Esquega v. Canada (Attorney General)

Esquega v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2007-08-31
Neutral citation
2007 FC 878
File numbers
T-1313-05
Notes
Reported Decision
Decision Content
Date: 20070831
Docket: T-1313-05
Citation: 2007 FC 878
BETWEEN:
EUGENE ESQUEGA, BRIAN KING,
GWENDOLINE KING, HUGH KING SR., RITA KING
WAYNE KING, LAWRENCE SHONIAS and OWEN BARRY
Applicants
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
O’KEEFE J.
[1] This is an application pursuant to section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, for judicial review of a decision of the Governor in Council, made by way of Order-in-Council P.C. 2005-1289 (OIC), dated June 28, 2005. The Governor in Council set aside the results of the Gull Bay First Nation election of November 8, 2004, pursuant to subsection 79(c) of the Indian Act, R.S.C. 1985, c. I-5, because three candidates did not reside on-reserve for the purposes of subsection 75(1) of the Indian Act. Pursuant to the order of Chief Justice Lutfy, dated January 26, 2007, the mootness issue shall be incorporated as part of this application.
[2] The applicants seek:
1. an order allowing this application for judicial review;
2. a declaration that the residency requirement in subsection 75(1) of the Indian Act violates section 15 of The Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the Charter) and is not justified under section 1;
3. an order striking down subsection 75(1) of the Indian Act;
4. an order quashing the OIC for lack of jurisdiction and error of law;
5. an order quashing and setting aside the OIC because the Governor in Council erred in making it; and
6. costs on a solicitor-client basis.
[3] The respondent requests that this application be dismissed with costs.
[4] Judgment was issued in this matter on August 20, 2007.
Background
[5] This case involves an application for judicial review of a decision by the Governor in Council setting aside the results of a band election, as well as the constitutionality of the residency requirement for band council positions. Approximately 260 First Nation Bands, including Gull Bay First Nation, have adopted the electoral code under the Indian Act and the Indian Band Election Regulations, C.R.C., c. 952 (the Regulations).
[6] The applicants are members of Gull Bay First Nation. They were elected to serve a two-year term as band councillors following an election held on November 8, 2004. In December 2004, three electors filed election appeals alleging that six of the candidates (Eugene Esquega, Brian King, Gwendoline King, Hugh King, Sr., Rita King and Wayne King) were ineligible, since they did not reside on-reserve. About 55 percent of the 644 electors in Gull Bay First Nation live off-reserve.
[7] Copies of the appeals and supporting documents were sent to the electoral officer and all of the candidates in January 2005. The six applicants responded to the allegations by submitting affidavits to the Department of Indian and Northern Affairs Canada later that month. The Minister also obtained additional information from the electors who filed the appeal and a band elder. This information was not disclosed to the applicants. The Minister considered the materials submitted inadequate for determining the validity of the election, and appointed Isaac Larry Dyck to investigate the allegations in March 2005. Mr. Dyck conducted investigations from March 22 until April 6, 2005, in order to determine the residency of the six applicants at the time of the nomination meeting on September 2, 2004.
[8] The investigative report was submitted to the Minister on April 26, 2005, and concluded that Brian King, Gwendoline King, and Rita King did not reside on-reserve. This report was not provided to the applicants. After receiving the report, Christine Aubin, then Acting Director of Band Governance, recommended that the Minister report to the Governor in Council that Brian King, Gwendoline King and Rita King were ineligible candidates for band council. Ms. Aubin also recommended that the election of all nine councillors be set aside, since the ineligibility of three candidates would have affected the election results.
[9] The Governor in Council issued an OIC dated June 28, 2005, wherein the election of all nine councillors was set aside. The applicants filed a notice of application for judicial review of the OIC on July 28, 2005. By order dated August 10, 2005, Justice Lemieux ordered that the applicants be reinstated as councillors, and granted an injunction preventing a by-election pending the result of this application for judicial review. The band council term expired on November 8, 2006. On December 14, 2006, Gull Bay First Nation held an election and the applicants were re-elected as councillors. On January 25, 2007, another election appeal was filed alleging that Rita King and Gwendoline King were not ordinarily resident on-reserve.
Minister’s Recommendation
[10] The Gull Bay Election Appeal Report, dated May 30, 2005, was prepared by Christine Aubin, Assistant Director of Band Governance.
