Yukon court dismisses Vuntut Gwitchin election challenge

A Yukon court has dismissed former MLA Pauline Frost's challenge of the election she lost earlier this year in the Vuntut Gwitchin riding.

In a written decision issued on Thursday, Yukon Supreme Court Chief Justice Suzanne Duncan upheld the validity of a ballot cast in that riding by an inmate at the Whitehorse Correctional Centre. Frost had argued that the inmate, Christopher Schafer, was not a resident in the riding and therefore not entitled to vote there.

"The petitioner has not established on a balance of probabilities that Christopher Schafer voted in the electoral district of Vuntut Gwitchin when he was not entitled to do so," Duncan's decision reads.

"He was properly found to be a resident of Old Crow [in the Vuntut Gwitchin riding] by the returning officer for the purpose of the [Elections Act]."

The election in Vuntut Gwitchin on April 12 ended in a tie with Frost — the incumbent Liberal cabinet minister — and NDP candidate Annie Blake each with 78 votes. The tie was ultimately broken by a draw, won by Blake.

Frost then petitioned the court over Schafer's ballot. Her lawyer said the challenge was to protect the electoral system, and ensure "results that accurately reflect the will of the electorate."

Frost's legal team said Schafer's vote should be considered invalid because no proof of residency in Old Crow was provided, and that there were also verification problems.

Duncan rejected those arguments, saying that Schafer had provided declarations of identity and residence that were "not the best evidence in a technical and formal sense," but perfectly valid under the Elections Act.

"The reality of Christopher Schafer's situation is that there is no suggestion that he is not who he says he is, or that he does not have strong ties to Old Crow — through his previous residence, his Vuntut Gwitchin First Nation citizenship and identity, and his family connections," Duncan wrote.

"There is no evidence of fraud, corruption or dishonesty. The concerns raised by the petitioner are procedural formalities, and these cannot override the realities in such a way as to deny Christopher Schafer the right to vote."

Duncan also said that Frost's legal team could not say exactly where Schafer should cast a ballot, if not the Vuntut Gwitchin riding. 

"There is insufficient evidence of [Schafer's] intention to reside elsewhere. His absence from Old Crow is temporary, because it has been under compulsion for the vast majority of the last 22 years," Duncan wrote.

"The presumption of continuation of his residence at the time of incarceration applies, in addition to the other evidence of his intention to return to his home of Old Crow."

'It was whether his vote counted or not'

Vincent Larochelle, a lawyer who represented Schafer as an intervenor in the case, said his client is "elated" by the decision.

He said the case threw his client into the spotlight against his will, and that it was important that Schafer be represented in court.  

"For him, it was whether his vote counted or not. And so the court said that it does, and he's obviously very happy about that result." 

Larochelle said the decision is also important as a "milestone" in how courts recognize the reality of Indigenous people, over-represented in the corrections system and often displaced from their home communities as a result.

"[The court] is becoming increasingly sensitive to the cultural contexts and the rights of Indigenous people and how those affect the interpretations of statutes," Larochelle said.

Meantime, MLA Annie Blake, speaking from Old Crow on Thursday afternoon, said she was glad that Frost's challenge is now over.

"I'm really excited to just move forward and continue to work on relationship-building with the entire community," she said.