A-524-92
Native Women's Association of Canada, Gail
Stacey-Moore and Sharon McIvor (Appellants)
v.
Her Majesty the Queen (Respondent)
and
The Native Council of Canada, The Métis
National Council and The Inuit Tapirisat of
Canada (Intervenants)
INDEXED AS: NATIVE WOMEN'S ASSN. OF CANADA V. CANADA
(CA.)
Court of Appeal, Mahoney and Stone JJ.A. and Gray
D.J.—Toronto, June 11; Ottawa, August 20, 1992.
Constitutional law — Charter of Rights — Fundamental
freedoms — Appeal from dismissal of application to prohibit
Government of Canada from making further payments to
aboriginal organizations until equal funding and opportunity
to participate in constitutional review process provided to
Native Women's Association of Canada — Federal government
allocating $10 million to aboriginal groups, some of which
opposed to application of Charter to aboriginal self-govern
ment and to gender equality — NWAC representing aboriginal
women likely to suffer loss of rights if position taken by Assem
bly of First Nations (AFN) prevails — NWAC receiving 5% of
amount provided to intervenants and AFN — Funding so dis
parate as to be prima facie inadequate to accord NWAC equal
freedom of expression — Restriction of freedom of expression
of aboriginal women contrary to Charter, s.c. 2(b) and 28.
Constitutional law — Charter of Rights — Equality rights —
Threat of loss of equality for native women if aboriginal self-
governments unbounded by Charter created not present denial
of right under Charter, s. 15 — By inviting and funding partic
ipation in constitutional review process of aboriginal organiza
tions advocating male-dominated self-government, while
excluding participation by Native Women's Association of
Canada, Canadian government giving former priority in exer
cise of expressive activity, freedom of which guaranteed to
both sexes under .s. 28.
Constitutional law — Constitutional conferences — Aborigi
nal peoples — Right of aboriginal peoples to participate in
constitutional review process in manner different from other
Canadians derives from Constitution Act, 1982, ss. 37, 37.1
provisions regarding constitutional conferences, not from
"existing aboriginal and treaty rights" recognized and
affirmed by s. 35(1) — Issue of right of aboriginal women to
participate equally with aboriginal men not arising under s.
35(4).
Judicial review — Prerogative writs — Prohibition — Appli
cation for prohibition to prevent Government of Canada from
providing further constitutional review process participation
funding to certain aboriginal organizations until equal funding
and opportunity to participate in process provided to Native
Women's Association of Canada — Inappropriate remedy —
Evidence not establishing equal funding necessary to accord
aboriginal women equal measure of freedom of expression —
Appellants not establishing basis for depriving other aborigi
nal organizations of funding — But declaration granted that
freedom of expression and s. 28 guarantee of equality
infringed.
Federal Court jurisdiction — Government inviting and fund
ing participation of advocates of one position in constitutional
review process, and excluding participation by opponent — No
evidence decision to fund made by other than authorized ema
nation of federal government — Likely made by federal board,
commission or other tribunal — Expenditure of funds must be
authorized by Act of Parliament — Decision subject to s. 18
If invitation to join in process not authorized by Act or regula
tion, must have been exercise of Crown prerogative — Act
requires declaratory relief in respect of decision of federal
board be sought by application under s. 18 — Court not inter
fering in legislative process if grants remedy — Constitutional
amendment process had not begun when Charter violation
occurred — Floodgates argument should not prevail when con
stitutionally guaranteed right infringed — Cause of action only
if constitutional foundation for grievance by reason of favour
shown by government demonstrated.
This was an appeal from the dismissal of an application for
an order prohibiting the Government of Canada from making
any further payments to certain designated aboriginal organi
zations until it has provided to the Native Women's Associa
tion of Canada (NWAC) equal funding and an equal right of
participation in the constitutional review process, including
participation in First Ministers' Conferences.
The federal government had decided that a process parallel
to that of the Parliamentary Committee considering and mak
ing recommendations on proposals for a renewed Canada,
including an amendment to the Constitution to entrench a right
to aboriginal self-government, should take place among the
aboriginal peoples. To that end it provided some $10,000,000
to certain designated aboriginal organizations, a portion of
which was earmarked for the study of women's issues. Includ
ing donations from the Assembly of First Nations (AFN) and
the Native Council of Canada (NCC) from their grants, and
further funding from the Secretary of State, NWAC received
about 5% of what had been provided to each of the four other
aboriginal organizations.
The AFN has actively resisted the struggle of native women
to rid the Indian Act of gender inequality. Largely due to the
AFN's opposition to the application of the Charter to aborigi
nal self-government, the appellants became concerned that a
constitutional resolution might be agreed upon that did not pro
vide for application of the Charter to aboriginal self-govern
ments. They are concerned that the Government of Canada is
funding advocacy for a point of view that will, if successful,
see the removal from aboriginal women of their rights under
the Charter. The intervenants do not speak for the women of
the First Nations whose interests are likely to be injured if the
AFN's position prevails; NWAC represents those women.
The appellants allege (I) breach of their right to freedom of
expression guaranteed by Charter, paragraph 2(b), which must
be read together with section 28 which provides that the rights
and freedoms referred to in the Charter are guaranteed equally
to male and female persons; (2) breach of the equality rights of
the individual appellants and of individuals represented by
NWAC guaranteed by section 15; and (3) breach of Constitu
tion Act, 1982, section 35 rights recognizing and affirming
aboriginal and treaty rights and guaranteeing them equally to
male and female persons. The respondent submitted that the
constitutional review process was part of the legislative pro
cess in which the court ought not interfere, and that the deci
sion to invite and fund participation of the designated aborigi
nal organizations was not the decision of a "federal board,
commission or other tribunal" so as to render it amenable to
the supervisory jurisdiction of the Court under section 18 of
the Federal Court Act. The definition of "federal board, com
mission or other tribunal" was amended February 1, 1992 to
include any body or persons exercising powers conferred by or
under an order made pursuant to a prerogative of the Crown.
The respondent also raised a "floodgates" argument in respect
of any finding of a paragraph 2(b) violation. The issues were
(1) whether the Government of Canada has breached the con
stitutional rights of the appellants by funding the designated
aboriginal organizations and permitting their participation in
constitutional discussions without providing NWAC equal
funding and opportunity to participate; (2) whether relief in
respect of that violation is available in a proceeding under Fed
eral Court Act, section 18; (3) whether the violation occurred
in a legislative process in which the Court ought not interfere.
Held, the appeal should be allowed.
