Native Women's Assn. of Canada v. Canada

Native Women's Assn. of Canada v. Canada
Collection
Supreme Court Judgments
Date
1994-10-27
Report
[1994] 3 SCR 627
Case number
23253
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Federal Court of Appeal
Subjects
Constitutional law
Courts
Notes
SCC Case Information: 23253
Decision Content
Native Women's Assn. of Canada v. Canada, [1994] 3 S.C.R. 627
Her Majesty The Queen Appellant
v.
Native Women's Association of Canada,
Gail Stacey‑Moore and Sharon McIvor Respondents
and
Inuit Tapirisat of Canada and
Assembly of First Nations Interveners
Indexed as: Native Women's Assn. of Canada v. Canada
File No.: 23253.
1994: March 4; 1994: October 27.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the federal court of appeal
Constitutional law ‑‑ Charter of Rights ‑‑ Freedom of expression ‑‑ Federal government funding four national aboriginal associations alleged to be male‑dominated and inviting them to participate in constitutional discussions ‑‑ Aboriginal women's association not provided with equal funding and rights of participation to express its views ‑‑ Whether aboriginal women's freedom of expression infringed ‑‑ Whether federal government obliged under ss. 2 (b) and 28 of Canadian Charter of Rights and Freedoms to provide equal funding and participation to aboriginal women's association.
Constitutional law ‑‑ Charter of Rights ‑‑ Equality rights ‑‑ Sex discrimination ‑‑ Federal government funding four national aboriginal associations alleged to be male‑dominated and inviting them to participate in constitutional discussions ‑‑ Aboriginal women's association not provided with equal funding and rights of participation to express its views ‑‑ Whether aboriginal women's equality rights infringed ‑‑ Canadian Charter of Rights and Freedoms, s. 15(1) .
Constitutional law ‑‑ Aboriginal and treaty rights ‑‑ Constitutional reform ‑‑ Right of Aboriginal people of Canada to participate in constitutional discussions not derived from any existing aboriginal and treaty rights protected by s. 35 of Constitution Act, 1982 .
Courts ‑‑ Federal Court of Appeal ‑‑ Jurisdiction ‑‑ Declaratory relief ‑‑ Whether Federal Court of Appeal had jurisdiction to grant declaratory relief when applicants sought order of prohibition in Trial Division.
During the constitutional reform discussions which eventually led to the Charlottetown Accord, a parallel process of consultation took place within the Aboriginal community of Canada. The federal government provided $10 million to fund participation of four national Aboriginal organizations: the Assembly of First Nations ("AFN"), the Native Council of Canada ("NCC"), the Metis National Council ("MNC") and the Inuit Tapirisat of Canada ("ITC"). The Native Women's Association of Canada ("NWAC") was specifically not included in the funding but a portion of the funds advanced was earmarked for women's issues. As a result, AFN and NCC each paid $130,000 to NWAC and a further $300,000 was later received directly from the federal government. The four national Aboriginal organizations were invited to participate in a multilateral process of constitutional discussions regarding the Beaudoin‑Dobbie Committee Report. The purpose of these meetings was to prepare constitutional amendments that could be presented to Canada as a consensus package. NWAC was concerned that their exclusion from direct funding for constitutional matters and from direct participation in the discussions threatened the equality of Aboriginal women and, in particular, that the proposals advanced for constitutional amendment would not include the requirement that the Canadian Charter of Rights and Freedoms be made applicable to any form of Aboriginal self‑government which might be negotiated. This fear was based on NWAC's perception that the national Aboriginal organizations are male‑dominated so that there was little likelihood that the male majority would adopt the pro‑Charter view of NWAC. In response to a letter from NWAC, the Minister responsible for Constitutional Affairs indicated that the national organizations represent both men and women and encouraged NWAC to work within the Aboriginal communities to ensure their views are heard and represented. Despite the fact that they participated in the parallel process set up by the four national Aboriginal organizations, NWAC remained fearful that they would be unsuccessful at putting forward their pro‑Charter view and commenced proceedings in the Federal Court, Trial Division against the federal government, seeking an order of prohibition to prevent any further disbursements of funds to the four Aboriginal organizations until NWAC was provided with equal funding as well as the right to participate in the constitutional review process on the same terms as the four recipient groups. NWAC alleged that by funding male‑dominated groups and failing to provide them with equal funding, the federal government violated their freedom of expression and right to equality. The application was dismissed by the Trial Division. The Federal Court of Appeal also refused to issue an order of prohibition. It made a declaration, however, that the federal government had restricted the freedom of expression of Aboriginal women in a manner that violated ss. 2 (b) and 28 of the Charter .
