Misquadis v. Canada (Attorney General)

Misquadis v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2002-10-11
Neutral citation
2002 FCT 1058
File numbers
T-1274-99
Notes
Reported Decision
Decision Content
Federal Court Reports Ardoch Algonquin First Nation v. Canada (Attorney General) (T.D.) [2003] 2 F.C. 350
Date: 20021011
Docket: T-1274-99
Neutral citation: 2002 FCT 1058
BETWEEN:
ROGER MISQUADIS, PETER OGDEN, MONA PERRY,
DOROTHY PHIPPS-WALKER AND CHIEF BOB CRAWFORD,
on his own behalf and on behalf of the
ARDOCH ALGONQUIN FIRST NATION, and
DARWIN LEWIS, and the
ABORIGINAL COUNCIL OF WINNIPEG INC.
Applicants
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
LEMIEUX J.:
A. INTRODUCTION
[1] The challenged program in this judicial review application is the Aboriginal Human Resources Development Strategy ("AHRDS"), a labour market initiative of Human Resources Development Canada ("HRDC") implemented through the mechanism of funding agreements known as Aboriginal Human Resources Development Agreements ("AHRDAs") which HRDC enters into with certain Aboriginal entities to whom are devolved considerable control over the planning, design and delivery of employment training programs for Aboriginal peoples to enhance their skills and employability and, once employed, to retain those jobs.
[2] The central issue in this application is whether HRDC violated section 15 of the Canadian Charter of Rights and Freedoms (the "Charter") by not entering AHRDAs with Aboriginal labour market organizations claimed by the applicants to have been mandated for spearheading labour market programming by and responsible to the Aboriginal communities they live in. The result of not having AHRDAs, the applicants claim, is to treat them differently compared to other Aboriginal individuals and communities who have ARDHAs, that is reserve-based First Nations and Metis organizations and to deny them and the Aboriginal communities they live in with equal benefits of the AHRDAs: local community control over labour market training initiatives by the local Aboriginal communities the applicants live in to whom the organizations they have mandated for planning, design and delivery are accountable.
[3] The applicants Roger Misquadis and Dorothy Phipps-Walker are both members of Indian Bands recognized under the Indian Act and their names have been registered on the Indian Registry maintained under the Indian Act. They have lived all of their lives off-reserve in the Greater Toronto Area ("GTA") and are members of the Aboriginal community there. Neither have any connection with the band or reserve they are registered with.
[4] Chief Bob Crawford and Mona Perry are members of the Ardoch Algonquin First Nation and Allies ("Ardoch"). Both are Indians who, despite this fact like 100,000 others similarly situated, are not eligible to be registered as Indians under the Indian Act. Bob Crawford is the elected Chief of Ardoch, a First Nation which is an Aboriginal community of 500 persons located near Mattawa in the Ottawa Valley but is not an Indian Band recognized under the Indian Act and therefore has no reserve.
[5] Peter Ogden is a Mic-Mac originally from Nova Scotia who now lives in Hamilton with his family. He is not a registered Indian.
[6] Aboriginal Council of Winnipeg Inc. ("ACW") was formed in 1990 as a result of an amalgamation of two organizations representing the interests of the members of the Winnipeg Aboriginal community, the largest one of Canada made up of approximately 60,000 to 70,000 residents. The amalgamated associations were the Urban Indian Association, representing non-status (essentially non-registered) First Nation Peoples and also individuals of Metis ancestry. The other organization, the Council of Status and Treaty Indians represented treaty and status First Nation individuals.
[7] According to the applicants, HRDC substantially discriminates against them because of its decision to enter into AHRDAs with only the provincial or regional affiliates of the Assembly of First Nations ("AFN"), with the Metis National Council ("MNC") and the Inuit Tapirisat of Canada ("ITC") with whom Canada signed National Framework Agreements in 1996 which is aggravated, they claim, by HRDC's unilateral decisions to implement the urban component of the AHRDS in urban First Nation communities and, in Ontario, to graft on the urban component rural non-status Aboriginal First Nation communities such as Ardoch.
