Date: 20070705
Docket: T-567-06
Citation: 2007 FC 707
Ottawa, Ontario, this 5th day of July, 2007
PRESENT: The Honourable Barry Strayer
BETWEEN:
TERRY
RANDOLPH THOMPSON
Applicant
and
LEQ'A:MEL
FIRST NATION COUNCIL
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
[1]
This
is an application for judicial review for a declaration that section 4 of the Leq’á:mel
First Nation Election Regulations is invalid, such request being based on
subsection 15(1) of the Canadian Charter of Rights and Freedoms or
section 52 of the Constitution Act, 1982. The Notice of Application also
sought various remedies predicated on the invalidity of section 3 of those
Regulations, on similar grounds, but the whole argument proceeded on the basis
of the inconsistency of section 4 of the Election Regulations with subsection
15(1) of the Charter. The Applicant also seeks an order to prevent the Leq’á:mel
First Nation Council from continuing to enforce section 4 of the Election
Regulations, or an order requiring the Band council to amend the regulations,
or orders under subsection 24(1) of the Constitution Act, 1982 amending
the Election Regulations or declaring invalid the procedure in the Election
Regulations for their amendment, and an order setting aside the result of the
March 31, 2006 Band elections held under the existing Regulations.
FACTS
[2]
The
Leq’á:mel First Nation has three reserves some 22 kilometres east of Mission in
the lower mainland of British Columbia. The Applicant is a
member of the Band and resides in Vancouver. He was born on the
reserve but left at the age of five to attend a residential school and has not
lived on the reserve since. In his affidavit he states that he has had problems
with alcohol, has undergone treatment and has “been sober for eight years”. He
states his belief that:
alcoholism, drug use and gambling are
significant problems on the Leq’á:mel First Nation reserve and returning to
live on the reserve would compromise my sobriety.
He states that he had
planned to vote in the election for the chief and council of the Leq’á:mel
First Nation to be held March 31, 2006 and that he wished to have been
considered as a candidate for chief and council member. He was unable to be a
candidate or vote, however, because of the provisions of sections 3 and 4 of
the Leq’á:mel First Nation Election Regulations and Procedures. Those sections
provide as follows:
3.0 Eligibility Criteria For
Office
3.1 To hold the position of
Chief or Councillor for the Lakahahmen First Nation a person must:
(a)
be a
Lakahahmen First Nation Member; and
(b)
reside in
the Canadian Traditional Stó:lo Territory; and
(c)
be at
least 18 years of age
4.0 Eligible Elector
4.1 To be eligible to vote a person
must:
(a)
be a
Lakahahmen First Nation Member; and
(b)
reside in
the Canadian Traditional Stó:lo Territory; and
(c)
be at
least 18 years of age
(The band’s name has
been changed since the adoption of the Regulations from Lakahahmen to Leq’á:mel
and it is assumed that references to Lakahahmen should now be interpreted as
references to Leq’á:mel)
The Canadian Traditional
Stó:lo Territory (CTST) is defined by a map which is an appendix to the
Regulations. As I understand it, the Leq’á:mel First Nation is part of the Stó:lo
people who shared a language group and traditionally occupied these lands. The
Leq’á:mel reserves are within the CTST but it is an extensive territory lying
along the Canada-United States border which includes the City of Chilliwack,
the City of Abbotsford, the District of Mission City, the District of Kent
including Agassiz and Ruby Creek, the District of Hope, the Village of Harrison
Hot Springs, the Village of Fort Langley, and large tracts of rural non-reserve
areas in the Fraser Valley. It does not include the City of Vancouver. Therefore,
by virtue of sections 3 and 4 of the Election Regulations, the Applicant, being
a resident of Vancouver, is not eligible to be a candidate, or to vote, in Leq’á:mel
First Nation elections.
[3]
I
have been provided with minimal evidence by both sides, the explanation being
that as it is a judicial review proceeding, more evidence could not be
produced. It would have been open to the parties to produce as much evidence as
they wished by affidavit and to have cross-examination on those affidavits. If
there were documents, studies, or histories of which I could take judicial
notice, these could have been submitted. As it is there is no evidence, for
example, as to whether the Applicant could readily move from Vancouver to any one
of the cities or other communities within the CTST referred to above and
thereby gain the vote. I have no specific evidence upon which I can base any
conclusions as to historical disadvantage suffered by those living outside the
CTST. Nor do I have evidence as to why these provisions were thought necessary
in the Election Regulations.
