Date: 20211110

Docket: T-139-19

Citation: 2021 FC 1221

Ottawa, Ontario, November 10, 2021

PRESENT: The Honourable Madam Justice Strickland

BETWEEN:

WAYNE GARRY CUNNINGHAM

Applicant

and

SUCKER CREEK FIRST NATION 150A

Respondent

JUDGMENT AND REASONS

[1] This application for judicial review arises from a challenge by the Applicant, Wayne Garry Cunningham, to the decision of the Election Appeal Committee [Appeal Committee], established pursuant to The Customary Election Regulations of the Sucker Creek First Nation #150A [Election Regulations], denying his appeal from a decision of the Electoral Officer. The Electoral Officer found that the Applicant was not eligible to run for the office of Chief in the Sucker Creek First Nation [SCFN] election for Chief and Council held on November 28, 2018 [Election] because the Applicant did not meet the Election Regulations residency requirement. In this application the Applicant raises the constitutionality of the residency requirement.

Background

[2] The background facts are straightforward and largely undisputed.

[3] SCFN is an Indian Band as defined by the Indian Act, RSC 1985 c. I-5 [Indian Act]. The SCFN reserve lands are located along the southwest shore of Lesser Slave Lake, north of Edmonton, Alberta. In 1996, the SCFN held a referendum and passed the Election Regulations. Section 6.4(a) of the Election Regulations contains a residency requirement. It states, subject to two exceptions not relevant to this matter, that persons are eligible for nomination of the position of Chief or Councillor if they are 18 years of age or older on or by election day and “who continuously resided on the First Nation for at least six (6) months prior to the date of nomination”.

[4] The Applicant was raised as a Cree speaker and claims strong connections to his culture, traditions and SCFN members. Growing up, his family lived in the hamlet of Joussard, a community located on the outskirts of the SCFN reserve. Neither he nor his parents were eligible for membership in the SCFN until 1985 when the passage of Bill C-31 (An Act to amend the Indian Act, SC 1985, c 27) caused the Indian Act to be amended, thereby allowing them to regain their Indian Act status. The Applicant applied for and became a member of the SCFN in 2002. The Applicant has never lived on the SCFN reserve. His work has taken him to other parts of Alberta. However, in 1987 he and his wife built a home near Joussard where they raised their four children, who are all SCFN members. The Applicant states that his home is located about 12 kilometers, or 5 miles as the crow flies, from the SCFM reserve boundary, about a 10-minute drive to the SCFN Band Office.

[5] The Applicant wrote to SCFN Chief and Council on October 23, 2018 asking that they make an application to this Court seeking to have s 6.4 severed from the Election Regulations because it discriminates against off-reserve SCFN members, infringing s 15 of the Canadian Charter of Rights and Freedoms [Charter]. The Applicant also wrote to the Elders Council asking that it recommend this course of action to Chief and Council. The record contains no responses to these letters. On November 10, 2018, the Applicant was nominated to run for Chief of the SCFN in the Election.

[6] By letter dated November 13, 2018, the Electoral Officer informed the Applicant that his nomination had been declined because the Applicant did not meet the residency requirement of s 6.4(a) of the Election Regulations. The Election proceeded without the Applicant’s name on the ballot for the position of Chief. The Applicant appealed the Election outcome.

[7] The appeal was brought pursuant to s 12.1(a) of the Election Regulations on the basis that an error was made in the interpretation or application of the Election Regulations materially and directly affecting the conduct and outcome of the Election and, on the basis of s 12.1(e), any other circumstance or events materially or directly affecting the conduct and outcome of the Election. The Applicant made written submissions asserting that his disqualification as a candidate for the position of Chief violated the equality guarantees under s 15 of the Charter and that the infringement was not justified by s 1 of the Charter. The Electoral Officer, in response to the appeal, provided a written submission indicating that, as the holder of that office, he was sworn to uphold the Election Regulations and was not at liberty to amend them. The Electoral Officer submitted that the removal of the Applicant as a candidate was done in accordance with the Election Regulations, which determine a candidate’s eligibility, and was not an error in the interpretation and application of s 6.4. The Electoral Officer submitted that issues surrounding the constitutionality of the Election Regulations are matters for the SCFN leadership and members to address. The Applicant submitted a written reply to the Electoral Officer’s submission and, on December 19, 2018, the Appeal Committee met and heard oral submissions from the Applicant.

[8] By letter dated December 21, 2018, the Appeal Committee denied the appeal, stating that:

After careful consideration, and pursuant to and in accordance with the Customary Election Regulations of Sucker Creek First Nation #150A, the Appeal Committee unanimously finds that:

· Your Appeal on all counts is denied on the basis that the evidence provided did not fully and properly establish the necessary grounds for an appeal.

While the appeal committee is sympathetic to the core issue of off-reserve eligibility to run for office in SCFN elections, we feel it is not the Appeal Committee’s mandate to capriciously redefine the election regulations to deal with this matter. The election results in question shall stand, and we will refer your concerns to the elected leadership to consider.

Issues

[9] By Order dated November 6, 2019, Prothonotary Ring held that this application for judicial review would be heard in two parts. She ordered that Part 1, which is now before me, shall address three stated questions, as follows:

1. Does the Election law [Election Regulations] residency requirement for candidates running for Chief or Councillor positions breach section 15 of the Charter?
2. If so, is it saved by section 1 of the Charter?
3. Can Sucker Creek raise and rely upon section 25 of the Charter (the “section 25 Defence”), if it was not raised at first instance?

[10] Prothonotary Ring’s Order specified also that Part 2 of the application shall proceed, if necessary, to consider the merits of the “section 25 Defence”.

Standard of Review

[11] The parties submit, and I agree, that respect for the rule of law requires Courts to apply standard of correctness to constitutional questions. As such, they are exceptions to the presumption of reasonableness review (Vavilov at para 53-57, 69; see also Janvier v Chipewyan Prairie, 2021 FC 539 at para 18). Accordingly, the correctness standard applies to the first two issues. No standard of review is applicable with respect to the third issue which is primarily concerned with whether or not this Court should exercise its discretion and permit the Respondent to raise s 25 of the Charter in Part 2 of this application.

Relevant Legislation

Canadian Charter of Rights and Freedoms

Rights and freedoms in Canada

1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

…

Equality before and under law and equal protection and benefit of law

15 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Affirmative action programs

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

…

Aboriginal rights and freedoms not affected by Charter

25 The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including

(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and

(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.

The Customary Election Regulations of the Sucker Creek First Nation #150A

2. DEFINITIONS

k) “Elector” means a person whose name is entered on the First Nation’s membership List, and a resident on the reserve, and is the full age of eighteen(18) years on or before the day of the Election or By-Election.

6. NOMINATIONS

6.4 Persons Eligible for Nomination

a) Subject to 6.4(b) and 16.3, any Elector who is Eighteen (18) years of age or older on or by the Election Day and who continuously resided on the First Nation for at least six (6) months prior to the date of nomination is eligible to be nominated for the position of Chief or Councillor.

b)…..

14. RESIDENCY REQUIREMENT

All members of the Council must be resident on the Sucker Lake First Nation for the duration of their term of Office.

15 REMOVAL OF CHIEF OR COUNCILLOR FROM OFFICE

15.2 Other Grounds for Removal from Office

f) While in office, they fail to remain a resident on reserve for the duration of their term of Office.

17. AMENDMENTS TO CUSTOMARY ELECTION REGULATIONS

17.1 The Customary Election regulations of the Sucker Creek First Nation may be amended in the following manner:

a) Approval by Council

Amendments to these Regulations must first be approved by Motion of the Council.

b) Notice to Electors of Proposed Amendments

i) The Council must then post a Notice of a Special General meeting of the Electors of the First Nation on the Sucker Creek First Nation and such places as Council may determine at least fourteen (14) days prior to the date of the Special General Meeting.

ii) The Notice must state the purpose of the meeting and that there will be a vote upon amendments to the regulations. It must also state the time, place and date of the meeting.

iii) A copy of the proposed amendments to the Regulations must be attached to the Notice.

c) Approval of Amendments by Electors

i) A duly constituted Special Meeting of Electors shall be held to consider and vote upon amendments and will consist of at least fifty percent plus one (50%+1) Electors. If a special meeting cannot be convened, amendments will be done by plebiscite.

ii) Upon the approval of the majority of Electors present and voting by secret ballot at such a, duly constituted Special General Meeting of Electors called for the purposes of considering and voting on the amendments to the Regulations, the amendments will be adopted and be effective as of the date of the meeting.

d) Affidavit

Following the Special General meeting, or a plebiscite if necessary the Chief; a Councillor or Chairman of the meeting will swear an Affidavit stating the following:

i) Proper Notice of the meeting was given;

ii) The meeting was duly constituted;

iii) The motion which was voted upon;

iv) The total number of votes for and against the amendment;

vi) That to the best of their knowledge, the vote was properly conducted.

