Corbiere v. Canada (Minister of Indian and Northern Affairs)

Corbiere v. Canada (Minister of Indian and Northern Affairs)
Collection
Supreme Court Judgments
Date
1999-05-20
Report
[1999] 2 SCR 203
Case number
25708
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil
On appeal from
Federal Court of Appeal
Subjects
Aboriginal law
Constitutional law
Courts
Notes
SCC Case Information: 25708
Decision Content
Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203
Her Majesty The Queen as represented by the Minister
of Indian and Northern Affairs Canada and the
Attorney General of Canada Appellant
and
Batchewana Indian Band Appellant
v.
John Corbiere, Charlotte Syrette, Claire Robinson
and Frank Nolan, each on their own behalf
and on behalf of all non-resident members of the
Batchewana Band Respondents
and
Aboriginal Legal Services of Toronto Inc.,
Congress of Aboriginal Peoples, Lesser Slave
Lake Indian Regional Council, Native Women’s
Association of Canada and United Native Nations
Society of British Columbia Interveners
Indexed as: Corbiere v. Canada (Minister of Indian and Northern Affairs)
File No.: 25708.
1998: October 13; 1999: May 20.
Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.
on appeal from the federal court of appeal
Constitutional law -- Charter of Rights -- Equality rights -- Indian bands -- Elections of chiefs and band councils -- Voting restrictions -- Legislation providing that only band members “ordinarily resident on the reserve” entitled to vote in band elections -- Whether legislation infringes ss. 15(1) of Canadian Charter of Rights and Freedoms -- If so, whether infringement justified under s. 1 of Charter -- Canadian Charter of Rights and Freedoms, s. 1 , 15(1) -- Indian Act, R.S.C., 1985, c. I-5, s. 77(1) .
Constitutional law – Charter of Rights – Remedy – Indian Act voter eligibility provisions violating Charter equality rights -- Whether declaration of invalidity and suspension of effect of declaration appropriate remedy – Whether Indian band which brought Charter challenge should be exempted from suspension of effect of declaration.
Indians -- Elections of chiefs and band councils -- Voting restrictions -- Legislation providing that only band members “ordinarily resident on the reserve” entitled to vote in band elections -- Whether legislation violating Charter equality rights -- Canadian Charter of Rights and Freedoms, ss. 1 , 15(1) -- Indian Act, R.S.C., 1985, c. I-5, s. 77(1) .
Courts -- Supreme Court of Canada -- Jurisdiction -- Constitutional questions -- Court’s jurisdiction to restate constitutional questions or make declaration of invalidity broader than that contained within questions.
The respondents, on their own behalf and on behalf of all non-resident members of the Batchewana Indian Band, sought a declaration that s. 77(1) of the Indian Act , which requires that band members be “ordinarily resident” on the reserve in order to vote in band elections, violates s. 15(1) of the Canadian Charter of Rights and Freedoms . Fewer than one third of the registered members of the band lived on the reserve. The Federal Court, Trial Division found that as it related to the disposition of reserve lands or Indian monies held for the band as a whole, s. 77(1) infringed the rights guaranteed by s. 15(1) and that the infringement was not justified under s. 1 of the Charter . The court granted a declaration of invalidity of s. 77(1) in its entirety and suspended the declaration for a period of 10 months. The court noted that the declaration was confined to the Batchewana Band because the pleadings and the evidence related only to that band. The Federal Court of Appeal affirmed the judgment but modified the remedy granted at trial. The court determined that the appropriate remedy was a constitutional exemption because other bands might be able to demonstrate an Aboriginal right under s. 35 of the Constitution Act, 1982 to exclude non-residents from voting. The court declared that the words “and is ordinarily resident on the reserve” in s. 77(1) contravened s. 15(1) of the Charter only in relation to the Batchewana Band. The declaration of invalidity was not suspended.
Held: The appeal should be dismissed but the remedy designed by the Court of Appeal should be modified.