Held: The appeal should be allowed and the declaration made by the Federal Court of Appeal should be set aside.
Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.: Although NWAC merely sought an order of prohibition at the Trial Division, the Federal Court of Appeal had jurisdiction in the circumstances to make a declaration. It cannot be said that the appellant was taken by surprise or prejudiced in any way since the declaration granted hinged on the violation of Charter rights that was specifically argued at the Trial Division. The inclusion of a "basket clause" requesting "such other relief as to this Honourable Court may seem just" in the prayer for relief permits a court to exercise its discretion to grant a declaration even though it was not specifically pleaded. Moreover, s. 18.1 of the Federal Court Act now provides for a uniform procedure of an application for judicial review in order to obtain the remedies available in s. 18 of that Act.
The federal government's decision not to provide equal funding and participation in the constitutional discussions to NWAC did not violate their rights under ss. 2 (b) and 28 of the Charter , since s. 2 (b) does not generally guarantee any particular means of expression or place a positive obligation upon the government to fund or consult anyone. Even assuming that in certain extreme circumstances, the provision of a platform of expression to one group may infringe the expression of another and thereby require the government to provide an equal opportunity for the expression of that group, nothing in this case suggests that the funding or consultation of the four Aboriginal groups infringed NWAC's equal right of freedom of expression. NWAC had many opportunities to express their views both directly to the government, through the Beaudoin‑Dobbie Commission, and through the four Aboriginal representative organizations. No evidence supports the contention that the funded groups were less representative of the viewpoint of women with respect to the Charter or that the funded groups advocate a male‑dominated form of self‑government. Nor was there any evidence with respect to the level of support of NWAC by women as compared to the funded groups. The four Aboriginal groups invited to discuss possible constitutional amendments are all bona fide national representatives of Aboriginal people in Canada and, based on the facts in this case, there was no requirement under s. 2 (b) of the Charter to also extend an invitation and funding directly to NWAC.
The refusal to fund NWAC and to invite them to be equal participants at the round of constitutional discussions does not violate their rights under s. 15(1) of the Charter . The lack of an evidentiary basis for the arguments with respect to ss. 2 (b) and 28 is equally applicable to any arguments advanced under s. 15(1) .
The right of the Aboriginal people of Canada to participate in constitutional discussions does not derive from any existing Aboriginal or treaty right protected under s. 35 of the Constitution Act, 1982 . Therefore, s. 35(4), which guarantees Aboriginal and treaty rights referred to in s. 35(1) equally to male and female persons, has no application in this case.
Per L'Heureux‑Dubé J.: Although general agreement with Sopinka J.'s reasons was expressed, the outcome of this case should not be interpreted as limiting Haig. Haig does not establish the principle that generally the government is under no obligation to fund or provide a specific platform of expression to an individual or a group. Rather, it stands for the proposition that, while s. 2 (b) of the Charter does not include the right to any particular means of expression, where a government chooses to provide one, it must do so in a fashion that is consistent with the Constitution. Thus, while the government may extend such a benefit to a limited number of persons, it may not do so in a discriminatory fashion. The circumstances in which a government may be held to a positive obligation in terms of providing a specific platform of expression depend on the nature of the evidence presented by the parties. Here, the evidence demonstrates that the NWAC was not prevented from expressing its views and therefore, on its facts, this case does not give rise to a positive obligation analogous to the type referred to in Haig since not providing NWAC with the funding and constitutional voice requested did not amount to a breach of its freedom of expression.