[4]
In
his affidavit the Applicant complained that he could neither be a candidate nor
vote. The only section argued before me, however, was section 4, namely the
Right to Vote, but the Respondent in its request for relief assumed that
section 3 is also in issue. As it appears to me the same criteria of validity
apply to both sections, I will also deal with section 3 in my disposition.
[5]
The
evidence did show, and it was not disputed, that these Elections Regulations,
adopted in 1995, have in section 24 an amending provision which requires that
for the Regulations to be amended there must be a referendum held and any
amendment must be supported by 60% of the eligible electorate (not 60% of those
who cast a vote) of the First Nation. Two attempts have been made by referendum
to amend the Regulations so as to permit all off-reserve members to vote. Referendums
were held on November 28, 2005 and on January 11, 2006. In both referenda,
fewer than 60% of the eligible electorate cast votes. The Applicant was
therefore unable to be a candidate or vote in the March 31, 2006 First Nation
Elections.
[6]
The
Applicant contends that section 4 of the Election Regulations is contrary to
subsection 15(1) of the Charter because it discriminates against him as an
off-reserve band member. He relies principally on the decision of the Supreme
Court in Corbiere v. Canada (Minister of Indian and
Northern Affairs), [1999] 2 S.C.R. 203. The Respondent
essentially argues that Corbiere is distinguishable because in that case
no member living off the reserve could vote. In the present case, the Election
Regulations only exclude those persons who live outside the CTST. It argues
that the Applicant does not have to move to the reserve to vote: he can simply
move from Vancouver to Abbotsford, Chilliwack, or some other
community of his choice. The Respondent further argues that if section 4 is
found to infringe the Applicant’s section 15 rights, it is nonetheless justifiable
under section 1 of the Charter.
ISSUES
[7]
The
following appear to be the essential issues:
1.
Do
sections 3.1 and 4.1 of the Leq’á:mel Election Regulations contravene subsection
15(1) of the Charter by requiring that Band Members reside within the CTST to be
able to be a candidate and vote in Band Elections?
2.
If
so, are they justifiable under section 1 of the Charter?
ANALYSIS
[8]
I
should first note that both parties accept that a Regulation made by the Band
is subject to the Charter. Paragraph 32(1)(a) of the Charter makes it
applicable to Parliament “in respect to all matters within the authority of
Parliament”. Although the Regulation in question here was made by the Band, and
elections are not held under the Indian Act, I respectfully agree with
Justice O’Keefe, who held in Hartley Bay Indian Band v. Hartley Bay Indian
Band (Council), [2005] F.C.J. No. 1267 at paragraph 45 that a band council
elected under Band Regulations still exercises its powers of governance under
the Indian Act and therefore if admission to, or the right to vote for,
that council is discriminatory within the meaning of subsection 15(1) of the
Charter such discriminatory results arise under an act of Parliament.
[9]
With
respect to the question of the relevant comparator group in this case, both
parties seem to be in agreement that it consists of those members of the Leq’á:mel
Band who live within the CTST (which includes but is not confined to the three
reserves). It is the members of that group who have the right to stand for
office or vote in elections of the Leq’á:mel Band, an advantage which the
Applicant seeks and is denied by the Regulations. I agree that this is the
appropriate comparator group.
[10]
To
determine whether this distinction between the Applicant and the comparator
group infringes subsection 15(1) of the Charter, I must apply the analysis set
out in Law v. Canada (Minister of Employment
and Immigration), [1999] 1 S.C.R. 497 and followed in Corbiere. It
consists of three stages.
First Stage
[11]
This
stage involves the determination as to whether the impugned law or action makes
a distinction that denies equal protection or equal benefit. In Corbiere
it was held that denial of the vote to band members living off the reserve was
a denial of equal benefit. In the present case, that denial does not apply to
some who live off the reserve but applies to anyone who does not live within
the CTST. It appears to be that at this stage the significant factor is that a
band member is, as in Corbiere, denied the vote or to stand for office
in the band because of where he lives as compared to the comparator group. I
believe this satisfies the requirements of the first stage.
Second Stage
[12]
This
stage requires the determination as to whether that distinction is
discriminatory: that is whether it is made on the basis of an enumerated ground
or a ground analogous thereto.
[13]
In
Corbiere, it was held that there is an analogous ground of
aboriginality-residence which the majority equated to “off-reserve status”. It
cautioned that this was not a finding that distinctions among the general
population based on place of residence would per se fall within an
analogous ground. In a later decision, Chippewas of Nawash First Nation v.
Canada (Minister of Fisheries and Oceans), [2003] 3 F.C. 233 (C.A.) at
paragraphs 37-38, the Federal Court of Appeal emphasized that the analogous
ground identified in Corbiere was limited to “off-reserve status”. By
implication, this ground is confined to members of a First Nation that has a
reserve.
