McCarthy v. Whitefish Lake First Nation #128

McCarthy v. Whitefish Lake First Nation #128
Court (s) Database
Federal Court Decisions
Date
2023-02-15
Neutral citation
2023 FC 220
File numbers
T-800-21, T-808-21
Decision Content
Date: 20230215
Dockets: T-800-21
T-808-21
Citation: 2023 FC 220
Ottawa, Ontario, February 15, 2023
PRESENT: The Honourable Mr. Justice Favel
BETWEEN:
KAREN MCCARTHY AND LORNA JACKSON-LITTLEWOLFE
Applicants
and
WHITEFISH LAKE FIRST NATION #128
Respondent
JUDGMENT AND REASONS
I. Nature of the Matter
[1] Karen McCarthy and Lorna Jackson-Littlewolfe [Applicants] are members of Whitefish Lake First Nation #128 [WLFN or Respondent]. Ms. McCarthy and the Band Members’ Alliance and Advocacy Association of Canada initiated Federal Court file T-800-21. Ms. Jackson-Littlewolfe initiated Federal Court file T-808-21 [collectively, Applications]. The Applications have been consolidated and now form the present matter before the Court.
[2] The Applicants seek judicial review of two decisions made by the WLFN Appeals Committee [Committee]. On April 14, 2021, the Committee held that Ms. McCarthy was ineligible to vote in the upcoming WLFN Election because she regained her Indian status and membership in WLFN under Bill C-31 [Bill C-31 Voting Policy Decision]. WLFN maintains that, pursuant to WLFN custom, members who regained status under Bill C-31 are ineligible to vote in WLFN elections [Bill C-31 Voting Policy or Policy].
[3] On April 20, 2021, the Committee held that Ms. Jackson-Littlewolfe was ineligible to run for Chief and Council because she lives in a common law marriage [Common Law Marriage Prohibition Decision] [collectively, Decisions]. The Committee made this Decision pursuant to section 1(c) of the Saddle Lake Tribal Customs [Election Regulations], which states that “no person living in a Common law marriage shall be eligible for nomination” [Common Law Marriage Prohibition or Prohibition].
[4] Among other relief, the Applicants seek declarations that the Bill C-31 Voting Policy, the Common Law Marriage Prohibition, and the Decisions are contrary to subsection 15(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter] [Constitution Act, 1982]. They also seek an Order directing a new election that is Charter compliant.
[5] WLFN submits that the Charter does not apply to its Decisions by virtue of section 25 of the Charter and that the Applications should be dismissed. Alternatively, if the Court finds that WLFN has infringed the Applicants’ section 15 Charter rights in a manner that cannot be saved by section 1 or shielded by section 25, WLFN asks the Court to suspend the declarations of invalidity for a period of 12 months for the Bill C-31 Voting Policy and for a period of 6 months for the Common Law Marriage Prohibition.
[6] The Applications for judicial review are allowed for the following reasons:
The Decisions are unreasonable because they are unlawful. Neither the Bill C-31 Voting Policy nor the Common Law Marriage Prohibition are WLFN custom. The Common Law Marriage Prohibition is also unreasonable because the Committee failed to consider Ms. Jackson-Littlewolfe’s Charter rights.
The Charter applies to WLFN’s leadership selection processes as set out in the Election Regulations.
Section 25 of the Charter cannot shield the Bill C-31 Voting Policy or the Common Law Marriage Prohibition because:
The Bill C-31 Voting Policy discriminates on the basis of sex. Section 28 of the Charter, which protects gender equality “[n]otwithstanding anything else”in the Charter, prohibits WLFN from invoking section 25 to shield the Bill C-31 Voting Policy; and
WLFN has failed to establish that the Common Law Marriage Prohibition is a custom enacted pursuant to its inherent right to self-government. Section 25 cannot shield a Charter infringing custom if it does not have the force of law.
Both the Bill C-31 Voting Policy and the Common Law Marriage Prohibition are contrary to subsection 15(1) of the Charter and cannot be saved by section 1.
II. Background
[7] WLFN is a Treaty 6 Nation with a reserve near St. Paul, Alberta. The Applicants state that WLFN and Saddle Lake First Nation #125 [SLFN] form the Saddle Lake Cree Nation #462 [SLCN]. Under the Indian Act, RSC 1985, c I-5 [Indian Act], SLCN is a single band. It is a large First Nation with approximately 11,231 members. Although part of SLCN, WLFN and SLFN have their own reserves and Band Councils that conduct separate elections. WLFN does not dispute this characterization of the relationship between WLFN and SLFN.
