The Bakker Case
(Bakker vs. Bechtel: Court of Queen's Bench, Alberta)

Summary

In Alberta, residence in a public or separate school district, where both exist, is not determined by mere physical presence. The default position is that everyone is a public school supporter. For the purposes of nominating and being nominated, in either the public or the separate system, positive action is required. To be accorded status as a separate school supporter requires a positive act (an affirmation that one is a member of the dissentient religious minority). To be accorded status as a public school supporter also requires a positive act (an affirmation that one is not a member of the dissentient religious minority). For the purpose of determining residency, the positive action that moves one away from the default position must occur more than six months in advance of nomination day.

The Bakker Case involved a long time resident of the City of St. Albert, Mr. Kim Bechtel, whose residential property taxes had, for many years, been directed to the St. Alberta Public School District. In the summer of 1992, less than six months before the day for local elections, Mr. Bechtel signed a form directing that one half of the taxes paid on his home should go to the St. Albert Protestant Separate School District. On the basis that he was then a ratepayer of the St. Albert Protestant Separate School District, and had for many years lived within the territory served by the St. Albert Protestant Separate School District, Mr. Bechtel asserted that he met the requirements to be a candidate for election as a trustee of the separate school district. He was nominated. One of the people who signed his nomination paper was his wife. Subsequently, Mr. Bechtel was elected.

A ratepayer and elector of the St. Albert Protestant Separate School District, Mr. J. Bakker challenged Mr. Bechtel's election in court, on two grounds.

The first was that Mr. Bechtel was improperly nominated, since one of his nominators was his wife, and she was not a resident of the separate school district. (Mr. Bechtel had not secured the signature of any more than the bare minimum number of supporters required by the law.)

The second was that Mr. Bechtel did not meet the residency requirements laid down in the Local Authority Elections Act. He may have been a resident of the separate school district on Nomination Day, argued Mr. Bakker, but he was not a resident of the district for the six months preceding Nomination Day. Though he lived within the boundaries of the district during the preceding six months, he had done nothing to indicate his support for the district in the timeframe and was in fact supporting the corresponding public school district, by virtue of the fact that all of the taxes paid on behalf of the residential property were going to the public school district. Mr. Bakker was arguing that, in Alberta, wherever a public and separate school jurisdiction served the same geography, physical presence was not enough to establish qualification as a candidate and elector.

In a decision which was not appealed, Mr. Justice Cooke declared Mr. Bechtel ineligible to sit as a trustee. In giving reasons for his decision, Mr. Justice Cooke agreed that Mr. Bechtel's Nomination Form was deficient, having been signed by some one (Mr. Bechtel's wife) who, though she lived within the geographic area served by the St. Albert Protestant Separate School District, was not an elector of the separate school district. No evidence presented to the court suggested that Mrs. Bechtel was anything other than a supporter of the public school district. Her taxes went to the public school district. She had previously voted for public school trustees. She had not taken any positive action more than six months before election day to express herself as an elector of the separate school district.

Similarly, Mr. Justice Cooke confirmed that Mr. Bechtel had not been a resident of the separate school district for a full six months prior to Nomination Day (as required by the Local Authority Elections Act), even though he had lived within the geographic boundaries of the district, because he had not done anything tangible, six months or more in advance of Nomination Day, to indicate that he was a supporter of the separate school district.

Last Revised: March 13, 2001