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Statutes and Regulations - Incorporation by Reference. 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 legislative technique of 'incorporation by reference', here in the course of a constitutional validity assessment of the FNIMCYFA:[36] The Attorney General of Quebec and the Attorney General of Canada appeal from the opinion given by the Quebec Court of Appeal. The Attorney General of Quebec argues that the entire Act is ultra vires Parliament because it impermissibly intrudes on certain areas of exclusive provincial jurisdiction, especially the province’s power to direct its own agencies, and because the Act represents an attempt to unilaterally amend the Constitution. The Attorney General of Canada counters that the Act constitutes a valid exercise of Parliament’s legislative authority under s. 91(24) of the Constitution Act, 1867. He also submits that the incorporation by reference and paramountcy provisions are not problematic because incorporation by reference is a long‑accepted legislative technique and the paramountcy provision merely states for greater certainty what constitutional law already provides.
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(3) The Incorporation Provisions in Section 21 Do Not Alter the Architecture of the Constitution
[119] The Attorney General of Quebec argues that ss. 21 and 22(3) of the Act alter the architecture of the Constitution (R.F., at para. 26). The Court of Appeal reached the same conclusion, holding that these provisions purport to extend the application of the doctrine of federal paramountcy to the laws of Indigenous groups, communities or peoples in relation to child and family services and are therefore ultra vires s. 91(24) of the Constitution Act, 1867 (paras. 537, 540‑42 and 571). The Court of Appeal stated that the laws of Indigenous groups, communities or peoples are not federal laws enacted under s. 91(24) but rather Indigenous laws that serve Indigenous imperatives (para. 540).
[120] In our view, given that this Court has not yet addressed the question of whether the right described in s. 18(1) has been proved, neither s. 21 nor s. 22(3) of the Act alters the architecture of the Constitution; both of these provisions were validly enacted under s. 91(24) of the Constitution Act, 1867. Confining our remarks to the specific context of this reference, we discuss the validity of s. 21 in this section of our reasons and the validity of s. 22(3) in the next section.
[121] The main aspect of s. 21 of the Act that the Court of Appeal found to be unconstitutional was subs. (1), which provides as follows: “A law, as amended from time to time, of an Indigenous group, community or people . . . also has, during the period that the law is in force, the force of law as federal law.” The Court of Appeal held that federal legislation enacted under s. 91(24) of the Constitution Act, 1867 cannot give a law of an Indigenous group, community or people the force of law as federal law (paras. 540‑41). We disagree.
[122] Section 21 of the Act is simply an incorporation by reference provision. It incorporates by reference the laws adopted by an Indigenous group, community or people and gives them the force of law as federal law. Moreover, because such laws may be amended, s. 21 incorporates the amendments that may be made to them in the future, on an anticipatory basis. Such an anticipatory incorporation by reference provision is constitutional.
[123] Professors Hogg and Wright describe incorporation by reference as a “technique which is occasionally used by legislative bodies, especially where it is desired to enact the same law as another jurisdiction” (§ 14:12; see also Brun, Tremblay and Brouillet, at para. VI‑1.80; G.‑A. Beaudoin, in collaboration with P. Thibault, La Constitution du Canada: institutions, partage des pouvoirs, Charte canadienne des droits et libertés (3rd ed. 2004), at pp. 317‑18). They note that “[i]nstead of repeating in full the desired rules, the drafter may simply incorporate by reference, or adopt, the rules of another jurisdiction” (§ 14:12). As a drafting technique, incorporation by reference avoids the need for the legislative body, in the exercise of its legislative jurisdiction, to replicate in a separate statute rules already adopted by another entity.
[124] Legislative bodies have broad power to referentially incorporate provisions adopted by other entities, including other legislative bodies or non‑governmental bodies. For example, Parliament can incorporate by reference a law enacted by a province (Coughlin v. Ontario Highway Transport Board, 1968 CanLII 2 (SCC), [1968] S.C.R. 569, at p. 575; R. v. Smith, 1971 CanLII 171 (SCC), [1972] S.C.R. 359, at p. 366; Dick, at p. 328; Wewaykum Indian Band v. Canada, 2002 SCC 79, [2002] 4 S.C.R. 245, at paras. 114 and 136; Fédération des producteurs de volailles du Québec v. Pelland, 2005 SCC 20, [2005] 1 S.C.R. 292, at paras. 53 and 61). This Court has also upheld the validity of a provincial legislature’s incorporation by reference of laws made by the Parliament of the United Kingdom (Attorney General for Ontario v. Scott, 1955 CanLII 16 (SCC), [1956] S.C.R. 137, at p. 152). Parliament may also referentially incorporate standards set by a non‑governmental body (Reference re Manitoba Language Rights, 1992 CanLII 115 (SCC), [1992] 1 S.C.R. 212, at pp. 230 and 234). Once Parliament has incorporated by reference provisions adopted by another entity, the “relevant provisions apply as federal law” (Wewaykum Indian Band, at para. 114). There is no doubt about the constitutionality of the drafting technique of incorporation by reference.