[8] The applicants do not want to deny the benefits of AHRDAs to those who currently enjoy them. They think the AHRDAS is a sound strategy letting Aboriginal communities deal with Aboriginal labour market issues. The applicants want HRDC to ensure its benefits are provided to all Aboriginal peoples equally.
[9] The AHRDS had two predecessors. The Pathways to Success Strategy ("Pathways"), implemented in 1991 for a period of five years, was a new strategy providing for the direct involvement of Aboriginal peoples and organizations in employment training programs. Pathways was replaced by the New Relationship Strategy ("the New Relationship"), a three-year effort, in effect until March 31, 1999.
[10] Fundamentally, the applicants view Pathways as the program which was the most successful and without discrimination having as its central feature local control of decision-making by and accountability to Aboriginal peoples through representative organizations.
[11] The applicants claim the New Relationship, based as it was on the national accords with the AFN, MNC and ITC, and implemented through Regional Bilateral Agreements ("RBAs") was a regressive step because it shifted exclusive control over labour market programming , at least in Winnipeg, Toronto, the Niagara Peninsula and in Ontario rural non-band communities to the reserve-based First Nation communities. HRDC, they assert, excluded them and the communities they live in from benefits of the strategy which they had participated in under Pathways They say under the RBAs funding to urban and rural non-reserve Aboriginal First Nation communities declined with the result, for example, individual applications for grants towards the payment of fees to pay for attendance at training courses were denied. More important, they argue, is the loss of control, Pathways purpose, over their ability to fund training programs that best meet the needs of their constituents.
[12] Despite the addition in the AHRDS of the urban component, the applicants submit the AHRDS is no better than the New Relationship, which also had an urban initiative, because of its continued focus on reserve-based First Nations. They think the urban component is nothing more than something cobbled together by HRDC to fill the urban gaps created by the RBAs.
[13] In argument, counsel for the Winnipeg applicants submitted, for purposes of determining discrimination under section 15 of the Charter, reserve-based First Nations are the appropriate comparator group. That is because reserve-based First Nations have AHRDAs, compared to the Winnipeg and Ontario applicants where in the communities they live in, there are no AHRDAs.
[14] Counsel for Ontario applicants suggested a wider comparator group, i.e. members of Aboriginal communities with AHRDAs (First Nation reserve-based as well as the Metis and the Inuit compared to those who have no AHRDAs namely urban First Nation members and non-status First Nation members in rural communities such as Ardoch whom he represents.
[15] Sections 1 and 15 of the Charter read:
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.
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.
1. La Charte canadienne des droits et libertés garantit les droits et libertés qui y sont énoncés. Ils ne peuvent être restreints que par une règle de droit, dans des limites qui soient raisonnables et dont la justification puisse se démontrer dans le cadre d'une société libre et démocratique.
15. (1) La loi ne fait acception de personne et s'applique également à tous, et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment de toute discrimination, notamment des discriminations fondées sur la race, l'origine nationale ou ethnique, la couleur, la religion, le sexe, l'âge ou les déficiences mentales ou physiques.
Programmes de promotion sociale
(2) Le paragraphe (1) n'a pas pour effet d'interdire les lois, programmes ou activités destinés à améliorer la situation d'individus ou de groupes défavorisés, notamment du fait de leur race, de leur origine nationale ou ethnique, de leur couleur, de leur religion, de leur sexe, de leur âge ou de leurs déficiences mentales ou physiques.
B. FACTS
[16] Both the applicants and Canada agree Aboriginal peoples in Canada suffer a high rate of unemployment and face special problems and barriers in obtaining employment and employment skills. The objective of Pathways, the New Relationship and the AHRDS is to assist Aboriginal peoples in obtaining employment skills by providing labour market development programs developed and delivered by Aboriginal organizations with responsibility over human resources development and promoting their capacity to exercise that responsibility in a manner which addresses the needs of distinct Aboriginal groups and communities across Canada. Simply put, Aboriginal peoples, their communities and their mandated service providers know best in each local area they are in what the labour market calls for and what skills are needed to satisfy the market.
