Date: 20130813
Docket: A-427-12
Citation: 2013 FCA 192
CORAM: BLAIS
C.J.
MAINVILLE
J.A.
NEAR
J.A.
BETWEEN:
LOUIS TAYPOTAT
Appellant
and
CHIEF SHELDON TAYPOTAT, MICHAEL
BOB, JANICE MCKAY, IRIS TAYPOTAT and VERA WASACASE as Chief and Council
representatives of the
KAHKEWISTAHAW FIRST NATION
Respondents
REASONS FOR JUDGMENT
MAINVILLE J.A.
[1]
This
is an appeal from a judgment of de Montigny J. of the Federal Court (the
“Judge”) dated August 30, 2012 and cited as 2012 FC 1036 (the “Reasons”) which
dismissed the appellant’s judicial review application seeking (a) to invalidate
paragraphs 9.03(c) and 10.03(d) of the Kahkewistahaw Election Act which
require that a candidate in an election to the public offices of the Chief or the
councillors must have attained a minimum education level of Grade 12, or an
equivalent or higher level of education, as evidenced by a certificate; (b)
that the individual respondents be removed from office; and (c) that new
elections be held for the position of Chief and the positions of councillors of
the Kahkewistahaw First Nation.
[2]
For
the reasons set out below, the impugned provisions of the Kahkewistahaw
Election Act imposing a minimum education requirement to run for public
office violate the equality provisions of subsection 15(1) 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”),
as well as the fundamental principle of equality set out in the Kahkewistahaw
Election Act itself. I would consequently allow the appeal, set aside the
judgment of the Federal Court, annul, invalidate and void the impugned
provisions, and order that a new election for the office of Chief be held
within 60 days of the judgment of this Court.
Background
[3]
The
appellant is now 74 years old and has been a member of the Kahkewistahaw First
Nation (the “First Nation”) his entire life. He was elected Chief of the First
Nation for 27 years, from 1973-1989, 1992-1993 and 1997-2007, in elections held
pursuant to the Indian Act, R.S.C. 1985, c. I-5. In the last election
for Chief held under the Indian Act in 2009, the appellant lost to his
nephew, the respondent Sheldon Taypotat, by only four votes (Reasons at para. 3;
transcript of examination of Chief Sheldon Taypotat, p. 11 lines 22 to 23,
reproduced in Appeal Book (“AB”) at p. 672).
[4]
In
recent years, the Kahkewistahaw First Nation began moving towards a community
election code, and a proposal for this purpose was developed and widely distributed
throughout its membership. Though such codes are sometimes referred to as
“custom” election codes, this is a misnomer resulting from the outdated
definition of “council of the band” set out in subsection 2(1) of the Indian
Act. Indeed, many of these codes do not necessarily reflect
customary aboriginal leadership selection rules. I shall therefore refer to
such codes in these reasons as community election codes. The expression
“customary” elections should be reserved for those bands which have never
selected their leadership under the terms of the Indian Act.
[5]
Under
subsection 74(1) of the Indian Act, the Minister may declare through an
order that the Chief and Council of an Indian “band” are to be selected
through elections held in accordance with the terms of the Indian Act, including
the Indian Band Election Regulations. The vast majority of Indian bands
were subject to such orders at one time or another, though a few have continued
to select their leadership through purely customary rules. In recent years, the
responsible Federal Minister has developed a policy providing for a process for
the revocation of such orders, thus allowing the concerned Indian bands to select
their elected Chief and Council in accordance with their own community election
codes, which need not necessarily reflect any customary selection process.
[6]
Certain
requirements are set out under that policy to revoke an order under subsection
74(1) of the Indian Act (Exhibit A to the affidavit of Vera Wasacase
sworn August 3, 2011; AB at pp. 479-480). A written community election code
must be prepared which meets certain minimum requirements established by the
Minister, including consistency with the Charter. That code must also be
approved by the band Council and must be supported by the majority of the members
of the concerned First Nation as expressed in a vote by secret ballot.
[7]
In
this case, the ratification of the proposed community election code by the
membership of the Kahkewistahaw First Nation was fraught with difficulties. The
appellant attributes these difficulties to the provisions of the code
restricting eligibility to the offices of the Chief and the councillors to
those who have at least a Grade 12 education. This restriction caused deep concerns
among the membership of the community, notably among the elders (Affidavit of
Louis Taypotat sworn July 7, 2011 (“Appellant’s Affidavit”) at paras 4-5, AB at
p. 36; Affidavit of Lionel Frederick Louison sworn August 3, 2011 (“Louison
Affidavit”) at para. 31, AB at pp. 194-195).
[8]
A
first vote to ratify the community election code was held on September 6, 2008,
but only 164 votes were cast out of 984 eligible voters. As a result, this vote
did not meet the majority participation level required by the Minister (Louison
Affidavit at para. 12, AB at pp. 189-190).