[8] WLFN does assert that Canada wrongfully amalgamated WLFN with SLFN. This claim is the subject of Federal Court proceeding T-1728-11. Suffice to say that the parties in the present matter agree that the relationship between WLFN and SLFN is imperfect.
(1) Procedural History
[9] The Applicants originally named SLCN as a respondent in both Applications; however, the parties consented to an Order removing SLCN as a respondent.
[10] On July 30, 2021, WLFN moved to convert the Applications into actions. WLFN’s motions were dismissed on October 20, 2021, with costs. On February 25, 2022, the Court issued an Order consolidating the Applications.
(2) WLFN Elections
[11] The primary event giving rise to the Applications was the 2021 WLFN election for Chief and Council [Election], held on May 6, 2021, and April 29, 2021, pursuant to the Election Regulations.
[12] The Election Regulations were enacted during the 1950s and govern both WLFN and SLFN. The introduction to the Election Regulations states that “[a]ll areas not covered by the outline herein shall be covered under the Indian Act, as spelled out in section[s] 73 to 78”.
[13] Section 2(a) of the Election Regulations sets out who is eligible to vote in elections. Section 2(a) states that “[a]ny Band member, over the age of 21 years, on the day of the election, whether living on the Reserve or not, shall be eligible to cast a vote; with the exception of Red Ticket Indians.”
[14] Section 1(c) of the Election Regulations prohibits members from being nominated for Chief or Council if they live in a common law marriage. It is common ground between the parties that the Common Law Marriage Prohibition stems from Christian values and moral obligations.
[15] In 1990, WLFN and SLFN passed a joint Band Council Resolution [BCR] [1990 BCR] stating that any changes to the Election Regulations must be agreed upon by the Band Councils of both First Nations.
[16] In 2017, Justice McVeigh found the Election Regulations inadequate (Shirt v Saddle Lake Cree Nation, 2017 FC 364 [Shirt I]). This matter did not involve WLFN. The Court required SLFN to develop a new process to determine the eligibility of candidates, review the eligibility of the applicants, and if any applicants were deemed eligible, hold a new election (at paras 70, 72). The applicants in Shirt I did not raise constitutional arguments.
[17] Later that year, WLFN and SLFN began developing a new election law. Ms. Jackson-Littlewolfe participated as a member on the WLFN Working Group. In her affidavit, Ms. Jackson-Littlewolfe explains that the new election law was intended to apply to both WLFN and SLFN. However, in 2018, WLFN leadership stopped participating. Both Ms. Jackson-Littlewolfe and Ms. McCarthy continued to attend SLFN meetings to work on the new law.
[18] In February 2019, SLFN Elders agreed on a final draft of the new election code, “onihcikiskwapowin – Tribal Customs Elections Code” [New Election Code]. The New Election Code does not contain the Common Law Marriage Prohibition.
[19] WLFN acknowledges that SLFN used the New Election Code in the 2019 SLFN election. However, WLFN submits that the New Election Code was enacted without consulting WLFN, contrary to the 1990 BCR. In Shirt v Saddle Lake Cree Nation, 2022 FC 321 [Shirt II], decided after the New Election Code was allegedly finalized, Justice Strickland noted that the SLCN membership never ratified the New Election Code and that the Election Regulations, the same law that these Applications are concerned with, continue to govern SLFN elections (at para 3). This matter also did not involve WLFN.
(3) WLFN Membership & Bill C-31
[20] According to the Governance Profile maintained by Crown-Indigenous Relations and Northern Affairs Canada, SLCN is a “Section 11 Band.” This means that, pursuant to section 11 of the Indian Act, the federal government may add individuals to the SLCN membership list. In comparison, “Section 10 Bands” control their own membership lists.
[21] Prior to 1985, the Indian Act contained discriminatory provisions that prevented a status Indian woman from maintaining her Indian status and transmitting it to her children if she married a non-status man. Conversely, if a status Indian man married a non-status woman, he was able to retain his status and transmit it to his children (McIvor v Canada (Registrar of Indian and Northern Affairs), 2009 BCCA 153 at paras 15-23 [McIvor]).
[22] When the federal government introduced Bill C-31, An Act to Amend the Indian Act, 1st Sess, 33rd Parl, 1985 [Bill C-31] in an attempt to remedy the historical discrimination that disenfranchised thousands of women and, by extension, their children, WLFN permitted all newly enfranchised members to obtain full membership. Notwithstanding this fact and the fact that SLCN is a Section 11 Band, WLFN maintains that “[m]embers that are of Bill C-31 descent” [Bill C-31 Members] are not entitled to vote in WLFN elections pursuant to WLFN ‘custom’. WLFN maintains that the Bill C-31 Voting Policy has been a WLFN custom since Bill C-31 first came into force.