Order-in-Council 2005-1289
[11] The OIC, dated June 28, 2005, is reproduced below:
Whereas, on November 8, 2004, the Gull Bay Band, in the Province of Ontario, held an election for a chief and nine councillors, the summary of which is set out in the annexed schedule;
Whereas, in accordance with paragraph 14(c) of the Indian Band Elections Regulations, the Minister of Indian Affairs and Northern Development has reported that three persons nominated to be candidates for councillor were ineligible to be candidates as they did not reside on the reserve at the time of their nomination, as required by subsection 75(1) of the Indian Act;
Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Indian Affairs and Northern Development, pursuant to paragraph 79(c) of the Indian Act, hereby sets aside the election, on November 8, 2004, of Lawrence Shonias, Eugene Esquega, Hugh King, Sr., Owen Barry, Brian King, Rita King, Wayne King, Gwendoline King and Isidore Poile as councillors of the Gull Bay Band, in the Province of Ontario.
Issues
[12] The applicants submitted the following issues for consideration:
1. What is the appropriate standard of review of the decision of the Governor in Council?
2. Did the Governor in Council breach the duty of procedural fairness owed to the applicants?
3. Does the requirement to “reside” on the reserve in subsection 75(1) of the Indian Act violate section 15 of the Charter by denying the applicants the opportunity to participate on the Council of Gull Bay First Nation on the basis of the recognized analogous ground of Aboriginal-residency?
4. If this requirement to “reside” violates section 15 of the Charter, can it be justified in a free and democratic society under section 1 of the Charter?
5. What is the appropriate remedy for the applicants should the Court find that the requirement to “reside” in subsection 75(1) of the Indian Act is unconstitutional and, therefore, that Order-in-Council 2005-1289 was issued without jurisdiction and in error of law?
[13] The respondent submitted the following issues for consideration:
1. Did the Governor in Council violate the duty of procedural fairness?
2. Did the Governor in Council err in setting aside the election of the Gull Bay First Nation Band Council?
3. Is section 75 of the Indian Act contrary to section 15 of the Charter, and if so, can it be saved under section 1 of the Charter?
4. Is the application for judicial review moot?
Applicants’ Submissions
I. Judicial Review of the OIC
[14] The applicants submitted that where the Governor in Council bases its decision on information from a Minister’s report, and there was no evidence otherwise, its reasons for the decision were those of the Minister (see Oberlander v. Canada (Attorney General), [2005] 1 F.C.R. 3, 2004 FCA 213).
(a) Standard of Review
[15] The applicants applied the pragmatic and functional approach in order to determine the appropriate standard of review (see Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, (1999) 174 D.L.R. (4th) 193). It was submitted that:
1. The Indian Act did not contain a privative clause, which pointed to a lower level of deference;
2. The decision-maker was the Governor in Council, which pointed to a high level of deference. However, it had little experience addressing legal issues;
3. The purpose of the provision and of the Act as a whole pointed to a stricter standard of review. It was submitted that the discretion conferred was limited with respect to the circumstances in which decision-making authority could be exercised. Also, the decision related directly to the interests of individuals running for council, not a balancing of interests; and
4. The question was one of mixed fact and law.
[16] The applicants submitted that the standard of review applicable to the interpretation of provisions of the Indian Act and matters of procedural fairness was correctness. It was submitted that the OIC was reviewable on the standard of reasonableness.
(b) Review of OIC
[17] The applicants submitted that the term “reside” included occasional residence, while the term “ordinarily resident” suggested more than occasional residence (see Thompson v. Minister of National Revenue, [1946] S.C.R. 209, 1 D.L.R. 689). The applicants noted that the investigator’s report and the Minister’s recommendation treated these terms synonymously. It was submitted that the Governor in Council violated the principle of statutory construction that every word in a legislative text must be given its own meaning. The applicants submitted that the Governor in Council erred in interpreting the word “resides” under section 75(1) of the Indian Act as having the same meaning as “ordinarily resident”.
II. Constitutionality of Subsection 75(1) of the Indian Act
[18] The applicants submitted that when a decision is subject to judicial review, the constitutional validity of the legislative provision in question must be determined in order to find out whether the decision was made properly (see Moktari v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 341, (1999) 250 N.R. 385 (C.A.)).
(a) Section 15
[19] The applicants applied the test for determining whether a legislative provision violated section 15 of the Charter found in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, (1999) 170 D.L.R. (4th) 1. Both parties agreed that the first and second steps of the test were satisfied, since subsection 75(1) of the Indian Act drew a distinction between band members living on or off the reserve by prohibiting off-reserve members from becoming councillors on the analogous ground of “Aboriginality-residency” (see Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, (1999) 173 D.L.R. (4th) 1).
