Judgments

[2000] 1 F.C. 513

T-1804-97

Mary Vicky Scrimbitt (Applicant)

v.

Sakimay Indian Band Council (Respondent)

Indexed as: Scrimbitt v. Sakimay Indian Band Council (T.D.)

Trial Division, MacKay J.—Edmonton, February 16 and 17; Ottawa, October 19, 1999.

Native peoples — Elections — Band Council refused to allow Indian applicant to vote at Band Council elections on ground had married non-Indian and lost legal status as registered Indian — Band control over membership not permitting Band to disregard Bill C-31 which entitled her to reinstatement of registration and to vote at Band Council elections — Band Council’s refusal violating Indian Act and Sakimay Band Membership Code, but not violating any fiduciary duty — Also violation of Charter, s. 15 equality rights and not demonstrably justified under Charter, s. 1 — Applicant’s right to vote not subject to any conflicting Aboriginal rights (such as control over band membership) under Constitution Act, 1982, s. 35(1) as such conflicting rights not established on evidence adduced.

Constitutional law — Charter of Rights — Equality rights — Band Council refused to allow Indian to vote at Band Council elections on ground had married non-Indian and lost legal status as registered Indian — Band’s anti-Bill C-31 policy reflecting that of other Saskatchewan First Nations — Band control over membership not entitling Band to disregard Bill C-31 which entitled her to reinstatement of registration and to vote at Band Council elections — Refusal violating Charter, s. 15 equality rights and not demonstrably justified under Charter, s. 1 — Discrimination based on gender, marital status.

Constitutional law — Charter of Rights — Life, liberty and security — Band Council refused to allow Indian to vote at Band Council elections on ground had married non-Indian and lost legal status as registered Indian — Band control over membership not permitting Band to disregard Bill C-31 which entitled her to reinstatement of registration and to vote at Band Council elections — Although evolving case law suggesting tendency to interpret liberty interest protected by Charter, s. 7 as broader than freedom from physical restraint, no precedent as yet for finding s. 7 protecting applicant’s right to vote.

Constitutional law — Aboriginal and Treaty Rights — Band Council refused to allow Indian to vote at Band Council elections on ground had married non-Indian and lost legal status as registered Indian — Band control over membership not permitting Band to disregard Bill C-31 which entitled her to reinstatement of registration and to vote at Band Council elections — Applicant’s right to vote not subject to any conflicting Aboriginal rights (such as control over band membership) under Constitution Act, 1982, s. 35(1) as such conflicting rights not established by evidence adduced and as argument herein limited in regard to relationship of Charter, ss. 25, 28 and Constitution Act, 1982, s. 35.

The applicant was born a member of the Sakimay Indian Band and was registered as an Indian under the Indian Act. In 1971, she married a non-status Indian and, as a result, lost her legal status as a registered Indian and as a Sakimay Band member pursuant to the Act as it then was. The 1985 amendment to the Indian Act (Bill C-31) provided for the reinstatement of the registration of Indians who had been excluded by reason of their marriage to non-Indians. It also, in effect, gave Indian bands control over their membership, subject to conformity with the Indian Act and departmental approval of the Band Membership Code. In 1985, the applicant applied for, and obtained, reinstatement of her registration as an Indian. She was informed by the Department of Indian Affairs and Northern Development that she was also registered as a member of the Sakimay Band and that it had notified the Band that the Department had entered her name in the Indian Register and on the Band List. However, the Band Council removed the applicant’s name from the Band List at some unspecified time after 1987 when it assumed control over membership. In 1997, the Band refused to allow the applicant to vote at Band Council elections pursuant to its policy, based on traditional Sakimay custom and practice, of opposition to Bill C-31 and of not allowing Bill C-31 status Indians to vote. This was an application for judicial review of that decision. The following issues were raised. (1) Was the refusal contrary to the Indian Act and/or the Sakimay Band Membership Code? (2) Had the Band Council violated a fiduciary duty owed by it to the applicant? (3) Was the refusal a violation of the applicant’s Charter, sections 7 and 15 rights which was not justified under section 1 of the Charter? (4) Could the Band Council rely on section 35 of the Constitution Act, 1982 to justify its refusal? (5) Did section 25 of the Charter shield the Band Council’s actions from Charter scrutiny?

Held, the application should be allowed.

The Indian Act and the Sakimay Band Membership Code

While denial of the applicant’s right to vote was at issue herein, a secondary issue, upon which that right depended, was her membership in the Sakimay Band. Although the Band had controlled its membership according to Band custom since 1987, this was pursuant and subject to the Indian Act. Pursuant to the Indian Act, the applicant was a member of the Sakimay Band at the time she was refused the right to vote. Moreover, she was a member according to the Sakimay Band Membership Code. Removal of her name from the Band List constituted a violation of the Indian Act. And the denial of the applicant’s right to vote in 1997 violated section 77 of the Indian Act. The Band Council therefore violated its own membership code and the Indian Act under which that Code was authorized by denying the applicant the right to vote on the basis that membership in the Band, to which she was entitled under the Band’s own Code, and under the Act, was denied to her.

Fiduciary Duty

Fiduciary duties generally arise only with regard to obligations originating in a private law context. Public law duties, the performance of which require the exercise of discretion, do not typically give rise to a fiduciary relationship: Guerin et al. v. The Queen et al., [1984] 2 S.C.R. 335. In this case, any duty upon the Band Council in regard to administering the Band List derived from the Indian Act and the Sakimay Band Membership Code adopted in accordance with the Act. That was a public law duty arising under the Act, not a fiduciary duty. Therefore, Council’s action, in precluding the applicant from voting, did not breach any fiduciary duty owed to the applicant.

Alleged Charter Breaches

Section 15

By refusing to allow the applicant to vote, the respondent violated her right to equality and to equal protection and equal benefit of the law assured by section 15 of the Charter. The basis of the differential treatment in light of section 15 arose from comparison of Council’s treatment of the applicant as a Bill C-31 member with its treatment of other Band members in similar circumstances except that they were accepted as members otherwise than by virtue of Bill C-31. That difference was said to be based upon the Band’s Bill C-31 policy, reflecting the policy position of other First Nations in Saskatchewan. The difference was also said to be based on Sakimay custom, a custom that was said to have withdrawn membership and voting rights from women who married persons other than Band members. Either of these explanations for precluding the applicant from voting resulted in differential treatment within section 15 of the Charter. Moreover, in either case that treatment was based on gender, marital status or her Bill C-31 status.

That group of women and their children, now within the class of Bill C-31 persons, were historically disadvantaged by reason of the former paragraph 12(1)(b), a circumstance that Bill C-31 was in part designed to redress. That Bill was intended to remedy long-standing discriminatory treatment of Aboriginal women who married non-status Indians. Respondent’s Bill C-31 policy reinstated that treatment and thwarted Parliament’s effort to remedy it.

The refusal of the right to vote as applied by respondent in order to give effect to its Bill C-31 policy or to its claimed custom, discriminated against the applicant and was based on sex and marital status, immutable characteristics, her gender and her prior marital status. The refusal contravened section 15 of the Charter.

Section 7

There was no infringement of section 7 of the Charter. While evolving case law suggested a tendency to interpret the liberty interest protected by section 7 as broader than freedom from physical restraint, there was as yet no precedent for finding that section 7 protected the applicant’s right to vote.

Section 1

The violation alleged was not consistent with “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. In the case at bar, neither the Indian Act not the Sakimay Band Membership Code adopted under the Act incorporated the Band’s Bill C-31 policy, and that policy, and the action in this case based upon it, were not prescribed by law in the sense defined by Le Dain J. in R. v. Therens et al., [1985] 1 S.C.R. 613. Whether the basis for it was, as claimed, the Band’s policy, the Band custom or the Band Council’s economic concerns, it was not an infringement permitted by section 1 of the Charter.