Before any question of constitutional exemption is considered, the legislation in its general application should be examined. In this case, because the general issues were addressed in the plaintiffs’ statement of claim, and were argued before this Court and the Federal Court of Appeal, such an analysis will not take any parties by surprise. The constitutional questions, as formulated, address only the situation of the members of the Batchewana Band. The Court’s jurisdiction to restate constitutional questions, or make a declaration of invalidity broader than that contained within them is appropriately exercised when, as in this case, doing so does not, in substance, deprive attorneys general of their right to notice of the fact that a given legislative provision is at issue in this Court, or deprive those who have a stake in the outcome of the opportunity to argue the substantive issues relating to this question.
Per Lamer C.J. and Cory, McLachlin, Major and Bastarache JJ.: The test applicable to a s. 15(1) analysis has been described in Law. The first step is to determine whether the impugned law makes a distinction that denies equal benefit or imposes an unequal burden. The s. 77(1) ’s exclusion of off‑reserve band members from voting privileges on band governance satisfies this requirement. The second step is to determine whether the distinction is discriminatory. It is the first inquiry under this step that poses a problem, i.e. that of establishing whether the distinction is made on the basis of an enumerated ground or a ground analogous to it. The answer to this question will be found in considering the general purpose of s. 15(1) to prevent the violation of human dignity through the imposition of disadvantage based on stereotyping and social prejudice, and to promote a society where all persons are considered worthy of respect and consideration. The enumerated and analogous grounds stand as constant markers of suspect decision making or potential discrimination. These markers of discrimination do not change from case to case, depending on the government action challenged. What varies is whether the enumerated and analogous grounds amount to discrimination in the particular circumstances of the case. Once a distinction on an enumerated or analogous ground is established, the contextual and fact‑specific inquiry proceeds to whether the distinction amounts to discrimination in the context of the particular case. To identify a ground of distinction as analogous, one must look for grounds of distinction that are like the grounds enumerated in s. 15. These grounds have in common the fact that they often serve as the basis for stereotypical decisions made not on the basis of merit but on the basis of a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity. This suggests that the thrust of identification of analogous grounds at the second step of the analysis is to reveal grounds based on characteristics that we cannot change or that the government has no legitimate interest in expecting us to change to receive equal treatment under the law. The conflation of the inquiry into the basis of the distinction and the inquiry into whether, on the facts of the case, that distinction affronts s. 15 is to be avoided.
In this case, the exclusion of off‑reserve members of an Indian band from the right to vote in band elections, pursuant to s. 77(1) of the Indian Act , is inconsistent with s. 15 of the Charter . Section 77(1) excludes off‑reserve band members from voting privileges on band governance, and this exclusion is based on Aboriginality‑residence (off‑reserve band member status). “Aboriginality‑residence” as it pertains to whether an Aboriginal band member lives on or off the reserve is a ground analogous to those enumerated in s. 15 . The distinction goes to a personal characteristic essential to a band member’s personal identity. Off‑reserve Aboriginal band members can change their status to on‑reserve Aboriginals only at great cost, if at all. The situation of off‑reserve Aboriginal band members is therefore unique and immutable. Lastly, when the relevant Law factors are applied, the impugned distinction amounts to discrimination. Off‑reserve band members have important interests in band governance. By denying them the right to vote and participate in their band’s governance, s. 77(1) perpetuates the historic disadvantage experienced by off-reserve band members. The complete denial of that right treats them as less worthy and entitled, not on the merits of their situation, but simply because they live off the reserve. Section 77(1) reaches the cultural identity of off‑reserve Aboriginals in a stereotypical way. This engages the dignity aspect of the s. 15 analysis and results in the denial of substantive equality. The conclusion that discrimination exists at the third step of the Law test does not depend on the composition of the off‑reserve band members group, its relative homogeneity or the particular historical discrimination it may have suffered. It is the present situation of the group relative to that of the comparator group, on‑reserve band members, that is relevant.