In the present case, we
have a distinction which does not exclude from the vote all those living off
the reserve, but only those living outside of the traditional territories of
the Stó:lo people of which the Leq’á:mel are a part. Indicators of what were
described in Corbiere (para. 13) as “stereotypical decisions made not on
the basis of merit but on the basis of a personal characteristic” that would
constitute analogous grounds, were said typically to involve characteristics
that are immutable, or changeable only at an unacceptable cost, or that “the
government has no legitimate interest in expecting us to change” (emphasis
added). In the present case, the Applicant’s choice to live in Vancouver is obviously
not immutable. It is implicit in Corbiere that a change of residence to
the reserve to qualify for the vote may be impossible or available only at an
unacceptable cost, but that reasoning does not necessarily apply here. The
Applicant could move from Vancouver to, e.g., Abbotsford or Chilliwack and not
necessarily to the reserve and still qualify to vote. He has provided me with
no evidence as to the costs or other factors involved in such a move. The only
evidence he provided in his affidavit was as to the difficulties of him moving
to the reserve. I have concluded, however, on the evidence I have, that the
last kind of discriminatory characteristic mentioned above is involved here,
namely that the Band has no legitimate interest in expecting the Applicant to
change his residence from Vancouver to someplace in the CTST. As I will note
later in considering justifiability under section 1, the Respondent has failed
to demonstrate any such legitimate interest.
[14]
As
a result, I conclude that this Election Regulation also comes within the ground
of aboriginality-residence. Although that ground was understood in Corbiere
to be limited to “off-reserve status”. I believe it can be extended to
distinctions based on residence off the traditional lands of a First Nation and
its related people.
Third Stage
[15]
At
this stage, it is necessary to determine whether a distinction made on an
analogous ground constitutes discrimination within the intention of section 15.
The Supreme Court of Canada in Law and Corbiere has said that to
determine this question one must determine whether the claimant is of a group
historically subject to disadvantage, stereotyping, and prejudice; to what
extent the differential treatment complained of corresponds to the claimant’s
particular characteristics or circumstances; and the importance of the interest
infringed.
[16]
To
consider whether persons not resident on the CTST have been historically
disadvantaged and victims of stereotyping and prejudice, some evidence is
necessary and has not been provided in this case.
[17]
In
the Corbiere case, neither the pleadings nor the evidence at trial addressed
the situation of off-reserve Aboriginal people generally throughout Canada. The
pleadings and evidence were confined to the situation of the Batchewana Band.
In my reasons at trial in that case, I described my intended declaration of partial
invalidity of subsection 77(1) of the Indian Act. I observed that my
declaration would be:
…confined to voting rights of members of
the Batchewana Band because as a trial judge I must confine myself to the
actual case I have before me, its pleadings and its evidence.
((1994) 1 F.C. 394 at para. 38)
The Federal Court of
Appeal in its decision ((1997) 1 F.C. 689) confined itself to the history and
circumstances of the Batchewana Band and its remedy was similarly focussed. On
appeal, however, the Supreme Court of Canada (faced with five non-governmental
interveners, three of whom had appeared in the Federal Court of Appeal but none
at trial) restated the issue to include the question of whether subsection
77(1) of the Indian Act contravened subsection 15(1) of the Charter
generally throughout Canada. In its consideration of historical disadvantage,
stereotyping, etc. of off-reserve aboriginals generally across Canada, a matter
on which there had been no evidence (apart from the circumstances of the
Batchewana Band) before the trial or lower Appeal Court, it found there to be
generally such stereotyping and historical disadvantage. The only evidence
specifically mentioned in either the majority or the minority reasons was drawn
from general statements in the Report of the Royal Commission on Aboriginal
Peoples, volumes 1 and 4. (See Corbiere, paras. 17, 71, 83, 84, and
86). I assume that this source was treated as “evidence” on the basis of
judicial notice and I assume I am at liberty, or even obliged, to so treat it
as well. It is more emphatic on the historical disadvantage of off-reserve band
members but that is not my precise issue for determination. In the present
case, the Regulations do not distinguish against all off-reserve members of the
Leq’á:mel Band, but only those who live outside the CTST. Yet they display
similar attitudes of stereotyping of urban aboriginals who do not live with
their people. As it was said by the majority in Corbiere (para. 19):
… the differential treatment resulting
from the legislation is discriminatory because it implies that off-reserve band
members are lesser members of their bands or persons who have chosen to be
assimilated by the mainstream society.
It may be said that the
same is true of band members who choose not to live in the CTST.