18. SEVERANCE

If all or part of any provision contained herein is deleted or found to be inoperable by a Court, it will be severed from the Regulations and the remaining provisions will remain in full force and effect.

Preliminary Issue – Scope of the constitutional challenge

[12] The parties submit that while the Notice of Application and this Application for Judicial Review relate to the Appeal Committee’s decision concerning the Applicant’s ineligibility to run for the office of Chief pursuant to the s 6.4(a) residency requirement of the Election Regulations, the Court should also consider the constitutional validity of ss 14 and 15(f) of the Election Regulations. Those provisions relate to the enforcement of the residency requirement when a candidate has been elected. The parties submit that the issue regarding the “Election Law residency requirement” as stated in Prothonotary Ring’s Order is sufficiently broad to include these provisions.

[13] As noted by the parties, the Notice of Application is concerned with the Appeal Committee’s denial of the Applicant’s appeal which was based on his allegation that s 6.4 of the Election Regulations breaches his constitutional rights. The Applicant’s submissions made in support of this application for judicial review also address that issue. The Notice of Constitutional Question filed by the Applicant on January 15, 2020 states that the Applicant intends to question the constitutional validity of s 6.4(a) of the Election Regulations. Further, Prothonotary Ring’s Order is not as broad as the parties suggest. It defines the question as whether “the Election Law residency requirement for candidates running for Chief or Councillor positions” breach s 15 of the Charter and, if so, whether it is saved by s 1 of the Charter.

[14] I also note that the Election Regulations contain another very significant residency requirement. The definition of an “Elector” precludes members of SCFN who do not reside on the reserve from voting in Chief and Council elections. The record indicates that in both 2003 and 2015 the SCFN undertook reviews of the Election Regulations, including proposals to remove the residency requirement for voting – but not for running for the offices of Chief and Councillor. The proposed amendments failed to pass. However, the uncontested evidence is that since approximately 2000, off-reserve SCFN members have in fact been permitted to vote and did so in the Election. In effect, the residency requirement contained in the Election Regulations which precludes off-reserve SCFN members from voting for Chief and Council is ignored and is not enforced, while the residency requirement precluding off-reserve SCFN members from running for office is enforced by the Election Officer. Despite the fact that the residency requirement precluding off-reserve SCFM members from voting in SCFM elections remains a provision of the Election Regulations, this is not raised as an issue in this matter.

[15] In my view, it is beyond the scope of this application for judicial review to consider the constitutionality of provisions of the Election Regulations other than s 6.4.

[16] That said, prior jurisprudence has firmly established that prohibitions on the right of off-reserve members to vote for chief and council are unconstitutional – notably the Supreme Court of Canada’s decision in Corbiere v Canada (Indian and Northern Affairs), [1999] 2 S.C.R. 203 [Corbiere] – and decisions subsequent to Corbiere. Further, for the reasons that follow, I have concluded that the s 6.4 residency requirement of the Election Regulations infringes the Applicant’s s 15 Charter rights and is not justified by s 1 of the Charter. If Part 2 of this application proceeds, and if it finds that s 25 of the Charter has no application or no effect on those findings, then s 6.4 of the Election Regulations will be struck out. In that event, and in the current circumstances, it is probable that any future constitutional challenge to s 14 and s 15.2(f) would also be successful. Accordingly, the prudent course of action would be for SCFN to take the steps necessary to amend all of the current residency requirements contained in its Election Regulations, including s 14 and s 15.2(f), to ensure Charter compliance.

Does the s 6.4 residency requirement of the Election Regulations breach s 15 of the Charter?

[17] The Supreme Court of Canada has identified a two-step analytical framework for establishing whether a law infringes the guarantee of equality under subsection 15(1) of the Charter. The first part of the analysis “asks whether, on its face or in its impact, a law creates a distinction on the basis of an enumerated or analogous ground […]. The second part of the analysis focuses on arbitrary – or discriminatory – disadvantage, that is whether the impugned law fails to respond to the actual capacities and needs of the members of the group and instead imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating their disadvantage” (Kahkewistahaw First Nation v Taypotat, 2015 SCC 30 at paras 19-20 [Kahkewistahaw]; see also Quebec (Attorney General) v Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17 at para 25;  Cardinal v Bigstone Cree Nation, 2018 FC 822 at para 47 [Bigstone]; Fraser v Canada, 2020 SCC 28 at para 27 [Fraser].

[18] In this matter, the Respondent does not dispute that:

1. the Charter applies to the Election Regulations (referencing Taypotat v Taypotat, 2013 FCA 192 at paras 38-39);
2. “off-reserve band member status” is an analogous ground under s 15 of the Charter (referencing Corbiere v Canada (Indian and Northern Affairs), [1992] 2 S.C.R. 203 at para 14 [Corbiere]), and;
3. the residency requirement creates a distinction between on-reserve and off-reserve SCFN members based on an analogous ground.

[19] The Respondent disagrees with the Applicant about whether the distinction is discriminatory (referencing Kahkewistahaw at paras 19-20). Thus, that is the stepping off point for this issue.

Applicant’s position

[20] The Applicant submits that the distinction created by the residency requirement imposes a burden on SCFN members who live off-reserve, and denies them a benefit – the ability to stand for elected office and participate in SCFN leadership. Further, that it does so in a way that reinforces stereotypes (referencing the concurring judgment in Corbiere at para 15). The Applicant submits that the residency requirement imposes a burden because it forces a potential candidate to move onto the reserve six months before the nomination meeting at which they intend to be nominated for election. This would require incurring personal costs, such as potential family separation, and the financial costs of relocating to the SCFN reserve; maintaining a second residence there; or, attempting to move in with or renting from someone on the reserve, in the hope of being elected. Given the extreme housing shortage on the reserve, this requirement effectively presents an insurmountable barrier to standing for elected office. A candidate would be unlikely to be allocated a new housing unit, unless they were already on the 80-family, years-long waiting list. Further, any potential option – building a new home on-reserve, moving into an existing house or renting from someone on reserve – would require approval from the Chief and Council. The Applicant submits that making relocation to the reserve subject to the availability of housing and the band council’s approval could subject a candidate to “arbitrary and political decisions” not arising for a candidate living on-reserve (referencing Bigstone at para 61).

[21] The Applicant also submits that the distinction in the Election Regulations between on- and off-reserve members who want to stand for office perpetuates and exacerbates the historical disadvantages experienced by off-reserve band members, and also fails to recognize the collective ownership which all members have in the band’s resources and their connection to the reserve lands, as recognized in Corbiere.

Respondent’s position

[22] The Respondent submits that it should not be assumed that any residency requirement automatically perpetuates historical disadvantage or prejudice against band members who live off-reserve and that the Supreme Court in Corbiere was careful to acknowledge that it is possible for election regulations to distinguish between on- and off-reserve members without breaching the Charter (referencing Corbiere at para 114 and Dickson v Vuntut Gwitchin First Nation, 2020 YKSC 22 [Dickson YKSC])). The Respondent distinguishes Corbiere on the basis that it was concerned with the total exclusion of off-reserve band members from voting under the Indian Act. The Respondent submits that in this matter the evidence does not establish that there is a prevailing sense that that off-reserve members are “lesser members” or “less indigenous” than members who live on SCFN’s reserve lands. In addition, off-reserve members do not face total exclusion as they have other mechanisms for participating in band governance where their collective rights are implicated, such as by voting on designations or surrenders of reserve land, land claim settlements, and referenda for disbursement of capital funds. According to the Respondent, when the collective rights and interests of SCFN off-reserve band members are directly implicated, off-reserve members have the right to exercise direct democracy. Those participatory rights are reasonable, do not perpetuate any historic prejudice against off-reserve band members and are not discriminatory.

Analysis

[23] I am satisfied that the evidence establishes that the distinction created by the residency requirement has the effect of imposing a burden or disadvantage on SCFN members who live off-reserve, which is not imposed on on-reserve members, and denies them a benefit available to on-reserve members. The denied benefit is the ability to stand for elected office – thereby totally precluding off-reserve members from participating in SCFN band governance by its Chief and Council. The residency requirement currently eliminates more than 75% of SCFN members from seeking elected office based on their off-reserve residency status. The burden is that off-reserve members are required to move to the reserve in order to be nominated for and to run for office. The practical reality in this case is that the SCFN housing shortage, the lengthy waiting list for housing and the very limited rate at which housing units are allocated to those on the waiting list, means that even if off-reserve members were willing to move on reserve to meet the residency requirement, it is virtually impossible for them to do so. Moreover, requiring off-reserve members to move to the reserve – even if that were practically possible – imposes a personal and financial burden not borne by on-reserve members. Further, the off-reserve residency distinction is rooted in historical disadvantage. I am also satisfied that the negative consequence or adverse impact of the s 6.4 residency requirement perpetuates a longstanding disadvantage to SCFN off-reserve members as it results in their total exclusion from participation in SCFN governance by Chief and Council. And, at least indirectly, the residency requirement has the effect of perpetuating the view that off-reserve members have a lesser understanding of, or interest or stake in, band governance and are less deserving of holding office. Section 6.4 of the Election regulations therefore infringes s 15 of the Charter. My reasons for this conclusion are as follows.

