Federal Court of Appeal rejects appeals from First Nation election rulings

Those alleging serious electoral fraud can show that the candidate’s conduct affected the vote count and corrupted the election’s overall integrity, a recent ruling said. They need not demonstrate that the number of affected votes was sufficient to impact the winner.

In March 2020, the Red Pheasant First Nation (RPFN) held an election for its chief and councillors. Clinton Wuttunee, incumbent chief, ran for re-election. Gary Nicotine ran for councillor. Both were part of “Team Clinton.” They both won by a significant margin.

The respondents, who were electors and members of the RPFN, challenged the elections of Wuttunee, Nicotine, and other Team Clinton members.

The Federal Court annulled Wuttunee’s and Nicotine’s elections. Wuttunee and Nicotine both committed multiple instances of serious electoral fraud and several contraventions of the First Nations Election Act, 2014 (FNEA), including vote buying and related activities, and of the First Nations Elections Regulations relating to mail-in votes, the court said.

Wuttunee’s and Nicotine’s conduct corrupted the integrity of their elections, the Federal Court added. The court identified aggravating factors regarding their conduct. It held that they committed “particularly grave electoral fraud” by using the RPFN’s funds to buy votes.

Regarding other Team Clinton members, the Federal Court did not annul their elections although it found that most of them engaged in electoral misconduct.

Wuttunee’s, Nicotine’s elections annulled

In Wuttunee v. Whitford, 2023 FCA 18, the Federal Court of Appeal dismissed Wuttunee’s and Nicotine’s appeal.

The appellate court noted that the Federal Court recognized the following:

• Persons challenging an election had the burden of proof to show facts that would justify annulment since elections had the presumption of regularity
• The number of ballots that Wuttunee’s and Nicotine’s misconduct corrupted did not satisfy the “magic number” test, which the Supreme Court of Canada applied in Opitz v. Wrzesnewskyj, 2012 SCC 55
• Annulling Wuttunee’s and Nicotine’s elections would lead to the disenfranchisement of the electors who legitimately supported them

Nevertheless, the Federal Court was entitled to annul Wuttunee’s and Nicotine’s elections, the Federal Court of Appeal said. It did not commit any error in annulling these elections, the appellate court added.

Under s. 35(1) of the FNEA, the Federal Court had the discretion to annul elections if it believed that it was appropriate to do so, as long as the contravention was likely to affect the election results. Here, the Federal Court knew that it had such discretion, identified the relevant legal principles, and explained why it was appropriate to annul Wuttunee’s and Nicotine’s elections, the appellate court said.

Team members’ elections not annulled

Whitford v. Chakita, 2023 FCA 17 involved a separate appeal relating to other Team Clinton members. The Federal Court of Appeal also dismissed this appeal.

The Federal Court committed no palpable and overriding error, the Federal Court of Appeal held. The Federal Court had the discretion not to annul elections in cases involving fraud or other forms of electoral corruption. It balanced the aggravating and mitigating factors before exercising its discretion not to annul the elections of the other Team Clinton members, the appellate court said.