A-630-02
2003 FCA 473
The Attorney General of Canada (Appellant) (Respondent)
v.
Roger Misquadis, Peter Ogden, Mona Perry, Dorothy Phipps-Walker and Chief Bob Crawford on his own behalf and on behalf of the Ardoch Algonquin First Nation and Darwin Lewis and the Aboriginal Council of Winnipeg Inc. (Respondents) (Applicants)
and
Congress of Aboriginal Peoples (Intervener)
Indexed as: Ardoch Algonquin First Nation v. Canada (Attorney General) (F.C.A.)
Federal Court of Appeal, Stone, Rothstein and Sharlow JJ.A.--Toronto, November 24 and 25; Ottawa, December 10, 2003.
Constitutional Law -- Charter of Rights -- Equality Rights -- Appeal from F.C.T.D. decision HRDC in breach of s. 15 in refusing to enter into Aboriginal Human Resources Development Agreements (AHRDA) with organizations proposed by certain communities -- In Winnipeg and Ontario HRDC chose service providers by Request for Proposal -- Judge ordered HRDC to provide for community control over labour training programs -- Judge concluded local control Strategy's primary purpose -- Characterization of respondents -- Comparator group -- Non-band communities denied exercising control by representative bodies -- Non-band communities may be compared with band communities in s. 15 analysis: Lovelace v. Ontario -- As s.15 equality guarantee extends only to individuals, respondent organizations not covered -- Individual respondents have standing -- Non-band communities treated differently -- HRDC arguing decision based not on personal characteristic but on fact organizations proposed by respondents not meeting criteria for AHRDA-holders -- Argument rejected -- S.C.C. having recognized "Aboriginality -- residence" as analogous ground of discrimination -- Once identified, analogous ground stands as constant marker of potential legislative discrimination for future cases -- Whether purpose, effect of legislation amounting to Charter discrimination requires consideration of contextual factors, is question of mixed fact, law -- Refusal to make AHRDAs perpetuated historical disadvantage, stereotyping of off-reserve communities.
Constitutional Law -- Charter of Rights -- Limitation Clause -- HRDC excluding certain organizations from representing off-reserve Indian communities for purpose of local control of human resources development initiative -- Charter, s. 15 equality rights breached -- Whether justified under s. 1 -- Purpose of HRDC's Strategy pressing, substantial -- Whether rational connection, minimal impairment branches of test in The Queen v. Oakes met -- HRDC arguing decision based on need for critical mass, to avoid fragmentation -- Reasons given not plausible -- Nor had HRDC chosen minimally impairing means of achieving policy goals.
Constitutional Law -- Charter of Rights -- Enforcement -- HRDC found to have breached s. 15 equality rights in refusing to enter into human resources development agreements with organizations representing certain Aboriginal communities -- F.C.T.D. Judge ordering HRDC to eliminate discrimination by providing for community control over labour training programs -- How to be done left up to HRDC -- Department arguing Court should not order government to negotiate as unable to supervise compliance, lack of clarity, specificity rendering compliance impossible -- Reviewing court to show considerable deference to trial judge's remedy choice -- In Doucet-Boudreau v. Nova Scotia (Minister of Education), S.C.C. set out five principles in fashioning s. 24(1) remedy -- Also said, of s. 24(1), difficult to imagine language giving Court wider, less fettered discretion -- Order herein respected separation between executive, judiciary -- Remedy not requiring HRDC to increase strategy funding -- Within scope of remedial action permitted by s. 24(1).
Native Peoples -- Attorney General appealing F.C.T.D. decision HRDC in breach of Charter, s. 15 equality rights in refusing to enter into human resources development agreements with organizations proposed by certain off-reserve Aboriginal communities -- HRDC ordered to provide for community control over these labour training programs -- HRDC having adopted strategy to give Aboriginal peoples more say in design, implementation of skills training programs -- In Winnipeg and Ontario, certain organizations denied inclusion as AHRDA-holders without reasons given -- Service providers there chosen by Request for Proposal -- Appeal dismissed -- Judge did not err in findings of fact -- S. 15 violated as refusal perpetuating historical disadvantage, stereotyping of off- reserve Aboriginal communities -- Charter breach not justifiable under s. 1 -- Remedy within wide, unfettered discretion given by Charter, s. 24(1).
Judges and Courts -- Appeal from F.C.T.D. decision, upon judicial review, holding government department in breach of Charter, s. 15 regarding Aboriginal human resources development initiative -- Review standard of lower court decision depends on nature of question: correctness for questions of law; palpable, overriding error for questions of fact; same for mixed fact, law unless pure question of law can be extricated -- As much deference owed to judicial review decision as to that of Judge hearing viva voce evidence at trial -- Judge reviewed, weighed extensive evidence, was in better position than appellate court to make findings of fact.
This was an appeal from the decision of Lemieux J. ([2003] 2 F.C. 350 (T.D.)), granting respondents' judicial review application. That Judge found that Human Resources Development Canada (HRDC) had violated Charter, section 15 by refusing to enter into Aboriginal Human Resources Development Agreements with organizations mandated by the respondents' communities. The violation was held not to be justifiable under section 1 and HRDC was ordered to provide for community control over labour training programs for these communities.
Five issues had to be determined upon this appeal: (1) standard of review; (2) did the Judge err in findings of fact; (3) had Charter, section 15 been violated; (4) was there section 1 justification; and (5) did the Judge err in choice of remedy?
