use the said documents and without disclosing those

documents to the Respondents. (See the exchange between

Applicants’ Counsel and Burke Ratte on page 160 and 161 in

the transcript of Burke Ratte dated September 14, 2020)

Page: 62

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. 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

made by the Applicants for leave to do what was done. No such

Motion or request was ever made.

[Emphasis in original]

[125] Para 41 of the Respondents’ Memorandum states:

40. The candidates the Applicants call “Team Clinton” were

successful and won the election campaigning in compliance with

the guidelines approved by ISC and sanctioned by Elections

Canada. The materials referenced in Tab 253 are referred to in the

following paragraph 41.

41. There is nothing but unfounded conjecture and accusations

being expressed in this paragraph. All of the references are to

documents that have not been admitted into evidence in this

proceeding as they are from the undertakings of Burke Ratte.

Those undertakings have not been allowed into evidence pursuant

to the Order of this Honourable Court dated September 28, 2021,

as follows:

Considering the Applicants had the opportunity to

bring a motion regarding the production of

documents made by Mr. Ratte and declined to do so

within the timetable set by the Court. The Court

will not permit such a motion to be brought now,

formally or informally, and will make no order

requiring Mr. Ratte to produce the six photo text

messages or to send any further communication to

TrueData. Contrary to the assertion of the

Applicants, this issue does not fall within paragraph

16(b) of the Order;

[Emphasis added]

Page: 63

[126] With respect, I have already considered and rejected this proposal, see paras 99 and

following above (Part IV C (3)(a)). Briefly, I held there is no precedent for ordering such a new

procedure, the argument is contrary to jurisprudence, and in any event there is no good reason to

adopt this approach and reasons to reject it. With respect, there is no merit to this submission.

[127] The admissibility of Mr Ratte’s May 18, 2021 RTU is important because Counsel for Mr

Ratte and Counsel for the Respondents Chief Wuttunee and Councillor Dana Falcon, objected to

witnesses answering questions related to photo text messages they had sent or received which

were recovered from Mr Ratte’s cell phone. In addition, Leroy Nicotine Jr., a non-party who

supported the Respondents (see para 27 above) and who was directly involved in many FNEA

contraventions and serious electoral frauds, also refused to answer questions related to the photo

text messages recovered from Mr Ratte’s cell phone, as contained in Tabs 252 to 260 of Mr

Ratte’s May 18, 2021 RTU.

[128] In a word, the photo text messages provide hard evidence that corroborates some of the

Applicants’ allegations that the Respondents and their supporters committed contraventions of

FNEA and were involved in serious electoral fraud in this Election. This is not why the May 18,

2021 RTU is admissible, but a consequence of its admission.

[129] I should add the May 18, 2021 RTU was in fact originally marked as an Exhibit on Mr

Ratte’s cross-examination, but counsel for Mr Ratte then objected even though it had been

shown to Mr Ratte and marked.

Page: 64

[130] I turn to my reasons for upholding the admissibility of these cell phone messages and

answers.

[131] With respect, once again the Respondents have no case law to support their position.

[132] The parties do not dispute the genuineness of the May 18, 2021 RTU: it is signed by Mr

Ratte’s counsel, who confirmed this during cross-examination of Mr Ratte on October 4, 2021.

[133] Nor is it disputed that the principle issue in this case is whether the Respondents

contravened FNEA or FNER and or were involved in serious electoral fraud during the course of

the Election.

[134] It is also common ground Chief Wuttunee and other Respondents collected a large

number of signed Request for Mail-in Ballots, and sent them to Mr Ratte by cell phone as texts

and images. In this connection the Applicants submit and I agree Mr Ratte’s May 18, 2021 RTU

report the following individuals personally 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: 65

[135] Further, it is not disputed Mr Ratte’s May 18, 2021 RTU contains the answers and

documents Mr Ratte promised and agreed, i.e., undertook to produce on his cross-examination of

September 14, 2020, including the recovered text messages between him and the Respondents.

