Docket: T-2134-00, T-2203-00, T-2204-00
Ottawa, Ontario, January 13, 2006
PRESENT: THE HONOURABLE MR. JUSTICE LEMIEUX
BETWEEN:
and
REASONS FOR ORDER AND ORDER
[1] The question which arises in this motion in writing is whether it is appropriate for the Court to proceed to hear and determine constitutional issues raised by the plaintiff/appellant (appellant) in his notice of constitutional question served and filed on January 14, 2005, a few weeks before this Court heard commencing on February 8, 2005, Mr. Beattie's appeal from judgments rendered by Prothonotary Lafrenière dated May 6, 2004, dismissing three actions the appellant had commenced against the federal Crown. Mr. Beattie is self-represented but I understand him to say that he had legal training.
[2] Mr. Beattie, in those actions, claimed to be entitled to the payment of unpaid arrears plus accrued interest of annual payments of $5.00 payable by the federal Crown to the original adherents or their natural descendents to Treaties 6 and 11.
[3] The basis for Mr. Beattie's claim are assignments he took from certain natural descendents of the original adherents to Treaties 6 and 11 entered into between the federal Crown and various Indian Tribes.
[4] The circumstances of this case are somewhat unusual as is demonstrated by the following background.
[5] When he issued his statements of claim in October of 2000, Mr. Beattie claimed through the assignments from the assignors who, it was said, are all Aboriginal persons who are natural descendents of the original adherents to the two treaties. Mr. Beattie pleaded the entitlement to the annual payment under the treaties was a treaty right which is recognized and affirmed by section 35(1) of the Constitution Act, 1982 and guaranteed equally to male and female Aboriginal persons by subsection 35(4) of the Constitution Act, 1982. He also asserted the assignors were all Aboriginal peoples of Canada within the meaning of subsection 35(2) of the Constitution Act, 1982 and that each of the two treaties is a treaty for the purposes of section 35 of that Act.
[6] In its defence, the federal Crown admitted that treaty annuities had been paid to the assignors for some period of their lives, i.e. after their registration as Indians but that no treaty annuities were paid to them for prior periods because the assignors did not meet the requirements for entitlement to treaty annuities as interpreted in a modern context. The federal Crown also denied that she breached her lawful obligations pursuant to the two treaties or section 35 of the Constitution Act, 1982, or that she had accumulated debts of treaty annuity arrears to any or all of the assignors. In the alternative, the federal Crown pleaded that if the defendant had breached her lawful obligations pursuant to either treaty or section 35(1) of the Constitution Act, 1982, such breach constituted a justifiable infringement. Other defences were claimed including invalidity of the assignments under the Financial Administration Act.
[7] In his reply, Mr. Beattie pleaded that to the extent that any law purports to infringe or limit the benefit of any existing treaty right which are constitutionally guaranteed to Aboriginal peoples, including any entitlement that the Aboriginal assignors had to receive treaty annuity payments and reasonable interest on arrears, such law is, by the effect of section 35 and 52(1) of the Constitution Act, 1982, of no force and effect.
[8] On April 1, 2003, the late Prothonotary Hargrave severed two issues in the action. He stated the issues for determination were:
(1) the effect, if any, of the Financial Administration Act on the validity of the assignments to Mr. Beattie;
(2) whether interest is owing on any annuity arrears that may be found to be owing and, if so, what the interest rate is, whether it is simple or compound interest, and how it is to be calculated.
[9] Prothonotary Lafrenière heard and determined the two severed issues. He concluded that any Crown debt owing under a treaty did not fall within the exception set out in section 68 of the Financial Administration Act (FAA) and that the general prohibition against assignments set out in section 67 of the FAA applied with the result that the treaty annuities at issue were not assignable. He also determined that treaty annuities were not Indian monies pursuant to the relevant provisions of the Indian Act including section 90 of that Act. He also ruled no interest was payable on the arrears assuming liability for payment of treaty annuity arrears.
[10] Mr. Beattie had argued before Prothonotary Lafrenière that the assignments at issue were the preferred means by each of the Indian assignors of exercising their incidental rights to enforce payments of Crown debts of treaty annuity arrears characterized by him as a core treaty right. According to Mr. Beattie, to the extent that the provisions of the FAA infringed that incidental right, those provisions must be justified by the federal Crown in accordance with section 35(1) of the Constitution Act, 1982. Prothonotary Lafrenière did not entertain that argument. He stated at paragraph 51 of his reasons that he was not prepared to entertain a constitutional challenge in the absence of any proper or sufficient notice and added that, in any event, he failed to see how the assignors' rights, which could be enforced individually, can be said to have been infringed by any provision of the FAA.
[11] Mr. Beattie appealed Prothonotary Lafrenière's decisions. In his appeal document, he argued the Prothonotary erred by disregarding entirely the fundamental legal principle that statutory limitations which restrict the rights of Indians under treaties must be narrowly construed and that a generous and liberal interpretation of Indian rights is to be preferred over a narrow and technical one. He argued the Prothonotary erred by disregarding entirely the Court's paramount obligation to recognize and affirm existing treaty rights in accordance with the principles of treaty interpretation established to give effect to section 35 of the Constitution Act, 1982. He argued the Prothonotary erred in finding that, absent the Crown's consent, treaty annuity was not transferable by a Treaty Indian and debts of annuity arrears are not assignable. He also stated the Prothonotary erred in finding that treaty annuity arrears are not Indian monies within the meaning of subsection 2(1) of the Indian Act.
