Ottawa, Ontario, March 8th, 2006
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
EUGENE ESQUEGA, BRIAN KING, GWENDOLINE KING, HUGH KING SR., RITA KING, WAYNE KING, LAWRENCE SHONIAS and OWEN BARRY
and
THE ATTORNEY GENERAL OF CANADA
REASONS FOR ORDER AND ORDER
[1] This is a motion by the respondent for:
1. an order striking out the requests for declaratory relief pursuant to section 15 of the Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B to the Canada Act, 1982 (U.K.), 1982, c.11 (the Charter) with respect to section 75 of the Indian Act, R.S.C. 1985, c. I-5;
2. in the alternative, an order pursuant to subsection 18.4(2) of the Federal Courts Act, R.S.C. 1985, c. F-7 directing that those portions of the Notice of Application relating to section 15 of the Canadian Charter of Rights and Freedoms be treated and proceeded with as an action;
3. in the further alternative, an order pursuant to Rule 8 of the Federal Courts Rules amending the Order of this Court dated September 6, 2005 to extend the time for serving and filing the respondent's affidavits and documentary exhibits to 30 days from the issuance of the order in this motion; and
4. an order pursuant to Rule 151 of the Federal Courts Rules, SOR/98-106 that the Investigation Report of Larry Dyck and the Recommendation Report of Christine Aubin contained in the Court file be treated as confidential.
Background Facts
[2] The underlying proceeding is an application for judicial review of Order-in-Council 2005-1289 dated June 28, 2005 which set aside the November 8, 2004 election of all nine councillors of the Gull Bay First Nation Band (the Band) pursuant to section 79 of the Indian Act, on the ground that three councillors were ineligible for candidacy under subsection 75(1) because they did not reside on the reserve at the time of nomination. The applicants are eight of the nine Band councillors duly elected subject to the provisions of the Indian Act and the Indian Band Election Regulations, C.R.C., c. 952 (Election Regulations).
The Election Appeal
[3] After the election, three Band members filed "election appeals" pursuant to paragraph 12(1)(c) of the Election Regulations, alleging that seven successful candidates were ineligible to hold office because they were not resident on the reserve within the meaning of subsection 75(1) of the Indian Act. Pursuant to section 13 of the Election Regulations, on February 25, 2005 the Director of Band Governance at Indian Affairs and Northern Development Canada (IAND) retained an independent third party to investigate the residency status of the challenged councillors. By report dated April 26, 2005 the investigator concluded that three of the Applicants, Rita King, Gwendoline King, and Brian King, were not residents on the reserve at the time of nomination.
In accordance with paragraph 14(c) of the Election Regulations, the Minister recommended that the Governor-in-Council set aside the election.
The Decision under Review
[4] On June 28, 2005, by Order-in-Council 2005-1289, the Governor-in-Council set aside the election of all nine Gull Bay First Nation Band councillors. On July 28, 2005, the applicants commenced this application for judicial review in respect of this decision. The notice of application sought relief, inter alia, in the nature of a declaration under section 52 of the Constitution Act, 1982 that section 75 of the Indian Act is invalid to the extent that it conflicts with section 15 of the Charter. On January 4, 2006 the applicants filed and served a notice of constitutional question on the Attorney General of Canada and all provincial Attorneys General, in accordance with section 57 of the Federal Courts Act.
Interlocutory Injunction
[5] On August 10, 2005 Mr. Justice François Lemieux of this Court granted the applicants an interlocutory injunction pending final determination of the application for judicial review, prohibiting the Gull Bay First Nation by-election scheduled for August 12, 2005 from proceeding and reinstating all nine Band councillors duly elected on November 8, 2004. SeeGull BayFirst Nation v. Canada(Attorney General), 2005 FC 1097.
Urgency
[6] The applicants were elected to hold office for two years, and the next election for Gull Bay First Nation Chief and Council is scheduled to be held in November 2006. The election of the next Gull Bay Band Council will render moot this application for judicial review if it is not decided by that time. Recognizing the need to expedite the hearing of the application prior to it becoming moot, Justice Lemieux ordered that the hearing be expedited and granted a scheduling order agreed to by the parties on September 6, 2005. As required, the applicants served and filed their affidavits on October 5, 2005, within 30 days of the scheduling order. The respondent failed to file its affidavit material within the requisite ensuing 30-day period. Instead, on November 4, 2005, the respondent filed a "draft" notice of motion. The respondent filed this Notice of Motion on December 12, 2005.
Relevant Legislation
[7] The legislation relevant to this motion is:
1. Canadian Charter of Rights and Freedoms, Part I to the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11;
2. Indian Act, R.S.C. 1985, c. I-5;
3. Indian Band Election Regulations, C.R.C., c. 952;
4. Federal Courts Act, R.S.C. 1985, c. F-7; and
5. Federal Courts Rules, SOR/98-106.
The relevant excerpts of the legislation are set out in Appendix "A".
Issues
[8] The issues are:
1. are the respondent's requests for relief res judicata or an abuse of the Court's process?;
2. should the Court grant an order striking the applicants' requests for declaratory relief under section 52 of the Constitution Act, 1982 with respect to section 75 of the Indian Act and section 15 of the Charter?;
3. in the alternative, should the Court grant an order directing that those portions of the Notice of Application relating to section 15 of the Charter be treated and proceeded with as an action?;
4. should the Court grant an order amending the Order of this Court dated September 6, 2005 to extend the time for serving and filing the respondent's affidavits and documentary exhibits?; and
5. should the Court grant an order treating as confidential the Investigation Report of Larry Dyck and the Recommendation Report of Christine Aubin?
