Date:
20130924
Docket:
T-1903-11
Citation:
2013 FC 974
BETWEEN:
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ERIC JOSEPH, MARGARET JOSEPH,
PAULA MOON, GERALDINE FITCH
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Applicants
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and
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THE DZAWADA’ENUXW (TSAWATAINEUK)
FIRST NATION BAND COUNCIL and
THE DZAWADA’ENUXW
(TSAWATAINEUK) FIRST NATION
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Respondents
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REASONS FOR
JUDGMENT
[1]
This
is a judicial review of the respondents’ adoption of a new electoral code (the
2011 Code) and a decision made by the electoral officer appointed under that Code.
[2]
In
their amended application, the applicants seek:
1. An order in the
nature of certiorari pursuant to paragraph 18.1(3)(b) of the Federal
Courts Act, RSC 1985, c F-7, quashing or setting aside the decisions or one
or more of them; and
2. An order pursuant
to paragraph 18.1(3)(b) of the Federal Courts Act or section 52 of the Constitution
Act, 1982, or both, declaring the 2011 Dzawada’enuxw (Tsawataineuk)
First Nation Custom Code (the “Custom Code”) to be invalid on one or more of
the following bases:
(i) The
September 13, 2011 general meeting was not in accordance with the notice issued
for the said general meeting (notice) dated August 15, 2011; and
(ii) The
2011 Code violates section 15 of the Canadian Charter of Rights and Freedoms,
Part I of the Constitution Act, 1982, being Schedule B to the Canada
Act 1982 (UK), 1982, c 11 (the Charter) and is therefore invalid to
the extent that it prohibits electors who do not reside on the reserve for a
period of one year from being nominated for the position of Council Chair and
other Council positions; and
(iii) The
2011 Code was not accepted by a broad consensus of the Band membership; and
(iv) The
2011 Code is not acceptable to broad consensus as practiced by the membership
of the Band; and
(v) The
2011 Code is contrary to the principles of natural justice; and
(vi) The
Band Council acted beyond their jurisdiction and denied the applicants natural
justice in the election amendment process.
3. In the alternative,
an order in the nature of mandamus pursuant to paragraph 18.1(3)(a) of
the Federal Courts Act, directing the Council to amend the 2005
Regulations pursuant to the 2005 Regulations or enact new Band Custom Election
Regulations, by a date to be set by the Court; that:
(i) are
in compliance with the Charter, and in particular, allow members of the
Dzawada’enuxw (Tsawataineuk) First Nation (the members of the Band) who do not
reside on any of the Band’s reserves, but who are otherwise qualified to vote
in Band elections; to participate equally in free and fair elections and in the
Band Custom Election Regulations amendments process and respect the custom and
right to vote by referenda in order to reach broad consensus on amendments of
the Election Regulations; and
(ii) makes
necessary changes to comply with the Constitution Act, 1982, and in
particular, that permit members of the Band who do not reside on any of the
Band reserves, but who are otherwise qualified to vote in Band Council
elections and to vote for all positions on the Council, to stand as candidates
for any and all positions on the Council, and to nominate qualified persons as
candidates for any and all positions on the Council; and
(iii) are
based on the custom of the Band as accepted by a broad consensus of the membership
of the Band; and
(iv) are
supervised independently from the Band Council and Band administration;
4. An order in the
nature of mandamus pursuant to paragraph 18.1(3)(a) of the Federal
Courts Act, directing the Council to hold a general election pursuant to
the Band Custom 2005 Election Regulations, as amended, pursuant to the custom
of the Band by referenda and in accordance with paragraph 3 above, by a date to
be set by the Court; and
5. An injunction
enjoining the Band Council from exercising any authority or performing any
duties as a Council except:
(i) signing
Band payroll cheques and accounts payable that have been already approved in
annual budgeting by Council and other expenditures already approved as per financial
policies of the Band; and
(ii) initiatives
that are or may be essential to the health and safety of the Band; and
(iii) carrying
out orders from this Court that pertain to the Band general elections,
amendment process and referenda;
6. An order that
this Court retain jurisdiction of this matter until the 2005 Regulations are
amended in accordance with paragraphs 3 and 4 above and elections are enacted;
and
7. Costs; and
8. Such further and
other relief as the applicants may advise and this Honourable Court may deem
just.
[3]
The
respondents seek the dismissal of the application with costs.
Background
[4]
The
Band is located in coastal British Columbia. It has five allocated reserves,
with only a single residential village on the Gwa-Yee Reserve located in
Kingcome Inlet. The First Nation has approximately 520 members, with
approximately 90 members living on-reserve. The Band’s Council is a Custom Council
within the meaning of the Indian Act, RSC 1985, c I-5 (the Act).