III. The Decisions and Precipitating Events
[23] Ms. McCarthy was born without Indian status because her mother married a non-status man in 1971. She regained her status and membership in SLCN/WLFN under Bill C-31. However, the Bill C-31 Voting Policy renders Ms. McCarthy ineligible to vote in WLFN elections.
[24] In the first week of January 2021, WLFN posted a list of eligible electors prior to the Election. Ms. McCarthy and her children were not on the list. Ms. McCarthy “appealed the voters list” in a January 12, 2021 letter, attaching a copy of her Indian status card and requesting that she be added to the voters list. Ms. McCarthy submitted a similar appeal in 2017, which the Committee dismissed. She did not seek judicial review of the 2017 decision.
[25] On April 14, 2021, Ms. McCarthy received a letter from the Chair of the Committee dismissing her appeal. The letter stated that, after reviewing “the relevant information”, the Committee “determined that the Membership Clerk was correct that you are a Bill C-31 Member.” The letter proceeded to state:
It is common practice and the customary law of the [WLFN] that Bill C-31 people are not eligible to vote in an Election or referendum for they are not Electors. Accordingly, we regret to advise that you are not considered to be eligible to vote in the Election, based on information received from Whitefish Lake Membership office.
[26] On April 15, 2021, Ms. Jackson-Littlewolfe’s accepted her nomination as a candidate for the Election. On April 20, 2021, the Chair of the Committee advised Ms. Jackson-Littlewolfe that an appeal was filed challenging her nomination pursuant to the Common Law Marriage Prohibition.
[27] On April 20, 2021, the Chair of the Committee requested a meeting with Ms. Jackson-Littlewolf to discuss the Committee’s Decision regarding her eligibility as a candidate. Ms. Jackson-Littlewolfe attended a meeting that night, where the Committee gave her the following letter signed by all the members of the Committee:
To: Lorna Jackson-Littlewolfe
Please be advised that the Appeals Committee held a duly convened meeting on April 19, 2021 in the Council Chambers to address letters protesting candidates. In accordance to the Tribal Custom Electoral Bylaw Section 1(c), it has been determined that you are not an eligible candidate for the 2021 Elections, as you are in a common law relationship.
…
Based on the above, the Appeals Committee has ruled that you are not an eligible candidate…
[28] In her affidavit, Ms. Jackson-Littlewolfe deposes that she told the Committee that this Court struck down the Election Regulations in Shirt I and that the Election Regulations are discriminatory. She also told the Committee that SLFN had implemented the New Election Code and that she would be judicially reviewing the Committee’s Decision.
[29] The next day, Ms. Jackson-Littlewolfe requested another letter from the Committee confirming its Decision and a copy of the Committee’s meeting minutes. The Chair of the Committee provided the following letter:
To: Lorna Jackson-Littlewolfe:
Please be advised that the Appeals Committee held a duly convened meeting on April 20, 2021 in the Council Chambers to address your eligibility.
As discussed last evening in the Council Chambers that you are not eligible to run in the Whitefish Lake Band #128 Elections 2021 pursuant to Section 1(c) of the [Election Regulations].
We have come to a conclusion that we are going to uphold the requirement of the [Election Regulations], which deems that you are not eligible.
Based on the above, we have made a final decision to omit your name from the list of candidates who are eligible to run…
IV. The Evidence and Preliminary Issues of Admissibility
[30] The only evidence tendered by the parties was several affidavits of Elders and former Band Council members. No one was cross-examined, leading to a limited evidentiary record for the determination of such important issues. I will set out a detailed summary of the evidentiary record in light of two issues the Court must decide. First, the Court must determine whether the Bill C-31 Voting Policy and the Common Law Marriage Prohibition are WLFN customs. Second, the Court must determine whether the Respondent possesses an “aboriginal, treaty, or other” right triggering the application of section 25 of the Charter.
(1) Bill C-31 Voting Policy Evidence
[31] Ms. McCarthy submitted five affidavits. In her own affidavit and to her knowledge, WLFN leadership unilaterally imposed the Bill C-31 Voting Policy without consulting the WLFN membership. She deposes that Bill C-31 Members have consistently objected to the Policy and that based on her consultations with WLFN members, they agree that the Policy is not a custom. Ms. McCarthy also explains that since initiating this application for judicial review, she has been harassed and the WLFN Band Council passed a BCR evicting her from her band-owned home.