[136] While undertakings as such are not dealt with in the Federal Courts Rules, SOR/98-106

[Federal Courts Rules], Rules 94 and 97 provide that a person who is to be examined (or cross-

examined) is obliged to (“shall”) produce for inspection at their examination all documents and

other material requested in the Direction to Attend that are within that person’s or party’s

possession and control unless a privilege is claimed or relief granted. This requirement may be

relieved by the Court on motion if irrelevant or unduly onerous. Rule 97 sets out some of the

consequences for non-compliance with attendance or production of documents:

Production of documents on Production de documents

examination

94 (1) Subject to subsection

(2), a person who is to be

examined on an oral

examination or the party on

whose behalf that person is

94 (1) Sous réserve du

paragraphe (2), la personne

soumise à un interrogatoire

oral ou la partie pour le

compte de laquelle la

being examined shall produce personne est interrogée

for inspection at the

produisent pour examen à

l’interrogatoire les documents

et les éléments matériels

demandés dans l’assignation à

comparaître qui sont en leur

possession, sous leur autorité

ou sous leur garde, sauf ceux

examination all documents

and other material requested

in the direction to attend that

are within that person’s or

party’s possession and

control, other than any

documents for which privilege pour lesquels un privilège de

has been claimed or for which non-divulgation a été

relief from production has

been granted under rule 230.

revendiqué ou pour lesquels

une dispense de production a

été accordée par la Cour en

vertu de la règle 230.

Page: 66

Relief from production

Partie non tenue de

produire des documents

(2) On motion, the Court may (2) La Cour peut, sur requête,

order that a person to be

examined or the party on

whose behalf that person is

being examined be relieved

from the requirement to

produce for inspection any

document or other material

requested in a direction to

attend, if the Court is of the

opinion that the document or

other material requested is

irrelevant or, by reason of its

nature or the number of

documents or amount of

material requested, it would

be unduly onerous to require

the person or party to produce

it.

ordonner que la personne ou

la partie pour le compte de

laquelle la personne est

interrogée soient dispensées

de l’obligation de produire

pour examen certains des

documents ou éléments

matériels demandés dans

l’assignation à comparaître, si

elle estime que ces documents

ou éléments ne sont pas

pertinents ou qu’il serait trop

onéreux de les produire du fait

de leur nombre ou de leur

nature.

…

Failure to attend or

misconduct

Défaut de comparaître ou

inconduite

97 Where a person fails to

97 Si une personne ne se

attend an oral examination or présente pas à un

refuses to take an oath, answer interrogatoire oral ou si elle

a proper question, produce a

document or other material

required to be produced or

comply with an order made

under rule 96, the Court may

refuse de prêter serment, de

répondre à une question

légitime, de produire un

document ou un élément

matériel demandés ou de se

conformer à une ordonnance

rendue en application de la

règle 96, la Cour peut:

(a) order the person to

attend or re-attend, as the

case may be, at his or her

own expense;

a) ordonner à cette

personne de subir

l’interrogatoire ou un

nouvel interrogatoire oral,

selon le cas, à ses frais;

Page: 67

(b) order the person to

answer a question that was

improperly objected to and

any proper question arising

from the answer;

b) ordonner à cette

personne de répondre à

toute question à l’égard de

laquelle une objection a été

jugée injustifiée ainsi qu’à

toute question légitime

découlant de sa réponse;

(c) strike all or part of the

person’s evidence,

including an affidavit made

by the person;

c) ordonner la radiation de

tout ou partie de la preuve

de cette personne, y

compris ses affidavits;

(d) dismiss the proceeding

or give judgment by

default, as the case may be;

or

d) ordonner que l’instance

soit rejetée ou rendre

jugement par défaut, selon

le cas;

(e) order the person or the

party on whose behalf the

person is being examined

to pay the costs of the

examination.

e) ordonner que la

personne ou la partie au

nom de laquelle la

personne est interrogée

paie les frais de

l’interrogatoire oral.

[Emphasis added]

[Je souligne]

[137] Undertakings are an important feature of litigation. This is emphasized by the fact

undertakings, whether to provide information or documents, are not only enforceable promises

made by one party to another: they are also promises to the Court: see Psychologists Association

of Alberta v Schepanovich, 1991 ABCA 11 [per Côté JA] at para 10. In this connection,

undertakings have the effect of an Order of the Court, and if not honoured, may be enforced

including by motion to compel, motion to strike and ultimately by proceedings for contempt;

McLaughlin v. Canada (Attorney General), 2009 FCA 279 [per Noël JA], and Hughes v Canada

(Human Rights Commission), 2021 FC 728 at para 65, citing Carey v Laiken, 2015 SCC 17,

[2015] 2 SCR 79 [Cromwell J] at paras 30 and 36.