Aboriginal rights—subsection 35(1) of the Constitution Act, 1982, sections 25 and 28 of the Charter

The right primarily here in issue was not the right to membership. Her status as a Band member was settled by Bill C-31 and by her subsequent application to DIAND and the Department’s restoration of her status. No evidence of custom was before the Court whereby the Band might deny voting in Band Council elections by Band members living on the reserve. No Aboriginal right was here established to deny the right to vote by a Band member. Interpretation of sections 25, 28 and subsection 35(1) in light of their interrelationship was left to be determined in a case that clearly raises the issue.

The claim for certiorari quashing the decision to deny applicant’s right to vote should be dismissed, since the issue was moot in that the relief sought could not at this stage provide any redress.

An order should go declaring that denial of the applicant’s rights as a member of the Sakimay Band, in particular the right to vote in the Band Council elections in 1997, because of her standing as a Bill C-31 member of the Band, was contrary to section 77 of the Indian Act, and to the Sakimay Band Membership Code adopted under the Act, and it infringed on her rights secured by subsection 15(1) of the Charter, which infringement was not saved by section 1 and which rights were not affected by any claim raised under subsection 35(1) of the Constitution Act, 1982.

If the applicant’s name was not now on the Band List, the Band was directed to add her name to the List to be effective from the date the Band assumed responsibility for its own membership and the List of its members.

So long as the applicant continues as a member of the Band, she is entitled under section 77 of the Indian Act to vote in future elections.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

An Act to amend the Indian Act, S.C. 1985, c. 27.

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, 7, 15, 25, 28.

Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 35.

Federal Court Act, R.S.C., 1985, c. F-7, ss. 2(1) “federal board, commission or other tribunal” (as am. by S.C. 1990, c. 8, s. 1), 18(1) (as am. idem , s. 4), 18.1 (as enacted idem, s. 5).

Federal Court Rules, 1998, SOR/98-106, Tariff B, Columns IV, V.

Indian Act, R.S.C. 1970, c. I-6, s. 12(1)(b).

Indian Act, R.S.C., 1985, c. I-5, ss. 2(1) “member of a band”, 5 (as am. by R.S.C., 1985 (1st Supp.), c. 32, s. 4), 6(1)(c ) (as am. idem), 10 (as am. idem), 11(1)(c) (as am. idem), 77 (as am. idem, s. 14).

CASES JUDICIALLY CONSIDERED

APPLIED:

Erminskin v. Ermineskin Indian Band Council (1995), 96 F.T.R. 181 (F.C.T.D.); Canatonquin v. Gabriel, [1980] 2 F.C. 792 [1981] 4 C.N.L.R. 61 (C.A.); Omeasoo v. Canada (Min. of Indian Affairs and Nor. Dev.) and Buffalo et al., [1989] 1 C.N.L.R. 110; (1988), 24 F.T.R. 130 (F.C.T.D.); Guerin et al. v. The Queen et al., [1984] 2 S.C.R. 335; (1984), 13 D.L.R. (4th) 321; [1984] 6 W.W.R. 481; 59 B.C.L.R. 301; [1985] 1 C.N.L.R. 120; 20 E.T.R. 6; 55 N.R. 161; 36 R.P.R. 1; Fairford First Nation v. Canada (Attorney General), [1999] 2 F.C. 48 [1999] 2 C.N.L.R. 60; (1998), 156 F.T.R 1 (T.D.); Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; (1999), 170 D.L.R. (4th) 1; 236 N.R. 1; Winko v. British Columbia (Forensic Psychiatric Institute) (1999), 175 D.L.R. (4th) 193; 124 B.C.A.C. 1; 135 C.C.C. (3d) 129; 25 C.R. (5th) 1; 241 N.R. 1 (S.C.C.); 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; R. v. Therens et al., [1985] 1 S.C.R. 613; (1985), 18 D.L.R. (4th) 655; [1985] 4 W.W.R. 286; 38 Alta. L.R. (2d) 99; 40 Sask. R. 122; 18 C.C.C. (3d) 481; 13 C.P.R. 193; 45 C.R. (3d) 57; 32 M.V.R. 153; 59 N.R. 122 (Le Dain J. on Charter, s. 1); R. v. Thomsen, [1988] 1 S.C.R. 640; (1988), 40 C.C.C. (3d) 411; 63 C.R. (3d) 1; 32 C.P.R. 257; 4 M.V.R. (2d) 185; 84 N.R. 347; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139; (1991), 77 D.L.R. (4th) 385; 4 C.R.R. (2d) 60; 120 N.R. 241 (McLachlin and L’Heureux-Dubé JJ. adopting and applying Le Dain J.’s test for “prescribed by law” in Therens ).

DISTINGUISED:

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 (S.C.C.); varg sub nom. Batchewana Indian Band (Non-resident members) v. Batchewana Indian Band, [1997] 1 F.C. 689 (1996), 142 D.L.R. (4th) 122; [1997] 3 C.N.L.R. 21; 206 N.R. 85 (C.A.); Keramchemie GmbH v. Keramchemie (Canada) Ltd. (1998), 83 C.P.R. (3d) 223 (F.C.A.).

CONSIDERED:

Frank v. Bottle, [1994] 2 C.N.L.R. 45; (1993), 65 F.T.R. 89 (F.C.T.D.); Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; [1990] 4 W.W.R. 481; (1990), 68 Man. R. (2d) 1; 56 C.C.C. (3d) 65; 77 C.R. (3d) 1; 109 N.R. 81; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; (1994), 122 D.L.R. (4th) 1; 26 C.R.R. (2d) 202; 176 N.R. 161; 78 O.A.C. 1; 9 R.F.L. (4th) 157; Godbout v. Longueuil (City), [1997] 3 S.C.R. 844; (1997), 152 D.L.R. (4th) 577; 43 M.P.L.R. (2d) 1; 219 N.R. 1; New Brunswick (Minister of Health and Community Services) v. G. (J.) (1999), 177 D.L.R. (4th) 124; 26 C.R. (5th) 203 (S.C.C.); Crow v. Blood Indian Band Council, [1997] 3 C.N.L.R. 76; (1996), 107 F.T.R. 270 (F.C.T.D.); R. v. Van der Peet, [1996] 2 S.C.R. 507; (1996), 137 D.L.R. (4th) 289; [1996] 9 W.W.R. 1; 80 B.C.A.C. 81; 23 B.C.L.R. (3d) 1; 109 C.C.C. (3d) 1; [1996] 4 C.N.L.R. 177; 50 C.R. (4th) 1; 200 N.R. 1; 130 W.A.C. 81.

REFERRED TO:

Scrimbitt v. Canada, [1998] F.C.J. No. 1786 (T.D.) (QL).

APPLICATION for judicial review of the refusal, by the respondent Sakimay Indian Band Council, to allow the applicant to vote in Band Council elections. Application allowed.

APPEARANCES:

R. Dale Gibson and Janet L. Hutchison for applicant.

SOLICITORS OF RECORD:

Gibson, Dale Associates, Edmonton and Chamberlain Hutchison, Edmonton, applicant.

The following are the reasons for order rendered in English by

[1]        MacKay J.: The applicant seeks judicial review of a decision of the respondent Sakimay Indian Band Council (Sakimay). In 1997, Sakimay refused to allow the applicant to vote in Band Council elections. The applicant claims that Sakimay’s decision violated her rights under the Canadian Charter of Rights and Freedoms[1] (the Charter), the Indian Act[2] (the Act) and the Sakimay Band Membership Code. Moreover it is urged that it violated Sakimay’s fiduciary duties.

[2]        The applicant seeks an order of certiorari to quash the 1997 decision that denied her right to vote. She also seeks a declaration that the policy, upon which the decision was allegedly based, violates sections 7 and 15 of the Charter, the Indian Act and Sakimay’s fiduciary duties, and she seeks an order compelling the respondent to place the applicant’s name on the Band’s list, and upon the Band’s voters’ list for the 1999 and all future Band council elections. The last of these forms of relief, so far as the 1999 election is concerned, has been overtaken by events for I understand that election took place while this matter was under reserve. I regret delay in rendering this decision.