Analysis
Issue No. 1: Are the respondent's requests for relief res judicata or an abuse of the Court's process?
[9] The applicants submit that the respondent's requests on this motion to strike out a portion of the application, or alternatively for an extension of time to file its affidavit material, or converting the Charter argument to an action are each res judicata by reason of having already been decided by Mr. Justice Lemieux in Orders dated August 10, 2005 and September 6, 2005. (See Angle v. Canada (Minister of National Revenue - M.N.R.), [1975] 2 S.C.R. 248.) The applicants argue that each of these three requests are an abuse of the Court's process.
[10] In the applicants' view, the Orders of Justice Lemieux decided that they had a strong prima facie case which should proceed on judicial review and not by action, and that the respondent should not be granted an extension to file its affidavit materials. Justice Lemieux, in his Order dated August 10, 2005 in Gull Bay First Nation v. Canada, above, held at paragraphs 23 and 28 that the applicants have established a strong prima facie case that Order-in-Council 2005-1289 was invalid, but expressly did not decide the strength of the Charter argument:
¶ 23 In my view Counsel for the Applicants has made out a strong prima facie case that the Order-in-Council is invalid on the grounds advanced before this Court.
[...]
¶ 28 I am also of the view the matters of statutory interpretation raised by Counsel for the Respondent raise strong prima facie questions whether under section 97 (c) of the Act the Govern-in-Council [sic] can set aside the election of eligible candidates and whether the concept of "residence" was properly applied. I make no comment on the strength of the Charter issue as this point was not pressed before me.
[Emphasis added.]
The sufficiency of the Charter argument has not been decided and is not res judicata. It is open to the Respondent to bring its motion to strike out the Charter argument from the notice of application if it believes it is bereft of any possibility of success.
[11] The respondent may also bring its motion under rule 8 of the Federal Courts Rules seeking an extension of time to file its affidavit materials. Justice Lemieux's scheduling order dated September 6, 2005 does not disentitle a party to apply to the Court for an extension or abridgement of time where there is a genuine basis to do so. I reject the submission that Martin v. Canada(Minister of Employment and Immigration) (1999), 162 F.T.R. 127 (T.D.) is authority that the respondent could only seek an extension of time by appealing the Court's scheduling order dated September 6, 2005.
[12] Last, in Gull Bay First Nation v. Canada, above, Justice Lemieux did not decide a motion to convert the application for judicial review to proceed as an action.
[13] Accordingly, the relief sought by the respondent on its motion have not been previously decided and are not res judicata. Neither are they an abuse of the Court's process by reason of being res judicata.
Issue No. 2: Should the Court grant an order striking the applicants' requests for declaratory relief under section 52 of the Constitution Act, 1982 with respect to section 75 of the Indian Act and section 15 of the Charter?
[14] As grounds for its motion to strike, the respondent cites that the applicants' request for relief under section 15 of the Charter are: an abuse of process; scandalous, frivolous and vexatious; and clearly improper so as to be bereft of any possibility of success. Specifically:
(a) the applicants do not have standing to seek declaratory relief under the Charter;
(b) the applicants have not adduced a sufficient evidentiary basis in support of the Charter challenge; and
(c) the declaratory relief under the Charter cannot offer the remedy sought.
[15] There is no provision in the Federal Courts Rules granting this Court jurisdiction to strike out a Notice of Application or portions thereof. In David Bull Laboratories (Canada) Inc. v. Pharmacia Inc. (1994), 176 N.R. 48 (F.C.A.) the Federal Court of Appeal held per Justice Strayer at paragraph 15 that the Court retains an inherent jurisdiction to "dismiss in summary manner a notice of motion which is so clearly improper as to be bereft of any possibility of success."
(a) Standing
[16] The respondent submits that the applicants do not have standing to argue that section 75 of the Indian Act discriminates against them because each of the applicants have filed an affidavit that they were resident on the reserve at the material time. The respondent's position is inconsistent with the Order-in-Council which set aside the election because three of the applicants were found by the respondent to be not resident on the reserve at the material time. For this reason, the applicants clearly have standing to argue discrimination.
(b) Sufficient evidence in the Charter context
[17] In MacKay v. Manitoba, [1989] 2 S.C.R. 357, Mr. Justice Cory held that Charter decisions must not be made in a factual vacuum, that an insufficient factual basis may be fatal to requests for relief, and that in appropriate circumstances judicial notice could overcome the insufficiency of evidence before the Court. Justice Cory held at paragraphs 9, 19, and 20:
¶ 9 Charter decisions should not and must not be made in a factual vacuum. To attempt to do so would trivialize the Charter and inevitably result in ill-considered opinions. [...]
[...]
¶ 19 [...] It may well be that one could take judicial notice of some of the broad social facts referred to by the appellants, but here there is a total absence of a factual foundation to support their case.