Per McLachlin J.: The freedom of governments to choose and fund their advisors on matters of policy is not constrained by the Charter . It is unnecessary to determine whether the evidence was capable of demonstrating a violation of NWAC's rights under s. 2 (b) or s. 15 of the Charter .
Cases Cited
By Sopinka J.
Applied: Haig v. Canada, [1993] 2 S.C.R. 995; referred to: Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735; Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525; Loudon v. Ryder (No. 2), [1953] Ch. 423; R. v. Bales, Ex parte Meaford General Hospital, [1971] 2 O.R. 305; Meisner v. Mason, [1931] 2 D.L.R. 156; Harrison‑Broadley v. Smith, [1964] 1 All E.R. 867; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; R. v. Zundel, [1992] 2 S.C.R. 731; Re Allman and Commissioner of the Northwest Territories (1983), 144 D.L.R. (3d) 467, aff'd (1983), 8 D.L.R. (4th) 230, leave to appeal refused, [1984] 1 S.C.R. v; Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271 (1984); New Brunswick Broadcasting Co. v. Canadian Radio‑television and Telecommunications Commission, [1984] 2 F.C. 410.
By L'Heureux-Dubé J.
Discussed: Haig v. Canada, [1993] 2 S.C.R. 995; referred to: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927.
By McLachlin J.
Applied: Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271 (1984); distinguished: Haig v. Canada, [1993] 2 S.C.R. 995.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 2 (b), 15(1) , 28 .
Constitution Act, 1982, ss. 35(1) , (4) [ad. SI/84‑102], 37 [now repealed], 37.1 [ad. SI/84‑102 & now repealed].
Federal Court Act, R.S.C., 1985, c. F‑7 [am. 1990, c. 8], ss. 2(1) "Federal board, commission or other tribunal", (2), 18(1), (3), 18.1(1), (3), (4)(f), 52(a), (b).
Federal Court Rules, C.R.C. 1978, c. 663, r. 1723.
Indian Act, R.S.C. 1970, c. I‑6 [now R.S.C., 1985, c. I-5 ], s. 12(1) (b).
Authors Cited
Canada. Shaping Canada's Future Together ‑‑ Proposals. Ottawa: Government of Canada, 1991.
Canada. House of Commons. Standing Committee on Indian Affairs and Northern Development. Minutes of Proceedings and Evidence, Issue No. 58, September 20, 1982, p. 58:14.
Canada. Parliament. Special Joint Committee on a Renewed Canada. Report of the Special Joint Committee on a Renewed Canada. Ottawa: Queen's Printer, 1992.
Sgayias, David, et al. Federal Court Practice 1994. Toronto: Carswell, 1994.
APPEAL from a judgment of the Federal Court of Appeal, [1992] 3 F.C. 192, 146 N.R. 40, 95 D.L.R. (4th) 106, [1992] 4 C.N.L.R. 71, 10 C.R.R. (2d) 268, allowing respondents' appeal from a judgment of the Trial Division, [1992] 2 F.C. 462, 53 F.T.R. 194, 90 D.L.R. (4th) 394, [1992] 4 C.N.L.R. 59, dismissing their application for prohibition. Appeal allowed.
Graham Garton, Q.C., for the appellant.
Mary Eberts and Julia L. Deans, for the respondents.
Brian A. Crane, Q.C., for the intervener the Inuit Tapirisat of Canada.
Peter K. Doody and John Briggs, for the intervener the Assembly of First Nations.