[3]        These reasons, which grant Ms. Scrimbitt’s application in part, begin by recounting the background, and the decision under review, that led to these proceedings. The principal issues are set out and dealt with in turn, including alleged violations of the Indian Act, of the Sakimay Band Membership Code, of the Band’s perceived fiduciary duties, and of rights of the applicant under the Charter. Finally, appropriate remedies are discussed, including costs, in light of the submissions of the parties made at the hearing of this matter.

[4]        The application was heard in Edmonton in February 1999 and subsequently counsel for the parties, at the Court’s invitation, made further written submissions in relation to decisions of the Supreme Court of Canada, rendered in March and in May, respectively, in Law v. Canada (Minister of Employment and Immigration)[3] and in Corbiere v. Canada (Minister of Indian and Northern Affairs).[4]

Background

[5]        The applicant was born Mary Vicky Acoose, as a member of the Sakimay Indian Band, and she was registered as an Indian under the Act as set out by the form entitled “Registration of a Live Birth of an Indian” that was completed in respect of her birth. In 1971 the applicant married a non-status Indian and, as a result, she lost her legal status as a registered Indian and as a Sakimay Band member pursuant to paragraph 12(1)(b) of the Act which then provided:[5]

12. (1) The following persons are not entitled to be registered, namely,

…

(b) a woman who married a person who is not an Indian, unless that woman is subsequently the wife or widow of a person described in section 11.

(The applicant was not subsequently the wife or widow of a person described in section 11.)

[6]        The Indian Act was amended in 1985 by legislation commonly referred to as “Bill C-31”, which was enacted with assent on June 28, 1985.[6] The provisions relevant here were made effective April 17, 1985. Paragraphs 6(1)(c) [as am. by R.S.C., 1985 (1st Supp.), c. 32, s. 4] and 11(1)(c) [as am. idem] of the statute as amended,[7] both relevant in this case, provide that:

6. (1) Subject to section 7, a person is entitled to be registered if

…

(c) the name of that person was omitted or deleted from the Indian Register, or from a band list prior to September 4, 1951, under subparagraph 12(1)(a)(iv), paragraph 12(1)(b) or subsection 12(2) or under subparagraph 12(1)(a)(iii) pursuant to an order made under subsection 109(2), as each provision read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as any of those provisions;

…

11. (1) Commencing on April 17, 1985, a person is entitled to have his name entered in a Band List maintained in the Department for a band if

…

(c) that person is entitled to be registered under paragraph 6(1)(c) and ceased to be a member of that band by reason of the circumstances set out in that paragraph; ….

[7]        In November of 1985, Ms. Scrimbitt applied for reinstatement of her registration as an Indian.[8] She received a reply to her application in a letter from the Department of Indian Affairs and Northern Development (DIAND), dated September 24, 1986, which stated, in part:

I have your Application for Registration dated November 4, 1985, and I am pleased to confirm that you are now registered as an Indian in the Indian Register maintained in this Department in accordance with subsection 6(1)(c) of the Indian Act and that you are also registered as a member of the Sakimay Band in accordance with subsection 11(1)(c) of the Indian Act.

DIAND also notified the Sakimay Band in a September 24, 1986 letter that it had entered the applicant’s name in the Indian Register and on the Band List for the Sakimay Band.

[8]        Bill C-31 also amended the Indian Act to permit Indian bands to control their membership by submitting written membership rules that accord with section 10 [as am. idem] of the Act, which required, inter alia, that a majority of the Band approve of the Band’s intention to assume control of its membership, and that the membership rules comply with subsections 10(4) and (5), which provide:

10. …

(4) Membership rules established by a band under this section may not deprive any person who had the right to have his name entered in the Band List for that band, immediately prior to the time the rules were established, of the right to have his name so entered by reason only of a situation that existed or an action that was taken before the rules came into force.

(5) For greater certainty, subsection (4) applies in respect of a person who was entitled to have his name entered in the Band List under paragraph 11(1)(c) immediately before the band assumed control of the Band List if that person does not subsequently cease to be entitled to have his name entered in the Band List.

[9]        The Sakimay Band informed DIAND of its intention to assume control of its membership, by correspondence received on June 22, 1987, as it was enabled to do pursuant to subsection 10(6) of the amended Indian Act. An officer of DIAND reviewed the proposed Sakimay Band Membership Code, which was included with the correspondence. One provision of the Code stated that a person’s name would be entered on the Sakimay Band List if he or she was entitled to be registered under paragraph 6(1)(c) of the Indian Act. In a letter dated September 17, 1987, the Department advised that the Sakimay Band had control of its membership, stating in part:

I am pleased to inform you that, having reviewed the membership rules that you submitted, I have decided to give notice pursuant to subsection 10(7) of the Indian Act that the Sakimay Band has control of its membership effective June 22, 1987.

Hereafter, all additions to and deletions from, the Sakimay Band List will be made by your band in accordance with the membership rules that you have established.

The letter also reproduced subsections 10(4) and 10(5) and reminded the Band that its membership rules and any amendments to the Band Membership Code are directed to comply with those provisions.

[10]      In 1987, DIAND forwarded copies of the departmental list of Sakimay Indian Band members to Sakimay. Sandra Ginnish, a Director of DIAND, by affidavit states that the applicant’s name was on the Band List when it was forwarded by the Department. Sakimay did not cross-examine Ms. Ginnish on the affidavit. However, in affidavit evidence and in its memorandum of fact and law, both filed when the hearing in this matter was imminent, Sakimay claimed, apparently for the first time, that the applicant’s name was not on the Band List. Thereupon the applicant’s counsel contacted the Department of Justice, which provided, the day before the hearing of this application, a copy of the membership list for the Sakimay Indian Band that was originally forwarded to the Band in 1987. That List, dated September 25, 1987, included the applicant’s name. In the proceedings before the Court, respondent’s counsel advised that Sakimay no longer contested that the applicant’s name was on the Band List when Sakimay took control of its membership in accord with the 1985 amendments to the Act.

[11]      Ms. Scrimbitt claims that she was treated as a member of the Band in the early 1990s. In October of 1990, she moved onto the Sakimay Indian Reserve and into the house of her cousin, who subsequently moved to Regina. Thereafter the applicant continued to occupy that dwelling on reserve land. Furthermore, in 1991 she voted in Band Council elections and she also was a candidate for election to the Council that year. Later, at a meeting on June 10, 1992, Sakimay granted the applicant the right to use and occupy a tract of reserve land, a right that extended until December 31, 1995, and which ordinarily was accessible only by a member of the Band.

[12]      In an affidavit dated December 18, 1998, Carol Sangwais, a Band councillor with Sakimay, explained why the applicant was permitted to vote in the 1991 election. She stated that the Band Council passed a resolution which provided that only individuals residing on the reserve as of December 31, 1989 were eligible to vote. Though this would have disqualified the applicant, she was able to vote because DIAND, which administered the elections that year, added her name to the voters’ list. In cross-examination, Ms. Sangwais testified that she saw a 1991 voters’ list that did not include the applicant’s name. Sakimay’s counsel undertook to provide a copy of that list to the applicant, but it was not forwarded and is not in evidence before the Court.

[13]      The applicant was denied the right to vote after the 1991 elections. In 1993, she was told by a Sakimay Band Council representative that she was not on the voters’ list because she was a “Bill C-31 Band member”. Thereupon Ms. Scrimbitt wrote to DIAND asking for clarification of her status as a Band member and asking that she be placed on the voters’ list. In response, by letter dated July 19, 1993, DIAND assured the applicant that she was a member of the Sakimay Band pursuant to paragraph 11(1)(c) of the Indian Act. However, the letter advised the applicant to pursue the inclusion of her name on the voters’ list with Sakimay. Ms. Scrimbitt then wrote to the Minister of DIAND who, by letter dated March 21, 1994 reaffirmed the department’s advice that in so far as the matter concerned the Band’s membership list Sakimay had exclusive control. DIAND and the Minister could not make changes to the membership list.