No case has been made for the application of s. 25 of the Charter . Furthermore, the infringement is not justified under s. 1 of the Charter . While the restriction on voting in s. 77(1) is rationally connected to the aim of the legislation, which is to give a voice in the affairs of the reserve only to the persons most directly affected by the decisions of the band council, s. 77(1) does not minimally impair the s. 15 rights. Even if it is accepted that some distinction may be justified in order to protect legitimate interests of band members living on the reserve, it has not been demonstrated that a complete denial of the right of band members living off‑reserve to participate in the affairs of the band through the democratic process of elections is necessary. As an appropriate remedy, the words “and is ordinarily resident on the reserve” in s. 77(1) of the Indian Act are declared to be inconsistent with s. 15(1) of the Charter but the implementation of the declaration of invalidity is suspended for 18 months. No constitutional exemption is granted to the Batchewana Band during the period of suspension because, in the particular circumstances of this case, it would appear to be preferable to develop an electoral process that will balance the rights of off‑reserve and on‑reserve band members.
Per L’Heureux‑Dubé, Gonthier, Iacobucci and Binnie JJ.: The framework for a s. 15(1) analysis was set out in Law. At all three stages, the focus of the inquiry is purposive and contextual. A court considering a discrimination claim must examine the legislative, historical, and social context of the distinction, the reality and experiences of the individuals affected by it, and the purposes of s. 15(1) . In this case, s. 77(1) infringes the right to equality without discrimination of the off‑reserve members of bands affected by it.
The first stage of the s. 15(1) inquiry is satisfied. Section 77(1) of the Indian Act draws a distinction between band members who live on‑reserve and those who live off-reserve, by excluding the latter from the definition of “elector” within the band. This constitutes differential treatment.
The second stage of inquiry is also met. The differential treatment is based on the status of holding membership in an Indian Act band, but living off that band’s reserve. The fundamental consideration at the second stage, if the ground is not enumerated or already recognized as analogous, is whether recognition of the basis of differential treatment as an analogous ground would further the purposes of s. 15(1) . The analysis at the analogous grounds stage involves considering whether differential treatment of those defined by that characteristic or combination of traits has the potential to violate human dignity in the sense underlying s. 15(1) . Various contextual factors may demonstrate discriminatory potential. If the indicia of an analogous ground are not present in general, or among a certain group in Canadian society, they may nevertheless be present in another social or legislative context, within a different group in Canadian society, or in a given geographic area. The second stage must be flexible enough to adapt to stereotyping, prejudice, or denials of human dignity and worth that might occur in specific ways for specific groups of people, to recognize that personal characteristics may overlap or intersect, and to reflect changing social phenomena or new or different forms of stereotyping or prejudice.
Off‑reserve band member status should be recognized as an analogous ground. From the perspective of off‑reserve band members, the choice of whether to live on‑ or off‑reserve, if it is available to them, is an important one to their identity and personhood, and is therefore fundamental. Also critical is the fact that band members living off‑reserve have generally experienced disadvantage and prejudice, and form part of a “discrete and insular minority” defined by race and place of residence. In addition, because of the lack of opportunities and housing on many reserves, and the fact that the Indian Act ’s rules formerly removed band membership from various categories of band members, residence off the reserve has often been forced upon them, or constitutes a choice made reluctantly or at high personal cost.
At the third stage, the appropriate focus is on how the particular differential treatment impacts upon the people affected by it. The perspective that must be adopted is subjective and objective. All band members affected by this legislation, whether on‑reserve or off‑reserve, have been affected by the legacy of stereotyping and prejudice against Aboriginal peoples. When analysing a claim that involves possibly conflicting interests of minority groups, one must be especially sensitive to their realities and experiences, and to their values, history, and identity. Thus, in the case of equality rights affecting Aboriginal people and communities, the legislation in question must be evaluated with special attention to the rights of Aboriginal peoples, the protection of the Aboriginal and treaty rights guaranteed in the Constitution, and with respect for and consideration of the cultural attachment and background of all Aboriginal women and men.
A contextual view of the people affected and the differential treatment in question leads to the conclusion that this legislative distinction conflicts with the purposes of s. 15(1) . Band members living off-reserve form part of a “discrete and insular minority”, defined by both race and residence, which is vulnerable and has at times not been given equal consideration or respect by the government or by others in Canadian and Aboriginal society. They experience stereotyping and disadvantage in particular ways compared to those living on‑reserve. Aboriginal women, who can be said to be doubly disadvantaged on the basis of both sex and race, are particularly affected by differential treatment of off‑reserve band members.
