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Her Majesty The Queen as represented by the Minister
of Indian and Northern Affairs Canada and the
Attorney General of Canada Appellants
Batchewana Indian Band Appellant
John Corbiere, Charlotte Syrette, Claire Robinson
and Frank Nolan, each on their own behalf
and on behalf of all non-resident members of the
Batchewana Band Respondents
Aboriginal Legal Services of Toronto Inc.,
Congress of Aboriginal Peoples, Lesser Slave
Lake Indian Regional Council, Native Women’s
Association of Canada and United Native Nations
Society of British Columbia Interveners
Indexed as: Corbiere v. Canada (Minister of Indian and Northern Affairs)
File No.: 25708.
1998: October 13; 1999: May 20.
Present: Lamer C.J. and L’Heureux Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.
on appeal from the federal court of appeal
Constitutional law -- Charter of Rights -- Equality rights -- Indian bands -- Elections of chiefs and band councils -- Voting restrictions -- Legislation providing that only band members “ordinarily resident on the reserve” entitled to vote in band elections -- Whether legislation infringes ss. 15(1) of Canadian Charter of Rights and Freedoms -- If so, whether infringement justified under s. 1 of Charter -- Canadian Charter of Rights and Freedoms, ss. 1, 15(1) -- Indian Act, R.S.C., 1985, c. I-5, s. 77(1).
Constitutional law – Charter of Rights – Remedy – Indian Act voter eligibility provisions violating Charter equality rights -- Whether declaration of invalidity and suspension of effect of declaration appropriate remedy – Whether Indian band which brought Charter challenge should be exempted from suspension of effect of declaration.
Indians -- Elections of chiefs and band councils -- Voting restrictions -- Legislation providing that only band members “ordinarily resident on the reserve” entitled to vote in band elections -- Whether legislation violating Charter equality rights -- Canadian Charter of Rights and Freedoms, ss. 1, 15(1) -- Indian Act, R.S.C., 1985, c. I-5, s. 77(1).
Courts -- Supreme Court of Canada -- Jurisdiction -- Constitutional questions -- Court’s jurisdiction to restate constitutional questions or make declaration of invalidity broader than that contained within questions.
The respondents, on their own behalf and on behalf of all non-resident members of the Batchewana Indian Band, sought a declaration that s. 77(1) of the Indian Act, which requires that band members be “ordinarily resident” on the reserve in order to vote in band elections, violates s. 15(1) of the Canadian Charter of Rights and Freedoms. Fewer than one third of the registered members of the band lived on the reserve. The Federal Court, Trial Division found that as it related to the disposition of reserve lands or Indian monies held for the band as a whole, s. 77(1) infringed the rights guaranteed by s. 15(1) and that the infringement was not justified under s. 1 of the Charter. The court granted a declaration of invalidity of s. 77(1) in its entirety and suspended the declaration for a period of 10 months. The court noted that the declaration was confined to the Batchewana Band because the pleadings and the evidence related only to that band. The Federal Court of Appeal affirmed the judgment but modified the remedy granted at trial. The court determined that the appropriate remedy was a constitutional exemption because other bands might be able to demonstrate an Aboriginal right under s. 35 of the Constitution Act, 1982 to exclude non-residents from voting. The court declared that the words “and is ordinarily resident on the reserve” in s. 77(1) contravened s. 15(1) of the Charter only in relation to the Batchewana Band. The declaration of invalidity was not suspended.
Held: The appeal should be dismissed but the remedy designed by the Court of Appeal should be modified.
Before any question of constitutional exemption is considered, the legislation in its general application should be examined. In this case, because the general issues were addressed in the plaintiffs’ statement of claim, and were argued before this Court and the Federal Court of Appeal, such an analysis will not take any parties by surprise. The constitutional questions, as formulated, address only the situation of the members of the Batchewana Band. The Court’s jurisdiction to restate constitutional questions, or make a declaration of invalidity broader than that contained within them is appropriately exercised when, as in this case, doing so does not, in substance, deprive attorneys general of their right to notice of the fact that a given legislative provision is at issue in this Court, or deprive those who have a stake in the outcome of the opportunity to argue the substantive issues relating to this question.