HRDC adopted its Aboriginal Human Resources Development Strategy (AHRDS) with a view to giving Aboriginal peoples more say in the design and implementation of skills training programs. While agreements in accordance with this Strategy were entered into with various Aboriginal organizations, HRDC, without giving reasons, refused to enter into one covering Winnipeg. In Ontario as well, certain groups were denied inclusion as AHRDA holders. AHRDS did have an urban, off-reserve component. At Winnipeg and in Ontario, HRDC selected the service provider by a Request for Proposal. No AHRDA was entered into for rural non-band communities such as the Ardoch.
Held, the appeal should be dismissed.
The standard of review of a lower court's decision depends entirely upon the nature of the question at issue: correctness for questions of law, while questions of fact are reviewed on a palpable and overriding error basis. Questions of mixed fact and law are reviewed on the last-mentioned basis unless a pure question of law can be extricated for review according to the correctness standard. The Supreme Court has held that as much deference is owed to a judge hearing a judicial review application as to a judge who hears viva voce evidence at trial. The proper application of Charter, section 15 is a question of mixed fact and law.
HRDC pointed to a number of findings of fact which, it argued, were perverse, capricious and made without regard to the evidence. The Court was unable to accept that this was so. The Judge below had reviewed and weighed the extensive evidence and was in a better position than an appellate court to make findings of fact. The conclusion arrived at by Lemieux J., that the primary purpose of the Strategy was local control, found support in the evidence and this Court could not interfere with that finding.
The Judge below characterized respondents as First Nation members of urban and rural off-reserve Aboriginal communities and accepted as the comporator group First Nation members living on-reserve. The fact was that all reserve-based communities did have an opportunity to exercise control through representative regional or provincial bodies. Non-band communities were denied that opportunity. In Loveplace v. Ontario, the Supreme Court of Canada accepted that non-band communities could be compared with band communities in a Charter, section 15 analysis.
HRDC was correct in arguing that the section 15 equality guarantee extends only to individuals and so could not assist respondent organizations, Ardoch Algonquin First Nation and Aboriginal Council of Winnipeg Inc. But, of course, the individual respondents do have standing and an appropriate remedy could be granted.
Having regard to the finding that the purpose of the Strategy was local control over human resources programming delivery, it was clear that members of band and non-band communities were treated differently. HRDC argued that its impugned decisions were based, not on a personal characteristic, but on the fact that the organizations proposed by respondents did not meet the criteria for AHRDA-holders. But that argument was off target: respondents were denied the benefit of AHRDS on the basis of the personal characteristic of being Indians who do not live on reserves. The first step of the Law v. Canada (Minister of Employment and Immigration) test was met.
The next question was whether this differential treatment was based on one or more of the enumerated or analogous grounds of discrimination. In Corbiere v. Canada (Minister of Indian and Northern Affairs), the Supreme Court recognized "Aboriginality-residence" as an analogous ground, the decision whether to reside on or off-reserve being a "personal characteristic essential to a band member's personal identity" which can be changed "only at great cost, if at all". The majority opinion in Corbiere also indicated that once an analogous ground has been identified, it stands as a "constant marker of potential legislative discrimination" for future cases.
While it was not entirely clear that those respondents who are non-status Indians have been discriminated against based on "Aboriginality-residence" since they lack the option of living on-reserve, HRDC did not argue that any distinction had to be drawn between respondents based on status.
The final stage of the Law analysis, to determine whether the purpose or effect of the impugned legislation constitutes discrimination within the contemplation of the Charter equality guarantee, requires the consideration of contextual factors and is a question of mixed fact and law. HRDC attacked the factual findings which underpinned the Judge's assessment of the contextual factors. In that regard, Lemieux J. could not be said to have committed any palpable, overriding error. He relied upon the Corbiere and Lovelace cases as well as the Royal Commission on Aboriginal Peoples in concluding that the refusal to enter into the first type of AHRDA with the respondents' communities perpetuated the historical disadvantage and stereotyping of off-reserve Aboriginal communities. AHRDS was an ameliorative program to benefit Aboriginals wherever they live and the Department had failed to recognize that respondents lived in communities which were functioning Aboriginal communities as worthy of recognition as reserve-based communities. The Judge was entitled to conclude that Charter, section 15 rights had been infringed.
As to whether the infringement was justifiable under section 1, it was not disputed that the Strategy's purpose was pressing and substantial. The question was whether the rational connection and minimal impairment branches of the test in The Queen v. Oakes had been met. As to rational connection, the Department urged upon the Court that its decision not to enter into AHRDAs with respondents' communities was motivated by the necessity for critical mass and to avoid fragmentation. But the Judge was not satisfied that these were in fact the reasons why the organizations proposed by respondents were not accepted. On the evidence, it was open to the Judge to so find. Nor did the Department demonstrated that the Strategy had been implemented so as to be minimally impairing. HRDC failed to adduce evidence of having considered any alternative to shutting out respondents' communities from participation in decision-making regarding labour market programming. The Charter violation was not justified under section 1.
The remedy ordered by the Judge was that HRDC eliminate the discrimination by providing community control over the labour training programs. The Department was to consult with respondents' representative organizations as to the arrangements. HRDC had two problems with the remedy ordered: (1) courts should not order the government to negotiate given its inability to supervise compliance with such order; and (2) compliance was impossible due to the order's lack of clarity and specificity. The impugned order was not one of mandamus as no public officer was ordered to discharge a legal duty. It was more like a declaration of unconstitutionality accompanied by an order that government remedy the Charter infringement.
As for the supervision argument, HRDC relied upon the decision of the Nova Scotia Court of Appeal in Doucet-Boudreau v. Nova Scotia, but that judgment was overturned by a 5-4 majority vote, [2003] 3 S.C.R. 3. Furthermore, the Nova Scotia case could be distinguished as the trial judge in that case purported to maintain supervisory jurisdiction while Lemieux J. trusted government to abide by the Constitution in accordance with his order. In the majority opinion, it was written that reviewing courts must show considerable deference to trial judges' choice of remedy and not interfere in the absence of error of law or principle. Speaking of Charter, subsection 24(1), the majority found it "difficult to imagine language which could give the Court a wider and less fettered discretion".