The judgment of Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ. was delivered by
Sopinka J. -- This case raises the issue of the extent to which the freedom of expression and equality provisions of the Canadian Charter of Rights and Freedoms require that government funding be provided to various groups in order to promote the representation of certain interests at constitutional reform discussions. Specifically, where the Government of Canada provides funding to certain Aboriginal groups, alleged to be male-dominated, does s. 2 (b) in combination with s. 28 of the Charter oblige the Government of Canada to provide equal funding to an association claiming to represent the interests of female Aboriginal persons so that they may also express their views at the constitutional discussions? Alternatively, is this result mandated by s. 15 of the Charter or s. 35 of the Constitution Act, 1982 ? This case also invites consideration of whether there is any violation of the Charter if the Government of Canada refuses to extend an invitation to a group representing the interests of Aboriginal women to come to the table to discuss possible constitutional reform.
Subsidiary issues are also raised concerning the justiciability of the Charter matters as well as the jurisdiction of the Federal Court of Appeal to grant the remedy of a declaration when it was not specifically requested at the Trial Division.
Following a review of the facts, I will briefly analyze the issue of the jurisdiction of the Federal Court of Appeal. I will next embark on a discussion of the main focus of this appeal regarding the alleged violations of the Charter . In light of my conclusion that there was no Charter violation in this case, it will be unnecessary to address the issue concerning justiciability. Therefore, for the purposes of this appeal, I will assume that the matters raised herein are justiciable.
I. Facts
I. The respondent Gail Stacey-Moore is the chief elected officer of the respondent Native Women's Association of Canada ("NWAC"). In 1990, she was elected National Speaker of NWAC. The respondent Sharon Donna McIvor was elected as the executive member for the West Region of NWAC in 1988. She was also the NWAC representative to the Assembly of First Nations Constitutional Commission which participated in the Canada Round of constitutional discussions. Both individuals have been actively involved in advancing the rights of Aboriginal women across Canada.
II. This case arises in the context of the constitutional discussions known as the Canada Round which eventually led to the completion of the Charlottetown Accord. On September 24, 1991, the Government of Canada set out 28 proposals for constitutional reform in a document entitled Shaping Canada's Future Together __ Proposals. One proposal was to amend the Constitution to entrench a general justiciable right to Aboriginal self-government. A Special Joint Committee of the Senate and the House of Commons (the "Beaudoin-Dobbie Committee") was appointed to inquire into and make recommendations to Parliament regarding the above proposals.
III. During this time, it was decided that a parallel process of consultation should take place within the Aboriginal community of Canada. The Government of Canada provided funding to four national Aboriginal organizations: the Assembly of First Nations ("AFN"), the Native Council of Canada ("NCC"), the Metis National Council ("MNC") and the Inuit Tapirisat of Canada ("ITC"). The Government entered into Contribution Agreements with each of the four Aboriginal organizations in order to provide $10 million to fund participation through the Aboriginal Constitutional Review Program of the Department of the Secretary of State.
IV. NWAC was not specifically included in the Government of Canada funding. However, pursuant to the Contribution Agreements, it was required that part of the $10 million in funding be earmarked for women's issues. As a result, AFN and NCC each paid $130,000 to the respondent NWAC. A further $300,000 was later received by NWAC directly from the Government of Canada under a separate Contribution Agreement entered into on February 4, 1992, in order to fund a study of the Charter . The entire funding received by NWAC amounted to 5 per cent of the total funding received by Aboriginal groups for constitutional purposes. The Secretary of State also contributed approximately $457,000 per year to NWAC for the purpose of "core funding" of its operations, although none of this money covered constitutional matters.
V. On March 12, 1992, the Minister Responsible for Constitutional Affairs announced that representatives of the four national Aboriginal organizations (AFN, NCC, ITC and MNC) were invited to participate in a multilateral process of constitutional discussions regarding the Beaudoin-Dobbie Committee Report. The purpose of these meetings was to prepare constitutional amendments that could be presented to Canada as a consensus package. NWAC was not invited to participate in these meetings which took place subsequent to March 12, 1992.