Second, the differential treatment does not correspond with the needs, characteristics or circumstances of the claimants in a manner which respects and values their dignity and difference. The powers conferred by the Indian Act to the band council affect interests and needs that are shared by band members living on and off the reserve.
Third, the interests affected are fundamental, and have important societal significance from the perspective of those affected. The functions and powers of the band council affect their financial interests, the ability to return and live on the reserve, services that may be important to them, and their cultural interests. The interests affected are also significant because of the ways in which, in the past, ties between band members and the band or reserve have been involuntarily or reluctantly severed. Those affected or their parents may have left the reserve for many reasons that do not signal a lack of interest in the reserve given historical circumstances such as an often inadequate land base, a serious lack of economic opportunities and housing, and the operation of past Indian status and band membership rules imposed by Parliament. This history helps show why the interest in feeling and maintaining a sense of belonging to the band free from barriers imposed by Parliament is an important one for all band members, especially for those who are now living away from the reserve, in part, because of these policies. This analysis does not suggest that any distinction between on‑reserve and off‑reserve band members would conflict with the purposes of s. 15(1) . The principles of substantive equality do not require that non‑residents have identical voting rights to residents, but rather a system that gives non‑residents meaningful and effective participation in the voting regime of the band.
The infringement of s. 15(1) is not justified under s. 1 of the Charter . The objective of the restriction of voting rights to band members ordinarily resident on the reserve is to ensure that those with the most immediate and direct connection with the reserve have a special ability to control its future. This objective is pressing and substantial but the restriction fails to meet the proportionality test. While restricting the vote to those living on the reserve is rationally connected to Parliament’s objective, a complete exclusion of non‑residents from the right to vote, does not constitute a minimal impairment of these rights. The appellants have not shown why other solutions that would not violate s. 15(1) could not accomplish the objective.
In determining the appropriate remedy, the Court must be guided by the principles of respect for the purposes and values of the Charter , and respect for the role of the legislature. The finding of invalidity relates to the legislation as it applies to all bands, and, in principle, there is no reason that the remedy should be confined to the Batchewana Band. The fact that other bands may be able to demonstrate an Aboriginal right to control voting does not justify confining the remedy to the Batchewana Band. The principle of democracy underlies the Constitution and the Charter , and is one of the important factors governing the exercise of a court’s remedial discretion. It encourages remedies that allow the democratic process of consultation and dialogue to occur. Constitutional remedies should encourage the government to take into account the interests, and views, of minorities. The appropriate remedy is a declaration that the words “and is ordinarily resident on the reserve” in s. 77(1) are invalid. The effect of this declaration should be suspended for 18 months to give Parliament the time necessary to carry out extensive consultations and respond to the needs of the different groups affected. While, in general, litigants who have brought forward a Charter challenge should receive the immediate benefits of the ruling, even if the effect of the declaration is suspended, this is one of the exceptional cases where immediate relief should not be given to those who brought the action. If Parliament chooses either not to act, or to change the legislation to conform with this ruling, the respondents will receive a remedy after the period of suspension expires or when the new legislation comes into effect. In this case, there are strong administrative reasons not to grant immediate relief to the members of the Batchewana Band.
Section 25 of the Charter is triggered when Aboriginal or treaty rights under s. 35 of the Constitution Act, 1982 are in question, or when the relief requested under a Charter challenge could abrogate or derogate from “other rights or freedoms that pertain to the aboriginal peoples of Canada”. This latter phrase indicates that the rights included in s. 25 are broader than those in s. 35 , and may include statutory rights. However, the fact that legislation relates to Aboriginal people cannot alone bring it within the scope of the “other rights or freedoms” included in s. 25 . Because it has not been shown that s. 25 of the Charter applies to this case, and argument on this question was extremely limited, it would be inappropriate to articulate a general approach to s. 25 .
Cases Cited
By McLachlin and Bastarache JJ.
Applied: Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; referred to: R. v. Turpin, [1989] 1 S.C.R. 1296; Egan v. Canada, [1995] 2 S.C.R. 513; Schachter v. Canada, [1992] 2 S.C.R. 679; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519.
