Alleged Alexander vote-buying case gets retrial
"Serious concerns" about appeal board's objectivity: judge
By: Kevin Ma
| Posted: Wednesday, Feb 20, 2013 06:00 am
An Alexander man will get a new hearing in a case that accuses two election candidates of bribing a man for his vote.
Alexander resident Rodney Yellowdirt challenged the results of the 2011 band election at an electoral appeal board in September 2011 on allegations of corrupt practices and discrimination against off-reserve voters.
The board ruled against him, and Yellowdirt appealed to the Federal Court last November.
In a decision released in mid-January, Justice Simon Noël ruled that the appeal board had made legal errors that raised “serious concerns” about its objectivity. He ordered a new hearing be convened.
Yellowdirt, who is representing himself in this case, said he was pursuing it to hold band members accountable for their actions.
“I’ve seen people being bought out,” he said. “If I stopped, what I see (happening) will always affect our community.”
But more important are the people who have been denied the chance to vote, he continued. Human rights legislation says all band members should be able to vote in band elections, yet Alexander’s election code excludes those who live off-reserve.
“It is totally discriminatory to say, ‘No, you can’t vote because we can’t afford housing for you in Alexander,’ ” Yellowdirt said. “(Band council) says, ‘It’s our custom.’ It’s not our custom to ignore our own people.”
Off-reserve aboriginals don’t always have the right to participate in band elections – they do if the band runs its elections under the Indian Act, but don’t if, like Alexander, the band has a customary election code that excludes them.
Alexander’s last general election was Aug. 11, 2011. The band’s election code required voters to be 21 or older and to have lived on the reserve for at least one month, effectively excluding off-reserve members.
About half of the band’s 1,818 members live off reserve, Noël wrote in his decision.
Roughly 490 people were qualified to vote in the 2011 election, Yellowdirt said, and when the voting pool is that small, you can sway the election by bribing a small number of people.
Extending the vote to off-reserve members would limit the effects of these corrupt practices, Yellowdirt said, and let many qualified, educated people run for office.
“I want off-reserve people to vote,” he said. “They have the right to.”
Noël summarized the allegations made at the 2011 hearing in his ruling. None of the allegations have been proven in court.
During the hearing, Noël wrote, band resident and witness Lawrence Bruno alleged that candidates Bernard Paul and Kurt Burnstick got Band Administration to send him a $1,300 cheque in exchange for his family’s votes. He also alleged that Burnstick gave him $200 cash and left him some gas money at the local store.
Paul and Burnstick were later elected and currently serve on band council. Neither responded to requests for an interview.
Bruno alleged that these transactions happened after the election had been called – a time when band administration was not supposed to give anyone financial assistance. The appeal board disagreed, Noël wrote, as it found Bruno’s testimony to be “unclear and vague,” and dismissed Yellowdirt’s case due to insufficient evidence.
But prior to issuing that decision, Noël wrote, the board’s chair made private phone calls to Burnstick and Paul to ask if they wanted to respond to Bruno’s testimony. Both denied the allegations and did not attend the hearing.
These calls were a mistake, Noël found. “A chair of a tribunal communicating privately with witnesses does not assume his role properly and is not acting in the interests of justice,” he wrote, as evidence in a fair trial must always be presented and tested in public, not in private. The chair’s actions were a fundamental breach of procedural fairness, making the board’s decision invalid.
Note that Noël did not rule on the validity of Bruno’s testimony – that matter would be debated at the new hearing.
Yellowdirt also alleged that the band’s definition of “Elector” violated the Canadian Charter of Rights and Freedoms as it excluded all off-reserve band members from the voting list. The board was correct in not ruling on this claim, Noël wrote, as it likely did not have jurisdiction to rule on constitutional matters.
The Alexander band needs to have a focused, well-informed discussion before it can revise its electoral code, Chief Herb Arcand said in an email. “We cannot have that kind of discussion while disputes remain about the legitimacy of the election of some councillors.” The band will hopefully have a chance to resume the reform process once Yellowdirt’s appeal was complete, he added.
He declined to comment on the specifics of Yellowbird’s case as it was before the courts.
Yellowdirt said the new hearing would happen within a few weeks. Regardless of its outcome, he hoped it would encourage the band to revise its election code.
“We have smart people out there that could run but they’re not allowed to,” he said. “How can we advance when good, qualified people can never participate in an equal election?”