[24] As indicated above, this matter engages the second part of the s 15 test. This asks whether the impugned law “imposes a burden or denies a benefit in a manner that has the effect or reinforcing, perpetuation, or exacerbating disadvantage” (Fraser at para 27).

[25] The evidence concerning an alleged burden or denial of a benefit includes the affidavit of the Applicant, sworn on January 28, 2020 [Cunningham Affidavit #3], which attaches as an exhibit a Government of Canada document entitled Registered Population. This document indicates that as of December 2019, the total registered population of the SCFN is 2978. Of these, 765 members live on the SCFN reserve. The Affidavit of Ms. Deborah Willier, executive assistant to SCFN Chief and Council, sworn on February 27, 2020 in support of the SCFN response to this application [Willier Affidavit] states that the SCFN has approximately 3000 members. The Willier Affidavit attaches as an exhibit the 2018 Election Report in which the Electoral Officer identified 2082 eligible voters. The Willier Affidavit also attaches as an exhibit a copy of a 2018 SCFN census. This indicates that as of May 21, 2018, the on-reserve population was 763 people. Of these, 565 people were SCFN members. The remaining residents were band members from other First Nations and non-treaty residents. The Willier Affidavit states that of the 565 on-reserve SCFN members, 257 are minor children and 140 are elderly.

[26] The evidence before me also establishes that there are 283 housing units on the reserve. Of these, 267 are band owned. One hundred and twenty five of those band owned units are “s 95 housing” being a reference to s 95 of the National Housing Act, RSC 1985, cN-11 which authorizes Canada Mortgage and Housing Corporation to make loans and contributions to assist with payment of the capital and operating costs of housing projects. Sixteen units are privately owned. There are 88 households on a waiting list: 44 of these currently live on-reserve and are in need of a larger or newer housing unit, and the other 44 households on the list do not live on-reserve but have applied for a unit or, may possibly be living with someone on reserve waiting for their own unit. The Willier Affidavit states that housing allocation is governed by a draft housing policy and a band council resolution [BCR], both attached as exhibits to that affidavit. The draft housing policy states that applications for new or existing housing units shall be forwarded to the SCFN Housing Department, along with a deposit, for review. Housing Department staff will make recommendations to the SCFN Housing Committee and Chief and Council for potential applicants to receive new or existing housing based on specified criteria: SCFN membership; sufficient income; number of family members; type of residence requested; no outstanding arrears; and, be 18 years of age or older. The BCR sets out a process for tenant selections including that the Chief and Council approve the recommendation made by the Housing Director or suggest changes to the recommendation. Ms. Willier’s evidence, when cross-examined on her affidavit, was that all final decisions as to housing rest with Chief and Council, including any decisions to transfer one of the privately owned homes.

[27] Ms. Willier’s testimony was that the most recent housing allocation occurred in 2019 when four units were allocated, at which time 77 households were on the waiting list. In 2021, two existing units were allocated to members living on reserve with family; the selections were made by Chief and Council. There may be another 4 units to allocate in 2021.

[28] The practical reality of this evidence is that approximately 20% of SCFN members live on-reserve and 80% live off-reserve. In the context of running for Chief and Council, this means that more than 75% of SCFN members are precluded, by s 6.4 of the Election Regulations, from running for office. And, even if they were willing to assume the burden of moving on reserve 6 months in advance of any election for which they hoped to be nominated and to successfully run for office, given the housing waiting list and the rate of unit allocations, it is unlikely in the extreme that they would be allocated housing in time to permit them to be nominated. Further, to provide a unit to someone like the Applicant, who owns his own home nearby, just so as a potential candidate they could qualify to run for office, would mean displacing a family with unsuitable or no on-reserve housing from the waiting list. In my view, that is a choice or accommodation Chief and Council would be unlikely to make. Nor is there any evidence suggesting that providing housing to potential candidates is a possibility.

[29] Even if housing were available, there is also a financial burden on potential off-reserve candidates of assuming the cost of moving and/or maintaining a second residence on reserve in the hope of being nominated and elected and, the potential hardship of separation from spouses and families if the potential candidate alone moved on-reserve in the hope of nomination and election.

[30] Based on the jurisprudence and the evidence before me, the s 6.4 residency requirement imposes a burden on off-reserve SCFN members not shared by on-reserve members and denies them the ability to stand for elected office. The next question is whether this has the effect of reinforcing, perpetuating, or exacerbating disadvantage.

[31] In this regard, the Applicant submits that the s 6.4 residency requirement distinction between on- and off-reserve members who want to stand for office perpetuates and exacerbates the historical disadvantages experienced by off-reserve members. His affidavit evidence is that his parents were both connected to the SCFN through their ancestry, culture, tradition and language. They lost or were deprived of their Indian status, his mother when she was 12 years old, which, in turn, deprived the Applicant of his status and eligibility for SCFN membership. The Applicant submits that while the loss of status did not affect his expressed identity, it did make him a part of a community of off-reserve members historically disadvantaged by their loss of status. The passage of Bill C-31 permitted him to regain his status and become an SCFN member, but the distinction between on- and off-reserve members, as manifested by s 6.4 of the Election Regulations, reinforces the historical disadvantage recognized by the Supreme Court of Canada in Corbiere (at para 15).

[32] For its part, the Respondent submits that the residency requirement is not discriminatory. Nor can it be assumed that any residency requirement automatically perpetuates historical disadvantage or prejudice against band members who live off-reserve. The Respondent submits that Corbiere, upon which the Applicant relies, was careful to acknowledge that it is possible for election regulations to distinguish between on- and off-reserve members without breaching the Charter. Thus, regard must be had to the distinguishing facts and evidence.

[33] I note that in Corbiere, the Supreme Court of Canada found that s 77(1) of the Indian Act, which required that band members be ordinarily resident on the reserve in order to vote in band elections, violated s 15(1) of the Charter. The Supreme Court addressed the historical disadvantage of off-reserve First Nations people at length, describing how their exclusion from the democratic band governance process perpetuates the history of discriminatory laws and policies that “encourage[d] Aboriginal people to renounce their heritage and identity, and to force them to do so if they wished to take a full part in Canadian society” (Corbiere at para 88). The Court concluded:

91 In summary, therefore, 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). The people affected by this distinction, in general, are vulnerable and disadvantaged. They experience stereotyping and disadvantage as Aboriginal people and band members living away from reserves. They form part of a “discrete and insular minority” defined by race and residence, and it is more likely that further disadvantage will have a discriminatory impact upon them. Second, the distinction in question does not correspond with the characteristics or circumstances of the claimants and on-reserve band members in a manner which “respects and values their dignity and difference”: Law, supra, at para. 28. The powers of the band council affect cultural, political, and financial interests and needs that are shared by band members living on and off the reserve. Third, the nature of the interests affected is fundamental. Given the form of representative democracy provided for in the Indian Act , failure to give any voice in that process to certain members of the band affects an important attribute of membership, and places a barrier between them and a community which has particular importance to them. The council and electors also make decisions about important financial, cultural, and political interests of the members that have important significance within the band and Canadian society. Finally, the interest affected is 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 the various historical circumstances surrounding reserve communities in Canada 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.

92 In the context of this vulnerable group, and these important interests, this distinction reinforces the stereotype that band members who do not live on reserves are “less Aboriginal”, and less valuable members of their bands than those who do. A reasonable person in the position of the claimants, fully apprised of the context, would see the differential treatment contained in s. 77(1) as suggesting that off-reserve band members are less worthy or valuable as band members and members of Canadian society, and giving them less concern, respect and consideration than band members living on reserves. Based upon this finding of discriminatory impact, the third stage of analysis, the identification of discrimination based on a violation of substantive equality and human dignity in the circumstances of this case, has been satisfied.

93 The factors discussed above outline the context surrounding the differential treatment contained in s. 77(1) of the Indian Act . This case involves people who have generally experienced significant historical disadvantage, and interests that are particularly important to those affected by the legislation. Taken together, they lead to a finding that from a subjective-objective perspective, the differential treatment in question violates off-reserve band members’ equality rights. Yet neither of these factors should be seen as essential to my conclusions. I would also note that my discussion of the general history of off-reserve band members does not suggest that the conclusion that this legislation violates s. 15(1) would not apply to a band affected by s. 77(1) whose off-reserve members had a different composition or history from that of the general population of off-reserve band members in Canada. Every case of alleged discrimination, of course, must be considered in its own legislative and social context to determine whether it violates the constitutional rights of those affected, but in this case, both the general disadvantage and vulnerability of those affected, and the importance to all band members of the affected interests are compelling factors in my conclusions at the third stage of analysis.

