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Docket: |
L021077 |
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Registry: Vancouver |
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IN THE SUPREME COURT OF BRITISH COLUMBIA |
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BETWEEN: |
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WILSON BOB,
ROBERT SAM
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PLAINTIFFS |
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AND: |
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HER MAJESTY THE
QUEEN IN RIGHT OF THE PROVINCE OF
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DEFENDANTS |
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REASONS FOR JUDGMENT |
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Counsel for the Plaintiffs: |
R.J.M. Janes
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Counsel for the
Defendants
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L.J. Mrozinski |
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Counsel for the Defendant Chief Electoral Officer of British Columbia:
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N.A. Mosky |
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Dates and Place of Hearing: |
May 6 and 7, 2002 |
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Vancouver, BC |
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[1] On April 10, 2002, the plaintiff aboriginal leaders and elders commenced an action challenging the constitutionality of the Treaty Negotiations Referendum Regulation, B.C. Reg. 50/2002, (“the Regulation”). The Regulation authorizes the provincial government to hold a referendum on the core principles by which it will be governed in conducting treaty negotiations with aboriginal peoples in British Columbia.
[2] In this application, the plaintiffs seek a stay or partial stay of the Regulation and an interlocutory injunction against the Chief Electoral Officer of British Columbia (“the CEO”) enjoining him from counting the ballots and reporting the results of the referendum pending the trial of this matter. It is anticipated the trial might take two to three weeks and be heard anywhere from six months to a year from now.
[3] It should be noted at the outset that this interlocutory application does not involve a final determination on the constitutional issues raised by the pleadings.
Jurisdiction
[4] The Crown raised a preliminary issue as to this court’s jurisdiction to grant an application for interim injunctive relief against the Crown. It is the Crown’s position that at common law, and pursuant to ss. 11(2) and (4) of the Crown Proceedings Act, R.S.B.C. 1996, c. 89, no injunctive relief may be granted against the provincial Crown, or an officer of the provincial Crown who is acting lawfully in the performance of his duties, absent a finding that the Crown is acting illegally or unconstitutionally.
[5] I am satisfied from the authorities that interim injunctive relief or a suspension of the impugned legislation, is available in the appropriate circumstances: Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110; RJR–MacDonald Ltd. v. Canada (Attorney General), [1994] 1 S.C.R. 311; Harper v. Canada (Attorney General), [2000] 2 S.C.R. 764, 2000 SCC 57; Law Society of British Columbia v. Canada (Attorney General); (sub nom. Federation of Law Societies of Canada v. Canada (Attorney General)) (2001), 160 C.C.C. (3d) 347, 2001 BCSC 1593, aff’d. (2002), 160 C.C.C. (3d) 378, 2002 BCCA 49. These authorities provide that statutory Crown immunity has no application in constitutional cases where the court has broad remedial powers arising out of s. 24(1) of the Charter. Section 24(1) empowers a court of competent jurisdiction to grant “such remedy as the court considers appropriate and just in the circumstances”. Legal scholars Peter Hogg and Patrick Monahan also have noted in Liability of the Crown, 3rd ed. (Toronto: Carswell, 2000) at p. 36: “[t]he Crown cannot use its remedial immunity to shield an unconstitutional act”.
[6] Further, the CEO is not an employee of the Government of British Columbia (“the Province”) but rather is an officer of the Legislative Assembly as expressly stated in s. 4 of the Election Act, R.S.B.C. 1996, c. 106. Pursuant to s. 5(1), the CEO must give a solemn declaration to act impartially.
The test for injunctive relief
[7] The test for obtaining injunctive relief on an interlocutory application has been well established in Metropolitan Stores, RJR-MacDonald and Harper. It is a three-fold test in which the applicant must establish: (i) whether there is a serious issue to be tried; (ii) whether the applicant will suffer irreparable harm if the relief is not granted; and, (iii) whether the balance of convenience, taking into account the public interest, favours the granting of the relief.
