Date: 20010202
Docket: T-2388-00
Citation: 2001 FCT 9
Between :
MARSHA GORDON on her own behalf and
on behalf of all NON-RESIDENT MEMBERS OF THE
PASQUA FIRST NATIONS BAND NO. 79
Plaintiff
- and -
HER MAJESTY THE QUEEN, as represented by
The Minister of Indian and Northern Affairs of Canada
and THE PASQUA FIRST NATIONS BAND NO. 79
Defendants
REASONS FOR ORDER
PINARD, J. :
[1] Although the relief requested in the Notice of Motion is enumerated in several different points in her Memorandum of Fact and Law, the plaintiff submits "that the relief requested therein can be characterized as a request for an interlocutory injunction in the nature of an exemption, exempting the Band from the operation of sections 74(4) and 75 of the Indian Act", and consequently restraining the Pasqua First Nations Band No. 79 (the Band) from holding nominations or elections which comply with those sections of the Indian Act, R.S.C. 1985, c. I-5 (the Indian Act).
[2] Indeed, this action and the motion within are taken to challenge the constitutional validity of the above provisions of the Indian Act on the ground that they are in breach of section 15 of the Canadian Charter of Rights and Freedoms (the Charter), in that they require persons who wish to run as candidates for band councillor to be "ordinarily resident on the reserve".
The Facts
[3] The plaintiff, Marsha Gordon, is a member of the Band which, as of November 2000, was composed of 1,492 members. Of these members, 929 were registered as living off the reserve and 536 were registered as living on the reserve. The remaining 27 members lived on other reserves. The Band headquarters are on the Pasqua Reserve which is located approximately one-hour drive from Regina, Saskatchewan.
[4] The plaintiff does not reside on the reserve which is defined under subsection 74(4) of the Indian Act as an electoral section. She is therefore prohibited from holding office as a Band Councillor.
[5] Although the plaintiff is described as "MARSHA GORDON on her own behalf and on behalf of all NON-RESIDENT MEMBERS OF THE PASQUA FIRST NATIONS BAND NO. 79", counsel for the plaintiff agrees that there is no evidence that Marsha Gordon is authorized to act on behalf of anybody other than herself in this matter and that, therefore, "Marsha Gordon on her own behalf" is the sole plaintiff for the purpose of these proceedings.
[6] Nominations for the position of Councillor and Chief of the Band, for the election first scheduled to be held on March 2, 2001 and now scheduled to be held on March 5, 2001, had to be received by January 22, 2001.
[7] Prior to May 1999, in accordance with section 77 of the Indian Act, Band members not "ordinarily resident" on the reserve were not entitled to vote or to be involved in the election procedures.
[8] In May 1999, the Supreme Court of Canada rendered its decision in Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, rectifying part of this situation. The Corbiere decision gave off-reserve band members the right to vote, as section 77 of the Indian Act was declared unconstitutional in accordance with section 15 of the Charter. The Supreme Court of Canada suspended the declaration of unconstitutionality for a period of 18 months, allowing time for the Federal Government to take action and deal with the issue.
[9] Following the Supreme Court of Canada's decision, the Department of Indian Affairs and Northern Development (the Department) has entered into extensive consultations with First Nations across Canada with respect to amending the Indian Act Election Regulations to facilitate exercise of the franchise by all band members over 18 years of age, irrespective of where the member resides. Prior to and after the coming into force of these, cited as SOR/2000-391, the Department worked with First Nations to implement a new system for electing band chiefs and councillors based on the new Regulations. This implementation includes an advertising campaign to alert off-reserve members of their right to vote in band elections, a training program for electoral officers, the provision of information sessions to band leadership and the provision of additional funding where necessary to run the election.
[10] These activities are part of the first stage of a two-stage process that the Department is undertaking in order to implement the immediate, and broader, implications of the Corbiere decision with respect to subsection 77(1) and the Indian Act as a whole. As part of the second stage, the Department is engaging in further consultations with First Nations organizations and leaders on the national, provincial and band levels with respect to manners, including possible legislative and regulatory amendments, in which to further enhance the participation of non-resident band members in the governance and other democratic processes of bands.