¶ 20 A factual foundation is of fundamental importance on this appeal. It is not the purpose of the legislation which is said to infringe the Charter but its effects. If the deleterious effects are not established there can be no Charter violation and no case has been made out. Thus the absence of a factual base is not just a technicality that could be overlooked, but rather it is a flaw that is fatal to the appellants' position.
[18] I have already concluded that there is some evidence upon which the Applications Judge could find the applicants have standing to seek declaratory relief. I therefore turn to determine whether the applicants have tendered a sufficient evidentiary basis to possibly substantiate the three branches of the test articulated by Mr. Justice Iacobucci in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, and so establish an infringement of the applicants' section 15 Charter right.
[19] In Law, Justice Iacobucci held at paragraph 88 that the Court must decide whether an impugned law imposes differential treatment between the claimant and others on an enumerated or analogous ground, and which has a discriminatory purpose or effect within the meaning of the equality guarantee:
¶ 88 [...]
(2) The approach adopted and regularly applied by this Court to the interpretation of s. 15(1) focuses upon three central issues:
(A) whether a law imposes differential treatment between the claimant and others, in purpose or effect;
(B) whether one or more enumerated or analogous grounds of discrimination are the basis for the differential treatment; and
(C) whether the law in question has a purpose or effect that is discriminatory within the meaning of the equality guarantee.
[20] At the hearing of this motion, the respondent agreed that the applicants were subject to differential treatment on the analogous ground of "Aboriginality-residency". The respondent agrees with the applicant that the Supreme Court of Canada's decision in Cobiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 is authority for the proposition that Aboriginality-residency is an analogous ground to the enumerated grounds of discrimination set out in subsection 15(1) of the Charter. Speaking for the majority of the Court, Justices McLachlin and Bastarache held at paragraph 10 that Aboriginality-residency will always be an analogous ground for an inquiry of the Court under section 15 of the Charter:
¶ 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.
[Emphasis added.]
[21] In Corbiere the Court held that subsection 77(1) of the Indian Act provides the basis for governmental decisions on the ground of Aboriginality-residency. Section 75 of the Indian Act also contains a residency requirement and provides grounds for governmental action under section 79. Since the decision under review in this case is an Order-in-Council grounded in a finding of ineligible candidacy for nomination according to section 75, it would be open to the Applications Judge to find it is a decision based on the analogous ground of Aboriginality-residency.
[22] The third part of the test under Law is:
... whether the law in question has a purpose or effect that is discriminatory within the meaning of the equality guarantee.
[23] Whether the distinction drawn between the off-reserve applicants and on-reserve Band members is discriminatory, the Applications Judge will have regard to, inter alia, the contextual factors articulated by Mr. Justice Iacobucci in Law at paragraph 88:
¶ 88 [...]
(A) Pre-existing disadvantage, stereotyping, prejudice, or vulnerability experienced by the individual or group at issue. The effects of a law as they relate to the important purpose of s. 15(1) in protecting individuals or groups who are vulnerable, disadvantaged, or members of "discrete and insular minorities" should always be a central consideration. Although the
claimant's association with a historically more advantaged or disadvantaged group or groups is not per se determinative of an infringement, the existence of these pre-existing factors will favour a finding that s. 15(1) has been infringed.
(B) The correspondence, or lack thereof, between the ground or grounds on which the claim is based and the actual need, capacity, or circumstances of the claimant or others. Although the mere fact that the impugned legislation takes into account the claimant's traits or circumstances will not necessarily be sufficient to defeat a s. 15(1) claim, it will generally be more difficult to establish discrimination to the extent that the law takes into account the claimant's actual situation in a manner that respects his or her value as a human being or member of Canadian society, and less difficult to do so where the law fails to take into account the claimant's actual situation.
(C) The ameliorative purpose or effects of the impugned law upon a more disadvantaged person or group in society. An ameliorative purpose or effect which accords with the purpose of s. 15(1) of the Charter will likely not violate the human dignity of more advantaged individuals where the exclusion of these more advantaged individuals largely corresponds to the greater need or the different circumstances experienced by the disadvantaged group being targeted by the legislation. This factor is more relevant where the s. 15(1) claim is brought by a more advantaged member of society.
and
(D) The nature and scope of the interest affected by the impugned law. The more severe and localized the consequences of the legislation for the affected group, the more likely that the differential treatment responsible for these consequences is discriminatory within the meaning of s. 15(1).
[Emphasis added.]
[24] I cannot conclude that the applicants have filed no evidence relevant to the potentially discriminatory effect of the impugned legislation. The applicants have filed the following affidavits in this case:
(a) 11 affidavits filed on August 3, 2005 in support of their successful motion for interim relief before Justice Lemieux on August 8, 2005;
(b) 21 affidavits filed on October 5, 2005 in support of their notice of application for judicial review; and
(c) 1 affidavit filed on November 30, 2005 sworn by Chief Wilfred King in support of their motion on December 5, 2005 before Prothonotary Milczynski which set down the date for the motion presently before this Court.