[8] As was noted in RJR-MacDonald at p. 342, given the low threshold of the first stage of the test and the difficulty in proving irreparable harm in Charter cases, many interlocutory applications are decided on the balance of convenience.
[9] I turn now to the background facts in order to address the three-fold test set out in the authorities.
BACKGROUND FACTS
1. The history of the treaty process
[10] Between 1850 and 1854 some Vancouver Island First Nations successfully concluded treaties with Sir James Douglas who represented the British Crown (variously known as the Fort Victoria Treaties, the Vancouver Island Treaties, or the Douglas Treaties). No treaties were made after 1854 and no treaties at all were concluded on the Mainland. In 1898, the federal cabinet approved the extension of Treaty 8 into that portion of British Columbia located east of the Rocky Mountains. For a variety of reasons, other British Columbia land claims have largely remained unresolved.
[11] For about 130 years, the Province of British Columbia and its predecessor colonies followed a policy of assimilation for aboriginal people. In 1990, following the trial decision in Delgamuukw v. British Columbia, [1991] 3 W.W.R. 97, the Province changed its approach for dealing with land claim issues. See Gitanyow First Nation v. Canada, [1999] 3 C.N.L.R. 89 (B.C.S.C.) at para. 20.
[12] In December, 1990, the Province established the British Columbia Claims Task Force (“the Task Force”). Terms of reference endorsed by the Government of Canada (“Canada”), the Province, and many First Nations in British Columbia (“the First Nations”), defined the scope of negotiations, the organization and process of negotiations, and the need for and value of interim measures and public education regarding aboriginal land claim settlements.
[13] On June 28, 1991, the Task Force issued its report (“the Task Force Report”) which contained 19 recommendations. Included in the recommendations was the establishment of a new relationship between First Nations, Canada and the Province. This new relationship would be achieved through a six-stage process of political negotiations:
Stage 1: Submission of Statement of Intent to negotiate a treaty.
Stage 2: Preparation for negotiations.
Stage 3: Negotiation of Framework Agreement.
Stage 4: Negotiation of Agreement in Principle.
Stage 5: Negotiation to finalize a treaty.
Stage 6: Implementation of the treaty.
[14] The Task Force Report also recommended the creation of the British Columbia Treaty Commission (“the BCTC”) to facilitate the process of negotiations in accordance with the six-stage process. Non-aboriginal interests were to be represented at the negotiating table by Canada and the Province.
[15] On September 21, 1992, Canada, the Province and representatives of the First Nations Summit entered into the British Columbia Treaty Commission Agreement (“the BCTC Agreement”). The BCTC Agreement incorporates the six-stage treaty process for negotiating treaties. Upon reviewing a Statement of Intent to negotiate from a First Nation, the BCTC then assesses the readiness to commence negotiation of a Framework Agreement by each party. The Framework Agreement includes the identification of substantive and procedural matters to be negotiated, including each party’s negotiating mandate.
[16] First Nations are not required to meet any legal test for establishing aboriginal rights or title as a pre-condition to the treaty negotiations with the BCTC.
[17] The BCTC Agreement requires each party to give their negotiator a comprehensive and clear mandate. It further provides that Canada and the Province are to have mechanisms for consulting with non-aboriginal interests. The mechanisms developed have included: an agreement between the Province and the Union of British Columbia Municipalities to guarantee local governments’ and regional districts’ participation in treaty negotiations; the formation of local government treaty advisory committees; and, input from interest groups through advisory committees at local, regional and province-wide levels.
[18] After nearly a decade of treaty negotiations under this framework, only one Agreement in Principle has been reached -- with the Sechelt Indian Band (“Sechelt”). Sechelt is at the Agreement in Principle stage where the parties are to address which substantive issues will receive constitutional protection. Sechelt previously had settled on a delegated model of self-government that is not constitutionally protected under s. 35 of the Constitution Act, 1982.