[11] The Minister of the Department has announced to Canadians that the Department is developing what will become additional significant amendments to the election procedures as set out in the Indian Act and the Regulations. This is in further response to the Corbiere decision and will also address the issue of candidacy for non-resident band members. The consultation process, however, must be completed before amendments can be made. The consultation process will not be completed prior to the election planned for March 2001 for the Band.
[12] In addition, the members of the Band have been developing a Custom Election Code. Once the Code is finalized and ratified by an appropriate majority of the members of the Band, the Minister of the Department will be asked to exercise his discretion to issue an order under subsection 74(1) of the Indian Act revoking the application of the Indian Act election procedure with respect to the Band. The subsection 74(1) Order will in turn allow the Code to come into effect and permit the Band to control its own election procedures henceforth. However, this complex process is still under way and the evidence shows that there is insufficient time to finalize and approve the Code prior to the expiration of the mandate of the current Chief and Council of the Band. It is therefore necessary to conduct at least one more Indian Act election for the Band.
[13] As the defendant Band did not file any motion record, the motion is disputed only by the other defendant, Her Majesty the Queen, as represented by the Minister of Indian and Northern Affairs of Canada (the defendant).
The Issues
[14] This matter raises two issues :
| -. Is this an appropriate situation for this Court to order interim declarative or injunctive relief when the relief requested involves the constitutionality of legislation? |
| -. In any event, does the plaintiff satisfy the test for the granting of interim relief? |
Relevant Statutory Provisions
[1] The relevant provisions of the Indian Act read as follows:
74. (1) Whenever he deems it advisable for the good government of a band, the Minister may declare by order that after a day to be named therein the council of the band, consisting of a chief and councillors, shall be selected by elections to be held in accordance with this Act.
(2) Unless otherwise ordered by the Minister, the council of a band in respect of which an order has been made under subsection (1) shall consist of one chief, and one councillor for every one hundred members of the band, but the number of councillors shall not be less than two nor more than twelve and no band shall have more than one chief.
74. (1)Lorsqu'il le juge utile à la bonne administration d'une bande, le ministre peut déclarer par arrêté qu'à compter d'un jour qu'il désigne le conseil d'une bande, comprenant un chef et des conseillers, sera constitué au moyen d'élections tenues selon la présente loi.
(2) Sauf si le ministre en ordonne autrement, le conseil d'une bande ayant fait l'objet d'un arrêté prévu par le paragraphe (1) se compose d'un chef, ainsi que d'un conseiller par cent membres de la bande, mais le nombre des conseillers ne peut être inférieur à deux ni supérieur à douze. Une bande ne peut avoir plus d'un chef.
(3) The Governor in Council may, for the purposes of giving effect to subsection (1), make orders or regulations to provide
| (a) that the chief of a band shall be elected by |
| (i) a majority of the votes of the electors of the band, or |
| (ii) a majority of the votes of the elected councillors of the band from among themselves, |
but the chief so elected shall remain a councillor; and
| (b) that the councillors of a band shall be elected by |
| (i) a majority of the votes of the electors of the band, or |
(3) Pour l'application du paragraphe (1), le gouverneur en conseil peut prendre des décrets ou règlements prévoyant :
| a) que le chef d'une bande doit être élu : |
| (i) soit à la majorité des votes des électeurs de la bande, |
| (ii) soit à la majorité des votes des conseillers élus de la bande désignant un d'entre eux, |
le chef ainsi élu devant cependant demeurer conseiller;
| b) que les conseillers d'une bande doivent être élus : |
| (i) soit à la majorité des votes des électeurs de la bande, |
| (ii) a majority of the votes of the electors of the band in the electoral section in which the candidate resides and that he proposes to represent on the council of the band. |
(4) A reserve shall for voting purposes consist of one electoral section, except that where the majority of the electors of a band who were present and voted at a referendum or a special meeting held and called for the purpose in accordance with the regulations have decided that the reserve should for voting purposes be divided into electoral sections and the Minister so recommends, the Governor in Council may make orders or regulations to provide for the division of the reserve for voting purposes into not more than six electoral sections containing as nearly as may be an equal number of Indians eligible to vote and to provide for the manner in which electoral sections so established are to be distinguished or identified.
75. (1) No person other than an elector who resides in an electoral section may be nominated for the office of councillor to represent that section on the council of the band.
