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Statutory Interpretation - "Affirms". 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 meaning of a statutory provision that 'affirms' a constitutional power, here in a constitutional challenge to the FNIMCYFA:(2) Sections 8(a) and 18(1) and the Associated Provisions Do Not Purport to Amend the Constitution
[104] In this reference, the Attorney General of Quebec also submits that the Act is ultra vires because Parliament cannot itself, through legislation, establish the existence of an Indigenous right under s. 35, determine its scope or define its content. The Attorney General maintains that, to have full effect, the affirmations found in various places in the Act require either an amendment to the Constitution or prior judicial recognition. In this regard, the Quebec Court of Appeal was of the view that the Act is based expressly on the premise that Indigenous peoples’ right of self‑government is recognized and affirmed by s. 35(1), and that this right includes child and family services. According to the Court of Appeal, given that such a right does indeed exist, the Act is thus constitutionally valid, subject to the provisions on the incorporation of laws of Indigenous groups, communities or peoples into federal law and on federal paramountcy.
[105] The Attorney General of Quebec states that what he calls [translation] “Part II” of the Act represents an attempt to amend the Constitution unilaterally. In particular, he claims that, through ss. 8 and 18 to 26 of the Act, Parliament has tried to create a third level of government, thereby accomplishing unilaterally what many rounds of constitutional negotiations failed to entrench. He shares the Court of Appeal’s view that the affirmations [translation] “rais[e] some questions, particularly with respect to the division of powers between the legislative and judicial branches” (para. 515).
[106] It is, of course, true that Parliament does not have the power to amend s. 35 of the Constitution Act, 1982 unilaterally. On this point, it should be noted that s. 35.1 commits the federal and provincial governments to the principle that any amendment to s. 35 (among other provisions) will be preceded by a first ministers’ conference convened by the Prime Minister of Canada (s. 35.1(a)). Further, representatives of the Indigenous peoples of Canada will be invited to participate in the discussions on agenda items related to any proposed amendment (s. 35.1(b)). More generally, Part V of the Constitution Act, 1982 sets out the amending formulas that apply in respect of different aspects of the Constitution. Only s. 44 provides for the possibility of unilateral amendments by Parliament, which must be “in relation to the executive government of Canada or the Senate and House of Commons”. But even with regard to the bodies referred to in s. 44, Parliament’s power to amend unilaterally is not without limits (Reference re Senate Reform, 2014 SCC 32, [2014] 1 S.C.R. 704, at para. 48). Moreover, as in other contexts, Parliament acting alone cannot shield a constitutional amendment from the requirements of the Constitution by asserting that the amending provision is declaratory (Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433, at paras. 105‑6). Thus, it is evident that Parliament cannot amend s. 35 unilaterally.
[107] However, in this case, Parliament is not unilaterally amending s. 35 of the Constitution Act, 1982. Rather, it is stating in the Act, through affirmations that are binding on the Crown (s. 7), its position on the content of this constitutional provision. Section 8(a) provides that the purpose of the Act is to “affirm the inherent right of self‑government, which includes jurisdiction in relation to child and family services”. Likewise, under the heading “Affirmation”, s. 18(1) states that the “inherent right of self‑government recognized and affirmed by section 35 of the Constitution Act, 1982 includes jurisdiction in relation to child and family services”. The words “affirm” and “includes” in ss. 8(a) and 18(1) do not convey any intention to amend s. 35, nor could they have this effect. Instead, they “state as a fact” (Canadian Oxford Dictionary (2nd ed. 2004), sub verbo “affirm”) Parliament’s position on the scope of s. 35. The affirmations take this position [translation] “as true” (Le Grand Robert de la langue française (electronic version), sub verbo “affirmer”), without any need for an amendment. Thus, the effect of these provisions is to affirm, not to amend.
[108] While the word “affirmed” (“confirmé” in French) is also used in ss. 16.1(2) and 35(1) of the Constitution Act, 1982, the above discussion must not be read as identifying the meaning of these two provisions or as altering this Court’s jurisprudence. Here, the focus is on the language used in the Act and on the question of whether Parliament had legislative jurisdiction to enact it.