[19] On August 4, 1998, the Nisga’a Treaty was concluded. It is the only other treaty and land claim agreement successfully negotiated between Canada, the Province and a First Nation. It was negotiated outside of the BCTC process and did receive constitutional protection within the meaning of s. 35 of the Constitution Act, 1982. It is also being challenged by a neighbouring First Nation claiming rights to some lands encompassed by the Nisga’a Treaty.
[20] Other First Nations continue to negotiate at the treaty table and have progressed beyond the Framework Agreement stage. None have reached the Agreement in Principle stage. Some First Nations have withdrawn from the treaty process while others have chosen to litigate their claims.
2. The referendum
[21] During the campaign leading to the provincial election of May 16, 2001, the successful party’s platform included a commitment for a one-time, province-wide, referendum. The purpose of the referendum was to obtain public input on the guiding principles for the Province’s approach to future treaty negotiations. That commitment was reiterated after the election.
[22] On March 15, 2002, following public hearings and a report from a Select Standing Committee of the Legislature, the provincial cabinet enacted the Regulation pursuant to s. 4 of the Referendum Act, R.S.B.C. 1996, c. 400. The Regulation orders a referendum to be conducted for the purpose of establishing principles to guide the Province’s participation in treaty negotiations with Canada and aboriginal people in British Columbia. If the referendum vote is in the affirmative it will bind the Province in accordance with ss. 4 and 5 of the Referendum Act, unless the Regulation is ultimately held to be unconstitutional.
[23] The core or guiding principles adopted for the referendum ballot reflect principles previously developed and used by provincial negotiators. These principles were first described in 1991, further explored and expanded upon in 1993, but have never been brought to the public for formal endorsement. The Province contends that it is the function of the referendum process to do so.
[24] The referendum poses a series of eight questions to be answered “yes” or “no” using a mail-in ballot. A copy of the ballot is attached as an Appendix to these reasons. The CEO has mailed the ballots and as of April 23, 2002, at least 560,000 had been returned. The vote closes at 4:30 p.m. Pacific Daylight Time on May 15, 2002. Thereafter, the CEO has the task of counting the ballots and reporting the results of the referendum to the Speaker of the Legislative Assembly on or before July 2, 2002.
[25] The Regulation does not provide for a system enabling the participation of umbrella organizations in the referendum (e.g. “yes” and “no” campaign organizations). Nor does it establish any campaign spending limits or a method of tracking campaign spending.
[26] The referendum has attracted considerable media coverage. Extensive editorial opinions filed in this application have been categorized as being in favour, against, or taking a “neutral” stand on the process. As well, the wording of the referendum ballot has attracted controversy.
[27] The plaintiffs claim the questions are loaded, biased, leading, and reflect a philosophy of assimilation and ethnocentrism. They claim the preamble is designed to evoke a “yes” vote, which substantively promotes a concept of discrimination. They also state the questions are confusing. For example one question is framed in the negative, another incorporates two questions, and a third is unclear about the answer it seeks to elicit.
[28] Both the plaintiffs’ and the Crown’s witnesses agreed that the wording of the questions could have been better. A Crown witness, although an advocate in favour of “direct democracy”, agreed that appeals to notions of democracy can be used to make a ballot question difficult to reject and that a provocatively worded question can almost always determine the result.
[29] The legal issues raised by the referendum process and the wording of the referendum ballot are the basis of the plaintiffs’ constitutional challenges of the Regulation.
THE APPLICATION OF THE THREE-FOLD TEST
1. Is there a serious issue to be tried?
[30] The plaintiffs challenge the constitutional validity of the Regulation on three grounds:
1. that it infringes, as well as violates, the plaintiffs’ equality rights as guaranteed by s. 15(1) of the Charter;
2. that it breaches the Crown’s fiduciary duty towards aboriginal people to protect their rights which are constitutionally guaranteed by s. 35(1) of the Constitution Act, 1982; and,
3. that it is a law in relation to Indians or Lands reserved for Indians which is the exclusive preserve of the federal government pursuant to s. 91(24) of the Constitution Act, 1867.