[9]
A
second ratification vote was held on March 29, 2009 in which only 231 votes
were cast out of 1007 eligible voters (Louison Affidavit at para. 19, AB at p.
191). Since voter participation was again well below the minimum ministerial
requirement, a decision was made to carry out a continuation vote. The final
result of the combined second vote and continuation vote was that a total of
483 ballots were cast out of 1007 eligible voters, of which 409 ballots were
marked “Yes”, 72 were marked “No”, and 3 ballots were rejected or spoiled (Louison
Affidavit at para. 29, AB at pp. 193-194).
[10]
Though
an absolute majority of the electors of the band had not voted, the results
were nevertheless deemed significant enough for the Minister to revoke, in
February of 2011, the order under subsection 74(1) of the Indian Act,
thus allowing the Kahkewistahaw First Nation to select its membership pursuant
to its own community election code (Louison Affidavit at para. 32, AB at p.
195; Appellant’s Affidavit Exhibit D, AB at pp. 61-62; Affidavit of Chief
Sheldon Taypotat sworn August 4, 2011 (“Chief Taypotat’s Affidavit”) at para.
25 and Exhibit G thereto, AB pp. 623 and 650 to 652).
[11]
The
first elections under the new Kahkewistahaw Election Act were thus held
in May of 2011. This new community election code contained an important
restriction to eligibility for public office as it set a minimum education
requirement. The impugned provisions of the Kahkewistahaw Election Act read
as follows:
Eligibility Requirements
9.03 A Candidate must:
…
(c) have attained a minimum education level of Grade
12 or an equivalent or higher level of education;
Candidate Declaration
10.01 In order to be accepted as a Candidate in an
Election, a person shall declare their intention to run as a Candidate no later
than 4:00 p.m., local time, on the tenth (10th) day prior to the
Nomination Meeting by providing to the Electoral Officer all of the following
Declaration Documents:
…
(d) a copy of a certificate evidencing that the
person has attained a minimum education level of Grade 12 or an equivalent or higher
level of education;
[12]
Prior
to the first elections held under this new community election code, a petition
signed by 340 members of the Kahkewistahaw First Nation was circulated challenging
the Kahkewistahaw Election Act on the ground that its provisions requiring
Grade 12 education violated the “human right to be treated equally”, the
aboriginal and treaty rights of the members of the First Nation and the
principle of equality set out in the community election code itself (Appellant’s
Affidavit at para. 13 and Exhibit I thereto, AB at pp. 38 and 133 to 165). The
petition was not acted upon by the Membership Committee of the Kahkewistahaw
First Nation, which is the body empowered to process amendments to the
community election code (Kahkewistahaw Election Act sections 25.01 to
25.03).
[13]
Though
the appellant only attended a residential school until the age of 14, and was
evaluated at a Grade 10 education level, he nevertheless submitted his
nomination as a candidate for the office of Chief. However, this nomination was
not certified by the Electoral Officer on the ground that the appellant did not
have a certificate proving that he had a Grade 12 or higher education (Reasons
at para. 4; Appellant’s Affidavit at para. 11, AB at p. 37; Affidavit of Corina
Rider sworn July 28, 2011 (“Rider Affidavit”) at para. 14, AB at p. 295). As a
result, the respondent Sheldon Taypotat was the only eligible candidate
nominated for the position of Chief, and he was therefore declared elected by
acclamation as there would be no election for that position (Rider Affidavit at
para. 17, AB at p. 296).
[14]
In
the remaining elections for the councillor positions, 277 persons voted out of
a much larger group of eligible voters. This was considerably lower voter
participation than in prior elections (Appellant’s Affidavit at para. 18, AB at
p. 39; Chief Sheldon Tapotat’s Affidavit at para. 29, AB at p. 624). As a
result of these first elections under the new community election code, the
respondents Michael Bob, Janice McKay, Iris Taypotat and Vera Wasacase were
declared elected as councillors (Appellant’s Affidavit at para. 18; Rider
Affidavit at para. 29, AB at p. 298).
[15]
Shortly
after these elections, the appellant filed his application for judicial review
in the Federal Court.
The Decision of the Federal Court
[16]
The
Judge found that the Kahkewistahaw Election Act had been validly adopted
even though an absolute majority of the eligible electors of the First Nation
had not participated in the ratification vote and had not ratified it. He
recognized that a “broad consensus” was required in order to adopt a community
election code, but he found that a flexible approach must be applied to find
such a consensus (Reasons at paras. 24 to 35). Taking into account all the
circumstances, particularly the fact that 48% of eligible voters participated
in the combined second and continuation ratification votes, and that 84% of
those who so voted were in favour of ratification, he concluded that the community
election code had been adopted by a broad consensus of the members of the Kahkewistahaw
First Nation (Reasons at paras. 36 to 39 and 44).