[17] Previous skill training initiatives by Canada failed the Aboriginal people because Aboriginal communities had not been involved in designing and implementing strategies to meet their respective local community's unique labour market needs, whether urban or rural off-reserve.
(a) Pathways
[18] Pathways was based on HRDC's recognition that Aboriginal communities, whether First Nation reserve-based or in an urban setting, Metis or Inuit must be directly involved in managing and allocating funds for training programs within their particular communities.
[19] Pathways was based on the principle of local control of decision-making. The applicants' record at page 362 contains the following extract from HRDC's Pathways background paper:
These problems (high Aboriginal unemployment rates and low skill levels) will worsen unless economic, social and human resource development policies are more effective. In order to be successful, the capacity to develop and control these training and re-employment actions should be in the hands of Aboriginal communities and organizations. Such an approach would ensure that training and employment activities will be well-suited to the needs of Aboriginal people.[emphasis mine]
[20] Pathways was structured by the establishment, at the national level, of a national management board, made up of representatives of Aboriginal groups and HRDC officials and, at the local or regional level, by local and regional management boards made up this time exclusively by the representatives of Aboriginal groups residing in the local or regional areas.
[21] The applicants make the following assertions, as to Pathways, which are not challenged by Canada.
(i) In Winnipeg
[22] For Pathways, HRDC intended there be only one management board in Winnipeg which would fund labour development programs and services on a status blind basis to all Aboriginal peoples in that city regardless of whether that person was a registered Indian, a non-registered Indian, a treaty Indian, a Metis or an Inuit.
[23] However, the Assembly of Manitoba Chiefs ("AMC") and the Manitoba Metis Federation ("MMF") opposed this proposal because they each wanted a separate management board for their constituency.
[24] Ultimately, HRDC acceded and, as a result, the control, management and delivery of Pathways for Aboriginal people living in Winnipeg on the following basis:
· a local management board created by AMC to service only First Nation registered band members;
· a local management board created by MMF to service only Metis people and
· the Winnipeg Area Management Board (WAMB) an organization created by the Aboriginal community in Winnipeg, to service all Aboriginal people on an inclusive basis regardless of status.
(ii) In Ontario
[25] In Ontario, under Pathways, there were several area management boards ("AMBs") established including, in terms of the applicants interests here:
· the Niagara Peninsula Management Board (NPAAMB) mandated by the Aboriginal communities in the Niagara Peninsula to deliver services to their residents who number 32,000;
· Miziwe Biik Aboriginal Employment and Training (Miziwe Biik) mandated in 1991 by the 70,000 strong Aboriginal community in Greater Toronto Area ("GTA") as an area management board to serve their community;
· Kajita Mikam Area Management Board established and mandated to serve Aboriginal communities in Eastern Ontario. Kajita Mikam included representatives of Indian Act bands, non-status First Nation communities such as Ardoch and Metis in its catchment areas.
(b) The New Relationship
[26] In 1995, HRDC undertook a review of Pathways. At pages 597 and 600 of the applicants' record, the following extract from structural review is found:
The Aboriginal population in Canada is not homogenous.Government policy initiatives based solely on the assumption of such homogeneity are likely to result in unproductive wrangling and ineffectiveness, deflecting energy from much higher priorities. Effective policies must take count of the reality of First Nation Metis, Inuit and urban Aboriginal populations. Policies must be sensitive to the widest regional variation of existing Aboriginal communities, governments, institutions and inter-governmental relationships.
The diversity of Aboriginal communities that deliver services should be community based, through a wide variety of Aboriginal jurisdictions, development institutions and related authorities. The cutting edge of programs must be designed, managed and implemented by Aboriginal people in their communities. [emphasis mine]
[27] Pursuant to the National Framework Agreements, HRDC, throughout Canada, entered into fifty-four (54) RBAs with affiliates of the AFN. HRDC did not enter RBAs with any urban or non-status rural First Nation Aboriginal communities. Canada did, however, create an urban initiative.
