A provincial court judge will take two weeks to decide whether he has the jurisdiction to set aside the 2012 Tk'emlups election results.
Marie Baptiste, who ran unsuccessfully for chief in last November's band elections, has petitioned the court to quash the results and order a new election.
A batch of polling packages sent to some off-reserve members included erroneous election dates - Nov. 27 rather than the correct date of Nov. 10 - a mistake that may have influenced the election outcome, Bapsiste argues in her petition before the court.
Representing herself before Judge Christopher Cleaveley and a courtroom filled to capacity - including Chief Shane Gottfriedson and band councilors - Baptiste maintained on Monday that the errors undermined the right of band members to vote.
David Paul, a lawyer acting for the Tk'emlups te Secwepemc (Ttes, formerly known as the Kamloops Indian Band), said that the band's custom election regulations require that appeals be filed within 15 days of polling. Baptiste did not meet that deadline, leaving Judge Christopher Cleaveley to determine whether the court has the jurisdiction to override the regulations.
"Your honour, there are no exceptions in the regulations to the 15-day limitation," Paul said. The limitation rule helps ensure that bands are not bankrupted by costly litigation, he explained.
Baptiste filed her affidavit on Dec. 4, but argues that the 15-day limit should be counted after the erroneous date, not the actual date of the election.
Paul also pointed out that only 50 of the off-reserve voter packages contained the erroneous dates, not all 377. The erroneous packages were randomly sent out. Even within the erroneous packages, the notice of polls and the ballot form accurately stated the election date, he said.
"The error was clerical in nature," he said. As well, electoral officer Marcus Hadley ensured that election information was posted or published locally and online.
"That type of advertising or notice would not help people outside of the Kamloops area," Cleaveley noted. Electronic notice beyond Kamloops assumes everyone has a computer, he noted.
There were 14 ballots mailed in, three of which were disqualified. That compares with 27 mail-in ballots in the 2009 election.
Electoral officer Marcus Hadley received only two phone calls on the mistaken dates, both from Baptiste, Paul said. He also cited band regulations stating that election results cannot be overturned on the basis of mistakes of process.
As well as citing case law extensively, Paul argued that Baptiste is challenging the election process since she wants to ensure such mistakes don't occur again. However, that process can be challenged only through a general band meeting, he said.
Cleaveley took issue with his contention: "She's simply saying an error was made and that may have affected the outcome of the election," he said.
In her arguments, Baptiste said a Tk'emlups band council regulation grants the judge jurisdiction to amend the appeal dates. She said she received Paul's case-law defence late last week and hadn't been given sufficient time for review.
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