[12] It was only on January 14, 2005, that Mr. Beattie, pursuant to section 57 of the Federal Courts Act served and filed a notice of constitutional question stating that he intended to question the constitutional validity, applicability or effect of section 90 of the Indian Act and sections 67 and 68 of the FAA to the extent that any of them may be construed to restrict, limit or otherwise infringe the freedom of Indian persons to assign or otherwise transfer their treaty annuity monies or any debts of annuity arrears owed to them by the federal Crown pursuant to treaties previously mentioned. He stated the question would be argued on the hearing of the appeal, i.e. February 8, 2005.
[13] In paragraph 3 of his notice of constitutional question, Mr. Beattie stated that the following were the material facts giving rise to the constitutional question:
Where both treaty annuity entitlement and the existence of federal Crown debts of treaty annuity arrears are assumed to be existing treaty rights protected by s. 35(1) of the Constitution Act, 1982, the Respondent Crown relies upon s. 90 of the Indian Act to render void any transaction entered into by an Indian which purports to assign or otherwise transfer of their treaty annuity money to any third party other than another band member, unless the transaction is consented to in advance by the Minister of Indian Affairs and Northern Development.
Alternatively, the Respondent Crown relies upon sections 67 and 68 of the Financial Administration Act to prohibit and render unenforceable any assignment by an Indian of any Crown debts which derives from an Indian treaty.
[14] In that same notice of constitutional question, Mr. Beattie stated the following was the legal basis for the constitutional question:
The constitutional questions arise only if application of established principles of treaty interpretation does not reasonably permit the impugned provisions to be construed consistent with both the equality rights guaranteed by subsection 15(1) of the Canadian Charter of Rights and Freedoms, and the recognition and affirmation of existing treaty rights required by section 35(1) of the Constitution Act, 1982.
The constitutional principles in issue are:
a. that no law shall apply so as to discriminate on the basis of race, unless such inequality can be demonstrably justified;
b. that no law shall apply to limit or otherwise infringe an existing treaty right, unless such infringement has been constitutionally justified;
c. that any law which, if applied, would effectively extinguish an existing treaty right without Indian consent, is of no force or effect.
[15] Because of the lateness in the serving and filing of the notice of constitutional question, I issued, on February 2, 2005, the following oral direction after a telephone conference call with the parties:
At the hearing on February 8, 2005 we will not debate the request by Mr. Beattie that certain provisions of the Indian Act and the Financial Administration Act be declared of no force or effect. We will deal with the appeal of the Prothonotary's decision, absent a declaration of invalidity. We will deal with whether it is proper on appeal by Mr. Beattie to raise new relief not sought below.
[16] In reasons issued on May 18, 2005, I dismissed the appeals by Mr. Beattie from Prothonotary Lafrenière's judgments. I did so invoking the application of subsection 68(4) of the FAA which provides that where an assignment is made in accordance with the FAA it is subject to all conditions and restrictions with respect to the right of transfer that relate to the original Crown debt. This provision links to section 90 of the Indian Act related to personal property that is given to Indians under a treaty or agreement deeming that property always to be situated on a reserve and to subsection 90(2) providing that every transaction purporting to pass title to any property that is deemed to be situated on a reserve, or any interest in such property, being void unless the transaction has the consent of the Minister of Indian and Northern Affairs.
[17] In dismissing the appeals, I stated that such dismissal was subject to a determination whether Mr. Beattie's notice of constitutional question is proper and, if so, subject to the outcome of the constitutional challenge.
[18] Mr. Beattie does not challenge the applicable principles stated by counsel for the federal Crown governing the question raised by the motion under consideration. Those principles were:
(1) that a section 57 notice is required for the Court to have jurisdiction to declare any legislative enactment constitutionally invalid, inapplicable or inoperable;
(2) a section 57 notice is necessary to ensure that an opportunity is provided for the public interest to be presented to the Court whenever the validity of a legislative enactment is challenged on constitutional grounds;
(3) that constitutional questions should not be decided in a factual vacuum, and, therefore, the parties and any intervening Attorneys General must be allowed a fair opportunity to adduce any necessary and relevant constitutional facts.
[19] In the case at hand, a notice of constitutional question has been served and filed albeit on the eve of the hearing by this Court of the appeals from Prothonotary Lafrenière's judgments. This late service and filing did not provide a reasonable opportunity for the Attorney General for Canada to respond albeit it appears the provincial and territorial Attorneys General are not interested in intervening.
[20] In my view, the hearing of Mr. Beattie's constitutional questions should not proceed before me because I am not satisfied Mr. Beattie has demonstrated the existence of a sufficient evidentiary record from which necessary constitutional facts required to properly adjudicate the underlying constitutional issues can be drawn.