(i) In Manitoba
[28] HRDC entered into a province-wide RBA with the AMC which included responsibility for all First Nation urban residents in Manitoba registered under the Indian Act. It also entered into a province-wide RBA with the MMF with responsibility to serve all other Aboriginal peoples.
[29] In Winnipeg, as under Pathways, the AMC and the MMF set up local management boards but, unlike Pathways, WAMB, under the New Relationship, was no longer involved in Aboriginal labour market initiatives because HRDC did not negociate an RBA with either WAMB or AWC despite their expressed concern that without an RBA there would be no longer an organization in that city to deliver status blind services and because the Aboriginal community in Winnipeg and its people would lose local control over programming with all Aboriginal people not being treated equally.
(ii) In Ontario
[30] The New Relationship had similar results in Ontario. HRDC did not enter into RBAs with any urban or non-status First Nation communities. Control over funding, setting training priorities, designing training programs and approving applicants shifted to reserve-based First Nation Bands. In Ontario, many First Nation Bands joined together to establish one local area management board to service several Aboriginal on-reserve communities in a defined geographic area.
[31] Roger Misquadis had to apply to the Band on Manitoulan Island he is registered with but with which he says he has no connection having lived in Toronto all his life. Dorothy Phipps-Walker faces the same situation. According to HRDC, she is registered with the Lac Seul Band located on a reserve in Northwestern Ontario. She does not know the Band members, has never lived on the reserve and has never received any services from it.
[32] Kajita Mikam, the local management board in the Ottawa Valley, was reorganized to exclude the Ardoch.
[33] Miziwe Biik and the NPAAMB continued to exist under the RBA regime but received funding to serve only unaffiliated Aboriginal individuals defined by HRDC as persons who were not members of Ontario bands or served by Metis organizations. These Ontario bands and Metis organisations are responsible for approximately 80% of the Aboriginal population in Ontario.
(iii) The Urban Aboriginal Employment Initiative under the New Relationship
[34] Counsel for the Ontario applicants reproduced the following two extracts from the Royal Commission on Aboriginal Peoples ("RCAP")to show that urban and non-status First Nation communities are extremely poor, marginalised and ignored:
The arbitrary regulations and distinctions that have created unequal health and social service provisions depending upon a person's status as an Indian, Metis or Inuit (and among First Nation, depending on residence on or off-reserve), must be replaced with rules of access that give an equal chance for physical and social health to all Aboriginal peoples (RCAP, volume III, page 225).
Many Aboriginal people are impoverished and unorganized. No coherent or -- coordinated policies to meet their needs are in place... They have been largely excluded from discussions about self-government and institutional development. Aboriginal people in urban areas have little collective visibility or power. It is clear that they urgently require resources to support existing organizations and create new institutions to enhance their cultural identity. (RCAP, volume IV, page 531)
[35] Canada acknowledges in the course of and subsequent to the negotiations of the RBAs, concerns about perceived gaps in the ability of First Nation RBA-holders to serve all Aboriginal people living in urban and off-reserve areas were raised and in response HRDC implemented under the New Relationship a special program called the Urban Aboriginal Employment Initiative.
[36] Under this initiative, HRDC initially allocated $21,000,000 in funding over three years of the New Relationship to three specific Aboriginal organizations in order to better address the labour market development needs of urban Aboriginal people. The three organizations receiving funds were the National Association of Friendship Centres ("NAFC"), the Native Women's Association of Canada ("NWAC") and the Congress of Aboriginal People ("CAP").