Per Lamer C.J. and Cory, McLachlin, Major and Bastarache JJ.: The test applicable to a s. 15(1) analysis has been described in Law. The first step is to determine whether the impugned law makes a distinction that denies equal benefit or imposes an unequal burden. The s. 77(1)’s exclusion of off reserve band members from voting privileges on band governance satisfies this requirement. The second step is to determine whether the distinction is discriminatory. It is the first inquiry under this step that poses a problem, i.e. that of establishing whether the distinction is made on the basis of an enumerated ground or a ground analogous to it. The answer to this question will be found in considering the general purpose of s. 15(1) to prevent the violation of human dignity through the imposition of disadvantage based on stereotyping and social prejudice, and to promote a society where all persons are considered worthy of respect and consideration. The enumerated and analogous grounds stand as constant markers of suspect decision making or potential discrimination. These markers of discrimination do not change from case to case, depending on the government action challenged. What varies is whether the enumerated and analogous grounds amount to discrimination in the particular circumstances of the case. Once a distinction on an enumerated or analogous ground is established, the contextual and fact specific inquiry proceeds to whether the distinction amounts to discrimination in the context of the particular case. To identify a ground of distinction as analogous, one must look for grounds of distinction that are like the grounds enumerated in s. 15. These grounds have in common the fact that they often serve as the basis for stereotypical decisions made not on the basis of merit but on the basis of a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity. This suggests that the thrust of identification of analogous grounds at the second step of the analysis is to reveal grounds based on characteristics that we cannot change or that the government has no legitimate interest in expecting us to change to receive equal treatment under the law. The conflation of the inquiry into the basis of the distinction and the inquiry into whether, on the facts of the case, that distinction affronts s. 15 is to be avoided.
In this case, the exclusion of off reserve members of an Indian band from the right to vote in band elections, pursuant to s. 77(1) of the Indian Act, is inconsistent with s. 15 of the Charter. Section 77(1) excludes off reserve band members from voting privileges on band governance, and this exclusion is based on Aboriginality residence (off reserve band member status). “Aboriginality residence” as it pertains to whether an Aboriginal band member lives on or off the reserve is a ground analogous to those enumerated in s. 15. The distinction goes to a personal characteristic essential to a band member’s personal identity. Off reserve Aboriginal band members can change their status to on reserve Aboriginals only at great cost, if at all. The situation of off reserve Aboriginal band members is therefore unique and immutable. Lastly, when the relevant Law factors are applied, the impugned distinction amounts to discrimination. Off reserve band members have important interests in band governance. By denying them the right to vote and participate in their band’s governance, s. 77(1) perpetuates the historic disadvantage experienced by off-reserve band members. The complete denial of that right treats them as less worthy and entitled, not on the merits of their situation, but simply because they live off the reserve. Section 77(1) reaches the cultural identity of off reserve Aboriginals in a stereotypical way. This engages the dignity aspect of the s. 15 analysis and results in the denial of substantive equality. The conclusion that discrimination exists at the third step of the Law test does not depend on the composition of the off reserve band members group, its relative homogeneity or the particular historical discrimination it may have suffered. It is the present situation of the group relative to that of the comparator group, on reserve band members, that is relevant.