[21] Mr. Beattie is correct in acknowledging the critical importance of a proper evidentiary record upon which he can mount his constitutional arguments. I need cite only the following cases:
(1) MacKay v. Manitoba, [1989] 2 S.C.R. 357 at 361-62;
(2) Northern Telecom Ltd. v. Communications Workers of Canada, [1980] 1 S.C.R. 115 at 140;
(3) Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241 at paragraph 48;
(4) Bekker v. Her Majesty The Queen, [2004] D.T.C. 6404 (F.C.A.); and
(5) Gitxsan Treaty Society v. Hospital Employees Union et al. [1999] FCJ No. 1192 at paragraphs 12 and 13.
[22] Mr. Beattie argues forcefully that this is not a case where new constitutional evidence is needed because the parties proceeded before Prothonotary Lafrenière on an agreed statement of fact and on uncontested documentary evidence. In my reasons, I referred to some of that evidence (see Beattie v. The Queen, 2005 FC 715 at paragraphs 12, 14 and 41 through 61).
[23] I share the reservations expressed by Justice Létourneau in Bekker, supra:
¶ 12 It is a serious matter to invoke the Charter to challenge the validity of legislation enacted by Parliament. Such challenges normally require an evidential foundation. Constitutional issues cannot and should not be decided in a factual vacuum. As Cory, J. said in MacKay v. Manitoba, [1989] 2 S.C.R. 357 at pages 361-62:
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. The presentation of facts is not, as stated by the respondent, a mere technicality; rather, it is essential to a proper consideration of Charter issues ... Charter decisions cannot be based upon the unsupported hypotheses of enthusiastic counsel.
¶ 13 These concerns are very relevant to challenges under section 15, where the jurisprudence mandates a complex, multi-factored, contextual inquiry by the reviewing court into whether the impugned legislation not only creates differential treatment, but also is discriminatory in the constitutional sense: see, for example, Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429; Front commun des personnes assistées sociales du Québec v. Canada (Canadian Radio-Television and Telecommunications Commission), 2003 CAF 394; Canada (Attorney General) v. Lesiuk, [2003] 2 F.C. 697 (F.C.A.); Lovelace v. Ontario, [2000] 1 S.C.R. 950; Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703; Falkiner v. Ontario (Ministry of Community and Social Services), 59 O.R. (3d) 481 (C.A.). In other words, all these cases stress the need for a contextual inquiry and analysis to establish whether a distinction conflicts with the purpose of section 15 of the Charter.
¶ 14 The evidence required for this purpose may include social science and statistical data; cross-examination may also be necessary. Evidence in rebuttal may be filed by the respondent, who may also adduce evidence in an attempt to establish that, if the legislation infringes section 15, it can nonetheless be upheld under section 1 as a reasonable limit that is demonstratively justifiable in a free and democratic society.
[24] That same cautiousness was reiterated by Justice Rothstein in Gitxsan, supra, at paragraph 11:
¶ 11 In any event, the attorneys general have demonstrated prejudice in this case. They advance a number of areas in which constitutional evidence would be relevant in determining the constitutional question put forward by the applicant. In particular, facts relating to the nature of the Aboriginal right claimed, whether the Aboriginal right has existed continuously, whether it has been infringed and if infringed whether the infringement is justified, are all legitimate evidentiary areas. See for example, Watt v. Liebelt. [...] I am satisfied that the attorneys general have demonstrated prejudice. The second argument of the applicant cannot be accepted.
[25] An examination of cases such as R. v. Sparrow, [1990] 1 S.C.R. 1075 and R. v. Badger, [1996] 1 S.C.R. 771, clearly show that issues surrounding section 35 of the Constitution Act, 1982, are fact based. Infringement of a treaty right is fact based as is any justification which the federal Crown may wish to advance. Fairness dictates that the federal Crown has the right to a proper evidentiary record. Indeed, in Badger, supra, the Supreme Court sent the matter back to the trial judge to allow for proper finding of fact according to the appropriate tests. I wish to avoid the Badger result in this case.
[26] Should Mr. Beattie wish to pursue his constitutional challenge, it seems to me that he would be better served to institute fresh proceedings where the evidentiary record can properly be addressed rather than pursuing the issue in the context of the present proceedings risking that, down the line, he does not have sufficient constitutional evidence to make out his case.
[27] I also note this motion in writing preceded my judgment. In my reasons for judgement, I dealt with whether the assignment of arrears of treaty annuities was an implied treaty right. I held in the negative. This finding may negatively impact the proposed constitutional question and require an expanded evidentiary record.
ORDER
The appellant's motion to argue his proposed constitutional issues is dismissed without costs.
"François Lemieux"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2134-00, T-2203-00, T-2204-00
STYLE OF CAUSE: Beattie v. The Queen
PLACE OF HEARING: Motion in writing
APPEARANCES:
|
Bruce Allan Beattie |
(on his own behalf) |
|
Roseanne M. Kyle Karl Burdak |
|
SOLICITORS OF RECORD:
|
Bruce Allan Beattie
|
(on his own behalf) |
| John H. Sims, Q.C. Deputy Attorney General of Canada
|
|