[5]
The
Band held a general meeting on September 13, 2011 and voted to replace its
previous election regulations (the 2005 Regulations) with the 2011 Code. The
2005 Regulations were adopted by a referendum that included votes from non-resident
members. The vote at the general meeting was by physically present members
only.
[6]
A
general Band election was held under the 2011 Code on April 19, 2012 and the
results announced by the electoral officer on April 23, 2012. The resident Councillor
and chair positions were acclaimed, while the non-resident Councillor position
was contested, with one of the applicants, Eric Joseph, losing to another
candidate.
The Decision
[7]
The
impugned sections of the 2011 Code are:
3.
In this code…
“resident”
refers to the residential status of an “on reserve” candidate who is considered
to have his or her residence on Gwa-yee reserve. A person’s residence is
interpreted by the following rules:
a.
a residence is the place a person normally eats and sleeps;
b.
a person can only be resident in one place at one time, and a person is
resident in that place until another place of residence is acquired.
c.
a person must be resident on the Gwa-yee reserve for a minimum of one (1) year
prior to the elections.
…
92.
Any elector who:
a.
is resident on the Gwa-Yee Reserve or any other Dzawada’enuxw Reserve shall be
eligible to be nominated for the position of Office of council Chair;
b.
is resident on the Gwa-Yee Reserve or any other Dzawada’enuxw Reserve shall be
eligible to be nominated for a position of Office of resident councillor; or
c.
is non-resident on the Gwa-Yee Reserve or any other Dzawada’enuxw Reserve,
shall be eligible to be nominated for the position of Office of non-resident councillor.
[8]
The
applicants also challenge the electoral officer’s decision under the 2011 Code
to disallow the applicant, Eric Joseph, from running for the office of Council
chair.
Issues
[9]
The
applicants’ memorandum raises the following issues:
1. Does the 2011 Code
reflect a broad consensus of the First Nation’s membership?
2. Do the impugned
provisions of the 2011 Code violate section 15 of the Charter by
discriminating against non-resident members and, if so, is that discrimination
justified under section 1 of the Charter?
3. Was the passing
of the 2011 Code a breach of natural justice?
[10]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Was the passing
of the 2011 Code procedurally fair?
3. Does the 2011 Code
reflect a broad consensus of the First Nation’s membership?
4. Do the impugned
provisions of the 2011 Code violate section 15 of the Charter by
discriminating against non-resident members and if so, is that discrimination
justified under section 1 of the Charter?
5. What is the
appropriate remedy?
Applicants’ Written Submissions
[11]
The
applicants argue that when a First Nation organizes its elections pursuant to a
customary election code instead of the Act’s provisions, the custom code must
reflect a broad consensus of the Band membership. There is a subjective element
to broad consensus and it is not sufficient for the respondents to rely on the
unanimous vote at a general meeting. The evidence shows the meeting was
difficult to attend and only one non-resident member attended. No provision for
proxy or absentee balloting was made despite requests from off-reserve members.
[12]
The
applicants further argue that affidavit evidence establishes that the Band has
a history of permitting non-resident members to vote in referenda and elections
without requiring them to be physically present. The amendments to the previous
Code in 2005 included proxy voting and that Code itself requires mail-in
ballots be sent to non-resident members for elections. Therefore, a process
that only permits voting by present members cannot represent a broad consensus.
The 2005 amendment process was voted on by 62 members while the 2011 amendment
was voted on by 15 members. The 2005 Code also limited the ability of
non-resident members to run for Council, but does not necessarily reflect the
current broad consensus of the membership. The significant change of further
restricting the definition of residency requires broad consensus.
[13]
The
applicants argue the Band’s decisions are subject to Charter scrutiny
and ask this Court to apply the two-step test for discrimination under section
15 of the Charter as established in R v Kapp, 2008 SCC 41, [2008]
2 SCR 483 at paragraph 17. Aboriginality-residence was identified as a ground
of discrimination analogous to those enumerated in section 15 in Corbiere v Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203. The 2011 Code
fulfils the first step of the Kapp test by creating a distinction based
on that ground.
[14]
The
applicants further argue that the 2011 Code creates a disadvantage by
perpetuating prejudice or stereotyping, thus fulfilling the second step of the Kapp
test. The applicants rely on this Court’s judgment in Esquega v Canada
(Attorney General), 2007 FC 878, 2007 FCJ No 1128 (QL) (varied on other
grounds 2008 FCA 182, [2008] FCJ No 762 (QL)), where the Court held that a provision
of the Act limiting Council offices to resident members was discriminatory.
