Date: 20050617
Docket: T‑518‑05
Citation: 2005 FC 863
BETWEEN:
THE COUNCIL OF THE MALECITES OF VIGER FIRST NATION
(hereinafter referred to as the Council)
AUBIN JENNISS in his capacity as a member of the Council
MARTINE BRUNEAU in her capacity as a member of the Council
PIERRE NICOLAS in his capacity as a member of the Council
ERNEST DANIEL NICOLAS in his capacity as a member of the Council
Applicants
v.
JEAN GENEST, in his capacity as Grand Chief
of the Malecites of Viger First Nation
and
THE HONOURABLE ANDY SCOTT, in his capacity as
Minister of Indian and Northern Affairs Canada
Respondents
Let the revised transcript attached hereto of the reasons for order that I delivered at the hearing, held at Montréal, Quebec, on June 8 and 9, 2005, be filed pursuant to section 51 of the Federal Courts Act, R.S.C. 1985, c. F‑7.
“Yvon Pinard”
Judge
OTTAWA, ONTARIO
June 17, 2005
Certified true translation
François Brunet, LLB, BCL
At Montréal, June 9, 2005
THE HONOURABLE MR. JUSTICE YVON PINARD:
All right, I am ready to render my decision. As of this moment, Mr. Stenographer, what I am going to say will constitute my reasons which shall be filed in the record.
I shall begin by explaining why we are here; it is because this hearing is being held pursuant to the order of the Prothonotary. It is an order that is very specific, requiring the respondent Jean Genest to appear before this Court today, yesterday that is, to hear evidence relating to acts that are specific and that follow, that he allegedly committed, and with which he is charged, and to raise the defences he may have to avoid being held in contempt of court and being punished under the rules.
The Prothonotary set out, in paragraphs (a) to (i), the specific facts that are all preceded by the following words: “of having knowingly and intentionally disobeyed the order of April 14, 2005_ ... in failing to take forthwith certain measures ... in refusing other things.
However, each of those paragraphs, each of the charges which I must decide, include the words... I must decide whether Mr. Genest has “knowingly and intentionally disobeyed the order of April 14, 2005_ in regard to each of the acts set out in the Prothonotary’s order.
Now, that order refers to the order of Mr. Justice Noël, dated April 14, 2005, which includes, for example, an important provision destined to restore the status quo as of February 20, 2005. I agree that this passage must be interpreted and that it should not be read in isolation from the context of the order as a whole, which clearly states the need for the parties to work together, in good faith, in cooperation to restore order in the First Nation. Suffice it to refer to the following paragraph from page 10 in the order of Mr. Justice Noël:
[translation] Having noted the importance of the presumption in favour of the elected members and the duty of the members of a band council to respect and abide by the rule of law, the Court asks the members of the First Nation band council (the four applicants and the Grand Chief) by order to work together and resolve the matters that are submitted to them under the Act, the regulations and custom, in the interests of the First Nation;
And it can be seen that the greatest concern of Mr. Justice Noël, as per the order, is the interests of the First Nation and the necessity, in a conflict situation, that the Elected members work together in good faith. And it is not just the case that one side must do something, while the members of the other side cross their arms and wait. Both sides must work together. And as to the criticisms that are specifically made here against the respondent, I must assess them in the context of the order of Mr. Justice Noël, which calls for the cooperation of all the Elected members.
And in the context of the evidence that is before me, I am not persuaded that there has been all the necessary cooperation to ensure that those matters be administered on both sides in the best way or in the best interests of the First Nation.
Now, having said that, Rule 469 provides that a finding of contempt shall be based on proof beyond a reasonable doubt. It is clear, therefore, that I have a duty to be satisfied beyond a reasonable doubt that the Grand Chief, Jean Genest, knowingly and intentionally disobeyed the order dated April 14, 2005, as is indicated by the order underlying this hearing in which all of you have just participated.
In this case, in my assessment of the relevant evidence, you have seen the extent to which I have gone to follow the testimony of each person and sometimes to intervene _ sometimes to test the individual’s good faith, for example, when I asked Mr. Genest if, spontaneously, he was prepared to change certain things; the purpose was not to render an order requiring him to do it, because that is not what I have to do if there is no finding of contempt; but I wanted to find out, in the light of his spontaneous reaction, whether he was in good faith or not, if he was well-intentioned or not. In any event, it did help me assess the credibility of his explanations.