(2) No person may be a candidate for election as chief or councillor of a band unless his nomination is moved and seconded by persons who are themselves eligible to be nominated.
| (ii) soit à la majorité des votes des électeurs de la bande demeurant dans la section électorale que le candidat habite et qu'il projette de représenter au conseil de la bande. |
(4) Aux fins de votation, une réserve se compose d'une section électorale; toutefois, lorsque la majorité des électeurs d'une bande qui étaient présents et ont voté lors d'un référendum ou à une assemblée spéciale tenue et convoquée à cette fin en conformité avec les règlements, a décidé que la réserve devrait, aux fins de votation, être divisée en sections électorales et que le ministre le recommande, le gouverneur en conseil peut prendre des décrets ou règlements stipulant qu'aux fins de votation la réserve doit être divisée en six sections électorales au plus, contenant autant que possible un nombre égal d'Indiens habilités à voter et décrétant comment les sections électorales ainsi établies doivent se distinguer ou s'identifier.
75. (1) Seul un électeur résidant dans une section électorale peut être présenté au poste de conseiller pour représenter cette section au conseil de la bande.
(2) Nul ne peut être candidat à une élection au poste de chef ou de conseiller d'une bande, à moins que sa candidature ne soit proposée et appuyée par des personnes habiles elles-mêmes à être présentées.
Analysis
[2] With respect to the first issue, I am of the view that because it involves the constitutional validity of subsection 74(4) and section 75 of the Indian Act, legislation which was duly passed by Parliament in an expression of the democratic will of the citizens of Canada, the question is, by its nature, too important to be dealt with in this interlocutory proceeding. In Gould v. Canada (Attorney General), [1984] 2 S.C.R. 124, affirming (1984), 54 N.R. 232 (F.C.A.), the Supreme Court of Canada confirmed that elections law is too important to "rush to judgment" and to have its constitutionality determined in a summary way, without the full consideration of the available evidence and arguments, and complete analysis of the law's purposes and effects. In that case, the Supreme Court of Canada affirmed the reasons of Mahoney, J.A. who, speaking for the majority of the Federal Court of Appeal, had stated as follows, at pages 233-234:
| The order made authorizes the respondent to conduct himself and requires him to be treated as though the law he seeks to have declared invalid were now invalid notwithstanding that it remains in full force and effect and will remain so unless and until, after trial, the declaration sought is made. That went far beyond a determination that there is a serious issue to be tried. It required more than the usual determination, in disposing of an application for an interlocutory injunction, that the balance of convenience dictated that the status quo be maintained or the status quo ante be restored pending disposition of the action after trial. It was a determination that the respondent, without having had his action tried, is entitled to act and be treated as though he had already won. The order implies and is based on a finding that the respondent has, in fact, the right he claims and that s. 14(4)(e) [of the Canada Elections Act] is invalid to the extent claimed. That is an interim declaration of right and, with respect, is not a declaration that can properly be made before trial. The defendant in an action is as entitled to a full and fair trial as is the plaintiff and that is equally so when the issue is constitutional. The proper purpose of an interlocutory injunction is to preserve or restore the status quo, not to give the plaintiff his remedy, until trial. |
[3] In a subsequent case, Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110 at 132, the Supreme Court of Canada further approved Mahoney, J.A.'s reasons, characterizing the appropriate approach as one of "cautious restraint" which "respects the right of both parties to a full trial".
[4] In Harper v. Canada (Chief Electoral Officer), [2000] S.C.J. No. 58, the Supreme Court of Canada recently stated, at paragraph [9]:
| . . . Courts will not lightly order that laws that Parliament or a legislature has duly enacted for the public good are inoperable in advance of complete constitutional review, which is always a complex and difficult matter. . . . |
[5] Also, in Shubenacadie Indian Band v. Canada (Minister of Fisheries and Oceans), [2000] F.C.J. No. 1445, at paragraph [37], my colleague Pelletier J. followed Gould, supra, and stated as follows with respect to that decision:
| . . . It is clear from the reasons of the Court of Appeal that the election would occur before the judicial review application could be heard. As a result, the decision on the injunction application would effectively dispose of the application. If Gould was allowed to vote pursuant to the interlocutory injunction, and was not successful on the judicial review application, his vote could not be recalled. Thus Gould would have his remedy before his application on the merits was heard. |
Pelletier J. further stated, at paragraph [49]:
| I therefore find that this application comes within the principle in Gould in that it will very likely be the final disposition of the matter, will affect rights beyond those of the immediate parties, and as a result ought not to be made on an interlocutory basis. |
[6] The last quote is directly applicable to the present case as well, given that two hundred and sixty First Nations in Canada are subject to the same sections 74(4) and 75 of the Indian Act. The requested relief will affect them all, especially those who are about to begin or are in the midst of their own council elections.