[14]      On January 26, 1995, in anticipation of upcoming Band elections, the applicant wrote Chief Lindsay Kaye of the Sakimay First Nation to ask whether she was included on the list of eligible voters. The reply to that request, dated February 6, 1995, stated:

I wish to thank you for your letter of January 26, 1995 regarding the question of your eligibility to vote in the up coming election of Sakimay Band.

Sakimay is on record of opposing the Bill C31, along with other First Nations through our institutions, mainly FSIN and AFN, thus you are aware of the arguments.

It has been Sakimay Bands’s policy to not allow Bill C31 to vote at election time.

You were at an electorate meeting and you posed the same question and were told that the Band does not allow Bill C31 to vote.

In keeping with the Sakimay Band’s policy, your name is not on the voter’s list.

[15]      The applicant avers that “at a subsequent meeting of the Sakimay Council for the purpose of reviewing the voters’ list, I was again informed that I would not be allowed to vote, nor have my name included on the voter’s list”. Thereafter, Ms. Scrimbitt was prevented from voting when she attended the polling station on April 24, 1995 for the purpose of voting.

[16]      On February 11, 1997, the applicant, in anticipation of upcoming elections, again wrote to the Chief and the Band Council to ask that she be placed on the voters’ list. She asked the Council to provide written reasons if she were not included on the 1997 voters’ list, but she received no response to her letter. Her name was not on the list. On her attendance at a polling station for the election in the summer of 1997, she was prevented from voting. In the applicant’s memorandum of fact and law, the 1997 refusal is said to be the decision that is challenged in this application for judicial review.

[17]      In affidavit evidence of its spokespersons and in oral argument before me, Sakimay advanced various explanations for denying Ms. Scrimbitt her voting rights. At the hearing before the Court, as we have noted, the respondent abandoned one of those explanations, that is, the argument that Ms. Scrimbitt was not on the Band List when Sakimay began controlling its membership in 1987. In its memorandum of fact and argument, Sakimay provided two additional reasons for denying Ms. Scrimbitt the right to vote. First, Sakimay cited the fact it refuses to accept that Bill C-31 status Indians are eligible to vote, a practice referred to in these reasons as the Band’s “Bill C-31 policy”.

[18]      Sakimay also relies on custom to justify refusing to permit the applicant to vote. First, it claims that women who married outside of the Band were denied membership according to traditional Sakimay custom and practice. Second, Sakimay custom is said to require that one who is not a member of the Band could only become a Band member upon application and approval by the Band. According to Sakimay custom, it is said that an individual had to earn the trust and respect of the Band members before admission, a standing assessed, after hearing an individual speak on the applicant’s behalf, by consensus or by vote of the entire Band to accept or reject the applicant as a member. Only Band members qualified by age could be voters in Band elections.

The Decision Under Review

[19]      After this proceeding was commenced the applicant sought leave to amend the originating motion to question the series of decisions denying the applicant the right to vote, and seeking relief against the Minister as well as the Band Council. Mr. Justice Rothstein limited this judicial review[9] by refusing to extend the time to review Sakimay’s 1993 and 1995 decisions denying the applicant her right to vote, and he did not extend the time to review DIAND’s 1987 decision to grant Sakimay control over its membership or DIAND’s refusal, communicated in July 19, 1993 and March 21, 1994 correspondence to the applicant, to challenge the Band’s membership policies. The Court did, however, grant an extension of time for filing the originating notice of motion to judicially review the 1997 Band Council decision, communicated to Ms. Scrimbitt when she was prevented from voting on the day of the Band Council elections. In the result the decision here subject to review is the refusal to allow the applicant to vote in the 1997 elections.

[20]      While there was no issue between the parties concerning the Court’s jurisdiction in these proceedings, it may be useful to set out the basis upon which the judicial review proceeds.

[21]      Subsection 18(1) of the Federal Court Act[10] provides that the Court has jurisdiction to grant a remedy in relation to the action or failure to act of “any federal board, commission or other tribunal.” That relief may result from proceedings for judicial review under section 18.1 [as enacted by S.C. 1990, c. 8, s. 5]. Parliament has defined the phrase “federal board, commission or other tribunal” in subsection 2(1) [as am. idem, s. 1] of the Federal Court Act, as follows:

2. (1) …

“federal board, commission or other tribunal” means any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867;

[22]      It is well settled that an Indian band council is a “federal board, commission or other tribunal” as defined by subsection 2(1) of that Act when it acts pursuant to the Indian Act.[11] Mr. Justice Jerome A.C.J., determined in Ermineskin v. Ermineskin Indian Band Council,[12] that the authority exercised by a band council over its membership is derived from the Indian Act, and the exercise of that authority is thus subject to judicial review. In Frank v. Bottle,[13] while the case did not deal with a dispute concerning band membership, the defendants argued that acting pursuant to customary law shielded their decision from judicial review, but this Court did not accept that band custom insulated band council actions from judicial review in that case. In my view, even if Sakimay here purported to act pursuant to the custom of the Band, it was at the same time acting pursuant to its authority under the Indian Act. Its action in precluding voting by the applicant is subject to judicial review.

[23]      Judicial review proceeds pursuant to section 18.1 of the Federal Court Act, and the forms of relief here sought by the applicant, i.e., certiorari, mandamus and declaratory relief are available pursuant to section 18 of that Act by proceedings in accord with section 18.1.

Issues

[24]      The applicant’s challenge to Sakimay’s decision and Sakimay’s responses to it raise the following issues:

1.         Was Sakimay’s decision to refuse Ms. Scrimbitt the right to vote in the 1997 Band Council elections contrary to the Indian Act and/or the Sakimay Band Membership Code?

2.         Did Sakimay violate a fiduciary duty owed by the Council to Ms. Scrimbitt?

3.         Were Ms. Scrimbitt’s section 7 and section 15 Charter rights infringed upon by the decision that prevented her from voting in a manner not warranted by section 1 of the Charter?

4.         Can Sakimay rely on the collective rights bestowed upon Aboriginal peoples of Canada by section 35 of the Constitution Act, 1982[14] to justify its refusal to allow Ms. Scrimbitt to vote?

5.         Does section 25 of the Charter shield Sakimay’s actions from Charter scrutiny?

[25]      These reasons deal with these issues in turn.

Analysis

1. The Indian Act and the Sakimay Band Membership Code

[26]      The applicant submits that Sakimay violated the Indian Act by denying her Band membership and voting rights. She urges that paragraph 6(1)(c) of the Indian Act entitled her to registration as a status Indian and, more importantly, that paragraph 11(1)(c) entitled her to be entered on the Sakimay Band List. She was assured by DIAND, following her application in 1985, that she was again registered and that her name was restored to the Sakimay Band List. It is submitted that Ms. Scrimbitt’s name was on the List when Sakimay took control of its membership and that it was unlawfully removed thereafter. As for voting rights, the applicant relies on section 77 [as am. by R.S.C., 1985 (1st Supp.), c. 32, s. 14] of the Indian Act, which guarantees Band members the right to vote, subject to specified limitations that are not here applicable.

[27]      The respondent no longer takes issue with the fact that the applicant was included on the Band List provided by DIAND to Sakimay. However, as I understand it, the respondent claims that Ms. Scrimbitt is simply a visitor on the Sakimay Reserve and not a full Band member since she has not adhered to Band custom, which requires a vote of approval by the respondent Sakimay Band after Ms. Scrimbitt has formally applied for membership. Thus, it is said Ms. Scrimbitt is not a member of the Band, and without membership status, she has no right to vote. Furthermore, Sakimay relies on its Bill C-31 policy, which precludes from voting those who were registered as Indians pursuant to paragraph 6(1)(c) of the Indian Act.