The Court in Doucet-Boudreau set out five general principles for the guidance of trial courts in fashioning a subsection 24(1) remedy. The order herein complied with all five principles. It respected the separation between executive and judiciary and allowed the Department flexibility to negotiate a solution respectful of respondents' rights while not unduly undermining an otherwise beneficial program.
It was wrong for HRDC to suggest that the order required it to increase funding under the Strategy. It merely ordered government to repair the breach of its constitutional obligations, leaving it up to the executive to determine how best to do so. Even if the remedy was somewhat novel, it fell within the broad scope of remedial action contemplated by subsection 24(1).
The intervener, Congress of Aboriginal Peoples (CAP), argued that Appropriation Act No. 3, 1999-2000, S.C. 1999, c. 36, was the legislation which authorized Strategy funding and that the Court ought to read in words to make it section 15 compliant. This constitutional challenge was raised, for the first time, in oral argument and the intervener had not given the requisite notice to the federal and provincial attorneys general. The Court lacks jurisdiction to grant a Constitution Act, 1982, subsection 52(1) remedy where Federal Court Act, section 57 has not been complied with. It would be prejudicial if CAP's argument were to be considered in this proceeding, since appellant had no opportunity to prepare a response and even respondents--who were pleased by the impugned remedy--were taken by surprise.
statutes and regulations judicially
considered
Appropriation Act No. 3, 1999-2000, S.C. 1999, c. 36.
| Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 15, 24(1). |
| Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 52(1). |
| Federal Court Act, R.S.C., 1985, c. F-7, s. 57 (as am. by S.C. 1990, c. 8, s. 19). |
| Indian Act, R.S.C., 1985, c. I-5, ss. 2(1) "band", "Indian", "Indian Register" (as enacted by R.S.C., 1985 (1st Supp.), c. 32, s. 1), "registered", 5(1) (as am. idem, s. 4). |
cases judicially considered
applied:
Housen v. Nikolaisen, [2002] 2 S.C.R. 235; (2002), 211 D.L.R. (4th) 577; [2002] 7 W.W.R. 1; 10 C.C.L.T. (3d) 157; 30 M.P.L.R. (3d) 1; 286 N.R. 1; 219 Sask. R. 1; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226; (2003), 223 D.L.R. (4th) 599; [2003] 5 W.W.R. 1; 179 B.C.A.C. 170; 11 B.C.L.R. (4th) 1; 48 Admin. L.R. (3d) 1; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; (1999), 170 D.L.R. (4th) 1; 43 C.C.E.L. (2d) 49; 236 N.R. 1; Lovelace v. Ontario, [2000] 1 S.C.R. 950; (2000), 188 D.L.R. (4th) 193; [2000] 4 C.N.L.R. 145; 255 N.R. 1; 134 O.A.C. 201; Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203; (1999), 173 D.L.R. (4th) 1; [1999] 3 C.N.L.R. 19; 239 N.R. 1; The Queen v. Oakes, [1986] 1 S.C.R. 103; (1986), 26 D.L.R. (4th) 200; 24 C.C.C. (3d) 321; 50 C.R. (3d) 1; 19 C.R.R. 308; 65 N.R. 87; 14 O.A.C. 335; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; (1997), 151 D.L.R. (4th) 577; 96 B.C.A.C. 81; 218 N.R. 161; Doucet-Boudreau v. Nova Scotia (Department of Education), [2003] 3 S.C.R. 3; revg. (2001), 194 N.S.R. (2d) 323; 203 D.L.R. (4th) 128; 85 C.R.R. (2d) 189 (C.A.).
distinguished:
Chippewas of Nawash First Nation v. Canada (Minister of Fisheries and Oceans), [2003] 3 F.C. 233; [2003] 2 C.N.L.R. 78; (2002), 298 N.R. 305 (C.A.).
referred to:
R. v. Chang, 2003 ABCA 293; [2003] A.J. No. 1281 (C.A.) (QL); R. v. Coates (2003), 176 C.C.C. (3d) 215; 172 O.A.C. 330 (Ont. C.A.); Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241; (1997), 31 O.R. (3d) 574; 142 D.L.R. (4th) 385; 207 N.R. 171.
authors cited
Canada. Royal Commission on Aboriginal Peoples. Report of the Royal Commission on Aboriginal Peoples. Ottawa: Minister of Supply and Services, 1996.
Treasury Board of Canada Secretariat. 1999-2000 Estimates: Part III -- Report on Plans and Priorities. Human Resources Development Canada.
Treasury Board of Canada Secretariat. Departmental Performance Report 1999-2000. Human Resources Development Canada, for the period ending March 31, 2000.
Treasury Board of Canada Secretariat. Supplementary Estimates (A), 1999-2000 for the Fiscal Year ending March 31, 2000.
APPEAL from a decision of Lemieux J. ([2003] 2 F.C. 350; (2002), 98 C.R.R. (2d) 245; 223 F.T.R. 161), granting an application for judicial review and finding that a government department had violated Charter, section 15 with respect to certain Aboriginal Human Resources Development Agreements. Appeal dismissed.
appearances:
Urszula Kaczmarczyk, E. Gail Sinclair and Michael H. Morris for appellant (respondent).
Greg Tramley for respondents (applicants) Darwin Lewis and the Aboriginal Council of Winnipeg Inc.