[17]
The
Judge disregarded the appellant’s submissions that the low turn-out rate and
the petition by 340 members of the First Nation challenging the education
requirements of the Kahkewistahaw Election Act demonstrated a lack of
consensus with respect to that election code. He was of the view that the low
turn-out rate could be attributed to voter apathy (Reasons at para. 41), and that
little weight should be given to the petition since some members who had voted
in favour of ratification had also signed the petition (Reasons at para. 43).
[18]
The
Judge further found that the decision of the Electoral Officer to disqualify
the appellant on the ground that he did not meet the education requirement set
out in the Kahkewistahaw Election Act was reasonable in light of the
terms of that election code (Reasons at paras. 45 to 49). He further found that
the Electoral Officer did not, in these circumstances, breach any duty to act
fairly by failing to provide the appellant with an oral hearing prior to
disqualifying him as a candidate (Reasons at paras. 50 to 53).
[19]
Turning
his mind to the appellant’s submissions under the Charter, the Judge
concluded that education requirements are not an analogous ground of
discrimination under section 15 “since they deal with personal attributes
rather than characteristics based on association with a group” (Reasons at
para. 59). He therefore found no infringement to subsection 15(1) of the Charter
(Reasons at para. 61).
Analysis
[20]
To
the exception of the submissions based on subsection 15(1) of the Charter
and on the principle of equality set out in the Kahkewistahaw Election Act itself,
all the other issues raised by the appellant may be dismissed without
difficulty.
[21]
First,
the numerous issues raised by the appellant concerning the lack of a “broad
consensus” with respect to the ratification of the Kahkewistahaw Election
Act should be dismissed on the ground that the appellant did not challenge
the Minister’s decision to revoke the order under subsection 74(1) of the Indian
Act. If the appellant was of the view that this decision was made without
the required community consensus, he should have challenged it at the
appropriate time or, at the very least, he should have included the Minister as
a party to his judicial review proceedings.
[22]
These
reasons should therefore not be understood as an endorsement of the Judge’s
position with respect to the “broad consensus” required to convert from Indian
Act elections to a community election code, which remains a matter to be
decided in an appropriate case. In this case, it was not appropriate to
determine this matter in the absence of the Minister. Indeed, since the
revocation of the subsection 74(1) Indian Act order was not at issue in
the Federal Court, the appellant’s challenge to the validity of the vote
leading to that order and to the adoption of the community election code could have
resulted in a legal vacuum with respect to the election process of the Kahkewistahaw
First Nation, with the attending confusion and disarray which such a vacuum
would entail.
[23]
As
for the alleged lack of a “broad consensus” with respect to the provisions of
the Kahkewistahaw Election Act setting out a Grade 12 education
qualification requirement, I acknowledge that the petition signed by 340
members of the Kahkewistahaw First Nation shows deep divisions on the issue
within the community. Contrary to the Judge, I find no contradiction with the
fact that certain members of the community may have both voted to ratify the
community election code and signed the petition. This simply indicates that
some members may be in favour of the community taking over its own electoral process
while still being opposed to the restrictive eligibility requirement set out in
the code itself.
[24]
That
being said however, the Kahkewistahaw Election Act sets out its own
amendment procedure in section 25. In his application, the appellant is not challenging
the failure of the Membership Committee to call for a new vote on a specific
amendment specifically targeting the impugned educational qualification
requirements. In these circumstances, I need not address the “broad consensus”
issues with respect to the impugned provisions. It suffices to note that these
provisions are incorporated within the community election code as it now
stands, and that they are the object of serious concern and broad dissent
within the membership of the First Nation.
[25]
The
issues raised by the appellant with respect to the duty to act fairly and to the
interpretation of the Kahkewistahaw Election Act by the Electoral
Officer should also be dismissed. Without regard to the constitutional validity
of the impugned provisions, the decision of the Electoral Officer disqualifying
the appellant on the basis of his lack of educational qualifications was correct
in light of the clear wording of the community election code (Simon v.
Samson Cree Nation, 2001 FCT 467, [2002] 1 C.N.L.R. 343 at paras. 39 to 42).
That decision was therefore necessarily reasonable.
[26]
There
was consequently no need to determine the applicable standard of review of the
Electoral Officer’s decision not to certify the appellant’s candidacy, and I
therefore neither endorse nor dispute the Judge’s application of the
reasonableness standard in this case. Moreover, I find no error in the Judge’s
conclusion that, in the circumstances of this case, no duty to hold an oral
hearing was incumbent on the Electoral Officer before disqualifying the
appellant under the clear provisions of the Kahkewistahaw Election Act.
[27]
The
appellant’s submissions under section 3 of the Charter can also be
easily dismissed. That section provides that “[e]very citizen of Canada has the right to vote in an election of members of the House of Commons or of a
legislative assembly and to be qualified for membership therein.” (« Tout citoyen canadien a
le droit de vote et est éligible aux élections législatives fédérales ou
provinciales.»)
