Collins v. Saddle Lake Cree Nation #462

Collins v. Saddle Lake Cree Nation #462
Court (s) Database
Federal Court Decisions
Date
2023-09-13
Neutral citation
2023 FC 1239
File numbers
T-1153-22
Notes
A correction was made on March 18, 2024
Decision Content
Date: 20240318
Docket: T-1153-22
Citation: 2023 FC 1239
Ottawa, Ontario, March 18, 2024
PRESENT: The Honourable Mr. Justice Régimbald
BETWEEN:
GAIL COLLINS
Applicant
and
SADDLE LAKE CREE NATION #462
Respondent
AMENDED JUDGMENT AND REASONS
I. Overview [1] Gail Collins [or the Applicant] is a member of Saddle Lake Cree Nation #462 [SLCN #462]. From Canada’s perspective, SLCN #462 is a “band” recognized under the Indian Act, RSC 1985, c I-15 [Indian Act] and a Treaty 6 nation. At the local level, however, SLCN #462 is constituted of two different communities, Saddle Lake Cree Nation #125 [SLCN #125] and Whitefish Lake First Nation #128 [WLFN #128]. WLFN #128 and SLCN #125 have distinct funding agreements and thereby operate separately. In the following reasons, the reference to SLCN #462 is in relation to the “band” recognized by the federal government consisting in both SLCN #125 and WLFN #128.
[2] SLCN #125 and WLFN #128 conduct separate elections and at different times, under the same Saddle Lake Tribal Custom Election Regulations [Election Regulations]. Members vote in either election, depending on where they reside, but cannot vote in both elections. Each separate election leads to the formation of a different band council in each community, but all elected officials in each community together form SLCN #462’s band council for Canada’s purposes. The Election Regulations were approved by Band meetings in 1955 and 1960.
[3] SLCN #462 does not control its membership list. Under section 11 of the Indian Act, the federal government may add individuals to the membership list. Ms. Collins is a member of SLCN #462 and is seeking the right to vote in the SLCN #125 election.
[4] The Election Regulations enacted in the late 1950s contain an exclusion on the right to vote: “Red Ticket Indians” are not allowed. This exclusion originates from a pre-1985 provision of the Indian Act that prevented an Indian woman from maintaining her status and transmitting it to her children if she was married to a non-status man (McCarthy v Whitefish Lake First Nation #128, 2023 FC 220 at para 21) [McCarthy].
[5] In 1985, Parliament amended the Indian Act. Those amendments, included in Bill C-31, intended to remedy the historical discrimination and re-enfranchise all women and their children. The “Red Ticket Indian” category of individuals no longer exists.
[6] Nevertheless, in the June 2022 SLCN #125 election, and those held previously, women who were re-enfranchised under Bill-C-31 were still disallowed to vote under the still applicable Election Regulations, which provide at section 2(a):
Any Band member, over the age of 21 years on the day of the election, whether living on the Reserve or not, shall be eligible to cast a vote; with the exception of Red Ticket Indians.
[7] Ms. Collins is affected by the provision. She is a member of SLCN #462/SLCN #125. She was born of the union of a Metis father and a mother who was born with Indian status. Because her mother married a non-Indian, her mother lost her status in 1963 and could not transmit her Indian status to the Applicant at birth. Section 2(a) therefore applies to the Applicant, as she was included within the meaning of the term “Red Ticket Indian”, a category that no longer exists. The term “with the exception of Red Ticket Indians” included within section 2(a) of the Election Regulations will be referred to in these reasons as the “Voting Prohibition.”
[8] Ms. Collins seeks judicial review of the SLCN #462/SLCN #125’s electoral process. Specifically, she seeks judicial review of the Election Officer’s decision to deny her the right to vote. Moreover, she seeks a declaration that the Voting Prohibition is constitutionally invalid as it is in breach of section 15 of the Charter of Rights and Freedoms [the Charter] and cannot be saved under section 1. Ms. Collins also submits that the Voting Prohibition is not a SLCN #462/SLCN #125 custom and therefore section 25 of the Charter cannot override the section 15 breach. In any event, even if section 25 did apply, the discrimination in this case is based on sexual grounds, and section 28 of the Charter precludes SLCN #462/SLCN #125 from relying on any custom established under section 25 to discriminate on the basis of sex.
