Boucher v. Fitzpatrick, 2012 FCA 212
On July 25, 2012, the Federal Court of Appeal allowed an appeal from the decision of the Federal Court, which had set aside the April 5, 2011 election for Chief of the Fort McKay First Nation.
The parties were both candidates nominated for the office of Chief. After a recounting of the votes, Mr. Boucher was elected Chief with a total of 163 votes, while the Respondent, Ms. Fitzpatrick, received 162 votes.
The Returning Officer interpreted the Fort McKay First Nation Election Code as giving her the power to allow a friend or relative of an incapacitated voter to assist that person in voting. She established a voting procedure permitting incapacitated electors to designate an individual to assist them in marking their ballots. A total of 6 incapacitated electors were effectively assisted by a person other than the Returning Officer during the April 5, 2011 election.
Following the election, Ms. Fitzpatrick filed a Notice of Appeal under the Election Code seeking an order setting aside the election for the Chief and the Councillors. Ms. Fitzpatrick alleged, among other things, that an elector had illegally voted twice (the second time by marking a ballot on behalf of the incapacitated elector) and that this was a breach of the Election Code that could directly affect the outcome of the election of the Chief.
The appeal was heard by an Appeal Arbitrator. The Arbitrator reviewed the relevant provisions of the Election Code and concluded that the Returning Officer did not err in her interpretation of the Election Code. He agreed that while the Election Code gives the Returning Officer the power to assist incapacitated electors when so requested in marking their ballots, the Retuning Officer was not the only person that could do so.
On judicial review, the application judge held that the Arbitrator erred in his interpretation of the Election Code. The application judge reasoned that under normal circumstances, electors are required to mark their own ballot, free from any outside influence in the voting compartment. The application judge held that any exception to such principle had to be explicitly stated in the Election Code. The application judge added that his conclusion was also supported by section 48.1 of the Election Code, which deals with "Persons at voting stations". In his view this section clearly prohibited an elector's friends or relatives from being present at the voting station, let alone in the voting compartment.
The Federal Court of Appeal interpreted the Election Code as supporting the conclusion that the Returning Officer is not the only person that can be allowed to assist an incapacitated elector. The Court also noted that the concept that incapacitated electors may be assisted by a friend or relative of their choice in the voting compartment to mark their ballot is wellaccepted and is incorporated in Federal and Alberta legislation.
The Court of Appeal also held that the application judge erred by focussing on section 48.1, giving it too much weight in the overall context. The Court of Appeal held that the general principle set out in section 48.1 is that only those persons actively engaged in the process of voting should be present at the voting station. The Court held that it is evident that if a person is permitted to accompany an incapacitated elector in the voting compartment, such person must be at the voting station while the incapacitated elector is "engaged in the process of voting" within the meaning of section 48.1.