[25] The affidavit evidence from the applicants state that many homes on the Gull River Reserve Number 55 have been deemed uninhabitable and the Department of Indian and Northern Affairs provides rooms for Band members at the Ramada Inn and the Prince Arthur Hotel in Thunder Bay. The houses are uninhabitable due to a variety of problems including mould, lack of running water, lack of power and inadequate sewers. The dissatisfaction on the reserve has manifested itself in repeated fires, break-ins and vandalism to the band office and the police station. The Affidavit of Franco Crupi sworn July 28, 2005 states that there are approximately 400 members of the Gull Bay First Nation who live on the reserve in approximately 83 houses, many of which have mould contamination or are substandard and are potentially uninhabitable. Approximately 40 residents of the reserve are currently living in the Ramada Inn and the Prince Arthur Hotel due to serious mould contamination in the houses. The hotel costs are approximately $80,000 to $100,000 per month.
[26] The housing deficiency on the reserve is allegedly of central importance to the applicants. The effect of the impugned legislation, in setting aside the applicants' election, allegedly prevents off-reserve Band members elected to Council from addressing the housing shortage which may be a reason why so many Band members live off reserve in the first place. If off-reserve members cannot participate in Band governance by holding office as councillors, they may be prevented from ameliorating the housing shortage in which they have a vested interest.
[27] The applicants' affidavits address the nature and scope of the affected interest, being the denial to participate in band governance. For example, the affidavit sworn on July 29, 2005 by Eugene Esquega states at paragraphs 11-12, 15, and 19 that important services to the Band membership have been impaired or withheld as a result of Order-in-Council 2005-1289:
11. When on Gull Bay First Nation Council, I work on the Task Force as the Director of Housing and Infrastructure, along with Edmond King, who spent many years working for Canada Mortgage and Housing Corporation ("CMHC").
12. I have been working on all of the paperwork and negotiations necessary to bring new homes into the Gull River Reserve No. 55 community for two and a half years, and nothing has been achieved yet due to election appeals and difficulties with INAC and third party managers.
[...]
15. The current Gull Bay First Nation housing list establishes the need for approximately ninety (90) homes to alleviate the vast overcrowding in current reserve homes, to bring the approximately forty (40) on-reserve community members who currently reside at the Ramada Inn and Prince Arthur Hotel in Thunder Bay home and to accommodate off-reserve members who wish to return to the Gull River Reserve No. 55.
[...]
19. The Chief and Council, removed by Order in Council 2005-1289, attend meetings regularly, work together cooperatively and diligently to pursue the completion of the housing, water treatment, hydro upgrade, health programs, a strategic plan for economic development, and other projects necessary to rectifying the substandard living conditions on Gull River Reserve No. 55.
[28] Whatever the ultimate weight given to such evidence by the Applications Judge, it cannot be said at this stage that there is no actual evidence adduced by the applicants which could tend to establish discrimination.
[29] I am also of the view that this section 15 inquiry may be an appropriate circumstance contemplated by Mr. Justice Cory in MacKay v. Manitoba, above, where the Court may take judicial notice of evidence which could overcome the insufficiency of affidavit evidence. The historic disadvantage suffered by off-reserve band members denied the right to participate in band governance is well known at law, as is the importance of the affected interest. The Supreme Court of Canada addressed both of these factors in Corbiere v. Canada, above, at paragraph 17 per McLachlin and Bastarache JJ.:
¶ 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.
[Emphasis added.]
[30] For these reasons, I cannot conclude that the application with respect to whether section 75 of the Indian Act "has a purpose or effect that is discriminatory within the meaning of the equality guarantee" is bereft of any possibility of success. This threshold on a motion to stike is below the balance of probabilities threshold required for the applicants to succeed at their hearing on the merits. That is a decision for the Judge hearing the application.
(c) Declaratory relief will not grant remedy sought
[31] The respondent submits that the applicants seek to have the Order-in-Council declared invalid, which would have the effect of restoring the November 8, 2004 Gull Bay First Nation election. However, if the applicants successfully obtain a declaration that section 75 of the Indian Act is inconsistent with section 15 of the Charter, this would call into question the validity of any election conducted under the provisions of the Indian Act and Elections Regulations, including that of the Gull Bay Band.
[32] I do not agree. The remedy granted by the Court pursuant to section 52 of the Constitution Act is not so clear as to render all such elections a nullity. Moreover, the nature of the remedy sought by the applicants, in this case a declaration of invalidity under section 52 of the Constitution Act, 1982, is not relevant to whether the applicants' request for relief is bereft of any possibility of success. In my view, the issue of what remedy is appropriate to redress a section 15 Charter right infringement is an issue properly within the purview of the Applications Judge deciding the merits of the judicial review. It is not appropriate for the Motions Judge at this stage to disentitle the applicants from a decision on the merits of their constitutional question by reason that they may have incompletely framed their request for remedy in their Notice of Application.
[33] In these circumstances, I am unable to conclude that the portion of the Notice of Application seeking declaratory relief in relation to section 75 of the Indian Act falls within the exceptional circumstances referred to in David Bull, above, such that it is "so clearly improper as to be bereft of any possibility of success." Accordingly, the Court will not grant the respondent's motion to strike.
Issue No. 3: In the alternative, should the Court grant an order directing that those portions of the Notice of Application relating to section 15 of the Charter be treated and proceeded with as an action?
[34] As grounds for its motion to convert the applicants' request for declaratory relief under the Charter to an action, the respondent submits that:
(a) affidavit evidence cannot satisfactorily establish the facts relevant to an inquiry under section 15 of the Charter or the appropriate remedy under section 52 of the Constitution Act, 1982; and
(b) the Court's disposition may affect First Nations across Canada who conduct their Chief and council elections in accordance with the Indian Act and Indian Band Election Regulations.