94 The above analysis also does not suggest that any distinction between on-reserve and off-reserve band members would be stereotypical, interfere with off-reserve members’ dignity, or conflict with the purposes of s. 15(1). There are clearly important differences between on-reserve and off-reserve band members, which Parliament could legitimately recognize. Taking into account, recognizing, and affirming differences between groups in a manner that respects and values their dignity and difference are not only legitimate, but necessary considerations in ensuring that substantive equality is present in Canadian society. The current powers of the band council, as discussed earlier, include some powers that are purely local, affecting matters such as taxation on the reserve, the regulation of traffic, etc. In addition, those living on the reserve have a special interest in many decisions made by the band council. For example, if the reserve is surrendered, they must leave their homes, and this affects them in a direct way it does not affect non-residents. Though non-residents may have an important interest in using them, educational or recreational services on the reserve are more likely to serve residents, particularly if the reserve is isolated or the non-residents live far from it. Many other examples can be imagined.

95 Recognizing non-residents’ right to substantive equality in accordance with the principle of respect for human dignity, therefore, does not require that non-residents have identical voting rights to residents. Rather, what is necessary is a system that recognizes non-residents’ important place in the band community. It is possible to think of many ways this might be done, while recognizing, respecting, and valuing the different positions, needs, and interests of on-reserve and off-reserve band members. One might be to divide the “local” functions which relate purely to residents from those that affect all band members and have different voting regimes for these functions. A requirement of a double majority, or a right of veto for each group might also respect the full participation and belonging of non-residents. There might be special seats on a band council for non-residents, which give them meaningful, but not identical, rights of participation. The solution may be found in the customary practices of Aboriginal bands. There may be a separate solution for each band. Many other possibilities can be imagined, which would respect non-residents’ rights to meaningful and effective participation in the voting regime of the community, but would also recognize the somewhat different interests of residents and non-residents.  However, without violating s. 15(1) , the voting regime cannot, as it presently does, completely deny non-resident band members participation in the electoral system of representation. Nor can that participation be minimal, insignificant, or merely token.

96 Therefore, I conclude that the present wording of s. 77(1) violates the right to equality without discrimination of the off-reserve members of bands affected by it. This finding is a general one, and is in no way related to the specific situation of the Batchewana Band. Since the provision has been found to be discriminatory as it applies to all bands affected by it, there is no need to consider the specific circumstances of the Batchewana Band.

(Emphasis added)

[34] In Cardinal v Bigstone Cree Nation, 2018 FC 822 [Bigstone] a residency requirement required elected chief and councillors to assume residency on the reserve within three months of the election and to remain permanently resident throughout their term of office. There Justice Roussel held that the distinction created by the residency requirement imposed a burden on off-reserve members and denied them a benefit in a manner that had the effect of perpetuating the erroneous notion that band members who live off the reserve have no interest and a reduced ability in participating in band governance. The distinction also reinforced the historical stereotype that off-reserve band members are less worthy and entitled, not on the basis of merit, but because they live off reserve (at para 52).

[35] In reaching this finding, Justice Roussel reviewed relevant jurisprudence. This included Esquega v Canada (Attorney General), 2007 FC 878 [Esquega] (reversed on other grounds by 2008 FCA 182). At issue in Esquega was s 75(1) of the Indian Act, which required that no person other than an elector who resided in an electoral section could be nominated as a band councillor to represent that section. Esquega noted that, as in Corbiere, band members who live off-reserve have historically faced disadvantage as a result of legislation and policies designed to deny them the right participate in band governance. Such legislation perpetuates the wrongful notion that band members who live off-reserve have no interest in participating in band governance and are therefore less worthy of doing so. Further, and again referencing Corbiere, that in addition to addressing local issues, band councils represent individuals who live off-reserve in many important capacities. The nature and scope of the interest affected is of fundamental importance to off-reserve band members. The residency requirement denied individuals who lived off-reserve the ability to participate in the representative governance of their band. While off-reserve members had the right to vote in band council elections, they also hold a fundamental interest in participating in band council and making decisions on behalf of their band. In the context of that First Nation, the prohibition applied to over half of their band members and prevented them from becoming leaders of their band. The Court in Esquega concluded that s 75(1) of the Indian Act discriminated against off-reserve members by prohibiting them from participating in the representative governance of their band through band council on the basis of their “Aboriginality-residency” status (Esquega at para 88-92). In my view, the reasoning in Esquega is equally applicable in this matter.

[36] Also referenced in Bigstone is this Court’s decision in Joseph v. Dzawada’enuxw (Tsawataineuk) First Nation, 2013 FC 974 [Joseph]. There the First Nation’s election code, which provided for positions for both on- and off-reserve members, was found to violate s 15 of the Charter. In the circumstances of that case, 75% of band members lived off-reserve but 3 of the 4 council positions were closed to them. Having considered paragraph 104 of Corbiere, the Court in Joseph remained unconvinced that the election code represented the balanced structure envisioned by the Supreme Court in Corbiere, concluding:

[57] Given the extremely significant interest that all members have in a Band Council’s decisions, a structure which gives a permanent supermajority to resident members and denies non-resident members the chance to lead the Council as chair cannot be said to be balanced. This is particularly the case when the proportions between the Band’s membership and the Band Council are inverted: upwards of three-quarters of the Band are non-resident while three of four Council spots are not available to them, to say nothing of the chair. This approach is not so much “creative” as it is a minor variation on the model struck down in Esquega. While non-resident members are represented in Council deliberations by the non-resident Councillor, when push comes to shove, that Councillor can be easily outvoted by the resident Councillors.

[37] Joseph concluded that the distinction in the election code created a disadvantage by perpetuating the stereotype that off-reserve band members have reduced ability or interest in contributing to band governance.

[38] In Thompson v Leq’a:mel First Nation, 2007 FC 707 [Thompson] provisions of the subject election code included an eligibility requirement, being that to hold the position of Chief or Councillor the person was required to reside in the Canadian Traditional Stó:lo Territory. There this Court noted that the section of the election regulations at issue was first adopted in 1995 and found that “[o]ne must apply by analogy the historical disadvantage found by the Supreme Court to have been suffered by off-reserve members generally throughout Canada” (at para 18). It concluded that the residency requirement infringed s 15(1) of the Charter.

[39] Following a review of the above jurisprudence, Justice Roussel in Bigstone concluded that the residency requirement in the election code before her imposed a burden on off-reserve members wishing to run for office, the effect of which was clearly discriminatory, thus perpetuating the pre-existing disadvantage of the group it was intended to benefit. She found that in order to serve the community with which the band member is affiliated, the band member must, once elected, relocate on the reserve. This relocation came only at a great cost, both personal and financial (Bigstone at para 58). Further, that:

[65] The fact is that while off-reserve members may now vote and be elected as Councillors of the BCN, the requirement that they establish residency on the reserve during their term in office imposes on them a burden that on-reserve members do not have. It also perpetuates the stereotype that only members on the reserve are able to decide the affairs of the band.

[66] Consequently, I find that the residency requirement in the BCN Election Code discriminates against off-reserve band members by prohibiting them from participating in the representative governance of their band Council on the basis of their off-reserve band member status.

[40] In Cockerill v Fort McMurray First Nation #468, 2010 FC 337 (heard together with Woodward v Chief and Council of the Fort McMurray No. 468 First Nation) [Cockerill/Woodward] the First Nation, like the SCFN in the matter before me, argued that the circumstances in Corbiere could be distinguished because off-reserve members were allowed to vote on many things, just not for chief and council. Justice O’Reilly rejected that view, referencing Thompson, and found the residency requirement to offend s 15 of the Charter (see also Linklater v Thunderchild First Nation, 2020 FC 1065 at para 16).

[41] The Respondent submits that Corbiere expressly recognized that it may be legitimate for lawmakers to creating different voting rights for on- and off-reserve “in a manner that recognizes non-residents’ place in the community” (Corbiere at para 114). The Respondent then refers to Dickson v Vuntut Gwitchin First Nation, 2020 YKSC 22 [Dickson YKSC] which held at paragraph 156 that it cannot be discriminatory to require a legislator to reside in the settlement lands which will be the focus of the legislative function of chief and council.

[42] I would first note that para 114 of Corbiere concerns the appropriate remedy and states:

114 The next issue is what form the general remedy will take. The nature of the violation of equality rights that has been found in this case is different than any that this Court has addressed before. It has been found that, though it would be legitimate for Parliament to create different voting rights for reserve residents and people living off-reserve, in a manner that recognizes non-residents’ place in the community, it is not legitimate for Parliament to completely exclude them from voting rights. This is also a situation where the primary effects of this decision will not be felt by the government, but by the bands themselves. In respecting the role of Parliament, these factors should be critical.