By L’Heureux‑Dubé J.
Applied: Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; referred to: Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; R. v. Van der Peet, [1996] 2 S.C.R. 507; Bisaillon v. Keable, [1983] 2 S.C.R. 60; Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358; Benner v. Canada (Secretary of State), [1997] 3 S.C.R. 389; Egan v. Canada, [1995] 2 S.C.R. 513; Miron v. Trudel, [1995] 2 S.C.R. 418; R. v. Turpin, [1989] 1 S.C.R. 1296; Vriend v. Alberta, [1998] 1 S.C.R. 493; Attorney General of Canada v. Lavell, [1974] S.C.R. 1349; R. v. Oakes, [1986] 1 S.C.R. 103; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; M. v. H., [1999] 2 S.C.R. 3; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; Schachter v. Canada, [1992] 2 S.C.R. 679; Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; R. v. Seaboyer, [1991] 2 S.C.R. 577; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; R. v. Sparrow, [1990] 1 S.C.R. 1075; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1998] 1 S.C.R. 3.
Statutes and Regulations Cited
Act for the gradual enfranchisement of Indians, the better management of Indian affairs, and to extend the provisions of the Act 31st Victoria, Chapter 42, S.C. 1869, c. 6.
Act providing for the organisation of the Department of the Secretary of State of Canada, and for the management of Indian and Ordinance Lands, S.C. 1868, c. 42, s. 8(1).
Act to amend the Indian Act, S.C. 1985, c. 27.
Act to encourage the gradual Civilization of the Indian Tribes in the Province, and to amend the Laws respecting Indians, S. Prov. C. 1857, 20 Vict., c. 26.
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (d), 15(1) , 24(1) , 25 [am. R.S.C., 1985, App. II, No. 46].
Constitution Act, 1982, s. 35 [am. R.S.C., 1985, App. II, No. 46], 52.
Indian Act, R.S.C. 1906, c. 81, s. 172(b).
Indian Act , R.S.C. 1927, c. 98, ss. 51(2) , 163 (a).
Indian Act, R.S.C., 1985, c. I-5, ss. 2(1) “band”, “council of the band”, “elector” [rep. & sub. c. 32 (1st Supp.), s. 1 ], 20(1), 38(1) [rep. & sub. c. 17 (4th Supp.), s. 2 ], 39(1) [idem, s. 3 ], 62, 64(1), 66(1), 69, 74(1), 75, 77 [rep. & sub. c. 32 (1st Supp.), s. 14 ], 81(1) [idem, s. 15 ], 83 [am. c. 17 (4th Supp.), s. 10 ], 85.1(1) [ad. c. 32 (1st Supp.), s. 16 ].
Indian Act, S.C. 1951, c. 29, ss. 2(1)(e), 12, 14, 76(1).
Indian Advancement Act, 1884, S.C. 1884, c. 28, s. 5.
Indian Advancement Act, R.S.C. 1886, c. 44, s. 5(1).
Indian Bands Council Elections Order, SOR/97-138.
Rules of the Supreme Court of Canada, SOR/83-74, Rule 32 [am. SOR/98-489, s. 1 ].
Authors Cited
Canada. Indian and Northern Affairs. Impacts of the 1985 Amendments to the Indian Act (Bill C-31): Summary Report. Ottawa: Indian and Northern Affairs Canada, 1990.
Canada. Royal Commission on Aboriginal Peoples. Report of the Royal Commission on Aboriginal Peoples. Ottawa: The Commission, 1996.
Crane, Brian A., and Henry S. Brown. Supreme Court of Canada Practice 1998. Scarborough, Ont.: Thomson Professional Publishing Canada, 1997.
Gilbert, Larry. Entitlement to Indian Status and Membership Codes in Canada. Scarborough, Ont.: Carswell, 1996.
Hogg, Peter W., and Allison A. Bushell. “The Charter Dialogue Between Courts and Legislatures (Or Perhaps The Charter Of Rights Isn’t Such A Bad Thing After All)” (1997), 35 Osgoode Hall L.J. 75.