[20] The third step required a determination of whether the provision discriminated against the applicants within the meaning of section 15 of the Charter. The applicants therefore proceeded to apply the relevant contextual factors set out in Law above.
[21] The applicants submitted that the Gull Bay Band was a distinct body politic, defined by its membership, family ties, and historical land use - not geography. It was submitted that off-reserve band members suffered pre-existing disadvantage in comparison to on-reserve members (see The Report of the Royal Commission on Aboriginal Peoples). The applicants submitted that the legislative history of the governance provisions of the Indian Act and Regulations supported the findings of the Royal Commission that residency restrictions were used to assimilate Aboriginal people through political disenfranchisement. In Corbiere above, the Supreme Court of Canada found no correspondence between residency requirements underlying the right to vote in band elections and the desire or ability of off-reserve members to participate in the representative governance of their First Nation (see also Hartley Bay Indian Band v. Hartley Bay Indian Band (Council), [2006] 2 F.C.R. 24, 2005 FC 1030).
[22] The respondent suggested that residency requirements had a dual purpose in ensuring that council members had a heightened knowledge of reserve issues and were more accessible to band members. However, Lynn Ashkewe admitted under cross-examination that a band council consisting solely of on-reserve members would not ensure access for the majority of electors, who live off-reserve. There was also no evidence that the current Gull Bay Band Council was out of touch with reserve issues. In Corbiere above, the Supreme Court rejected the argument that band councils addressed only reserve issues and that such issues dealt with by council only affected on-reserve band members.
[23] The applicants submitted that the interest at stake was the democratic right of participation in the representative governance of their band. In Hartley above, the Court applied the reasoning in Corbiere and held that the six-month residency requirement for electors violated section 15 of the Charter and was not saved by section 1, as it prohibited off-reserve band members from participating in the representative governance of their band. While Hartley involved the band custom electoral system, the Court has held that the reasoning in Corbiere applied equally to custom and Indian Act electoral systems.
(b) Section 1
[24] The applicants submitted that the respondent had to present evidence of the clear purpose of an impugned provision (see Sauve v. Canada (Chief Electoral Officer), [2003] 3 S.C.R. 519, (2002) 218 D.L.R. (4th) 577). Under cross-examination, Ms. Ashkewe admitted that the purpose identified above was her personal conclusion only. It was submitted that the true purpose of the residence requirement was to disenfranchise off-reserve band members of their right to participate in the governance of their band, in an effort to assimilate them. Therefore, this was an unconstitutional and discriminatory purpose.
[25] In the alternative, it was submitted that the purpose identified by the respondent was irrational. On-reserve councillors would not be more accessible to the majority of band members, as they live off-reserve. Ms. Ashkewe admitted under cross-examination that off-reserve councillors would be more accessible to off-reserve band members. In Corbiere above, the Supreme Court determined that band councils had a significant effect upon off-reserve members. The applicants filed affidavits demonstrating their knowledge of reserve issues, and the impact of council decisions upon off-reserve members. It was submitted that the residency requirement had no rational connection to the purpose, since neither the Indian Act nor the Regulations required a location for council meetings, frequency or notice of such meetings, or the opportunity for band members to participate in them.
[26] The applicants submitted that subsection 75(1) of the Indian Act failed the minimal impairment element of the test. There was no evidence that the interests of the applicants or off-reserve band members had been accommodated (see Corbiere). Under cross-examination, Ms. Ashkewe admitted that the Minister did not consider alternatives to the prohibition of off-reserve members from participation in band governance. In addition, section 31 of the Indian Band Procedure Regulations, C.R.C., c. 950, could be utilized by councils to provide access to meetings for all band members.
[27] With regard to proportionality, the applicants submitted that their right, and that of all off-reserve band members, to participate in the government of their band was a fundamental democratic right. The band council was the only body which exercised Indian Act powers, approved expenditures, protected band member rights pursuant to a treaty or Aboriginal rights, and participated in political umbrella groups and negotiations on behalf of all band members. It was submitted that the impugned provision had a disproportionate impact upon the right of the applicants to be chosen as community leaders.