[31] Both the plaintiffs and the Crown provided extensive written and oral argument on each of these grounds. I do not intend to review the evidence or the position of each in any detail given that the threshold level at this stage of the test is a low one. On an interlocutory application, the standard applied in determining this question was summarized by Sopinka and Cory JJ. in RJR–MacDonald at p. 348:
Whether the test has been satisfied should be determined by a motions judge on the basis of common sense and an extremely limited review of the case on the merits… A motions court should only go beyond a preliminary investigation of the merits when the result of the interlocutory motion will in effect amount to a final determination of the action, or when the constitutionality of a challenged statute can be determined as a pure question of law. Instances of this sort will be exceedingly rare. Unless the case on the merits is frivolous or vexatious, or the constitutionality of the statute is a pure question of law, a judge on a motion for relief must, as a general rule, consider the second and third stages of the Metropolitan Stores test.
[32] A brief overview of the constitutional issues raised may be summarized as follows.
(a) s. 15(1) Charter breach
[33] The plaintiffs allege their rights under s. 15(1) of the Charter have been breached in two ways:
(i) Affirmative results in the referendum will bind the Province to a set of guiding principles that embody historical concepts of assimilation and ethnocentrism. These concepts are outmoded and discriminatory against aboriginal people. While the referendum questions appear to direct answers that would establish formal equality they do not address substantive equality. This mandate precludes the Crown from engaging in good faith negotiations that will address the concerns of aboriginal people. Even if the court subsequently declares the Regulation unconstitutional, the Province will continue to be politically and morally bound to their mandate from the referendum. Applying the analytical framework established in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, the plaintiffs submit the Regulation creates adverse effects discrimination on the basis of race, an enumerated ground that is a protected category under s. 15(1) of the Charter, and which affronts the dignity of aboriginal people.
(ii) Affirmative results of the referendum will stir up stereotypical discriminatory attitudes in the community and will increase divisiveness and entrench feelings of hostility toward aboriginal people. These feelings will be felt unequally by aboriginal people compared to non-aboriginal people. In support of this submission the plaintiffs rely on the opinion evidence of expert witnesses regarding the effect of referendums on the rights of national minorities, how referendums can influence, if not form, the opinion of the majority, and how the wording of the questions can bias the result.
[34] In response, the Crown submits the following:
(i) The referendum is a voluntary process established for the sole purpose of giving the Province a mandate for negotiating treaty settlements. There is no obligation to conclude a treaty and any party may walk away from the table at any time. The treaty process is not about the establishment of aboriginal rights but about negotiating and coming to an agreement. There is no duty to ameliorate historical disadvantages. Section 15 does not require the Province to negotiate a position contrary to its interests but merely to negotiate in good faith. Many First Nations may be interested in negotiating a variety of options that do not include a model of self-government. Applying the Law framework, the plaintiffs do not meet the first requirement of establishing a differential effect merely because the Province is intent on negotiating a position that may not be acceptable to aboriginal people.
(ii) In claiming that the reporting of the referendum results will lead to entrenchment of divisions towards aboriginal people in the non-aboriginal community, the plaintiffs are raising matters that lie within the realm of conjecture rather than fact. The opinion evidence of the expert witnesses does no more than hypothesize on the likely effects of the referendum. Their theories about the effects of the referendum on the residents of British Columbia are simply not provable. If any harm results from the referendum, it is just as likely to have been caused by the asking of the questions as from the counting and reporting of the results.
(b) breach of s. 35(1), Constitution Act, 1982
[35] Section 35(1) constitutionally guarantees existing aboriginal and treaty rights, as well as treaty rights that may be acquired in the future. The special status of aboriginal people is further guaranteed by s. 25 which does not permit the Charter to be construed so as to abrogate or derogate from these rights. The categories of these protected rights are not closed. See R. v. Van der Peet, [1996] 2 S.C.R. 672; and, Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010.