[28]
The
Supreme Court of Canada stated in Haig v. Canada, [1993] 2 S.C.R. 995 at
p. 1033, that “[s]ection 3 of the Charter is clear and unambiguous as is
its purpose: it is limited to the elections of provincial and federal
representatives.” The appellant nevertheless submits that section 3 extends to
elections to governance structures of First Nations as these structures should
be deemed as equivalent to “legislative assemblies” taking into account aboriginal
peoples’ inherent right to self-governance. This submission cannot however be
sustained in light of Baier v. Alberta, 2007 SCC 31, [2007] 2 S.C.R. 673
where Rosthstein J., writing for the majority, noted the following, at para.
39:
Voting and candidacy rights are explicitly protected in s. 3 of the Charter
but only in relation to the House of Commons and provincial legislatures.
The intervener Public School Boards’ Association of Alberta submits that school
boards as institutions of local government have constitutional status in the
“conventional or quasi-constitutional sense”. However, it is not for this
Court to create constitutional rights in respect of a third order of government
where the words of the Constitution read in context do not do so.
[29]
Moreover,
should section 3 of the Charter apply to First Nation elections, the
logical result would be that non-aboriginal Canadian citizens would be entitled
to participate in such elections. That result would defeat the very purpose of
aboriginal self-government. I consequently find no merit in the appellant’s submissions
with respect to section 3 of the Charter.
[30]
The appellant
also submits that he has a treaty right to participate in the governance of his
First Nation, but he fails to identify any treaty provision setting out that
right. Moreover, he asserts a similar inherent aboriginal right, but has
submitted no evidence supporting such a right, save some references to vague
statements made in examinations on affidavit. The onus of establishing the
benefit of an aboriginal or treaty right is incumbent on the claimant asserting
the right (R. v. Van der Peet, [1996] 2 S.C.R. 507 at para. 132; R. v.
Sioui [1990] 1 S.C.R. 1025 at pp.1066-1067; R. v. Marshall, [1999] 3
S.C.R. 456 at para. 111). Since the appellant has failed to submit any cogent evidence
on these matters, his submissions based on an alleged aboriginal or treaty
right should also fail.
[31]
This leaves
us with the principal issue raised by this appeal, which is whether the
impugned provisions of the Kahkewistahaw
Election Act
violate the principle of equality set out under subsection 15(1) of the Charter
and reiterated in the community election code itself.
[32]
Subsection
15(1) of the Charter reads as follows:
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.
[33]
This subsection applies the Kahkewistahaw Election
Act adopted
by the Kahkewistahaw First Nation.
[34]
Subsection
32(1) of the Charter provides that it applies “(a) to the Parliament and
government of Canada in respect of all matters within the authority of
Parliament…; and (b) to the legislature and government of each province in
respect of all matters within the authority of the legislature of each
province.” Thus, on
the face of section 32, the Charter applies not only to Parliament, the
provincial legislatures and the federal and provincial governments themselves,
but also to all matters within the authority of those entities (Godbout v.
Longueuil (City), [1997] 3 S.C.R. 844 at para. 48; Greater Vancouver Transportation Authority v. Canadian Federation of Students – British Columbia
Component, 2009 SCC 31, [2009] 2 S.C.R. 295 at paras. 13 to 16).
[35]
Consequently,
the Charter has been found to apply to a university (McKinney
v. University of Guelph, [1990] 3 S.C.R. 229; Harrison v. University of
British Columbia, [1990] 3 S.C.R. 451), to a hospital (Stoffman v. Vancouver
General Hospital, [1990] 3 S.C.R. 483), to a college (Douglas/Kwantlen
Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; Lavigne v.
Ontario Public Service Employees Union, [1991] 2 S.C.R. 211), to a transit
authority (Greater Vancouver Transportation Authority v. Canadian Federation
of Students – British Columbia Component, above), etc. Moreover, the Charter
even applies to a private entity in respect of certain inherent government
actions, such as when implementing specific government policies or programs (Eldridge
v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at paras. 41 to
44).
[36]
In this case,
the Council of the Kahkewistahaw First Nation (formed of an elected Chief and
councillors) is clearly a sui generis government entity which exercises
government authority within the sphere of federal jurisdiction under the Indian
Act and other federal legislation. Pursuant to ss. 18(2), ss. 20(1), ss. 28(2),
para. 57(a), ss. 58(1), and para. 58(4)(b) of the Indian Act,
the Council plays a key role in the management of reserve land. Pursuant to ss.
52.1(1), s. 59, ss. 64(1), ss. 66(1), and par. 73(1)(m) of the Indian
Act, it also plays a key role in the management of band assets and band
monies. The Council also holds extensive by-law making powers under ss. 81(1), ss.