[32] Three former WLFN Chiefs provided affidavits: Elder Marvin Simon Sparklingeyes, Charles Brian Favel, and Ernest Raymond Houle. The last affidavit is signed by Elder Charlie Adolphus Jackson. In these affidavits, the deponents state that historically, WLFN did not categorize WLFN members; rather, WLFN sought to treat all members equally. They also express their belief that the Bill C-31 Voting Policy is not a WLFN custom. They explain that after Bill C-31 became law, past leadership denied Bill C-31 Members the right to vote without consulting the WLFN membership. They state that it is not WLFN custom to afford some members more rights than others. They also state that they do not support the Bill C-31 Voting Policy and that they believe the consensus of the WLFN membership is that all members, including Bill C-31 Members, should have the right to vote.
[33] WLFN submitted two affidavits. The first affidavit is sworn by Elder Ben Houle, who served as a Councillor of WLFN from 2005 to 2011. The second affidavit is signed by Elder Ed Cardinal, who serves as the Chair of the Committee. Elder Cardinal deposes that in the 1980s and 1990s, it was “commonly understood” that only “section 6(1)(a) Indian Act Indians” were entitled to vote. Elder Ben Houle deposes that prior to 1985, “it was common knowledge” and a “natural consequence” that women would lose their rights if they married out. However, he states that this practice “was not a law based in the history or traditions, customs of the Nation.”
[34] Elder Ben Houle also deposes that, since Bill C-31, “it has been the consistently held view of our community that [Bill C-31 Members] do not have the right to vote or participate in elections.” Both Elder Ben Houle and Elder Cardinal state that the Bill C-31 Voting Policy has continued since 1985. They also both state that up until the late 1990s and potentially early 2000s, a representative from Indian and Northern Affairs Canada [INAC] acted as the electoral officer for WLFN elections and that the Bill C-31 Voting Policy was in place during this time. Finally, they both express their belief that changes to WLFN governance should made by the WLFN membership.
(2) Common Law Marriage Prohibition Evidence
[35] Ms. Jackson-Littlewolfe submitted four affidavits. In her own affidavit, she explains that she was formerly married but is now living in a common law marriage.
[36] Anneke Pingo swore the second affidavit, which attaches the 2016 Census data for WLFN.
[37] Former WLFN Chief and Councillor Ernest Houle swore the third affidavit. Ernest Houle states that the “the traditional qualifications for selecting leaders were whether the leader could provide for and protect the people”, not their marital status. He does not believe the Common Law Marriage Prohibition reflects WLFN traditional practices or customs, nor is it somehow based on Treaty 6. He also explains that WLFN has applied the Common Law Marriage Prohibition in an arbitrary manner depending on the proposed candidate and Band Council. For example, in 1987, Charles Favel was permitted to run as a candidate in an election even though he was in a common law relationship. A similar situation occurred in 2013. Ernest Houle deposes that he has had “detailed conversations” with band members and believes that the majority are opposed to the Common Law Marriage Prohibition. Finally, he states that no one has challenged the Common Law Marriage Prohibition because many members lack the financial resources and fear bullying.
[38] Elder Sparklingeyes, Ms. Jackson-Littlewolfe’s father, swore the final affidavit. Elder Sparklingeyes states that the Common Law Marriage Prohibition was introduced in 1953 after a hereditary Chief “left his wife to go live with another woman” in 1923. He explains that this “offended the Christian beliefs of many band members”, causing them to no longer desire him as Chief. Elder Sparklingeyes believes the Common Law Marriage Prohibition no longer reflects the views of the majority of WLFN. He states that he is “aware of some people who do not vote because they don’t believe our elections are fair because people are not treated equally.”
[39] WLFN submitted two affidavits. One is from Ms. Shauna Jackson, the Executive Assistant to the WLFN Band Council, and the other from Elder Ben Houle. Ms. Jackson’s affidavit does not contain evidence relevant to the Common Law Marriage Prohibition. The purpose of her affidavit is to show that Ms. Jackson-Littlewolfe appealed the nomination of two candidates in 2014 because they lived off the WLFN reserve.
[40] Elder Ben Houle deposes that the Common Law Marriage Prohibition reflects WLFN’s “customs and traditional practices” and “historical practices of governance.” He also recounts speaking with Elder and former Reverend Bill Jackson [Elder Jackson] about the Common Law Marriage Prohibition. He deposes that Elder Jackson, an 88-year-old member of WLFN, told him the following:
Elder Jackson’s father told Elder Jackson that in 1876, WLFN’s reserve was surveyed around a Mission. As a result, WLFN adopted the teachings of the Methodist Church, including the belief that a man should only have one wife;
Even during the time that WLFN leadership was governed by a hereditary system, respected members of the community determined that their leadership must be married;
No one “really questioned” the Common Law Marriage Prohibition during Elder Jackson’s lifetime and the custom was followed “religiously”;
The current WLFN Chief and members, particularly Elders, are satisfied with the Common Law Marriage Prohibition; and
A survey was distributed to Elders six or seven years ago. Most, if not all, of the Elders were in favour of the current Election Regulations.