[18]
Admittedly,
the historical approach is of limited value in dealing with this particular
kind of distinction. As far as I am aware the section of the Election
Regulations complained of here was first adopted in 1995, first singling out
for a denial of the vote those persons not residing in the CTST. One must apply
by analogy the historical disadvantage found by the Supreme Court to have been suffered
by off-reserve members generally throughout Canada. In this
context the group of members living outside the CTST must be regarded as a
subset of the traditional category of off-reserve members. The fact that voting
rights have been extended to those off-reserve members living within the CTST
does not make any better the situation of off-reserve members living outside
it.
[19]
The
second contextual factor to examine is whether there is a relationship between
the differential treatment and the characteristics of the claimant and others:
that is whether the distinction made corresponds to his needs, capacities or
circumstances. If it does, then the dignity of the claimant and his group are
not affected; but if does not then their dignity is affronted. As was found in Corbiere,
an off-reserve member has a real and legitimate interest in participating in
the governance of his band and it is irrelevant for most purposes that he does
not reside on the reserve or in a specifically designated traditional territory
of his people. Therefore, the denial to him of the vote does not correspond to
his interests and circumstances and thus infringes his dignity.
[20]
The
third contextual factor to take into account is the importance of the interest
affected by the negative distinction. As was held in Corbiere (see e.g.
paras. 19, 81-84), the right of a band member to vote is indeed important for his
financial, social, and cultural interests. It helps him maintain a connection
with his people and gives him a voice in many matters directly affecting him.
The Supreme Court of Canada also emphasized
that it does not matter that the particular claimant has voluntarily chosen not
to live on the reserve (Corbiere, para. 19). In the present case, it has
been argued that the Applicant could readily move to another urban area, one
located within the CTST, where he could have a similar lifestyle and also enjoy
the right to vote in band elections. As I understand Corbiere, that is
an irrelevant consideration.
[21]
I
therefore conclude that section 4 of the Election Regulations infringes
subsection 15(1) of the Charter and for similar reasons so does section 3.
JUSTIFICATION UNDER
SECTION 1
[22]
The
Respondent contends that even if section 4 infringes subsection 15(1) of the
Charter, it is a justifiable limitation of voting rights in a free and
democratic society.
[23]
Its
written submissions on this point include the following:
59.
The
objective of the limit is related to the Leq’á:mel First Nation’s connection to
the Canadian Traditional Stó:lo Territory and its profound connection to those
lands. The 24 Stó:lo First Nations, which includes the Leq’á:mel First Nation,
have identified by consensus the lands encompassed by the Canadian Traditional
Stó:lo Territory as lands used, occupied and governed by the Stó:lo since time
immemorial and hence identifiable as the “traditional” lands of the Stó:lo. The
limitation in s. 4.1 of the Election Regulations accordingly recognizes and respects
this traditional connection.
60.
The
residence requirement in s. 4.1 of the Election Regulations is not “arbitrary,
unfair or based on irrational considerations” because the Canadian Traditional
Stó:lo Territory was the result of careful deliberations of the 24 Stó:lo First
Nations, which included the knowledge of their Elders. The Canadian Traditional
Stó:lo Territory moreover is bound by historic language ties that defined those
Aboriginals who occupied and managed the land and its resources.
61.
With respect
to the third test of minimal impairment, the Respondent could have set a
residential requirement limited to Leq’á:mel First Nation reserves, or even the
reserves of the other 23 Stó:lo First Nations. By setting the boundaries as
broadly as they are found in the Canadian Traditional Stó:lo Territory, the
Respondent chose to impair the Applicant’s rights as minimally as possible
while still respecting the traditional lands the 24 First Nation communities
identified, lands to which the Leq’á:mel First Nation is and has been connected
as a community from time immemorial.
…
62.
The
Respondent submits that the limitation of residency in the Canadian Traditional
Stó:lo Territory does not have a disproportionately severe effect on the
Applicant. The objective of acknowledging the importance of the deep and
historic connection of the Leq’á:mel First Nation to the Canadian Traditional
Stó:lo Territory is properly given more weight than the Applicant’s right to
exercise his vote or to stand for office while choosing to reside outside of
the Canadian Traditional Stó:lo Territory.
Oral submissions were to the same effect. The
only evidence the Respondent submitted in support of this argument pertained to
the creation and authenticity of the map defining the CTST. It did not really
support the need for denying the vote to those members who live outside that
area.
[24]
In
determining whether a restriction is justifiable under section 1, I must
consider whether it has a sufficiently important objective, whether there is a
rational connection between the restriction and the objective, whether it
represents the least drastic means to accomplish the objective, and whether it has
a disproportionately severe effect on the persons it restricts: see R. v.