83(1)(2), and ss. 85.1(1) of the Indian Act. Moreover, the Council is
entrusted with the management of numerous federal government programs destined
to Indian members of the First Nation. It consequently largely acts as a
government under federal legislation and in matters within the authority of
Parliament.
[37]
Moreover, there
can be no doubt that the election process through which the Council members are
elected under sections 74 to 79 of the Indian Act is subject to Charter
scrutiny, including scrutiny under section 15 (Corbiere v. Canada
(Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 (“Corbiere”)).
The fact that the Minister has taken measures to revoke the order under
subsection 74(1) of the Indian Act so as to allow the First Nation to
determine itself its election code does not result in the repudiation of Charter
scrutiny. Indeed, a government should not be able to shirk its Charter obligations
by simply conferring its powers to another entity: Eldridge v. British Columbia (Attorney General), above, at para. 42; Godbout v. Longueil, above, at para. 48. As a result, the application of Corbiere (and of subsection
15(1) of the Charter) cannot be avoided through the adoption by a
First Nation of a community election code pursuant to the revocation of an
order under subsection 74(1) of the Indian Act.
[38]
As noted
above, many government actions affecting the lives of aboriginal peoples living
on reserve result from decisions of the band Councils acting under the Indian
Act, under other federal legislation or pursuant to government programs. As
citizens of Canada, aboriginal peoples are as much entitled to the
protections and benefits of the rights and freedoms set out in the Charter
as all other citizens. This includes protection for aboriginal peoples from
violations to these rights and freedoms by their own governments acting
pursuant to federal legislation and in matters falling in the sphere of federal
jurisdiction.
[39]
Moreover, the
rights and freedoms set out in the Charter would be ineffectual if the Council
members could be selected in a manner contrary to the Charter. I have no
doubt that if a First Nation adopted a community election code restricting
eligibility to public office to the male members of the community, such a code
would be struck down pursuant to section 15 of the Charter. To decide
otherwise would be to create a jurisdictional ghetto in which aboriginal
peoples would be entitled to lesser fundamental constitutional rights and
freedoms than those available to and recognized for all other Canadian
citizens.
[40]
I recognize
that the protections of the civil and political rights set out in the
Constitution of the United States of America do not fully extend to Indian
Tribes in the USA. The US Congress has nevertheless attempted to fill the void
with human rights legislation specifically targeting Indian Tribes, notably the
Indian Civil Rights Act of 1968, but with limited success (Santa
Clara Pueblo v. Martinez, 439 U.S. 49 (1978)). This situation largely results
from the legal position of Indian Tribes in the USA, which have been
historically considered as being outside of the scope of the US Constitution. I
consider this American approach to be inapplicable to Canada. Contrary to the United States, Canadian aboriginal citizens should not and cannot be
allotted lesser fundamental constitutional rights and freedoms than other
Canadian citizens.
[41]
In the case
of Canada, First Nations are specifically included in the Constitution
pursuant, notably, to sections 25 and 35 of the Constitution Act, 1982.
Moreover, under the historic treaties between the Crown and First Nations,
including Treaty No. 4, the aboriginal signatories have recognized the Crown,
which in return has acknowledged them as its subjects, without any restriction
as to the rights and freedoms that subjects of the Crown may enjoy.
[42]
Of course,
the guarantee in the Charter of certain fundamental rights and freedoms
cannot 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 (section 25 of the Charter). However, no aboriginal, treaty or other rights
have been raised in these proceedings as a bar to the appellant’s challenge to
the provisions of the Kahkewistahaw
Election Act
on the basis of subsection
15(1) of the Charter.
On the contrary, the preamble of this community election code sets out
important fundamental principles under which the First Nation will govern
itself, including notably the principle of equality:
The
history and foundation of First Nations is rooted in the belief that they know
who they are and why they were put on Mother Earth. It is therefore
essential and beneficial for the membership of the Kahkewistahaw First Nation
to adhere to and comply with the following principles:
…
5.
We believe and accept the fact that democracy is founded on the principle that every
one is equal and that no one is above the law.
6.
We also accept the fact that democracy allows for majority rule with minority
rights preserved.
[Emphasis added]
[43]
The Judge was
of the view that since the impugned provisions of the Kahkewistahaw Election
Act
distinguished on the basis of education, there was no discrimination under subsection
15(1) of the Charter, as the distinction was made “on the basis of merit
and capacities” (Reasons at para. 59). However, his analysis was incomplete.
[44]
In R. v. Kapp,
2008 SCC 41, [2008] 2 S.C.R. 483 the Supreme Court of Canada reworked the
three-stage analytical framework which had been derived from Law v. Canada
(Minister of Employment and Immigration, [1999] 1 S.C.R. 497 (“Law”)
into a two-part test for showing discrimination under subsection 15(1) of the Charter.
