Date: 20031210
Docket: A-630-02
Citation: 2003 FCA 473
CORAM: STONE J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant (Respondent)
and
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
Heard at Toronto, Ontario, November 24 and 25, 2003.
Judgment delivered at Ottawa, Ontario, December 10, 2003.
REASONS FOR JUDGMENT BY: ROTHSTEIN J.A.
CONCURRED IN BY: STONE J.A.
SHARLOW J.A.
Date: 20031210
Docket: A-630-02
Citation: 2003 FCA 473
CORAM: STONE J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant (Respondent)
and
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
REASONS FOR JUDGMENT
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.
[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 (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 skill 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 twenty 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 (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
Constitution Act, 1982
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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. |
1. La Charte canadienne des droits et libertés garantit les droits et libertés qui y sont énoncés. Ils ne peuvent être restreints que par une règle de droit, dans des limites qui soient raisonnables et dont la justification puisse se démontrer dans le cadre d'une société libre et démocratique. |
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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. |
15. (1) La loi ne fait acception de personne et s'applique également à tous, et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment de toute discrimination, notamment des discriminations fondées sur la race, l'origine nationale ou ethnique, la couleur, la religion, le sexe, l'âge ou les déficiences mentales ou physiques. |
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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. |
24. (1) Toute personne, victime de violation ou de négation des droits ou libertés qui lui sont garantis par la présente charte, peut s'adresser à un tribunal compétent pour obtenir la réparation que le tribunal estime convenable et juste eu égard aux circonstances. |
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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. |
52. (1) La Constitution du Canada est la loi suprême du Canada; elle rend inopérantes les dispositions incompatibles de toute autre règle de droit. |
Federal Courts Act
|
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. |
57. (1) Les lois fédérales ou provinciales ou leurs textes d'application, dont la validité, l'applicabilité ou l'effet, sur le plan constitutionnel, est en cause devant la Cour ou un office fédéral, sauf s'il s'agit d'un tribunal militaire au sens de la Loi sur la défense nationale, ne peuvent être déclarés invalides, inapplicables ou sans effet, à moins que le procureur général du Canada et ceux des provinces n'aient été avisés conformément au paragraphe (2).
(2) L'avis est, sauf ordonnance contraire de la Cour ou de l'office fédéral en cause, signifié au moins dix jours avant la date à laquelle la question constitutionnelle qui en fait l'objet doit être débattue. |
Indian Act
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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; |
2. (1) Les définitions qui suivent s'appliquent à la présente loi. ... « bande » Groupe d'Indiens, selon le cas_: a) à l'usage et au profit communs desquels des terres appartenant à Sa Majesté ont été mises de côté avant ou après le 4 septembre 1951; b) à l'usage et au profit communs desquels, Sa Majesté détient des sommes d'argent; c) que le gouverneur en conseil a déclaré être une bande pour l'application de la présente loi. ... « Indien » Personne qui, conformément à la présente loi, est inscrite à titre d'Indien ou a droit de l'être. ... « inscrit » Inscrit comme Indien dans le registre des Indiens. ... « registre des Indiens » Le registre de personnes tenu en vertu de l'article 5. |
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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. |
5. (1) Est tenu au ministère un registre des Indiens où est consigné le nom de chaque personne ayant le droit d'être inscrite comme Indien en vertu de la présente loi. |
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 SCC 33. 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 (paras. 8-9) while questions of fact and inferences of fact are reviewed on a palpable and overriding error basis (paras. 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 (paras. 26-28).
[15] Although Housen dealt with appeals from a decision in an action, in Dr. Q. v. College of Physicians and Surgeons of B.C., 2003 SCC 19 at para. 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 at paras. 7-8; R. v. Coates, [2003] O.J. No. 2295 at para. 20 (C.A.)). 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 Mizwe 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.
[6] 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.
[7] 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.
[8] 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
[9] 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 531-32).
[10] 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 AHRDA's, 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.
[11] 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
[12] 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.
[13] 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.
[14] 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.
[15] 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.
[16] 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
[17] 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.
[18] 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 Corbière 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" (page 220).
[19] McLachlin J. (as she then was) and Bastarache J., writing for the majority in Corbière, made it clear that once an analogous ground has been identified, it is a "constant marker of potential legislative discrimination" for all future cases (page 218).