Based on these decisions, the applicants argue that non-resident members face a
pre-existing disadvantage and that prohibitions such as those in the 2011 Code
perpetuate the harmful stereotype that non-resident members have no interest in
participating in Band governance and are therefore less worthy of doing so.
[15]
The
applicants argue the evidence establishes that the First Nation has not
adequately addressed the issues faced by non-resident members; therefore, the
impugned provisions perpetuate their disadvantage and vulnerability. Similarly,
the applicants argue there is no relationship between the provision and the
actual need, capacity or circumstances of non-resident members, as the fact
they live off the reserve does not make them less capable of serving their
community. The applicants argue that some of the respondents’ affidavit
evidence perpetuates this negative stereotype. The Band Council’s obligation is
to govern the First Nation as a whole, which includes both resident and
non-resident members. The interest affected is an extremely important one: the
right to full participation in one’s First Nation.
[16]
The
applicants argue that the residency requirement is not an ameliorative program
as contemplated by subsection 15(2) of the Charter as there is no
evidence that resident members are more disadvantaged than non-resident
members.
[17]
In
analyzing the alleged violation of section 15 of the Charter under section
1, the applicants argue that ensuring the First Nation is governed by resident
members is not a pressing and substantial objective. Similarly, the residency
requirement is not minimally impairing, as at the very least, a minimally
restrictive rule would allow a non-resident to run for Council chair. The
injurious impact of the restriction to non-resident members is disproportionate
to the importance of the objective.
[18]
The
applicants argue the appropriate remedy if a Charter violation is found
is to nullify the entire 2011 Code and quash the recent election results under
that Code.
[19]
Finally,
the applicants argue the 2011 Code was adopted through a process that breached
procedural fairness. Non-resident members were given insufficient notice of the
general meeting, forced to travel to the Gwa-Yee Reserve in order to vote,
denied access to a boat after being promised one by Council and given the wrong
time and place for the general meeting.
[20]
The
applicants argue that the injunctive relief they seek, as described above,
strikes an appropriate balance, permitting the Council to take necessary steps
for the financial well-being of the First Nation while restricting the ability
of the Council to take any further steps when it is operating outside of the
rule of law.
Respondents’ Written Submissions
[21]
The
respondents argue that the appropriate standard of review for whether the 2011
Code reflects the Band’s customs is reasonableness, given the Chief and Council’s
expertise in such customs. Whether the 2011 Code violates the Charter and
whether the procedure used to adopt it was fair, are questions considered on a
correctness standard. The respondents argue that section 25 of the Charter,
which has the potential to act as a shield against Charter review, is an
indication that correctness review should be tempered with deference.
[22]
The
respondents argue that the Court need not consider whether there is a broad
consensus given that the electoral Code amendment process had been codified for
more than a decade. Given that the process was written down and followed by the
Band, there is no need to resort to a separate test to determine custom. There
is no vacuum in the Band’s custom to be filled through analyzing broad
consensus.
[23]
The
respondents’ alternative argument is that if there is in fact an overarching
common law criterion of broad community consensus, it has been met in this case
for two reasons: the previous use of the amendment process since 1999 and the
members’ participation in the general meeting. There is no evidence anyone
other than two of the applicants have expressed concern with the amendment
process.
[24]
On
procedural fairness, the respondents argue the procedural irregularities did
not amount to a breach of fairness. The First Nation is in a constant struggle
to maintain the basic structures of government in the context of a remote
village, a large number of non-resident members and a very limited budget. The Council
first gave 30 days’ notice of the general meeting by electronic mail and then
postponed the meeting to give notice by postal mail as requested by one of the
applicants. The meeting was again postponed to allow more time for review and
input and a third notice was mailed to the members.
[25]
The
respondents argue that there is no evidence other than hearsay that any members
were prevented from attending the meeting due to a lack of private boat
transportation. The respondents claim their own evidence shows that the Band
was willing to arrange such transportation if the interest was sufficient, but
only one non-resident member expressed a willingness to travel to the village
for the meeting.
[26]
The
respondents further argue there is no evidence that a change in the meeting
start time or venue prevented any willing individual from attending and that
the well-established quorum for a general meeting is 15, which was met.
Therefore, the customary process was carried out properly.
[27]
On
the Charter issue, the respondents agree that the 2011 Code is subject
to Charter review but notes that the Court should avoid pronouncing on
the constitutional question if it is not necessary to dispose of the matter.
[28]
The
respondents concede that the first step of the Kapp test is met, as the 2011
Code creates a distinction based on Aboriginality-residence. The respondents
maintain, however, that this distinction is not the kind invidious distinction
prohibited by section 15 of the Charter.