Where a violation of subsection 15(1) is alleged, a court must ask the
following questions: “(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?” (R. v. Kapp, above, at para.
17; Quebec (Attorney General) v. A, 2013 SCC 5 at para. 162).
[45]
An education
requirement may not be per se a personal characteristic which is
immutable, like race, or constructively immutable, like religion. However, as the
analysis below shows, even if education was excluded as an analogous ground of
discrimination, the education requirement at issue nonetheless creates a
distinction resulting in discrimination on the enumerated ground of age, which
the appellant has specifically raised, and with the analogous ground of
Aboriginality-residence recognized in Corbiere.
[46]
An
educational requirement may in certain circumstances be a disguised way of
discriminating (voluntarily or involuntarily) on the basis of an enumerated
ground, such as age, or an analogous ground, such as Aboriginality-residence. Where
an educational requirement has the effect of excluding persons on the basis of
their age or their Aboriginality-residence, and where there is no appropriate
justification for such a requirement, a court may conclude that the requirement
is discriminatory.
[47]
Indeed, our
law has established that even a well-intended or facially neutral scheme can
have the effect of discriminating. As recently reiterated by LeBel J. in Quebec (Attorney General) v.
A,
above, at para. 171,
“[s]ection 15 applies not only to laws enacted with discriminatory intent, but
also, even if there is no such intent, to laws with discriminatory effects.”
Moreover, as noted in Withler v. Canada (Attorney General), 2011 SCC 12,
[2011] 1 S.C.R. 396 at para. 64, a claimant may show that a law creates a
distinction indirectly where, “although the law purports to treat everyone the
same, it has a disproportionately negative impact on a group or individual that
can be identified by factors relating to enumerated or analogous grounds”.
[48]
In this case,
the impugned provisions of the Kahkewistahaw Election Act create a distinction
that discriminates on the basis of both age and of Aboriginality-residence. The
education gap within the on-reserve aboriginal population of Canada is well documented and is specifically referred to by the appellant in the material
submitted in support of his application. Moreover, the education gap between
older and younger Canadians is also well-known. As noted in the Appellant’s
Affidavit at para. 14, “[t]he analysis of Statistics Canada data contained in
this paper from the 2006 census shows that in Saskatchewan, only 39% of First
Nations persons living on reserve have graduated from high school. The
percentage is higher for persons who are older.” The evidence submitted by the
appellant notably sets out that “[a]s with non-Aboriginals, younger Aboriginals
(under 45) have higher education levels than older ones (age 45 and older)” (John
Richards, “Closing the Aboriginal non-Aboriginal Education Gaps” C.D. Howe
Institute, Backgrounder 116, at p. 6, AB at p. 173.)
[49]
This evidence
is confirmed by readily available census information.
[50]
The Supreme
Court of Canada has taken judicial notice of census information in numerous
cases involving the Charter. In R. v. Edwards Books and Art Ltd.,
[1986] 2 S.C.R. 713 at para. 198, La Forest J., writing in a concurrent opinion
with respect to the Charter, took judicial notice of Census
figures pertaining to the percentage of Canadians who are Moslem and whose day
of worship is Friday. La Forest J. noted at paras. 195-196 that in
constitutional cases involving the Charter, a court is permitted, where
it deems it expedient, to take judicial notice of broad social and economic
facts and to take the necessary steps to inform itself about them, and he
provided a long list of cases where this had been done. In M. v. H.,
[1999] 2 S.C.R. 3 at para. 353, Batarache J., writing in concurring reasons in
another Charter case, took judicial notice of 1996 Census figures
pertaining to the growing trend of the percentage of Canadian children who’s
parents were in common law relationships over those children who’s parents were
married.
[51]
More
recently, in Quebec (Attorney General) v. A, above, at paras. 125
and 249, LeBel J. referred to the present day proportion of couples in de
facto unions by taking judicial notice of figures from the 2011 Census
released after the trial and appeal decisions in that case and thus not part of
the evidentiary record of those hearings. LeBel J. explained at paras. 237 to
239 of his reasons that in appropriate circumstances a court may take judicial
notice of certain facts that are not the subject of reasonable dispute. In this
matter, he relied on the principles set out in R. v. Find, 2001 SCC 32,
[2001] 1 S.C.R. 863 at para. 48 (and reiterated in R v. Spence, 2005 SCC
71, [2005] 3 S.C.R. 458 at para. 53) that a Court may take judicial notice of
facts that are (1) either so notorious or generally accepted as not to be the
subject of debate among reasonable persons, or (2) capable of immediate and
accurate demonstration by resort to readily accessible sources of indisputable
accuracy.