[41] Finally, Elder Ben Houle notes that an INAC representative acted as WLFN’s electoral officer in the 1990s and possibly the early 2000s.
(a) Admissibility of Elder Ben Houle’s Affidavit in T-808-21
[42] Ms. Jackson-Littlewolfe submits that Elder Ben Houle’s evidence contains hearsay statements from Elder Jackson, and that this is inappropriate because Elder Jackson was available to make a sworn statement (Cowichan Tribes v Canada (AG), 2019 BCSC 1243 at paras 105-08 [Cowichan]).
[43] WLFN submits that oral history is hearsay by its very nature and that the evidence in Elder Ben Houle’s affidavit is both necessary and reliable. WLFN also states that the “best evidence” rule ought to apply, which permits a Court to admit oral history evidence if it is the best evidence available to an Indigenous party (Delgamuukw v British Columbia, [1997] 3 SCR 1010 at paras 103-06, 153 DLR (4th) 193 [Delgamuukw]). Finally, WLFN submits that the oral history within Elder Ben Houle’s affidavit satisfies the criteria in Mitchell v Minister of National Revenue, 2001 SCC 33 at para 30 [Mitchell] because:
It is useful, as it provides the history of the Election Regulations and WLFN governance;
It is reasonably reliable and is a result of customary knowledge transfer; and
The probative value clearly outweighs any prejudicial effects.
[44] In Potts v Alexis Nakota Sioux Nation, 2019 FC 1121 [Potts], Justice McDonald held that hearsay evidence is not necessary or reliable when the party introducing the evidence fails to explain why the individuals with actual knowledge of the events did not provide direct evidence themselves (at para 28).
[45] The admission of oral histories shall be determined on a case-by-case basis (Delgamuukw at para 87). Courts must be cognizant of the unique evidentiary challenges facing Indigenous parties claiming constitutional rights (Mitchell at paras 27-28). However, that does not mean that the law of evidence does not apply to oral history evidence (Mitchell at para 29; Cowichan at para 78). Rather, courts must apply the rules of evidence flexibly “in a manner commensurate with the inherent difficulties posed by such claims” (Mitchell at para 29).
[46] I am persuaded by the Respondent’s submissions and find that Elder Ben Houle’s affidavit is admissible based on the Mitchell criteria (at para 30). First, the evidence is useful. In order to be useful, oral histories must provide “evidence of ancestral practices and their significance that would not otherwise be available” (Mitchell at para 32). Here, the evidence speaks to Elder Ben Houle’s understanding of the history and genesis of the Common Law Marriage Prohibition, and there is no other available source of this evidence. In my view, whether the evidence comes from Elder Ben Houle or Elder Jackson himself, it is still oral history evidence.
[47] Second, the evidence is still reasonably reliable (Mitchell at para 33). Elder Ben Houle is an WLFN Elder that represents a “reasonably reliable source” of WLFN’s history. He is a life-long resident of WLFN, save for several years he spent attending college, who engages with other Elders such as Elder Jackson. Ms. Jackson-Littlewolfe has not explained why an additional person or link in the chain of oral history makes the evidence less reliable.
[48] Finally, the probative value of the evidence is not “overshadowed by its potential for prejudice” (Mitchell at para 30). Ms. Jackson-Littlewolfe has not explained why she would be prejudiced if the Court admitted Elder Ben Houle’s affidavit. Ms. Jackson-Littlewolfe did not cross-examine Elder Ben Houle, nor is there any indication that she would have cross-examined Elder Jackson if he swore his own affidavit. Further, in light of the limited evidence in the determination of such important issues, Elder Ben Houle’s affidavit provides additional context for the Court to consider.
[49] For these reasons, I will assess the weight of Elder Ben Houle’s affidavit along with the other evidence. I reach this conclusion keeping in mind that the goal of the rules of evidence is to “promote truth-finding and fairness” and to “facilitate justice” (Mitchell at para 30).
V. Issues and Standard of Review
[50] After considering the submissions of the parties, the issues for determination are:
Are the Bill C-31 Voting Policy and the Common Law Marriage Prohibition ‘customs’ and, if so, are the respective Decisions lawful?
