Date:
20130712
Docket:
T-1804-10
Citation:
2013 FC 787
Ottawa, Ontario,
July 12, 2013
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
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ANGEL SUE LARKMAN
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Applicant
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and
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THE ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application challenging the validity of Order in Council P.C. 4582, dated
on December 4, 1952, enfranchising Laura Flood.
[2]
The
applicant seeks an order setting aside the Order in Council. Both parties seek
costs on a partial indemnity basis.
Background
[3]
The
applicant’s grandmother, Laura Flood (née Batisse), was enfranchised by Order in
Council P.C. 4582, made on December 4, 1952. At that time, enfranchisement was
done pursuant to the Indian Act, SC 1951, c 29 (the 1951 Act).
[4]
I
will begin by repeating the Court of Appeal’s description of Canada’s
enfranchisement policy, from its ruling on a previous matter in this proceeding
in Canada (Attorney General) v Larkman, 2012 FCA 204, [2012] FCJ
No 880 (the FCA decision):
10
“Enfranchisement” is a euphemism for one of the most oppressive policies
adopted by the Canadian government in its history of dealings with Aboriginal
peoples: Report of the Royal Commission on Aboriginal Peoples: Looking
Forward, Looking Backward, vol. 1 (Ottawa: Canada Communication Group
Publishing, 1996) at page 271.
11
Beginning in 1857 and evolving into different forms until 1985,
“enfranchisement” was aimed at assimilating Aboriginal peoples and eradicating
their culture or, in the words of the 1857 Act, encouraging “the progress of
[c]ivilization” among Aboriginal peoples: An Act to Encourage the Gradual
Civilization of Indian Tribes in the Province and the Amend the Laws Respecting
Indians, S. Prov. C. 1857, 20 Vict., c. 26 (initial law); An Act
to Amend the Indian Act, S.C. 1985, c. 27 (the abolition).
12
Under one form of “enfranchisement” – the form at issue in this case –
Aboriginal peoples received Canadian citizenship and the right to hold land in
fee simple. In return, they had to renounce – on behalf of themselves and all
their descendants, living and future – their legal recognition as an “Indian,”
their tax exemption, their membership in their Aboriginal community, their
right to reside in that community, and their right to vote for their leaders in
that community.
13
The Supreme Court has noted the disadvantage, stereotyping, prejudice and
discrimination associated with “enfranchisement”: Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203. With deep
reluctance or at high personal cost, and sometimes under compulsion, many spent
decades cut off from communities to which they had a deep cultural and
spiritual bond.
14
On April 17, 1985, the day on which the equality provisions of the Canadian
Charter of Rights and Freedoms came into force, amendments to the Indian
Act also came into force, doing away with the last vestiges of
“enfranchisement” and permitting those who lost Indian registration through
“enfranchisement” to register and regain registration: An Act to Amend the
Indian Act, supra. However, under these amendments, only some of the
descendants of those who were “enfranchised” could be added to the Indian
Register. In other words, only some were able to regain their recognition as an
“Indian” and their membership in their Aboriginal community.
[5]
Laura
Flood was born on March 1, 1926, in Matachewan, Ontario. She was registered as
an Indian under the Act and was a member of the Matachewan First Nation. The
applicant says that in 1952, Laura Flood was unable to read or write, only able
to write her first and last name.
[6]
On
July 14, 1952, the Indian Agent for Sturgeon Falls received a typed letter
allegedly from Laura Flood, requesting the necessary papers to release her from
her Treaty. According to the applicant, Laura Flood did not prepare the letter
or request that the letter be prepared on her behalf.
[7]
The
Indian Agent wrote to Laura Flood requesting that she supply the Department of
Citizenship and Immigration with several pieces of information, including her
length of residence away from the reserve, a list of property owned on the
reserve, her present means of livelihood and annual income.
[8]
Answers
to these questions were supplied in handwritten letter. According to the
applicant, one of the answers is erroneous, as Laura Flood left the reserve
when she was 19 years old, not 13. She left the reserve in 1945 because an
Indian Agent had told her family that if they did not move, the children would
be put into a residential school. The Treaty Pay-List for the reserve from 1938
to 1954 provides circumstantial evidence of the timing of the family leaving.
[9]
On
July 28, 1952, the Indian Agent wrote the Department of Citizenship and
Immigration requesting the application forms for enfranchisement. The letter
indicated Laura Flood had lived away from the reserve since the age of 13
years.
[10]
On
August 16, 1952, a typed letter also alleged to be from Laura Flood, was sent
to the Indian Agent requesting to be informed when he received the requested
information. According to the applicant, Laura Flood did not prepare this
letter nor did she instruct anyone else to write the letter on her behalf.