[37] NAFC represents the interests of seven provincial/territorial associations with 112 Friendship Centres. NWAC is a political organization representing the interests of Aboriginal women; and CAP is a national organization speaking for Aboriginal people not covered by the Indian Act, for Indians who have regained their status, and for the Aboriginal population not residing on-reserves. As a result of the agreements, HRDC maintains the urban Aboriginal people, including those residing in GTA and/or the Niagara Peninsula and Winnipeg, were able to apply for funding to support employment and training activities in urban areas.
(iv) A separate RBA - The Circle
[38] In addition to implementing the Urban Aboriginal Employment Initiative, HRDC entered into a separate RBA with the Aboriginal Labour Force Development Circle (the "Circle") in May 1997. The Circle is made up of representatives of six Ontario Aboriginal organizations, including NPAAMB and Miziwe Biik. This RBA contained two funding components. First, a contribution of $5.5 million in fiscal year 1997/98 and the same amount in fiscal year 1998/99 to support Aboriginal labour market development programming for urban Aboriginals in Ontario who are not covered by any other RBA.
[39] Funding, under this component, was limited to skills training and employment assistance to the following:
(a) out of province First Nation individuals;
(b) non-status individuals who did not consider themselves Metis and who were not members of a First Nation or Inuit community;
(c) status Indians who had no connection to a band (registered on the General List); and
(d) Aboriginal employers and institutions who were not aligned to any First Nation, Metis or individual community.
[40] The second component of the Circle RBA consisted of a contribution of approximately $4,000,000 in fiscal 1997/98 and close to that amount for fiscal year 1998/99 to support Aboriginal labour development programming in the geographic areas served by the six-member organizations of the Circle including the urban communities served by NPAAMB (Niagara Peninsula) and Miziwe Biik (Toronto).
(c) The Aboriginal Human Resources Development Strategy (AHRDS)
[41] The AHRDS is similar in purpose and structure as the New Relationship but seeks to improve, build and expand upon it. It had an urban component. As was the case under the New Relationship, HRDC entered into a direct relationship with the AFN, MNC, and ITC. AHRDAs were then entered into with provincial and sub-regional organizations affiliated with the three national Aboriginal organizations.
[42] HRDC claims AHRDS was implemented following an extensive consultation process carried out with Aboriginal stakeholders including AFN, MNC, ITC as well as CAP, NWAC and organizations and individuals purporting to represent urban and off-reserve Aboriginal people.
[43] For the applicants, the AHRDS is no better than its predecessor, the New Relationship, in its RBA form. Its effects are the same: exclusion from the benefits of the AHRDAs in terms of local control of labour market programming.
[44] In Manitoba, HRDC entered ARHDAs with the two RBA holders it had previously signed with, the AMC and the MMF, transferring to them the responsibility and control of training and employment programs for all their members, whether on or off-reserve. ACW asked HRDC to enter into an AHRDA with it covering Winnipeg but HRDC refused giving no reasons, the applicants say. As under Pathways and the New Relationship the AMC and MMF were to operate in Winnipeg through separate local management boards, each controlled by them. At the hearing of this application, I was told the AMC had dissolved their local management board. In replacement, AMC had implemented a plan under which services would be provided directly by First Nations through twenty sub-agreement holders who were expected to have offices in Winnipeg.
[45] The same scenario played out in Ontario. A RBA holder became a AHRDA holder. Miziwe Biik, NPAAMB and Ardoch Algonquins requested negotiations for inclusion as ARDHA holders but were refused, they say, without being given reasons.
[46] In argument, the focus was on how the separate component, the urban/off-reserve component, was put into place and how it differed from the AHRDAs. Controversy also swirled around the selection of the service provider through the means of a Request for Proposal (RFP).
[47] In certain centres such as Winnipeg or in a province such as Ontario, HRDC selected the service provider for the urban/off-reserve component by means the RFP.
[48] In Manitoba, the service provider selected was the Centre for Aboriginal Human Resources Development ("CAHRD"). The AWC make a RFP submission and supported CAHRD's RFP proposal. AWC had informed Canada prior to the RFP for Winnipeg it felt entitled to enter into an AHRDA with HRDC and had a mandate from the Aboriginal community in Winnipeg to do so.