Did the Committee fail to consider the Applicants’ Charter rights?
Does section 25 of the Charter assist WLFN?
Are WLFN’s decisions concerning leadership selection processes immune from Charter scrutiny?
Can section 25 of the Charter shield the Bill C-31 Voting Policy or the Common Law Marriage Prohibition?
Is the Bill C-31 Voting Policy or the Common Law Marriage Prohibition contrary to subsection 15(1) of the Charter?
If yes, are the infringements justified under section 1 of the Charter?
What are the appropriate remedies?
[51] Issues #1 and #2 challenge the Decisions from an administrative law perspective. Issues #4 and #5 challenge the constitutionality of the Bill C-31 Voting Policy and the Common Law Marriage Prohibition (Canadian Centre for Bio-Ethical Reform v City of Peterborough, 2016 ONSC 1972 at para 12). This Court has jurisdiction to address both arguments. Specifically, this Court may review “decisions made under a First Nation’s election laws, including where these laws are said to be ‘customary’” (Thomas v One Arrow First Nation, 2019 FC 1663 at para 14). The Court also has jurisdiction to declare First Nations’ election regulations unconstitutional and of no force and effect (Janvier v Chipewyan Prairie First Nation, 2021 FC 539 at para 33).
[52] Issue #1 attracts a reasonableness standard of review. The presumption of reasonableness applies to an administrative decision-maker’s interpretation of their enabling statute (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 25 [Vavilov]). In this case, the Committee considered their customary law and determined that the Bill C-31 Voting Policy is a WLFN common practice and custom and that the Common Law Marriage Prohibition essentially reflects a custom. Deference is owed to Indigenous decision-makers’ understanding of their own Indigenous laws (Pastion v Dene Tha’ First Nation, 2018 FC 648 at paras 21-23 [Pastion]).
[53] As for Issue #2, when an administrative decision-maker’s decision allegedly infringes an applicant’s Charter rights, the framework set out in Doré v Barreau du Québec, 2012 SCC 12 [Doré] and Loyola High School v Québec (AG), 2015 SCC 12 [Loyola] applies (Vavilov at para 57; Law Society of British Columbia v Trinity Western University, 2018 SCC 32 at para 57 [TWU 2018]). Typically, the Doré/Loyola framework requires the Court to adopt a deferential standard of review (Doré at paras 54-58; Canadian Broadcasting Corporation v Ferrier, 2019 ONCA 1025 at para 34 [Ferrier]). However, since Vavilov, the Ontario Court of Appeal has opined that a decision-maker’s refusal or failure to consider an applicable Charter right is a “general question of law of central importance to the legal system as a whole” (Ferrier at para 35, citing Vavilov at para 17). Accordingly, the second issue is reviewable on the standard of correctness.
[54] The remaining issues do not attract a standard of review. Typically, whether a decision-maker’s enabling statute violates the Charter and whether an infringement is saved by section 1 are constitutional questions that attract a correctness review (Vavilov at para 57). This standard also applies to whether section 25 of the Charter operates as the Respondent alleges (Vavilov at paras 55-56). However, the Committee did not pronounce on any of these questions. Accordingly, no standard of review applies to Issues #3, #4, or #5. This distinction is more academic than practical, as “no standard of review” is the functional equivalent of a “correctness review”.
[55] I note that the record does not indicate that Ms. McCarthy directly questioned the constitutional validity of the Bill C-31 Voting Policy before the Committee. Likewise, WLFN never raised a section 25 Charter defence. None of the parties make submissions on whether new arguments can be raised for the first time on judicial review (Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 at paras 22-26; Forest Ethics Advocacy Association v Canada (National Energy Board), 2014 FCA 245 at paras 28, 37-46).
[56] This consideration does not concern Ms. Jackson-Littlewolfe. Ms. Jackson-Littlewolfe deposes that she told the Committee that the Common Law Marriage Prohibition is discriminatory and per Shirt I, potentially unconstitutional.
[57] In my view, the jurisprudence supports the view that parties are permitted to raise constitutional arguments for the first time when the new argument stems from the administrative decision itself (Fraser v Canada (Public Safety and Emergency Preparedness), 2021 FC 821 at para 29).
[58] Lastly, Issue #6 does not attract a standard of review because it pertains to the remedies that this Court can order.
VI. Analysis
A. Are the Bill C-31 Voting Policy and the Common Law Marriage Prohibition ‘customs’ and, if so, are the respective Decisions lawful?
