Orr v Peerless Trout First Nation

At issue was section 9.3 of the PTFN’s customary election regulations, which outlines eligibility for nomination to run for office. It holds that an elector must be 18 years of age or older; must not have been convicted of or charged with an unpardonable indictable offence at the time of nomination; must not be a plaintiff in a civil action against the PTFN; and must not be employed by the PTFN or PTFN business entities.

With reference to various cases involving taxpayers suing governments for unlawfully collected taxes, the applicant argued that section 9.3 is ultra vires because it prevents PTFN members from suing PTFN council. However, the Court explained that neither the Constitution nor Charter allow for a fundamental right to bring legal action against governments and, moreover, the judiciary has not established any proposition that bars Canadian governments from enacting legislation to prevent its citizens from bringing legal actions against them. 

The applicant further argued that section 9.3 violated section 2(b) of the Charter, the right to freedom of expression. An activity has expressive content and is prima facie protected by section 2(b) of the Charter if it “conveys or tends to convey meaning”. The Court found the applicant failed to address this point and held that although section 9.3 restricts access to a particular platform, the restricted access “is not a statutory limitation on freedom of expression”.

The applicant argued that section 2(d) of the Charter, the right to freedom of association, was also violated by section 9.3 of the customary election regulations. However, in this case the applicant did not demonstrate how nomination for public office is an activity protected by the freedom of association. The applicant can still establish, belong to and maintain an association while observing the eligibility requirements outlined in section 9.3. 

The Court declined to analyze the applicant’s argument that section 9.3 of the election regulations violated s. 3 of the Charter, which sets out the democratic rights of citizens to vote and be eligible for membership in the House of Commons or a legislative assembly. The Court noted that the case law on s. 3 clearly stated that this section only applies to provincial and federal elections - not band council elections.

The applicant further argued that section 9.3 of the election regulations violated his right to equality pursuant to s 15(1) of the Charter. In this case, section 9.3 “creates the distinction of having an unresolved civil suit against the PTFN”. The applicant failed to establish which of the enumerated grounds listed in s 15(1) this distinction is analogous to. The Court determined the distinction made by section 9.3 is neither based on, nor analogous to, the enumerated grounds of s 15(1).

Lastly, the applicant argued that section 9.3(c) of the election regulations violated sections 35 and 36 of the Constitution Act, 1982. In dismissing this issue, the Court noted there is no link between the election regulations and the constitutional protections and commitments available under sections 35 and 36 of the Constitution Act, 1982.