[109] An affirmation is not an amendment, even if the subject of the affirmation is a provision of the Constitution. As this Court has stated in different contexts, the Constitution “is not some holy grail which only judicial initiates of the superior courts may touch” (Cooper v. Canada (Human Rights Commission), 1996 CanLII 152 (SCC), [1996] 3 S.C.R. 854, at para. 70, per McLachlin J., dissenting, quoted with approval in Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504, at para. 29). For this reason, “[c]ourts do not hold a monopoly on the protection and promotion of rights and freedoms; Parliament also plays a role in this regard and is often able to act as a significant ally for vulnerable groups” (R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668, at para. 58).
[110] Here, Parliament has affirmed its position on the content of s. 35 of the Constitution Act, 1982. It is clear that, in this case, this affirmation is set out not in the Constitution but in an ordinary statute. The division of powers and the separation of powers provided for in the Constitution — between Parliament and the legislatures, in the former case, and between legislative bodies and the judiciary, in the latter — do not prevent Parliament from acting in this manner. Parliament, like the legislatures, can enact legislation that affirms its position on the meaning of the Constitution. As mentioned above, it is for the courts to interpret the Constitution where a case so requires (see, e.g., Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), 1995 CanLII 86 (SCC), [1995] 2 S.C.R. 97, at paras. 9‑11; Greenhouse Gas References, at para. 220).
[111] The task that falls to the Court in the context of a reference invites caution: “. . . care must be taken that the interpretation of a question does not amount to a new question” (Reference re Canada Assistance Plan (B.C.), 1991 CanLII 74 (SCC), [1991] 2 S.C.R. 525, at p. 555). Such restraint is called for particularly in constitutional cases: “It is based on the realization that unnecessary constitutional pronouncements may prejudice future cases, the implications of which have not been foreseen” (Phillips, at para. 9). In our view, caution is especially warranted here: the correctness of the position stated by Parliament with respect to the scope of s. 35 does not have to be determined to answer the question asked by the Attorney General of Quebec.
[112] It should be noted that the Attorney General of Canada, as well as a number of the interveners before this Court, argued that s. 35(1) protects Indigenous peoples’ inherent right of self‑government “in relation to child and family services”, as the very wording of the Act affirms. This Court has not yet addressed the question, and it is unnecessary for it to do so in this case to provide the requested opinion on the constitutionality of the Act. The Court has noted that rights of self‑government, insofar as they exist, “cannot be framed in excessively general terms” and cannot extend to a matter — for example, the regulation of gambling — that is not an integral part of the distinctive culture of the First Nations in question (see Delgamuukw, at para. 170; see also R. v. Pamajewon, 1996 CanLII 161 (SCC), [1996] 2 S.C.R. 821, at paras. 27‑28). But the Court has never had to consider a matter as fundamental to the culture and identity of Indigenous peoples as the field of child and family services. While it has not discussed the question from the standpoint of an Aboriginal right of self‑government, the Court has nonetheless referred to the collective dimension of the exercise of certain rights held by Indigenous communities, including: their right to enter into treaties (R. v. Sioui, 1990 CanLII 103 (SCC), [1990] 1 S.C.R. 1025, at p. 1056); their rights incidental to Aboriginal title (Delgamuukw, at paras. 115 and 166; Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 257, at para. 75); and their Aboriginal rights, such as the right to fish (R. v. Marshall, 1999 CanLII 666 (SCC), [1999] 3 S.C.R. 533, at para. 17; R. v. Nikal, 1996 CanLII 245 (SCC), [1996] 1 S.C.R. 1013, at para. 104) or the right to harvest wood (R. v. Sappier, 2006 SCC 54, [2006] 2 S.C.R. 686, at para. 46). For its part, Parliament has declared — through a legislative affirmation — that it considers such a right to be recognized in relation to child and family services. This affirmation is part of the ongoing dialogue on the question among Parliament, the legislatures, Indigenous peoples and the courts (see P. W. Hogg and A. A. Bushell, “The Charter Dialogue Between Courts and Legislatures” (1997), 35 Osgoode Hall L.J. 75, at pp. 79‑80).
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[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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