[20] 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.
[21] HRDC did argue that, based on the Chippewas case (Chippewas of Nawash First Nation v. Canada (Minister of Fisheries and Oceans), 2002 FCA 485 at para. 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
[22] 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.
[23] 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.
[24] Lemieux J. drew on Corbière, 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
[25] 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 R. v. Oakes, [1986] 1 S.C.R. 103 have been met.
[26] 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.
[27] 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
[28] 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.
[29] 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."
[30] 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. B.C., [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.
[31] In its factum, HRDC relied on the Nova Scotia Court of Appeal decision in Doucet-Boudreau v. Nova Scotia (2001), 194 N.S.R. (2d) 323, 2001 NSCA 104, 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. N.S. (Minister of Education), 2003 SCC 62. 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.
[32] 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 "reviewing 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 "it is difficult to imagine language which could give the court a wider and less fettered discretion" (paragraph 52).
[33] The Court set out five general principles 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, [the] 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.
Fifth, ... the judicial approach to remedies must remain flexible and responsive to the needs of a given case (paragraphs 55-59).
[34] 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.
[35] 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).
[36] 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 subsection 24(1); rather, it says, a remedy should have been awarded under subsection 52(1). The thrust of its argument is that the Appropriations Act No. 3, 1999-2000, S.C. 1999, c. 36, gave effect to AHRDS by incorporating by reference:
1. Government of Canada, Supplementary Estimates (A), 1999-2000 for the Fiscal Year ending March 31, 2000.
2. Human Resources Development Canada, 1999-2000 Estimates - Part III - Report on Plans and Priorities.
3. Human Resources Development Canada, Performance Report 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.
[37] While CAP did not suggest that the entire Appropriations 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 Courts Act, R.S.C. 1985, c. F-7. However, it argued that, regardless of procedural requirements, the Appropriations Act could not be allowed to stand if it was unconstitutional.
[38] 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 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
[39] 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.
[40] For these reasons, this appeal should be dismissed with costs.
"Marshall Rothstein"
J.A.
"I agree A.J. Stone J.A."
"I agree K. Sharlow J.A."
Appendix
Abbreviations Used in this Decision
ACW Aboriginal Council of Winnipeg
AHRDA Aboriginal Human Resources Development Agreement
AHRDS Aboriginal Human Resources Development 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 Management Board
OFIFC Ontario Federation of Indian Friendship Centres
Pathways Pathways to Success Program
RFP Request for Proposal
WAMB Winnipeg Area Management Board
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET : A-630-02
STYLE OF CAUSE : THE ATTORNEY GENERAL OF CANADA
Appellant
and
ROGER MISQUADIS ET AL.
Respondents
and
CONGRESS OF ABORIGINAL PEOPLES
Intervener
PLACE OF HEARING : TORONTO, ONTARIO
DATES OF HEARING : NOVEMBER 24 and 25, 2003
REASONS FOR JUDGMENT: ROTHSTEIN J.A.
CONCURRED IN BY: STONE J.A.
SHARLOW J.A.
DATED: DECEMBER 10, 2003
APPEARANCES :
Ms. Urszula Kaczmarczyk
Ms. Gail Sinclair
Mr. Michael Morris FOR THE APPELLANT
Mr. Greg Tramley FOR THE RESPONDENT, DARWIN LEWIS AND THE ABORIGINAL COUNCIL OF WINNIPEG INC.
Mr. Christopher Reid FOR THE RESPONDENT, 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
Mr. Joseph Magnet
Mr. Mahmud Jamal
Mr. Vaso Maric FOR THE INTERVENER
SOLICITORS OF RECORD :
Morris Rosenberg
Deputy Attorney General of Canada FOR THE APPELLANT
McCandles and Associates
Winnipeg, Manitoba FOR THE RESPONDENT, DARWIN LEWIS AND THE ABORIGINAL COUNCIL OF WINNIPEG INC.
Christopher Reid
Barrister and Solicitor
Toronto, Ontario FOR THE RESPONDENT, 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 LLP
Toronto, Ontario
Joseph E. Magnet
Ottawa, Ontario
FOR THE INTERVENER