Measured against the norms of Canadian society as a whole,
it is in the interests of aboriginal women that, if they become
the subjects of aboriginal self-governments, they continue to
enjoy the protection of the Charter, particularly the rights and
freedoms accorded them by sections 15 and 28, or by
equivalent provisions equally entrenched in aboriginal char
ters. Those interests are not represented by AFN, which advo
cates a contrary result, nor by the ambivalence of NCC and
ITC. By inviting and funding the participation of those organi
zations in the current constitutional review process and exclud
ing the equal participation of NWAC, the Canadian govern
ment has accorded the advocates of male-dominated aboriginal
self-governments a preferred position in the exercise of an
expressive activity, the freedom of which is guaranteed to
everyone by paragraph 2(b) and which is, by section 28, guar
anteed equally to men and women. It has thereby taken action
which has had the effect of restricting the freedom of expres
sion of aboriginal women in a manner offensive to paragraph
2(b) and section 28 of the Charter. Although equal funding to
NWAC may not be necessary to achieve the equality required
by section 28, the funding actually provided was so disparate
as to be prima . facie inadequate to accord the NWAC the equal
freedom of expression mandated by the Charter.
The right of aboriginal peoples to participate in the constitu
tional review process in a manner different from other Canadi-
ans derives from sections 37 and 37.1 of the Constitution Act,
/982, not from any "existing aboriginal and treaty rights" rec
ognized and affirmed by subsection 35(1) and therefore any
right of aboriginal women to participate equally with aborigi
nal men does not arise under subsection 35(4).
The threat of the loss of equality if aboriginal self-govern
ments, unbounded by the Charter, are created is not a present
denial of a right under section 15. It is a "merely hypothetical
consequence" which does not provide a basis for the Court to
interfere in the current constitutional review process. The law
does not accord any individual the right to be present at consti
tutional conferences nor the right to public funding to develop
and communicate a constitutional position.
Relief in respect of the violation of the appellants' rights is
available in a section 18 proceeding. There was no evidence
that the decision to invite the designated aboriginal organiza
tions to engage in a process parallel to that of the Parliamen
tary Committee was not made by an authorized emanation of
the federal government alone and it is unlikely, if not legally
impossible, that the decision to allocate federal funding was
made by any but a federal board, commission or other tribunal.
The expenditure of funds must have been authorized by Act of
Parliament. If the invitation to join in the process was not
authorized by Act or regulation, it must have been an exercise
of Crown prerogative. Finally, the Act requires that declaratory
relief in respect of a decision of a federal board, commission or
other tribunal be sought by application under section 18.
The Court would not be interfering in a legislative process if
it grants an appropriate remedy. Case law has established that
the legislative process of amending the Constitution begins not
later than when first ministers are convened to agree upon a
constitutional resolution they will put to their legislatures.
Accordingly, the amending process had not begun when the
Charter violation occurred. It has also been established that the
formulation of a constitutional resolution is part of the legisla
tive process of amendment with which the courts will not inter
fere except, possibly, where a Charter-guaranteed right may be
affected. Publishing proposals, committing them to public
review by a parliamentary committee and initiating a parallel
process among the aboriginal peoples are integral to policy
development, not implementation.
A decision to fund will be made on the basis of need to per
mit effective and informed expression by an otherwise handi
capped and particularly concerned interest group. A proper
decision to fund one group, but not another should be justifia
ble under Charter, section I. The floodgates argument is one of
administrative convenience which ought not prevail when a
constitutionally guaranteed right or freedom has been proved
to have been infringed. Only one who can show a constitu
tional foundation for a grievance by reason of the favour
shown by the government to another will be able to obtain the
assistance of the courts.
Prohibition is not an appropriate remedy. The evidence does
not permit a judicial conclusion that equal funding is necessary
to accord aboriginal women the equal measure of freedom of
expression guaranteed them by Charter, section 28. The appro
priate quantum of funding should be determined by the execu
tive, conscious of the need to accord that equality. Further
more, the appellants did not establish a basis for depriving the
designated aboriginal organizations of their funding. Finally,
the constitutional review process has moved beyond consulta
tion. The Court can and would declare that by including an
organization, such as AFN, proved to be adverse in interest to
aboriginal women as measured against the norms of Canadian
society, while excluding NWAC, an organization that speaks
for their interest, in a constitutional review process intended to
assist it in deciding the content of a constitutional resolution
affecting aboriginal rights to be put to Parliament, the federal
government has restricted the freedom of expression of aborig
inal women in a manner offensive to paragraph 2(b) and sec
tion 28 of the Charter.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
An Act respecting the process for determining the political
and constitutional future of Québec, S.Q. 1991, c. 34.
Appropriation Act No. 3, 1991-92, S.C. 1991, c. 53.
Appropriation Act No. 4, 1991-92, S.C. 1992, c. 7.
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, 2(b), 15, 28.
Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44],
ss. 35(1), (4) (as enacted by Constitution Amendment
Proclamation, 1983, S1/84-102, Schedule, s. 2) [R.S.C.,
1985, Appendix II, No. 46], 37, 37.1 (as am. idem,
s. 4).
Federal Court Act, R.S.C., 1985, c. F-7, ss. 2 (as am. by
S.C. 1990, c. 8, s. 1), 18 (as am. idem, s. 4).
Indian Act, R.S.C., 1985, c. I-5, s. 12(1)(b).
CASES JUDICIALLY CONSIDERED
APPLIED:
Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1
S.C.R. 927; (1989), 58 D.L.R. (4th) 577; 25 C.P.R. (3d)
417; 94 N.R. 167; Reference re Canada Assistance Plan
(B.C.), [1991] 2 S.C.R. 525; (1991), 83 D.L.R. (4th) 297;
[1991] 6 W.W.R. 1; 58 B.C.L.R. (2d) 1; 1 Admin. L.R.
(2d) 1; 127 N.R. 161; Penikett v. Canada (1987), 45
D.L.R. (4th) 108; [1988] 2 W.W.R. 481; 21 B.C.L.R. (2d)
1; [1988] N.W.T.R. 18; 2 Y.R. 314 (Y.T.C.A.); leave to
appeal to S.C.C. refused [1988] 1 S.C.R. xii; (1988), 46
D.L.R. (4th) vi; 27 B.C.L.R. (2d) xxxv; 3 Y.R. 159.
CONSIDERED:
Edmonton Journal v. Alberta (Attorney General), [1989]
2 S.C.R. 1326; (1989), 103 A.R. 321; 64 D.L.R. (4th)
577; [1990] 1 W.W.R. 577; 71 Alta. L.R. (2d) 273; 45
C.R.R. 1; 102 N.R. 321; Re: A Complaint by Gene Keyes
against Pandora Publishing Association, decision dated
March 17, 1992, N.S.H.R.Trib., not yet reported.
REFERRED TO:
Sethi v. Canada (Minister of Employment and Immigra
tion), [1988] 2 F.C. 552; (1988), 52 D.L.R. (4th) 681; 31
Admin. L.R. 123; 22 F.T.R. 80; 87 N.R. 389 (C.A.);
Operation Dismantle Inc. et al. v. The Queen et al.,
[1985] 1 S.C.R. 441; (1985), 18 D.L.R. (4th) 481; 12
Admin. L.R. 16; 13 C.R.R. 287; 59 N.R. 1; Borowski v.