[36] The plaintiffs claim the Province has a fiduciary duty toward aboriginal people that includes the duty to consult and accommodate aboriginal rights prior to taking government action: Haida Nation v. British Columbia and Weyerhaeuser, 2002 BCCA 147. They submit that such a fiduciary duty includes a duty to negotiate in good faith: Gitanyow First Nation v. Canada (1999), 66 B.C.L.R. (3d) 165 (S.C.); and, Nunavik Inuit v. Canada (Minister of Canadian Heritage) (1998), 164 D.L.R. (4th) 463.
[37] The plaintiffs contend that the legal duties arising from the Crown’s fiduciary obligation to aboriginal people requires the Province to negotiate the protection of substantive rights for the benefit of aboriginal people and includes the duty to provide procedural protection in the negotiation process for those substantive rights. They argue the referendum breaches the Crown’s fiduciary duty by deciding and limiting the agenda at the negotiating table. They also submit it creates a moral and political burden on the Crown, binding the Province to the will of the majority, which may refuse to permit the Province to negotiate a treaty that will adequately rectify historical wrongs.
[38] The Crown denies it will have breached its fiduciary obligation to aboriginal people if the referendum is passed in the affirmative. It submits that its fiduciary duty is met by negotiating in good faith and that it is not required to negotiate for the benefit of the aboriginal people to the exclusion of its broader public interest. In support of its position it relies on Fairford First Nation v. Canada (Attorney General), [1999] 2 F.C. 48 (T.D.); and, Chippewas of Nawash First Nation v. Canada (Minister of Fisheries and Oceans) (2000), 196 F.T.R. 249. Those cases establish that a fiduciary is not obliged to negotiate the mandate of the beneficiary unless the beneficiary has ceded that power to the fiduciary. There must also be a mutual understanding that gives rise to a reasonable expectation the fiduciary would act in the best interests of the beneficiary to the exclusion of other interests.
[39] The Crown points to the BCTC Agreement that requires each party to establish its own mandate for negotiation at the treaty table. It submits that provision expressly negates any possible understanding or reasonable expectation that a First Nation may have ceded or had a reasonable expectation that the Crown, as fiduciary, would negotiate a mandate only in accord with the best interests of the aboriginal people rather than for the benefit of the broader public interest.
(c) ultra vires pursuant to s. 91(24) of the Constitution Act, 1867
[40] The plaintiffs claim the Regulation is legislation that in pith and substance is in relation to “Indians and Lands reserved for the Indians”, a matter exclusively within the legislative authority of Canada under the Constitution Act, 1867. The Crown submits the Regulation is legislation regarding issues all within the exclusive jurisdiction of the Province and is only a means by which a mandate may be developed or affirmed.
[41] Based on this brief summary of the constitutional issues raised by the plaintiffs, I have no difficulty in concluding the challenges are neither frivolous nor vexatious. I am of the view that the challenges raise a serious issue regarding the constitutionality of the Regulation that merits further examination at a trial.
2. Will the plaintiffs suffer irreparable harm if the injunctive relief is not granted?
[42] RJR–MacDonald defines irreparable harm in the context of the nature of the harm suffered rather than its magnitude (p. 341). The intangible nature of the harm -- often alleged in constitutional cases where damages are not the primary remedy -- makes this determination even more difficult.
[43] The plaintiffs claim the reporting of an affirmative vote in the referendum will cause irreparable harm to aboriginal people by binding the Province legally, politically and morally to a historical position that advocates a policy of assimilation based on stereotypical and ethnocentric views about aboriginal people. Based on the opinion evidence of the expert witnesses, the plaintiffs claim the reporting of the results of the referendum will inflame prejudices, create feelings of hostility, and cause the general population to become discriminatory toward aboriginal people. The plaintiffs also claim the general population may be falsely led into believing that the results of the referendum will put the issues of aboriginal land claims to rest. Even if the Regulation is subsequently declared unconstitutional, the plaintiffs submit relations between aboriginal and non-aboriginal people will have been permanently damaged.