[9] Shortly before the hearing, Justice Favel of this Court rendered his decision in the matter T-800-21, which is the McCarthy decision. The impugned Election Regulations and Voting Prohibition in this case are the same that apply to WLFN #128. In the McCarthy decision, Justice Favel declared the Voting Prohibition unconstitutional as it breached section 15 of the Charter and could not be justified under section 1, nor shielded by section 25 of the Charter because it was not a custom of the band.
[10] Both parties concede that Justice Favel’s decision applies in this case. Considering the principle of comity, I am required to apply Justice Favel’s decision in McCarthy, unless I am convinced that the decision is distinguishable or manifestly wrong (Dleiow v Canada (Citizenship and Immigration), 2020 FC 59 at para 8; Apotex Inc v Pfizer Inc, 2013 FC 493, [2013] FCJ No 562 at paras 16-17). In my view, Justice Favel’s decision is correct. Subject to the following clarifications and distinctions, I agree with Justice Favel and adopt his reasoning. This application for judicial review is therefore granted.
II. Factual background
A. The Band
[11] SLCN #462 is a Treaty 6 signatory band. SLCN#125 and WLFN#128 are the reserves or communities of SLCN #462, which is the “band” recognized by the federal government under the Indian Act. Located in the region of central Alberta, SLCN #462 has a registered population of 11,146 members, including more than 8,500 in SLCN #125.
[12] SLCN #125 and WLFN #128 identify as separate communities, and hold elections separately under the same Election Regulations, namely the “Saddle Lake Tribal Customs Election Regulations” which were passed at Band meetings in 1955/1960. While all members are members of SLCN#462, at the local level, each member vote in either SLCN #125 or WLFN #128, depending on their residence.
B. The Applicant [13] The Applicant, Gail Collins, is a registered member of SLCN #462/SLCN #125. She was born of the union of a Metis father from St. Paul des Metis and a mother who was born with Indian status from SLCN #462. Her maternal grandparents were all registered SLCN #462 members but because her mother married a non-Indian, Gail Collins’ mother lost her status in 1963.
[14] Gail Collins and Terra McCarthy’s (the Applicant in the McCarthy decision) mothers were amongst the few thousands of members who lost their status with the enactment of the Indian Act and who were referred to as “Red ticket Indians” according to the Election Regulations.
[15] The origin of the term “Red ticket Indians” was discussed in several cases. In Daniels v Canada (Indian Affairs and Northern Development), 2013 FC 6 at paragraphs 460, 461, this Court explained that in 1869, the federal government adopted the 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, that included a provision disenfranchising Indian women who married out, but allowed them to continue receiving an annuity. An administrative practice arose of issuing those women identity cards known as “red tickets”. By 1951 and after other amendments to the Indian Act, these “Red Ticket” women were required to commute their annuities and leave the reserve.
[16] In 1985, Bill C-31 was enacted to allow Indigenous women that had “married out” of their Indian status to regain status and transmit it to their children. All women and their descendants that had lost (or never obtained) status by the earlier provision disenfranchising Indian women who married a non-Indian were re-enfranchised. The “Red Ticket Indian” category was abolished. The Applicant’s mother as well as Terra McCarthy’s mother were reinstated as members of their communities and both Applicants received Indian status and SLCN #462 membership.
[17] Moreover, as part of the Bill C-31 enactment, and pursuant to section 10 of the Indian Act, bands were given the ability to take control of their own membership list. SLCN #462 made the decision not to control its own membership list. SLCN #462 is therefore a “section 11 band” under the Indian Act meaning that the federal government may add individuals to the SLCN #462’s membership list in accordance with section 11 of the Indian Act (McCarthy at para 20).
C. Election Regulations [18] Although they are one “band” recognized by the federal government, SLCN #125 and WLFN #128 operate their elections separately, but under the same Election Regulations. Nine councillors are elected for the SLCN #125 reserve and four councillors are elected for the WLFN #128 reserve. The Chief is elected amongst the elected councillors. Residents of SLCN #125 are only allowed to vote for a Chief and councillors of SLCN #125 and the same rule applies to the band members residing in WLFN #128. Band council representing SLCN #462, the “band” recognized by the federal government that includes both SLCN #125 and WLFN #128, consists in the nine councillors elected for SLCN #125, and the four councillors elected for WLFN #128.