[125] Incorporation by reference may also be anticipatory: a legislative body can incorporate another entity’s provisions as amended from time to time, on an anticipatory basis. In Scott, for example, an Ontario statute incorporated both current and future English rules related to the enforcement of spousal and child support orders. Professors Hogg and Wright note that in Scott, this Court “recognized, but did not attach particular importance to, the fact that the Ontario statute adopted not only the English rules in existence at the time of the enactment of the Ontario statute, but the English rules in existence from time to time in the future” (§ 14:13; see also Beaudoin, at p. 318; N. Finkelstein, Laskin’s Canadian Constitutional Law (5th ed. 1986), at p. 43). It is uncontroversial that legislation may be enacted “by reference to the legislation as it may from time to time be” of another legislative body (Scott, at p. 143 (emphasis added); see also Coughlin, at p. 575; Smith, at p. 366; Dick, at p. 328).
[126] A legislative body’s broad power to incorporate by reference is, however, subject to limits. For example, the legislative body cannot abdicate its legislative role: it cannot permit another entity “to enact general, or generally, laws” for it (Scott, at p. 143; see also Finkelstein, at p. 43). The legislative body must also have the legislative jurisdiction required to enact the law it seeks to referentially incorporate (see Scott, at p. 143; Hogg and Wright, at § 14:14; Finkelstein, at p. 43). Moreover, one level of government cannot delegate legislative powers to another level of government (see Attorney General of Nova Scotia v. Attorney General of Canada, 1950 CanLII 26 (SCC), [1951] S.C.R. 31, at p. 34; Hogg and Wright, at § 14:10; Brun, Tremblay and Brouillet, at para. VI‑1.78; Beaudoin, at pp. 314‑15; Finkelstein, at p. 42; P. J. Monahan, B. Shaw and P. Ryan, Constitutional Law (5th ed. 2017), at p. 402). Administrative inter‑delegation is permitted, however: one level of government may validly delegate powers to an administrative body created by another level of government (P.E.I. Potato Marketing Board v. H. B. Willis Inc., 1952 CanLII 26 (SCC), [1952] 2 S.C.R. 392; Reference re Agricultural Products Marketing Act, 1978 CanLII 10 (SCC), [1978] 2 S.C.R. 1198, at pp. 1223‑24; Hogg and Wright, at § 14:11; Brun, Tremblay and Brouillet, at para. VI‑1.78; Beaudoin, at p. 315; Finkelstein, at pp. 45‑46).
[127] One commentator has expressed doubts about the possibility that the incorporation by reference of the laws of Indigenous groups, communities or peoples could be invalid, “since Parliament could easily adopt them piecemeal as they arise without violating subsection 91(24) of the Constitution Act, 1867” (Leclair, at p. 98 (footnote omitted)). We agree. Here, s. 21(1) of the Act validly incorporates by reference the laws in relation to child and family services, as amended from time to time, of an Indigenous group, community or people referred to in s. 20(3). As concluded above, Parliament has independent legislative authority to enact such laws pursuant to its jurisdiction over “Indians, and Lands reserved for the Indians” under s. 91(24) of the Constitution Act, 1867. To answer the reference question before the Court, it suffices to say that the laws of Indigenous groups, communities or peoples derive force of law from s. 91(24) of the Constitution Act, 1867 and from compliance with the requirements set out in ss. 20 and 21 of the Act. That being said, the Court is taking care not to exclude the possibility that the right of self‑government has a distinct constitutional source. In particular, our conclusion certainly does not negate the possibility that such a right of self‑government may be recognized under s. 35 of the Constitution Act, 1982. This remains an open question.
[128] Parliament has also used appropriate language to incorporate by reference the laws of Indigenous groups, communities or peoples as they may be amended from time to time. Section 21(1) of the Act provides that such laws “ha[ve] . . . the force of law as federal law” once they have come into force. They apply as federal law from the time they are incorporated (Wewaykum Indian Band, at para. 114). Section 21(1) operates in tandem with s. 20(3), which conditions the application of s. 21 on the Indigenous governing body in question having entered into a coordination agreement or made reasonable efforts to do so. These mechanisms effect a valid anticipatory incorporation by reference.
[129] Questions relating to the implementation of laws incorporated by reference may be raised in the future and may need to be addressed. For example, there may be some uncertainty about the territorial scope of an Indigenous governing body’s jurisdiction or about whether an entity is an Indigenous nation or an “Indigenous governing body” for the purposes of the Act. Potential future challenges arising from such issues are, however, beyond the scope of this reference, which raises a broad and general question about the constitutional validity of the Act as a whole. As the Court recently stated, “[i]t is not this Court’s role to express opinions about the substance, arguments or merits of future challenges” (Greenhouse Gas References, at para. 220).
[130] In summary, it is constitutionally open to Parliament to use anticipatory incorporation by reference as a legislative drafting technique. Through s. 21, Parliament has validly incorporated by reference the laws, as amended from time to time, of Indigenous groups, communities or peoples in relation to child and family services. As a result, s. 21 does not alter the architecture of the Constitution.
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