Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 (1999)

Docket Number:25708
 
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Corbiere v. Canada (Minister of Indian and Northern Affairs),

[1999] 2 S.C.R. 203

Her Majesty The Queen as represented by the Minister of Indian and Northern Affairs Canada and the

Attorney General of Canada Appellant and

Batchewana Indian Band Appellant v.

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 and

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, s. 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)...

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