[19] As stated, the Voting Prohibition is included in section 2(a) of the Election Regulations and was in effect at the time of the June 2022 election. It provides that:
Any Band member, over the age of 21 years on the day of the election, whether living on the Reserve or not, shall be eligible to cast a vote; with the exception of Red Ticket Indians.
[20] Because of that provision, and in spite of the enactment of Bill C-31 and the elimination of the category of “Red Ticket Indian”, the Respondent has and continues to refuse the right to vote and the right to seek nomination in Chief and Council elections to members who regained status in 1985, such as the Applicant.
[21] A process to amend the Election Regulations was commenced by the previous Chief and Council but had not been completed at the time of the June 2022 election. Specifically, it had yet to be approved by Band membership. With regards to the eligibility to vote, the proposed amendments would change the language of the current section 2(a) to remove the exclusion for “Red Ticket Indians”. In other words, section 2(a) would be amended to remove the Voting Prohibition:
Any Band member, over the age of 21 years on the day of the election, whether living on the Reserve or not, shall be eligible to cast a single ballot.
D. The 2022 Election [22] On April 22, 2022, the Chief and Council handed out a “Notice-voter Registration 2022” [the Notice] requiring those not recognized as members resident in SLCN #125 to apply to vote.
[23] In this Notice, the Chief and Council insisted that those “not recognized as members of SLCN” provide a letter outlining their “genealogy” and appear before a panel to review their application to vote.
[24] On or about May 6, 2022, the SLCN #462/SLCN #125 called an election for June 15, 2022. Mr. Steve Wood was appointed as the Election Officer.
[25] The Applicant first attempted to demonstrate her genealogy pursuant to the instructions set out in the Notice after the election was called. On or about May 6, 2022, she wrote a letter to Chief and Council objecting to this Notice and asking that she be confirmed as a member resident of SLCN #125.
[26] On May 24, 2022, she wrote a second letter to Council in which she asked to have her name included in the voters’ list for the 2022 SLCN #125 Chief and Council election. In this letter, she also explained that the requirements sought by Council (genealogy or other documentation, appear before a panel, etc.) did not comply with the Election Regulations and breached her right to procedural fairness. She also emphasized on the fact that the practice of preventing Bill C-31 members from voting is discriminatory and was currently in a proceeding before the Federal Court in the File T-800-21 (the McCarthy decision).
[27] On June 1, 2022, the Election Officer announced that Bill C-31 members would not be allowed to vote or to seek nomination in the June 15, 2022, Election. The Applicant had not received any responses to her two letters at that point in time.
[28] On June 15, 2022, on the day of the election, the Applicant went to the polling station located in the SLCN #125 reserve and attempted to vote. However, she was told by the membership clerk Claudia Makokis that she was not allowed to vote, without further reasons.
[29] The Applicant is now challenging the June 1, 2022, decision of the Election Officer to refuse Bill C-31 members the right to vote or to seek nomination in the election that was held on June 15, 2022. She is also challenging this practice on the basis that it is unconstitutional and discriminatory.
III. Questions and standard of review [30] There are essentially three issues before this Court:
1)whether there was a “decision” in this matter giving rise to the Court’s jurisdiction under section 18.1 of the Federal Courts Act (R.S.C., 1985, c.F-7) [Federal Courts Act]
2)If the Court has jurisdiction to rule on this application whether the decision of the Election Officer is reasonable; and
3)whether the Voting Prohibition is in breach of section 15 of the Charter.
[31] The first issue is jurisdictional in nature. If the Court determines that it does not have jurisdiction to consider this application, that is the end of the legal proceeding.
[32] On the second issue, the challenge to the Election Officer’s decision is on administrative law grounds. Typically, the standard of review applicable to an administrative decision maker’s interpretation of their enabling statute is reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 25 [Vavilov]), which in this case includes the Election Officer’s decision on the interpretation of the Election Regulations. As held by this Court in Pastion v Dene Tha’ First Nation, 2018 FC 648 at paragraph 20, deference applies to Indigenous decision makers’ interpreting their own Indigenous laws: “decisions of First Nation election appeal bodies must be reviewed on a standard of reasonableness, including when they are interpreting the provisions of an Election Code”. At paragraph 27, the Court continued and opined that the justifications for deference “apply with equal force when the question at issue involves the interpretation of written Indigenous law.”
