Supreme Court of Canada

Court File No. 25708 Date: 1998-11-24 Gonthier J. Judgment rendered:

Counsel: W.B. Henderson, for appellant, Batchewana Indian Band. R.S. Stevenson, for appellant, Attorney General of Canada. Gary E. Corbière, for respondents.

[1] Gonthier J.:—The appellant, Batchewana Indian Band, applies for an order pursuant to s. 65.1 of the Supreme Court Act, R.S.C. 1985, c. S-26, as amended, staying the judgment under appeal of the Federal Court of Appeal, dated November 20, 1996 [reported [1996 3885 (FCA)], 142 D.L.R. (4th) 122], declaring the Band constitutionally exempt from that part of s. 77 of the Indian Act, R.S.C. 1985, c. I-5, excluding Band members not resident of the reserve from voting at elections for members of the Band Council.

[2] A stay of the said judgment was ordered by Mr. Justice Stone of the Federal Court of Appeal on December 4, 1996 until such time as this court disposed of an application for leave to appeal. Such application was granted on April 24, 1997 [reported 144 D.L.R. (4th) vii] and the appeal was heard by this Court on October 13, 1998. The application for a stay is made at this time as the current term of office of the Chief and Councillors of the applicant band expires in December 1998. A nomination meeting for candidates for these positions is scheduled on November 25, 1998 and the regular election for December 10, 1998. Though no stay has been in effect since April 24, 1997, no further request for a stay has been made until the filing of the present application on November 16, 1998. I note therefore that the application is not timely. However, as the interests of justice require that the application be dealt with on its merits and I have jurisdiction to do so (RJR-MacDonald Inc. v. Attorney General of Canada, [1994 117 (SCC)], [1994] 1 S.C.R. 311 at 329, 111 D.L.R. (4th) 385), I proceed to dispose of the application.

[3] I find that the circumstances alleged in support of the present applications are substantially analogous in material respects to those upon which rested the granting of a stay by Stone J. on December 4, 1996. I am satisfied as he was that the three-part test is met, as set forth by this Court in RJR-MacDonald Inc. v. Attorney General of Canada, supra, namely, that a serious question is being tried, both as to an alleged infringement of s. 15 of the Canadian Charter of Rights and Freedoms and the appropriate remedy in the event of infringement, that, if the relief is not granted, irreparable harm may result from the pre-emption of this Court's decision putting the stability of the electoral process at risk, and that the balance of inconvenience favours the maintaining of the status quo ante through the granting of a stay to avoid a radical change in the electoral body prior to a final determination of the rights of the Band members and proper resolution of the issues by final judgment of this Court.

[4] Accordingly, an order will issue that the judgment under appeal of the Federal Court of Appeal dated November 20, 1996 be stayed until judgment is rendered in the present appeal.

[5] Motion granted.