[49] CAHRD signed an agreement with HRDC which required it to provide human resources development programming including design of training programs and their delivery to all Aboriginal people in Winnipeg regardless of status. It delivers status blind labour programming services as WAMB previously did under Pathways.
[50] In Ontario, HRDC put out an RFP to provide Aboriginal labour market programming, province wide, to the unaffiliated Aboriginal population residing in Ontario.
[51] The Circle, in which both Miziwe Biik and NPAAMB participated as proposed local delivery mechanisms, made an RFP response but it was not successful. The bid was won by the Ontario Federal of Indian Friendship Centers ("OFIFC") coupled with Grand River Employment and Training ("OFIFC/GREAT)
[52] However, OFIFC, because of a resolution passed at its general meeting, backed away from serving the GTA because it said it had no mandate to serve that area. HRDC then selected, without an RFP, Miziwe Biik who entered into an agreement with it.
[53] Under the AHRDS, there is no AHRDA with rural non-reserve First Nation communities such as Ardoch. Their members are lumped into the urban component where the holder is, as noted, OFIFC/GREAT who appointed, as its local delivery mechanism, Kajita Mikam to serve, in its area, the Ardoch community.
[54] The applicants are critical of HRDC. They claim, instead of negotiating ARDHAs with urban and non-status First Nation peoples through their communities and mandated organizations, HRDC unilaterally imposed the separate program - the urban/off-reserve component-on them. They say this component does not give urban and non-status First Nation communities any control over training funds. The service provider is not mandated by the Aboriginal community and is not responsible and accountable to that community but to HRDC as any commercial contractor would be accountable.
[55] Canada says HRDC added the urban/off-reserve component to the AHRDS in response to complaints made by certain groups purporting to represent urban and other off-reserve Aboriginal people about perceived problems they encountered in accessing programs administered by RBA holders. Canada states First Nation AHRDA holders are required to provide access to programming to their members or constituents, whether they live on or off-reserve. There is a non-discrimination clause in each AHRDA. Canada says, because of this, the urban/off-reserve component is intended merely to provide an additional source of access to programming for Aboriginal people living off-reserves. The reserve based AHRDA holder is primary responsible for serving all of its members regardless of where they live.
[56] HRDC claims the difficulty it faced in selecting an appropriate service provider for Aboriginal people living off-reserve in many urban centres was the large number of organizations purporting to speak on their behalf. Accordingly, in order to select the appropriate representative organization, HRDC asserts it initially contacted Aboriginal stakeholders to see if there was a consensus as to which organization should be selected as the AHRDA-holder for any given city or region. In many cases, a consensus did exist as was the case, for example, in Saskatchewan, Alberta, and in parts of British Columbia. It was only where no consensus existed amongst Aboriginal stakeholders that HRDC resorted to the RFP. The RFP process was used to select service providers in Nova Scotia, New Brunswick, Ontario, the Winnipeg area, and the Greater Vancouver area.
C. THE ISSUES
[57] The parties agree the following issues are raised in this proceeding:
(a) does AHRDS violate section 15(1) of the Charter in that it discriminates against urban and off-reserve Aboriginal individuals?
(b) if it does, is that discrimination justifiable under section 1 of the Charter?
(c) if it is not justifiable, what is the appropriate remedy?
[58] Underlying these issues is a fundamental difference in approach between the applicants and HRDC as to what the benefit generated by AHRDS is. HRDC is of the view the benefit of the AHRDS is access to programming with local community control stated as merely a goal of AHRDS but not a benefit.
[59] Canada takes on the "local community control issue" directly. It acknowledges that one of it's stated objectives in establishing AHRDS was to transfer responsibility for the design and delivery of labour market programs directly to Aboriginal organizations themselves. Canada states the AHRDS was intended to be flexible to ensure Aboriginal organizations would have the authority to make decisions to meet the needs of their communities while being accountable for clear performance results.
