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Constitution - Division of Powers. 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 'classification' phase of the constitutional division-of-powers validity assessment, here the location of the FNIMCYFA within the s.91(24) ['Indians, and Lands reserved for the Indians'] of the Constitution Act, 1867 head of power:B. Classification Under Section 91(24) of the Constitution Act, 1867
[93] The Act falls squarely within s. 91(24) of the Constitution Act, 1867. Binding the federal government to the affirmation set out in s. 18(1), establishing national standards and facilitating the implementation of the laws of Indigenous groups, communities or peoples are all measures that are within Parliament’s powers under s. 91(24).
[94] The jurisdiction provided for in s. 91(24) is broad in scope and relates first and foremost to what is called “Indianness” or Indigeneity, that is, Indigenous peoples as Indigenous peoples.
[95] The foregoing is sufficient to conclude that the Act is intra vires Parliament under its jurisdiction over “Indians”. However, the Attorney General of Quebec has raised other objections to the constitutional validity of the Act, which we reject for the reasons that follow.
(1) Sections 1 to 17 of the Act Need Not Be Classified Under Section 92 of the Constitution Act, 1867
[96] The Attorney General of Quebec argues that the pith and substance of ss. 1 to 17 of the Act is to determine, through the adoption of minimum national standards, how provincial jurisdiction over youth protection is to be exercised in relation to Indigenous children. He also contends that these standards interfere with the work of the provincial public service, whose independence is essential to the existence of two levels of government that are coordinate, with no subordination of one to the other. Essentially, he argues, the provinces are being told how they must provide child services to Indigenous peoples within their borders. For the reasons that follow, the Attorney General of Quebec’s position cannot be accepted.
[97] It is trite law that Parliament can bind the Crown in right of the provinces (see, e.g., Attorney‑General for British Columbia v. Canadian Pacific Railway, [1906] A.C. 204 (P.C.); see also Brun, Tremblay and Brouillet, at paras. IX.95‑IX.96; Hogg and Wright, at § 10:21). However, Parliament can do so only within areas of federal jurisdiction.
[98] The minimum national standards are within federal jurisdiction and can accordingly be binding on the provincial governments. The double aspect doctrine allows for “the concurrent application of both federal and provincial legislation” in relation to the “same fact situation” (Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837, at para. 66 (emphasis in original); Greenhouse Gas References, at para. 129). Youth protection in the Indigenous context has a double aspect, since it can be approached from two different perspectives: protection of the ties between Indigenous families and communities, in a spirit of cultural survival, under s. 91(24) (Canadian Western Bank, at para. 61; see also Natural Parents v. Superintendent of Child Welfare, 1975 CanLII 143 (SCC), [1976] 2 S.C.R. 751, at p. 787, per Beetz J.); or child and family services and youth protection, under s. 92(13) and (16) (NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union, 2010 SCC 45, [2010] 2 S.C.R. 696, at paras. 36‑40, per Abella J., and at paras. 74‑78, per McLachlin C.J. and Fish J., concurring; see also J. Woodward, Aboriginal Law in Canada (loose‑leaf), at § 4:16). While the provinces are generally “the keeper[s] of constitutional authority over child welfare” (NIL/TU,O, at para. 24), the federal government also has jurisdiction to legislate in relation to child and family services for Indigenous children. As Professors Hogg and Wright have noted, “[i]f s. 91(24) merely authorized Parliament to make laws for Indians which it could make for non‑Indians, then the provision would be unnecessary” (§ 28:2).
[99] Child welfare in the Indigenous context is not only a field in which Parliament and the provinces can act, but also one in which concerted action by them is necessary. The importance of cooperation in this area between these two levels of government is illustrated, for example, by Jordan’s Principle, according to which intergovernmental disputes may not interfere with the right of Indigenous children to access the same services as other children in Canada. With regard to such disputes, the Truth and Reconciliation Commission noted that the federal government and the provincial governments have historically tended to shift responsibility for Indigenous child welfare services to one another (Honouring the Truth, Reconciling for the Future, at pp. 142‑43). However, today it is recognized that providing such services is the responsibility of both levels of government, which must act in a concerted fashion (House of Commons Debates, vol. 142, No. 31, 2nd Sess., 39th Parl., December 5, 2007, at p. 1780 (S. Blaney)). Since there is overlapping federal and provincial jurisdiction with respect to Indigenous children, it was entirely open to Parliament to legislate as it did (see, e.g., Grammond (2018), at pp. 137‑38).
[100] We would add that while the provinces are validly bound by the national standards, these standards are not so precise and inflexible that they regulate all aspects of the provision of child and family services in the Indigenous context. Given the degree of generality with which these standards have been formulated, provincial public servants retain significant discretion in making decisions concerning Indigenous children. Moreover, the national standards apply to all service providers, whether they are provincial public servants or not. Finally, far from interfering with provincial initiatives, the national standards appear to be largely complementary to them. Indeed, the example of the Youth Protection Act, CQLR, c. P‑34.1 (“YPA”), many of whose provisions bear a striking similarity to the national standards, is instructive in this regard.
[101] The remarks made about the Act by the Deputy Minister, Department of Indigenous Services, during the proceedings of the Standing Committee on Indigenous and Northern Affairs are particularly enlightening. The Deputy Minister noted on that occasion that Parliament’s approach had been inspired by the child welfare initiatives taken by Quebec in relation to Indigenous children, including the amendments made to the YPA by the National Assembly of Quebec. He stated the following:We’re using the results of the work that Quebec is already doing with indigenous people, particularly on the principles. We could end up with very positive approaches in Quebec, which wouldn’t necessarily be changed by the legislation. The legislation doesn’t call into question the positive aspects. Instead, it sets minimum standards. Moreover, in many cases, we have the impression that these standards are already being met or even exceeded.