[29]
A
reasonable person in the position of the applicants would not experience the
differential treatment in this case as the perpetration of prejudice or
discrimination or as treatment indicating he or she is of less worth or
dignity. The effect of the Code is to advance the goals of self-government. The
governance structure of the First Nation includes many opportunities for
non-residents to participate: voting in elections and Band meetings, nominating
all offices, holding office as a non-resident Councillor and having access to
all Councillors.
[30]
In
other cases, stereotypes against non-resident Band members led to the
deprivation of the core civil right of voting, which is not the case here.
Non-resident members are represented by all Councillors and particularly the
designated non-resident Councillor. There is no compelling evidence that
non-resident members’ interests have not been adequately represented or addressed.
Both resident and non-resident Aboriginal people have experienced disadvantage
and it does not remedy discrimination to pit the two groups against each other.
[31]
The
respondents emphasize that it is not the willingness or ability of non-resident
members to participate in governance, but the knowledge base, experience in the
community and current connection to the community needs that gives rise to the
requirement that the majority of the Council be resident. This distinction
reflects the correspondence between the need for current and continuous
community connection and residency. The nature of the interest affected is
important but limited as non-residents may participate in the public life of
the Band.
[32]
The
respondents rely on section 25 of the Charter as an interpretative lens
that should be considered by this Court when evaluating whether the custom Code,
a fundamental aspect of self-governance, offends section 15.
[33]
The
respondent argues this case is different from Esquega as that decision
involved a total ban on non-resident members participating in Band governance
and it was a challenge to the Act as opposed to a custom code adopted by a Band’s
members. A partial restriction on non-resident members is the kind of balancing
of interests contemplated by the Supreme Court in Corbiere at paragraphs
104 and 105.
[34]
If
the restriction violates section 15, the respondents maintain it is saved by
section 1. The pressing and substantial objective is to ensure that Council
members have a real, substantial and present connection to the community; the
objective of provision of local government has been previously held to be a
valid objective in Cockerill v Fort McMurray First Nation #468, 2010 FC
337, [2010] FCJ No 393 (QL) at paragraphs 35 and 37, rev’d on consent, [2011]
FCJ No 1736 (QL) (CA).
[35]
The
restriction is rationally connected to this objective as most decisions made by
the Band Council have immediate effect on members living on-reserve and it
would be prohibitively expensive for the Band to fund non-resident Councillors
to attend meetings. Similar rational connection analysis was accepted in Cockerill.
The restriction is minimally impairing because non-resident members have access
to all other forms of participation in Band governance. In Corbiere, the
Supreme Court alluded to a “creative design of an electoral system” that would
balance the interests of on-reserve and off-reserve members equally. The
current system strikes that balance. The salutary effects on the governance and
economic interests of the Band outweigh the deleterious effects identified by
the applicants.
[36]
The
respondents object to the injunctive relief sought by the applicants. The
applicants have not sought to set aside the recent election results or sought
the removal of the current Councillors from office and the process for
reviewing election results is an appeal under the Act. Therefore, the granting
of an injunction which effectively amounted to overturning that election would
be a collateral attack. There is no evidence that the governance of the Band
would not proceed in good faith until the next election. The respondents also
object to the order of mandamus sought by the applicants, as the
applicants have not established that there is a public law duty on the
respondents to hold a general election.
[37]
The
respondents’ position on remedy is that if the 2011 Code violates the Charter,
an order of invalidity under section 52 of the Constitution Act, 1982 is
appropriate but ask that the effect of the declaration be suspended for 12
months following the issuance of judgment. This would allow the respondents to
engage in a process of consultation to establish an appropriate voting regime.
Analysis and Decision
[38]
Issue
1
What is
the appropriate standard of review?
Where previous
jurisprudence has determined the standard of review applicable to a particular
issue before the court, the reviewing court may adopt that standard (see Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 57).
[39]
On
the constitutional question, a standard of correctness applies (see Dunsmuir
at paragraph 58). Similarly, no deference is owed on matters of procedural
fairness. As I note below, it is not necessary to consider the standard of
review for assessing whether the 2011 Code reflects a broad consensus within
the Band.
[40]
I
will next deal with Issue 4.
[41]
Issue
4
Do the impugned
provisions of the 2011 Code violate section 15 of the Charter by
discriminating against non-resident members and, if so, is that discrimination
justified under section 1 of the Charter?
The Supreme Court has
recently confirmed the two-step test a court should apply when considering whether
a law violates the equality guarantee in section 15:
(1) Does
the law create a distinction based on an enumerated or analogous ground?
(2) Does
the distinction create a disadvantage by perpetuating prejudice or
stereotyping?
