2 total
Off-reserve band members cannot be wholly excluded from band elections.
The appellants challenged findings that the Indian Act provision restricting band election voting to members ordinarily resident on the reserve violated the equality rights of off-reserve band members.
The Court held that off-reserve band member status is an analogous ground under s. 15(1), and that the complete denial of voting rights in band governance perpetuated disadvantage and denied substantive equality.
The infringement was not justified under s. 1 because a total exclusion of non-residents was not minimally impairing.
The Court declared the impugned words in s. 77(1) invalid in their general application, suspended the declaration for 18 months, and denied an immediate constitutional exemption.
Motion for a stay of judgment regarding off-reserve band members' voting rights granted.
The appellant, Batchewana Indian Band, applied for a stay of a Federal Court of Appeal judgment that declared the Band constitutionally exempt from the Indian Act provision excluding off-reserve members from voting in Band Council elections.
The Supreme Court of Canada applied the RJR-MacDonald test and found that a serious question was being tried, irreparable harm could result from pre-empting the Court's decision, and the balance of inconvenience favoured maintaining the status quo.
The motion for a stay was granted pending the final judgment of the appeal.