115 In my opinion, it would be inappropriate for this Court to “read in” to the Indian Act voting rights for non-residents so that they would be voters for certain purposes but not others. This would involve considerable detailed changes to the legislative scheme. Designing such a detailed scheme, and choosing among various possible options, is not an appropriate role for the Court in this case (see M. v. H., supra, at para. 142, per Iacobucci J.).

(emphasis original)

[43] Further, in this matter, the Election Regulations do not differentiate between Chief and Councillor positions that may be held by on- and off-reserve members. There are no councillor positions reserved to be filled for off-reserve members or other balancing of representation. Rather, off-reserve members are rendered totally ineligible to run for office by the residency requirement. Thus, this is not a system that achieves substantive equality. Nor does it respect off-reserve members’ rights to meaningful and effective participation in governance of the SCFN (Corbiere at para 95). It is not a “balanced structure” as envisaged by Corbiere (Joseph at para 57).

[44] As to Dickson YKSC, the Yukon Court of Appeal (Dickson v Vuntut Gwitchin First Nation, 2021 YKCA 5 [Dickson YKCA]) allowed the appeal of that decision in part, holding that the residency requirement was discriminatory, but that it remained valid due to the application of s. 25 of the Charter.

[45] There, the appellant was a member of the First Nation who, like many others, resided in Whitehorse, 800 km south of the settlement lands. She was employed in Whitehorse and her son needed to be near a full-service hospital. The appellant wanted to run for election to band Council but was precluded from doing so by a residency requirement contained in the First Nation’s constitution. Relying on Corbiere, she challenged the provision as violating s 15(1) of the Charter. In discussing Corbiere the Yukon Court of Appeal held:

[107] There is no doubt that while Ms. Dickson is not technically “disenfranchised” by the Residency Requirement, her inability to serve on the Council without moving to the Settlement Land is an incursion on her equality rights. For those brought up in the Western democratic tradition, this incursion is indeed a serious one. As counsel for the appellant emphasized, Canadian courts have heeded the warning in Corbiere that Aboriginal residency conditions on voting or council participation are “constant markers” of potential discrimination. (See paras. 10 and 17–8.) Courts have ruled almost invariably that such conditions offend the equality rights of first nations people living away from their communities, coming close to treating voting rights in this context as absolute. (See for example Clifton v. Hartley Bay Indian Band 2005 FC 1030; Thompson v. Leq’á:mel First Nation 2007 FC 707; Woodward v. Council of the Fort McMurray 2010 FC 337, rev’d [2011] FCJ No. 1736 (C.A.); Joseph v. Dzawada’enuxw (Tsawataineuk) First Nation 2013 FC 974; Clark v. Abegweit First Nation Band Council 2019 FC 721; and Bigstone Cree, supra.) These cases arose in the context of band elections and most involved the application of customary election regulations permitted under ss. 75 and 77 of the Indian Act.

(see also Dickson YKCA at paras 108-112, 162).

[46] The Respondent submits that off-reserve members are entitled to vote in SCFN elections for Chief and Council and are entitled to vote on important matters which impact SCFN’s reserve lands, to vote in ratifications involving settlement of historic claims and requests for disbursement of funds from SCFN’s National capitol account. Based on this, the Respondent is of the view that “when the collective rights and interests of off-reserve band members are directly implicated, they have the right to exercise direct democracy”. In my view, what the Respondent is really saying is that it is the Respondent that can decide what band issues off-reserve members are entitled to be interested in and to engage with and that off-reserve members are only entitled to exercise their democratic rights in those limited circumstances or, in alternative ways.

[47] I do not agree with that view. As held by the Supreme Court in Corbiere, some of the interests that off-reserve members have in band governance can include “local” administration, such as for funds spent on reserve. The allocation of band revenue to housing, education, infrastructure, and other local matters may create more favourable conditions for the return of off-reserve members to the reserve (Corbiere at para 77). Thus, those decisions affect the interests of off-reserve members. This finding in Corbiere was cited and followed in Thompson (at para 19), where the Court held that an off-reserve member has “a real and legitimate interest in participating in the governance of his band and it is irrelevant for most purposes that he does not reside on the reserve…”.

[48] In summary, the s 6.4 residency requirement imposes a burden on the Applicant, as an off-reserve member, not imposed on on-reserve members and which also, practically speaking, renders compliance with the requirement impossible in the band’s current housing circumstance. The residency requirement denies the Applicant, as an off-reserve member, a significant benefit – the right to run for office as Chief or as a Councillor and to participate, as such, in band governance. This perpetrates the historic disadvantage suffered by First Nation members who live off-reserve and also serves to reinforce the stereotype that off-reserve band members have little or no interest in and are unable to appreciate, understand and respond to the affairs of the band.

[49] Accordingly, I find that the s 6.4 residency requirement of the Election Regulations discriminates against the Applicant, on the basis of his off-reserve band member status, by prohibiting him from participating in band governance as an elected representative to Chief and Council. The s 6.4 residency requirement of the Election Regulations therefore breaches s 15 of the Charter.

Is the infringing s 6.4 residency requirement justified by section 1 of the Charter?

Applicant’s position

[50] The Applicant submits that the Respondent has not established that there is a pressing and substantial objective which is achieved by prohibiting off-reserve members from standing for elected office. The Applicant submits that the Respondent’s assertion that the most pressing issues faced by Chief and Council are of significance only to on-reserve members perpetuates the discrimination and historical disadvantage experienced by off-reserve members. The Election Regulations themselves were approved by a 1996 plebiscite in which off-reserve members were excluded from voting. Further, the evidence before this Court establishes a lack of concern about whether a Chief and Council comprised only of on-reserve members could also adequately represent the interests of off-reserve members. The Applicant submits that even if there is a pressing and substantial objective, the means chosen to achieve that objective have a disproportionate impact on off-reserve members. Depriving more than 75% of SCFN members the opportunity to run for elected office is not reasonable or minimally impairing of their Charter rights. The SCFN housing shortage aggravates the residency requirement, making it virtually impossible for an off-reserve member to run for office.

Respondent’s position

[51] The Respondent submits that the purposes of the Election Regulation are to express SCFN’s rights to self-government generally and the selection of leaders specifically, and to ensure that local government (Chief and Council) “are best situated to serve the needs of its residents”. The Respondent submits that, as in Corbiere, the distinction in the residency requirement is rationally connected to the aim of the Election Regulations “which is to give a voice in the affairs of the reserve only to those persons most directly affected by the decisions of the band council” (referencing Corbiere at para 21). The Respondent submits that the residency requirement is rationally connected to achieving the purpose that the local government of Chief and Council, who are primarily responsible for serving the day-to-day need of on-reserve members, are themselves resident on reserve. Further, that residency requirements are a common feature of electoral codes generally. The Respondent submits that decisions made by Chief and Council in respect of local matters do not impact off-reserve members who receive government services directly from their local municipality and the governments of Alberta and Canada. Off-reserve members can vote and stand for office in those venues and “are assured their democratic rights are protected in respect of actual decisions [of Chief and Council] that impact them”. The Respondent submits that the evidence demonstrates that the residency requirement strikes a fair and reasonable balance, allowing off-reserve members to participate in governance and decision making by allowing them to vote for elected members of Chief and Council and by allowing them to exercise “direct democracy in decisions that may have a material impact on their collective rights and interests held as band members”.

Analysis

[52] The Supreme Court of Canada recently re-stated the Oakes test (R v Oakes, [1986] 1 S.C.R. 103) in Ontario (Attorney General) v. G, 2020 SCC 38, as follows:

[71] The Attorney General must establish, on a balance of probabilities, that the infringement of s. 15(1) is justified under s. 1. First, there must be a pressing and substantial objective for the infringing measure. Second, the infringing measure must not disproportionately interfere with s. 15(1) rights in furtherance of that objective. The second part of the Oakes test has three parts. The state must demonstrate the infringement is rationally connected to the objective, the means chosen to further the objective interfere as little as reasonably possible with the s. 15(1) right, and the benefits of the infringing measure outweigh its negative effects (see R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, at pp. 138‑40; Vriend, at paras. 109‑10; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, at paras. 48, 53 and 76‑78).

[72] The Attorney General’s burden is not to establish that the legislative scheme as a whole is a reasonable limit on s. 15(1) that can be demonstrably justified in a free and democratic society, but to justify the infringing measure itself. As this Court has underscored, “it is the infringing measure and nothing else which is sought to be justified” (RJR‑MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199, at para. 144; Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, [2010] 1 S.C.R. 722, at para. 20). The objective of the infringing measure is thus the proper focus of the analysis; however, it may be necessary to situate the infringing measure in the context of the broader legislative scheme to understand the limitation’s function (Vriend, at para. 111).

