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Statutory Interpretation - "For Greater Certainty". 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 federal 'paramountcy' (and a novel statutory interpretation twist thereon), 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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[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).
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(4) The Section 22(3) Paramountcy Provision Does Not Alter the Architecture of the Constitution
[131] The Attorney General of Quebec argues that s. 22(3) of the Act, the paramountcy provision, alters the architecture of the Constitution. In our view, this is not the case. Section 22(3) provides as follows: “For greater certainty, if there is a conflict or inconsistency between a provision respecting child and family services that is in a law of an Indigenous group, community or people and a provision respecting child and family services that is in a provincial Act or regulation, the provision that is in the law of the Indigenous group, community or people prevails to the extent of the conflict or inconsistency.” The laws of Indigenous groups, communities or peoples that are incorporated by reference will have the force of law as federal law: laws incorporated into federal law apply as federal law (Wewaykum Indian Band, at para. 114). Section 22(3) is simply a legislative restatement of the doctrine of federal paramountcy.
[132] Under the doctrine of federal paramountcy, the provisions of a valid federal law prevail over conflicting or inconsistent provisions of a provincial law (see Canadian Western Bank, at paras. 32 and 69; Hogg and Wright, at § 16:1; Brun, Tremblay and Brouillet, at para. VI‑2.69; Monahan, Shaw and Ryan, at p. 133; Beaudoin, at p. 354; G. Régimbald and D. Newman, The Law of the Canadian Constitution (2nd ed. 2017), at §5.73). Although paramountcy is a judicial doctrine whose scope and application are matters for the courts rather than Parliament or the legislatures (Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, 1997 CanLII 317 (SCC), [1997] 3 S.C.R. 3, at para. 98; Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, at para. 56), this does not prevent Parliament or a legislature from declaring its understanding of federal paramountcy “[f]or greater certainty”, as Parliament has done in s. 22(3), where these words precede its explanation. But it is ultimately for the courts to adjudicate any alleged conflict between federal law and provincial law and to make any necessary declaration of paramountcy.
[133] As a result, s. 22(3) of the Act does not alter the architecture of the Constitution.
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