Christopher M. Reid for respondents (applicants) Roger Misquadis, Peter Ogden, Mona Perry, Dorothy Phipps-Walker and Chief Bob Crawford, on his own behalf and on behalf of the Ardoch Algonquin First Nation.
Joseph E. Magnet, Mahmud Jamal and Vaso Maric for intervener.
solicitors of record:
Deputy Attorney General of Canada for appellant (respondent).
McCandless & Associates, Winnipeg, for respondents (applicants) Darwin Lewis and the Aboriginal Council of Winnipeg Inc.
Christopher Reid, Toronto, for respondents (applicants) Roger Misquadis, Peter Ogden, Mona Perry, Dorothy Phipps-Walker and Chief Bob Crawford, on his own behalf and on behalf of the Ardoch Algonquin First Nation.
Osler, Hoskin & Harcourt, Toronto and Joseph E. Magnet, Ottawa, for intervener.
The following are the reasons for judgment rendered in English by
Rothstein J.A.:
INTRODUCTION
[1]This is an appeal from a judgment of Mr. Justice Lemieux in the Federal Court, Trial Division (as it then was) dated October 11, 2002 [[2003] 2 F.C. 350].
[2]In his decision, Lemieux J. granted the respondents' application for judicial review. He found that Human Resources Development Canada (HRDC) had violated section 15 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] (the Charter) by refusing to enter into Aboriginal Human Resources Development Agreements (AHRDAs) with organizations mandated by the respondents' communities. Lemieux J. concluded that this violation could not be justified under section 1 of the Charter and ordered HRDC to eliminate the discrimination by providing community control over labour training programs to the respondents' communities.
ISSUES
[3]There are five issues in this appeal:
1. What is the standard of review of Lemieux J.'s decision?
2. Did Lemieux J. err in making the factual findings he did?
3. Did Lemieux J. err in finding that failing to award AHRDAs to the respondents' communities constituted a violation of the section 15 equality guarantee?
4. If not, did Lemieux J. err in finding that the violation could not be justified under section 1?
5. If not, did Lemieux J. err in his choice of remedy?
FACTS
[4]The following is a summary of the facts as found by Lemieux J. There are a large number of abbreviations and acronyms used in these reasons. For convenience, they are summarized in an Appendix.
| The Parties |
[5]The appellant is the Attorney General of Canada representing HRDC. The respondents are a number of Aboriginal individuals and organizations from Ontario and Manitoba.
[6]Roger Misquadis and Dorothy Phipps-Walker are both status Indians (Indians who are eligible for registration on the Indian Register maintained under the Indian Act, R.S.C., 1985, c. I-5) who have lived most of their lives off-reserve in the Greater Toronto Area (GTA) and who claim to have little or no connection with their bands. Peter Ogden is a Micmac from Nova Scotia who now lives in Hamilton and who is not a registered Indian. Chief Bob Crawford and Mona Perry are Indians who are not eligible to be registered under the Indian Act. They are both members of the Ardoch, an Aboriginal community located in the Ottawa Valley which is not recognized as a band under the Indian Act. Bob Crawford is the elected Chief of the Ardoch.
[7]Darwin Lewis considers himself a member of the Winnipeg Aboriginal community although he is registered as a member of a band in Ontario. The Aboriginal Council of Winnipeg (ACW) is an organization that claims to represent the interests of the members of the Winnipeg Aboriginal community.
[8]A national Aboriginal organization, the Council of Aboriginal Peoples, which represents non-status Indians, Indians who have regained their status and status Indians not living on-reserve, was granted leave to intervene in this appeal.
| The Aboriginal Human Resources Development Strategy |
[9]Before the implementation of the Aboriginal Human Resources Development Strategy (AHRDS), HRDC engaged in two predecessor programs: the Pathways to Success Strategy (Pathways) which ran from 1991 to 1996 and the New Relationship Strategy which ran from 1996 to 1999. Both programs, like AHRDS, were designed to give Aboriginal peoples a greater role in the design and implementation of their skills training programs.
[10]Following an extensive consultation process, HRDC implemented AHRDS on April 1, 1999. HRDC entered into national accords with the Assembly of First Nations (AFN), the Métis National Council (MNC), and the Inuit Tapirisat of Canada (ITC). AHRDAs were then entered into with provincial and regional organizations affiliated with these three national Aboriginal organizations.
[11]In Manitoba, HRDC entered into AHRDAs with the Assembly of Manitoba Chiefs (AMC) and the Manitoba Métis Federation (MMF). The ACW asked HRDC to enter into an AHRDA with it covering Winnipeg but HRDC refused, giving no reasons. The MMF operated in Winnipeg through a local management board while AMC chose to have services provided directly by First Nations through 20 sub-agreement holders who were expected to have offices in Winnipeg. In Ontario, various affiliates of the AFN became AHRDA holders. Organizations mandated by the GTA Aboriginal community (Miziwe Biik) and the Niagara Aboriginal Community (Niagara Peninsula Area Aboriginal Management Board -- NPAAMB), as well as the Ardoch, requested inclusion as AHRDA holders but were refused.
[12]In addition to the AHRDAs signed with affiliates of the AFN, the MNC, and the ITC, AHRDS also has a separate urban/off-reserve component. In Winnipeg and Ontario, HRDC selected the service provider for this component by means of a Request for Proposal (RFP) evaluated by government officials. In Winnipeg, the service provider selected was the Centre for Aboriginal Human Resources Development (CAHRD). The AWC supported CAHRD's RFP proposal although it had informed HRDC that it felt entitled to enter into a separate AHRDA and had a mandate from the Winnipeg Aboriginal community to do so. CAHRD delivers labour programming services without regard to status under the Indian Act.