No case has been made for the application of s. 25 of the Charter. Furthermore, the infringement is not justified under s. 1 of the Charter. While the restriction on voting in s. 77(1) is rationally connected to the aim of the legislation, which is to give a voice in the affairs of the reserve only to the persons most directly affected by the decisions of the band council, s. 77(1) does not minimally impair the s. 15 rights. Even if it is accepted that some distinction may be justified in order to protect legitimate interests of band members living on the reserve, it has not been demonstrated that a complete denial of the right of band members living off reserve to participate in the affairs of the band through the democratic process of elections is necessary. As an appropriate remedy, the words “and is ordinarily resident on the reserve” in s. 77(1) of the Indian Act are declared to be inconsistent with s. 15(1) of the Charter but the implementation of the declaration of invalidity is suspended for 18 months. No constitutional exemption is granted to the Batchewana Band during the period of suspension because, in the particular circumstances of this case, it would appear to be preferable to develop an electoral process that will balance the rights of off reserve and on reserve band members.
Per L’Heureux Dubé, Gonthier, Iacobucci and Binnie JJ.: The framework for s. 15(1) analysis was set out in Law. At all three stages, the focus of the inquiry is purposive and contextual. A court considering a discrimination claim must examine the legislative, historical, and social context of the distinction, the reality and experiences of the individuals affected by it, and the purposes of s. 15(1). In this case, s. 77(1) infringes the right to equality without discrimination of the off reserve members of bands affected by it.
The first stage of the s. 15(1) inquiry is satisfied. Section 77(1) of the Indian Act draws a distinction between band members who live on reserve and those who live off-reserve, by excluding the latter from the definition of “elector” within the band. This constitutes differential treatment.
The second stage of inquiry is also met. The differential treatment is based on the status of holding membership in an Indian Act band, but living off that band’s reserve. The fundamental consideration at the second stage, if the ground is not enumerated or already recognized as analogous, is whether recognition of the basis of differential treatment as an analogous ground would further the purposes of s. 15(1). The analysis at the analogous grounds stage involves considering whether differential treatment of those defined by that characteristic or combination of traits has the potential to violate human dignity in the sense underlying s. 15(1). Various contextual factors may demonstrate discriminatory potential. If the indicia of an analogous ground are not present in general, or among a certain group in Canadian society, they may nevertheless be present in another social or legislative context, within a different group in Canadian society, or in a given geographic area. The second stage must be flexible enough to adapt to stereotyping, prejudice, or denials of human dignity and worth that might occur in specific ways for specific groups of people, to recognize that personal characteristics may overlap or intersect, and to reflect changing social phenomena or new or different forms of stereotyping or prejudice.
Off reserve band member status should be recognized as an analogous ground. From the perspective of off reserve band members, the choice of whether to live on or off reserve, if it is available to them, is an important one to their identity and personhood, and is therefore fundamental. Also critical is the fact that band members living off reserve have generally experienced disadvantage and prejudice, and form part of a “discrete and insular minority” defined by race and place of residence. In addition, because of the lack of opportunities and housing on many reserves, and the fact that the Indian Act’s rules formerly removed band membership from various categories of band members, residence off the reserve has often been forced upon them, or constitutes a choice made reluctantly or at high personal cost.
At the third stage, the appropriate focus is on how the particular differential treatment impacts upon the people affected by it. The perspective that must be adopted is subjective and objective. All band members affected by this legislation, whether on reserve or off reserve, have been affected by the legacy of stereotyping and prejudice against Aboriginal peoples. When analysing a claim that involves possibly conflicting interests of minority groups, one must be especially sensitive to their realities and experiences, and to their values, history, and identity. Thus, in the case of equality rights affecting Aboriginal people and communities, the legislation in question must be evaluated with special attention to the rights of Aboriginal peoples, the protection of the Aboriginal and treaty rights guaranteed in the Constitution, and with respect for and consideration of the cultural attachment and background of all Aboriginal women and men.
A contextual view of the people affected and the differential treatment in question leads to the conclusion that this legislative distinction conflicts with the purposes of s. 15(1). Band members living off reserve form part of a “discrete and insular minority”, defined by both race and residence, which is vulnerable and has at times not been given equal consideration or respect by the government or by others in Canadian and Aboriginal society. They experience stereotyping and disadvantage in particular ways compared to those living on reserve. Aboriginal women, who can be said to be doubly disadvantaged on the basis of both sex and race, are particularly affected by differential treatment of off reserve band members.