Manitoba. Public Inquiry into the Administration of Justice and Aboriginal People. Report of the Aboriginal Justice Inquiry of Manitoba, vol. 1, The Justice System and Aboriginal People. Winnipeg: Public Inquiry into the Administration of Justice and Aboriginal People, 1991.
Roach, Kent. Constitutional Remedies in Canada. Aurora, Ont.: Canada Law Book, 1994 (loose-leaf updated November 1998, release 5).
APPEAL from a judgment of the Federal Court of Appeal, [1997] 1 F.C. 689 (sub nom. Batchewana Indian Band (Non-resident members v. Batchewana Indian Band), 206 N.R. 85, 142 D.L.R. (4th) 122, [1997] 3 C.N.L.R. 21, [1996] F.C.J. No. 1486 (QL), affirming a judgment of the Federal Court, Trial Division, [1994] 1 F.C. 394, 67 F.T.R. 81, 107 D.L.R. (4th) 582, 18 C.R.R. (2d) 354, [1993] F.C.J. No. 896 (QL), but modifying the remedy granted. Appeal dismissed but remedy modified.
John B. Edmond, for the appellant Her Majesty the Queen.
William B. Henderson and Derek T. Ground, for the appellant the Batchewana Indian Band.
Gary E. Corbière and Michael Feindel, for the respondents.
Kent Roach and Kimberly R. Murray, for the intervener the Aboriginal Legal Services of Toronto Inc.
Mervin C. Phillips and Robert A. Milen, for the intervener the Congress of Aboriginal Peoples.
Philip P. Healey, Martin J. Henderson and Catherine M. Twinn, for the intervener the Lesser Slave Lake Indian Regional Council.
Mary Eberts and Lucy McSweeney, for the intervener the Native Women’s Association of Canada.
Sharon D. McIvor and Teressa Nahanee, for the intervener the United Native Nations Society of British Columbia.
The judgment of Lamer C.J. and Cory, McLachlin, Major and Bastarache JJ. was delivered by
//McLachlin and Bastarache JJ.//
1 McLachlin and Bastarache JJ. -- We have read the reasons for judgment of Justice L’Heureux‑Dubé. We believe that this case can be resolved on simpler grounds. We will therefore briefly outline the reasoning upon which we base our own decision.
2 L’Heureux‑Dubé J. has set out in detail the facts in this case as well as a description of its judicial history. We adopt this factual background.
3 The narrow issue raised in this appeal is whether the exclusion of off-reserve members of an Indian band from the right to vote in band elections pursuant to s. 77(1) of the Indian Act, R.S.C., 1985, c. I-5 , is inconsistent with s. 15(1) of the Canadian Charter of Rights and Freedoms . There is no need for us to describe the steps applicable to a s. 15(1) analysis. They have been affirmed with great precision by Iacobucci J. in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497.
4 The first step is to determine whether the impugned law makes a distinction that denies equal benefit or imposes an unequal burden. The Indian Act ’s exclusion of off-reserve band members from voting privileges on band governance satisfies this requirement.
5 The next step is to determine whether the distinction is discriminatory. The first inquiry is whether the distinction is made on the basis of an enumerated ground or a ground analogous to it. The answer to this question will be found in considering the general purpose of s. 15(1) , i.e. to prevent the violation of human dignity through the imposition of disadvantage based on stereotyping and social prejudice, and to promote a society where all persons are considered worthy of respect and consideration.
6 We agree with L’Heureux‑Dubé J. that Aboriginality-residence (off-reserve band member status) constitutes a ground of discrimination analogous to the enumerated grounds. However, we wish to comment on two matters: (1) the suggestion by some that the same ground may or may not be analogous depending on the circumstances; and (2) the criteria that identify an analogous ground.
7 The enumerated grounds function as legislative markers of suspect grounds associated with stereotypical, discriminatory decision making. They are a legal expression of a general characteristic, not a contextual, fact-based conclusion about whether discrimination exists in a particular case. As such, the enumerated grounds must be distinguished from a finding that discrimination exists in a particular case. Since the enumerated grounds are only indicators of suspect grounds of distinction, it follows that decisions on these grounds are not always discriminatory; if this were otherwise, it would be unnecessary to proceed to the separate examination of discrimination at the third stage of our analysis discussed in Law, supra, per Iacobucci J.