(see Kapp at paragraph 17; Withler
v Canada (Attorney General), 2011 SCC 12 at paragraph 30, [2011] 1 S.C.R. 396;
Quebec (Attorney General) v A, 2013 SCC 5 at paragraphs 185,
324 and 418).
[42]
In
this case, the parties agreed that the 2011 Code creates a distinction based on
the analogous ground of Aboriginality-residence by reserving Band Council
offices for those Band members who reside on the reserve.
[43]
It
is useful, however, to recall the analysis that led the Supreme Court to
identify Aboriginality-residence as an analogous ground of discrimination
fourteen years ago in Corbiere (at paragraph 62):
Here,
several factors lead to the conclusion that recognizing off-reserve band member
status as an analogous ground would accord with the purposes of s. 15(1). From
the perspective of off-reserve band members, the choice of whether to live on-
or off-reserve, if it is available to them, is an important one to their
identity and personhood, and is therefore fundamental. It involves choosing
whether to live with other members of the band to which they belong, or apart
from them. It relates to a community and land that have particular social and
cultural significance to many or most band members. Also critical is the fact
that as discussed below during the third stage of analysis, band members living
off-reserve have generally experienced disadvantage, stereotyping, and
prejudice, and form part of a “discrete and insular minority” defined by race
and place of residence. In addition, because of the lack of opportunities and
housing on many reserves, and the fact that the Indian Act’s rules
formerly removed band membership from various categories of band members,
residence off the reserve has often been forced upon them, or constitutes a
choice made reluctantly or at high personal cost. For these reasons, the second
stage of analysis has been satisfied, and “off-reserve band member status” is
an analogous ground. It will hereafter be recognized as an analogous ground in
any future case involving this combination of traits. …
[44]
The
determinative issue is therefore whether the 2011 Code’s restriction on Band Council
offices creates a disadvantage by perpetuating prejudice or stereotyping. The application
of this stage of the Kapp test has been the subject of much
jurisprudential debate, but in this case, the established case law dealing with
Aboriginality-residence is of assistance.
[45]
The Supreme
Court held in Corbiere that disenfranchising off-reserve Band members
was discriminatory (at paragraphs 17 and 18):
17
Applying the applicable Law factors to this case
-- pre-existing disadvantage, correspondence and importance of the affected
interest -- we conclude that the answer to this question is yes. The impugned
distinction perpetuates the historic disadvantage experienced by off-reserve
band members by denying them the right to vote and participate in their band’s
governance. Off-reserve band members have important interests in band governance
which the distinction denies. They are co-owners of the band’s assets. The
reserve, whether they live on or off it, is their and their children’s land.
The band council represents them as band members to the community at large, in
negotiations with the government, and within Aboriginal organizations. Although
there are some matters of purely local interest, which do not as directly
affect the interests of off-reserve band members, the complete denial to
off-reserve members of the right to vote and participate in band governance
treats them as less worthy and entitled, not on the merits of their situation,
but simply because they live off-reserve. The importance of the interest
affected is underlined by the findings of the Royal Commission on Aboriginal Peoples,
Report of the Royal Commission on Aboriginal Peoples (1996), vol. 1, Looking
Forward, Looking Back, at pp. 137-91. The Royal Commission writes in vol.
4, Perspectives and Realities, at p. 521:
Throughout the Commission’s
hearings, Aboriginal people stressed the fundamental importance of retaining
and enhancing their cultural identity while living in urban areas. Aboriginal
identity lies at the heart of Aboriginal peoples’ existence; maintaining that
identity is an essential and self-validating pursuit for Aboriginal people in
cities.
And
at p. 525:
Cultural identity for urban
Aboriginal people is also tied to a land base or ancestral territory. For many,
the two concepts are inseparable. ... Identification with an ancestral place is
important to urban people because of the associated ritual, ceremony and
traditions, as well as the people who remain there, the sense of belonging, the
bond to an ancestral community, and the accessibility of family, community and
elders.
18
Taking all this into account, it is clear that the s.
77(1) disenfranchisement is discriminatory. It denies off-reserve band members
the right to participate fully in band governance on the arbitrary basis of a
personal characteristic. It reaches the cultural identity of off-reserve
Aboriginals in a stereotypical way. It presumes that Aboriginals living
off-reserve are not interested in maintaining meaningful participation in the
band or in preserving their cultural identity, and are therefore less deserving
members of the band. The effect is clear, as is the message: off-reserve band
members are not as deserving as those band members who live on reserves. This
engages the dignity aspect of the s. 15 analysis and results in the denial of
substantive equality.