Second, the differential treatment does not correspond with the needs, characteristics or circumstances of the claimants in a manner which respects and values their dignity and difference. The powers conferred by the Indian Act to the band council affect interests and needs that are shared by band members living on and off the reserve.
Third, the interests affected are fundamental, and have important societal significance from the perspective of those affected. The functions and powers of the band council affect their financial interests, the ability to return and live on the reserve, services that may be important to them, and their cultural interests. The interests affected are also significant because of the ways in which, in the past, ties between band members and the band or reserve have been involuntarily or reluctantly severed. Those affected or their parents may have left the reserve for many reasons that do not signal a lack of interest in the reserve given historical circumstances such as an often inadequate land base, a serious lack of economic opportunities and housing, and the operation of past Indian status and band membership rules imposed by Parliament. This history helps show why the interest in feeling and maintaining a sense of belonging to the band free from barriers imposed by Parliament is an important one for all band members, especially for those who are now living away from the reserve, in part, because of these policies. This analysis does not suggest that any distinction between on reserve and off reserve band members would conflict with the purposes of s. 15(1). The principles of substantive equality do not require that non residents have identical voting rights to residents, but rather a system that gives non residents meaningful and effective participation in the voting regime of the band.
The infringement of s. 15(1) is not justified under s. 1 of the Charter. The objective of the restriction of voting rights to band members ordinarily resident on the reserve is to ensure that those with the most immediate and direction connection with the reserve have a special ability to control its future. This objective is pressing and substantial but the restriction fails to meet the proportionality test. While restricting the vote to those living on the reserve is rationally connected to Parliament’s objective, a complete exclusion of non residents from the right to vote, does not constitute a minimal impairment of these rights. The appellants have not shown why other solutions that would not violate s. 15(1) could not accomplish the objective.
In determining the appropriate remedy, the Court must be guided by the principles of respect for the purposes and values of the Charter, and respect for the role of the legislature. The finding of invalidity relates to the legislation as it applies to all bands, and, in principle, there is no reason that the remedy should be confined to the Batchewana Band. The fact that other bands may be able to demonstrate an Aboriginal right to control voting does not justify confining the remedy to the Batchewana Band. The principle of democracy underlies the Constitution and the Charter, and is one of the important factors governing the exercise of a court’s remedial discretion. It encourages remedies that allow the democratic process of consultation and dialogue to occur. Constitutional remedies should encourage the government to take into account the interests, and views, of minorities.
The appropriate remedy is a declaration that the words “and is ordinarily resident on the reserve” in s. 77(1) are invalid. The effect of this declaration should be suspended for 18 months to give Parliament the time necessary to carry out extensive consultations and respond to the needs of the different groups affected. While, in general, litigants who have brought forward a Charter challenge should receive the immediate benefits of the ruling, even if the effect of the declaration is suspended, this is one of the exceptional cases where immediate relief should not be given to those who brought the action. If Parliament chooses either not to act, or to change the legislation to conform with this ruling, the respondents will receive a remedy after the period of suspension expires or when the new legislation comes into effect. In this case, there are strong administrative reasons not to grant immediate relief to the members of the Batchewana Band.
Section 25 of the Charter is triggered when Aboriginal or treaty rights under s. 35 of the Constitution Act, 1982 are in question, or when the relief requested under a Charter challenge could abrogate or derogate from “other rights or freedoms that pertain to the aboriginal people of Canada”. This latter phrase indicates that the rights included in s. 25 are broader than those in s. 35, and may include statutory rights. However, the fact that legislation relates to Aboriginal people cannot alone bring it within the scope of the “other rights or freedoms” included in s. 25. Because it has not been shown that s. 25 of the Charter applies to this case, and argument on this question was extremely limited, it would be inappropriate to articulate a general approach to s. 25.
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