[11]
On
October 10, 1952, Laura Flood signed an application for enfranchisement at the
request of the Chief of Matachewan First Nation and the Indian Agent. According
to the applicant, she did not know what she was signing and had she known she
was giving up her Indian status, she would not have signed it. The applicant
also points to factual errors in the application.
[12]
On
October 18, 1952, the Indian Agent sent a letter to Laura Flood acknowledging
receipt of the application and indicating she would not receive any timber
royalty if enfranchised.
[13]
On
October 31, 1952, a typed letter, allegedly from Laura Flood, was sent to the
Indian Agent requesting that her application be sent to the Department despite
the loss of timber royalty. According to the applicant, Laura Flood did not
prepare or request that this letter be prepared on her behalf or know what a
timber royalty was.
[14]
On
November 5, 1952, the Indian Agent forwarded the application to the Department.
[15]
The
Order in Council was passed on December 4, 1952. Laura Flood’s signature
appears on an enfranchisement card but the applicant argues she did not know
she was signing a document that would strip her of her Indian status.
[16]
At
the time, upon enfranchisement, a person was entitled to a per capita share of
the capital and revenue monies held on behalf of the Band and an amount equal
to the amount they would have received during the next 20 years under any
treaty in existence at the time if they had continued to be a member of the
Band. The Minister calculated that Laura Flood was entitled to $82.23.
According to the applicant, Laura Flood never received it, although she did
receive $500 from the Chief for compensation for “stumpage” that was occurring
on the First Nation’s land at the time.
[17]
A
letter from the Indian Agent, purporting to send Laura Flood a cheque in the
amount of $82.23 and an enfranchisement card is dated December 22, 1952 and is
unexecuted. According to the applicant, it is clear that the enfranchisement
card could not travel from Sturgeon Falls to Matachewan on the same day, so the
certificate was sent prior to December 22, 1952 and the unexecuted letter is
not accurate.
[18]
As
a result of enfranchisement, Laura Flood lost her interest in reserve land and
all legislative benefits that flow to Indians.
[19]
Laura
Flood regained her Indian status pursuant to the passage of An Act to Amend
the Indian Act, SC 1985, c 27 (the 1985 Act). While three of her children
were born before the Order in Council and therefore entitled to register as
Indians under subsection 6(1) of the 1985 Act since they had a parent of Indian
status at the time of their birth, her daughter, Dorothy Flood was born after
the enfranchisement and therefore subject to subsection 6(2). Had Laura Flood
not been enfranchised, Dorothy Flood would have been registered under subsection
6(1) like her siblings.
[20]
As
a result of Dorothy Flood being registered under section 6(2), the applicant,
her daughter, has been denied registration as an Indian. The applicant is a
member of the Matachewan First Nation but not entitled to vote in Council
elections or live on the reserve due to this lack of status. She was not
entitled to receive funding for post-secondary education.
Previous Legal Proceedings
The Application for Registration
[21]
On
August 20, 1986, the applicant’s mother, Dorothy Flood, applied to be added to
the Indian Register, including the applicant’s information in her application.
[22]
In
a letter dated February 3, 1988, the Registrar advised Dorothy Flood that she
was registered under subsection 6(2) of the 1985 Act, but that the applicant
was not entitled to be registered.
[23]
On
April 7, 1995, the applicant submitted an application for registration. In a
letter dated September 13, 1995, the Registrar indicated there was no basis to
revisit the earlier decision of February 3, 1988.
[24]
On
November 26, 1996, the applicant requested that the Registrar review the
validity of Laura Flood’s enfranchisement. The Acting Registrar indicated in a
letter dated August 18, 1997, that the enfranchisement had been found to be
valid.
[25]
The
applicant submitted a notice of protest against the decision of August 17,
1998. The Registrar upheld the decision of the Acting Registrar on July 21,
2000. The applicant requested an oral hearing pursuant to subsection 14.2(6) of
the 1985 Act on November 13, 2000. The Registrar refused this request on July
8, 2004.
Proceedings in the Ontario Courts
[26]
The
applicant, along with Laura Flood, initiated a statutory appeal of the July 21,
2000, decision in the Ontario Superior Court of Justice pursuant to subsection
14.3(4) of the 1985 Act.
[27]
Madame
Justice Maureen Forestell of that Court held on March 5, 2008 that the
applicant was entitled to be registered (see Etches v Canada (Department of Indian Affairs and Northern Development (Registrar), 89 OR (3d) 599,
[2008] OJ No 859 (the OSCJ decision)).
