Background
In June 1987, the Canoe Lake Cree First Nation (“CLCFN”) assumed control of its band membership, pursuant to section 10 of the Indian Act, and enacted a Membership Code.
The Federal Court found the 1987 Membership Code was problematic, as it froze in place provisions of the Indian Act as they existed following amendments in 1985, which did not comply with the Charter as they perpetuated sex-based discrimination.
In June 2023, CLCFN ratified and enacted a new Citizenship Law. This new law provided for the automatic right of citizenship to those CLCFN members who were previously recognized as CLCFN members under the 1987 Membership Code. For others who wished to become citizens, the application and acceptance process was also laid out in the Citizenship Law. This includes that if the citizenship application is accepted, Council may impose a period of probationary and conditional citizenship for up to 2 years. After the probationary period, if citizenship is granted, for the next 5 years, the rights of new citizens are restricted – they are not eligible to run for public office or receive per capita distribution payments, funding, or services related to housing.
The applicants both had demonstrated connections to CLCFN but had previously been denied status due to the discriminatory provisions in the Indian Act. As a result, they were ineligible for CLCFN citizenship under the 1987 Membership Code because it adopted the discriminatory provisions of the Indian Act. They sought a declaration from the Court that the whole of the Citizenship Law was unconstitutional and of no force and effect because it discriminated on the basis of sex in violation of section 15 of the Charter. They argued the Citizenship Law maintained the same discriminatory distinctions that impaired the applicant’s rights under the 1987 Membership Code.
The Court found that the Citizenship Law as a whole did not infringe section 15 of the Charter, but that its mandatory 5-year restricted rights period did because it perpetuates sex-based discrimination.
The CLCFN argued it has a right under section 25 of the Charter to determine its own citizenship through its Citizenship Law. The Court held the restricted rights period provision was unnecessary as cultural protection was already achieved through the 2-year probationary period. Additionally, section 28 of the Charter guarantees gender equality, preventing section 25 from shielding gender discrimination. As a result, the restricted rights period provision was invalidated.
Decision
Ultimately, the Court found that:
- The requirement to apply for citizenship does not impose a burden that perpetuates a disadvantage on historically discriminated-against prospective citizens.
- Therefore, the Citizenship Law as a whole does not infringe section 15 of the Charter, nor do its specific provisions that pertain to the automatic right of citizenship or the requirement to apply for citizenship.
- The mandatory restricted rights period does violate section 15 of the Charter because it perpetuates discrimination on the basis of sex. This violation is not shielded by section 25 or saved by section 1 of the Charter.
Accordingly, the Court allowed the application for judicial review in part and declared the mandatory restricted rights period section of the Citizenship Law unconstitutional and of no force or effect.
Key Takeaways
This case confirms the known limits of section 25 of the Charter, namely that it cannot serve to protect actions that result in gender-based discrimination.
This case summary provides our general comments on the case discussed and should not be relied on as legal advice.
See CanLII for the Reasons for Judgment.