[13]In Ontario, the Circle, a group made up of representatives of six Ontario Aboriginal organizations, including NPAAMB and Miziwe Biik, submitted an RFP proposal. The bid was won, however, by the Ontario Federation of Indian Friendship Centres coupled with Grand River Employment and Training (OFIFC/GREAT). OFIFC was appointed to service all non-affiliated Aboriginals in the province but it backed away from serving the GTA and Miziwe Biik was selected for a sub-agreement without an RFP. No AHRDA was signed with rural non-band communities such as the Ardoch.
RELEVANT STATUTORY PROVISIONS
Canadian Charter of Rights and Freedoms
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
. . .
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.
. . .
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
Constitution Act, 1982 [Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]
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.
Federal Court Act [R.S.C., 1985, c. F-7, s. 57 (as am. by S.C. 1990, c. 8, s. 19)]
57. (1) Where the constitutional validity, applicability or operability of an Act of Parliament or of the legislature of any province, or of regulations thereunder, is in question before the 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 adjudged 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).
(2) Except where otherwise ordered by the Court or the federal board, commission or other tribunal, the notice referred to in subsection (1) shall be served at least ten days before the day on which the constitutional question described in that subsection is to be argued.
Indian Act [s. 2(1) "Indian Register" (as enacted by R.S.C., 1985 (1st Supp.), c. 32, s. 1), 5(1) (as am. idem, s. 4)]
2. (1) In this Act,
"band" means a body of Indians
(a) for whose use and benefit in common, lands, the legal title to which is vested in Her Majesty, have been set apart before, on or after September 4, 1951,
(b) for whose use and benefit in common, moneys are held by Her Majesty, or
(c) declared by the Governor in Council to be a band for the purposes of this Act;
. . .
"Indian" means a person who pursuant to this Act is registered as an Indian or is entitled to be registered as an Indian;
. . .
"Indian Register" means the register of persons that is maintained under section 5;
. . .
"registered" means registered as an Indian in the Indian Register;
. . .
5. (1) There shall be maintained in the Department an Indian Register in which shall be recorded the name of every person who is entitled to be registered as an Indian under this Act.
ANALYSIS
| Standard of Review |
[14]The leading Supreme Court case on the proper standard of review of a lower court's decision is Housen v. Nikolaisen, [2002] 2 S.C.R. 235. Unlike review of decisions by administrative tribunals, the standard of review for reviewing a lower court's decision is determined solely by the nature of the question in issue. Questions of law are reviewed on a standard of correctness (paragraphs 8-9) while questions of fact and inferences of fact are reviewed on a palpable and overriding error basis (paragraphs 10-25). Questions of mixed law and fact are also subject to a palpable and overriding error standard unless a pure question of law can be extricated and reviewed on a correctness standard (paragraphs 26-28).
[15]Although Housen dealt with appeals from a decision in an action, in Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, at paragraph 43, the Supreme Court applied the Housen test in reviewing the decision of a judge hearing an application for judicial review. The Supreme Court held that just as much deference should be shown to an application judge's findings as to those of a trial judge who has heard viva voce evidence.
[16]Housen applies to Charter cases in the same way as to other cases (R. v. Chang, 2003 ABCA 293; [2003] A.J. No. 1281 (C.A.) (QL), at paragraphs 7-8; R. v. Coates (2003), 176 C.C.C. (3d) 215 (C.A.), at paragraph 20). The proper application of section 15 is a question of mixed fact and law. HRDC has not argued that Lemieux J. incorrectly set out the relevant principles; rather, its concern was with his application of those principles to the facts. As a result, his decision should be reviewed on a palpable and overriding error standard.
| Lemieux J.'s Factual Findings |
[17]In the course of his judgment, Lemieux J. made a number of findings with which HRDC takes issue. HRDC paraphrases these findings as follows:
· "Local community control" over employment and training funds is a primary intended benefit of the Strategy;
· First Nation band communities enjoy the benefits of local community control while the respondents' communities do not;
· AHRDA-holders serving First Nation bands are mandated and accountable to their community, whereas those funded under the urban/off-reserve component are not;
· There is a consensus within urban and off-reserve settings that certain organizations represent these populations for employment and training purposes, yet HRDC failed or refused to recognize them. HRDC's failure to recognize these particular organizations constitutes a failure to recognize the communities themselves; and
· Only Miziwe Biik, NPAAMB, and the ACW are "mandated for spearheading labour market programs" on behalf of, and accountable to, the respondent communities--whereas the organizations chosen by HRDC are not.
[18]HRDC argues that these findings are perverse and capricious and made without regard to the evidence before the Court. On the contrary, Lemieux J. reviewed the extensive evidence submitted by the parties, weighed that evidence, and made factual findings based on that evidence. For example, his finding that local community control is a primary benefit of the Strategy is supported not only by the evidence of the respondents but also by HRDC's own background papers for the Strategy's predecessor programs. Similarly, Lemieux J. based his finding that HRDC had failed to recognize the respondents' communities on affidavit evidence about the functioning of those communities, evidence of historical disadvantage summarized in the Report of the Royal Commission on Aboriginal Peoples, and his own comparison of the organizations which were granted AHRDAs with those which were not. He also rejected HRDC's argument that it was unclear which organizations were mandated by the respondents' communities on the grounds that HRDC had not realistically tried to find out and had ignored the very organizations which had operated successfully under the previous Pathways program.
[19]As the Supreme Court has recognized, an applications judge is in a better position to make such findings than an appellate court. HRDC may not like the findings which the Trial Judge has made, but it has not demonstrated that he made findings which cannot be supported by the evidentiary record.
