Members of a native band that do not live on a reserve are prohibited from voting in band elections pursuant to s.77(1) of the Indian Act. The respondents are native band members who do not live on a reserve, and they claim that this prohibition is contrary to s.15 of the Charter. They were successful at the lower courts, which the government appealed.
- Is prohibiting band members living off reserve from voting in band elections contrary to s.15 of the Charter?
McLachlin and Bastarache, writing for the majority, first state that it is clear that non-reserve aboriginal status qualifies as an analogous ground, but distinctions based on analogous grounds do not always constitute discrimination. They hold that markers (grounds) of discrimination cannot change from case to case; if something is deemed to be an analogous ground then it will be considered one in all cases. Further, they find that all of these grounds share the common ground that they often serve as the basis for stereotypical decisions made not on the basis of merit but a personal characteristic that is either unchangeable, or changeable only at an unacceptable cost to personal identity. Here, the comparator group that is identified is the members of the band who do live on the reserve. It is clear that there is a distinction created, and they decide that it is discrimination as it causes them to choose between living on a reserve and exercising their political rights – and that this is not saved by s.1.
L'Heureux-Dube, in the dissent, further discusses the discrimination. She classifies analogous grounds and states that they are things that, considered by a reasonable person in the position of the claimant, would be deemed important to their identity, personhood and belonging. There are several things that help to determine this: being immutable, or very difficult to change in terms of personal identity; lacking in political power; disadvantaged or vulnerable; and inclusion in human rights codes are all factors. She then goes further into why this distinction is discrimination - the interest here is very important, and that it is completely prohibited, showing a serious violation. It reinforces the view that aboriginals who do not live on reserves are "less aboriginal" than those who do, which harms the dignity of the group.
- Analogous grounds serve as the basis for stereotypical decisions made not on the basis of merit but a personal characteristic that is either unchangeable, or changeable only at an unacceptable cost to personal identity.
- If something is deemed to be an analogous ground in one case, it will be in all future cases regardless of different circumstances.