Summaries Sunday: OnPoint Legal Research

One Sunday each month OnPoint Legal Research provides Slaw with an extended summary of, and counsel’s commentary on, an important case from the British Columbia, Alberta, or Ontario court of appeal.

Calaheson v Gift Lake Metis Settlement, 2016 ABCA 185

AREAS OF LAW: Local elections; Eligibility to run; Eligibility to vote; Metis and Indian status

~In deciding whether to annul an election, it is not necessary to engage in mathematical analyses if, over all, there are sufficient irregularities to cast doubt on the election’s integrity.~

BACKGROUND: Jason Anderson was ineligible to run in the Respondent Gift Lake Metis Settlement’s general election pursuant to s. 17(1)(a)(vi) of the Metis Settlements Act, but was erroneously permitted to run and was elected. He resigned his seat when he became aware of his ineligibility. 130 votes had been cast for him, and had he not run the people who voted for him would have voted for other candidates. He then cured his defect in status and ran in a by-election in which he was re-elected. A Court of Queen’s Bench judge granted an application under s. 137 of the Local Authorities Election Act declaring the initial election invalid in part. The judge’s order vacated the election of three councillors, but did not vacate the election of the Respondent Dave Lamouche. He did this because on his own calculations Dave Lamouche’s election was not materially affected by the fact that 130 votes were cast for Jason Anderson and would have otherwise been available for other candidates. The Appellant, Lester Calaheson, challenged the part of the order that did not also declare Dave Lamouche’s position vacant and did not order a by-election in that instance, as was done with the other three councillor positions. The Appellant contended that the election was flawed for predominantly two reasons. The first reason was that Jason Anderson ran despite ineligibility and was elected. The second reason the Appellant argued the election was flawed turned on the alleged ineligibility of 55 persons who voted in the election on the basis that, being registered status Indians under the Indian Act, they were not eligible to be members of the Gift Lake Metis Settlement. This argument focused primarily on 11 specific voters contained on the Settlement Members List who were registered Indians at the time of the Election. The chambers judge concluded that the 11 contested voters were legally entitled to membership at the time it was granted to them, as a result of the Court of Appeal’s decision in Alberta v. Cunningham. The Supreme Court of Canada’s reversal of that judgment in 2011 did not operate to retroactively terminate their membership in the Settlement or eligibility to vote. The chambers judge held that if the 11 voters were ineligible, according to his calculations Dave Lamouche’s election would also have to be set aside.

APPELLATE DECISION: The appeal was allowed. The Appellant mainly focused his appeal on the topic of ineligible voters, although he did maintain that the Jason Anderson votes exacerbated the problem. He sought to adduce new evidence said to have been obtained in 2015 from an independent but related proceeding. He stated that this evidence clearly identified 138 persons who had been removed from the Gift Lake Membership List by the Registrar of the Metis Settlements Land Registry. Against that group, 28 rather than 11 persons who voted had automatically terminated their membership by registration under the Indian Act before the election. The Court of Appeal was satisfied that the new evidence should be admitted as material, cogent, and capable of affecting the outcome of the matter. Dave Lamouche raised broader constitutional issues in response, but the Court noted that it would not be appropriate for the panel in this appeal to decide them. Based on its review of the decision below and the new evidence, the Court of Appeal held that Dave Lamouche’s position should also have been held to be vacated in the chambers judge’s order. It was not necessary to use arithmetic to determine the impact on the election of the combination of votes cast for the ineligible candidate coupled with votes cast by allegedly ineligible voters. It was sufficient to find that the combination of irregularities left the Court in doubt as to the election’s integrity.

Comments provided by Richard B. Hajduk and Rodger C. Gibbs, Counsel for the Appellant.

“The Calaheson decision of the Alberta Court of Appeal (“ABCA”), and the Queen’s Bench decision of Graesser J. in the Court of Queen’s Bench (“ABQB”), together represent additional steps on the long road to clarifying the issues of who the Metis People (of Alberta) are (and who they are not), with significant steps on that journey including the Cunningham decision of the Supreme Court of Canada (“SCC”) (2011 SCC 37), the now overturned decision of the ABCA in the same case (2009 ABCA 239) the original and now restored decision of the Chambers Judge, Shelley J., in the Court of ABQB (“ABQB”) in that case (2007 ABQB 517), the decision of the ABCA in Gauchier (2014 ABCA 356) and its corresponding and upheld ABQB decision of Gates J. (2013 ABQB 713), as well as, naturally, the decisions of the SCC in the Manitoba Metis Federation case (2013 SCC 14) and, of course, the pivotal Daniels case (2016 SCC 12).

The ABCA received and admitted significant new evidence that had not been available by the time of the Special Chambers Hearing in the ABQB, including exactly who was registered under the Indian Act (Canada) and when and who voted in the Election. This new evidence allowed a detailed comparison of who was allegedly ineligible to vote for lack of valid membership versus who actually voted, as shown on the actual voters’ register from the General Election.

The ABCA decided, firstly, that Graesser J. had not needed and should not have purported to issue a final decision regarding membership in the context of a controverted election challenge under the Local Authorities Election Act (Alberta) (“LAEA”), particularly when neither the Alberta Registrar, nor those 11 persons, were parties to the proceedings. The ABCA held that the entire election ought to have been overturned. The ABCA found it “inappropriate” to consider the constitutional issues raised by the Respondent, Lamouche.

Lamouche, who was added as a Respondent before the ABCA by consent and whose seat on Gift Lake Metis Settlement was the sole target of the Appeal before the ABCA, was removed by the Judgment of the ABCA and a further by-election was directed.

Lamouche has brought an application to a Judge of the ABCA for a stay of the Judgment of the ABCA pending an anticipated Application for Leave to Appeal to the SCC. The stay application is yet to be heard, as of the date of the writing of these Counsel Comments. Some of the grounds apparently relied upon include an allegation and a Notice of Constitutional Question by that Respondent contending that ss. 75, 90 and 91 of the MSA are constitutionally invalid as being legislation in relation to “Indians and Lands reserved for the Indians” under s. 91(24) of the Constitution Act, 1867; that by virtue of the Daniels decision of the SCC, all Metis are also “Indians”; and that those sections of the MSA have now come to infringe “aboriginal rights” contrary to s. 35 of the Constitution Act, 1982, and that they are contrary to the Ruperts’ Land and North-Western Territory Order, 1870 (UK), and the Constitution of Alberta Amendment Act, 1990 (Alberta). The Appellant will argue (and the ABCA held) that such questions belong in a separate action pending in ABQB, that there was no evidence tendered in ABQB or ABCA regarding any such matters, and the Appellant will further argue that such issues do not currently raise an issue of “public or national importance” so as to be ripe for consideration and decision by the SCC, and that therefore no stay pending application for leave to appeal should be granted.

While we were certainly happy to win the Application to Adduce New Evidence and the ultimate appeal in the ABCA and glad that the result favoured our client, the case and decisions represent an important clarification of the law relating to controverted elections. More broadly speaking, this case is also a significant step on the long journey of the Metis People towards recognition as unique and rights-bearing aboriginal people, separate and distinct from both the “Indian” (First Nation) and the Inuit peoples, as clearly indicated by s. 35 of the Constitution Act, 1982, and by the recent decisions of the SCC relating to the Metis People (Cunningham, Manitoba Metis Federation and Daniels).”