Canada (Attorney General), [1989] I S.C.R. 342; (1989),
57 D.L.R. (4th) 231; [1989] 3 W.W.R. 97; 75 Sask. R. 82;
47 C.C.C. (3d) 1; 33 C.P.C. (2d) 105; 38 C.R.R. 232; 92
N.R. 110; Schachter v. Canada, Doc. 21889, judgment
dated 9/7/92, S.C.C., not yet reported; Martineau et al. v.
Matsqui Institution Inmate Disciplinary Board, [1978] 1
S.C.R. 118; (1977), 74 D.L.R. (3d) 1; 33 C.C.C. (2d) 366;
14 N.R. 285; Singh et al. v. Minister of Employment and
Immigration, [1985] 1 S.C.R. 177; (1985), 17 D.L.R.
(4th) 422; 12 Admin. L.R. 137; 14 C.R.R. 13; 58 N.R. 1.
AUTHORS CITED
Canada. Shaping Canada's Future Together—Proposals,
Minister of Supply and Services Canada, 1991.
APPEAL from dismissal ([1992] 2 F.C. 462
(T.D.)) of an application for an order prohibiting the
Government of Canada from making any further pay
ments to certain aboriginal organizations until it had
provided to the NWAC equal funding and an equal
right of participation in the constitutional review pro
cess. Appeal allowed.
COUNSEL:
Mary Eberts for appellants.
Graham Garton, Q.C. for respondent.
John D. Richard, Q.C. for intervenant The Métis
National Council.
Dougald E. Brown for intervenant The Inuit
Tapirisat of Canada.
Martin W. Mason for intervenant The Native
Council of Canada.
SOLICITORS:
Tory Tory DesLauriers & Binnington, Toronto,
for appellants.
Deputy Attorney General of Canada for respon
dent.
Lang, Michener, Honeywell, Wotherspoon,
Ottawa, for intervenant The Métis National
Council.
Nelligan/Power, Ottawa, for intervenant The
Inuit Tapirisat of Canada.
Cowling, Strathy & Henderson, Ottawa for
intervenant The Native Council of Canada.
The following are the reasons for judgment ren
dered in English by
MAHONEY J.A.: This is an appeal from the dismissal
[[19921 2 F.C. 462 (T.D.)], with costs if asked for, of
the appellants' application for an order prohibiting
the Government of Canada from making any further
payments to the Assembly of First Nations, the
Native Council of Canada, the Métis National Coun
cil and the Inuit Tapirisat of Canada, hereinafter col
lectively "the designated aboriginal organizations",
until (1) it has provided equal funding to the appel-
lant, the Native Women's Association of Canada,
hereinafter "NWAC", and (2) it has provided NWAC
an equal right of participation in the constitutional
review process as the said organizations including
participation in First Ministers' Conferences to dis
cuss constitutional renewal. As I appreciate their
argument, the appellants are primarily concerned
with participation in the process; their concern with
financing is directed to rendering that participation as
informed and effective as that of the designated
aboriginal organizations.
The Appellants
The individual appellants, Gail Stacey-Moore and
Sharon McIvor, are respectively a Mohawk of
Kahnawake, Quebec, and a member of the Lower
Nicola Band of British Columbia. Both are executive
members of NWAC. There is ample evidence which
need not be reviewed that they individually, and
native women as a class, remain doubly disadvan
taged in Canadian society by reason of both race and
sex and disadvantaged in at least some aboriginal
societies by reason of sex. The uncontradicted evi
dence is that they are also seriously disadvantaged by
reason of sex within the segment of aboriginal soci
ety residing on or claiming the right to reside on
Indian reservations.
NWAC is a non-profit organization, incorporated
in 1974. Its Board of Directors is comprised of mem
bers from all provinces and territories. The evidence
establishes that it is a grassroots organization
founded and led by aboriginal women, at least Métis
and both status and non-status Indian women. While I
find nothing that would indicate that Inuit women are
unwelcome, I find no evidence of their participation.
Among its objectives is to be the national voice for
native women, to advance their issues and concerns
and to assist and promote common goals toward
native self-determination. The record is replete with
evidence of NWAC's activities in pursuit of those
objectives including the publication of reports and
position papers and appearances before judicial
inquiries and Parliamentary committees. NWAC is a
bona fide, established and recognized national voice
of and for aboriginal women.
The Current Constitutional Review Process
In June, 1991, the Quebec legislature enacted a law
requiring the provincial government to hold a refer
endum on the sovereignty of Quebec between either
June 8 and 22 or October 12 and 26, 1992. 1 Shortly
before that law came into force, the Canadian gov
ernment caused the appointment of a Special Joint
Committee of the Senate and House of Commons "to
inquire into and make recommendations to Parlia
ment on ... proposals for a renewed Canada con
tained in the documents to be referred to it by the
Government." Among its 28 proposals was the fol
lowing:
The Government of Canada proposes an amendment to the
Constitution to entrench a general justiciable right to aborigi
nal self-government in order to recognize aboriginal peoples'
autonomy over their own affairs within the Canadian federa
tion .... [S]uch a right ... would be exercised within the
Canadian constitutional framework, subject to the Canadian
Charter of Rights and Freedoms. 2
While the Parliamentary Committee went about its
work, the federal government appears to have
decided or agreed that a parallel process should take
place among the aboriginal peoples. As a result it
provided funding to the designated aboriginal organi
zations. They had been involved in the constitutional
conferences convened in 1983, 1984, 1985 and 1987
pursuant to sections 37 and 37.1 of the Constitution
Act, 1982 [Schedule B, Canada Act 1982, 1982, c. 11
(U.K.) [R.S.C., 1985, Appendix II, No. 44] (as am.
by Constitution Amendment Proclamation, /983,
SI/84-102, Schedule, s. 4) [R.S.C., 1985, Appendix
1 [An Act respecting the process for determining the political
and constitutional future of Québec] S.Q. 1991, c. 34.
2 Shaping Canada's Future Together—Proposals, at p. 7
A.B. Ill, at p. 414.
II, No. 4611, 3 which expressly required inclusion of
an agenda item "respecting constitutional matters that
directly affect the aboriginal peoples of Canada" and
that "the Prime Minister of Canada shall invite repre
sentatives of those peoples to participate in the dis
cussion on that item."
It is common knowledge that the process has now
moved beyond the Parliamentary Committee stage.
When this appeal was heard, federal, provincial and
territorial ministers, excluding representation from
Quebec, but with representation from the designated
aboriginal organizations at some, at least, of their
meetings, were engaged in designing a constitutional
proposal to be put to Quebec. The process has since
moved to closed meetings of First Ministers, includ
ing the Premier of Quebec, but excluding representa
tives of the territories and aboriginal peoples.