[33] In this case, however, and contrary to McCarthy, the Applicant specifically raised the issue of discrimination in her letter dated May 24, 2022, to the Election Officer, and submitted that the Voting Prohibition was invalid. Therefore, in assessing the reasonableness of the Election Officer’s decision, the principles of Doré v Barreau du Québec, 2012 SCC 12 [Doré], Loyola High School v Québec (AG), 2015 SCC 12 [Loyola] and Law Society of British Columbia v Trinity Western University, 2018 SCC 32 [TWU] apply. The decision maker must demonstrate that in “assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play” (TWU at paras 57-58; Doré at para 57; Loyola at para 39).
[34] In the McCarthy decision, the decision maker did not consider the Charter issue. Justice Favel therefore applied the Ontario Court of Appeal’s decision in Canadian Broadcasting Corporation v Ferrier, 2019 ONCA 1025 [Ferrier] at paragraph 35, ruling that a decision maker’s refusal or failure to consider an applicable Charter right is a “general question of law of central importance to the legal system as a whole” that is subject to the standard of correctness (Ferrier at para 35, citing Vavilov at para 17). While the discussion is academic, when an administrative decision maker did not consider an issue, there are no reasons to “defer to”. In that sense, no “standard of review” applies, and the recourse is simply to rule that the decision maker failed to consider a relevant ground, and the decision is remitted back for re-determination. Alternatively, in some circumstances, the Court may accept new arguments and rule on them, thereby substituting judgment, rather than applying a “standard of review.” In the end, the operation remains equivalent to applying a standard of “correctness.”
[35] On the third issue, the question is whether the Voting Prohibition is constitutionally invalid under section 15 of the Charter. The Court has jurisdiction to declare a First Nation’s election law, even a customary one, unconstitutional and of no force and effect (Janvier v Chipewyan Prairie First Nation, 2021 FC 539 [Janvier] at para 33). As held in Janvier at paragraph 18: “constitutional issues, such as allegations that legislation breaches the Charter, are reviewed on a correctness standard” (citing Vavilov at paras 55-57).
IV. Issue #1: Is there a “decision” by the Electoral Officer giving jurisdiction to the Court? A. Respondent’s position [36] The Respondent submits that even though a band council qualifies as a federal “board, commission or other tribunal” for the purposes of section 18.1 of the Federal Courts Act, the circumstances challenged in this application are not based on a “decision,” “order” or a “continuing course of conduct” pursuant to section 18.1(2) of the Federal Courts Act or Rule 302 of the Federal Courts Rules (SOR/98/106) [Federal Courts Rules] and therefore, the Court does not have jurisdiction to hear this judicial review.
[37] In this case, the Election Officer made an “announcement” at a nomination meeting on June 1, 2022, that Bill C-31 Members could not vote or seek nomination in the June 15, 2022, election. The Respondent submits that the “announcement” is not a “decision”. Moreover, the other events leading to the election are also not “decisions” for the purposes of the Federal Courts Act. Rather, the letters and actions taken by the Applicant, and the position taken by the Respondent, are merely expressions of a decision previously made that Bill C-31 Members did not have the right to vote or be nominated for the election when the Voting Prohibition was adopted in 1955/1960.
[38] The Respondent argues that the June 1, 2022, announcement that C-31 Members would not be permitted to vote in the election is not a “decision” under section 18.1(2) of the Federal Courts Act because it was not a new exercise of discretion in relation to new facts. Rather, it was an expression or reiteration of the eligibility rule set out at section 2(a) of the Election Regulations, and a practice that the Applicant acknowledges has been consistently carried out by previous band councils.