VI. NWAC was concerned that their exclusion from direct funding for constitutional matters and from direct participation in the discussions threatened the equality of Aboriginal women. In particular, NWAC was concerned that the proposals advanced for constitutional amendment would not include the requirement that the Charter be made applicable to any form of Aboriginal self-government which might be negotiated. This fear was based on NWAC's perception that the national Aboriginal organizations, and in particular the AFN, are male-dominated so that there was little likelihood that the male majority would adopt the pro-Charter view of NWAC.
VII. As a result, in a letter written February 12, 1992 to the Right Honourable Joe Clark, Minister Responsible for Constitutional Affairs, NWAC made a request for funding and participation equal to the other four national Aboriginal organizations. On March 2, 1992, the Minister responded that the national associations represent both men and women and he encouraged NWAC to work within the Aboriginal communities to ensure its views are heard and represented. The Minister also noted that, in recognition of the need for funding, the Contribution Agreements required that the national organizations specifically direct portions of their funding to Aboriginal women's issues. Furthermore, he stated that the concerns of NWAC would not be rectified through the addition of another seat to the constitutional table.
VIII. Despite the fact that NWAC participated in the parallel process set up by the four national Aboriginal organizations, as demonstrated by the letter of February 12, 1992 to the Right Honourable Joe Clark, NWAC remained fearful that it would be unsuccessful at putting forward its view that the Charter must apply to any form of Aboriginal self-government. Primarily, NWAC was worried that AFN would strongly contest the application of the Charter to Aboriginal self-government.
IX. On March 18, 1992, NWAC commenced proceedings in the Federal Court, Trial Division against the Government of Canada, seeking an order of prohibition to prevent any further disbursements of funds to the four Aboriginal organizations, under the 1991 Contribution Agreements until NWAC was provided with equal funding as well as the right to participate in the constitutional review process on the same terms as the four recipient groups. ITC, MNC and NCC intervened in the proceedings. AFN did not intervene until the appeal to this Court.
X. The substance of the complaint is that by financing the four recipient Aboriginal groups with respect to the constitutional renewal discussions, the Government of Canada assisted the propagation of the view that the Charter should not apply to Aboriginal self-government. The respondents allege that by funding male-dominated groups and failing to provide equal funding to NWAC, the Government of Canada violated their freedom of expression and right to equality. The respondents' application was dismissed by the Federal Court, Trial Division: [1992] 2 F.C. 462, 53 F.T.R. 194, 90 D.L.R. (4th) 394, [1992] 4 C.N.L.R. 59. The Federal Court of Appeal also refused to issue an order of prohibition. However, the court made a declaration that the Government of Canada restricted the freedom of expression of Aboriginal women in a manner that violated ss. 2 (b) and 28 of the Charter : [1992] 3 F.C. 192, 146 N.R. 40, 95 D.L.R. (4th) 106, [1992] 4 C.N.L.R. 71, 10 C.R.R. (2d) 268.
II. Relevant Statutory Provisions
Canadian Charter of Rights and Freedoms
2. Everyone has the following fundamental freedoms:
. . .
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
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.
28. Notwithstanding anything in this Charter , the rights and freedoms referred to in it are guaranteed equally to male and female persons.
Constitution Act, 1982
35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
. . .
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.
Federal Court Act, R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8)
2. (1) In this Act,
. . .
"federal board, commission or other tribunal" means any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867 ;
. . .
(2) For greater certainty, the expression "federal board, commission or other tribunal" as defined in subsection (1) does not include the Senate, the House of Commons or any committee or member of either House.
18. (1) Subject to section 28 , the Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and
(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.
. . .
(3) The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section 18.1.
18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.
. . .
(3) On an application for judicial review, the Trial Division may
(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or
(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.
(4) The Trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
. . .
(f) acted in any other way that was contrary to law.