The Contribution Agreements
Some $10,000,000 is said to have been allocated
among the designated aboriginal organizations. A
portion of the funds advanced was specifically
earmarked for the study of women's issues. The
Assembly of First Nations and the Native Council of
Canada each allocated $130,000 of its grant to
NWAC and a further grant by the Secretary of State
brought the total funding provided to NWAC to about
5% of what had been provided to each of the four
organizations under the Contribution Agreements.
The Contribution Agreements are not in evidence.
They were entered into under the Aboriginal Consti
tutional Review Program of the Department of the
Secretary of State. Parliamentary authorization for
the expenditures are apparently to be found in items
for that Department in Appropriation Acts Nos. 3 and
4, 1991-92. 4 The purpose for which the funds are to
be expended has, it seems, not been defined by Act of
Parliament or regulation.
3 In the event, these required that constitutional conferences,
composed of first ministers, be held within one, three and five
years after April 17, 1982.
4 Appropriation Act No. 3, 1991-92, S.C. 1991, c. 53 and
Appropriation Act. No 4, /99/-92, S.C. 1992, c. 7.
The Appellants' Concerns
In the course of the process paralleling the work of
the Parliamentary Committee, which included discus
sions between the designated aboriginal organiza
tions and the federal government as well as among
themselves, the appellants became concerned that a
constitutional resolution might be agreed upon that
did not provide for application of the Charter [Cana-
dian 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]] to aboriginal self-governments. NWAC
asked for equal funding and participation. The federal
government's response was that it wished aboriginal
women's concerns to be dealt with within the aborig
inal community itself and that, to that end, the Con
tribution Agreements had required the designated
aboriginal organizations to spend a portion of the
funding on women's issues.
The basis of concerns of NWAC and aboriginal
women is eloquently stated in the affidavit of Ms.
Stacey-Moore.
86. The exclusion of NWAC from direct funding for constitu
tional matters and from direct participation in constitutional
discussions poses a grave threat to the equality of Aboriginal
women. The [Assembly of First Nations], in particular is
strongly of the view that the Canadian Charter of Rights and
Freedoms should not apply to Aboriginal self-governments.
Without the Charter, Aboriginal women will be helpless to
resist the discriminatory actions of Band Councils, or any other
form of self-government to be developed. This is because the
Canadian Human Rights Act does not apply to the Indian Act,
and provincial human rights codes are also inapplicable for
jurisdictional reasons. Although the AFN has expressed an
interest in establishing an Aboriginal Charter of Rights, Ovide
Mercredi, the Grand Chief, has recently advised NWAC that
AFN had done nothing towards its development and NWAC
should develop a Charter if we are intent on having something
soon.
87. Even if a model Aboriginal Charter of Rights were devel
oped, the position of women in the Aboriginal communities
would not necessarily be secure. Getting such a Charter
accepted by each self-governing entity, and maintaining effi
cient and well-funded enforcement mechanisms, are major
hurdles facing women who seek to rely on such an instrument.
88. As I said in my address to the Chiefs in Assembly, Exhibit
" W „
The Assembly of First Nations is proposing an Aboriginal
Code of Human Rights which it claims will have more rights
assured than the Charter of Rights and Freedoms. Will this
AFN model code be entrenched in the Canadian Constitu
tion? The answer is likely, no it will not be entrenched.
Why? Because First Nation leaders have already expressed
concern that no code be imposed on their governments. First
Nations do not want any code of human rights, federal or
Aboriginal, imposed from outside the community. This
means individual women in each community must struggle
daily in their own community, isolated from the Aboriginal
women's movement, to have a model community code of
human rights put in place. Until that community code is in
place, human rights of women and children are not guaran
teed.
89. If those who advocate that the Canadian Charter not apply
to Aboriginal self-government are successful, it will mean that
Aboriginal women have no protection under any instrument
guaranteeing our basic human and equality rights. In those cir
cumstances, we will not be equal partners with Aboriginal
males in developing an Aboriginal approach to self-govern
ment: their historic dominance will simply be repeated in this
new setting.
90. Aboriginal women are at a crisis point. The Government of
Canada is funding advocacy for a point of view that will, if
successful, see the removal from Aboriginal women of their
rights under the Canadian Charter of Rights and Freedoms. It
has recognized that point of view as the official or `representa-
tive" view, while failing to take into account that it is the view
of male-dominated organizations, which do not have as much
need of the Charter's equality guarantees in their own commu
nity as do women. As an Aboriginal woman, I face the pros
pect that the price I will pay for Aboriginal self-government
will be the loss of my existing equality rights.
91. Why women are concerned about having no protection of
their rights in the Aboriginal community is clear. As I stated in
my address to the chiefs, Exhibit "W",
Why are we so worried as women? We have never dis
cussed self governments in our communities. There is much
to be learned. We are living in chaos in our communities.
We have a disproportionately high rate of child sexual abuse
and incest. We have wife battering, gang rapes, drug and
alcohol abuse and every kind of perversion imaginable has
been imported into our daily lives. The development of pro
grams, services and policies for handling domestic violence
has been placed in the hands of men. Has it resulted in a
reduction of this kind of violence? Is a woman or a child
safe in their own home in an Aboriginal community? The
statistics show this is not the case ....
92. NWAC wants an equal chance to influence public debate,
and to safeguard the destiny of its members, and other Aborigi
nal women of Canada. It believes that a collectivity cannot be
strong if over one-half that collectivity is without rights, and
without a voice. It believes that the Government of Canada
should not fund advocacy of a position that seeks removal of
basic constitutional protection from the Aboriginal women of
Canada.
Ms. McIvor deposes to having read that affidavit and
that she agrees with all Ms. Stacey-Moore has
deposed.
The Intervenants
The Native Council of Canada, hereinafter "NCC",
is a national organization incorporated in 1972 to
advance the rights and interests of Métis, non-status
Indians and off-reserve registered Indians throughout
Canada. It denies being a male or male-dominated
organization. It is composed of provincial and territo
rial organizations. Each provincial and territorial
organization sends delegates to an annual meeting
which elects a president and vice-president who, with
the president of each constituent organization, consti
tute the executive. While the president and vice-pres
ident are presently both men, the president who nego
tiated the Contribution Agreement was, in fact, a
woman. The presidents of its Alberta, Yukon and
Labrador constituents are presently women as is a
majority of the directors of its B.C. affiliate. In addi
tion to the $130,000 allocation it assigned four of its
seats at the March 13-15, 1992, Aboriginal Confer
ence on the Constitution to NWAC to permit it to be
represented there. 5 It has been active in opposing
gender-based discrimination under the Indian Act
[R.S.C., 1985, c. I-5]. As to the Charter, NCC's posi
tion is that it should apply to "Indian Act govern
ments" but that when aboriginal self-government is
achieved, its application should be a matter for each
"nation". The record suggests that some "nations"
which, notwithstanding the Charter, have persisted in
exiling Indian women not married to Indian men, hut
not the reverse, will continue to opt for male domina
tion.