[39] Relying on a consistent line of jurisprudence (Francoeur v Canada (Treasury Board), 2010 FC 121, at paras 13 and 16, Moresby Explorers Ltd. v Gwaii Haanas National Park Reserve, 2000 CanLII 16549 at para 15, McLaughlin v Canada (Attorney General), 2022 FC 1466, [2022] FCJ No 1488 at paras 22, 47, Tourangeau v Smith’s Landing First Nation, 2020 FC 184 at paras 35-38, and Dhaliwal v Canada (Minister of Citizenship and Immigration), 1995 CarswellNat 1430 [1995] FCJ No 982 at paras 1-2), the Respondent submits that judicial review is not available where the “decision” being challenged is not a new exercise of discretion, but rather a communication affirming a pre-existing decision, rule or policy. In all the cases cited, an exchange of letters or correspondence between an individual and a decision maker showing attempts to reverse a negative decision, on an issue previously decided by that decision maker, did not give rise to a “new decision” or a “course of conduct” subject to judicial review. In the Respondent’s view, given that the “decision” not to allow Bill C-31 Members to vote was made when the Voting Prohibition was adopted, no new exercise of discretion was made in June 2022 and therefore there is no “decision” to ground the jurisdiction of the Court.
B. Applicant’s position [40] The Applicant argues that the June 1, 2022, announcement that Bill C-31 Members would not be allowed to vote or seek nomination in the June 15, 2022, election consists in a “decision” pursuant to section 18.1(2) and subject to the jurisdiction of the Court.
[41] Alternatively, the Applicant asserts that the following events together constitute a “decision” or a “continuing course of conduct” under Rule 302 of the Federal Court Rules and that the Court thereby has jurisdiction to hear the matter :
The Notice – Voter Registration 2022;
Council’s non-response to the Applicant’s Objection Letters sent to the Election Officer dated May 6 and May 24, 2022, claiming entitlement to vote in the election;
The Applicant’s attempt to demonstrate her genealogy under the purported registration process and appear before a “panel” which she was never able to do because the Election Officer never responded to her request (see para 45-46 of the applicant’s factum);
The electoral officer’s June 1, 2022, announcement that Bill C-31 Members would not be entitled to vote and seek nomination in the election;
The Applicant attempted to vote at the election on June 15, 2022, but was denied a ballot by Ms. Claudia Makokis, who is the Respondent’s membership clerk.
C. Analysis [42] The Respondent rightly concedes that this Court has jurisdiction over band council decisions even if the decision originates from the band’s customs. Indeed, the Federal Court has jurisdiction to review First Nation’s elections processes, including those under Indigenous customary laws (Thomas v One Arrow First Nation, 2019 FC 1663 [Thomas] at para 14; Gamblin v Norway House Cree Nation Band Council, 2012 FC 1536 at para 35, 40; McCarthy at para 51; Shanks v Salt River First Nation #195, 2023 FC 690 at para 30; Saulteaux v Carry the Kettle First Nation, 2022 FC 1435 at paras 26-28, 59; Bellegarde v Carry the Kettle First Nation, 2023 FC 86 at paras 14-15).
[43] On the issue of whether there was a “decision” that grounds the jurisdiction of this Court, the cases cited by the Respondent to the effect that correspondence between an applicant and a decision maker does not constitute a “decision” for the purposes of section 18.1 of the Federal Courts Act are distinguishable on their facts. In those cases, the applicants had been the recipient of an individualized decision and an application for judicial review was not brought within the applicable 30-day time limitation under section 18.1(2) of the Federal Courts Act. Instead of seeking an extension of time, those applicants wrote correspondence to the decision maker to solicit a reconsideration, or to “create” a second decision on which an application for judicial review could be made. In those cases, the Court held that the correspondence did not lead to a fresh exercise of discretion on the basis of new facts and therefore the correspondence was not a new “matter,” “decision” or “course of conduct” giving rise to the Court’s jurisdiction.
[44] In this case, and contrary to the decisions cited by the Respondent, the correspondence between the Applicant and the Election Officer are not in relation to an individalized decision made earlier by the same decision maker in relation to the same applicant, on the basis of the same evidence and arguments. While the Voting Prohibition applicable to Bill C-31 Members did exist since 1955/1960, the request by the Applicant was a new one made to the Election Officer, who himself is a different decision maker as compared to the election officer that had been appointed in previous elections.
[45] In this particular case, the Election Officer had the power to consider and determine the Applicant’s request to vote. Indeed, an administrative decision maker that has the power to construe its enabling powers, or questions of law, also has the power to consider their constitutional validity (R. v Conway, 2010 SCC 22 at para 78). As a decision maker in relation to the Voting Prohibition, the Election Officer had the power to assess the Applicant’s request on discrimination grounds, rule that the prohibition on voting to Bill C-31 Members was discriminatory and inapplicable, and grant the Applicant the right to vote (Fort McKay First Nation v Laurent, 2009 FCA 235, at paras 57–67; Linklater v Thunderchild First Nation, 2020 FC 1065 [Linklater] at para 34; Perry v Cold Lake First Nations, 2018 FCA 73 at para 45 [Perry]).
