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Constitution - Onus. Reference re An Act respecting First Nations, Inuit and Métis children, youth and families
In Reference re An Act respecting First Nations, Inuit and Métis children, youth and families (SCC, 2023) the Supreme Court of Canada considers the argument that the onus lays on parliament to demonstrate the 'constitutionality' of legislation - before a constitutional challenge is resolved for that purpose:[114] Ultimately, it will be for the courts to determine, on the basis of the evidence adduced, whether s. 18(1) of the Act falls within the confines of s. 35 of the Constitution Act, 1982. In this regard, Indigenous culture will certainly be a major factor in the analysis, because s. 35(1) “serves to recognize the prior occupation of Canada by Aboriginal societies and to reconcile their contemporary existence with Crown sovereignty” (Desautel, at para. 31). As the Court has stated, s. 35 recognizes and affirms “a constitutional framework for the protection of the distinctive cultures of aboriginal peoples” (Sappier, at para. 22).
[115] Moreover, the fact that this Court has not yet recognized the existence under s. 35(1) of a right of self‑government does not mean that Parliament lacks the means to deal with the question of Indigenous child and family services. It is important to note that, in exercising its jurisdiction under s. 91(24), Parliament chose to affirm that the right of self‑government with respect to this matter is directly tied to s. 35(1) of the Constitution Act, 1982. The Crown is also expressly bound by this affirmation along the path to reconciliation (Act, s. 7). In recent decades, as the Court of Appeal noted, Parliament has received numerous [translation] “studies, reports and surveys on various aspects of the situation of Aboriginal peoples” (para. 108), including from the Truth and Reconciliation Commission and the Royal Commission on Aboriginal Peoples. Indeed, the latter devoted 277 pages of its report to the issue of self‑government (Delgamuukw, at para. 171). Parliament is therefore particularly well positioned to act on the basis of its understanding of the content of s. 35(1) and, more broadly, of the imperatives of reconciliation.
[116] In this regard, it should be noted that the process of enacting the Act was initiated after the Minister of Indigenous Services called an urgent meeting to address problems related to discrimination within the child and family services provided to Indigenous peoples (see C.A. reasons, at para. 173). This process led to nearly 65 meetings in which the federal government consulted with some 2,000 community, regional and national organizations, as well as individuals (see para. 176). Therefore, the Act does not merely speak to Indigenous peoples but also seeks to express their voice. The Act is thus intended to recognize the validity of Indigenous peoples’ stated needs and to provide reassurance that reconciliation will not be imposed on them but will be achieved through cooperation. As stated by the National Chief of the Assembly of First Nations, Perry Bellegarde, whose words were quoted by the then Minister of Indigenous Services: “This legislation will recognize First Nations jurisdiction so they can build their own systems based on their own governance, laws and policies” (House of Commons Debates, March 19, 2019, at p. 26137).
[117] While it is unnecessary to determine the limits of s. 35(1) for the purposes of this reference, it is nevertheless worth noting that Parliament, after thoroughly inquiring into the matter, chose to advance reconciliation by affirming that the right of self‑government in relation to child and family services is “inherent” as well as “recognized and affirmed by section 35 of the Constitution Act, 1982”. This affirmation, set out in s. 18(1), is therefore an important factor in deciding this reference. The importance of this affirmation will undoubtedly also be a factor to consider when the courts are called upon to formally rule on the scope of s. 35.
[118] In any event, the classification of the affirmation under one of the heads of power in the Constitution Act, 1867 must, in the context of the reference question before this Court, be determined by the classification of the Act as a whole. Nevertheless, some discussion of the potential effect of the affirmation on the provincial governments is warranted. Although valid federal legislation may bind the provincial Crown (see, e.g., Her Majesty in right of the Province of Alberta v. Canadian Transport Commission, 1977 CanLII 150 (SCC), [1978] 1 S.C.R. 61, at p. 72; The Queen in the Right of the Province of Ontario v. Board of Transport Commissioners, 1967 CanLII 93 (SCC), [1968] S.C.R. 118, at p. 124; Wilkins, at p. 185), it is not clear on the face of ss. 7, 8(a) and 18(1) whether the affirmation is meant to bind the provincial governments. However, it is open to the courts to give a narrow meaning to legislation that would otherwise exceed the jurisdiction of the level of government that enacted it (see, e.g., Derrickson v. Derrickson, 1986 CanLII 56 (SCC), [1986] 1 S.C.R. 285, at p. 296). This interpretive approach can be justified by the presumption that legislation is consistent with the division of powers (Siemens v. Manitoba (Attorney General), 2003 SCC 3, [2003] 1 S.C.R. 6, at para. 33; see also Brun, Tremblay and Brouillet, at para. VI‑2.56; Hogg and Wright, at § 15:13). To the extent that binding the provinces to the position that Parliament has affirmed exceeds federal jurisdiction (a point not directly argued before this Court), it would accordingly be necessary to read down ss. 8(a) and 18(1).
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