8 The same applies to the grounds recognized by the courts as “analogous” to the grounds enumerated in s. 15. To say that a ground of distinction is an analogous ground is merely to identify a type of decision making that is suspect because it often leads to discrimination and denial of substantive equality. Like distinctions made on enumerated grounds, distinctions made on analogous grounds may well not be discriminatory. But this does not mean that they are not analogous grounds or that they are analogous grounds only in some circumstances. Just as we do not speak of enumerated grounds existing in one circumstance and not another, we should not speak of analogous grounds existing in one circumstance and not another. The enumerated and analogous grounds stand as constant markers of suspect decision making or potential discrimination. What varies is whether they amount to discrimination in the particular circumstances of the case.
9 We therefore disagree with the view that a marker of discrimination can change from case to case, depending on the government action challenged. It seems to us that it is not the ground that varies from case to case, but the determination of whether a distinction on the basis of a constitutionally cognizable ground is discriminatory. Sex will always be a ground, although sex-based legislative distinctions may not always be discriminatory. To be sure, R. v. Turpin, [1989] 1 S.C.R. 1296, suggested that residence might be an analogous ground in certain contexts. But in view of the synthesis of previous cases suggested in Law, supra, it is more likely that today the same result, dismissal of the claim, would be achieved either by finding no analogous ground or no discrimination in fact going to essential human dignity.
10 If it is the intention of L’Heureux‑Dubé J.’s reasons to affirm contextual dependency of the enumerated and analogous grounds, we must respectfully disagree. If “Aboriginality-residence” is to be an analogous ground (and we agree with L’Heureux‑Dubé J. that it should), then it must always stand as a constant marker of potential legislative discrimination, whether the challenge is to a governmental tax credit, a voting right, or a pension scheme. This established, the analysis moves to the third stage: whether the distinction amounts, in purpose or effect, to discrimination on the facts of the case.
11 Maintaining the distinction in Law, supra, between the enumerated or analogous ground analysis and the third-stage contextual discrimination analysis, offers several advantages. Both stages are concerned with discrimination and the violation of the presumption of the equal dignity and worth of every human being. But they approach it from different perspectives. The analogous grounds serve as jurisprudential markers for suspect distinctions. They function conceptually to identify the sorts of claims that properly fall under s. 15. By screening out other cases, they avoid trivializing the s. 15 equality guarantee and promote the efficient use of judicial resources. And they permit the development over time of a conceptual jurisprudence of the sorts of distinctions that fall under the s. 15 guarantee, without foreclosing new cases of discrimination. A distinction on an enumerated or analogous ground established, the contextual and fact-specific inquiry proceeds to whether the distinction amounts to discrimination in the context of the particular case.
12 Our second concern relates to the manner in which a new analogous ground may be identified. In our view, conflation of the second and third stages of the Law framework is to be avoided. To be sure, Law is meant to provide a set of guidelines and not a formalistic straitjacket, but the second and third stages are unquestionably distinct: the former asks whether the distinction is on the basis of an enumerated or analogous ground, the latter whether that distinction on the facts of the case affronts s. 15. Affirmative answers to both inquiries are a precondition to establishing a constitutional claim.
13 What then are the criteria by which we identify a ground of distinction as analogous? The obvious answer is that we look for grounds of distinction that are analogous or like the grounds enumerated in s. 15 — race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. It seems to us that what these grounds have in common is the fact that they often serve as the basis for stereotypical decisions made not on the basis of merit but on the basis of a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity. This suggests that the thrust of identification of analogous grounds at the second stage of the Law analysis is to reveal grounds based on characteristics that we cannot change or that the government has no legitimate interest in expecting us to change to receive equal treatment under the law. To put it another way, s. 15 targets the denial of equal treatment on grounds that are actually immutable, like race, or constructively immutable, like religion. Other factors identified in the cases as associated with the enumerated and analogous grounds, like the fact that the decision adversely impacts on a discrete and insular minority or a group that has been historically discriminated against, may be seen to flow from the central concept of immutable or constructively immutable personal characteristics, which too often have served as illegitimate and demeaning proxies for merit-based decision making.