[44] The Crown responds that this theory of irreparable harm has no evidentiary basis and is speculative. It further submits that if the Regulation is held to be discriminatory and declared unconstitutional, then legally the Province may not negotiate treaty claims based on the guiding principles in the referendum and consequently there would be no irreparable harm as alleged. The Crown also submits that in the face of a declaration of unconstitutionality, the allegation that it will be politically and morally bound to maintain those principles if the referendum vote is in the affirmative, again has no evidentiary basis and is speculative.
[45] In support of its position the Crown relies on the comments of Dickson J. in Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 411. In that case, the Crown made application to strike the plaintiff’s claim that alleged the development of the cruise missile heightened the risk of nuclear war. The decision to strike the claim as frivolous and vexatious was upheld by the Supreme Court of Canada. In regard to the evidentiary difficulties facing the plaintiffs, Dickson J. at p. 454 made the following comments:
The point of this review is not to quarrel with the allegations made by the appellants about the results of cruise missile testing. They are, of course, entitled to their opinion and belief. Rather, I wish to highlight that they are raising matters that, in my opinion, lie in the realm of conjecture, rather than fact. In brief, it is simply not possible for a court, even with the best evidence available, to do more than speculate upon the likelihood of the federal cabinet’s decision to test the cruise missile resulting in an increased threat of nuclear war.
Discussion
[46] The intangible nature of the harm alleged in this case gives rise to evidentiary difficulties for the plaintiffs that are similar to those referred to in Operation Dismantle.
[47] I have carefully reviewed the opinion evidence of the expert witnesses for both the plaintiffs and the Crown, the transcripts of their cross-examination, and the exhibits filed. At best, the witnesses can only hypothesize a theory, based on their academic background and research, as to what effect the reporting of the referendum vote might have on the attitudes, feelings and opinions of the residents of British Columbia. Even if their opinions are held to be admissible and are accepted, they do not establish what will be the actual responses of the residents of British Columbia. There is simply no direct evidence to support any of the theories. The results of the vote remain unknown at this time and there is no evidence from any resident of British Columbia on this point. There is also no evidence to support the theory that the residents of British Columbia will consider the treaty process as settled in the event of an affirmative vote.
[48] Some of the affidavit evidence filed by the plaintiffs suggests that the decision to call a referendum and the nature of the questions on the ballot, rather than the reporting of the vote, might have already caused the harm they allege will be suffered by aboriginal people should the vote be counted. In other words, there may be other causes that have already transpired that could create the harm alleged.
[49] In summary, therefore, based on the evidence at this time, I am unable to conclude that the counting and reporting of the referendum vote will cause irreparable harm as alleged. I am of the view that it would be too speculative to conclude that the mere reporting of the referendum results would cause the residents of British Columbia to become discriminatory, hostile and racially biased toward aboriginal people. Further, if the Regulation were ultimately declared unconstitutional at trial, the Province would no longer be legally bound by the guiding principles in the referendum pursuant to ss. 4 and 5 of the Referendum Act.
3. Does the balance of convenience, taking into account the public interest, favour the granting of the relief?
[50] In determining the balance of convenience between the parties, the court must assess the nature of the harm that will be suffered by the plaintiffs if the injunction is denied, against the harm that will be suffered by the Province if the application is granted. In constitutional cases, the public interest factor weighs heavily in this assessment. The analysis requires the court to determine where the public interest lies in both situations.
[51] The public interest analysis was framed by Sopinka and Cory JJ. in RJR-MacDonald at pp. 333-334:
On the one hand, courts must be sensitive to and cautious of making rulings which deprive legislation enacted by elected officials of its effect.