[28]
On
appeal, the Court of Appeal for Ontario held on February 27, 2009, that the Registrar
was bound by the Order in Council and only the Federal Court has jurisdiction
to review the lawfulness of an Order in Council (see Etches v Canada (Registrar,
Department of Indian Affairs and Northern Development), 2009 ONCA 182 (the
ONCA decision)).
[29]
Leave
was denied by the Supreme Court of Canada (see Etches v Canada (Department of Indian Affairs and Northern Development), [2009] SCCA No 182).
Proceedings in the Federal Courts
[30]
On
September 10, 2010, the applicant brought a motion pursuant to Rule 369 of the Federal
Court Rules, requesting an order for an extension of time to file a notice
of application for judicial review, given that the 30 day time limit specified
in subsection 18.1(2) of the Federal Courts Act was long expired.
[31]
On
October 18, 2010, Mr. Justice Roger Hughes granted the motion without reasons
and provided the applicant with 15 days to file. The respondent appealed that
order. The applicant filed her notice of application on November 1, 2010.
[32]
On
July 4, 2012, the Federal Court of Appeal upheld the order granting the
extension in the FCA decision, above.
The Order in Council
[33]
The
text of the Order in Council reads:
AT
THE GOVERNMENT HOUSE AT OTTAWA
THURSDAY,
the 4th day of DECEMBER, 1952.
PRESENT:
HIS
EXCELLENCY
THE
GOVERNOR GENERAL IN COUNCIL
WHEREAS
the Minister of Citizenship and Immigration reports that the Indians whose
names are included in Schedule A hereto have applied for enfranchisement and
that in his opinion the said applicants
(a) are
of the full age of twenty-one years;
(b) are
capable of assuming the duties and responsibilities
of citizenship; and
(c) when
enfranchised, will be capable of supporting themselves
and their dependents;
AND
WHEREAS the Minister reports further that the Indian women whose names are
included in Schedule B hereto married persons who were not Indians on the
respective dates specified therein;
THEREFORE
His Excellency the Governor General in Council, on the recommendation of the
Minister of Citizenship and Immigration, and by virtue of the powers conferred
by The Indian Act, is pleased to declare the Indians named in Schedule A
hereto, together with the wives and minor unmarried children named in the said
Schedule, enfranchised, and they are hereby enfranchised, accordingly.
His
Excellency in Council, under and by virtue of the power conferred by subsection
two of section 108 of The Indian Act, is pleased to declare enfranchised, as of
their respective dates of marriage, the Indian women together with their minor
unmarried children named in Schedule B hereto, and they are hereby enfranchised
accordingly.
[34]
Laura
Flood’s name is listed in Schedule A.
[35]
Unlike
in most judicial reviews, there is no certified tribunal record indicating what
evidence was before the Governor in Council in deciding to issue the Order in Council,
as the only document retained a half century later is the Order in Council itself.
As described below, this leads to considerable difficulty in analyzing the
legitimacy of the Order in Council. The respondent argues the correspondence
between the Indian Agent and Laura Flood, as summarized above, can be assumed
to have been relevant for consideration.
Issues
[36]
The
applicant’s memorandum raises the following issue:
1. Is the Order in Council
that purports to enfranchise Laura Flood valid?
[37]
I
would rephrase the issues as follows:
1. Does this Court
have jurisdiction?
2. What is the
appropriate standard of review?
3. Was the Governor
in Council’s decision reasonable?
Applicant’s Written Submissions
[38]
The
applicant argues the Order in Council is ultra vires. When exercising a
power given to it by statute, the Governor in Council must stay within the
boundary of the enabling statute. The Governor in Council is otherwise free to
exercise its statutory power without interference by the Court, except in an
egregious case or where there is proof of absence of good faith.
[39]
The
Order in Council is ultra vires or was issued in bad faith as a result
of the fraud perpetrated on Laura Flood. It was issued without an actual
application from Laura Flood and therefore was issued without statutory
authority.
[40]
If
the conditions listed in subsection 108(1) of the 1951 Act were not met, then
the Governor in Council could not issue an Order in Council enfranchising an
Indian. If an Order in Council was granted without the conditions precedent
being established, then the Order in Council would be ultra vires and
set aside. The application for enfranchisement had to be voluntary and on an
informed basis and the applicant must have been the Indian, not the Indian
Agent or Chief.
[41]
A
party to a contract must consent to its contents. A contract with a person who is
not capable of both reading and understanding and the contents are
fundamentally misunderstood, is void. The principle of non est factum is
used to declare contracts void ab initio when they have been signed by a
party who is illiterate.