(c) Remedy
[28] The applicants submitted that the appropriate remedy was for the Court to strike down the residency requirement in subsection 75(1) of the Indian Act immediately, pursuant to section 52 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. It was submitted that this case was distinguishable from Corbiere, which involved a delayed declaration of invalidity due to significant administrative grounds and a desire to allow the government to amend the electoral sections of the Indian Act. The applicants submitted that should the provision be struck down, the band electors' lists included all on- and off-reserve electors. The respondent could inform electoral officers and bands that all off-reserve electors could hold band council office. The Minister was responsible for selecting the dates for Indian Act elections (see section 74), and could ensure that such notice was given prior to the elections taking place.
[29] In the alternative, the applicants submitted that section 52 of the Constitution Act, 1982 allowed the Court to declare the invalidity of the residency requirement with regard to the applicants’ case and delay the invalidity of the requirement for the purposes of other bands. In the further alternative, it was submitted that the Court may quash the OIC on the basis of a lack of jurisdiction and error of law, pursuant to section 24 of the Charter and delay the invalidity of the provision pursuant to section 52 of the Constitution Act, 1982, for a limited period in order to notify other band electors and officials of the decision (see Reference Re Public Sector Pay Reduction Act (P.E.I.) (1998), 155 D.L.R. (4th) 1, [1998] 1 S.C.R. 3, and Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, (1993) 107 D.L.R. (4th) 342).
Respondent’s Submissions
[30] The respondent submitted that there was an insufficient evidentiary basis for adjudicating the constitutionality of a provision which affected the electoral process governing over 260 bands. Therefore, the Court should avoid making a Charter determination in this matter. It was further submitted that should the applicants make a successful Charter claim, a Charter remedy would not provide the relief sought. The respondent noted that an order striking the words “resident on reserve” from section 75(1) of the Indian Act would not validate the 2004 election results, but would call into question the legitimacy of an election run under unconstitutional rules.
I. Judicial Review of the OIC
(a) Standard of Review
[31] The respondent submitted that discretionary decisions enjoy considerable deference and applied the pragmatic and functional approach to determining the appropriate standard of review (see Baker above). It was submitted that:
1. The Indian Act did not have a privative clause, which had a neutral effect;
2. The Governor in Council had expertise with regard to governance issues and had enacted the Regulations which governed the setting aside of such elections. Its decision was also based upon the recommendation of the Minister, who had expertise; therefore, considerable deference was due;
3. The purpose of section 79 of the Indian Act was to ensure the legitimacy of band elections and governance, and the procedure of reviewing such elections was polycentric and focused on broad issues. This exercise of discretion warranted a high level of deference;
4. The question was one of mixed fact and law, was fact specific and highly discretionary. It was submitted that these factors militated in favour of deference.
[32] The respondent submitted that the proper standard of review was patent unreasonableness. It was submitted that the Court’s decision in Little Chief v. Canada (Minister of Indian Affairs and Northern Development), [2005] 1 C.N.L.R. 117, (2004) 261 F.T.R. 268, that the proper standard of review of the Minister’s decision was reasonableness, could be distinguished since the decision was made by the Minister and did not involve the same degree of discretion. The respondent submitted that a single standard of review applied to the decision (see Attorney General of Canada v. Sketchley, [2006] 3 F.C.R. 392, 2005 FCA 404).
(b) Review of OIC
[33] The respondent submitted that the Minister did not commit a reviewable error regarding the meaning of the term “resides” in subsection 75(1) of the Indian Act. It was submitted that the Minister had not made a reviewable decision and that only the decision of the Governor in Council was subject to review. The respondent submitted that the sources cited by the applicants betrayed their position, since in Thompson above, Parliament and the Supreme Court of Canada used the terms “residing” and “ordinarily resident” as synonyms.
[34] The respondent submitted that the terms “residence” in section 76, “ordinarily resident” in section 77, and “resides” in section 75, were used synonymously in the Indian Act. The respondent noted that paragraph 76(1)(e) authorized the Governor in Council to make regulations regarding the definition of “residence” for determining the eligibility of voters, yet section 77 used the term “ordinarily resident” to describe requirements for voter eligibility. In addition, the regulations defining residence as authorized under paragraph 76(1)(e) prescribe the meaning of “ordinarily resident”. The respondent submitted that there was no basis for concluding that the residency requirement for council eligibility had a broader meaning than the defunct residency requirement for voter eligibility found in section 77.