[53] Put otherwise, in order for the s 6.4 residency requirement to constitute a reasonable limit that is demonstrably justified, the SCFN must establish that in implementing s 6.4 it was pursuing a pressing and substantial objective; the means chosen to implement that objective is rationally connected to the objective and must minimally impair the Charter right; and, there is proportionality between the effects of the measure and the identified objective (see R v Chouhan, 2021 SCC 26 at para 286).

[54] I would first note that, with respect to s1 of the Charter, in Corbiere the Supreme Court held:

21 Having found that s. 77(1) is discriminatory, we must address the s. 1 argument of the appellants. The applicable test was recently described by Iacobucci J. in Egan v. Canada, [1995] 2 S.C.R. 513, at para. 182. We are satisfied that the restriction on voting 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. It is admitted that although all band members are subject to some decisions of the band council, most decisions would only impact on members living on the reserve. The restriction of s. 15 rights is however not justified under the second branch of the s. 1 test; it has not been demonstrated that s. 77(1) of the Indian Act impairs the s. 15 rights minimally. 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. Some parties and interveners have mentioned the possibility of a two-tiered council, of reserved seats for off-reserve members of the band, of double-majority votes on some issues. The appellants argue that there are important difficulties and costs involved in maintaining an electoral list of off-reserve band members and in setting up a system of governance balancing the rights of on-reserve and off-reserve band members. But they present no evidence of efforts deployed or schemes considered and costed, and no argument or authority in support of the conclusion that costs and administrative convenience could justify a complete denial of the constitutional right. Under these circumstances, we must conclude that the violation has not been shown to be demonstrably justified.

[55] I am not persuaded that the Respondent has established, as it submits, that one purpose of the Election Regulations is “to ensure the local government, Chief and Council, are best situated to serve the needs of its residents” (emphasis added), and that this is similar to the residency requirements in electoral codes for non-reserve municipalities.

[56] To the extent that the Respondent is paraphrasing the Preamble to assert this as a purpose of the Election Regulations, the Respondent’s wording is not reflected in the actual Preamble. Preamble A states that SCFN has the right and authority to govern “relations among its members and between the First Nation and Other Governments”. Preamble C states that the customs, traditions and practices of the SCFN in regards to self-governing have been established with the consent and participation of its members. SCFN is defined in the Election Regulations as meaning the Sucker Creek Indian Band 150A and its Members as defined by the traditions of the members of the SCFN (underlining added). What comprises a “Member” is not defined but is presumably broader that an “Elector” which, by definition, includes a residency requirement.

[57] Read in whole, the Preamble demonstrates that the Election Regulations are intended to confirm the SCFN’s right of self-governance, that its customs and traditions require “democratic, fair and open elections for its leadership” and that SCFN desired that its customs and traditions in relation to the election of Chief and Council be codified by way of the Election Regulations. The Preamble does not, as the Respondent submits, establish that one of its purposes is “to ensure the local government, Chief and Council, are best situated to serve the needs of its residents”.

[58] Further, and unlike a municipality which is accountable to and serves only those within its boundaries, a First Nation band council represents and is accountable to the entire band, as defined by its membership.

[59] The Respondent relies on Cockerill/Woodward and, in fact, makes virtually the same s 1 arguments as were made in that case:

[35] FMFN argues that the band is a local government whose purpose is to serve the needs of its residents (like a municipality). The Customary Election Code is consistent with that purpose. Accordingly, the Code serves a pressing and substantial objective – to provide local government to residents. The residency rule ensures that those most affected by the band’s governance have the most say in choosing their representatives. Further, the law is proportionate. The residency requirement is rationally connected to its purpose of ensuring that the local population is well-served by the band’s activities. The rights of non-residents are minimally impaired, unlike in Corbière, where non-residents were completely excluded from the right to vote. Here, non-residents can still vote on many measures that affect their interests. In fact, though, the Council does little that affects non-residents. Off-reserve members make up 60% of the membership. If allowed to vote, they would make up a majority.

[36] The FMFN points out that the situation in this case is different from Thompson, above, where Justice Strayer found no rational connection between a requirement that voters live within a traditional area (not confined to the reserve) and the goal of allowing residents to play a role in local governance. In this case, there clearly is a rational connection between the residency requirement and the role of the band, given that most of the band’s activities relate to the administration of the reserves for the benefit of the people residing there.

[60] There Justice O’Reilly agreed with the First Nation, noting that the evidence showed that it operated many programs, the majority of which were for the benefit of residents. Further, that non-residents could vote on decisions relating to other aspects of band governance. However, while SCFN relies on paragraph 36 of Cockerill/Woodward, in Dickson YKCA the Yukon Court of Appeal quoted paragraph 35 and 36 of that decision and noted that the order in Cockerill/Woodward was reversed on consent, for reasons that are not public (Dickson YKCA at paragraph 116). I note that on appeal the First Nation conceded that the residency requirement violated section 15 of the Charter and was not saved by section 1. On consent of the parties, the Federal Court of Appeal ordered that: “The Customary Election Regulations of the Fort McMurray First Nation #468 are in breach of section 1 of the Charter [sic] and are not saved by section 1 of the Charter” (Cockerill v Fort McMurray First Nation #468, [2011] FCJ No 1736 (FCA) at para 4). Thus, whether Cockerill/Woodward is good law is in doubt.

[61] Other than referencing the Preamble of the Election Regulations and quoting paragraph 21 of Corbiere, the Respondent does not make further submissions as to the purpose or objective of the s 6.4 residency requirement. Further, it is the limitation on the equality right which must be justified, not the legislative scheme as a whole (Fraser at para 125). In my view, the Respondent has failed to address the purpose of the s 6.4 residency requirement, as distinct from the Election Regulations as a whole.

[62] Thus, I am not satisfied that the Respondent has established that in implementing s 6.4 residency requirement it was pursuing a pressing and substantial objective which justified the limiting of s 15 of the Charter. However, even if I am wrong on that point, I am also not convinced that the s 6.4 residency requirement proportionately interferes with the Applicant’s s 15 rights in furtherance of the objective that the SCFN identifies - ensuring that Chief and Council are best situated to serve the needs of SCFN’s residents.

[63] That is, I am not convinced that the s 6.4 infringement is rationally connected to the stated objective, interferes as little as reasonably possible with the s 15 right, and that the benefits of the s 6.4 limitation outweigh its negative effects. I acknowledge the Respondent’s evidence that most of its budget funding is received from Indigenous Services Canada pursuant to a Comprehensive Funding Agreement and that nearly all of that funding is restricted for use to provide services to SCFN’s on-reserve members. This includes social assistance, K-12 education, infrastructure, water and roads. SCFN submits that decisions made by Chief and Council in respect of these matters do not impact off-reserve members. SCFN also submits that off-reserve members can participate in referenda on land surrenders and designations, treaty claim settlements and withdrawals from SCFN’s capital account, as those decisions affect the collective assets of SCFN and do impact off-reserve members. SCFN submits that “on-reserve members can adequately represent the interests of off-reserve members, even if the reverse is untrue”.

[64] The affidavit of Dickie Wilier, a SCFN Elder, sworn on February 19, 2020, states that SCFN’s leaders have always been selected from on-reserve members and that it is important to the SCFN its leaders understand the unique issues and concerns that come from living on-reserve and that “[i]t is hard to understand how our members who live in Edmonton, Calgary, Phoenix and other places around the world can effectively understand and respond to on-reserve issues if they do not live here. We are concerned that because there are so many members who live off-reserve they could easily take control of Chief and Council and become responsible for making important decisions about our lives without ever having set foot in our community”.

[65] While I acknowledge the view of the Respondent that off-reserve members cannot represent the interests of on-reserve members, if that were accepted to be so, then on the same rationale, it is difficult to see how the reverse could also be true. That is, how the less than 25% of SCFN members who live on-reserve could understand and represent the interests of off-reserve members. In that regard, I note that in Bigstone Justice Roussel stated:

[70] I recognize that those most affected by the decisions of the band Council are those who live on the reserve. Nevertheless, the Supreme Court of Canada found that off-reserve band members also have important interests in band governance. They have an important financial interest in the affairs of the band. They are co-owners of the band’s assets and the band Council represents them in negotiations with the government and within Aboriginal organizations. The availability of services on the reserve is equally important to off-reserve band members, especially those like the Applicant who live in the vicinity of the reserve (Corbiere at paras 17, 78, 80). Given that approximately half of the BCN’s members live off the reserve, it is difficult to rationalize why on-reserve Councillors would be more connected with the people and communities they represent. It has not been demonstrated why a Councillor residing on the reserve can represent the interests of the off-reserve members and yet, an off-reserve Councillor cannot represent the interests of the on-reserve members.