(a) Affidavit evidence insufficient for Court to decide Charter question on judicial review
[35] The respondent submits that expert evidence may be required for the Court to resolve the constitutional question, and that the Court will wish to hear the witnesses to assess their credibility in the event of conflicting evidence.
[36] The applicants rely on this Court's decision in Neskonlith Band v. Canada(Attorney General) (1997), 136 F.T.R. 202 (T.D.) in which Madame Justice Barbara Reed dismissed a motion to convert a judicial review to an action where the issue before the Court was a complex determination of aboriginal rights under section 35 of the Constitution Act, 1982. The applicants submit that where affidavit evidence is sufficient for the Court to resolve complex issues in dispute, the matter need not proceed as an action. In Neskonlith Band, Madame Justice Reed held at paragraph 15:
... I am persuaded that if anyone is to suffer from any weakness in not providing more extensive evidence with respect to the Aboriginal rights in issue, it will be the applicants. If they wish to proceed on the basis of the material already filed, then, a trial proceeding should not be imposed on them.
[37] In Agustawestland International Ltd. v. Canada(Minister of Public Works and Government Services) (2005), 144 A.C.W.S. (3d) 410, I considered the law regarding motions to convert. The general rule is that applications for judicial review be proceeded with as motions so that they can be determined "without delay and in a summary way". A motion to convert is an exception to the general rule only to be allowed in the clearest of circumstances. Secondly, a motion to convert should only be permitted where the facts cannot be satisfactorily established or weighed through affidavit evidence.
[38] In this case, the applicants have an important need for their application to be determined "without delay and in a summary way". Moreover, in this case there is no submission that the facts cannot be satisfactorily established or weighed through affidavit evidence.
[39] The Attorney General seeks to have the application converted to permit the Court to understand the impact on First Nations across Canada. While the Attorney General may wish to have this important issue decided in an action, the applicants are entitled to proceed by way of judicial review.
Issue No. 4: Should the Court grant an order amending the Order of this Court dated September 6, 2005 to extend the time for serving and filing the respondent's affidavits and documentary exhibits?
[40] By Order dated September 6, 2005, Mr. Justice Lemieux ordered that the respondent file its affidavit material within thirty days of the applicants filing their affidavits. This means that the respondent was to have filed its affidavits by November 4, 2005. Instead, the respondent filed this motion in draft. Accordingly, the respondent's affidavits have not been filed, and the respondent seeks a thirty day extension for the filing of the affidavits. The applicants agree with this extension but insist that the Court take steps to ensure that there not be any further delays. The scheduling Order of Justice Lemieux is that cross-examinations on the affidavits shall take place within twenty days of service of the respondent's affidavits. At the hearing, I put the respondent on notice that the thirty days would run from March 1, 2006 so that the affidavits for the respondent must be filed by March 30, 2006. The applicants also ask that the Court impose a timeframe within which all motions arising from the cross-examinations must take place. I think that a twenty day time limit from the date the transcript of the cross-examinations are received is a reasonable timeframe for all motions arising from the cross-examinations. This is consistent with the timeframes ordered by Justice Lemieux.
Issue No. 5: Should the Court grant an order treating as confidential the Investigation Report of Larry Dyck and the Recommendation Report of Christine Aubin?
[41] As grounds for its motion to treat as confidential the Investigation Report of Larry Dyck and the Recommendation Report of Christine Aubin, the respondent submits that confidentiality is necessary:
(a) to prevent the disclosure of personal information; and
(b) to preserve the confidential relationship between investigators and informants.
[42] The applicants do not oppose the respondent's request for an order pursuant to Rule 151 of the Federal Courts Rules.
[43] I am satisfied that the circumstances of this case warrant a Confidentiality Order. The parties have agreed to draft the appropriate order as to form and content for submission to the Court. The Court will issue that order with the understanding that the applicants will have access to these reports for the purpose of this litigation.
Costs
[44] For the reasons herein, the two principal motions were without merit and have frustrated the August 10, 2005 Order of Mr. Justice Lemieux that the hearing of this judicial review application must be expedited. Justice Lemieux also ordered that counsel for the parties consult and propose to the Court a scheduling Order which was issued by Justice Lemieux on September 6, 2005. While I appreciate the reasons why the Attorney General would have preferred that this important Charter challenge proceed as an action, that does not add merit to these two motions.
[45] The applicants submit that these motions are an abuse of process and an attempt by the Attorney General to delay the constitutional challenge until after the November 2006 election, which may render this application moot. I am not prepared to make such a finding. At the same time, the applicants are entitled to their legal costs payable forthwith. Justice Lemieux awarded costs to the applicants in any event of the cause on a party-and-party basis on scale at Column IV of Tariff B to the Federal Courts Rules. I will follow Justice Lemieux's guidance but set the legal costs at a lump sum.
[46] In the Order of Madame Prothonotary Milczynski dated December 7, 2005 which dealt with different aspects of this motion to strike and this motion to convert, the costs were left to be determined following the hearing before myself. I am satisfied that the motion before Prothonotary Milczynski was only necessary because the Attorney General of Canada brought this motion to strike and this motion to convert. Accordingly, the costs will be awarded to the applicants before the motion before Prothonotary Milczynski on the same basis as the motions to strike and convert.