[46]
In
a case more similar to the one at bar, I held in Esquega that the Act’s
limitation of Band Council positions to on-reserve members was discriminatory
(at paragraphs 87 to 92):
87
In my view, the application of these factors to the
case at hand also leads to the conclusion that off-reserve band members are
discriminated against under step three of the Law test.
88
As noted in Corbiere, band members who live
off-reserve have historically faced disadvantage as a result of legislation and
policies designed to deny them the right participate in band governance. Such
legislation perpetuates the wrongful notion that band members who live
off-reserve have no interest in participating in band governance and are
therefore less worthy of doing so.
89
In my view, there does not appear to be any
correspondence between the willingness or ability of off-reserve band members
to participate in band council, and their residency status. Affidavit evidence
submitted by the applicants indicates that the removed band council, which
included off-reserve band members, worked diligently to alleviate serious
problems on the Gull Bay Reserve and in the Gull Bay First Nation Community at
large.
90
The respondent submitted that the residency requirement
in subsection 75(1) of the Indian Act served an ameliorative purpose in
that it ensured that band councillors were located on-reserve, and were
directly familiar with the issues relevant to decision-making. As noted above
in Corbiere, in addition to addressing local issues, band councils
represent individuals who live off-reserve in many important capacities. In any
event, I am not persuaded that the preservation of band council positions for
on-reserve members to the exclusion of off-reserve members helps a more
disadvantaged group. In fact, under cross-examination, Lynn Ashkewe admitted
that having a band council formed solely of on-reserve members would not make
them more accessible to the majority of members, who live off-reserve.
91
Finally, the nature and scope of the interest affected
is of fundamental importance to off-reserve band members. The residency
requirements set out in subsection 75(1) deny individuals who live off the
reserve the ability to participate in the representative governance of their
band. While off-reserve members now have the right to vote in band council
elections, I still believe that they hold a fundamental interest in
participating in band council and making decisions on behalf of their band. In
the context of Gull Bay First Nation, this prohibition applies to over half of
their band members and prevents them from becoming leaders of their band.
92
In my view, subsection 75(1) of the Indian Act
does discriminate against off-reserve members by prohibiting them from
participating in the representative governance of their band through band
council on the basis of their “Aboriginality-residency” status.
[47]
Notably,
the four factors considered in this exerpt have since been de-emphasized in
equality jurisprudence, but are still relevant to “focussing on the central
concern” of section 15 of combating discrimination (Kapp at paragraph
24).
[48]
Other
decisions concerning restrictions on the participation of off-reserve members
include the decision of Mr. Justice Barry Strayer in Thompson v Leq’a:mel
First Nation, 2007 FC 707, [2007] FCJ No 955 (QL) and the decision
of Mr. Justice James O’Reilly in Cockerill. Notably, Mr. Justice O’Reilly
held that although that Band’s denial of voting rights of non-resident members
violated section 15, it was saved under section 1.
[49]
The
respondents argue the 2011 Code restrictions are necessary because only
on-reserve members have the “knowledge base, experience in the community and
current connection to the community needs” to guide the Band in providing
on-reserve services. The respondents have proffered no evidence comparing the
knowledge, experience and connection of on-reserve members to that of
off-reserve members. It is supported by mere assertion in the respondents’
affidavits. In the absence of such evidence, I can only conclude that this
claim is based in the exact stereotype identified and rejected in Corbiere
that off-reserve members have less to contribute to Band governance.
[50]
The
respondents offer two further arguments to distinguish the 2011 Code from the
laws struck down in the decisions above: that the 2011 Code is a custom code
adopted by the Band itself instead of imposed by the Act and that the
designation of a non-resident Band Councillor represents a more balanced
approach than a total ban on voting or holding office.
[51]
The
first argument is answered by the Court’s decision in Clifton v Hartley Bay (Electoral Officer), 2005 FC 1030, [2005] FCJ No 1267 (QL), where I
performed a Charter review of electoral restrictions of off-reserve
members in a custom electoral code. While the fact that a Band chooses on its
own to adopt electoral restrictions instead of being subjected to them by the
Act is relevant to the context, it does not excuse discriminatory laws.
[52]
Similarly,
the respondents’ request that I consider section 25 of the Charter as an
“interpretative lens” in applying the Kapp test is of little assistance,
given that the decisions above are quite alive to considerations of Aboriginal
self-government but nonetheless teach that discrimination based on off-reserve
residency is unacceptable.
