Simon’s Mohawk Council of Kanesatake by-election win affirmed by Federal Court

More than a year after the appeal board for last year’s Mohawk Council of Kanesatake (MCK) by-election overturned the results, citing irregularities, Serge Otsi Simon’s victory has been officially restored by the Federal Court.

“It’s a huge relief because this was hanging over my head for way too long. The question of whether such a corrupt decision would stand, it was driving me crazy,” said Simon, who resumed his duties as an MCK chief in May 2023 after a federal judge stayed the appeal board’s decision pending judicial review.

With the latest ruling, which was issued by justice Christine M. Pallotta on June 11, the appeal board’s decision to quash the election is invalidated.

“We chalk it up as a victory for democracy in our community, at least that,” said Simon.

The by-election was held on January 21, 2023, after being postponed indefinitely from its original date of September 24, 2022, after advance ballots had already been cast.

While the chief electoral officer told The Eastern Door at the time that it was MCK grand chief Victor Bonspille who ordered the postponement, Bonspille attributed the decision to the appeal board.

Bonspille did not reply to a request for comment.

The Custom Electoral Code that governs Kanesatake elections calls for an appeal board to be formed at a public meeting, but instead all who put their names forward were appointed as board members or alternates.

The three-person appeal board was comprised of Mary Hannaburg, Gabrielle Lamouche, and Eugene Nicholas. Less than two weeks before their appointment to the board, Nicholas and Lamouche publicly agreed with a Facebook post accusing Simon of sowing division and criticizing the timing of the by-election.

“It’s supposed to be a fair process, and they made it completely unfair,” said Simon. “This sets a very important precedent for the next election that’s coming up, and should another appeals board be put together like this, at least there’s going to be some rules, some guidelines, and some legal precedent to follow.”

Hannaburg, Nicholas, and Lamouche did not respond to requests for comment by deadline.

The contestations the appeal board based their decision on were submitted by Myrlyn Bonspille and Shirley Bonspille, the latter of whom is the grand chief’s sister and was a candidate in the by-election. Myrlyn and Shirley did not opt to participate in the Federal Court’s proceedings despite being named as respondents alongside the MCK.

Shirley declined to comment for this article, but said she did not participate because she does not have access to a lawyer.

The contestations were supposed to be first considered by chief electoral officer Maris Jacobs of PlanIt Consulting and Communications, but they were sent directly to the appeal board to rule on, according to Jacobs' affidavit. Jacobs said she first became aware of the contestations when she received the appeal board’s decision.

This was one of several arguments made by Simon’s lawyer, Dan Goldstein, in the successful application.

Goldstein also noted that Simon was given no chance to respond to the claims made in the appeal board’s decision.

The appeal board had written that notices were not mailed out to all members. At the time, Jacobs said to The Eastern Door that mailouts had been done before the postponement and that all requirements relating to public postings were followed.

Her affidavit noted it is not required by the election code that individual community members receive election notices by mail.

In its quashing of the by-election, the appeal board had also cited the use of behavioural consent forms for scrutineers; counting procedures; Simon’s criticism of grand chief Bonspille (who was not running in the election); and posts by MCK chiefs Brant Etienne and Amy Beauvais alerting community members to the resumption of the by-election.

Pallotta found that the appeal board had not identified any violations that swayed the outcome of the by-election. The electoral code requires that a violation rise to this level to nullify election results.

“It affirms my position as a chief. There’s no ambiguity left now,” said Simon of the Federal Court decision. “Not only that, the most important part is the 105 people who voted for me in that by-election, their voices were upheld.”

Simon garnered 105 votes to Shirley Bonspille’s 55 and Lourena Montour’s 42 in the 2023 by-election.

Marcus Bankuti, Local Journalism Initiative Reporter, The Eastern Door