[46] Moreover, and contrary to the cases cited by the Respondent in which the same applicant was seeking judicial review of the same decision, that is not the case here. There is no evidence that the Applicant ever challenged the Voting Prohibition, nor that the particular Election Officer ever decided the issue. It is trite law that an administrative decision maker is not bound by decisions made by the same administrative body in the sense known as stare decisis (Vavilov at para 129). The Election Officer therefore had the power, and had to determine the issue raised by the Applicant.
[47] In my view, the events noted by the Applicant, including the April 22, 2022, Notice and the ultimate refusal to issue a ballot on election day to the Applicant, constitute together “decisions” that are sufficient to ground the jurisdiction of the Federal Court. As held by Justice McVeigh in Shirt v Saddle Lake Cree Nation, 2017 FC 364 [Shirt #1], in relation to the Election Regulations of SLCN #462 (applicable in SLCN #125) and this Court’s jurisdiction on the election process as a whole:
[3] This Court would prefer not to interfere with the democratic process of the SLCN out of respect for their right to determine their own elections. However, sometimes it is necessary and it can be helpful to hear what you already know. The Election Regulations have not changed since 1960 and though they may have been sufficient at the time, they are certainly lacking now.
[4] The Federal Court has supervisory jurisdiction over the election process including electoral bodies such as an appeal committee and electoral officers (Algonquins of Barriere Lake v Algonquins of Barriere Lake (Council), 2010 FC 160 at paras 105-106).
[Emphasis added.]
[48] The events in this case are not dissimilar to the events in Thomas. In that case, the “decisions” included one by the election officer to remove the Applicant’s name from the ballot, one by Council not to take any further steps, and a refusal by the Chief to resign. As in this case, none of those decisions were made in writing, and none provided reasons to the Applicant. In ruling that the Court had jurisdiction, Justice Grammond held that:
[14] These three decisions were intimately related to the electoral process. There can be no serious dispute that this Court has jurisdiction to review decisions made under a First Nation’s election laws, including where these laws are said to be “customary.” See, for example, Canatonquin v Gabriel, 1980 CanLII 4125 (FCA), [1980] 2 FC 792 (CA); Ratt v Matchewan, 2010 FC 160 at paragraphs 96–106.
[Emphasis added.]
[49] Likewise, in this case, the five related events resulting in the Applicant being unable to vote relate to the Respondent’s electoral process, and together constitute a “decision” for the purposes of section 18.1 of the Federal Courts Act. As the Court has jurisdiction to review a First Nation’s electoral process, even if conducted under custom, the Court has jurisdiction in this case.
[50] Moreover, even if there had not been a “decision”, the Court has jurisdiction on another basis. This application for judicial review seeks a declaration on the constitutional validity of the Voting Prohibition. Pursuant to section 18.1 of the Federal Courts Act, the “matter” of the application therefore relates to the constitutional validity of the Voting Prohibition that was adopted by SLCN #462/SLCN #125. In Pittman v Ashcroft First Nation, 2022 FC 1380, one of the issues raised was whether the Court had jurisdiction to hear a challenge on the constitutional validity of a band council resolution adopted many years earlier. Justice Grammond held at paragraphs 65-66 that the constitutional validity of legislative enactments, such as the Voting Prohibition in this case, “can always be submitted to the Courts, even though many years have passed since the enactment of the challenged statute” (relying on Manitoba Metis Federation Inc v Canada (Attorney General), 2013 SCC 14 at paras 134–135, [2013] 1 SCR 623). Likewise, the Court has jurisdiction in this case to rule on the constitutional validity of the Voting Prohibition, regardless of whether a “decision” is impugned, and no time limitation applies to such application.
V. Issue #2: Is the Electoral Officer’s decision reasonable? [51] The reasonableness of the Election Officer’s decision can be determined summarily. In Vavilov, the SCC held that the reasonableness of a decision is assessed through its intelligibility, transparency and justification (Vavilov at para 81). When a Charter provision is at play, reasonableness requires specific considerations. The Election Officer’s decision needs to demonstrate “a proportionate balancing of the Charter protections at play” along with the objectives of the Election Regulations, for it to be considered reasonable (TWU at para 58; Doré at para 57; Loyola at para 39).