[42]
There
is ample evidence before this Court that establishes on a balance of
probabilities that Laura Flood did not knowingly or voluntarily apply for
enfranchisement. The evidence of this is the following:
1. She was
illiterate and did not have the capacity to either complete the application or
type the various letters alleged to have been written by her.
2. There is no
evidence that the Indian Agent or the Chief read the application in the
presence of Laura Flood, that she understood, or that she signed the application
in the Indian Agent’s presence.
3. The
correspondence exchanged contains significant errors concerning Laura Flood’s
residence on the reserve and the births of her children, mistakes that would
not have been there if the correspondence was prepared on behalf of Laura
Flood.
4. Laura Flood
deposed that she never intended to give up her right to be recognized as an
Indian.
[43]
The
applicant argues the Pay-List evidence is relevant to the question of when
Laura Flood left the reserve, which is relevant in determining whether the
letter with that error was prepared on behalf of Laura Flood. They are not
conclusive of residence, but support Laura Flood’s evidence that she left the
reserve at the age of 19.
[44]
As
found by the Royal Commission on Aboriginal Peoples, manipulation by Indian
Agents was common. Laura Flood’s experience was therefore not unusual.
[45]
In
the Ontario Superior Court of Justice, Madame Justice Forestell reviewed the
same evidence that has been provided on this judicial review and has made
factual findings that thoroughly support the applicant’s view of the evidence
as described above. She was satisfied on a balance of probabilities that the
enfranchisement was not valid. The Court of Appeal overturned this decision,
but on jurisdictional grounds.
[46]
The
applicant argues the respondent has not provided this Court with any direct
evidence contradicting Laura Flood’s recollection of events. The credibility
problems identified by the respondent are unconvincing:
1. The mistake in
Laura Flood’s 1998 affidavit regarding the identity of the Chief is reasonable
given the passage of 46 years and the role that Alfred Batisse played in
excluding non-status Indians from the reserve.
2. It is impossible
to ascertain when or why an individual received their own line in the Treaty
Pay-List. The Pay-List reflects the fact that the family left the reserve in
1945.
3. Laura Flood did
in fact receive a $500 stumpage fee. The reference to ‘timber rights’ in the
letter is irrelevant since her uncontested evidence is that she did prepare
this correspondence.
4. Laura Flood did
not receive the enfranchisement cheque. The unexecuted letter being sent and
the enfranchisement card being signed on the same date nearly 250 miles apart
is simply untenable.
5. Laura Flood did
not raise the issue of her enfranchisement until 1996, but this is reasonably
explained by her belief that she was enfranchised because she lived with a
non-native. This is confirmed by her application for registration in 1985 and
subsequent correspondence. It was not until 1995 that Indian and Northern
Affairs Canada advised the applicant or her family that Laura Flood was
enfranchised by application.
[47]
The
applicant argues this Court must be cognizant of the honour of the Crown in
analyzing this evidence. It is always at stake when dealing with Aboriginal
people and it is to be assumed that no appearance of ‘sharp dealing’ will be
sanctioned. The Honour of the Crown must be given full effect in order to
promote the process of reconciliation. It is engaged in this case because of
the sharp dealings and questionable circumstances surrounding the
enfranchisement of Laura Flood, which amount to an allegation of fraud.
Respondent’s Written Submissions
[48]
The
respondent notes that the question of whether the Federal Court has the
jurisdiction to review the lawfulness of an Order in Council pre-dating the
Court’s creation has never been judicially considered. Despite raising this
issue, the respondent does not argue that this Court lacks jurisdiction.
[49]
The
respondent argues reasonableness is the appropriate standard of review.
Orders-in-Council are presumed valid until demonstrated otherwise. They are
only reviewable where the Governor in Council failed to observe a condition
precedent or exercised its power in bad faith or for an improper purpose.
[50]
Here,
the statutory condition precedent had been met, as the Governor in Council
received a report from the Minister that an Indian had applied for
enfranchisement. The dispute issued is a factual one. Therefore, reasonableness
is appropriate.
[51]
The
evidence in this case supports the reasonableness of the conclusion that Laura
Flood voluntarily applied for enfranchisement. Her signature, by her admission,
appeared on the application for enfranchisement and the enfranchisement card.
The Indian Agent received three letters signed by Laura Flood requesting
enfranchisement: she admitted signing the October 31, 1952 letter, the
applicant admitted the July 14, 1952 letter bears Laura Flood’s signature and
there is no evidence the signature on the August 16, 1952 letter is not
genuine. The fact that these letters were typed by someone else does not mean
they were prepared without her knowledge. The Indian Agent wrote seven letters
to Laura Flood with respect to enfranchisement. This evidence supports the
reasonableness of the Governor in Council’s decision.