14 L’Heureux‑Dubé J. ultimately concludes that “Aboriginality-residence” as it pertains to whether an Aboriginal band member lives on or off the reserve is an analogous ground. We agree. L’Heureux‑Dubé J.’s discussion makes clear that the distinction goes to a personal characteristic essential to a band member’s personal identity, which is no less constructively immutable than religion or citizenship. Off-reserve Aboriginal band members can change their status to on-reserve band members only at great cost, if at all.
15 Two brief comments on this new analogous ground are warranted. First, reserve status should not be confused with residence. The ordinary “residence” decisions faced by the average Canadians should not be confused with the profound decisions Aboriginal band members make to live on or off their reserves, assuming choice is possible. The reality of their situation is unique and complex. Thus no new water is charted, in the sense of finding residence, in the generalized abstract, to be an analogous ground. Second, we note that the analogous ground of off-reserve status or Aboriginality-residence is limited to a subset of the Canadian population, while s. 15 is directed to everyone. In our view, this is no impediment to its inclusion as an analogous ground under s. 15. Its demographic limitation is no different, for example, from pregnancy, which is a distinct, but fundamentally interrelated form of discrimination from gender. “Embedded” analogous grounds may be necessary to permit meaningful consideration of intra-group discrimination.
16 Having concluded that the distinction made by the impugned law is made on an analogous ground, we come to the final step of the s. 15(1) analysis: whether the distinction at issue in this case in fact constitutes discrimination. In plain words, does the distinction undermine the presumption upon which the guarantee of equality is based — that each individual is deemed to be of equal worth regardless of the group to which he or she belongs?
17 Applying the applicable Law factors to this case — pre-existing disadvantage, correspondence and importance of the affected interest — we conclude that the answer to this question is yes. The impugned distinction perpetuates the historic disadvantage experienced by off-reserve band members by denying them the right to vote and participate in their band’s governance. Off-reserve band members have important interests in band governance which the distinction denies. They are co-owners of the band’s assets. The reserve, whether they live on or off it, is their and their children’s land. The band council represents them as band members to the community at large, in negotiations with the government, and within Aboriginal organizations. Although there are some matters of purely local interest, which do not as directly affect the interests of off-reserve band members, the complete denial to off-reserve members of the right to vote and participate in band governance treats them as less worthy and entitled, not on the merits of their situation, but simply because they live off-reserve. The importance of the interest affected is underlined by the findings of the Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples (1996), vol. 1, Looking Forward, Looking Back, at pp. 137-91. The Royal Commission writes in vol. 4, Perspectives and Realities, at p. 521:
Throughout the Commission’s hearings, Aboriginal people stressed the fundamental importance of retaining and enhancing their cultural identity while living in urban areas. Aboriginal identity lies at the heart of Aboriginal peoples’ existence; maintaining that identity is an essential and self-validating pursuit for Aboriginal people in cities.
And at p. 525:
Cultural identity for urban Aboriginal people is also tied to a land base or ancestral territory. For many, the two concepts are inseparable. . . . Identification with an ancestral place is important to urban people because of the associated ritual, ceremony and traditions, as well as the people who remain there, the sense of belonging, the bond to an ancestral community, and the accessibility of family, community and elders.
18 Taking all this into account, it is clear that the s. 77(1) disenfranchisement is discriminatory. It denies off-reserve band members the right to participate fully in band governance on the arbitrary basis of a personal characteristic. It reaches the cultural identity of off-reserve Aboriginals in a stereotypical way. It presumes that Aboriginals living off-reserve are not interested in maintaining meaningful participation in the band or in preserving their cultural identity, and are therefore less deserving members of the band. The effect is clear, as is the message: off-reserve band members are not as deserving as those band members who live on reserves. This engages the dignity aspect of the s. 15 analysis and results in the denial of substantive equality.
19 The conclusion that discrimination exists at the third stage of the Law test does not depend on the composition of the