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

Supreme Court of Canada

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

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...

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