[52]
The
respondent questions the reliability of the affidavits provided by Laura Flood:
1. They were not
subject to cross-examination before the Registrar or the Ontario Courts, as
proceedings before the Registrar are non-adversarial and the Court proceedings
were an appeal of that record.
2. The Court is
deprived of the ability to observe the affiant’s demeanour.
3. The events were
forty years prior to the swearing of the affidavits, yet the affiant’s
recollection cannot be tested. The applicant’s own testimony casts doubt on
Laura Flood’s ability to recall the events in question.
4. Laura Flood could
not read the affidavits she was signing, so they were read to her. It is not
clear she understood the wording. The applicant stated on cross-examination
that “it’s all about the way we ask her and how she answers to things”.
[53]
The
respondent points to factual problems with the affidavit evidence:
1. The Chief of the
Matachewan First Nation in 1952 was George Batisse, not Alfred. George Batisse
was Laura Flood’s own brother.
2. The $500 stumpage
fee has no relevance to the validity of the enfranchisement, but it is
incorrect that Laura Flood received it, which illustrates the unreliability of
this evidence. The first payment for the timber surrendered was not until 1953,
meaning she would have been ineligible due to enfranchisement. The timber
royalty Pay-Lists make no mention of a payment to her and none of the payments
approximates $500. The total Band funds at the time approximated $250.
3. The first
affidavit indicates Laura Flood was asked to sign papers in December 1952,
which turns out to have been October 10, 1952.
4. The applicant’s
own affidavit is based on facts that do not come from her own knowledge. She
could have no personal knowledge of what transpired before her birth in 1952.
5. The applicant’s
affidavit accuses the Indian Agent of fraud, while Laura Flood’s affidavits
make no such accusation. There are other embellishments of Laura Flood’s
evidence in the applicant’s own evidence.
[54]
The
credibility of the allegation of involuntary enfranchisement is weakened by the
delay of 44 years before it was first raised. The certificate of
enfranchisement was in Laura Flood’s possession since 1953 and she could have
asked any number of people to read it to her at that time. The effect of
enfranchisement would have been made apparent soon thereafter by the loss of
benefits. The allegation that Laura Flood thought she was signing a document
confirming she lived with a white man is contradicted by her evidence that she
had “no idea” what the documents were.
[55]
The
errors in the correspondence do not indicate the letters were prepared without
the consent or knowledge of Laura Flood and the error relating to the date of
leaving the reserve is confirmed by no documentary evidence.
[56]
The
question of whether Laura Flood received her share of funds after
enfranchisement is irrelevant to whether the Governor in Council acted
reasonably in enfranchising her. Nonetheless, her evidence was only that she
did not recall receiving a payment, while there is ample documentary evidence
showing she did receive it.
[57]
The
honour of the Crown is not a reason to interpret this evidence to find fraud.
The courts have rejected the suggestion that the fundamental precepts of
evidence law change when an Aboriginal claim is made against the Crown. The
honour of the Crown has no role in this case, as the Crown agent had no part in
the alleged fraud. To the extent that the honour of the Crown arises on these
facts, the respondent has met its burden by defending a First Nations Chief
against an accusation of fraud.
Analysis and Decision
[58]
Issue
1
Does this Court have
jurisdiction?
The respondent
suggests that the matter of whether the Federal Court has jurisdiction over a
decision that pre-dates its own existence has never been decided. Yet, the
respondent did not argue that this Court lacks jurisdiction. Without the
benefit of full submissions on this issue, it would be inappropriate for me to
decide the issue in a manner that would be given precedential weight. I
therefore want to make clear that for the purposes of this case, I am assuming
without deciding that the Court does in fact have jurisdiction.
[59]
Issue
2
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).
[60]
The
Court of Appeal held that reasonableness was the standard of review for
Governor in Council decisions that involved a mix of fact and law (see League
for Human Rights of B’Nai Brith Canada v Canada, 2010 FCA 307 at paragraphs
83 to 85, [2010] FCJ No 1424). It is similarly appropriate in this case. As the
Court noted, “[i]n practical terms, then, a statute that vests decision-making
in the Governor in Council implicates the decision-making of Cabinet, a body of
diverse policy perspectives representing all constituencies within government”
(at paragraph 78).