[52]
According to
data from the 2006 census, 15% of Canadians between the age of 25 and 64 had
less than a high school education. However, this number increases considerably
with age, ranging from 11% for 25-34 year olds to 23% for 55-64 year olds:
Statistics Canada, Educational Portrait of Canada, 2006 Census (Ottawa:
Minister of Industry 2008) at p. 10 (Catalogue number 97-560). Moreover, a
higher percentage of First Nations and registered Indians report achieving
considerably less high school education, and the percentage varies
significantly depending on residency on reserve. Thus, according to the 2006
Census, 50% of Registered Indians aged 25 to 64 living on reserve report
achieving less than high school education, while the percentage drops to 31%
for Registered Indians living off reserve: Ibid. at p. 23. These facts
are indisputable, confirm the appellant’s evidence and support his submissions.
[53]
The impugned
provisions of the Kahkewistahaw
Election Act
requiring a Grade 12 education consequently disenfranchise a very large segment
of the electors of the Kahkewistahaw First Nation from elected public office
within the First Nation. Moreover, a disproportionate number of elders and
on-reserve residents are affected by this disenfranchisement.
[54]
A law will be
found to be discriminatory if it “has the effect of perpetuating or promoting
the view that the individual is less capable, or less worthy of recognition or
value as a human being or as a member of Canadian society” (Law at para.
51). Discrimination
is to be viewed though the lens of two concepts: (1) the perpetuation of
prejudice or disadvantage to members of a group on the basis of personal
characteristics identified in the enumerated or analogous grounds; and (2)
stereotyping on the basis of these grounds that results in a distinction that
does not correspond to a claimant’s or group’s actual circumstances and
characteristics (Withler at para. 32.)
[55]
As already
mentioned, the devaluating of individuals need not be intentional to be
considered an infringement of subsection 15(1) of the Charter. Laws may
be adopted that unintentionally convey a negative social image of certain
members of society. Moreover, laws that are apparently neutral because they do
not draw obvious distinctions may also treat individuals like second-class
citizens whose aspirations are not equally deserving of consideration (Quebec
(Attorney General) v. A, above at para. 198).
[56]
The
distinction made under the impugned provisions of the Kahkewistahaw Election
Act, though said to be neutral, is in fact a distinction which has the
effect of targeting segments of the membership of the First Nation on the basis
of age and of Aboriginality-residence. The impugned provisions of the Kahkewistahaw
Election Act substantially affect the human dignity and self-worth of the
affected individuals and perpetuate prejudice or stereotyping towards those
members of the community who are elders or who reside on the reserve and who
have not had the same opportunities and advantages with respect to education
attainment. The impugned provisions create a distinction that is discriminatory
as it impacts adversely on the older members of the community and on those
members residing on the reserve.
[57]
The
distinction made in the Kahkewistahaw Election Act restricts access to
the elected Council, a fundamental social and political institution of the
First Nation, and impedes full political membership in the community itself for
many elders and residents of the reserve. As such, it perpetuates prejudice
against these persons and attacks their sense of self-worth.
[58]
Moreover,
the distinction also perpetuates stereotyping that does not correspond to the
actual abilities of the disenfranchised to be elected and to occupy public
office. The elected positions of Chief and councillor are public offices in a government.
These are not civil service positions for which bona fides education
requirements may be justifiable. These are elected public offices.
Elections to public offices allow the electors to select the individuals they
consider best suited to represent their political interests. Such an election
is not a job competition to select whom is the best educated, but rather a political
selection as to whom the electors deem most suitable and able to
represent and lead them.
[59]
To be
denied access to the opportunity to be elected to public office on the basis of
the false view that because elders are not sufficiently “educated” and are
consequently less worthy or less capable of taking up the duties of these elected
offices can scarcely fail to be experienced as demeaning because it is
demeaning. Elders who may have a wealth of traditional knowledge, wisdom and
practical experience, are excluded from public office simply because they have
no “formal” (i.e. Euro-Canadian) education credentials. Such a practice is
founded on a stereotypical view of elders.
[60]
The
respondents however submit that the distinction based on education set out in
the impugned provisions of the Kahkewistahaw Election Act has an ameliorative
purpose in that it seeks to address the lack of education achievement among
aboriginal peoples by encouraging them to complete their secondary education. The
respondents thus raise a justification defence based on section 1 of the Charter,
which allows for reasonable limits on the rights and freedoms set out in the Charter
“as can be demonstrably justified in a free and democratic society.” I am
not persuaded by these submissions.
[61]
The analysis used for the purpose of section 1
of the Charter is the one first set out in the well known case of R.
v. Oakes, [1986] 1 S.C.R. 103. This analysis has been summarized as
follows in Health Services and Support – Facilities Subsector Bargaining
Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391 at
paras. 138-139:
The
analysis for assessing whether or not a law violating the Charter can be
saved as a reasonable limit under s. 1 is set out in Oakes. A
limit on Charter rights must be prescribed by law to be saved under s.
1. Once it is determined that the limit is prescribed by law, then there
are four components to the Oakes test for establishing that the limit is
reasonably justifiable in a free and democratic society (Oakes, at
pp. 138-40). First, the objective of the law must be pressing and
substantial. Second, there must be a rational connection between the
pressing and substantial objective and the means chosen by the law to achieve
the objective. Third, the impugned law must be minimally impairing.
Finally, there must be proportionality between the objective and the measures
adopted by the law, and more specifically, between the salutary and deleterious
effects of the law (Oakes, at p. 140; Dagenais v. Canadian Broadcasting
Corp., [1994] 3 S.C.R. 835, at p. 889).
The
s. 1 analysis focuses on the particular context of the law at issue.
Contextual factors to be considered include the nature of the harm addressed,
the vulnerability of the group protected, ameliorative measures considered to
address the harm, and the nature and importance of the infringed activity: Thomson
Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877,
and Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827, 2004 SCC
33. This said, the basic template of Oakes remains applicable, and
each of the elements required by that test must be satisfied. The
government bears the onus of establishing each of the elements of the Oakes
test and hence of showing that a law is a reasonable limit on Charter
rights on a balance of probabilities (see Oakes, at pp. 136-37).
[62]
The
encouragement of educational achievement by aboriginal peoples may be viewed as
a pressing and substantial objective. However, there can be no rational
connection between that objective and the disenfranchisement of a large part of
the community from elected public office, nor can such a measure be viewed as a
proportionate response. Logic, reason and common sense dictate that
disqualifying many elders from public office as an “example” as to why
education is important is simply an eccentric proposition and a
disproportionate measure which has no cogent or balanced connection with the
alleged objective of improving education attainment.
[63]
The
respondents’ submission that minimum impairment has been achieved since the
appellant has not been denied an opportunity to achieve Grade 12 certification is
also without merit. Though some evidence was tendered to show that there are
some education facilities and services in the community, no evidence was
submitted to show that these facilities and services would accept a 74 year old
or be capable of addressing the needs of an elderly residential school
survivor. Moreover, I consider it inappropriate and unreasonable to require a
74 year old elder of the community (who was elected as Chief for 27 years) to
seek “educational upgrading” in order to run in an election for public office
within his community.
[64]
I
therefore conclude that the impugned provisions of the Kahkewistahaw
Election Act violate subsection 15(1) of the Charter. I also
conclude, for the same reasons, that the impugned provisions also violate the
principle of equality set out in the Kahkewistahaw Election Act itself.
[65]
The appellant
also seeks that the first elections held under the Kahkewistahaw Election Act be set aside, and that
new elections be held for the offices of the Chief and the councillors. Contrary
to the situation with respect to the election for the office of Chief, no
evidence has been submitted which shows that a candidate for the position of
councillor was rejected on the ground set out in the impugned provisions of the
Kahkewistahaw Election Act. In these circumstances, I would not order
that new elections be held for the positions of the councillors. However, since
the appellant was precluded from running for the office of Chief on a ground
which has been found to be discriminatory, I would order that new elections for
that position be held forthwith.
Conclusions
[66]
I would consequently
allow the appeal, set aside the judgment of the Federal Court, and giving the
judgment which the Federal Court ought to have given, I would:
(a) declare that the following
provisions violate subsection 15(1) of the Charter:
(i)
paragraph 9.03(c) of the
Kahkewistahaw Election Act providing that a candidate must
have attained a minimum education level of Grade 12 or an equivalent or higher
level of education in order to be eligible for an election to the office of
Chief or the office of councillor
of the Kahkewistahaw First Nation; and
(ii) paragraph 10.01(d) of the Kahkewistahaw
Election Act providing that in order to be accepted as a candidate in an
election to the office of Chief or the office of councillor of the
Kahkewistahaw First Nation a person must provide to the Electoral Officer a
copy of a certificate evidencing that the person has attained a minimum
education level of Grade 12 or an equivalent or higher level of education;
(b) declare that said paragraphs
9.03(c) and 10.01(d) violate the principles set out in the Kahkewistahaw Election
Act,
including more particularly the principle of equality there enunciated;
(c) annul, invalidate and void
said paragraphs 9.03(c) and 10.01(d) of the Kahkewistahaw Election Act;
(d) order that new elections for
the remainder of the term of the position of Chief of the Kahkewistahaw First
Nation be organized forthwith, such election to be held on a date determined by
the Membership Committee of the Kahkewistahaw First Nation, but not less than
forty-five (45) days, nor more that sixty (60) days after the date of this
Court’s judgment. Such election shall be held in accordance with the Kahkewistahaw
Election Act (to the exclusion of paragraphs 9.03(c) and 10.01(d) thereof), but subject to the
timelines set out therein being compressed accordingly by the Membership
Committee.
[67]
The appellant
should be entitled to his costs in this Court and in the Federal Court.
"Robert M. Mainville"
"I
agree
Pierre Blais C.J. "
"I
agree
D.G. Near J.A. "
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