5 The Government of Canada also allocated four of its seats
to NWAC with the result that NWAC had eight of 184 dele
gates at the table.
NCC's position is that the learned Trial Judge did
not err in concluding that the appellants had failed to
establish any prima facie breach of their Charter
rights.
The Métis National Council, hereinafter "MNC",
is a federation of organizations from Ontario, the
western provinces and the Northwest Territories. It
denies that NWAC represents Métis women;
$130,000 of its grant was earmarked to enable Métis
women to address their particular concerns. While
Métis women do not by any means comprise half of
the executive members of its constituent organiza
tions, the evidence is that they have been a significant
proportion over the years. MNC supported proclama
tion of subsection 35(4) of the Constitution Act, 1982
[as enacted by Constitution Amendment Proclama
tion, 1983, SI/84-102, Schedule, s. 2 [R.S.C., 1985,
Appendix II, No. 46]] and supports application of the
Charter, specifically including section 15, to aborigi
nal self-governments. In addition, it proposes a Métis
Charter.
MNC also submits that the learned Trial Judge did
not err in finding no breach of any Charter right to
have been established and that, in any event, no basis
for a remedy affecting it, the deprivation of its fund
ing, had been established.
The Inuit Tapirisat of Canada, hereinafter "ITC", is
a national organization representing Inuit from the
Northwest Territories, Quebec and Labrador. It, too,
denies that NWAC represents Inuit women. The spe
cific interests of Inuit women are represented by a
national organization known as Pauktuutit, which
aims to promote the equality of Inuit women within
government institutions and Canadian society. The
president of Pauktuutit is a member of the Board of
Directors of ITC and the current president and secre-
tary-treasurer of ITC are women. Inuit concerns on
constitutional issues are directed to an ITC commit
tee, whereof three of seven members, including the
Pauktuutit president, are presently women. Pauktuutit
staff and consultants participate in the technical
working groups supporting the committee. Pauktuutit
does not seek separate funding from the Government
of Canada; it shares ITC's funding. ITC's stated posi
tion is that it is willing to consider application of the
Charter to any Inuit self-government arrangements
which may be negotiated between the Inuit and the
Government of Canada.
ITC denies that it is a male-dominated organiza
tion and that its participation in the constitutional
review process and its funding for that purpose
infringe any Charter right of the appellants.
The Assembly of First Nations
The Assembly of First Nations, hereinafter "AFN",
did not intervene in this proceeding. There is no evi
dence of it but what the appellants have provided.
AFN is a national association of Indian chiefs. Its pri
mary, if not only, constituency appears to be status
Indians resident on reserves. Sixty of the 633 member
chiefs of AFN are women. AFN, and its forerunner
The National Indian Brotherhood, has vigorously and
consistently resisted the struggle of native women to
rid themselves of the gender inequality historically
entrenched in the Indian Act and has intervened in
Parliamentary and legal proceedings to oppose those
efforts. It opposed repeal of paragraph 12(1)(b) of the
Indian Act 6 upon the coming into force of subsection
15(1) of the Charter and it opposed proclamation of
the amendment to the Constitution Act, 1982 which
added subsection 35(4).
As the learned Trial Judge found and as perusal of
the affidavits of Ms. Stacey-Moore and Ms. McIvor
make transparently clear, it is primarily the position
of AFN which the appellants fear. The intervenants
do not speak for the women of the First Nations
whose interests, at least as measured against the
r, 12. (1) The following persons are not entitled to be registe
red [as an Indian], 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 I I.
norms of Canadian society as a whole, are not only
unlikely to be properly represented by AFN but are
likely to be injured if AFN's position prevails;
NWAC does represent those women. The evidence is
clear that AFN is not addressing their concerns. It
emphatically rejects imposition of the Charter on
native self-governments and promises instead an
Aboriginal Charter which cannot yet be described as
inchoate.
The Issue
The first question is: has any constitutional right of
NWAC, or the individual woman it represents, been
violated by the Government of Canada funding any
or all of the designated aboriginal organizations and
permitting their participation in constitutional discus
sions without providing NWAC equal funding and
opportunity to participate? The appellants allege
firstly, the breach of their right to freedom of expres
sion guaranteed by paragraph 2(b) of the Charter
which, they stress, must be read together with section
28; secondly, the breach of the equality rights of the
individual appellants and of individuals represented
by NWAC guaranteed by section 15 of the Charter
and finally, the breach of rights under section 35 of
the Constitution Act, 1982.
2. Everyone has the following fundamental freedoms:
(b) freedom of thought, belief, opinion and expression.....
28. Notwithstanding anything in this Charter, the rights and
freedoms referred to in it are guaranteed equally to male and
female persons.
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 dis
crimination based on race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.
35. (I) The existing aboriginal and treaty rights of the
aboriginal peoples of Canada are hereby recognized and
affirmed.
(4) Notwithstanding any other provision of this Act, the
aboriginal and treaty rights referred to in subsection (I) are
guaranteed equally to male and female persons.
Should violation of any constitutional right of the
appellants be found, the second question is whether
relief in respect of that violation is available in a pro
ceeding under section 18 of the Federal Court Act 7
and, if so, whether the violation occurred in a legisla
tive process in which the Court ought, nevertheless,
not interfere.
Section 35 — Existing Aboriginal and Treaty
Rights
This appeal is concerned with NWAC's participa
tion in the current constitutional review process. The
particular right of aboriginal peoples to participate in
it in a fashion different from other Canadians derives
from sections 37 and 37.1 of the Constitution Act,
/982, not from any "existing aboriginal and treaty
rights" recognized and affirmed by subsection 35(1).
It follows that any right of aboriginal women to par
ticipate equally with aboriginal men does not arise
under subsection 35(4). The claim based on this pro
vision is without merit.
Section 15 — Equality Rights
The equality before and under the law and equal
benefit of the law guaranteed by section 15 of the
Charter is guaranteed to individuals, not to collec
tives. The individual appellants fear losing that equal
ity if aboriginal self-governments, unbound by the
Charter, are created. I accept that most, if not all,
individual members of NWAC very likely share that
fear. Most should, again applying the norms of Cana-
dian society as a whole. The threat, however, is not
itself a present denial of a right under section 15. If,
as and when the feared result is realized, it will be by
means of a constitutional amendment to which the
federal government and Parliament and the required
number of provincial governments and legislatures
will have been party. Such an outcome of a future
7 R.S.C., 1985, c. F-7, as am. by S.C. 1990, c. 8, s. 4.
legislative process cannot be predicted. 8 Such a
"merely hypothetical consequence" is no basis for the
Court interfering in the current constitutional review
process. 9
The present section 15 violation alleged is
described in the following terms in the appellants'
amended memorandum.