Page: 68

[138] In a cross-examination, as noted by Justice Russell in Ottawa Athletic Club, supra at

paras 134-136, 141, there is generally no obligation to give undertakings, but once given there is

an enforceable obligation to respond. Justice Russell specifically addressed undertakings to

disclose documents, concluding these must be honoured:

[135] Undertakings to disclose documents must also be honoured,

and a response to a question taken under advisement can constitute

an implied undertaking: Autodata Ltd v Autodata Solutions Co,

2004 FC 1361 [Autodata].

[139] From this jurisprudence I conclude undertakings are matters worthy of great respect.

[140] Where given on cross-examination, the practice is for the giver of an undertaking to

supply the promised information to the cross-examining party by delivering a Reply to

Undertaking, although the Rules do not prescribe a specific form. The cross-examining party is

thereupon entitled to require the re-attendance of the witness for cross-examination on the Reply

to Undertakings to the same extent as if the information or documents in the Reply to

Undertaking had been answered orally or delivered at the earlier examination.

[141] In order to resume cross-examination on a Reply to Undertaking, parties may again use a

Direction to Attend, to which the examining party may add a direction to produce specific

documents. The addition of a direction to produce triggers the document’s mandatory (“shall”)

production under Rule 94(1).

[142] Given this, in my respectful view, Mr Ratte’s May 18, 2021 RTU and the documents at

Tabs 252 to 260 are as much in evidence as the rest of the evidence he gave during his earlier

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cross-examination. The May 18, 2021 RTU are the answers and productions he would have

given when asked for them.

[143] Despite the submissions of the Respondents, I see no reason in principle to treat Mr

Ratte’s productions and answers in his May 18, 2021 RTU any differently from the answers and

productions he gave when he was originally cross-examined.

[144] Two additional factual circumstances reinforce the same conclusion. First, Mr Ratte filed

an affidavit dated July 23, 2021, dealing with “the process for distributing Request for Mail-In

Ballot Forms (Form 5-Ds) to First Nation members.” These are the documents by which First

Nation electors requested Mail-in Ballots for the upcoming Election. Importantly, Mr Ratte

deposed in his affidavit at para 2 that the Election was “held in accordance with” the FNEA [RR

0170, PDF 0175]:

2. The 2020 election of the First Nation was held in accordance

with the First Nations Elections Act, SC 2014, c 5 (“FNEA”).

[145] Second, Mr Ratte attended the October 4, 2021 cross-examination in response to a

Direction to Attend and Produce served by the Respondents. Notably, the Direction directed Mr

Ratte to produce “Your May 18, 2021, Reply to Undertakings,” i.e. his May 18, 2021 RTU. The

other purpose of the Direction to Attend and Produce was that Mr Ratte attend “to be cross-

examined on your affidavit sworn July 23, 2021 (“Affidavit”) in this proceeding.”

[146] I also note the Applicants had not concluded their previous October 26, 2020 cross-

examination of Mr Ratte in the allotted time when it was ended. The Applicants said they had not

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concluded [AR 0874, PDF 0883]. In my view and in the normal course, that cross-examination

could have been continued by consent, by Direction to Attend and Produce or by Order if

requested.

[147] I will explain these two additional factual circumstances in more detail.

(i)

Mr Ratte’s Affidavit of July 23, 2021

[148] In terms of Mr Ratte’s affidavit, it is not disputed that the principle and central issues in

this matter are possible contraventions of FNEA and FNER and serious electoral fraud –

particularly by candidates or officials in the Election.

[149] Mr Ratte deposed the Election was held “in accordance with” FNEA.

[150] There is no dispute the Applicants were entitled to cross-examine Mr Ratte on his

affidavit. Therefore such cross-examination would properly include questions relevant to

possible contraventions of FNEA and or FNER and or electoral fraud and serious electoral fraud

in the Election. There were the principle and central issues in this contestation.

[151] Important points regarding cross-examination are recently canvassed by Justice Roussel,

who cited a number of authorities including the Federal Court of Appeal, in Thibodeau

Edmonton, supra. I adopt Justice Roussel’s conclusions that the scope of a cross-examination on

affidavit is more limited than an examination for discovery, that an affiant who swears to certain

matters should not be protected from fair cross-examination on the very information volunteered

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in the affidavit, and should submit to cross-examination not only on matters set forth in the

affidavit, but also to those collateral questions which arise from the answer(s): see para 13. In

addition, an affiant must alsoanswer all questions upon which he or she can be fairly expected to

have knowledge, without being evasive, which relate to the principle issue in the proceeding

upon which his or her affidavit touches, and the affidant 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 – see para 14:

[11]Cross-examinations on affidavit are governed by sections 83

to100 of the Rules. Section 97 of the Rules provides that if a

person refuses to answer a proper question during an oral

examination or to produce a requested document, the Court may,

among other things, order that person to attend or re-attend a

further oral examination at his or her own expense, and to answer a

question that was improperly objected to and any proper question

arising from the answer.