[28]      The Indian Act ultimately governs Band membership. Subsection 2(1) of the Indian Act defines the phrase “member of a band” to mean “a person whose name appears on a Band List or who is entitled to have his name appear on a Band List”. Though the respondent no longer disputes that Ms. Scrimbitt was on the Band List in 1987, it is not acknowledged that she retained that status when she was prevented from voting in 1997. While denial of her right to vote is at issue in this judicial review application, a secondary issue, upon which that right depends, is her membership in the Sakimay Band.

[29]      In my view, Ms. Scrimbitt was a member of the Sakimay Band at that time, even if she was not on the Band List utilized by Sakimay. Paragraph 11(1)(c) is clear authority that the applicant was entitled to have her name entered on the Sakimay Band List, since she was entitled to registration as an Indian under paragraph 6(1)(c). Upon her application she was advised by DIAND that her registration was restored and that her name was on the Sakimay Band List. Moreover, she was a member according to the Sakimay Band Membership Code, paragraph 1 of which states that a person is entitled to have his or her name entered on the Sakimay Band List if:

a) the name of that person was entered in the Band List for Sakimay immediately prior to this code coming into force;

b) that person is entitled to be registered under paragraph 6(1)(c) of the Indian Act 1985 as a member of the Sakimay Band;

c) that person is entitled to be registered under paragraph 6(1)(c) of the Indian Act 1985 and ceased to be a member of the Sakimay Band by reason of the circumstances set out in that paragraph …

[30]      Despite this, the parties agree that Ms. Scrimbitt’s name was not on the Band List when she attempted to vote in 1997. Removal of her name from the Band List constituted a violation of the Indian Act, in my view. Sakimay had control over its membership list when the name was removed at some unspecified time after Sakimay assumed control. Pursuant to subsection 10(10) of the Act Sakimay had authority to add or delete names from the Band List, but that authority limits any alteration to be “in accordance with the membership rules of the band”.

[31]      Removing Ms. Scrimbitt’s name from the Sakimay membership List does not accord with paragraph 1 of the Sakimay Band Membership Code regarding entitlement to inclusion on the List. While the Band may control its membership under the Act, its authority to do so is limited by section 10 of the Act. In particular, subsection 10(4) provides that membership rules of a Band may not deny membership to anyone entitled to have her or his name on the List. In Omeasoo v. Canada (Min. of Indian Affairs and Nor. Dev.) and Buffalo et al.[15], Mr. Justice Jerome A.C.J., held that subsection 10(4) protects the rights of those entitled to Band membership pursuant to Bill C-31.

[32]      When Ms. Scrimbitt was denied the right to vote in 1997, Sakimay also violated section 77 of the Indian Act. That provision guarantees voting rights to band members who are at least 18 years of age and are ordinarily resident on a reserve. The Supreme Court of Canada recently ruled in Corbiere[16] that section 77 was unconstitutional in its limitation of the right to vote to those “ordinarily resident on the reserve”. The Court declared that quoted phrase invalid, but suspended its declaration of invalidity for 18 months. The respondent in this case did not challenge the constitutionality of section 77. That provision remains in effect, and in any event there is here no dispute that Ms. Scrimbitt lives on the reserve. The right to vote, assured by section 77 to a member of the Band, cannot be denied by wrongful denial of her membership contrary to the Indian Act.

[33]      In my opinion, Sakimay violated its own membership code and the Indian Act under which that Code was authorized, by denying the applicant the right to vote on the basis that membership in the Band, to which she was entitled under the Band’s own Code, and under the Act, was denied to her.

2. Fiduciary Duty

[34]      The applicant alleges that Sakimay violated its fiduciary duty owed to her when it refused to allow her to vote in the Band Council elections. That duty is said to arise from two sources: first, the position of trust held by the Council in relation to its members, and second, from the position of trust that the Council holds while administering the Band List. In the latter regard, the applicant claims that the Crown owed a fiduciary duty to First Nations people to administer band lists accurately and the Band Council assumed a similar duty when it accepted the responsibility to administer the Sakimay Band List. The respondent argues that the Band Council owes a duty to its members as a whole, rather than to Ms. Scrimbitt or to individuals, and submits that there is no authority to support the proposition that the Crown owed a fiduciary duty specifically to properly maintain the Band lists.

[35]      In Guerin et al. v. The Queen et al.,[17] the Supreme Court of Canada first addressed the Crown’s fiduciary obligation, in the context of Aboriginal title. Mr. Justice Dickson had this to say:

It should be noted that fiduciary duties generally arise only with regard to obligations originating in a private law context. Public law duties, the performance of which requires the exercise of discretion, do not typically give rise to a fiduciary relationship. As the “political trust” cases indicate, the Crown is not normally viewed as a fiduciary in the exercise of its legislative or administrative function. The mere fact, however, that it is the Crown which is obligated to act on the Indians’ behalf does not of itself remove the Crown’s obligation from the scope of the fiduciary principle. As was pointed out earlier, the Indians’ interest in land is an independent legal interest. It is not a creation of either the legislative or executive branches of government. The Crown’s obligation to the Indians with respect to that interest is therefore not a public law duty. While it is not a private law duty in the strict sense either, it is nonetheless in the nature of a private law duty. Therefore, in this sui generis relationship, it is not improper to regard the Crown as a fiduciary.

[36]      In a recent judgment from this Court, Fairford First Nation v. Canada (Attorney General),[18] Mr. Justice Rothstein considered this comment of Dickson J. He held that where the Crown acts pursuant to statute, as in the Fairford First Nation case, it is exercising public law duties. In those circumstances no fiduciary duty existed.

[37]      In this case, subsection 10(8) of the Indian Act provides Sakimay with the responsibility to control its membership, and with authority to develop the Sakimay Band Membership Code, which became the basis for determining the composition of the Band List after 1987 when the Band assumed control of its List. Any duty upon Sakimay in regard to administering the Band List derives from the Indian Act and the Sakimay Band Membership Code adopted in accord with the Act. As was the case in Fairford, that is a public law duty arising under legislation, i.e., the Act, not a fiduciary duty. Thus, even if it might be considered, though I do not here so find, that the Crown owed a fiduciary obligation to individuals prior to Sakimay becoming responsible for administering its Band List, in my opinion the nature of that duty is distinguishable from any obligation on the part of Sakimay to Ms. Scrimbitt subsequently arising under the Act. On this issue, I conclude that Sakimay’s action, in precluding the applicant from voting, did not breach any fiduciary duty owed to Ms. Scrimbitt.

3. Alleged Charter Breaches

[38]      The applicant seeks a declaration that by excluding her from voting in the 1997 Band Council elections Sakimay violated her liberty rights guaranteed by section 7 and equality rights under section 15 of the Charter. I begin review of the Charter allegations with reference to section 15, then to section 7, and then to section 1 which authorizes limitations upon rights assured by other provisions of the Charter, including sections 15 and 7, in particular circumstances.

[39]      The respondent urges that there is no breach of Ms. Scrimbitt’s Charter rights, but in any event the Aboriginal right of Sakimay under subsection 35(1) of the Constitution Act, 1982, to control the Band’s own membership is preserved by section 25 of the Charter.

Section 15

[40]      Ms. Scrimbitt argues that by refusing to allow her to vote, Sakimay violated her right to equality and to equal protection and equal benefit of the law assured by section 15 of the Charter. That denial, it is urged, constitutes discrimination based on her sex, her previous marital status and on her background as a person reinstated to membership of the Band under Bill C-31.

[41]      Sakimay urges that denial of her voting rights was not discriminatory within section 15 and was not based on her sex or her marital status. In addition to the applicant, more than 900 members of the Band living off the reserve (including some 180 Bill C-31 people), do not have the right to vote. In so far as her preclusion from voting was based on policy, it is said that Bill C-31 policy was not discriminatory since it applied to persons of both sexes, regardless of marital status, who were included as Band members by reason of Bill C-31. It was urged that the policy against voting by Bill C-31 people was not discriminatory, and, moreover, in the case of Ms. Scrimbitt it was a result of Sakimay custom.