134. According to Section 52 of the Constitution Act, 1982, the
Constitution is the fundamental law of Canada. If women have
no part in framing the very constitution of their society, they
cannot be said to have equality before and under the law, or the
equal benefit of the law. Women were excluded from the con
stitutional process of 1864 and 1867, because they could not
vote or serve in government. Even after women nominally
received these rights, they were accorded little room in the pro
cess of constitution-making. Aboriginal communities are at a
critical time in their history, when decisions will be taken
which will influence the nature and shape of Aboriginal gov
ernment for decades to come. For Aboriginal women in 1992
to be excluded from framing the institutions of government as
all women were in 1864 would be fundamentally to deny the
equality of Aboriginal women.
Valid as that all may he, it simply does not describe
the denial of a section 15 right.
The law does not accord any individual the right to
be present at the table at constitutional conferences
nor the right to public funding to develop and com
municate a constitutional position. If sections 37 and
37.1 are not spent, it may still accord a limited right
to be present to representatives of the aboriginal peo
ples of Canada. The funding and participation of the
designated aboriginal organizations in the current
constitutional review process cannot be said to deny
equality before and under, or the equal benefit and
protection of, the law to any individual, aboriginal
woman or otherwise.
A Sethi v. Canada (Minister of Employment and Immigra
tion), [1988] 2 F.C. 552 (C.A.).
9 Operation Dismantle Inc. et al. v. The Queen et al., [1985]
I S.C.R. 441.
Paragraph 2(b) and section 28 — Freedom of
Expression
It is unnecessary that I deal with all of the authori
ties propounding the central role of freedom of
expression in a free and democratic society. They are
encapsulated in the following statement by Cory J.,
in Edmonton Journal v. Alberta (Attorney Gen
eral): 10
It is difficult to imagine a guaranteed right more important
to a democratic society than freedom of expression. Indeed a
democracy cannot exist without that freedom to express new
ideas and to put forward opinions about the functioning of
public institutions. The concept of free and uninhibited speech
permeates all truly democratic societies and institutions. The
vital importance of the concept cannot be over-emphasized.
In the present case, the learned Trial Judge held [at
pages 479-480]:
On the facts it is evident that the Native Women's Associa
tion of Canada has had and will continue to have many oppor
tunities to express its views, both to the appropriate political
authorities, to the public and even to the groups which will par
ticipate in the Conference, some at least of whom share [its]
concern respecting the continued application of the Charter to
aboriginal people. Undoubtedly the more money placed at
their disposal the louder their voice could be heard, but it cer
tainly cannot be said that they are being deprived of the right
of freedom of speech in contravention of the Charter.
With respect to discrimination as to sex the disproportionate
funds provided for [NWAC] results not from the fact that they
are women, but from the unwillingness of the Government to
recognize that they should be considered as a separate group
within the aboriginal community from the four named groups
and treated accordingly. Whether this is fair or contrary to nat
ural justice will be dealt with under another argument respect
ing the issue of a writ of prohibition, but it does not constitute
per se discrimination on the basis of sex in contravention of
the Charter.
The appellants say he misapprehended their argument
as to freedom of expression and erred by taking
account only of the purpose or intent of the govern
ment's action and not of its effect. They point to the
limitations on federal election spending as demon
strating the government's recognition that disparate
financing of political points of view enables the ideas
of some to command public attention at the expense
of others.
10 [1989] 2 S.C.R. 1326, at p. 1336.
In Irwin Toy Ltd. v. Quebec (Attorney General), 11
Dickson C.J., for the majority, said:
Even if the government's purpose was not to control or
restrict attempts to convey a meaning, the Court must still
decide whether the effect of the government action was to
restrict the plaintiff's free expression. Here, the burden is on
the plaintiff to demonstrate that such an effect occurred. In
order so to demonstrate, a plaintiff must state her claim with
reference to the principles and values underlying the freedom.
... [Those principles and values] can be summarized as fol
lows: (1) seeking and attaining the truth is an inherently good
activity; (2) participation in social and political decision-mak
ing is to be fostered and encouraged; and (3) the diversity in
forms of individual self-fulfillment and human flourishing
ought to be cultivated in an essentially tolerant, indeed wel
coming, environment not only for the sake of those who con
vey a meaning, but also for the sake of those to whom it is
conveyed. In showing that the effect of the government's
action was to restrict her free expression, a plaintiff must
demonstrate that her activity promotes at least one of these
principles .... [T]he plaintiff must at least identify the mean
ing being conveyed and how it relates to the pursuit of truth,
participation in the community, or individual self-fulfillment
and human flourishing.
Communicating one's constitutional views to the
public and to governments is unquestionably an
expressive activity protected by paragraph 2(b).
The appellants argue that, by funding and thereby
supporting male-dominated aboriginal organizations
in that activity, the Canadian government has
enhanced their ability to communicate their anti-
Charter positions to the virtual exclusion of NWAC's
pro-Charter position. Government action has given
the male-dominated organizations an ability to com
municate effectively which has been denied aborigi
nal women, thereby abridging the guarantee of sec
tion 28 that freedom of expression is equally the
freedom of male and female persons. They adopt a
statement quoted in a recent decision of a Nova Sco-
tia Human Rights Tribunal: 12
[ 1989] 1 S.C.R. 927, at pp. 976-977.
12 Re: A Complaint by Gene Keyes against Pandora Publis
hing Association. Decision dated March 17, 1992, not yet
reported, at p. 40.
[W]omen cannot become powerful or expressive by being
spoken to, by being spoken for, or, especially, by being spoken
about. It is by being heard that women become empowered.
In my opinion, the question is not whether the des
ignated aboriginal organizations are male-dominated,
but whether they advocate male-dominated aborigi
nal self-governments. I do not agree that a male-dom
inated organization is, in fact, necessarily incapable
of advocating gender equality on behalf of its female
members, nor do I agree that the effect of section 28
on paragraph 2(b) dictates that result as a constitu
tional conclusion.
Measured against the norms of Canadian society as
a whole, it is in the interests of aboriginal women
that, if, as and when they become the subjects of
aboriginal self-governments, they continue to enjoy
the protection of the Canadian Charter of Rights and
Freedoms and, in particular, the rights and freedoms
accorded them by sections 15 and 28, or by
equivalent provisions equally entrenched in aborigi
nal charters, if that be legally possible. It is by no
means certain that the latter alternative can or will be
realized. The interests of aboriginal women, mea
sured by the only standard this Court can recognize
in the absence of contrary evidence, that of Canadian
society at large, are not represented in this respect by
AFN, which advocates a contrary result, nor by the
ambivalence of NCC and ITC.