[53]
For the final
argument, that the current restrictions constitute a legitimately balanced
approach, the respondent rightfully relies on a passage from Corbiere at
paragraph 104, where the Supreme Court contemplated:
104
The appellant Her Majesty the Queen suggests that the
current model meets the criterion of minimal impairment because of the
administrative difficulties and costs involved in setting up, for example, a
two-tiered council where one tier would deal with local issues and the other
with issues affecting all band members, or in maintaining a voter's list and
conducting elections where the electorate may be widely dispersed. Even
assuming that such costs could legitimately constitute a s. 1 justification,
these arguments are unconvincing. It must be remembered that the burden of
justifying limitations on constitutional rights is upon the government. The
government has presented no evidence to show that a system that would respect
equality rights is particularly expensive or difficult to implement. Rather,
there are many possible solutions that would not be difficult to administer,
but would require a creative design of an electoral system that would balance
the rights involved. Change to any administrative scheme so it accords with
equality rights will always entail financial costs and administrative
inconvenience. The refusal to come up with new, different, or creative ways of
designing such a system, and to find cost-effective ways to respect equality
rights cannot constitute a minimal impairment of these rights. Though the
government argues that these costs should not be imposed on small communities
such as the Batchewana Band, the possible failure, in the future, of the
government to provide Aboriginal communities with additional resources
necessary to implement a regime that would ensure respect for equality rights
cannot justify a violation of constitutional rights in its legislation.
[54]
I
would note that these comments were made in the context of a section 1 analysis
as opposed to section 15, but I take the respondents’ point that the Supreme
Court has signalled some willingness to entertain a governance structure that
contains some distinctions between resident and non-resident members short of
complete disenfranchisement.
[55]
In
this sense, the case at bar appears to be novel, as courts have considered both
the disenfranchisement of non-resident members and Council positions that are
completely closed to non-resident members, but not a Council where only some
positions are reserved to resident Band members. I agree with the respondents
that on the spectrum between total exclusion of non-resident members and
complete symmetry between resident and non-resident members, the 2011 Code is
closer to the symmetrical approach than the laws considered in Corbiere and
Esquega. I also agree that there may very well be a point on that
spectrum short of symmetry that passes constitutional muster.
[56]
I
am not convinced, however, that the 2011 Code is the balanced structure
envisioned by the Supreme Court, much as it may be an improvement on previous
models.
[57]
Given
the extremely significant interest that all members have in a Band Council’s
decisions, a structure which gives a permanent supermajority to resident
members and denies non-resident members the chance to lead the Council as chair
cannot be said to be balanced. This is particularly the case when the
proportions between the Band’s membership and the Band Council are inverted: upwards
of three-quarters of the Band are non-resident while three of four Council
spots are not available to them, to say nothing of the chair. This approach is
not so much “creative” as it is a minor variation on the model struck down in Esquega.
While non-resident members are represented in Council deliberations by the
non-resident Councillor, when push comes to shove, that Councillor can be
easily outvoted by the resident Councillors.
[58]
I
therefore find that my analysis from paragraphs 87 to 92 of Esquega
applies to the 2011 Code restrictions. The distinction it contains creates a
disadvantage by perpetuating the stereotype that non-resident Band members have
reduced ability or interest in contributing to Band governance. The second step
of the Kapp test is met and the 2011 Code restriction therefore violates
section 15 of the Charter.
[59]
I
am sympathetic to the uncertainty faced by the respondents and other Bands
across Canada as to what kind of governance structure would satisfy section 15,
but it is not the role of the Court to dictate legislation. Rather, the spirit
of Charter dialogue requires that a court only consider laws as passed
by law makers, instead of ordering particular changes ex ante and in the
absence of a proper evidentiary record.
[60]
Although
it violates section 15, the 2011 Code may be saved by section 1. The
respondents rely heavily on the decision in Cockerill where a Band’s
residency requirement for Council offices was held to be a reasonable limit
demonstrably justified in a free and democratic society. I would note, however,
that Mr. Justice O’Reilly’s finding in that decision was reversed on appeal, on
consent (see [2011] FCJ No 1736 (QL) (CA)).
[61]
The
first pressing and substantial objective presented by the respondents is to
ensure that Council members have a real, substantial and present connection to
the community. I accept this as a legitimate objective.
[62]
The
rationale connection between this objective and the 2011 Code restrictions,
however, is lacking. As I discussed above, the assumption that only resident
members will have a substantial connection to the community is based on the
stereotype rejected in Corbiere: that non-resident members have less
capacity to contribute to Band governance. To uphold a discriminatory law at
the section 1 stage based on the very same discriminatory logic that led to its
rejection at the section 15 stage would be perverse. The law is therefore not
saved by this section 1 rationale.
[63]
I
also do not accept the respondents’ financial rationale for limiting Band Council
eligibility, which I think should be properly understood as a distinct
objective.
