Judge upholds ruling on residency disqualification

An Iqaluit judge ruled Tuesday that Jack Anawak, a former MP, MLA and interim commissioner of Nunavut, was not a resident of the territory soon enough to qualify as a candidate in the Oct. 27 territorial election.

But the election in Akulliq is still cancelled, pending court proceedings on another part of Anawak's legal action that alleges a violation of the Charter of Rights.

Sandy Kusugak, Nuna­vut's chief electoral officer, said the status of the election in Akulliq will not be clarified until after the court decides on the charter issue. That case is to be heard Oct. 14 in Iqaluit.

Anawak had filed an appeal in the Nunavut Court of Justice Oct. 3, asking a judge to overturn a ruling by Kusugak that Anawak is ineligible to vote in the election, and therefore ineligible to run as a candidate.

Anawak had intended to run in the riding of Akulliq, which comprises the communities of Repulse Bay and Kugaaruk.

In his preliminary ruling, Justice Earl Johnson found that Anawak gave up his residency in Nunavut in 2003, when he became Canada's ambassador of circumpolar affairs and moved to Ottawa.

That job was eliminated by the federal government in 2006 and Johnson said in a written decision there's no proof that Anawak moved back to Nunavut before February, 2008.

Anawak attended college in Ottawa in 2007, and received student financial assistance from the Government of Nunavut. He graduated with a diploma near the end of 2007.

Anawak was also Nunavut's Member of Parliament between 1988 and 1997 in the old Nunatsiaq riding.

"Residency requires physical presence and the activities that occur in a household," Johnson wrote. "At the very least [Anawak] should have been able to provide a civic address or a house number where he and his family now live and when they started living there."

In her decision, Kusugak ruled Anawak hadn't lived in Nunavut continuously for one year before the election because an income tax document he included with his declaration of candidacy stated he lived in Ontario as of Dec. 31, 2007.

In a Sept. 26 letter to Anawak explaining her decision, Kusugak wrote "I have had personal conversations over the last year with two of your children who directly informed me that you did not move back to Nunavut until some time this year."

Anawak's lawyer, Steven Cooper, argued the court should also consider the fact that Anawak always owned real estate, personal property and a mailing address in Nunavut, even when he didn't live here.

Cooper also argued that as an Inuk, Anawak doesn't give up his residency in Nunavut and by declaring Anawak ineligible to vote or run, the Nunavut Elections Act is unconstitutional.

"As an Inuk, I consider myself a permanent resident of Nunavut even when I am working outside of Nunavut," Anawak stated in an affidavit filed Sept. 30.

In an interview, Cooper said the Nunavut Elections Act encourages Nunavummiut to vote and run in elections, but contains a "relatively restrictive residency requirement."

"They've actually gone contrary to what the stated principles of the [Nunavut Elections] Act are," Cooper said.

Cooper also said the ruling means Nunavummiut who move outside the territory for school or work now have to consider what the impact will be on their right to vote.

"They're going to have to give some thought to every element of their life if they intend to exercise their right to vote, let alone to run for office in Nunavut," he said.

It's still not clear when or if a by-election may be called for Akulliq, because it's impossible to predict when the court will finish with the case.

In court Oct. 3, Patrick Orr, the lawyer for Elections Nunavut, said any delay in the election would be unfair to the candidates whose candidacies were accepted.

"The real prejudice is to the other candidates who did file on time," he said.

Already named as candidates in Akulliq are incumbent MLA Steve Mapsalak, former MLA John Ningark and Marius Tungilik.