[7] In the case at bar, counsel for the defendant correctly notes that while the plaintiff relies extensively upon Corbiere, supra, the Supreme Court of Canada decided only the question of the right of all band members, including non-resident band members, to vote in band council elections pursuant to subsection 77(1) of the Indian Act. This question of the constitutional validity of subsection 74(4) and section 75 of the Indian Act and the residency restriction on candidacy is a new and separate question, one which has never been decided by any Court.
[8] Furthermore, it is clear that granting the relief requested by the plaintiff would give her her remedy immediately following issuance of her Statement of Claim and before exchange of documents between the parties, and before discovery and trial. Indeed, it would go much farther on an interlocutory motion than even the Supreme Court of Canada in Corbiere, supra, was prepared to go following a full trial and after two appeals.
[9] With respect to the second issue, I must apply the familiar tri-partite test from RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 312, and Sauvé v. Canada (Chief Electoral Officer), [1997] 3 F.C. 643 (F.C.A.). I cannot grant the requested interim relief unless I am satisfied that there is a serious question to be tried, that the party seeking the relief will suffer irreparable harm if the relief is not granted, and that the balance of convenience favours granting the relief.
[10] The first branch of the test is met by the plaintiff, as the defendant agrees, in that the issue of the constitutional validity of subsection 74(4) and section 75 of the Indian Act is a serious issue to be tried and there is a prima facie case here that is worthy of the Court's consideration.
[11] As for the second branch of the test, the plaintiff has failed to satisfy me that she will suffer irreparable harm if she is not able to run as a candidate or if she is not able to vote for a non-resident candidate in the March 2001 election. At most, the plaintiff will miss out on being a candidate and will not be able to vote for a non resident in the election. But if she succeeds at trial, she will not be precluded from being a candidate on the basis of residency or vote for a non-resident candidate in the future. Furthermore, as pointed out by the defendant, even if the plaintiff does not succeed at trial, or discontinues this action, there is still the prospect that her objective will be achieved through the processes that are currently under way involving the Department and First Nations organizations and Bands, including the process of developing a Custom Election Code for the Band.
[12] Finally, with respect to the balance of convenience, I am of the view that it is in the public interest to permit the consultation processes currently under way to continue without judicial intervention in this case. In RJR-MacDonald, supra, the Court stated, at page 343:
| The decision in Metropolitan Stores, at p. 149, made clear that in all constitutional cases the public interest is a `special factor' which must be considered in assessing where the balance of convenience lies and which must be "given the weight it should carry". . . . |
[13] I agree with the defendant that, even though the plaintiff attempts to characterize her case as an exemption case rather than one of suspension, this case is really one of suspension, as stated by Beetz, J. in Metropolitan Stores, supra, at page 146:
| . . . Depending on the nature of the cases, to grant an exemption in the form of a stay to one litigant is often to make it difficult to refuse the same remedy to other litigants who find themselves in essentially the same situation, and to risk provoking a cascade of stays and exemptions, the sum of which made them tantamount to a suspension case. |
| (Emphasis is mine.) |
[14] As previously noted, a large number of First Nations bands are, or will soon be, in the process of electing new councils. If relief is granted as requested in this case, all bands currently undergoing elections will be affected by this Court's interlocutory ruling with respect to subsection 74(4) and section 75 of the Indian Act. The procedures they must follow will suddenly be cast in doubt. Even if an exemption is granted, as per the words of Beetz, J. above, it will serve as a compelling precedent and make it very difficult for Courts across the country not to award similar interlocutory relief.
[15] The balance of convenience, therefore, does not favour a summary determination of this important matter.
Conclusion
[16] For all the above reasons, the plaintiff's motion is dismissed. Costs in the cause.
JUDGE
OTTAWA, ONTARIO
February 2, 2001