On the other hand, the Charter charges the courts with the responsibility of safeguarding fundamental rights. …
[52] The plaintiffs submit the only harm to the Province in granting the relief requested would be a delay in the counting and reporting of the referendum vote. Any additional cost to the CEO for storage of the votes would not be significant as the votes must, in any event, be stored for a year, albeit in less secure and therefore less costly facilities.
[53] The plaintiffs further submit that the detrimental consequences of a delay in the public receiving the referendum results are further diminished as the Regulation is not “regulatory” and imposes no duties or restrictions on anyone. They state the Regulation does not require enforcement of rules of conduct on members of the public or a segment of society. This is in contrast with the nature of the legislation in question in RJR-MacDonald, Metropolitan Stores, and Harper. The plaintiffs submit that during this period of delay, the Province could continue to consult with the public and receive the benefit of its input in the same manner as it has done in the past. That process, they state, allows for changing circumstances unlike the binding nature of the referendum.
[54] The Crown, on the other hand, submits the public interest would be harmed by a suspension of the Regulation as it was passed by a democratically elected government on a matter over which the electorate of British Columbia has an interest.
Discussion
[55] The public interest factor weighs more heavily in “suspension” cases, such as this one, than in “exemption” cases, such as the one successfully argued in Federation of Law Societies, supra. The reason for the difference was explained in RJR–MacDonald at p. 346:
[T]he public interest is much less likely to be detrimentally affected when a discrete and limited number of applicants are exempted from the application of certain provisions of a law than when the application of the law is suspended entirely.
[56] RJR–MacDonald directs the court to assume the public interest as expressed by a democratically elected government. As stated by Sopinka and Cory JJ. at pp. 348-349:
When the nature and declared purpose of legislation is to promote the public interest, a motions court should not be concerned whether the legislation actually has such an effect. It must be assumed to do so.
[57] At p. 349 Sopinka and Cory JJ. further explained the onus on the plaintiffs where the public interest is being considered:
In order to overcome the assumed benefit to the public interest arising from the continued application of the legislation, the applicant who relies on the public interest must demonstrate that the suspension of the legislation would itself provide a public benefit.
[58] To succeed on the balance of convenience, the plaintiffs must demonstrate that the public interest will benefit from the suspension of the legislation. This is an onerous task in constitutional cases, as was noted by McLachlin C.J. in Harper, supra, at p. 771, where she concluded “only in clear cases will interlocutory injunctions against the enforcement of a law on grounds of alleged unconstitutionality succeed”.
[59] The stated objective in the preamble to the referendum questions is a commitment by the Province to “negotiating workable, affordable treaty settlements that will provide certainty, finality and equality”. The Province has stated the referendum is necessary to reinvigorate a treaty process that commenced over a decade ago. Proof of this stated public purpose is not required in this application. It is assumed to be in the public interest.
[60] The plaintiffs rely on their claim of irreparable harm to establish that the public interest will benefit from the relief requested. However, in the absence of a finding of irreparable harm, and given the assumed benefit to the public interest from the referendum, the plaintiffs have not established that the public interest would benefit from a suspension of the Regulation and the injunctive relief sought as required by RJR-MacDonald.
[61] I have concluded, therefore, that the balance of convenience weighs in favour of the public interest being served by the counting and reporting of the referendum vote.
Conclusion
[62] The plaintiffs have shown there is a serious issue to be tried. However, they have not established on the evidence that irreparable harm will result from the referendum vote being counted and reported to the Speaker of the Legislative Assembly. Nor have they established that the benefit to the public interest will be outweighed by any potential harm that might be caused by the counting and reporting of the referendum vote. In the result, they have not met the three-fold test as required by the authorities.
[63] Accordingly, the application is dismissed. Costs shall be in the cause.
“D.M. Smith, J.”
The Honourable Madam Justice D.M. Smith
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