[64]
At
the section 1 stage, the onus is on the respondents to defend the infringement.
The only evidence the Band has relied on regarding the feasibility of any form
of deliberation other than in-person on-reserve meetings is a single paragraph
in an affidavit from the current Council chair describing the ability to meet
in person as “important”. This is not sufficient to justify a discriminatory
restriction on the ability to run for office, if only because Band members can
judge such importance for themselves in casting their ballots. Therefore, the
Band has not proven on a balance of probabilities it could not meet the
objective of preserving resources in a less impairing way.
[65]
While
this Court must have some deference to the Band Council’s choice when
performing a section 1 analysis, the 2011 Code restrictions do not survive since
they are based on the stereotyping rejected in Corbiere or for financial
reasons which are not borne out on the evidence.
[66]
I
therefore find that the 2011 Code restriction violates section 15 of the Charter
and is not saved by section 1 of the Charter.
[67]
Issue
5
What is the appropriate
remedy?
At
the hearing, the parties asked for the opportunity to make further
submissions on remedy after being informed of the decision on the merits due to
the complexity of this case. They shall be given the opportunity to do so as
well as to make any submissions on costs. I remain seized to deal with these
matters and any other remaining matters.
[68]
Because
of my finding on Issue 4, I need not deal with Issues 2 and 3.
“John A. O’Keefe”
Ottawa, Ontario
September 24, 2013
ANNEX
Relevant
Statutory Provisions
Constitution
Act, 1982,
Schedule B to the Canada Act 1982 (UK), 1982, c 11
|
1. The
Canadian Charter of Rights and Freedoms guarantees the rights and
freedoms set out in it subject only to such reasonable limits prescribed by
law as can be demonstrably justified in a free and democratic society.
15.
(1) Every individual is equal before and under the law and has the right to
the equal protection and equal benefit of the law without discrimination and,
in particular, without discrimination based on race, national or ethnic
origin, colour, religion, sex, age or mental or physical disability.
25.
The guarantee in this Charter of certain rights and freedoms shall not be
construed so as to abrogate or derogate from any aboriginal, treaty or other
rights or freedoms that pertain to the aboriginal peoples of Canada including
(a) any
rights or freedoms that have been recognized by the Royal Proclamation of
October 7, 1763; and
(b) any
rights or freedoms that now exist by way of land claims agreements or may be
so acquired.
52.
(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the
extent of the inconsistency, of no force or effect.
|
1.
La Charte canadienne des droits et libertés garantit les droits et
libertés qui y sont énoncés. Ils ne peuvent être restreints que par une règle
de droit, dans des limites qui soient raisonnables et dont la justification
puisse se démontrer dans le cadre d'une société libre et démocratique.
15.
(1) La loi ne fait acception de personne et s'applique également à tous, et
tous ont droit à la même protection et au même bénéfice de la loi,
indépendamment de toute discrimination, notamment des discriminations fondées
sur la race, l'origine nationale ou ethnique, la couleur, la religion, le
sexe, l'âge ou les déficiences mentales ou physiques.
25.
Le fait que la présente charte garantit certains droits et libertés ne porte
pas atteinte aux droits ou libertés -- ancestraux, issus de traités ou autres
-- des peuples autochtones du Canada, notamment :
a) aux
droits ou libertés reconnus par la proclamation royale du 7 octobre 1763;
b) aux
droits ou libertés existants issus d'accords sur des revendications
territoriales ou ceux susceptibles d'être ainsi acquis.
52. (1)
La Constitution du Canada est la loi suprême du Canada; elle rend inopérantes
les dispositions incompatibles de toute autre règle de droit.
|
Federal
Courts Act,
RSC 1985 c F-7
|
18.1 …
(3) On an application for judicial review, the Federal Court may
(a) order
a federal board, commission or other tribunal to do any act or thing it has
unlawfully failed or refused to do or has unreasonably delayed in doing; or
(b) declare
invalid or unlawful, or quash, set aside or set aside and refer back for
determination in accordance with such directions as it considers to be appropriate,
prohibit or restrain, a decision, order, act or proceeding of a federal
board, commission or other tribunal.
|
18.1 …
(3) Sur présentation d’une demande de contrôle judiciaire, la Cour
fédérale peut :
a) ordonner
à l’office fédéral en cause d’accomplir tout acte qu’il a illégalement omis
ou refusé d’accomplir ou dont il a retardé l’exécution de manière
déraisonnable;
b) déclarer
nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement
conformément aux instructions qu’elle estime appropriées, ou prohiber ou
encore restreindre toute décision, ordonnance, procédure ou tout autre acte
de l’office fédéral.
|
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