[20]Another judge may have made different findings of fact. For example, another judge may have found on the evidence that, as the appellant urges, the objective of AHRDS was to provide employment training for Aboriginals. Placing control over the program in the hands of local Aboriginal community organizations may have only been one way of meeting this objective. There was evidence to this effect and such a determination would not have been illogical or unreasonable, having regard to the $1.6 billion over 5 years the government allocated to this Strategy. However, there was also evidence to support Lemieux J.'s factual conclusions that the primary purpose of the Strategy was local control. In the absence of a palpable and overriding error, this Court should not interfere with Lemieux J.'s factual findings.
| Section 15 |
| Comparative Analysis |
[21]The guarantee of equality provided by section 15 is a comparative concept. A court must identify the group in comparison to which the impugned law allegedly causes discriminatory treatment. The natural starting point is to consider the respondent's view, although if necessary a court can refine the comparison within the scope of the grounds pleaded (Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, at paragraphs 56-58).
[22]Lemieux J. characterized the respondents as First Nation members of urban and rural off-reserve Aboriginal communities and accepted the comparator group proposed by the Manitoba respondents--First Nation members living on-reserve. Given his characterization of the primary benefit of the program as local community control, this choice of comparator group is not unreasonable. Although few bands have individual AHRDAs, all reserve-based communities do have the opportunity to exercise community control through representative regional or provincial bodies. Non-band communities have not been given such an opportunity. As the Supreme Court accepted in Lovelace v. Ontario, [2000] 1 S.C.R. 950, First Nation non-band communities can validly be compared with First Nation band communities for the purposes of section 15 analysis.
[23]HRDC is correct, however, that the section 15 guarantee of equality only extends to individuals. As a result, the two respondent organizations, Ardoch and ACW, would appear to lack standing to bring a section 15 claim. However, the individual respondents clearly do have standing to bring such a claim and an appropriate remedy may still be granted if they successfully establish that their rights have been infringed.
| Differential Treatment |
[24]The first stage of the Law test is to determine whether a law imposes differential treatment between those claiming under section 15 and the members of the comparator group, in purpose or effect. HRDC's argument that the Strategy does not impose differential treatment is based upon its interpretation that the Strategy's benefit is providing individual Aboriginals access to Aboriginal-specific employment programming. However, this is not the benefit the respondents claimed they had been denied.
[25]Having regard to Lemieux J.'s factual finding that the primary benefit of the Strategy was local community control over the delivery of human resources programming, it is clear that the Strategy did have the effect of treating members of band and non-band communities differently. There are two types of AHRDA: the first type which was only signed with regional and provincial affiliates of the three organizations (AFN, MNC, and ITC) with which national framework agreements had been signed and the second type which was signed with organizations chosen by HRDC to service Aboriginals who were not living in reserve-based communities.
[26]The respondents' communities, not being represented by one of the three national organizations, simply could not enter into the first type of AHRDA, either individually or in regional groupings. The respondents claim, and Lemieux J. accepted, that the second type of AHRDA is fundamentally different from the first type as it does not provide the same opportunity for local community control. Lemieux J. found that the benefit of AHRDS is that it provides Aboriginal communities with local community control over human resources programming. The respondents' communities were deprived of this benefit.
[27]HRDC also argues that even if its refusal to enter into the first type of AHRDA with the respondents' communities did result in denying them a benefit, that decision was not based on any personal characteristic of the respondents. Rather, it was based solely on the inability of the Aboriginal organizations proposed by the respondents to meet the criteria for becoming AHRDA-holders.
[28]With respect, this argument misses the point. Only regional and provincial affiliates of AFN, MNC, and ITC met the criteria to enter into the first type of AHRDA. The respondents, on the basis that they were not Métis, Inuit, or members of reserve-based Indian communities, could not have organizations representing their communities take part in these agreements and could not gain the benefits of local community control. Therefore, they were denied the benefit of AHRDS on the basis of the personal characteristic of being Indians who do not live on reserves and the first step of the Law test was met.
| Analogous Ground |
[29]The second step of the Law test is to determine whether one or more enumerated or analogous grounds of discrimination are the basis for the differential treatment.
[30]Lemieux J. found that the respondents had been denied the opportunity to have local control of their human resources programming because they do not live on reserves. The Supreme Court in Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 recognized "Aboriginality-residence" as an analogous ground because the decision to live on- or off-reserve is a "personal characteristic essential to a band member's personal identity" which can be changed "only at great cost, if at all" (paragraph 14).
[31]McLachlin J. (as she then was) and Bastarache J., writing for the majority in Corbiere, made it clear that once an analogous ground has been identified, it is a "constant marker of potential legislative discrimination" for all future cases (paragraph 10).
[32]It is not entirely clear that the respondents who are non-status Indians have been discriminated against on the basis of "Aboriginality-residence" because, since they are non-status Indians, they do not have the option of living on-reserve. However, HRDC did not argue that any distinction should be drawn between the respondents on the basis of whether they are status or non-status Indians. It is therefore not necessary to decide whether such a distinction should be drawn in this case.
[33]HRDC did argue that, based on the Chippewas case (Chippewas of Nawash First Nation v. Canada (Minister of Fisheries and Oceans), [2003] 3 F.C. 233 (C.A.), at paragraph 25), the analogous ground of "Aboriginality-residence" is not so broad as to capture any circumstance where an Aboriginal person claims discrimination on the grounds of residence. However, Chippewas does not assist HRDC because that case dealt with distinctions drawn between Indians living in coastal reserves and Indians living in inland reserves. It thus dealt solely with ordinary residence, not "Aboriginality-residence."
| Discrimination |
[34]The final stage in the Law analysis is to determine whether the law in question has a purpose or effect that is discriminatory within the meaning of the equality guarantee. In order to do so, a court must consider a number of contextual factors. This is a question of mixed fact and law. HRDC does not claim that Lemieux J. failed to apply any of the relevant contextual factors or considered irrelevant ones. There is, therefore, no pure error of law that must be reviewed on a correctness standard.