52. The Federal Court of Appeal may
(a) quash proceedings in cases brought before it in which it has no jurisdiction or whenever those proceedings are not taken in good faith;
(b) in the case of an appeal from the Trial Division,
(i) dismiss the appeal or give the judgment and award the process or other proceedings that the Trial Division should have given or awarded,
(ii) in its discretion, order a new trial, if the ends of justice seem to require it, or
(iii) make a declaration as to the conclusions that the Trial Division should have reached on the issues decided by it and refer the matter back for a continuance of the trial on the issues that remain to be determined in the light of that declaration;
III. Judgments Below
Federal Court, Trial Division, [1992] 2 F.C. 462
XI. Walsh D.J. framed the issue as whether the unequal disbursement of funds constituted a violation of the Charter . Walsh D.J. also considered whether the court has the jurisdiction to order prohibition against a discretionary administrative decision relating to the disbursement of government funds and if so, whether it should make such an order in the circumstances. Walsh D.J. noted that the application was made on a quia timet basis as NWAC sought to attack the disbursement of funding that would assist arguments which might lead to a particular recommendation regarding a constitutional amendment. NCC, MNC and ITC were allowed to intervene since they were in a position to provide factual information of use to the court in deciding the matter.
XII. Walsh D.J. found that, without in any way attempting to predict the outcome of the constitutional discussions, it was clear that the issue of the maintenance of the Charter would be discussed and supported by at least some of the Aboriginal participants as well as the Government of Canada. It was accepted that NWAC received a disproportionate amount of the funding made available to the four Aboriginal organizations.
XIII. Walsh D.J. held that NWAC has had and will continue to have many opportunities to express its views to the political authorities, to the public and to the groups which will participate in the constitutional conference, some of whom share NWAC's views on the Charter . Thus, it could not be said that NWAC was being deprived of the right to freedom of speech. It would paralyze the process to hold that the freedom of expression encompassed a right for everyone to be present at the discussion table.
XIV. With respect to discrimination under s. 15(1) of the Charter , it was held that the disproportionate funding did not result from the fact that the respondents are women. Rather, the Government of Canada was simply unwilling to recognize that NWAC should be considered as a separate group within the Aboriginal community. Walsh D.J. stated that this was not discrimination on the basis of sex.
XV. Walsh D.J. next considered the jurisdiction of the court to issue a writ of prohibition in the circumstances. Although it was unclear who actually made the decision respecting the distribution of funding, Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735, was cited for the proposition that there is no immunity for orders-in-council unlawfully made. The decision-maker must act in accordance with the law and must comply with the rules of natural justice. Having found the jurisdiction to issue an order of prohibition exists, Walsh D.J. concluded that there was no evidence as to how the groups were selected, nor was there any evidence as to what other groups would have been more representative of the Aboriginal people than those selected. Walsh D.J. held there was nothing unfair or contrary to natural justice in the selection of the four groups to represent Aboriginal persons at the conference. The position of the representatives of NWAC had certainly been heard and considered and a decision, right or wrong, is not contrary to natural justice because it does not accept the arguments made.
XVI. Finally, Walsh D.J. stated that NWAC's fear of loss of Charter protection was speculative. NWAC would have further opportunities to express its concerns before any proposed amendments became law, if in fact such changes were even recommended. The multilateral discussions were only part of the whole legislative process in which courts should not intervene.
XVII. Therefore, Walsh D.J. dismissed the respondents' application for an order of prohibition.
Federal Court of Appeal, [1992] 3 F.C. 192
XVIII. Writing for the court, Mahoney J.A. stated that the arguments with respect to s. 35 of the Constitution Act, 1982 were without merit. The right to participate in constitutional review derives from s. 37 and s. 37.1 of the Constitution Act, 1982 and not from any "existing aboriginal or treaty rights" guaranteed by s. 35(1) .