[60] Canada argues the objective of local community control is a relative goal which can only be pursued by accounting for the diverse circumstances governing Canada's Aboriginal population. This is what is written in Canada's memorandum:
The concept of "local community control" was not intended to mean giving each and every individual aboriginal community in Canada control over the design and development of training and development programs. Rather, it was intended to try to bring control of human resources programs and services closer to the community level by involving Aboriginal people (through representative organizations) in the design and delivery of the programs at the levels and to the extent appropriate. The objective was to direct decision-making to the level that maximized the effective and efficient development and delivery of employment training and jobs for all Aboriginal people. The development of employment and training opportunities for Aboriginal people is the primary objective of AHRDS, not the degree of local control or empowerment. [emphasis mine]
[61] HRDC expands on this important objective of AHRDS of ensuring the effective and efficient delivery of programs to eligible recipients. It states in order to attain efficiencies and economies of scale, HRDC was required to strike a balance by negotiating AHRDAs with community organizations who could demonstrate they had the infrastructure necessary to deliver programming.
[62] HRDC says it signed ARDHAs with organizations only where a critical mass existed in terms of numbers and the word "local" used in this context simply meant decisions would be made at a level most effective for the development and delivery of skills and/or employment and training opportunities for Aboriginal peoples.
[63] The applicants counter by stating AHRDS is a comprehensive program providing a number of key benefits and local community control is foremost amongst them since this benefit provides community control over program design, program delivery, program administration and funding allocation in an era when HRDC is no longer involved in those functions having transferred them through the AHRDAs. Applicants say the benefit of local community control allows communities the flexibility to design and implement labour market strategies tailored to meet their respective labour market needs. Moreover, AHRDS yields to Aboriginal individuals a locally controlled representative community organization accountable to them and having the required knowledge of the community.
[64] Applicants attack HRDC's stated rationale for exclusion: critical mass and lack of consensus after consultation with them. They argue critical mass is not an issue in Winnipeg and Toronto. That may be so in other areas. But, Ardoch has advised HRDC it is willing to join with NPAAMB or link up with other rural non-reserve First Nation communities in the Ottawa Valley.
[65] The applicants challenge HRDC on the degree of consultation it made to determine if a representative organization could be found in urban centres and refers to cross-examination of HRDC officials that such consultation never sought to determine whether there was a consensus in urban communities as to which organization should deliver the urban/off-reserve component.
D. ANALYSIS
(1) The principles
[66] In terms of the applicable principles governing section 15 of the Charter claims, three Supreme Court of Canada decisions were cited by both sides:
(1) Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497;
(2) Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203; and
(3) Robert Lovelace, on his own behalf and on behalf of the Ardoch Algonquin First Nation and Allies, et al. v. Her Majesty the Queen in Right of Ontario and the Chiefs of Ontario, [2000] 1 S.C.R. 950.
[67] The importance of Law, supra, lies in its synthesis of all previous Supreme Court of Canada decisions interpreting section 15 of the Charter. Justice Iacobucci, on behalf of the Court, translated his analysis into guidelines for use by Courts in determining equality claims under section 15 of the Charter.
[68] Corbiere, supra, is significant. In a case brought by off-reserve members of the Batchewana Indian Band, the Supreme Court of Canada struck down, on section 15 Charter grounds, a section of the Indian Act which required Band members to be "ordinarily resident on the reserve" in order to vote in Band elections.
[69] Lovelace, supra, is of considerable application. That case challenged a program established by the Government of Ontario which distributes the proceeds of that province's first reserve-based commercial casino only to Ontario First Nation communities registered as Bands under the Indian Act to the exclusion of non-band Aboriginal communities who were the plaintiffs at trial. The plaintiffs included Ardoch Algonquin First Nation and Allies, several other Ontario rural non-reserve First Nation communities, one Métis and non-status Indian association and the Ontario Métis Aboriginal Association. The Supreme Court of Canada decided Ontario's program did not violate section 15 of the Charter as the plaintiffs had not made out a case of substantive discrimination.