[35]Rather, HRDC attacks Lemieux J.'s assessment of the evidence and the factual findings which underpin his assessment of the contextual factors. As earlier indicated, appellate review of this kind of analysis is conducted on a palpable and overriding error standard and Lemieux J. did not make such an error.
[36]Lemieux J. drew on Corbiere, Lovelace, and the Royal Commission on Aboriginal Peoples to find that HRDC's refusal to enter into the first type of AHRDA with the respondents' communities perpetuated the historical disadvantage and stereotyping of off-reserve Aboriginal communities. He distinguished the Strategy in this case from the one in Lovelace by holding that there was no reliable evidence that the respondents' needs, capacities and circumstances were any different from those of Aboriginals living on-reserve. He noted that AHRDS is a general ameliorative program designed to benefit all Aboriginals regardless of where they live and held that HRDC had failed to recognize the fact that the respondents lived in communities which were functioning Aboriginal communities as worthy of recognition as reserve-based communities. None of these findings are clearly wrong as required by the palpable and overriding error standard. Lemieux J. was thus entitled to find that HRDC's implementation of the Strategy violated the respondents' section 15 rights.
| Section 1 |
[37]Turning to whether this infringement of section 15 can be justified under section 1, no one disputes that the purpose of the Strategy is pressing and substantial. Rather, the debate is over whether the rational connection and minimal impairment branches of the test set out in The Queen v. Oakes, [1986] 1 S.C.R. 103 have been met.
[38]HRDC argues that its decision not to enter into AHRDAs with the respondents' communities was rationally connected to the Strategy's objectives given the need to have critical mass and avoid fragmentation. Lemieux J. agreed that these were relevant considerations but found that HRDC had not met its burden of proving that these concerns were in fact the reason why the organizations proposed by the respondents had not been awarded AHRDAs. Given the large size of the Aboriginal communities in Winnipeg, the GTA and the Niagara region, the willingness of the Ardoch to enter into partnership with other Aboriginal communities, and the evidence of how the urban communities were able to achieve consensus on representation during the previous Pathways program, these findings are ones that were open to Lemieux J. and which should not be disturbed.
[39]Nor did HRDC show that the manner in which it implemented the Strategy was minimally impairing. HRDC did not lead evidence of any study or arrangements that it considered short of shutting out the respondents' communities from participation in decision making about labour market programming. As a result, Lemieux J. was entitled to hold that HRDC had not shown that it had chosen the minimally impairing means of achieving its policy goals. Therefore, on the facts as found by Lemieux J., the violation of the respondents' section 15 rights cannot be justified under section 1.
| Remedy |
[40]Lemieux J. ordered HRDC to eliminate the discrimination by providing community control over labour training programs to the respondents' communities. He left it to HRDC in consultation with the representative organizations of the respondents' communities identified in the proceedings to determine how best to fashion inclusion.
[41]HRDC challenges this remedy for two reasons: (1) that the courts should not order the government to negotiate given their inability to properly supervise compliance with such an order; and (2) that compliance is impossible due to the remedy's lack of clarity and specificity. Although Lemieux J.'s order could have been more specific, for the following reasons, it was open to him to find that ordering HRDC to provide the respondents' communities with community control over labour training programs was, in the words of subsection 24(1), "appropriate and just in the circumstances."
[42]Contrary to HRDC's submissions, Lemieux J.'s order is not a mandamus in the traditional sense--no public officer is ordered to carry out a legal duty. Rather, it is more closely akin to a declaration of unconstitutionality coupled with an order directing the government to remedy the infringement of the respondents' rights. The Supreme Court itself made this type of order in Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 when it declared that failing to provide deaf hospital patients with sign language interpreters was unconstitutional and ordered the Government of British Columbia to administer the relevant Acts in a manner consistent with the requirements of the Charter.
[43]In its factum, HRDC relied on the Nova Scotia Court of Appeal decision in Doucet-Boudreau v. Nova Scotia (Department of Education) (2001), 194 N.S.R. (2d) 323, for the proposition that Lemieux J. should not have granted the remedy he did because he has no means of supervising whether the government complies with it. The decision of the Court of Appeal was recently overturned by a 5-4 majority of the Supreme Court in Doucet-Boudreau v. Nova Scotia(Minister of Education), [2003] 3 S.C.R. 3. In any case, unlike the trial judge in that case, Lemieux J. did not purport to maintain any supervisory jurisdiction over HRDC. Rather, he trusted that the Government would abide by the law and follow his order.
[44]Far from undermining the correctness of Lemieux J.'s choice of remedy, the majority decision in Doucet-Boudreau supports his decision. Iacobucci and Arbour JJ. held that "[r]eviewing courts . . . must show considerable deference to trial judges' choice of remedy" and "should only interfere where the trial judge has committed an error of law or principle" (paragraph 87). In interpreting subsection 24(1), they found that "[i]t is difficult to imagine language which could give the court a wider and less fettered discretion" (paragraph 52).
[45]The Court set out five general principles (at paragraphs 55-59) which trial courts should consider when determining a just and appropriate remedy under subsection 24(1):
First, an appropriate and just remedy . . . is one that meaningfully vindicates the rights and freedoms of the claimants. . . .
Second, . . . the courts must not, in making orders under s. 24(1), depart unduly or unnecessarily from their role of adjudicating disputes and granting remedies that address the matter of those disputes.
