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COMMUNITIES AND GOVERNANCE - Self-governance - Elections - Validity

Friday, May 05, 2017 @ 8:36 AM  

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Appeal by the chief and several councillors of the George Gordon First Nation from a decision annulling their election to band council. The election took place in 2016. Its results were challenged by voters as well as some council candidates who were not elected. The challengers adduced evidence from 17 electors who, after marking their ballots for chief and for council, did not have their ballots returned to them for deposit in the appropriate ballot box after examination by a deputy electoral officer, as was required by the First Nations Elections Regulations. Two of the 17 electors deposed that they saw a deputy place their ballot for chief in her pocket, while placing their council ballot in the box. Others did not know what had become of their ballots. The chief electoral officer responded that he had instructed two deputies to receive ballots from electors and to deposit them into the correct box. The Chambers judge found that this procedure contravened the Regulations in a manner that was not merely technical, trivial or trifling. The judge concluded that 17 ballots for chief and 14 ballots for council were unaccounted for, and that it likely affected the result of the election. Consequently, she annulled the election results.

HELD: Appeal allowed in part. The order annulling the election of the chief was confirmed, while the order annulling the election of the councillors was set aside. The councillors were restored to their positions on council. The Chambers judge applied the proper approach in placing the burden of proof on the challengers to rebut the presumption of regularity. Her conclusions that several ballots were unaccounted for and that this had likely affected the election results were reasonable. However, the Chambers judge’s decision to annul the election of council was set aside, as the she erred in finding that the 14 unaccounted ballots in the council election affected the result, given the margin by which the successful candidates won their council seats over the unsuccessful candidates. The election of the eight Elected Candidates to the council of the George Gordon First Nation was restored.

Cyr v. McNabb, [2017] S.J. No. 132, Saskatchewan Court of Appeal, G.R. Jackson, N.W. Caldwell and P.A. Whitmore JJ.A., April 7, 2017. Digest No. TLD-May12017011