XIX. The threat of losing equality rights if Aboriginal self-governments are created without being subject to the Charter was not a present denial of a s. 15 right. The outcome of the constitutional discussions could not be predicted and a "merely hypothetical consequence" was no basis for judicial intervention in the constitutional reform process. Mahoney J.A. held that the law does not give an individual the right to be present at constitutional conferences, nor the right to public funding to communicate one's position. The funding and participation of the four Aboriginal groups could not be said to violate equality rights of any individual under s. 15(1) of the Charter .
XX. In dealing with the arguments under s. 2 (b) and s. 28 of the Charter , Mahoney J.A. noted that communicating one's constitutional views to the public and to governments is undoubtedly a form of expression. Mahoney J.A. characterized the issue as whether the organizations advocate male dominated Aboriginal self-governments. Whether the groups themselves are dominated by men was not the proper question since such groups could still advocate gender equality. Mahoney J.A. found that it was in the interests of Aboriginal women that the Charter continue to apply to any form of Aboriginal self-government. It was further held that Aboriginal women are not represented by AFN, NCC nor ITC.
XXI. Mahoney J.A. came to the conclusion that (at pp. 212-13):
. . . by inviting and funding the participation of those organizations in the current constitutional review process and excluding the equal participation of NWAC, the Canadian government has accorded the advocates of male-dominated aboriginal self-governments a preferred position in the exercise of an expressive activity, the freedom of which is guaranteed to everyone by paragraph 2 (b) and which is, by section 28 , guaranteed equally to men and women. It has thereby taken action which has had the effect of restricting the freedom of expression of aboriginal women in a manner offensive to paragraph 2 (b) and section 28 of the Charter . In my opinion, the learned Trial Judge erred in concluding otherwise.
That is not to say that equal funding to NWAC would necessarily be required to achieve the equality required by section 28 . The evidence does not permit a concluded opinion as to that. However, the funding actually provided is so disparate as to be prima facie inadequate to accord it the equal freedom of expression mandated by the Charter .
It was concluded that a declaration could have a meaningful effect on NWAC's future participation in constitutional discussions.
XXII. Mahoney J.A. next analyzed the availability of a remedy under s. 18 of the Federal Court Act, R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8). The court concluded that the decision to invite the four Aboriginal groups to participate in the parallel process and to fund them must have been authorized by an Act of Parliament or an exercise of Crown prerogative. Thus, NWAC was entitled to declaratory relief pursuant to s. 18 of the Federal Court Act .
XXIII. Mahoney J.A. also addressed the issue of whether the constitutional review process was subject to judicial scrutiny or whether it was integral to a political process in which the judiciary should not interfere. After reviewing the decision in Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, which indicated that the "formulation and introduction of a bill are part of the legislative process with which the courts will not meddle" (p. 559), Mahoney J.A. opined that this did not include the process of public or private consultation by the government prior to reaching a decision how to legislate on a matter. The formulation of a constitutional resolution was not started by publishing proposals meant for public review by a parliamentary committee. This was merely policy development rather than implementation. Therefore, Mahoney J.A. concluded that granting declaratory relief would not be interfering in a legislative process.
XXIV. Mahoney J.A. stated that if the Government of Canada chooses to provide funding, it must do so according to the dictates of the Charter . However, only one who can show a constitutional foundation for a grievance by reason of being excluded from funding will obtain the court's assistance. Not every interest group can complain that their freedom of expression has been violated. For the reasons above, Mahoney J.A. concluded that NWAC was entitled to make such a claim.
XXV. With respect to the remedy, Mahoney J.A. held that the prohibition sought was unavailable since the evidence did not permit a conclusion that NWAC was entitled to equal funding in order to accord Aboriginal women equal freedom of expression. Secondly, the constitutional process had moved beyond the stage of consultation and the courts cannot interfere with the convening of a First Minister's Conference in order to dictate whom to invite. However, Mahoney J.A. held it was open to the court to declare that the actions of the Government violated ss. 2 (b) and 28 of the Charter .
