Ta’an Kwach’an leadership ruling appealed

The legal battle being waged inside the Ta’an Kwach’an Council continues. Bonnie Harpe, who launched a suit contesting acting chief Ruth…

The legal battle being waged inside the Ta’an Kwach’an Council continues.

Bonnie Harpe, who launched a suit contesting acting chief Ruth Massie’s claim to power, has appealed a recent court ruling.

Harpe is challenging the decision handed down in early February by Yukon Supreme Court Justice Ron Veale, which sided with Massie.

After five days of testimony in December, Veale found the Ta’an Kwach’an elders’ council had the power to appoint an acting chief pending an election.

“This is a case about the role that elders play in the governance of a First Nation,” Veale wrote in his decision.

“It is about a struggle for political power between two traditional families in the context of a new regime of self-governance.”

If the Court of Appeal agrees to hear the case, legal bills would likely ring at $25,000 to $30,000, Harpe’s lawyer Andre Roothman told The News earlier this year.

The roots of the case date back to April 2004, when Harpe lost the election to Massie by a margin of two votes.

Shortly after the election, the third candidate, Sam Broeren, admitted he had a criminal record.

This made him ineligible to run under the band’s constitution.

Harpe appealed the election results to the Ta’an Kwach’an’s judicial council, which ruled in her favour.

Had Broeren not run, Harpe could have won, it stated.

Because the election results were deemed void, the elders’ council appointed Massie interim chief until a new election could be held.

This decision by the elders’ council is the basis for Harpe’s suit.

In his judgment, Veale urged the Ta’an Kwach’an leadership to hold elections soon.

“The Ta’an Kwach’an Council has not had an elected chief or deputy chief for many months,” Veale’s decision reads.

“The election for chief and deputy chief must proceed as soon as possible.” (CO)

JUSTICE

Smoking bylaw back in court

More than half a dozen people were scheduled to appear in court for breaking the city’s contentious smoking bylaw this week.

Only three of the seven people charged attended the hearing Tuesday morning.

But those who showed up were steeled for a fight.

Of the three tickets, two were written out for Pamala Mullen and Brian Santa. Each one has been ticketed for smoking in a prohibited place.

The third charge, filed against the 98 Hotel, was for permitting smoking in prohibited areas on its property.

Mullen and Santa have similar stories.

They were pulling the final drags from their cigarettes in the hallway of the 98 Hotel and planning to stub out their butts before entering the bar, said Mullen and Santa outside the courtroom Tuesday.

“I was coming out of my room and put (my cigarette) out in the ashtray,” said Mullen.

“We weren’t smoking in the bar.”

Santa, who is appearing for the second time on smoking infractions, had a similar experience.

“The hallway is not part of the tavern,” he said.

“It’s not a non-smoking area.”

The city bylaw states that hallways are non-smoking areas, though.

“No person shall smoke in the common areas of a building, place, or premises referred to in this bylaw including … foyers, hallways, inside stairways, and washrooms,” it reads.

Barney Roberge, manager of the 98 Hotel, appeared on behalf of owner and city councillor Mel Stehelin.

“The people found smoking were residents at the hotel at the time,” said Roberge.

“They were found in the hall getting rid of their cigarettes before going into the bar.”

They plan to argue that hallways are not public places, added Roberge.

“The hallways are not open to the public at all,” he said outside the courtroom Tuesday morning.

“They’re for hotel staff and guests only.”

Representatives for the 98 Hotel have appeared in court previously for allowing people to smoke inside the establishment.

The charges were dropped, however, because the bylaw did not hold up in court.

Being a relatively recent piece of legislation, the smoking bylaw is subject to court scrutiny — which means ascertaining whether it will stand up to legal tests.

The wording of the bylaw has already been changed once.

The original bylaw included a series of steps bar owners had to follow when faced with a rogue smoker.

“Under old bylaw the city had laid down what the owners had to do,” said city bylaw manager John Taylor.

“How the court interpreted it was that the city was delegating its authority down to the bar owners, telling them, ‘This is what you have to do,’” said Taylor.

And the court ruled that the city has no power to compel bar owners to follow those steps.

“There’s nothing in (the Municipal Act) that says we can tell an owner how he has to run his business,” said Taylor.

That section of the bylaw was subsequently changed and simplified.

“No proprietor shall permit a person to smoke in any building, place or premises referred to in this bylaw,” it now reads.

There are a few exceptions listed in one section of the bylaw. These include lighting up inside designated hotel rooms.

While it remains to be seen if this new version will stand up in court, it is based on a similar bylaw passed in Vancouver, said Taylor.

The smoking bylaw there has successfully passed through two levels of court, he added.

When bylaw officers hand out tickets for puffing in prohibited areas, they won’t always give them to bar owners, said Taylor.

“If there’s evidence to support that the proprietor is allowing this to happen, we’ll charge them both,” he said in an interview Tuesday.

“Let’s say we walk in and Mr. X is sitting there smoking away.

“At the same time we walk over there, the barmaid comes raring over to the person, grabs the cigarette and throws it on the ground.

“We wouldn’t charge the (bar) owner.”

For Roberge, however, the issue is about a livelihood.

“The city’s trying to put us out of business,” he said.

“So far it’s working quite well for them.”

Mullen, Santa and the 98 Hotel all plan to enter not-guilty pleas at the next court hearing on March 21.

The date was pushed back for two weeks to allow them time to speak with lawyers.

The remaining four people who missed their court date were convicted of the infraction and charged $130. (CO)

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