[47] The motion for a Confidentiality Order was consented to by the applicants and there would have been no need for an oral motion before the Court. Similarly, the motion for an extension of time for the filing of the respondent's affidavits was only necessary because of the two principal motions being dismissed. Accordingly, I cannot conclude that the success on the motion before me was divided as contended by the respondent.
[48] I will fix the counsel fee for the motions to strike and convert to an action at the lump sum of $5,000 using Scale IV as a guide, and the motion before Prothonotary Milczynski at the lump sum of $2,500.
ORDER
THIS COURT ORDERS that:
1. the motion by the respondent for an order striking the requests in the Notice of Application for declaratory relief pursuant to section 15 of the Canadian Charter is dismissed;
2. the motion by the respondent in the alternative for an order directing that those portions of the Notice of Application relating to section 15 of the Canadian Charter be converted to an action is dismissed;
3. the time for serving and filing the respondent's affidavits and documentary exhibits is extended to March 30, 2006;
4. the parties shall have twenty days from the date with which each transcript of the cross-examinations is received to bring any motion arising from that cross-examination;
5. the Court will issue an order pursuant to Rule 151 of the Federal Courts Rules that the Investigation Report of Larry Dyck and Recommendation Report of Christine Aubin contained in the Court file be treated as confidential. This order will be in the form agreed to by the parties as to form and substance; and
6. costs of these motions and the motion before Prothonotary Milczynski to the applicants in the total lump sum of $7,500 payable forthwith.
Judge
APPENDIX "A"
1. Canadian Charter of Rights and Freedoms, Part I to the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
| Equality Rights
Equality before and under law and equal protection and benefit of law
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Affirmative action programs
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
[...]
PART VII GENERAL
Primacy of Constitution of Canada
52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
|
Droits à l'égalité
Égalité devant la loi, égalité de bénéfice et protection égale de la loi
15. (1) La loi ne fait acception de personne et s'applique également à tous, et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment de toute discrimination, notamment des discriminations fondées sur la race, l'origine nationale ou ethnique, la couleur, la religion, le sexe, l'âge ou les déficiences mentales ou physiques.
Programmes de promotion sociale
(2) Le paragraphe (1) n'a pas pour effet d'interdire les lois, programmes ou activités destinés à améliorer la situation d'individus ou de groupes défavorisés, notamment du fait de leur race, de leur origine nationale ou ethnique, de leur couleur, de leur religion, de leur sexe, de leur âge ou de leurs déficiences mentales ou physiques.
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PARTIE VII DISPOSITIONS GÉNÉRALES
Primauté de la Constitution du Canada
52. (1) La Constitution du Canada est la loi suprême du Canada; elle rend inopérantes les dispositions incompatibles de toute autre règle de droit. |
2. Indian Act, R.S.C. 1985, c. I-5
| ELECTIONS OF CHIEFS AND BAND COUNCILS
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Eligibility
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.
Nomination
(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.
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Governor in Council may set aside election
79. The Governor in Council may set aside the election of a chief or councillor of a band on the report of the Minister that he is satisfied that
(a) there was corrupt practice in connection with the election;
(b) there was a contravention of this Act that might have affected the result of the election; or
(c) a person nominated to be a candidate in the election was ineligible to be a candidate.
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ÉLECTION DES CHEFS ET DES CONSEILS DE BANDE
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Éligibilité
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.
Présentation de candidats
(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.
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Le gouverneur en conseil peut annuler une élection
79. Le gouverneur en conseil peut rejeter l'élection du chef ou d'un des conseillers d'une bande sur le rapport du ministre où ce dernier se dit convaincu, selon le cas :
a) qu'il y a eu des manoeuvres frauduleuses à l'égard de cette élection;
b) qu'il s'est produit une infraction à la présente loi pouvant influer sur le résultat de l'élection;
c) qu'une personne présentée comme candidat à l'élection ne possédait pas les qualités requises.
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3. Indian Band Election Regulations, C.R.C., c. 952
| DEFINITION OF RESIDENCE FOR THE PURPOSE OF DETERMINING THE ELIGIBILITY OF VOTERS
3. The following rules apply to the interpretation of the words "ordinarily resident" in respect of the residency of an elector on a reserve consisting of more than one electoral section:
(a) subject to the other provisions of this section, the question as to where a person is or was ordinarily resident at any material time or during any material period shall be determined by reference to all the facts of the case;
(b) the place of ordinary residence of a person is, generally, that place which has always been, or which he has adopted as, the place of his habitation or home, whereto, when away therefrom, he intends to return and, specifically, where a person usually sleeps in one place and has his meals or is employed in another place, the place of his ordinary residence is where that person sleeps;
(c) a person can have one place of ordinary residence only, and he shall retain such place of ordinary residence until another is acquired;
(d) temporary absence from a place of ordinary residence does not cause a loss or change of place of ordinary residence. SOR/2000-391, s. 2.
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ELECTION APPEALS
12. (1) Within 45 days after an election, a candidate or elector who believes that
(a) there was corrupt practice in connection with the election,
(b) there was a violation of the Act or these Regulations that might have affected the result of the election, or
(c) a person nominated to be a candidate in the election was ineligible to be a candidate,
may lodge an appeal by forwarding by registered mail to the Assistant Deputy Minister particulars thereof duly verified by affidavit.