Third, an appropriate and just remedy is a judicial one which vindicates the right while invoking the function and powers of a court. . . .
Fourth, . . . remedy is . . . also fair to the party against whom the order is made. The remedy should not impose substantial hardships that are unrelated to securing the right.
Finally, . . . the judicial approach to remedies must remain flexible and responsive to the needs of a given case.
[46]Lemieux J.'s order is consistent with all of these principles. Ordering HRDC to negotiate AHRDAs with representative organizations mandated by the respondents' communities meaningfully vindicates the respondents' right to have the communities they have built accorded equal worth with more traditional Aboriginal communities. Lemieux J. respected the separation between executive and judiciary by leaving it up to HRDC, in consultation with the organizations in the respondents' communities, to determine how best to remedy the Charter violation. As discussed above, his order is one that falls within the function and power of the courts to make binding declarations regarding unconstitutional governmental action. At the same time, his order is fair to HRDC. It gives HRDC the flexibility to negotiate a solution that respects the respondents' rights but does not unduly undermine an otherwise beneficial program.
[47]Nor is Lemieux J.'s order as difficult to comply with as the appellant claims. It is the very fact that HRDC needed flexibility to deal with the respondents' differing circumstances that led Lemieux J. to refrain from imposing a more concrete result (paragraph 154). Instead, he left "it to HRDC in consultation with the representative organizations of the [respondents'] communities . . . how best to fashion inclusion in a way which is respectful of the needs of all Aboriginal peoples in their communities" (paragraph 160). Contrary to HRDC's submissions, there is no suggestion in Lemieux J.'s reasons that the remedy he fashioned requires HRDC to provide any increase in funding to the Strategy. As in Eldridge, the Court has ordered the government to repair the breach of its constitutional obligations but has deferred to the executive's assessment of the best means of doing so. Lemieux J.'s remedy may be somewhat novel but it falls within the wide scope of remedial action permitted by subsection 24(1).
[48]The intervener CAP challenges the remedy awarded by Lemieux J. on different grounds. In oral argument, but not in its factum, CAP argued that he erred in fashioning a remedy under [Charter] subsection 24(1); rather, it says, a remedy should have been awarded under [Constitution Act, 1982] subsection 52(1). The thrust of its argument is that the Appropriation Act No. 3, 1999-2000, S.C. 1999, c. 36, gave effect to AHRDS by incorporating by reference:
1. Treasury Board of Canada Secretariat, Supplementary Estimates (A), 1999-2000 for the Fiscal Year ending March 31, 2000.
2. 1999-2000 Estimates: Part III--Report on Plans and Priorities. Human Resources Development Canada.
3. Departmental Performance Report 1999-2000. Human resources Development Canada, for the Period ending March 31, 2000.
and thus was unconstitutional for violating section 15. Although I am not satisfied that this Act is the sole legislative foundation for funding the Strategy, it is not necessary to decide the point.
[49]While CAP did not suggest that the entire Appropriation Act should be struck down, it did ask the Court to read in words that would make the Act comply with section 15. CAP conceded that it had not given 10 days notice to the Attorney General of Canada or any notice at all to the provincial attorneys general as required by section 57 of the Federal Court Act, R.S.C., 1985, c. F-7. However, it argued that, regardless of procedural requirements, the Appropriation Act could not be allowed to stand if it was unconstitutional.
[50]This Court cannot deal with constitutional arguments raised in a random and unstructured manner. The legislation creates procedures which must be followed by a party attacking the constitutionality of a statute. If there is not compliance with section 57, the weight of jurisprudence is that this Court lacks the jurisdiction to grant remedies under subsection 52(1) (Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241, at page 267). Even if the alternate view that the Court can grant a remedy so long as there is no prejudice is correct, there clearly would be prejudice in allowing CAP's argument to be raised in these proceedings. CAP's argument was raised for the first time in oral argument. The appellant did not have any opportunity to consider the argument and prepare a response. Further, it should be noted that even counsel for the respondents stated that they did not know this argument would be made and that they were quite satisfied with the remedy granted by Lemieux J. The Court therefore will not deal with the issue raised by CAP.
DISPOSITION
[51]I recognize that the current Strategy expires on March 31, 2004, and that it may not be possible to apply the remedy fashioned by Lemieux J. to have any practical effect on the current Strategy. However, to the extent it may apply, the remedy established by Lemieux J. should, in respect of the respondents and their communities, guide any relevant negotiations under any new program that may succeed the current Strategy.
[52]For these reasons, this appeal should be dismissed with costs.
Stone J.A.: I agree.
Sharlow J.A.: I agree.
Appendix
Abbreviations Used in this Decision
| ACW Aboriginal Council of Winnipeg |
| AHRDA Aboriginal Human Resources Develop-ment Agreement |
| AHRDS Aboriginal Human Resources Develop-ment Strategy |
| AFN Assembly of First Nations |
| AMC Assembly of Manitoba Chiefs |
| CAHRD Centre for Aboriginal Human Resources Development |
| CAP Congress of Aboriginal Peoples |
| HRDC Human Resources Development Canada |
| GREAT Grand River Employment and Training |
| GTA Greater Toronto Area |
| ITC Inuit Tapirisat of Canada |
| Miziwe Biik Miziwe Biik Aboriginal Employment and Training |
| MMF Manitoba Métis Foundation |
| MNC Métis National Council |
| NPAAMB Niagara Peninsula Area Aboriginal Management Board |
| OFIFC Ontario Federation of Indian Friendship Centres |
| Pathways Pathways to Success Program |
| RFP Request for Proposal |
| WAMB Winnipeg Area Management Board |