In my opinion, by inviting and funding the partici
pation of those organizations in the current constitu
tional review process and excluding the equal partici
pation of NWAC, the Canadian government has
accorded the advocates of male-dominated aboriginal
self-governments a preferred position in the exercise
of an expressive activity, the freedom of which is
guaranteed to everyone by paragraph 2(b) and which
is, by section 28, guaranteed equally to men and
women. It has thereby taken action which has had the
effect of restricting the freedom of expression of
aboriginal women in a manner offensive to paragraph
2(b) and section 28 of the Charter. In my opinion, the
learned Trial Judge erred in concluding otherwise.
That is not to say that equal funding to NWAC
would necessarily be required to achieve the equality
required by section 28. The evidence does not permit
a concluded opinion as to that. However, the funding
actually provided is so disparate as to be prima facie
inadequate to accord it the equal freedom of expres
sion mandated by the Charter.
The Respondent's Position
The respondent submits (1) that the claim is specu
lative in nature and not the proper subject of a pre
ventive remedy; (2) that the claim relates to a legisla
tive process in which the Court ought not intervene;
(3) that, as held by the learned Trial Judge, no breach
of a Charter right has been established; and (4) that
the decision to invite and fund participation of the
designated aboriginal organizations was not, in any
event, the decision of a "federal board, commission
or other tribunal" so as to render it amenable to the
supervisory jurisdiction of the Court under section 18
of the Federal Court Act. The respondent also raises
a "floodgates" argument in respect of any finding of
a paragraph 2(b) violation. No section 1 justification
was advanced.
In view of the conclusions I have reached above, it
will be necessary to deal in detail only with the flood
gates argument and the second and fourth submission
in relation to the paragraph 2(b) and section 28 Char
ter violation. I have agreed with the first and third
submissions as to the section 15 violation alleged and
found no infringement of a constitutional right
accorded by either section 15 or section 35 of the
Constitution Act, 1982.
If I am correct in finding violation of paragraph
2(b) and section 28, then it is a real, not a speculative,
violation. It is clear that, whether or not the impugned
funding or the stage of the constitutional review pro
cess for which it was made has been exhausted, the
process may recur. A remedy, even a declaration,
could have a meaningful effect on NWAC's future
participation in it. I accept, and I did not understand
any party to dispute, that even if the specific contro-
versy to which the application was directed has
become moot, the adjudication should proceed. 13
Availability of Section 18 Remedy
The originating notice of motion herein was filed
March 18, 1992. Effective February 1, 1992, amend
ments to the Federal Court Act enacted in 1990 were
proclaimed in force. 14 The words emphasized below
were added to the relevant definition.
2. (1) In this Act,
"federal board, commission or other tribunal" means any body
or any person or persons having, exercising or pur
porting 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.
The evidence is that the decision to invite "repre-
sentatives of the Aboriginal peoples to be full partici
pants in the constitutional process" was made at a
meeting March 12, 1992, of federal, provincial and
territorial representatives. That was clearly not the
decision of a federal board, etc., and is relied on by
the respondent in disputing the availability of section
18 relief. However, there is no evidence that the deci
sion to invite the designated aboriginal organizations
to engage in a process parallel to that of the Parlia
mentary Committee was made by any but an author
ized emanation of the federal government alone and
it is most unlikely, if not legally impossible, that the
decision to allocate federal funding was made by any
but a federal board, etc. As I understand our Constitu
tion, the expenditure of funds must have been author
ized by Act of Parliament. If, as it appears, the invita
tion to join in the process was not authorized by Act
or regulation, it must have been an exercise of Crown
prerogative.
13 Borowski v. Canada (Attorney General), [1989] I S.C.R.
342.
14 S.C. 1990, c. 8, s. I.
Finally, I would note that the Act as amended
requires that declaratory relief in respect of a decision
of a federal board, etc., be sought by application
under section 18. In my opinion relief in respect of
the violation of the appellants' rights is available in a
proceeding brought under section 18 of the Federal
Court Act.
Should the Court Interfere?
The respondent argues that the constitutional
review process is an essential part of a legislative
process in which a court ought not interfere; the
appellants argue that it is integral to a political pro
cess, the legality of which is subject to judicial super
vision.
In Reference re Canada Assistance Plan (B.C.), 15
it was sought to forestall implementation of an
announced intention to reduce federal contributions
to shared cost programs with the provinces. It was
contended that the government was constrained by
the doctrine of legitimate expectations from introduc
ing a bill to Parliament. The Supreme Court made
clear that the doctrine was part of the rules of proce
dural fairness which might give rise to a right to be
heard but does not fetter the right ultimately to make
a decision. It further reaffirmed that rules of procedu
ral fairness do not apply to a body exercising purely
legislative functions and concluded that the executive
decision and action to introduce legislation in Parlia
ment is an integral part of the legislative process. In
more general terms, it held
The formulation and introduction of a bill are part of the legis
lative process with which the courts will not meddle .... [lit is
not the place of the courts to interpose further procedural
requirements in the legislative process. I leave aside the issue
of review under the Canadian Charter of Rights and Freedoms
where a guaranteed right may be affected.
That concluding reservation would be pivotal if it
were decided that the Charter violation in issue
occurred in a legislative process.
15 [ 1991J 2 S.C.R. 525, at pp. 559 ff.
In reaching its conclusion, the Supreme Court
referred to Penikett v. Canada. 16 That case arose on
an application to strike out a petition by the Govern
ment of the Yukon Territory seeking a number of
declarations concerning the Meech Lake Accord. The
Accord was an agreement between the federal and
provincial governments to amend the Canadian Con
stitution in an manner that would have required,
among other things, the concurrence of all existing
provinces to the creation of a new province. The
Yukon government had not been invited to participate
in the meeting that arrived at the Accord and had not
been consulted by the Canadian government before it
committed itself to commend the amendment to Par
liament.
The Trial Judge had concluded that the Charter
applied to Part V of the Constitution Act, 1982, which
provides the procedure for amendment of the Consti
tution. The Yukon Territory Court of Appeal dis
agreed, holding: "The Charter cannot be used to pre
vent constitutional amendment."
The Trial Judge had also concluded that if it were
established that a common law duty of fairness
existed and had been breached, a declaration to that
effect would simply be a declaration of rights and
duties as between territorial residents, on the one
hand, and the Prime Minister and Government of
Canada, on the other, and would not be an interven
tion in the amending or legislative process. As to that
issue, the Court of Appeal held [at page 120] that:
The Prime Minister in convening the Meech Lake Conference
of First Ministers was initiating the process of legislation
which could lead to an amendment of the Constitution.