Several witnesses, I stated this openly, in the case, for example of, one minute, not all, I don’t want to hurt anyone but there is one about whom I said openly that I had been impressed by her testimony... Ms. Caron, yes, a credible and honest witness; ... I have not found in this case that there were any dishonest witnesses, who were trying to mislead the Court, on either side.
So, as a result of my assessment of the relevant evidence, both oral and written, that evidence leaves me with a reasonable doubt as to whether the respondent Jean Genest consciously and intentionally disobeyed the order rendered on April 14, 2005 by my colleague, Mr. Justice Noël, in this case.
Without necessarily endorsing all of the actions, sometimes clumsy, of Grand Chief Genest, in the exercise of his expressed desire to comply with the order of Mr. Justice Noël, particularly in respect of the regular attendance in the administrative centre of the First Nation of persons not directly employed by the Council, in respect of the control he exercises over access to that centre and in respect of his so-called provisional mode of management of the affairs of the First Nation, and I take into account the context. I take into account the atmosphere of extraordinary tension that has existed since at least March of 2005, both politically and administratively, especially politically.
I also take into account the flagrant lack of communication between all of the interested parties covered by this order. Because _ let us bear this in mind _ the order of Mr. Justice Noël was not addressed only to the respondent, Jean Genest. It was also addressed to the four council members, council chiefs. It seems to me, as I said earlier, that the order calls for the cooperation of everyone, requiring of all the interested parties, and not only Mr. Genest, that certain things be done or that certain acts be abstained from. And given the context _ the communication of the parties has not been restored _ it is very hard to determine who is primarily responsible, who is more to blame. But it is in that context that I must decide whether there has been disobedience, if he has knowingly and intentionally disobeyed the order in question.
So I am saying that I have taken into account the state of extraordinary tension that has continued to prevail after Mr. Justice Noël has rendered his order and that I have taken into account the flagrant lack of communication between the parties that has persisted after that order. And I have also taken into account how important it was that something be done to manage without interruption the important affairs of the First Nation. Because, once again, it is the interests of the First Nation that must prevail according to the order of Mr. Justice Noël, and that is what I have in mind as well.
So, given that context as a whole, and according to my understanding of the events, I am not persuaded, once again, beyond a reasonable doubt, of the guilt of the Grand Chief in this case. It should be borne in mind that I have to make a determination (and I am now in that process) in the context of proceedings of a very special nature. A contempt of court has been alleged; this is not a request for mediation. Thank God, there is going to be a mediation process before this Court, which is scheduled for June 20, a mediation in which Mr. Genest clearly stated he was prepared, and eager, to participate. So that is encouraging; but to the extent that the alleged contempt of court is concerned, well, I am aware that I am not resolving the conflict in the First Nation... that is not the purpose of these proceedings, either. So I must dismiss the motion.
In view of all the circumstances, about which I have just spoken, I do so without costs.
Accordingly, the formal order is that the motion for contempt is dismissed, without costs.
Finally, I thank counsel for their submissions and the Court is adjourned.
********************
I, the undersigned, DANIEL MASSÉ, certify pursuant to my oath of office that the preceding pages are and contain the accurate and precise transcription of my notes, in compliance with the law.
AND I HAVE SIGNED
DANIEL MASSÉ
Official Stenographer
********************
Certified true translation
François Brunet, LLB, BCL
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-518-05
STYLE OF CAUSE: THE COUNCIL OF THE MALECITES OF VIGER
FIRST NATION et al. v. JEAN GENEST et al.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 8 and 9, 2005
REASONS FOR ORDER: The Honourable Mr. Justice Pinard
DATE OF REASONS: June 17, 2005 (Delivered from the bench on June 9, 2005)
APPEARANCES:
Pierre Méthot FOR THE APPLICANTS
Paul-Yvan Martin
Édith Fortin FOR THE RESPONDENT JEAN GENEST
Alain Dumas
Tania Hernandez FOR THE RESPONDENT THE MINISTER OF INDIAN AND NORTHERN AFFAIRS CANADA
SOLICITORS OF RECORD:
Martin Camirand Pelletier FOR THE APPLICANTS
Montréal, Quebec
Reinhardt Bérubé Fortin FOR THE RESPONDENT JEAN GENEST
Sainte-Foy, Quebec
Turgeon, Lavoie FOR THE RESPONDENT JEAN GENEST
Québec, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT THE MINISTER OF
Deputy Attorney General INDIAN AND NORTHERN AFFAIRS CANADA
of Canada