[66] In any event, even if it were accepted that the s 6.4 residency requirement is rationally connected to the asserted purpose of ensuring that Chief and Council may “give a voice in the affairs of the reserve only to those persons most directly affected by the decisions of the band council” (Corbiere at para 21), I find that, like in Corbiere, the restriction of the Applicant’s s 15 rights are still not justified under the second branch of the s. 1 test. This is because the Respondent has not demonstrated that s 6.4 is minimally impairing of the Applicant’s s. 15 rights. As stated in Corbiere: “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”.

[67] Here, the SCFN submits that when the collective rights and interests of off-reserve members “are directly implicated, they have the right to exercise direct democracy”. I fail to see why off-reserve members should be precluded from exercising “direct democracy” when any of their rights and interests are at stake. Further, the impact of the s 6.4 residency requirement is that all off-reserve members – who comprise over 75% of the total SCFN membership – are totally precluded from running for elected office and therefore directly participating in SCFN governance. Nor am I persuaded that the alternative methods by which off-reserve members can participate in some aspects of band decision-making, where collective band rights are involved, serves to mitigate or replace the ability to participate in band governance as an elected Chief or Council member.

[68] Further, there are ways in which the residency requirement could be less impairing of off-reserve members’ rights. For example, a certain number of Council seats could be reserved to be held by off-reserve members. Any residency requirement could come into effect only upon a candidate’s election and an elected candidate could be permitted to live either on-reserve or within a specified radius or distance from the reserve. This would permit members such as the Applicant and other SCFN members who live near the reserve to participate as Councillors and it would also address the practical barrier to holding office caused by the SCFN housing shortage. This, or a similar approach, would also address the concern expressed by Fred Willier about off-reserve members “taking control” of Chief and Council and becoming responsible for making decisions affecting on-reserve members without having experience or knowledge of on-reserve life. Accordingly, in my view, the residency requirement cannot be said to be minimally impairing. Nor has the Respondent established that any benefits of s 6.4 outweighs its negative effect.

[69] Accordingly, the infringement of the Applicant’s s 15 rights is not justified by s 1 of the Charter.

Can the Respondent raise and rely on section 25 of the Charter?

Respondent’s position

[70] The Respondent requests that if this Court concludes that the s 6.4 residency requirement offends s 15 and is not saved by s 1 of the Charter, then the Court exercise its discretion to allow the Respondent to raise s 25 of the Charter and proceed to Part 2 of the application for judicial review.

[71] The Respondent submits that s 25 is not a new issue or new defence to the application. Rather, s 25 of the Charter directs the Court to consider its application in all instances. The Respondent submits that this is analogous to Courts’ consideration of s 1 in Charter cases. In the alternative, if the Court determines the proposed s 25 argument to be a new issue, then the Erasmo v Canada (Attorney General), 2015 FCA 129 [Erasmo] test applies. The Respondent submits that the application of the test in the circumstances of this matter demonstrates that the Appeal Committee had neither the jurisdiction nor the practical capability to decide constitutional questions. Further, had the Appeal Committee determined the constitutional questions, SCFN would have been denied procedural fairness as it was not afforded the opportunity to participate in the appeal. The Respondent submits that this application is its first opportunity to make submissions on this issue.

Applicant’s position

[72] The Applicant submits that s 25 of the Charter was not raised before the Appeal Committee and that raising an issue for the first time on judicial review may unfairly prejudice opposing parties and may deny the Court the adequate evidentiary record to consider the issues (referencing Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 at para 22-26). The Applicant agrees that the general rule set out in Erasmo applies when considering whether or not constitutional arguments may be raised for the first time before a reviewing Court. However, it submits that the Appeal Committee had both the jurisdiction and the practical capability to consider the constitutional validity of s 6.4 of the Election Regulations but that it was not raised by the Electoral Officer or by the Respondent.

Analysis

[73] As a preliminary point, I note that the Applicant characterizes s 25 of the Charter as a new “defence”. However, that characterization is, in my view, very much a live issue (see the majority reasons in R v Kapp [2008], 2 SCR 484 at para 64 [Kapp] as well as Dickson YKCA at para 119-131, 145- 147 adopting the concurring reasons of Bastarache J. in Kapp).

[74] Further, while the Applicant asserts that raising s 25 of the Charter for the first time on judicial review may unfairly prejudice opposing parties, the Applicant does not suggest how, in this case, it might be actually prejudiced.

[75] In any event, as to the threshold question, the parties agree that whether or not constitutional questions may be raised for the first time before a reviewing Court is governed by the test set out in Erasmo:

[33] The general rule is that, except in cases of urgency, constitutional questions cannot be raised for the first time in the reviewing court if the administrative decision-maker under review had the power and the practical capability to decide them: Okwuobi v. Lester B. Pearson School Board; Casimir v. Quebec (Attorney General); Zorrilla v. Quebec (Attorney General), 2005 SCC 16, [2005] 1 S.C.R. 257 at paragraphs 38-40; Forest Ethics Advocacy Association v. Canada (National Energy Board), 2014 FCA 245, 465 N.R. 152 at paragraphs 46-55; Donald J.M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada, loose-leaf (consulted on 11 May 2015), (Toronto: Carswell, 2009), chapter 13 at pages 79-81 (the idea of “practical capability” being part of the general rule).

[76] In this case, the Applicant’s appeal stated that it was about whether the Electoral Officer’s decision to disqualify the Applicant as a candidate for Chief violated the equality guarantees under s 15 of the Charter and was not saved by s 1. He asserted that the Appeal Committee must apply the law and find the s 6.4 residency requirement as violating the Charter and, on that basis, overturn the Electoral Officer’s decision and order a new election.

[77] The grounds for appeal are prescribed by s 12.1 the Election Regulations. The Applicant relied on s 12.1(a) being that an error was made in the interpretation or application of the Regulations materially and directly affecting the conduct and outcome of the Election, and s 12.1(e), any other circumstances or events materially and directly affecting the conduct and outcome of the election.

[78] The Appeal Committee was required to make one of the three possible decisions as set out in s 12.8. In this case, it simply stated that it was denying the appeal on the basis that the evidence presented did not fully and properly establish the necessary grounds for an appeal (s 12.8(a)). Presumably, it reached this view based on the submissions of the Electoral Officer stating that the Applicant was removed as a candidate in accordance with the Election Regulations and that there had not been an error in the interpretation or application of the requirements of s 6.4, which was strictly applied. The Electoral Officer stated his view that any issues surrounding the constitutionality of the Election Regulations are matters for the leadership and members to address. For its part, the Appeal Committee stated that while it was sympathetic to “the core issue of off-reserve eligibility to run for office in SCFN elections, we feel it is not the Appeal Committee’s mandate to capriciously redefine the election regulations to deal with this matter”.

[79] I observe in passing that the Electoral Officer’s position with respect to eligibility to run for office under s 6.4 is at odds with his practice regarding eligibility to vote. An “Elector” is defined to mean a person on the SCFN membership list, resident on the reserve and who is 18 years old by the election day. It is undisputed that the Election Regulations residency requirement with respect to voting is not enforced by electoral officers and it is entirely unclear to me why the Electoral Officer in this case was of the view that he was required to strictly enforce the s 6.4 residency requirement concerning running for office but was not required to do so, and could ignore, the voting residency requirement. When cross-examined on his affidavit Fred Badger testified that starting in 2000, in response to Corbiere, off-reserve members were permitted to vote. However, no documentation indicating how this change was effected is found in the record and Mr. Badger did not elaborate on the point.

[80] In any event, what is clear from the Appeal Committee decision was that it was of the view that the there was no error in Electoral Officer’s interpretation or application of s 6.4 and that it had no authority to amend the Election Regulations. The affidavit of Fred Badger, an SCFN Elder and a member of the Appeal Committee, sworn on February 19, 2020, states that the Appeal Committee determined that it was “bound to apply the Election Regulations as they were written, voted on and approved by members of SCFN”.

[81] Stated otherwise, the Appeal Committee was of the view that it lacked the jurisdiction or authority to determine the constitutional validity of s 6.4 and, were it found to violate the Charter, to strike out the provision and order a new election. Thus, to the extent that the Applicant is arguing that the Appeal Committee considered the constitutional issues that he raised before it, I disagree.

[82] In Nova Scotia (Workers’ Compensation Board) v Martin; Nova Scotia (Workers' Compensation Board) v. Laseur, 2003 SCC 54 [Martin] the Supreme Court of Canada held that if an administrative tribunal has explicit or implied jurisdiction to decide questions of law arising under a legislative provisions, then will be presumed that it also has jurisdiction to determine the constitutional validity of that provision under the Charter (at para 34-36, 48). However, this presumption can be rebutted by the party alleging that the tribunal lacks jurisdiction. This can be done by pointing to an explicit withdrawal of authority to consider the Charter or by convincing the court that an examination of the statutory scheme clearly leads to the conclusion that the legislature intended to exclude the Charter (or a category of questions that would include the Charter, such a constitutional questions generally) from the scope of the questions of law to be addressed by the tribunal (Martin at para. 42-43, 48 ; also see Perry v Cold Lake First Nations, 2018 FCA 73 at para 40-42 [Perry]).