[61]
In
reviewing the Order in Council on the standard of reasonableness, the Court
should not intervene unless the Governor in Council came to a conclusion that is
not transparent, justifiable and intelligible and within the range of
acceptable outcomes based on the evidence before it (see Dunsmuir above,
at paragraph 4). As the Supreme Court held in Canada (Citizenship and
Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, it is not up
to a reviewing court to substitute its own view of a preferable outcome, nor is
it the function of the reviewing court to reweigh the evidence (at paragraph
59). It should also be noted that the Order in Council contained the following
statement:
WHEREAS
the Minister of Citizenship and Immigration reports that the Indians whose
names are included in Schedule A hereto have applied for enfranchisement and
that in his opinion the said applicants
(a) are
of the full age of twenty-one years;
(b) are
capable of assuming the duties and responsibilities
of citizenship; and
(c) when
enfranchised, will be capable of supporting themselves
and their dependents;
Thus, the Governor in Council appeared
to have been authorized to issue an Order in Council.
[62]
Issue
3
Was the Governor in Council’s
decision reasonable?
I completely agree with the
comments in the FCA decision above, and the OSCJ decision above, regarding the
nature of the enfranchisement system. Contemporary litigation concerning its
ongoing effects is a reminder of this country’s colonial past.
[63]
Nothing
in this proceeding, however, challenges the legal validity of that system. This
Court is therefore put in the difficult position of evaluating the internal
validity of an administrative decision made within a legal regime which is
repugnant to modern eyes. While I accept that task, I wish to make clear that
nothing in these reasons should be understood as a statement on the legal validity
of enfranchisement policies. The applicant has challenged her enfranchisement
on the grounds that it was invalid by the standard of the enfranchisement
system’s own internal workings and it is on those grounds alone that I evaluate
her claim.
The OSCJ Decision
[64]
I
begin by addressing the judgment of Madame Justice Forestell, which the
applicant would have me agree with in outcome on the facts, despite its being
reversed on jurisdictional grounds. While this Court is certainly not bound by
the Ontario Superior Court and it would be unwise to follow the factual
findings of any court that made a decision without the proper jurisdiction to
do so, I wish to make clear that I understand that decision as being unhelpful
to this Court’s determination.
[65]
Madame
Justice Forestell did not preside over the matter in a Court of first instance.
Her Court’s role was to review the decision of the Registrar. Notably, she
appears to have reviewed the Registrar’s decision on a standard of correctness
and the statutory standard of “clearly wrong” (OSCJ decision above, at
paragraph 58). While she did conclude that the applicant and her family had
“met the onus upon them to prove on the balance of probabilities that the
enfranchisement of Laura Floor was not valid” (at paragraph 82), this was based
on the process of evaluating how the evidence should have been considered by
the Registrar. Indeed, her conclusion indicates that her chief concern was with
the Registrar’s flawed procedure rather than with her Court’s independent factual
findings (at paragraphs 76 to 78). Since she found that the Registrar was not
bound by the Order in Council, her analysis also did not consider the
presumption of validity or the standard of review attached to the decisions of
the Governor in Council. Her Court also did not have the benefit of the
cross-examination of the applicant, or the affidavit, exhibits and
cross-examination of Gary Penner, the respondent’s witness. In short, while
that decision concerned a factual matrix that overlaps greatly with this
proceeding, it is a decision that answered a different question by applying a
different standard of review to different evidence.
[66]
In the FCA decision above, Mr. Justice David Stratas alluded to
the doctrine of abuse of process: “Further, the Crown might not be able to
challenge the factual findings underlying the Ontario Superior Court of
Justice’s overall ruling” (at paragraph 74). I interpret his tentative language
(“might”) as an indication that this holding is not binding on this Court.
[67]
I find that this doctrine does not prevent the Crown from defending
the validity of Laura Flood’s enfranchisement. Although the OCA decision above,
was only concerned with jurisdiction, this does not mean that the OSCJ
decision’s factual findings remain undisturbed. As Madam Prothonotary Mireille Tabib
held in Eli Lilly Canada Inc v Novopharm Ltd, 2008 FC 513 at paragraphs
19 and 20, [2008] FCJ No 649, re-litigation is not abusive where the first
proceeding was found to be outside of a court’s jurisdiction (emphasis added):
19 It seems to me that the question of whether a decision
under appeal should justify the dismissal of a second proceeding on grounds of
abuse of process must, in all cases, be informed by a consideration of whether
the outcome of the appeal would have any bearing on the first decision's effect
on the second proceeding. For example, in a case of abuse of process by
re-litigation of the same issues between the same parties, where it is the mere
fact of multiple duplicative proceedings that gives rise to the abuse, the
resolution of the appeal, irrespective of the result, will not generally lessen
the abusive nature of the second proceeding. However, if, as here, the result
of a successful appeal would be to void the first decision’s effect as a cause
of abuse of process in the second proceeding, a dismissal of the second
proceeding as an abuse of process may be premature and lead to both injustice
to the parties and unnecessary litigation to redress the injustice.
