By Charlene Tebbutt

Judge orders review in Fond du Lac election case

Jan 9, 2019 | 1:00 PM

A federal court judge has ordered a review of the 2017 election in the northern Saskatchewan community of Fond du Lac after finding the First Nation did not properly follow its own election act. 

Following the selection of a chief electoral officer to handle the September 2017 election for chief and council, it was discovered that three of the polling clerks had voted in advance polls, a violation of the Fond du Lac Denesuline First Nation Election Act. Kevin Bruce Mercredi, who ran against his cousin Louis Mercredi, for chief of the First Nation, applied for a judicial review of the results after the election appeal board reversed its initial decision to allow an appeal. Kevin Mercredi disputed the results and alleged conflict of interest and corrupt practices. 

Kevin Mercredi lost the election by two votes.

The chief electoral officer later appointed five people to sit on the appeal board, although the band’s election act states members are to be chosen at least 45 days before the election. Following the election, the position of chief was declared vacant and a by-election was ordered. Six days later, however, on Oct. 16, 2017, the board reversed that decision and dismissed Kevin Mercredi’s appeal after receiving a letter from Louis Mercredi’s legal counsel. 

In response to Kevin Mercredi’s request for a judicial review, the Fond du Lac Denesuline First Nation, along with the election appeal board and several individuals, argued the federal court did not have jurisdiction to look into the matter, saying that the decision of the appeal board was valid. However, Justice Paul Favel ruled the appeal board was not formed properly, giving him jurisdiction in the matter. On the issue of the three polling clerks who voted in the election, the First Nation argued they had already voted before they were asked to serve on the board, but acknowledged that there were breaches of the election act in appointing members to the appeals board. 

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In his written decision posted to an online legal database, Justice Facel said the case turns on the actions of the chief electoral officer and his decision to appoint the appeal board members. 

“The question, in this case, is – what does one do when the appeal body is not validly created,” Favel wrote.

Favel ruled there were several breaches of the First Nation’s election act and voided the decision of the appeal board. But, Favel ruled against Kevin Mercredi’s request for a by-election to determine the chief, saying that is an issue that can only be addressed by a properly-formed appeal board. 

Favel ruled a new appeal board would be the best way to handle the matter, sending it back to a newly-formed appeals board for another look. Kevin Mercredi was granted legal costs in the matter. 

charlene.tebbutt@jpbg.ca

On Twitter: @CharleneTebbutt