[52] Reasons are the means by which reasonableness and proportionate balancing may be demonstrated. However, reasons are not always necessary (see TWU at para 55). When no reasons are available, the Court must look at the record to assess the reasons that “could be offered in support of a decision” (TWU at para 56; Vavilov at paras 85, 97, 102-103; Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 at para 11; Canada (Citizenship and Immigration) v Mason, 2021 FCA 156 at paras 32-33, 38). The record must demonstrate that the decision maker’s ruling amounted to a proportionate balancing of the Charter right with the objectives of the statutory mandate (TWU at paras 55-56, 82; Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 at para 52, quoting Newfoundland Nurses at para 15).
[53] In this case, while the Applicant specifically raised the issue that the Voting Prohibition was discriminatory, the Election Officer did not provide reasons demonstrating a “proportionate balancing of the Charter protection with the statutory mandate,” in this case with the Election Regulations (see TWU at para 79, Doré at para 7; Loyola at para 32).
[54] Moreover, there is nothing in the record demonstrating any consideration of the issue. Indeed, the Election Officer simply referred to the existence of the Voting Prohibition and, on the basis of its text and without analyzing whether that text still applied (after Bill C-31) or if it was constitutionally valid, simply applied it and denied the Applicant’s right to vote. The Election Officer had the power to consider the constitutional validity of the Voting Prohibition, because there is no explicit exclusion of that power in the Election Regulations (Linklater at para 34; Perry at para 45).
[55] Consequently, for those reasons, the decision is unreasonable because neither the reasons nor the record demonstrate any attention or consideration of the question as framed by the Applicant (see Canada (Attorney General) v Robinson, 2022 FCA 59 at paras 27-28; Vavilov at paras 81-87, 128, 133; McCarthy at para 95).
VI. Issue #3: Is the Voting Prohibition constitutionally invalid under section 15 of the Charter? A. Section 32 of the Charter of Rights and Freedoms applies to the Voting Prohibition (1) Applicant’s position [56] At the hearing, the Applicant argued that the Charter applied to the Election Regulations, pursuant to section 32 of the Charter. While some Indigenous nations dispute whether the Charter applies in relation to governance, including decisions made under self-government or customary powers, the Applicant relied on Taypotat v Taypotat, 2013 FCA 192 [Taypotat] at paragraph 38, for the proposition that “protection for aboriginal peoples from violations to [Charter] rights and freedoms by their own governments” is required. Otherwise, if the Charter does not apply, it “would […] create a jurisdictional ghetto in which aboriginal peoples would be entitled to lesser fundamental constitutional rights and freedoms than those available to and recognized for all other Canadian citizens” (para 39).
(2) Respondent’s position [57] At the hearing, the Respondent did not submit that the Election Regulations were not subject to the Charter. Indeed, the SLCN #462 made no arguments whatsoever on the application of the Charter, leaving the issue to the Court.
(3) Analysis [58] In McCarthy, Justice Favel held that section 32 of the Charter did apply to the Election Regulations because WLCN #128 was a “government” or carried on functions of “governments,” regardless of the source of the power giving rise to the Election Regulations (para 116). Justice Favel also opined that section 32(1) of the Charter applied to Indigenous nations exercising an inherent self-government right and to Indian bands exercising governmental authority under the Indian Act (paras 129-133).
[59] I agree with Justice Favel’s analysis, to which I add the following justification.
[60] The Charter applies to decisions made by Indigenous nations regardless of the “source” of their powers. The promise made to all Canadians, within the Charter, is that all are protected from the imposition of any power, by any governing authority, regardless of the source of that power. It is because of the “nature” of the power exercised, one that is compulsory and can be imposed on others, that the application of the Charter is triggered (Horse Lake First Nation v Horseman, 2003 ABQB 152 [Horse Lake] at paras 12-19, 27-29).