[83] Implied jurisdiction is to be discerned by looking at the statute as a whole. Relevant factors to be considered include:

1. The statutory mandate of the tribunal and whether deciding questions of law is necessary to effectively fulfilling its mandate;
2. the interaction of the tribunal with other elements of the administrative system;
3. whether the tribunal is adjudicative in nature; and
4. practical considerations, including the tribunal’s capacity to consider questions of law. Practical considerations cannot override a clear implication of the statute itself

(Martin at paras 41, 48)

[84] In this case, there is no explicit grant of jurisdiction to the Appeal Committee to decide constitutional questions. The question is whether there is implied jurisdiction and, if so, whether it has been rebutted.

[85] Section 12 of the Election Regulations concerns election appeals. It sets out the grounds for appeal (s 12.1). An appeal may be brought by forwarding a notice of appeal to the electoral officer at the Council offices outlining the grounds of appeal. The notice of appeal must be received by Council within 14 days for the election day (s 12.2) and the electoral officer will promptly notify all candidates for the office affected by the notice of appeal (s12.3).

[86] There are to be nine members of the Appeal Committee and volunteers for the committee will be sought at the nomination meeting. The Appeal Committee will be comprised of three Elders, three people between the ages of 31-64 as well as three people between the ages of 18-30, all of whom can be selected by random by the electoral officer, if necessary. If enough volunteers cannot be found, the Lesser Slave Lake Police Commission will be asked to be the Appeal Committee (s 12.4). Within seven days of receipt of an appeal, the Electoral Officer will convene a meeting of the Appeal Committee for the purpose of hearing the appeal (s 12.5). A notice of the meeting must be posted at least three dates in advance (s 12.6) and the appellant, the individual in respect of which the appeal is brought and other interested parties or their representatives may present oral and written submissions the Committee at the meeting (s 12.7). Within three days of the meeting, the Appeal Committee must make one of three decisions (12.8). No other provisions of the Election Regulations speak to the role or responsibilities of the Appeal Committee.

[87] In my view, the statutory mandate of the Appeal Committee is narrowly prescribed by the Election Regulations. However, one of the grounds for appeal is whether or not an error was made in the interpretation or application of the Election Regulations. Therefore, deciding questions of law is necessary for the Appeal Committee to fulfill its mandate. Further, the Appeal Committee performs an adjudicative function when it decides an appeal properly before it (Perry at para 43).

[88] As to the practical considerations, the Respondent submits that because the Appeal Committee is comprised of volunteer laypersons this does not lend itself to the development of legal expertise and implies that the drafters of the Election Regulations did not intend that Committee would be deciding questions of law. The Respondent submits that the appeal process and timelines also lead to this inference. And, practically speaking, the compressed timeline does not permit the engagement of advising counsel.

[89] In my view, the fact that the Election Regulations do not stipulate that members of the Appeal Committee must have legal expertise or experience is not alone determinative, given that the Election Regulations also specifically provide the Appeal Committee with the jurisdiction to make election appeal decisions. This is so, even if “in practice, it may be difficult for the Committee to deal with such issues in the short time line provided for in the Election Law” (Perry s 44).

[90] However, the grounds of appeal are prescribed and limited by the Election Regulations as are the decisions open to the Appeal Committee. While I appreciate that s 12.1(e) is a catch all provision, nothing within s 12.8 would seem to encompass the possibility of the Appeal Committee striking out an unconstitutional a provision of the Election Code and the calling for a new election to be held in the absence of that provision.

[91] In that regard, it is also of note that amendments to the Election Regulations are addressed in s 17 of that document. The amending process is commenced by a motion of Council approving the proposed amendments. Notice to the Electors of the proposed amendments is then required and the Electors must approve the amendments. Finally, an affidavit must be sworn confirming that proper notice was given, that the meeting was duly convened and the motion was voted upon, reporting the total number of votes for and against the amendment and, to the best of the affiants knowledge, the vote was properly conducted.

[92] While the Applicant argues that the use of the word “may” in s 17.1 indicates that this amending process is not mandatory, the Applicant offers no evidence as to how the Election Regulations may other wise be amended. And, in my view, the ignoring of provisions, such as the residency requirement for voting which is apparently ignore by electoral officers, does not serve as an amendment.

[93] Further, the record contains some materials relevant to an amendment effort in 2003. This includes a notice to all members of proposed amendments, which notice is stated to be given by Chief and Council pursuant to s 17.1(b) of the Election Regulations and advises of an intended special meeting at which eligible band members would be asked to vote on the proposed amendments. Further, should the majority of electors present at the meeting vote in favour of the amendments, they would be adopted and effective as of the date of the meeting. Similarly, with respect to the failed 2015 effort to amend the Election Regulations, a notice is found in the record as well as a band council resolution advising that an electoral officer had been appointed for “the purpose of engaging the Electorate and Members with a view to developing proposed amendments and final amendment to the Regulations pursuant to and in accordance with Section 17 of the Regulations”. The band council resolution clearly contemplates the following of the amending process set out in s 17 of the Election Regulations.

[94] Further, and significantly, s 18 deals with severance:

18. SEVERANCE

If all or part of any provision contained herein is deleted or found to be inoperable by a Court, it will be severed from the Regulations and the remaining provisions will remain in full force and effect.

(emphasis added)

[95] Section 18 does not contemplate a provision being struck out or declared inoperative by the Appeal Committee.

[96] Viewing the Election Regulations in whole, and given that: the Election Committee is made up of volunteers appointed for each election; that they have no legal expertise or experience; the very limited time frame in which election appeals must be decided; the prescribed grounds of appeal and decisions open to the Election Committee; the fact that amendments to the Election Regulations are required to follow process that includes the requirement of a special meeting of Electors held to consider and vote upon proposed amendments and requiring at least 50% plus one voted to succeed (see Perry at para 47); and, the fact that s 18 does not specify that a provision of the Election Regulation can be severed by a decision of the Appeal Committee, only by the Court, I am satisfied that constitutional questions were not intended to fall within the scope of the questions of law to be addressed by the Appeal Committee. That is, the presumption is rebutted in this case as it was in Perry (at paras 46-47).

[97] In sum, the general rule that constitutional questions cannot be raised for the first time before a reviewing court has been rebutted in this case. This is because the Appeal Committee did not have the jurisdiction or authority, or the practical capability, to decide them, including s 25 of the Charter had it been raised. Accordingly, I am exercising my discretion and permitting the Respondent to raise s 25 in Part 2 of this application for judicial review.

Conclusion

[98] For the reasons above, I find that the s 6.4 of the Election Regulations, being the residency requirement for candidates running for Chief or Councillor positions, infringes s 15 of the Charter and is not justified by s 1 of the Charter.

[99] However, I am exercising my discretion and permitting the Respondent to raise s 25 of the Charter in Part 2 of this application for judicial review, should the Respondent still wish to do so. Therefore, my finding above is subject to the impact, if any, of the determination by this Court, in Part 2 of this application, of the Respondent’s submissions concerning s 25 of the Charter. Costs will also be determined at that time.

 

JUDGMENT IN T-139-19

THIS COURT’S JUDGMENT is that

1. Further to the November 6, 2019 Order of the Case Management Judge, Prothonotary Ring, Part 2 of this application for judicial review will proceed to determine if s 25 of the Charter has application to this matter and, if so, what impact, if any, s 25 of the Charter has on my finding that s 6.4 of the Election Regulations, being the residency requirement for candidates running for SCFN Chief or Councillor positions, infringes s 15 and is not justified by s 1 of the Charter.

2. The parties will, without delay, request a case management meeting with Prothonotary Ring so that a timeline for filing materials, and any procedural issues pertaining to Part 2, can be discussed and determined.

3. The parties will include any joint or other submissions as to costs with their Part 2 submissions.

4. I will remain seized of this matter.

"Cecily Y. Strickland"

 

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	T-139-19
STYLE OF CAUSE:	WAYNE GARRY CUNNINGHAM v SUCKER CREEK FIRST NATION 150A
PLACE OF HEARING:	By videoconference using Zoom
DATE OF HEARING:	October 13, 2021
JUDGMENT AND REASONS:	STRICKLAND J.
DATED:	november 10, 2021

APPEARANCES:

Allyson F. Jeffs	For The Applicant
Keltie Lambert	For The Respondent

SOLICITORS OF RECORD:

Emery Jamieson LLP Barrister and Solicitors Edmonton, Alberta	For The Applicant
Witten LLP Barrister and Solicitors Edmonton, Alberta	For The Respondent