[42]      Subsection 15(1) of the Charter states as follows:

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.

[43]      Since the Court heard this case, the Supreme Court of Canada decided Law v. Canada (Minister of Employment and Immigration),[19] in which Mr. Justice Iacobucci, for the Court, restated the framework for analysing a claim in relation to section 15. I acknowledge the assistance of counsel for the parties in written submissions about the significance of that decision for this case.

[44]      In Law, Mr. Justice Iacobucci, in considering the approach for analyzing a subsection 15(1) claim, stated:[20]

… a court that is called upon to determine a discrimination claim under s. 15(1) should make the following three broad inquiries. First, does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant’s already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? If so, there is differential treatment for the purpose of s. 15(1). Second, was the claimant subject to differential treatment on the basis of one or more of the enumerated and analogous grounds? And third, does the differential treatment discriminate in a substantive sense, bringing into play the purpose of s. 15(1) of the Charter in remedying such ills as prejudice, stereotyping, and historical disadvantage? The second and third inquiries are concerned with whether the differential treatment constitutes discrimination in the substantive sense intended by s. 15(1).

[45]      Iacobucci J. also commented on the purpose of subsection 15(1) and the manner in which a questioned action is to be assessed in light of that purpose. This was summed up by Madam Justice McLachlin, writing for the majority of the Supreme Court, in the recent decision in Winko v. British Columbia (Forensic Psychiatric Institute),[21] as follows:

The Charter’s equality guarantee forbids, among other things, laws or other government actions that treat an individual unequally on the basis of stereotypical group-based distinctions. Such actions are repugnant to our constitutional order because instead of treating an individual as equally deserving of concern, respect, and consideration, they disadvantage that individual arbitrarily and stereotypically.

The central purpose of the guarantee in s. 15(1) is to protect an individual’s right to be treated with dignity…. [Reference is then made to Iacobucci J.’s discussion of “human dignity” in Law.]

The effect of a law on the dignity of the claimant is to be assessed from the perspective of a “reasonable person, dispassionate, and fully apprised of the circumstances, possessed of similar attributes to, and under similar circumstances as the claimant”.

[46]      The basis of the differential treatment in light of section 15 arises from comparison of Sakimay’s treatment of Ms. Scrimbitt as a Bill C-31 Band member with its treatment of other Band members in similar circumstances except that they are accepted as members otherwise than by virtue of Bill C-31. Those latter members living on the reserve, as Ms. Scrimbitt does, are entitled, if qualified by age, to vote, but she is not.

[47]      That difference is said to be based upon the Band’s Bill C-31 policy, reflecting the policy position of other First Nations in Saskatchewan, it is said. But that source gives no special status to the policy, or to the individual decisions in Ms. Scrimbitt’s case, as apparently in others, to deprive her of the right to vote enjoyed by members other than those classed as Bill C-31 members.

[48]      That difference is also said to be based on Sakimay custom, in particular, a custom that is said to have withdrawn membership and voting rights from women who married persons other than Band members. As in the case of those subject to the former paragraph 12(1)(b), rights were lost only by women, not by men, marrying outside the Band. Custom is also said to require that one who was not a Band member, as Ms. Scrimbitt was not, by reason of the former paragraph 12(1)(b) of the Act, to apply for and be accepted by a vote of the Band before they could be considered as a member of the Band. At the hearing of this matter the latter custom was offered as the explanation for the applicant not qualifying to vote, since she had not applied to the Band for membership. That explanation ignores the fact that she was restored to membership pursuant to Bill C-31, and her application to be reinstated as a member was approved by DIAND before Sakimay gained control of its own membership under the Act.

[49]      Either of these explanations for precluding the applicant from voting, by application of the Band’s Bill C-31 policy, or by custom of the Band, and the decision in either case to preclude her voting at the polling booth, in my opinion, results in differential treatment within section 15 of the Charter.

[50]      Moreover, in either case that treatment is based on gender, marital status or her Bill C-31 status. Both of the latter are said to be grounds analogous to those set out in subsection 15(1). Others may be precluded from voting by a variety of reasons, but it is clear that she and those in circumstances similar to hers do not vote because they were once removed from membership and from voting rights by reason of their sex, i.e., they are women who married persons who were non-status Indians. Men did not suffer the same loss of rights by marrying non-status Indians or otherwise marrying outside the Band. Sakimay’s policy, it is said, applies to both male and female persons in the Bill C-31 group. Yet the males in that group are male children of women who lost their membership in the Band by reason of [the former] paragraph 12(1)(b) of the Act. All children of these women, male and female, were not Band members until enactment of Bill C-31, a status wholly dependant upon the mother’s gender, for children of a Band member father who married outside the Band did not lose their Band membership.

[51]      That group of women and their children, now within the class of Bill C-31 persons, were historically disadvantaged by reason of the former paragraph 12(1)(b), a circumstance that Bill C-31 was in part designed to redress.[22] In my opinion, that Bill was intended to remedy long-standing discriminatory treatment of Aboriginal women who married non-status Indians. Sakimay’s Bill C-31 policy reinstates that treatment and thwarts Parliament’s effort to remedy it.

[52]      I am satisfied that refusal of the right to vote as applied by Sakimay, to give effect to its Bill C-31 policy or to its claimed custom, discriminated against Ms. Scrimbitt and was based on sex and marital status, immutable characteristics, her gender and her prior marital status. Finally, I am satisfied that a reasonable person, dispassionate and fully apprised of the circumstances, and possessed of similar attitudes to the claimant’s, would recognize that refusing the right to vote in the circumstances of this case is an affront to the dignity of the claimant, for reasons discriminatory on grounds she could not control or change. In my opinion that refusal contravened subsection 15(1) of the Charter.

[53]      It is urged that differential treatment based on her Bill C-31 status was based on a ground analogous to those set out in subsection 15(1). I make no finding on that submission, since in my opinion it is unnecessary to do so in this case, having found that refusing the applicant the right to vote breached her rights under subsection 15(1) of the Charter by discriminating against her because of her gender and her marital status at an earlier date. She was denied equal protection and equal benefit of the law because of her sex and prior marital status.

[54]      Whether this discriminatory enforcement of policy or custom could be perceived as a reasonable limitation prescribed by law that is demonstrably justified in a free and democratic society, and thus acceptable in accord with section 1 of the Charter, is an issue I turn to after considering the applicant’s submission that denying her right to vote also infringed her right to liberty assured by section 7 of the Charter.

Section 7

[55]      Section 7 of the Charter provides that:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[56]      The applicant urges that Sakimay violated her right to liberty under section 7 by refusing to permit her to vote in the 1997 Band Council elections. While her liberty rights were not hindered in a physical sense, she claims that participating in the democratic process is an essential component of the right to liberty assured by section 7 and that Sakimay denying her that opportunity affected adversely her personal dignity. Ms. Scrimbitt submits that the denial was not in accordance with the principles of fundamental justice, since it was a violation of the Indian Act and resulted from a breach of the Sakimay Band Membership Code.

[57]      In considering whether her right to vote in a Sakimay Band Council elections is protected by section 7 of the Charter, the Court must look to the interpretation of that provision by the Supreme Court of Canada. In Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.),[23] Mr. Justice Lamer (as he then was) described the rights protected by section 7 as those that concern restrictions that result from an individual’s interaction with the justice system. The liberty interest protected by section 7 is concerned with protection from confinement of individuals against their will and from physical restrictions over their minds and bodies. That view of the scope of the section 7 liberty right was questioned by some other members of the Supreme Court of Canada in B. (R.) v. Children’s Aid Society of Metropolitan Toronto[24] where, on grounds of their religious beliefs, two parents disputed the administering of a blood transfusion to their child. In that case, Chief Justice Lamer repeated his opinion that an individual’s involvement with the justice system triggers his or her section 7 rights, which, he noted, are connected with the “physical dimension” of liberty. Mr. Justice La Forest, with whom three members of the Court concurred, urged a more expansive definition of “liberty”, stating at paragraph 80 [page 368] that it:

… does not mean mere freedom from physical restraint. In a free and democratic society, the individual must be left room for personal autonomy to live his or her own life and to make decisions that are of fundamental personal importance.