(2) Where an appeal is lodged under subsection (1), the Assistant Deputy Minister shall forward, by registered mail, a copy of the appeal and all supporting documents to the electoral officer and to each candidate in the electoral section in respect of which the appeal was lodged.
(3) Any candidate may, within 14 days of the receipt of the copy of the appeal, forward to the Assistant Deputy Minister by registered mail a written answer to the particulars set out in the appeal together with any supporting documents relating thereto duly verified by affidavit.
(4) All particulars and documents filed in accordance with the provisions of this section shall constitute and form the record.
13. (1) The Minister may, if the material that has been filed is not adequate for deciding the validity of the election complained of, conduct such further investigation into the matter as he deems necessary, in such manner as he deems expedient.
(2) Such investigation may be held by the Minister or by any person designated by the Minister for the purpose.
(3) Where the Minister designates a person to hold such an investigation, that person shall submit a detailed report of the investigation to the Minister for his consideration.
14. Where it appears that
(a) there was corrupt practice in connection with an election,
(b) there was a violation of the Act or these Regulations that might have affected the result of an election, or
(c) a person nominated to be a candidate in an election was ineligible to be a candidate,
the Minister shall report to the Governor in Council accordingly.
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DÉFINITION DE « RÉSIDENCE » AUX FINS DE DÉTERMINER SI UNE PERSONNE EST HABILE À VOTER
3. Les règles suivantes déterminent l'interprétation de l'expression « réside ordinairement » en ce qui concerne la résidence d'un électeur dans une réserve qui est, aux fins de vote, divisée en plus d'une section électorale :
a) sous réserve des autres dispositions du présent article, la question de savoir où une personne réside ou résidait ordinairement à une époque déterminée ou pendant une période de temps déterminée doit être élucidée en se référant à toutes les circonstances du cas;
b) le lieu de la résidence ordinaire d'une personne est en général l'endroit qui a toujours été ou qu'elle a adopté comme étant le lieu de son habitation ou de son domicile, où elle entend revenir lorsqu'elle s'en absente et, en particulier, lorsqu'une personne couche habituellement dans un endroit et mange ou travaille dans un autre endroit, le lieu de sa résidence ordinaire est celui où la personne couche;
c) une personne ne peut avoir qu'un seul lieu de résidence ordinaire, et elle ne peut le perdre sans en acquérir un autre;
d) l'absence temporaire du lieu de résidence ordinaire n'entraîne ni la perte ni le changement du lieu de résidence ordinaire. DORS/2000-391, art. 2.
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APPELS À L'ÉGARD DE L'ÉLECTION
12. (1) Si, dans les quarante-cinq jours suivant une élection, un candidat ou un électeur a des motifs raisonnables de croire :
a) qu'il y a eu manoeuvre corruptrice en rapport avec une élection,
b) qu'il y a eu violation de la Loi ou du présent règlement qui puisse porter atteinte au résultat d'une élection, ou
c) qu'une personne présentée comme candidat à une élection était inéligible,
il peut interjeter appel en faisant parvenir au sous-ministre adjoint, par courrier recommandé, les détails de ces motifs au moyen d'un affidavit en bonne et due forme.
(2) Lorsqu'un appel est interjeté au titre du paragraphe (1), le sous-ministre adjoint fait parvenir, par courrier recommandé, une copie du document introductif d'appel et des pièces à l'appui au président d'élection et à chacun des candidats de la section électorale visée par l'appel.
(3) Tout candidat peut, dans un délai de 14 jours après réception de la copie de l'appel, envoyer au sous-ministre adjoint, par courrier recommandé, une réponse par écrit aux détails spécifiés dans l'appel, et toutes les pièces s'y rapportant dûment certifiées sous serment.
(4) Tous les détails et toutes les pièces déposés conformément au présent article constitueront et formeront le dossier. DORS/85-409, art. 4(A); DORS/2000-391, art. 11.
13. (1) Le Ministre peut, si les faits allégués ne lui paraissent pas suffisants pour décider de la validité de l'élection faisant l'objet de la plainte, conduire une enquête aussi approfondie qu'il le juge nécessaire et de la manière qu'il juge convenable.
(2) Cette enquête peut être tenue par le Ministre ou par toute personne qu'il désigne à cette fin.
(3) Lorsque le Ministre désigne une personne pour tenir une telle enquête, cette personne doit présenter un rapport détaillé de l'enquête à l'examen du Ministre.
14. Lorsqu'il y a lieu de croire
a) qu'il y a eu manoeuvre corruptrice à l'égard d'une élection,
b) qu'il y a eu violation de la Loi ou du présent règlement qui puisse porter atteinte au résultat d'une élection, ou
c) qu'une personne présentée comme candidat à une élection était inadmissible à la candidature,
le Ministre doit alors faire rapport au gouverneur en conseil.
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4. Federal Courts Act, R.S.C. 1985, c. F-7
| Hearings in summary way
18.4 (1) Subject to subsection (2), an application or reference to the Federal Court under any of sections 18.1 to 18.3 shall be heard and determined without delay and in a summary way.