(a) The principles in Law, supra
[70] Justice Iacobucci in Law, supra, first addresses the general approach to section 15: "on its face guarantees the equal treatment of individuals by the state without discrimination" [paragraph 22]. The approach must always be purposive and contextual and mandates a three-stage inquiry concerning the impugned law or action. He expresses this three-stage inquiry in the following terms at paragraph 39:
[39] ...First, does the impugned law [program] (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? If so, there is differential treatment for the purpose of s. 15(1). Second, was the claimant subject to differential treatment on the basis of one or more of the enumerated and analogous grounds? And third, does the differential treatment discriminate in a substantive sense, bringing into play the purpose of s. 15(1) of the Charter in remedying such ills as prejudice, stereotyping, and historical disadvantage?
[71] At paragraph 51 of the Law decision, Justice Iacobucci restates previous Supreme Court of Canada decisions on the purpose of section 15:
[51] All of these statements share several key elements. It may be said that the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration. Legislation which effects differential treatment between individuals or groups will violate this fundamental purpose where those who are subject to differential treatment fall within one or more enumerated or analogous grounds, and where the differential treatment reflects the stereotypical application of presumed group or personal characteristics, or otherwise has the effect of perpetuating or promoting the view that the individual is less capable, or less worthy of recognition or value as a human being or as a member of Canadian society. Alternatively, differential treatment will not likely constitute discrimination within the purpose of s. 15(1) where it does not violate the human dignity or freedom of a person or group in this way, and in particular where the differential treatment also assists in ameliorating the position of the disadvantaged within Canadian society.
[72] Justice Iacobucci, in the next paragraph, stated "in the articulation of the purpose of section 15(1) . . . a focus is quite properly placed upon the goal of assuring human dignity by the remedying of discriminatory treatment". He then proceeds, in paragraph 53, to analyse what human dignity is and concludes at paragraph 54 stating "[T]he overriding concern with protecting and promoting human dignity in the sense just described infuses all of the elements of the discrimination analysis".
[73] He continued his analysis by stating in order to determine whether the fundamental purpose of section 15(1) is brought into play in a particular case, it was essential to engage in a comparative analysis which takes into consideration the surrounding context of the claim and the claimant. In discussing the comparative approach, he concluded at paragraph 56 "ultimately, a court must identify differential treatment as compared to one or more other persons or groups. Locating the appropriate comparator is necessary in identifying differential treatment and the grounds of the distinction. Identifying the appropriate comparator is relevant when considering many of the contextual factors in the discrimination analysis".
[74] In Law, supra, Justice Iacobucci addressed the issue of contextual factors at length. He identified four such factors which may be referred to by a section 15(1) claimant "in order to demonstrate that legislation [government action or program] has the effect of demeaning his or her dignity" [paragraph 62] cautioning, however, there are "undoubtedly others, and not all four will necessarily be relevant in every case" [paragraph 62]. Those four factors go to the issue of whether a claimant has made out a case of substantive discrimination.
[75] The four contextual factors referred to were:
(1) pre-existing disadvantage;
(2) the relationship between grounds and the claimant's characteristics or circumstances;
(3) ameliorative purpose or effects; and
(4) nature of the interest affected.
[76] He found that "probably the most compelling factor favouring a conclusion that differential treatment imposed . . . is truly discriminatory will be, where it exists, pre-existing disadvantage, vulnerability, stereotyping or prejudice experienced by the claimant or group" [paragraph 63]:
[63] . . .These factors are relevant because, to the extent that the claimant is already subject to unfair circumstances or treatment in society by virtue of personal characteristics or circumstances, persons like him or her have often not been given equal concern, respect, and consideration. It is logical to conclude that, in most cases, further differential treatment will contribute to the perpetuation or promotion of their unfair social characterization.
[77] My understanding of the Supreme Court of Canada's second contextual factor "the relationship between grounds and the claimant's characteristic or circumstances" is