(1) Bill C-31 Voting Policy
(a) The Law
[59] The party relying on an alleged custom must demonstrate that the custom reflects a broad consensus of the First Nation’s membership (Whalen v Fort McMurray No 468 First Nation, 2019 FC 732 at para 32 [Whalen I]; Bigstone v Big Eagle, [1993] 1 CNLR 25 at 34, 32 ACWS (3d) 862 (FCTD)). Justice Strickland summarized the key principles regarding customary law in Da’naxda’xw First Nation v Peters, 2021 FC 360 [Da’naxda’xw]:
[72] In summary, custom requires evidence of a practice and the manifestation of the will of the First Nation’s members to be bound by that practice. Establishing band custom requires evidence demonstrating that the custom is firmly established, generalized and followed consistently and conscientiously by a majority of the community, thus evidencing a broad consensus. Chief and Council alone cannot determine that a change in circumstance comprises a new custom, there must be broad consensus among the membership. Similarly, custom is not frozen in time, but any change requires a broad consensus of the membership. The inquiry into whether a custom enjoys broad consensus is fact and context specific and the evidence may demonstrate that there is no consensus. Custom may be demonstrated by a one-time event like a referendum or majority vote, by a series of events, or possibly acquiescence. The burden is on the party trying to demonstrate custom to prove that there is a broad consensus and the existence of a band custom and whether or not it has been changed with the substantial agreement of the band members will always depend on the circumstances.
[Citations omitted. Emphasis added.]
(b) Parties’ Positions
[60] Ms. McCarthy submits that WLFN has failed to demonstrate that the Bill C-31 Voting Policy reflects the broad consensus of the WLFN membership. Rather, the Policy has been imposed by leadership without consulting the WLFN membership. Ms. McCarthy also notes that there is nothing in the Election Regulations limiting her right to vote. She states that the Election Regulations provide that the Indian Act fills any gaps and that she would be entitled to vote under the Indian Act regime.
[61] WLFN, referring to the affidavits of Elders Ben Houle and Ed Cardinal, submits that the Bill C-31 Voting Policy is an unwritten custom that has been in place since Parliament enacted Bill C-31. WLFN does not make submissions on whether the Bill C-31 Voting Policy is a written custom.
(c) Conclusion
[62] In my view, the Bill C-31 Voting Policy Decision is unlawful because the Bill C-31 Voting Policy is neither a written nor an unwritten WLFN custom.
[63] Ms. McCarthy is not entirely correct when she states in her affidavit that the Election Regulations say “nothing about the gender of parents or sub-categories of members that may not be permitted to vote”. As noted above, section 2(a) of the Election Regulations states that “[a]ny Band member, over the age of 21 years, on the day of the election, whether living on the Reserve or not, shall be eligible to cast a vote; with the exception of Red Ticket Indians” (emphasis added). The parties have not made submissions on whether Bill C-31 Members fall into the “Red Ticket Indian” exception. I will clarify the relationship between Red Ticket Indians and Bill C-31 Members.
[64] In Daniels v Canada (Minister of Indian Affairs and Northern Development), 2013 FC 6, rev’d in part 2014 FCA 101, aff’d 2016 SCC 12, Justice Phelan explained the term “Red Ticket Indians” as follows:
[460] In the 1869 legislation An Act for the gradual enfranchisement of Indians, the better management of Indian affairs, and to extend the provisions of the Act, 81 Vict, c 43, the federal government introduced the statutory marrying out rule but it permitted women who married out to continue to draw annuities. The provision was continued in the Indian Act, 1876 and an administrative practice arose of issuing those women identity cards known as “red tickets”.
[461] By 1951 the Indian Act was amended and these “red ticket Indians” were required to commute their annuities and to leave the reserves. Ultimately those women who married out, together with their first generation descendants, were reinstated to Indian status under Bill C-31 in 1985.
[65] Essentially, the Election Regulations state that women who lost their status and membership because they married out are not eligible to vote. As noted by Justice Phelan, these are the same women, along with their descendants, who later became Bill C-31 Members.
[66] The “Red Ticket Indian” exception, with its origin stemming from the Indian Act and government policy, may have arguably constituted a written custom at the time WLFN enacted the Election Regulations. Further, the Bill C-31 Voting Policy may stem from the “Red Ticket Indian” exception. I do note that the affidavit of Elder Ben Houle briefly discusses the situation of women “marrying out” and receiving some compensation, and I presume that he is referring to the “Red Ticket Indian” exception. There is not much discussion beyond these assertions, including what is meant by “marrying out”.