[58]      Later, in Godbout v. Longueuil (City),[25] La Forest J. further explained his concept of the liberty interest protected by section 7. In that case an individual was dismissed from her employment because she did not comply with a municipal resolution requiring municipal employees to live within city limits. Mr. Justice La Forest, with two other judges concurring, held that the employee’s section 7 liberty rights were violated, in that case, a determination avoided by the majority of the Supreme Court who determined the matter on other grounds. In that case La Forest J. described the concept of the liberty interest under section 7, in part as follows:

… the right to liberty enshrined in s. 7 of the Charter protects within its ambit the right to an irreducible sphere of personal autonomy wherein individuals may make inherently private choices free from state interferences . … I do not by any means regard this sphere of autonomy as being so wide as to encompass any and all decisions that individuals might make in conducting their affairs. … Rather, as I see it, the autonomy protected by the s. 7 right to liberty encompasses only those matters that can properly be characterized as fundamentally or inherently personal such that, by their very nature, they implicate basic choices going to the core of what it means to enjoy individual dignity and independence.

[59]      There is as yet no jurisprudence that clearly accepts the concept that the liberty interest protected by section 7 extends beyond the protection from physical restriction of an individual’s liberty. In a very recent decision[26] the Supreme Court has accepted that the interest in security of the person, also protected by section 7, extends beyond the criminal law context and may include the right of a parent to state-funded counsel in proceedings concerning custody of a child. For a minority of the Court,[27] the parents’ liberty interest under section 7 was also triggered in the circumstances of that case by the custody proceedings.

[60]      In Crow v. Blood Indian Band Council,[28] a band council declared a band councillor guilty of misconduct under a council election bylaw and he was removed from office. The councillor affected alleged the Council had infringed his section 7 liberty rights. After indicating that liberty rights may extend beyond the concept of physical liberty, Mr. Justice Heald said:

The plaintiff in the case at bar was removed from an elected office, pursuant to the Band’s Custom Election Bylaw. The plaintiff was also denied the opportunity to participate as a candidate in the next election. However, the plaintiff was not barred from participating in the election as an elector. Nor was the plaintiff prevented from pursuing his political ambitions in other political arenas. Therefore, I am of the view the plaintiff has failed to establish that the acts of the defendants have infringed upon his liberty as is protected by s. 7 of the Charter.

[61]      While one might infer from this decision that if voting privileges as an elector had been denied in that case, Heald D.J. would have concluded that section 7 interests in liberty were infringed, that was not there determined.

[62]      I am not persuaded that Sakimay has infringed Ms. Scrimbitt’s section 7 Charter rights. While evolving jurisprudence suggests a tendency to interpret the liberty interest protected by section 7 as broader than freedom from physical restraint, there is as yet no precedent for finding that section 7 protects the applicant’s right to vote in this case. I note again that I have found that right is protected under the Constitution by section 15 of the Charter.

[63]      If I am wrong in my conclusion on the scope of the liberty interest, and the applicant’s section 7 liberty right is here violated, I would agree that violation does not accord with the principles of fundamental justice. Action that violates the law enacted by Parliament and by the Sakimay Band, in the Indian Act, and the Band Membership Code adopted pursuant to that Act, does not accord with fundamental justice. Thus, if I am in error in considering the scope of the liberty interests protected by section 7, I would then agree that Sakimay has breached Ms. Scrimbitt’s section 7 rights.

Section 1

[64]      With reference to any breach of section 7 or subsection 15(1) of the Charter, it is necessary to determine whether the violation alleged is consistent with “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society, as provided by section 1 of the Charter. The Court must determine whether the violation is “prescribed by law”, and if it is, whether that is reasonable and demonstrably justified based on the analysis set out in The Queen v. Oakes .[29]

[65]      The applicant submits that refusing her right to vote based on Sakimay’s Bill C-31 policy is not prescribed by law. In R. v. Therens et al.[30] Mr. Justice Le Dain, dissenting on other grounds, wrote of section 1, in terms later endorsed, as follows:

The requirement that the limit be prescribed by law is chiefly concerned with the distinction between a limit imposed by law and one that is arbitrary. The limit will be prescribed by law within the meaning of s. 1 if it is expressly provided for by statute or regulation, or results by necessary implication from the terms of a statute or regulation or from its operating requirements. The limit may also result from the application of a common law rule.

[66]      In the case at bar, neither the Indian Act nor the Sakimay Band Membership Code adopted under the Act incorporates Sakimay’s Bill C-31 policy, and that policy, and the action in this case based upon it, are not prescribed by law in the sense defined by Le Dain J. Indeed, the Indian Act expressly precludes membership code provisions which would incorporate the Sakimay policy that contradicts Parliament’s intent and action in enacting Bill C-31. There are no Sakimay Band Council resolutions or minutes of meetings of Council decisions, at least none in evidence before the Court, which would authorize refusing the applicant’s right to vote.

[67]      It is said that Sakimay has simply adopted the policy of the Assembly of First Nations and the Federation of Saskatchewan Indian Nations. Those reported policies are not law, and moreover, there is no Band resolution or any other official notice of Sakimay adopting those policies, and there is no evidence of when Sakimay adopted the policy.

[68]      Counsel for Sakimay also suggested, in oral proceedings, that refusing Ms. Scrimbitt her membership rights was prescribed by law because doing so was a result of Sakimay custom. In my opinion, as I note below in considering section 35 of the Constitution Act, 1982, Sakimay has not led sufficient evidence to establish the custom claimed. If custom may be a basis for a limit prescribed by law within section 1 of the Charter, the claimed custom does not qualify as law in this case.

[69]      For Sakimay it is urged in written submissions and at the hearing that any infringement here complained of by the applicant was demonstrably justified under section 1 of the Charter by the concerns of the Band Council about housing and other services for a substantial number of additional Band members qualified by Bill C-31, in light of the limited resources available to the Council. I am not persuaded those economic concerns support a finding that section 1 would permit the infringement on Ms. Scrimbitt’s rights under subsection 15(1). The issue here concerns denial of the right to vote in a Band council election, not other rights of members of the Band and not the allocation of limited resources to support Band members.

[70]      In my opinion, the limitation on the applicant’s rights, i.e., the refusal of her right to vote in 1997 elections, was not prescribed by law. Whether the basis for it was, as claimed, the Band’s policy, the Band custom or the Band Council’s economic concerns, it is not an infringement permitted by section 1 of the Charter.

Aboriginal rights—subsection 35(1) of the Constitution Act, 1982, sections 25 and 28 of the Charter

[71]      Sakimay also claims that it has Aboriginal rights recognized by section 35, under Part II, of the Constitution Act, 1982 which, pursuant to section 25 of the Charter, are protected against the effects of any infringement of Charter rights or freedoms that those Aboriginal rights may entail. For the applicant it is urged that the evidence does not establish Aboriginal rights within section 35, but even if Aboriginal rights were established they would not prevail over rights assured by the Charter, for section 25 is subject to the application of section 28 in a case such as this where the activity complained of constitutes discrimination based on gender. Section 28, it is urged, assures that provisions of the Charter, including section 25, are subject to the equal guarantee of rights to male and female persons. Moreover, subsection 35(4) [of the Constitution Act, 1982] provides that Aboriginal rights are guaranteed equally to male and female persons. The provisions referred to by the parties are:

[Canadian Charter of Rights and Freedoms]

25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including

(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and

(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.