[61] The Constitution (including the Charter) must be interpreted as a whole in a large, liberal and purposive manner, in its appropriate linguistic, philosophic and historical context ((Toronto (City) v Ontario (Attorney General), 2021 SCC 34 at para 14; Quebec (Attorney General) v 9147‑0732 Québec inc., 2020 SCC 32, at paras 8‑10, 68; Conseil scolaire francophone de la Colombie‑Britannique v British Columbia, 2020 SCC 13 at para 4; Hunter v Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145; R. v Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295). The constitutional provision must be capable of growth. However, the interpretation must not overshoot the right. Therefore, the text of the constitutional provision is very important and its content is the starting point of the purposive approach.
[62] A provision of the Charter must not be interpreted in isolation. Rather, the terms of the Charter must be interpreted coherently and contextually, together with other parts, and consistent with the internal architecture of the Constitution as a whole (Reference re Secession of Quebec, [1998] 2 SCR 217 at para 50; Dubois v The Queen,[1985] 2 SCR 350 at p. 365; Health Services and Support – Facilities Subsector Bargaining Assn. v British Columbia, 2007 SCC 27 at para 80). An interpretation should also favour one that does not make the provision redundant (Elmer A. Driedger, Construction of Statutes, 2nd ed (Toronto: Butterworths, 1983) at 87; Ruth Sullivan, Construction of Statutes, 7th ed (LexisNexis, 2022) at 211; see also Toronto (City) v Ontario (Attorney General), 2021 SCC 34 at paras 59, 82).
[63] Section 32 of the Charter provides that:
Application of Charter
Application de la Charte
32 (1) This Charter applies
32 (1) La présente charte s’applique :
(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
(a) au Parlement et au gouvernement du Canada, pour tous les domaines relevant du Parlement, y compris ceux qui concernent le territoire du Yukon et les territoires du Nord-Ouest;
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
(b) à la législature et au gouvernement de chaque province, pour tous les domaines relevant de cette législature.
[64] The issue relating to the application of the Charter to rules enacted by Indigenous nations arises as a result of the terms of section 32, which specifically apply to Parliament and Legislatures, as well as all matters within the authority of the federal and provincial governments. Section 32 does not specifically apply to decisions made by Indigenous nations under their inherent self-government or other regulatory powers.
(a) Historical perspective relating to the application of the Charter to Indigenous governance [65] The controversy relating to the application of the Charter to Indigenous governments is less acute when the impugned rule is made pursuant to a power identified in the Indian Act. For example, band councils may enact by-laws under section 81 of the Indian Act over various subjects specifically identified therein. Since the Charter applies to the Indian Act, it therefore applies to any power exercised under it. Similarly, municipalities also exercise legislative powers under provincial laws delegating powers to municipal councils. Section 32 applies to municipal governments (Godbout v Longueuil (City), [1997] 3 SCR 844 [Godbout]; Greater Vancouver Transportation Authority v Canadian Federation of Students — British Columbia Component, 2009 SCC 31 [Greater Vancouver]). While municipal governments cannot be compared to Indigenous nations from a sociological standpoint, band councils exercising powers under the Indian Act similarly fit within the meaning of section 32.
[66] From a historical perspective, that conclusion is not controversial. Historically, band councils were seen as either exercising a legislative power under the Indian Act, or even considered to be an agent or arm of the Minister.
[67] Shortly after the adoption of the Charter, in Whitebear Band Council v Carpenters Provincial Council of Saskatchewan and Saskatchewan Labour Relations Board, 1982 CanLII 2582 (SK CA), [1982] S.J. No. 312 at paragraphs 13, 14, 19, the Saskatchewan Court of Appeal compared Indian band councils with municipal governments, holding that band councils were “creatures” of Parliament under section 91(24) of the Constitution Act, 1967. The Court of Appeal held that band councils were an “elected public authority, dependent on Parliament for its existence, powers and responsibilities whose essential power is to exercise […] government power” (para 19). As such, band councils exercise powers delegated by Parliament and also act from time to time as the agent of the Minister and the representative of the band with respect to the administration and delivery of federal programs.
[68] Then, in R. v Paul Band, 1983 ABCA 308 (CanLII), [1984] 1 C.N.L.R. 87, the Alberta Court of Appeal held at paragraph 20 that:
Band councils are created under the Indian Act and derive their authority to operate qua band councils exclusively from that Act. In the exercise of their powers they are concerned with the administration of band affairs on their respective reserves whether under direct authority of Parliament or as administrative arms of the Minister. They have no other source of power. Band councils are thus within the exclusive legislative jurisdiction and contr