[67] However, even if both these statements are true, this does not mean that the Bill C-31 Voting Policy is a written custom of WLFN. I stated above that it is arguable that the “Red Ticket Indian” exception is a written custom because it appears that WLFN simply adopted concepts and terms that were imposed on them through the Indian Act. There is no evidence as to whether this provision reflected the broad consensus of the community when it was adopted in the 1950s. The various affidavits, as summarized above, do not shed much light on this issue. To illustrate, Elder Ben Houle’s affidavit also states that the practice of women losing their rights if they “married out” was not “based in the history or traditions, customs” of WLFN.
[68] In addition, there is an important distinction between “Red Ticket Indians” and Bill C-31 Members. Whereas “Red Ticket Indians” lost their membership upon marrying out, Bill C-31 Members have full membership in WLFN. I agree with Ms. McCarthy that there is nothing within the Election Regulations (other than the “Red Ticket Indian” exception, which is now obsolete) or the Indian Act that limits certain members’ democratic rights. Accordingly, I am satisfied that the Bill C-31 Voting Policy is not a written custom of WLFN.
[69] I similarly conclude that the Bill C-31 Voting Policy is not an unwritten custom of WLFN.
[70] The affidavits of Elder Ben Houle and Elder Cardinal speak to WLFN’s customs from at least 26 years ago. Elder Ben Houle deposes that prior to 1985, it was WLFN’s custom that a woman would lose her rights if she married out. Elder Cardinal similarly deposes that in 1996, it was “commonly understood” that only “section 6(1)(a) Indian Act Indians” were entitled to vote. I am assigning this evidence little weight, as it speaks to an alleged custom from several decades ago and is based on an imposed rule that has since been deemed unconstitutional (McIvor). In my view, the relevant question is what WLFN’s current custom is concerning Bill C-31 Members, bearing in mind that customary law may change over time (Da’naxda’xw at para 72; McLeod Lake Indian Band v Chingee, [1998] FCJ No 1185 at para 10, 165 DLR (4th) 358 [Chingee]; Francis v Mohawk Council of Kanesatake, 2003 FCT 115 at para 24 [Francis]).
[71] In this regard, both Elder Ben Houle and Elder Cardinal state that the Bill C-31 Voting Policy has continued from 1985 to this day. Elder Ben Houle deposes that since Bill C-31, “it has been the consistently held view of our community that [Bill C-31 Members] do not have the right to vote or participate in elections”, but he does not explain how he knows this or his basis for this statement. This is the only evidence tendered by WLFN that speaks to the current state of the Bill C-31 Voting Policy.
[72] In comparison, Ms. McCarthy deposes that she has consulted with WLFN members about their views on the Bill C-31 Voting Policy. While more evidence of the individuals she consulted with may have been helpful, there is no reason to doubt this statement, particularly in light of Ms. McCarthy’s engagement in the WLFN Working Group. In any event, she deposes that the Bill C-31 Voting Policy does not reflect the will of the WLFN membership. The affidavits of Elder Sparklingeyes, Charles Brian Favel, and Ernest Raymond Houle corroborate Ms. McCarthy’s evidence. All of these individuals depose that they do not support the Bill C-31 Voting Policy.
[73] After considering the conflicting evidence, I find that WLFN has failed to establish that the Bill C-31 Voting Policy is a custom supported by a broad community consensus. Accordingly, the Bill C-31 Policy Decision is unreasonable because it is not grounded in law.
[74] This alone is enough to grant the application for judicial review in T-800-21. Having found that the Bill C-31 Voting Policy is not a law, I will nevertheless consider its constitutionality.
[75] I also wish to conclude by addressing WLFN’s evidence concerning the oversight and involvement of INAC representatives in WLFN elections from the 1900s to 2000s. In my view, this participation has no bearing on whether the Bill C-31 Voting Policy is grounded in custom. It also does not legitimize or validate WLFN’s discriminatory actions.
[76] The issues involving the Bill C-31 Voting Policy and the resulting Decision are, sadly, yet another example of the harmful impact of colonial laws and policies forced upon Indigenous peoples by the federal government. WLFN’s adoption of these colonial concepts further perpetuates the divide within its membership.
(2) The Common Law Marriage Prohibition
(a) Parties’ Positions
[77] Although neither Ms. Jackson-Littlewolfe nor WLFN directly address this issue, I am of the view that it is necessary to determine whether the Common Law Marriage Prohibition, as set out in section 1(c) of the Election Regulations, is a custom that was adopted or agreed to by the broad consensus of WLFN. Put simply, Ms. Jackson-Littlewolfe’s submissions and supporting affidavits state that the Common Law Marriage Prohibition is not a proper reflection of WLFN tradit