20 One such example would be where the jurisdiction of the
Court to render the initial decision is challenged on appeal. A second
proceeding, involving the same issues in another forum, may well be an abuse of
process assuming the validity of the first decision, but would clearly not be
abusive if the first Court was found to have lacked jurisdiction. The fact
situation in Toronto v C.U.P.E., supra, also provides an example
of how the results of a pending appeal could affect the Court’s conclusion as
to the abusive nature of the second proceeding. There, an employee previously
convicted of sexual assault was subsequently fired as a result of the assault.
The employee’s grievance of the dismissal, in which he sought to challenge the
employer's allegation of assault, was held to be an abuse of process in light
of the prior conviction. There is no doubt in my mind that, had the employee’s
criminal conviction been appealed and reversed, his challenge as to whether or
not the alleged abuse had taken place could not have been found abusive. In
this light, Justice Arbour’s express mention of the fact that the employee had
exhausted all his avenues of appeal of the conviction, at par. 56 of the
decision in C.U.P.E., is likely significant.
Post-Decision Evidence
[68]
The
respondent is correct that the general rule is that the evidence that was not
before the decision maker is not relevant to a judicial review. In this case,
it is not clear what exactly was before the Governor in Council, but it is
clear that evidence post-dating the decision could certainly not have been. For
example, the Governor in Council could not have considered in making its
decision whether Laura Flood would receive an enfranchisement cheque.
[69]
I
do, however, consider such evidence relevant if it is used for the purpose of
proving that the documents that were (or ought to have been) before the
Governor in Council were fraudulently created. To hold otherwise would mean
that even a full admission of fabricating evidence would be inadmissible on a
judicial review, a perverse result.
[70]
When
I do consider one type of such evidence, the payment to Laura Flood, I find it
difficult to see how it speaks to the validity of the correspondence in the
record or the consent of Laura Flood. The applicant has offered no theory as to
how the stumpage payment suggests her request for enfranchisement is more or
less likely to have been valid. Similarly, I am unable to connect the disputed
enfranchisement cheque to the validity of the enfranchisement, as the failure
to deliver that cheque has no legal implication for the Order in Council and no
factual implication has been made out; perhaps I am meant to presume that the
Chief or Indian Agent kept these funds for himself, and that this profit
provided the motive for fraudulent enfranchisement. There is, however, no other
evidence to support this theory.
The Identity of
the Chief
[71]
The
parties agree that Laura Flood’s affidavits misidentify the Chief of the
Matchewan First Nation. I, of course, agree with the applicant that it is
reasonable for an affiant to make mistakes in describing events four decades
later (although the respondent is also correct to point out that this passage
of time hurts the applicant’s evidence for the same reason).
[72]
However,
it does not appear to me to be as simple as Laura Flood mistaking the title of
the person who instructed her to sign the application. Instead, based on this
record, it remains unknown to me whether it was George Batisse or Alfred
Batisse who is alleged to have instructed her. That is, I cannot discern
whether it was a mistake of title or a mistake of identity.
[73]
The
applicant’s initial affidavit in this proceeding identified Alfred Batisse as
the Chief. On cross-examination, after admitting the error, the applicant
offered the following explanation:
I
know that because my aunt Elsie was my grandmother’s sister who told me. To
give a bit of an explanation. She was talking about Alfred being Chief when
we asked for correction on why grandma would think it was Alfred who
initially had her sign the documents, and Elsie said: It’s because Alfred
made us not allowed on the Reserve anymore. He’s the one who actually told all
of us who didn’t have our status anymore that that’s the reason why. So that
is the reason why grandma believed it was him who had enfranchised her. [emphasis
added]
[74]
The
applicant’s memorandum argues “it is understandable that Laura Flood would be
confused as to who the Chief was at the relevant time”. This suggests Laura
Flood’s confusion was related to the title of Alfred Batisse.
[75]
The
underlined sentences in the passage above, however, seem to indicate the
applicant was under the impression that Laura Flood had misidentified the
person, not the title: the applicant asked her great-aunt for correction on why
Laura Flood thought it was Alfred who asked her to sign, not a correction on
why she had misunderstood the title of Alfred. The final sentence of the
passage, in fact, even hints that Laura Flood only based her identification of
Alfred on his role as Chief and had no independent recollection of the person
who instructed her.
[76]
The
central allegation of the applicant’s case is that someone told Laura Flood to
sign the application and related correspondence. Yet it is completely unclear
from this evidence, even assuming the uncontested truth of the applicant’s
affidavit, who that person was.