Exception
(2) The Federal Court may, if it considers it appropriate, direct that an application for judicial review be treated and proceeded with as an action.
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Constitutional questions
57. (1) If the constitutional validity, applicability or operability of an Act of Parliament or of the legislature of a province, or of regulations made under such an Act, is in question before the Federal Court of Appeal or the Federal Court or a federal board, commission or other tribunal, other than a service tribunal within the meaning of the National Defence Act, the Act or regulation shall not be judged to be invalid, inapplicable or inoperable unless notice has been served on the Attorney General of Canada and the attorney general of each province in accordance with subsection (2).
Time of notice
(2) The notice must be served at least 10 days before the day on which the constitutional question is to be argued, unless the Federal Court of Appeal or the Federal Court or the federal board, commission or other tribunal, as the case may be, orders otherwise.
Notice of appeal or application for judicial review
(3) The Attorney General of Canada and the attorney general of each province are entitled to notice of any appeal or application for judicial review made in respect of the constitutional question.
Right to be heard
(4) The Attorney General of Canada and the attorney general of each province are entitled to adduce evidence and make submissions to the Federal Court of Appeal or the Federal Court or the federal board, commission or other tribunal, as the case may be, in respect of the constitutional question.
Appeal
(5) If the Attorney General of Canada or the attorney general of a province makes submissions, that attorney general is deemed to be a party to the proceedings for the purpose of any appeal in respect of the constitutional question.
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Procédure sommaire d'audition
18.4 (1) Sous réserve du paragraphe (2), la Cour fédérale statue à bref délai et selon une procédure sommaire sur les demandes et les renvois qui lui sont présentés dans le cadre des articles 18.1 à 18.3.
Exception
(2) Elle peut, si elle l'estime indiqué, ordonner qu'une demande de contrôle judiciaire soit instruite comme s'il s'agissait d'une action.
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Questions constitutionnelles
57. (1) Les lois fédérales ou provinciales ou leurs textes d'application, dont la validité, l'applicabilité ou l'effet, sur le plan constitutionnel, est en cause devant la Cour d'appel fédérale ou la Cour fédérale ou un office fédéral, sauf s'il s'agit d'un tribunal militaire au sens de la Loi sur la défense nationale, ne peuvent être déclarés invalides, inapplicables ou sans effet, à moins que le procureur général du Canada et ceux des provinces n'aient été avisés conformément au paragraphe (2).
Formule et délai de l'avis
(2) L'avis est, sauf ordonnance contraire de la Cour d'appel fédérale ou de la Cour fédérale ou de l'office fédéral en cause, signifié au moins dix jours avant la date à laquelle la question constitutionnelle qui en fait l'objet doit être débattue.
Appel et contrôle judiciaire
(3) Les avis d'appel et de demande de contrôle judiciaire portant sur une question constitutionnelle sont à signifier au procureur général du Canada et à ceux des provinces.
Droit des procureurs généraux d'être entendus
(4) Le procureur général à qui un avis visé aux paragraphes (1) ou (3) est signifié peut présenter une preuve et des observations à la Cour d'appel fédérale ou à la Cour fédérale et à l'office fédéral en cause, à l'égard de la question constitutionnelle en litige.
Droit d'appel
(5) Le procureur général qui présente des observations est réputé partie à l'instance aux fins d'un appel portant sur la question constitutionnelle.
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5. Federal Courts Rules, SOR/98-106
| Extension or abridgement
8. (1) On motion, the Court may extend or abridge a period provided by these Rules or fixed by an order.
When motion may be brought
(2) A motion for an extension of time may be brought before or after the end of the period sought to be extended.
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FILING OF CONFIDENTIAL MATERIAL
Motion for order of confidentiality
151. (1) On motion, the Court may order that material to be filed shall be treated as confidential.
Demonstrated need for confidentiality
(2) Before making an order under subsection (1), the Court must be satisfied that the material should be treated as confidential, notwithstanding the public interest in open and accessible court proceedings.
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Délai prorogé ou abrégé
8. (1) La Cour peut, sur requête, proroger ou abréger tout délai prévu par les présentes règles ou fixé par ordonnance.
Moment de la présentation de la requête
(2) La requête visant la prorogation d'un délai peut être présentée avant ou après l'expiration du délai.
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DÉPÔT DE DOCUMENTS CONFIDENTIELS
Requête en confidentialité
151. (1) La Cour peut, sur requête, ordonner que des documents ou éléments matériels qui seront déposés soient considérés comme confidentiels.
Circonstances justifiant la confidentialité
(2) Avant de rendre une ordonnance en application du paragraphe (1), la Cour doit être convaincue de la nécessité de considérer les documents ou éléments matériels comme confidentiels, étant donné l'intérêt du public à la publicité des débats judiciaires.
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FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1313-05
STYLE OF CAUSE: EUGENE ESQUEGA ET AL. v. ATTORNEY GENERAL OF CANADA
DATE OF HEARING: February 28, 2006
APPEARANCES:
| Ms. Chantelle J. Bryson
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| Mr. Michael Peirce Ms. Joanna Hill
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SOLICITORS OF RECORD:
| Ms. Chantelle J. Bryson Buset & Partners Thunder Bay, Ontario
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| Mr. John H. Sims, Q.C. Deputy Attorney General of Canada
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