[35] The respondent noted that in addition to residence, section 75 required that a person be an “elector” in order to be a candidate. Prior to Corbiere, a person had to be “ordinarily resident” on-reserve to be an elector under section 77, and while the residency requirement in section 77 was eliminated, it existed when Parliament imbued the terms “residence” and “ordinarily resident” with meaning. The respondent submitted that Parliament would not have intended a broader meaning for the term “resides” in section 75 while imposing the condition of voter eligibility, which incorporated the requirement of being ordinarily resident on-reserve. It was submitted that this would result in Parliament frustrating its own intention. The respondent submitted that the Minister did not err in using the terms “ordinarily resident” and “resides” as having the same meaning as they did in the Indian Act.
II. Constitutionality of Section 75(1) of the Indian Act
[36] The respondent submitted that the applicants failed to make out a claim that subsection 75(1) of the Indian Act was contrary to section 15 of the Charter. It was submitted that Corbiere was distinguishable from the case at hand as it dealt with voter eligibility and the absolute prohibition of participation in band governance. However, the scheme at hand allowed voting by off-reserve band members and only restricted their eligibility for council.
(a) Section 15
[37] The respondent applied the Law test to the facts of the case and conceded that subsection 75(1) of the Indian Act fulfilled the first two steps. However, it was submitted that the residency requirement was not discriminatory. It was submitted that the residency requirement balanced competing interests by ensuring a role for off-reserve band members, but ensuring that those with the most direct connection to the reserve had a special ability to control it.
[38] The respondent noted that the scope of the decision in Corbiere was limited to the issue of whether the complete disenfranchisement of off-reserve band members pursuant to subsection 77(1) of the Indian Act violated section 15 of the Charter. It was submitted that the majority in Corbiere believed that a scheme differentiating between on- and off-reserve band members would be constitutionally sustainable so long as it did not constitute a complete denial of off-reserve voting rights. It was submitted that the Court recognized that such distinctions may be necessary since on-reserve members are more directly affected by band council decisions.
(b) Section 1
[39] The respondent submitted that the pressing and substantial objective served by subsection 75(1) of the Indian Act was to ensure that those with the most immediate connection to the reserve had a special ability to control its future. It was submitted that the residency requirement was rationally connected to this objective.
[40] The respondent noted that in Corbiere, the complete prohibition of voting by off-reserve band members failed the minimal impairment stage of the section 1 test because it banned them from participating in band governance. It was submitted that the requirement was not a ban on participation by off-reserve members in band governance, as they could vote in band council elections. It was submitted that absent a complete ban, the minimal impairment test did not require the government to adopt the least rights impairing scheme possible for achieving the underlying objective. Instead, the government must show that there was a reasonable basis for believing that the requirement for minimal impairment was satisfied (see Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, (1989) 58 D.L.R. (4th) 577).
[41] The respondent submitted that the Court should defer to Parliament’s choice in adopting a system of governance that balanced the interests of band members by extending the franchise to off-reserve members and limiting band council eligibility to on-reserve members. It was submitted that the government did not act unreasonably in adopting this scheme and that the minimum impairment requirement was satisfied.
[42] In weighing the salutary effects of the objective against its deleterious effects, the respondent submitted that the benefits of ensuring that on-reserve members had a special ability to control its future was proportional to the impact of excluding off-reserve members from band council, since they were given a say in governance as voters.
(c) Remedy
[43] Should the Court find that the residence requirement violated section 15 of the Charter and was not saved by section 1, it was submitted that the appropriate remedy was a delayed declaration of invalidity. It was submitted that the government would need a reasonable amount of time to examine alternative options, given that the balancing of interests in this context was difficult. The respondent submitted that the consequences of an immediate declaration of invalidity were far reaching. The legitimacy of band elections throughout Canada would be questioned and following the next band election, many band councils could consist entirely of off-reserve band members.
Analysis and Decision
[44] The issue of mootness was raised by the respondent just prior to the hearing. I will deal with this issue first.
[45] Issue 4
Is the application for judicial review moot?
The respondent submitted that the application for judicial review was moot as the term for which the applicants were elected had expired and a new election had been held.