IV. Issues
XXVI. I will deal with the following issues:
1.Did the Federal Court of Appeal have the jurisdiction to grant declaratory relief given that the remedy sought by the respondents was an order prohibiting the Government of Canada from disbursing any more funds pursuant to the Contribution Agreements until NWAC was provided with equal funding and rights of participation?
2.Did the Government of Canada violate the freedom of expression of the individual respondents or of Aboriginal women represented by the respondent NWAC, as guaranteed by s. 2 (b) read together with s. 28 of the Canadian Charter of Rights and Freedoms , by funding the four Aboriginal organizations and permitting their participation in the constitutional discussions while not providing an equal right of participation and funding to NWAC?
3.Did the Government of Canada violate the equality rights of the individual respondents or of Aboriginal women represented by NWAC, as guaranteed by s. 15(1) of the Canadian Charter of Rights and Freedoms , by funding the four Aboriginal organizations and permitting their participation in the constitutional discussions while not providing an equal right of participation and funding to NWAC?
4.Did the Government of Canada violate s. 35 of the Constitution Act, 1982 by failing to recognize existing Aboriginal and treaty rights, which are guaranteed equally to male and female persons?
V. Analysis
A. Preliminary Issues
(1) Mootness
XXVII. The respondents brought an application returnable on the opening of the appeal to declare the case moot. It was submitted that since the constitutional process out of which these proceedings arose had run its course, the matter was academic. The appellant, however, pointed out that an action is outstanding against the Crown for six million dollars based on the judgment of the Court of Appeal. The application to declare the appeal moot was dismissed at the conclusion of submissions on this point.
(2) Jurisdiction
XXVIII. It is clear that the Federal Court of Appeal had jurisdiction to pronounce a declaratory judgment. Sections 18 and 18.1(3) (b) of the Federal Court Act confer upon the Federal Court, Trial Division original jurisdiction to grant declaratory relief in an application for judicial review. On an appeal from the Trial Division, pursuant to s. 52 (b) of the Federal Court Act , the Federal Court of Appeal may:
(i) dismiss the appeal or give the judgment and award the process or other proceedings that the Trial Division should have given or awarded,
. . .
(iii) make a declaration as to the conclusions that the Trial Division should have reached on the issues decided by it and refer the matter back for a continuance of the trial on the issues that remain to be determined in light of that declaration. [Emphasis added.]
XXIX. Thus, it is apparent that the Federal Court of Appeal has the jurisdiction under s. 52 (b) to grant declaratory relief. This conclusion is further supported by Rule 1723 of the Federal Court Rules, C.R.C. 1978, c. 663, which states the following:
Rule 1723. No action shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether or not any consequential relief is or could be claimed. [Emphasis added.]
This provision contemplates the granting of declaratory relief notwithstanding the fact that no other relief could be claimed.
XXX. In fact, this is not disputed by the appellant, nor by the intervener ITC which also made submissions on this issue. Rather, the appellant and ITC both argue that it is inappropriate for the Federal Court of Appeal to award a declaration when the respondents merely sought an order of prohibition at the Trial Division. In other words, the appellant contends granting such relief resulted in prejudice as it changed the focus of the case. In my view, this argument must fail. It is clear that the grounds relied on for an order of prohibition sought at the Trial Division were the alleged violations of the Charter and the Constitution Act, 1982 by the Government of Canada. The argument at trial focused on whether there was a breach of the respondents' freedom of expression or equality or their Aboriginal and treaty rights. Thus, the determination of whether the rights of the respondents were violated was necessarily ancillary to the granting of an order of prohibition. The declaration that was ultimately granted by the Federal Court of Appeal hinged on the violation of Charter rights that was specifically argued at the Trial Division. It cannot be said that the appellant was taken by surprise or prejudiced in any way. Nothing different could have been argued by the parties had the declaration specifically been sought.
XXXI. I would conclude that, in the circumstances, the Federal Court had jurisdiction to make a decla