Oakes, [1986] 1 S.C.R. 103. The written submissions quoted above do not, in
my view, define any important objective. While no doubt it is important to the
Leq’á:mel Band to identify the area traditionally occupied by it and 23 other
Stó-lo First Nations enjoying historic language ties, nowhere is it explained
why a present band member not living in that area should not be allowed to vote
in the band election governing the three Leq’á:mel reserves that make up only a
small part of the CTST. Similarly, no rational connection is shown between the
right to vote and the obligation to live somewhere in the CTST. To the extent that
there might be some logic, in respect to purely local matters, to require that
voters be resident on the reserve, this regulation does not require that. It
only requires that the voter live in any one of dozens of communities, or in
rural areas, scattered throughout the CTST. As I cannot identify an important
objective for this law, I think I need not consider further whether the least
drastic means have been used to reach that objective or whether the effect is
proportionate. To the extent that there may some symbolic value in Leq’á:mel
voters living in the traditional Stó-lo territory, the effect of denial of the
vote to persons living outside that territory is clearly disproportionately
severe.
DISPOSITION AND REMEDY
[25]
While
the Applicant in his affidavit complained also of being denied the right to run
for band office in the “Order Sought” portion of his Memorandum of Fact and Law,
the Applicant asks for remedies with respect to section 4 but not with respect
to section 3. However, the Notice of Application also sought remedies in
respect of section 3 which concerns eligibility to be a candidate. Clearly, the
Respondent understood section 3 to be in issue as indicated in its relief
requested in paragraph 82 of its memorandum. The principles with respect to the
validity of section 4 apply equally to section 3. I am therefore going to
declare paragraph 3.1(b) and 4.1(b), the first requiring residence in the CTST in
order to hold office and the second requiring such residence to vote in a band
election, to be invalid as contrary to subsection 15(1) of the Charter. I will
suspend that declaration until August 1, 2008 in order to give the Leq’á:mel
First Nation an opportunity to amend the sections by its own democratic
processes. The Applicant asked that I issue mandamus requiring the Leq’á:mel
First Nation Band Council to amend the Regulations or enact new Regulations. I
do not think it appropriate to give such directions to a legislative body.
[26]
A
problem arises out of section 24.3 of the Election Regulations which requires
that any amendment to the Regulations must have the support of at least 60% of the
eligible electorate. Two referenda to change section 4 have already failed
because of a lack of voters. The Applicant asked me to declare section 24
invalid in this respect. There has been insufficient argument to justify
striking down this section. No sufficient nexus has been shown between section
15 of the Charter and this provision. For the same reason I will not adopt the
suggestion of the Respondent that I suspend the operation of section 24 of the
Election Regulations. The Respondent also asked in the alternative that if I
found section 3 and 4 to be invalid and if I suspended my declaration, I should
nevertheless suspend the operation of these sections temporarily and at once so
that non-resident voters could participate in a referendum to repeal or amend sections
3 and 4. The effect of doing so, it appears to me, would be to expand the list
of eligible electorate to include all members of the band not living in the
CTST. I have no evidence as to how feasible it will be and how much time it
would take to establish a system for such non-residents to vote in a referendum.
If this cannot be done in a timely fashion the result would be to make it even
more difficult to obtain the vote of 60% of the eligible electorate (thus
augmented by members resident outside the CTST) for the desired amendment. I
will therefore not suspend sections 3 and 4 in relation to the operation of
section 24.
[27]
The
Applicant has asked me to set aside the Election of March 31, 2006 where the
Applicant sought unsuccessfully to vote. As noted by Justice Dawson in Ominayak
v. Returning Officer for the Lubicon Lake Indian Nation Election, [2003]
F.C.J. No. 780 at paragraph 52, the Court has a discretion as to giving such an
order declaring an election void. While there has not been a long passage of
time here as in the Ominayak case, I believe it would be too disruptive
of the ongoing business of the Leq’á:mel First Nation and to the achievement of
the necessary amendment of the Election Regulations. Therefore I make no such
order. I believe all concerned will be best served if the present council takes
necessary steps to have the Regulation amended. If this is not done, my
suspended declaration will take effect to eliminate these restrictions prior to
the next election.
[28]
At
the end of the hearing, it appeared that there were cost issues that would
require a special motion. I therefore direct that cost issues should be dealt
with by a motion in writing and the response thereto. As the successful party,
the Applicant should file a motion in writing under Rules 369 on or before August
15, 2007 and the other time requirements of that Rule will then apply.
Deputy Judge
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