[46] In my view, the underlying factual basis for this application for judicial review has disappeared. The applicants were originally elected on November 8, 2004 to serve a two-year term, but their election was set aside pursuant to the OIC issued by the Governor in Council on June 28, 2005. The applicants obtained an interlocutory injunction on August 10, 2005, and all nine councillors were reinstated pending the final determination of this application for judicial review. Their two-year election term expired on November 8, 2006, and on December 14, 2006, the applicants were re-elected for another term. The results of this election were appealed on residency grounds on January 25, 2007. While this appeal might become subject to another decision by the Governor in Council and is not necessarily relevant to the case at hand, it does illustrate the concern expressed by the applicants regarding the disruption and uncertainty caused by subsection 75(1) of the Indian Act with respect to band governance.
[47] In Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, (1989) 57 D.L.R. (4th) 231, the Supreme Court of Canada stated the following regarding mootness, at paragraph 16:
The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. The cases do not always make it clear whether the term "moot" applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the "live controversy" test. A court may nonetheless elect to address a moot issue if the circumstances warrant.
[48] I find that this application for judicial review of the OIC is technically moot. No live controversy exists with respect to the validity of the Governor in Council’s OIC as the relevant band council term has expired.
[49] Should the Court exercise its discretion to hear this application for judicial review?
The Supreme Court of Canada stated the following regarding the doctrine of mootness in Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3, 2003 SCC 62, at paragraphs 18 to 22:
Although this appeal is moot, the considerations in Borowski, supra, suggest that it should be heard. Writing for the Court, Sopinka J. outlined the following criteria for courts to consider in exercising discretion to hear a moot case (at pp. 358-63):
(1) the presence of an adversarial context;
(2) the concern for judicial economy; and
(3) the need for the Court to be sensitive to its role as the adjudicative branch in our political framework.
In this case, the appropriate adversarial context persists. The litigants have continued to argue their respective sides vigorously.
As to the concern for conserving scarce judicial resources, this Court has many times noted that such an expenditure is warranted in cases that raise important issues but are evasive of review (Borowski, supra, at p. 360; International Brotherhood of Electrical Workers, Local Union 2085 v. Winnipeg Builders' Exchange, [1967] S.C.R. 628; New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46). The present appeal raises an important question about the jurisdiction of superior courts to order what may be an effective remedy in some classes of cases. To the extent that the reporting order is effective, it will tend to evade review since parties may rapidly comply with orders before an appeal is heard.
Moreover, in deciding whether to hear a moot case, courts must weigh the expenditure of scarce judicial resources against "the social cost of continued uncertainty in the law" (Borowski, supra, at p. 361). The social cost of uncertainty as to the available Charter remedies is high. The Charter is designed to protect those who are most vulnerable to the dangers of majority rule; this aspect of the Charter's purpose is evident in the provisions protecting official minority language education rights. If the Court leaves this matter undecided and courts are left under a misapprehension as to the tools available to ensure that government behaviour conforms with the Charter, the obvious danger is less than full protection of Charter rights. Thus, the expenditure of judicial resources is warranted in the present case despite the fact that the appeal may be moot. The decision of this Court will provide guidance on the important question of the nature and extent of remedies under s. 24 of the Charter in similar cases.
Finally, the Court is neither departing from its traditional role as an adjudicator nor intruding upon the legislative or executive sphere by deciding to hear this case (Borowski, supra, at p. 362). The question of what remedies are available under the Charter falls squarely within the expertise of the Court and is not susceptible to legislative or executive pronouncement. Furthermore, unlike in Borowski, supra, at p. 365, the appellants are not seeking an answer to an abstract question on the interpretation of the Charter; they are not "turn[ing] this appeal into a private reference". The Attorney General of Nova Scotia appealed successfully against an order made against it by a superior court. Although the immediate grievances of the appellants have now been addressed, deciding in this case will assist the parties to this action, and others in similar circumstances, in their ongoing relationships.
[50] I will now consider whether the Court should exercise its discretion to hear this application for judicial review, regardless of the fact that its underlying factual basis has disappeared.
[51] In my view, there appears to be an adversarial context present in this case. The applicants seek relief in the form of a declaration that the residency requirement in subsection 75(1) of the Indian Act is unconstitutional, not simply an order setting aside the decision of the OIC. The respondent has opposed such a declaration vigorously and its arguments stemmed beyond allegations of mootness. For example, the respondent submitted that there was an insufficient evidentiary basis for adjudicating the constitutionality of a provision which affected the electoral process governing First Nation bands. The respondent has also made arguments in support of the ameliorative purpose of distinctions made between on- and off-reserve band members in the context of band council elections.