It concluded [also at page 120] that the issues of fair
ness and fundamental justice arising out of the
Yukon's exclusion
... are not justiciable because they seek to challenge the pro
cess of legislation.
[t]he Meech Lake Accord was part of the process of legis
lation intended to lead to an amendment of the Constitution if
16 (1987), 45 D.L.R. (4th) 108 (Y.T.C.A.), at pp. 118-120.
Leave to appeal refused, [I988] I S.C.R. xii.
the necessary proclamation was authorized by resolutions of
the Senate and House of Commons and of the legislative
assembly of each province.
The Court of Appeal fixed the beginning of that par
ticular legislative process at the point in time the First
Ministers' Conference was convened. Again, it is
notorious that the Meech Lake process was very dif
ferent from the current process commenced, nation
ally at least, by publication of the federal govern
ment's proposals and their committal to public
discussion.
I take from the CAP Reference that the word "for-
mulation", in the expression "formulation and intro
duction of a bill" refers to the preparation of a bill for
introduction after it has been decided that the subject-
matter is to he dealt with. I do not think "formulation
... of a bill" an apt expression to describe the process
of consultation, public or private, by Parliamentary
Committee or otherwise, which the government may
choose to undertake after deciding that it might be
desirable that a matter be dealt with by legislation but
before it has decided how it wishes the legislature to
deal with it or whether a legislative proposal is politi
cally acceptable. In other words, the term does not
refer to policy development, a political process, but
to action, after the policy has been decided, necessary
to legislative implementation.
The CAP Reference and Penikett seem to me to
have established the following principles applicable
to the process of constitutional amendment.
a. the Charter, Part I of the Constitution Act, /982, cannot be
invoked to interfere with the process of amending the Consti
tution mandated by Part V;
b. the process of amending the Constitution, as a legislative
process, begins not later than when first ministers are con
vened to agree upon a constitutional resolution they will put to
their legislatures; and
c. the formulation of a constitutional resolution is part of the
legislative process of amendment with which the courts will
not interfere except, possibly, where a Charter guaranteed right
may be affected.
The amending process of Part V had not, in this case,
begun when the Charter violation occurred.
In my opinion, formulation of a constitutional res
olution cannot be said to have been commenced by
the federal government publishing proposals, com
mitting them to public review by a Parliamentary
Committee and initiating a parallel process among
the aboriginal peoples. That seems to me very much
integral to policy development rather than imple
mentation. I therefore conclude that the Court would
not be interfering in a legislative process if it were to
grant the appellants an appropriate remedy.
The "Floodgates" Argument
The respondent says that a finding of a paragraph
2(b) violation requiring the equal participation in the
constitutional review process and funding of NWAC
would require that equal funding and participation be
extended to all individuals and interest groups. I do
not find this argument persuasive.
Parliament has the right to provide funding or not
as it chooses but, in choosing to fund, it is bound to
observe the requirements of the Charter." The gov
ernment, in exercising a discretion to fund that Par
liament has given it, must be equally hound. Gener
ally, I should think a decision to fund will be made
on the basis of need to permit effective and informed
expression by an otherwise handicapped and particu
larly concerned interest group. A proper decision to
fund one group but not another should be readily jus
tifiable under section 1 of the Charter. The floodgates
argument would be entirely without foundation if the
conditions of entitlement to funding were prescribed
by law, that is Act of Parliament or regulation,' 8 so
that section 1 might be invoked. The floodgates argu
ment is, in the present circumstances, essentially an
argument of administrative convenience which ought
not prevail when a constitutionally guaranteed right
or freedom has been proved to have been infringed. 19
17 Schachter V. Canada, (S.C.C.) not yet reported judgment
rendered July 9, 1992.
18 Martineau et al. v. Matsqui Institution Inmate Discipli
nary Board, [1978] 1 S.C.R. 118.
19 Singh et al. v. Minister of Employment and Immigration,
[1985] 1 S.C.R. 177, at pp. 218 ff.
It will be only one who can show a constitutional
foundation for a grievance by reason of the favour
shown by the government to another who will be able
to obtain the assistance of the courts. Not every inter
est group can complain that, because the designated
aboriginal organizations were favoured, its Charter-
guaranteed freedom of expression was infringed.
NWAC can make that complaint and, in my view,
with justification. It ought not be denied a remedy by
reason of anticipated claims of others not similarly
situated with respect to those the government chose
to favour, namely the designated aboriginal organiza
tions.
Remedy
The remedy sought by the appellants, prohibition
of further payments to the designated aboriginal
organizations until the federal government has: (1)
provided equal funding to NWAC; and (2) has pro
vided NWAC an equal opportunity to participate in
the review process, including participation in relevant
First Minister's conferences, is, in my view, not
available in the circumstances.
In the first place, the evidence does not permit a
judicial conclusion that funding of NWAC equal to
that provided to each of the designated aboriginal
organizations is what is necessary to accord aborigi
nal women the equal measure of freedom of expres
sion guaranteed them by section 28 of the Charter. It
may be inadequate or it may be excessive. The appro
priate quantum of funding would seem to me very
much a matter to be determined by the executive,
conscious of the need to accord that equality. Further
more, equality is not to be achieved by the Court
interfering with the funding of the designated aborig
inal organizations already agreed upon, even if it has
not been entirely exhausted. I agree with the submis
sions of MNC and ITC to the effect that the appel
lants have established no basis for a remedy depriv
ing the designated aboriginal organizations of their
funding.
In the second place, it is notorious that the consti
tutional review process has now moved beyond con
sultation. Every such process necessarily will at some
point, unless it aborts sooner, pass from a consulta-
tive stage to a legislative stage in which the courts
will not meddle. While the CAP Reference appears to
have left the question open, I frankly cannot conceive
of even Charter-based circumstances in which a court
could properly interfere, however indirectly, with the
convening of a First Ministers' Conference or any
other purely intergovernmental meeting and dictate
to them whom they ought to invite to their table.
That said, a court can declare that by including an
organization such as AFN, proved to be adverse in
interest to aboriginal women as measured against the
norms of Canadian society generally, while exclud
ing NWAC, an organization that speaks for their
interests, in a constitutional review process intended
to assist it in deciding, and mustering public and pro
vincial governmental support for, the content of a
constitutional resolution affecting aboriginal rights to
he put to Parliament, the federal government has
restricted the freedom of expression of aboriginal
women in a manner offensive to paragraph 2(b) and
section 28 of the Charter. That is, in my opinion, to
do no more than to declare Charter-based rights and
duties as between aboriginal women and the Govern
ment of Canada.
Conclusion
I would allow the appeal and so declare and I
would award the appellants their costs against the
respondent both on appeal and in the Trial Division.
ITC and MNC asked for costs. I would order that the
intervenants should be neither liable for nor entitled
to costs.
STONE J.A.: I agree.
GRAY D.J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.