…

28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.

[Constitution Act, 1982]

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.

(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

[72]      The argument of Sakimay is based on the perception that the right here claimed is the right of the Band to control its membership. That right is said to be of central significance to the Sakimay people for its exercise defines the Sakimay people. It is urged that control exercised by application of the Band’s custom is an Aboriginal right within subsection 35(1). Even if that custom cannot be traced to the time prior to contact with settlers of European origin it is urged that a lesser time for a custom central to its being, and reflected in the existence of the people concerned, adequately establishes the right.

[73]      Thus, for Sakimay it is urged that the requirement of evidence set by the majority of the Supreme Court of Canada in R. v. Van der Peet[31] need not be met, rather the alternative standard set out by Madam Justice L’Heureux-Dubé in that case[32] is now more appropriate in this case. Here, the right at issue is that of a people who were originally nomadic, until buffalo herds no longer supported plains peoples. In the terms described by Madam Justice L’Heureux-Dubé, the right to control membership is a customary and traditional right of Sakimay, and it is “significant and fundamental to the culture and social organization of a particular group of aboriginal people”,[33] the Sakimay people.

[74]      My difficulties with this argument are twofold. First, the primary right here claimed by the applicant is the right to vote. The right to membership in the Band is a secondary issue because Sakimay essentially denies that Ms. Scrimbitt is a member of the Band, yet membership was assumed by the applicant, particularly in light of assurances by DIAND and by the Minister. Indeed, her membership in the Band on a continuing basis under Sakimay custom was conceded by one affiant, then the Band Chief, in cross-examination on his affidavit filed on behalf of the Band. Moreover, under the law enacted by Parliament, Bill C-31, she was readmitted as a member of the Band, and the Band’s statutory right to control its membership, which right it exercises even as it purports to exercise customary rights, precluded removal of her name from the list of members. The basis claimed for denial of her right to vote was that she was a Bill C-31 member of the Band.

[75]      In my opinion, the right primarily here in issue is not the right to membership. Her status as a Band member was settled by Bill C-31 and by her subsequent application to DIAND and the Department’s restoration of her status. No evidence of custom was before the Court whereby the Band might deny voting in Band Council elections by Band members living on the reserve. Thus, I am not persuaded that there was any Aboriginal right here established to deny the right to vote by a Band member.

[76]      Since I find the evidence inadequate to found an Aboriginal right pursuant to subsection 35(1), and because argument was limited in regard to the relationship of sections 25, 28 [of the Charter] and section 35 of the Constitution Act, 1982, it would be inappropriate to resolve the argument between the parties on the effect of that relationship. Interpretation of those sections in light of their interrelationship is left to be determined in a case that clearly raises the issue. In deferring resolution of that matter to another case, I follow the path of the Supreme Court of Canada in Corbiere.[34]

[77]      I sum up the result of my conclusions on the Charter arguments here raised. In my opinion, the denial of the applicant’s right to vote in the Band Council election in 1997 violated Ms. Scrimbitt’s right to equal protection and equal benefit of the law assured by subsection 15(1) of the Charter. That denial is not one protected by any limit prescribed by law and it is thus not a permissible limit under section 1 on her rights. Finally, those rights, in my opinion, are not subject to any conflicting Aboriginal rights under subsection 35(1) of the Constitution Act, 1982, for such conflicting rights are not established by the evidence before me.

Remedies

[78]      Remedies claimed by the applicant in her originating notice of motion include some not available in this Court, ordinarily or at all. The remedies originally sought were later modified in an amended originating notice of motion, and by the order[35] of Rothstein J. narrowing the scope of this proceeding. Those claims were again modified by the applicant’s written and oral submissions at the hearing of this matter. I deal with those claims for relief, as finally defined at the hearing, in summary, as follows:

(i) The applicant’s claim to certiorari quashing the 1997 decision of Sakimay denying the applicant’s right to vote is dismissed, since in my view the issue is moot for the relief sought cannot at this stage provide any redress.

(ii) The applicant’s claim to a declaration that Sakimay’s Bill C-31 policy is ultra vires in that it violates sections 7 and 15 of the Charter, sections 6, 10 and 77 of the Indian Act and Council’s fiduciary duties is allowed in part, by order now issued, that denial of the applicant’s rights as a member of the Sakimay Band, in particular the right to vote in the Band Council elections in 1997, because of her standing as a Bill C-31 member of the Band, was contrary to section 77 of the Indian Act, and to the Sakimay Band Membership Code adopted under the Act, and it infringed on her rights secured by subsection 15(1) of the Charter which infringement is not saved by section 1 and which rights are not affected by any claim raised under subsection 35(1) of the Constitution Act, 1982.

(iii) The applicant’s request for mandamus to compel Sakimay to return the applicant’s name to the Band List to be effective from the date her name was removed, is allowed in part. It is clear that the applicant’s name was on the Band List at the time the Band assumed responsibility for maintaining the Band’s List of members. The Band’s authority to remove her name from the List simply because of her status as a Bill C-31 person, was prescribed by section 10 of the Indian Act as enacted by Bill C-31 was agreed between the parties that at the time this matter was heard her name was not on the Band membership List. If her name is not now on the List, the Band is directed to add her name to the List to be effective from the date the Band assumed responsibility for its own membership and the List of its members.

(iv) The applicant’s claim to mandamus to compel the Sakimay Band Council to enter her name on the Band voter’s list for the 1999 elections and all future Band council elections is allowed in part. Since I understand the 1999 elections have been completed no order issues with specific reference to the list of voters for these elections. So long as Ms. Scrimbitt continues as a member of the Band she is entitled under section 77 of the Indian Act, as it applies to other Band members, to vote in future elections and she shall not be deprived of the right to vote except as all other members are. The order now issued provides for this.

[79]      Costs are sought by the applicant, on a solicitor and client basis, or in accord with Column V of the Court’s Tariff of fees under its Rules [Federal Court Rules, 1998, SOR/98-106]. In my opinion, this is not a case for solicitor/client costs. The issues here raised have been pursued by the parties in lengthy processes in the Saskatchewan Court and in this Court, here initially as an action and more recently as an application for judicial review. Of course, it is only the costs in regard to this proceeding for judicial review that are now subject to consideration. In this proceeding there have not been unnecessary or erroneous actions by the respondent Sakimay that would support an award of solicitor and client costs.[36]

[80]      Costs ordinarily follow the outcome of judicial review or trial proceedings. The applicant was generally successful in regard to certain relief sought and modified when this matter was heard. I am persuaded that the applicant’s costs were higher than in the usual judicial review proceeding because the basis of the respondent’s refusal to permit Ms. Scrimbitt to vote was uncertain, and it was varied from time to time. First, it was based on Sakimay’s own Bill C-31 policy, then on the policy of other regional and national organizations, then on claims of Sakimay custom, then because she was not included on the membership list of the Band, a basis only abandoned at the hearing, and finally the ground relied upon at the hearing was that she had not applied and been accepted as a member by vote of the Band in accord with Sakimay custom. Preparing to deal with these various bases claimed by Sakimay for its action, is said by counsel for the applicant to have significantly exceeded normal preparation time. I accept that. I would award costs to the applicant on the scale set by Column IV and allowing for two of counsel so far as two were involved in relation to cross-examination of Sakimay’s affiants, to preparation of the applicant’s memorandum of fact and law, and to the hearing of the application. The parties may agree on costs reflecting those considerations or the costs may be taxed on application of either party.

Conclusion

[81]      An order goes allowing the application for judicial review in part, as outlined above in relation to certain forms of relief sought, with costs to the applicant as also set out above.

[82]      That order also provides that the style of cause in this proceeding shall be as set out at the commencement of the order and of these reasons, in accord with the order of Mr. Justice Rothstein, dated December 2, 1998, which provided that “the Minister of Indian Affairs and Northern Development is deleted as a respondent in this Court file “.

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