[52] Judicial economy concerns are relevant when deciding whether a court should hear a moot application. However, arguments regarding the scarcity of judicial resources may be trumped where the issue at hand is sufficiently important and evasive of review. I have considered the affidavit evidence filed with respect to this motion and it seems that issues relating to the residency of band council candidates are evasive of review. These issues are also important to the efficient governance of First Nation bands across Canada and the rights of individuals to participate in the representative governance of their band.
[53] Chief Wilfred King, of the Gull Bay First Nation, deposed that the constitutionality of the residency requirement in subsection 75(1) of the Indian Act would not be able to be heard in another forum or at another time. Chief King noted that due to the fact that band councillor positions are held for two-year terms; the timelines for election appeals, investigations and the judicial process are lengthy; tremendous amounts of resources are required to bring a matter before the Court; and many interlocutory motions are filed by the respondent, it becomes practically impossible for a similar matter to reach a hearing prior to the expiration of the term of band council office referred to in a disputed OIC.
[54] Chief King indicated that he was not aware of any applications for judicial review of election appeals under the Indian Act which involved the Department of Justice that had reached a hearing. He attributed this fact to the timelines involved. Chief King deposed that the only election appeal case he was aware of that had reached a judicial review application hearing was that of a band custom code election which did not involve the Department of Justice (see Hartley).
[55] Another relevant factor in determining whether to hear a moot case is the social cost of uncertainty in the law. Chief King’s affidavit disclosed that the governance of Gull Bay First Nation and other bands across Canada has suffered due to uncertainties with respect to the validity of the impugned residency requirement. Chief King deposed that election appeals on the basis of residency are a source of repetitive disturbance to the day to day governance of Gull Bay First Nation, the projects the Gull Bay Band Council undertakes on behalf of all band members, and the choice of representatives by band members. Election appeals on this basis also involve significant expenditures of time, energy and financial resources on the part of the band and individual counsellors.
[56] Chief King deposed that monies spent on unnecessary elections are not available to develop urgently needed housing, water and power upgrades, as well as other social, health and education needs of band members. Finally, where quorum is lost, the band council is unable to authorize financial and legal transactions which have serious repercussions for the band. In my view, there are important social consequences for Gull Bay Band and bands across Canada, where uncertainty as to the law exists regarding the impugned residency requirements.
[57] Finally, I acknowledge the need for the Court to be sensitive to its role as the adjudicative branch in our political framework. However, ruling upon the constitutionality of a legislative provision fits squarely within the Court’s jurisdiction and does not take away from the legislature’s role.
[58] In my view, the factors enumerated above lead to the conclusion that the Court should exercise its discretion to hear the application. However, it is also important to note the principle that restraint should be exercised by the Court in deciding issues of constitutionality despite the lack of a live issue. The Supreme Court of Canada commented upon this issue in Philips v. Nova Scotia (Commissioner of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97, (1995), 124 D.L.R. (4th) 129, at paragraph 12:
This practice applies, a fortiori, when the substratum on which the case was based ceases to exist. The court is then required to opine on a hypothetical situation and not a real controversy. This engages the doctrine of mootness pursuant to which the court will decline to exercise its discretion to rule on moot questions unless, inter alia, there is a pressing issue which will be evasive of review. See Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342. The practice applies notwithstanding that the appeal has been argued on the basis which has disappeared. Accordingly, in Tremblay v. Daigle, [1989] 2 S.C.R. 530, the Court was advised, in the middle of argument, that the appellant, who was appealing an order enjoining her from having an abortion, had proceeded with an abortion. The Court felt constrained to deal with legal issues with respect to the propriety of granting an injunction in the circumstances. It did so because the nature of the issue was such that it would be difficult or impossible for another woman in the same predicament to obtain a decision of this Court in time. The Court, however, declined to deal with the issue of fetal rights under s. 7 of the Charter and stated, at pp. 571-72:
As we have indicated, the Court decided in its discretion to continue the hearing of this appeal although it was moot, in order to resolve the important legal issue raised so that the situation of women in the position in which Ms. Daigle found herself could be clarified. It would, however, be quite a different matter to explore further legal issues which need not be examined in order to achieve that objective. The jurisprudence of this Court indicates that unnecessary constitutional pronouncement should be avoided: Morgentaler (No. 2), [[1988] 1 S.C.R. 30], at p. 51; Borowski, [[1989] 1 S.C.R. 342]; John Deere Plow Co. v. Wharton, [1915] A.C. 330 (P.C.), at p. 339; Winner v. S.M.T. (Eastern