[12]The scope of cross-examination on affidavit has been the

subject of numerous court decisions (CBS Canada Holdings Co v

Canada, 2017 FCA 65 at para 29 [CBS]; Thibodeau c

Administration de l’aéroport international d’Halifax, 2019 CF

1149 (CanLII) at para 13; Ottawa Athletic Club inc. (Ottawa

Athletic Club) v Athletic Club Group inc., 2014 FC 672 at paras

130–33 [Ottawa Athletic Club]; Sierra Club of Canada v Canada

(Minister of Commerce), [1998] FCJ No 1673 (QL) at paras 9, 13

[Sierra]; Merck Frosst Canada Inc. v Canada (Minister of Health),

[1997] FCJ No 1847 (QL) at paras 4, 7–8 [Merck Frosst 1997];

Merck Frosst Canada Inc. v Canada (Minister of National Health

and Welfare), [1996] FCJ No 1038 (QL) at para 9).

[13]Recently, in CBS, the Federal Court of Appeal endorsed the

principles laid down by this Court in Ottawa Athletic Club at

paragraphs 130 to 133 on the extent of the affiant’s obligations in

providing documents or answering questions during cross-

examination. It is generally recognized that the scope of a cross-

examination on affidavit is more limited than an examination for

discovery, that “[a]n affiant who swears to certain matters should

not be protected from fair cross-examination on the very

information he volunteers in his affidavit” and “should submit to

cross-examination not only on matters set forth in his affidavit, but

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also to those collateral questions which arise from his answer”

(CBS at para 29, citing Ottawa Athletic Club at para 132).

[14] It is also recognized that the person must also “answer all

questions upon which he can be fairly expected to have

knowledge, without being evasive, which relate to the principle

issue in the proceeding upon which his affidavit touches” (Swing

Paints Ltd v Minwax Co, [1984] 2 FC 521 at para 19). 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).

[Emphasis added]

[152] Much of the debate in this case involves relevance. I adopt Justice Russell’s holding in

Ottawa Athletic Club inc. (Ottawa Athletic Club) v Athletic Club Group inc., 2014 FC 672

[Ottawa Athletic Club] at para 130, pointing specifically to paragraph 7 of Justice Hugessen’s

analysis of relevance in Merck Frosst Canada Inc v Canada (Minister of Health), [1997] FCJ No

1847 at para 7:

[7] Formal relevance is determined by reference to the issues of

fact which separate the parties. In an action those issues are

defined by the pleadings, but in an application for judicial review,

where there are no pleadings (the notice of motion itself being

required to set out only the legal as opposed to the factual grounds

for seeking review), the issues are defined by the affidavits which

are filed by the parties. Thus, cross-examination of the deponents

of an affidavit is limited to those facts sworn to by the deponent

and the deponent of any other affidavits filed in the proceeding.

[Emphasis in Ottawa Athletic Club]

[153] From this jurisprudence, and with respect, I conclude that not only Mr Ratte but others in

this proceeding may be cross-examined on documents relevant to the determination of the

principle issue “even if those documents are not mentioned in the affidavit filed” per para 14 of

Thibodeau Edmonton. This is the case generally with Mr Ratte’s May 18, 2021 RTU; these

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documents are not mentioned in his affidavit but nonetheless are proper subjects of cross-

examination and admissible as such because they relate to the principle issue in this case namely

contraventions of FNEA and FNER and electoral fraud.

[154] In addition, it is Mr Ratte who deposed the Election was “held in accordance with”

FNEA. That was his right. However, having done so he is subject to para 13 in Thibodeau

Edmonton that “[a]n affiant who swears to certain matters should not be protected from fair

cross-examination on the very information he volunteers in his affidavit” and “should submit to

cross-examination not only on matters set forth in his affidavit, but also to those collateral

questions which arise from his answer”. I find both statements applicable to his May 18, 2021

RTU.

[155] To the same effect is, and I also adopt the decision of Justice Roy in Thibodeau Halifax at

para 28: