Date: 20080515
Docket: A-434-07
Citation: 2008 FCA 182
CORAM: LINDEN J.A.
NOËL
J.A.
RYER
J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant
and
EUGENE ESQUEGA, BRIAN KING,
GWENDOLINE KING,
HUGH KING SR., RITA KING, WAYNE KING,
LAWRENCE SHONIAS AND OWEN BARRY
Respondents
Heard at Toronto, Ontario, on May 8, 2008.
Judgment delivered at Ottawa,
Ontario, on May 15, 2008.
REASONS FOR JUDGMENT BY: LINDEN J.A.
CONCURRED
IN BY: NOËL
J.A.
RYER
J.A.
Date: 20080515
Docket: A-434-07
Citation: 2008 FCA 182
CORAM: LINDEN J.A.
NOËL
J.A.
RYER
J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant
and
EUGENE ESQUEGA, BRIAN KING, GWENDOLINE
KING,
HUGH KING SR., RITA KING, WAYNE KING,
LAWRENCE SHONIAS AND OWEN BARRY
Respondents
REASONS FOR JUDGMENT
LINDEN J.A.
[1]
This is
another appeal that raises the matter of the political rights of non-resident
members of Indian Bands following the decision of Corbiere v. Canada (Minister of Indian and
Northern Affairs), [1999]
2 S.C.R. 203.
[2]
The issue
involved in this litigation was whether non-resident members of the Gull Bay
First Nation could be nominated for the Office of Councillor of the Band,
despite an apparent bar contained in subsection 75(1) of the Indian Act, R.S.C.
1985, c. I-5. This provision provides as follows:
|
ELECTIONS OF CHIEFS AND BAND COUNCILLORS:
Eligibility:
75.
(1) No person other than an elector who resides in an electoral section may
be nominated for the office of councillor to represent that section on the
council of the band.
|
ÉLECTION DES CHEFS ET DES CONSEILS DE BANDE :
Éligibilité:
75. (1) Seul un électeur résidant dans une section
électorale peut être présenté au poste de conseiller pour représenter cette
section au conseil de la bande.
|
[3]
The Applications
Judge held that this restriction was unconstitutional as it violated 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 (U.K.), 1982 c. 11. In this Court, the appellant
does not appeal from the merits of that decision, rather this appeal stems from
the nature of constitutional remedy imposed on the parties on the basis that it
is overly broad.
[4]
Counsel
for the appellant contends that the remedy employed by the Applications Judge, striking
down subsection 75(1) in its entirety, was more extensive than necessary.
According to counsel for the appellant, reading down the affected parts of this
provision would be more appropriate. The remedy which he suggests is as
follows:
Subsection 75(1) of the Indian
Act violates section 15 of the Charter and is not justified by section 1 of
the Charter and is therefore invalid to the extent that it prohibits electors
who do not reside on the reserve from being nominated for the office of
councillor.
[5]
Counsel
for the respondents argue that the remedy employed by the Applications Judge
should be affirmed as it would cause less confusion than that proposed by the
appellant and would encourage Parliament to undertake a legislative remedy
which would ultimately be more thorough and transparent. Concern about raising
the remedy issue on appeal was also expressed, but that is not seen by this
Court as an impediment (Athey v. Leonati, [1996] 3 S.C.R. 458).
[6]
In my view,
the constitutional remedy ordered by the Applications Judge was unnecessarily
broad. As his reasons do not indicate that the more limited and restrained
remedy of reading down was considered, I am disinclined to afford him deference
on the issue of remedy. The striking down of subsection 75(1) would remove the
requirement that each candidate be an “elector”, as defined by section 2. As a
result, it enables individuals under 18 years of age, non-members of the Band
and other disqualified persons to be nominated for office. In my view, such potential
problems cannot go unaddressed by this Court.
[7]
Counsel
for the respondents argued that the adoption of the reading down remedy could
lead to further adverse consequences where a Band has more than one “electoral
section”, since there could be some confusion as to whom the non-resident Band
councillors are elected to represent. However, we are told that such an effect
would be limited to only two Bands, and even then, we are further informed by
counsel for the Respondents that there is a convenient procedural method for
these two Bands to adjust their electoral system accordingly. In my view, the alleged
confusion with regard to reading down the affected parts of the provision would
be far less than the potential problems caused by the remedy ordered by the Applications
Judge.
[8]
I
therefore hold that the reading down remedy should be utilized here. Professor
Peter Hogg in his book Constitutional Law of Canada, has described the
remedy as follows:
[Reading down] is a technique of judicial
amendment, altering the statute to make it conform to the Constitution… Reading
down… involves giving a statute a narrow interpretation in order to avoid a
constitutional problem that would arise if the statute were given a broad
interpretation (Peter W. Hogg, Constitutional Law of Canada, 4th ed.,
looseleaf (Toronto: Carswell, 1997).
[9]
I further
note that this remedy has been employed in several analogous situations (see R.
v. Grant, [1993] 3 S.C.R. 223 at page 262; Little Sisters Book and
Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120 at
paragraph 159; Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3 at paragraph 67). In
this instance, this technique is preferable as it would allow non-residents to
be nominated for office as mandated by the Charter, but it would also maintain
the definition of “electors” that is important for the operation of the system.
I should note that in reaching this decision, the alternative remedy of
severance was also considered, but the Court is of the view that the adoption
of that option would result in other potential difficulties as well.
[10]
That being
the case, I am of the view that the judgment of the Applications Judge should
be set aside and replaced by a judgment incorporating the language proposed by
counsel for the appellant as outlined in paragraph 5 above.
[11]
As for a
stay in this appeal, counsel for the appellant seeks some time to allow
information, consultation and adjustments to be organized, preferably nine
months, although he did indicate that a two month stay would be acceptable.
Counsel for the respondents insisted for a two month stay as a maximum, so as
to allow for the preliminary steps for the next election scheduled in November 2008
to be taken in light of the provision being read down. In my view, a stay of
two months will ensure that the rights of these individuals are effectuated fully
prior to their next election, while at the same time providing other Bands with
a reasonable amount of time to make the necessary adjustments for their own
elections which are either already in process or about to begin.
[12]
In
summary, the Court will order that:
1) The appeal should
be allowed;
2) The judgment
of the Applications Judge should be set aside to be replaced by the following:
Subsection 75(1) of the Indian
Act violates section 15 of the Charter and is not justified by section 1 of
the Charter and is therefore invalid to the extent that it prohibits electors
who do not reside on the reserve from being nominated for the office of
councillor.
3) The operation
of this judgment should be stayed for two months from the date of this
judgment.
4) The appellant
will have the costs of the appeal.
"A.M.
Linden"
"I
agree
Marc Noël J.A."
"I
agree
C. Michael Ryer J.A."
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