The Honour of
the Crown
[77]
I
agree with the respondent that the concept of the honour of the Crown has
little to offer this application. It is not a freestanding reason for voiding
an otherwise legitimate Order in Council. It also does not allow this Court to
weigh the evidence in a fashion more favourable to the applicant: “A trial
judge must weigh and assess conflicting evidence in the same way as he or she
always does - dispassionately, against the record as a whole, and with due
consideration for any particular sensibilities (cultural or otherwise) that may
impact upon a witness’s testimony” (see Chippewas of Mnjikaning First Nation
v Ontario (Minister of Native Affairs), 2010 ONCA 47 at paragraph 220,
[2010] OJ No 212, leave to appeal refused, [2010] SCCA No 91).
[78]
If
the applicant establishes that the documents were created fraudulently, then
the Order in Council would be unreasonable and she would not need the
assistance of the honour of the Crown to prevail in her claim.
The Reasonableness
of the Governor in Council Decision
[79]
The
above analysis leaves two main grounds for challenging the Order in Council:
the factual errors contained in the correspondence and Laura Flood’s evidence
that she did not know what she was signing.
[80]
The
factual errors, even to their maximum extent as alleged by the applicant, are
of little assistance in demonstrating the Governor in Council’s decision to be
unreasonable. To the extent that the errors are contained in otherwise
legitimate correspondence, they do not show the decision to be unreasonable as
they are irrelevant to the statutory criteria for enfranchisement under the
1951 Act: Laura Flood met the age requirement and the Indian Agent found her to
be capable of assuming responsibilities of citizenship. Her capability to support
herself was presumably based on her employment mentioned in the Agent’s letter
to the Indian Affairs Branch of July 28, 1952.
[81]
The
factual errors are more relevant to the applicant’s theory that the
correspondence was prepared for a fraudulent purpose without the knowledge of
Laura Flood. This theory is supported by the affidavits of Laura Flood, which
are presumed to be true unless there are reasons to doubt their truthfulness
(see Maldonado v Canada (Minister of Employment and Immigration), [1979]
FCJ No 248 (CA).
[82]
In
this case, however, there are such reasons to doubt their truth: chiefly, the
confusion relating to who exactly it was who asked Laura Flood to sign the
application for enfranchisement. The passage of time is also a reason to doubt
the truth of affidavit evidence, if only because it is the applicant’s own
explanation for that evidence’s errors. I also must agree with the respondent
that Laura Flood’s possession of the enfranchisement certificate and the
explanation of her voluntary enfranchisement it represents between 1953 and
1996, provides another reason to doubt the truthfulness of Laura Flood’s
description of her understanding of the terms of her enfranchisement.
[83]
I
appreciate the immense frustration that results from the death of a key witness
in an important dispute such as this one, which affects such significant rights
of the applicant and her family going forward. I also appreciate that
litigation relating to Aboriginal rights is often necessarily limited by a
historical record.
[84]
These
sentiments, however, do not allow me to deviate from the Court’s role in
deciding this case based on the evidence before it. In this case, the Governor in
Council made a decision based on statutory criteria which have been established
by correspondence bearing the applicant’s signature and collected by a public
servant, whose official acts this Court has no reason to doubt. The applicant’s
evidence certainly raises doubts regarding that decision, but it must be
considered against the presumption of validity attached to the Governor in Council’s
decision. In reviewing the Govenor in Council’s decision on the standard of
reasonableness, I cannot find that this record has established that it was
outside of the range of acceptable outcomes.
[85]
For
these reasons, the application is dismissed. Given that the applicant had good
reason to pursue this application based on the reasons of the FCA decision
above, and the OSCJ decision above, costs are not appropriate.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The
application for judicial review is dismissed.
2. There shall
be no order of costs.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Indian
Act, SC 1951, c
29:
|
108.
(1) On a report of the Minister that an Indian has applied for enfranchisement
and that in his opinion the Indian
(a) is
of the full age of twenty-one years;
(b) is
capable of assuming the duties and responsibilities of citizenship,
(c)
when enfranchised, will be capable of supporting himself and his dependants,
the
Governor in Council may by order declare that the Indian and his wife and
minor unmarried children are enfranchised.
|
108.
(1) Lorsque le Ministre signale, dans un rapport, qu’un Indian a demandé
l’émanicipation et a qu’à son avis, ce dernier
a)
est âgé de vingt et unans révolus;
b)
est capable d’assumer les devoirs et responsabilités de la citoyenneté, et
c)
pourra, une fois émancipé subvenir à ses besoins et à ceux des personnes à sa
charge,
le
gouverneur en conseil peut déclaré que l’Indien, son épouse et ses enfants
mineurs célibataires sont émancipés.
|
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