(House of Commons, Standing Committee on Indigenous and Northern Affairs, Evidence, No. 146, 1st Sess., 42nd Parl., April 30, 2019, at p. 9) [102] The various principles set out in Chapter V.1 of the YPA, which is entitled “Provisions Specific to Indigenous People”, including the principle of cultural continuity, are in line with the national standards. Both the Act and the YPA envision the concept of well‑being of Indigenous children on the basis of the idea that “Indigenous persons are best suited to meet the needs of their children in the manner that is the most appropriate” (YPA, preamble).
[103] It follows from all of the foregoing that the national standards have only “incidental” effects on the provinces’ exercise of their powers, including on the work of their public servants. As this Court has reiterated many times, effects of this kind have no impact on the constitutional validity of the legislation from which they arise (Canadian Western Bank, at para. 28, quoting Global Securities Corp. v. British Columbia (Securities Commission), 2000 SCC 21, [2000] 1 S.C.R. 494, at para. 23).
(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).
[113] This Court’s jurisprudence recognizes the close link that exists between “cultural continuity” for Indigenous peoples, a principle to which the Act expressly refers in s. 9(2), and keeping Indigenous children in their community. As the Court stated in Canadian Western Bank with respect to s. 91(24) of the Constitution Act, 1867, “relationships within Indian families and reserve communities [can] be considered absolutely indispensable and essential to their cultural survival” (para. 61). These relationships are “at the centre of what they do and what they are” (Delgamuukw, at para. 181, quoting Dick v. The Queen, 1985 CanLII 80 (SCC), [1985] 2 S.C.R. 309, at p. 320). Indeed, the Crown has always clearly understood the role played by family in the survival of Indigenous culture. It is no coincidence that the Crown targeted Indigenous children when, at the height of its imperialism, it was seeking to destroy Indigenous cultures (see C.A. reasons, at para. 85).
[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). . 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 [at paras 37-92] the key identification of the 'pith and substance' of legislation [here, of the First Nations, Inuit and Métis children, youth and families (FNIMCYFA) legislation], the first of two parts of the constitutional validity inquiry. The second is "classifying it by reference to the heads of power listed in ss. 91 and 92 of the Constitution Act, 1867":[134] Developed in cooperation with Indigenous peoples, the Act represents a significant step forward on the path to reconciliation. It forms part of the implementation of the UNDRIP by Parliament. It also responds to call to action No. 4 made by the Truth and Reconciliation Commission, which calls upon the federal government to establish national standards and to affirm the role of Indigenous governments in the area of child and family services. The Act creates space for Indigenous groups, communities and peoples to exercise their jurisdiction to care for their children. The recognition of this jurisdiction invites Indigenous communities to work with the Crown to weave together Indigenous, national and international laws in order to protect the well‑being of Indigenous children, youth and families.
[135] The pith and substance of the Act, taken in its entirety, is to protect the well‑being of Indigenous children, youth and families by promoting the delivery of culturally appropriate child and family services and, in so doing, to advance the process of reconciliation with Indigenous peoples. This important legislative initiative falls squarely within Parliament’s legislative jurisdiction under s. 91(24) of the Constitution Act, 1867.
[136] For these reasons, the following reference question:Is the Act respecting First Nations, Inuit and Métis children, youth and families ultra vires the jurisdiction of the Parliament of Canada under the Constitution of Canada?
is answered as follows:
No. . Reference re Impact Assessment Act
In Reference re Impact Assessment Act (SCC, 2023) the Supreme Court of Canada considered (and largely allowed) a constitutional division-of-powers challenge to the federal Impact Assessment Act.
Here the court considers the preliminary division-of-powers stages, which are the pith-and-substance 'characterization', and the division-of-powers 'classification'. These quotes address the 'classification' analysis:[60] The division of powers analysis has two steps: characterization and classification. I will begin by canvassing the principles governing the characterization inquiry.
...
VII. Step 2: Classification
A. The Governing Principles
(1) General Principles
[110] After a court characterizes the matter of a law, it “must determine the ‘class[es] of subjects’ into which the matter falls” (Desgagnés Transport, at para. 38, quoting Quebec (Attorney General) 2015, at para. 29). The court does so “by reference to the heads of power set out in the Constitution” (References re GGPPA, at para. 114). If the matter of the law is “properly classified as falling under a head of power assigned to the adopting level of government, the legislation is intra vires and valid” (Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837, at para. 65).
[111] Canadian federalism recognizes the diversity of the original members of the Canadian Confederation (Hodge v. The Queen (1883), 9 App. Cas. 117 (P.C.), at p. 132; Liquidators of the Maritime Bank of Canada v. Receiver‑General of New Brunswick, [1892] A.C. 437 (P.C.), at pp. 441‑42; Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217, at para. 43; Canadian Western Bank, at para. 22; Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters, 2009 SCC 53, [2009] 3 S.C.R. 407, at para. 29). The constitutional division of powers fosters this diversity within a single nation (Canadian Western Bank, at para. 22). Sections 91 and 92 of the Constitution Act, 1867 confer broad legislative powers on provincial legislatures while granting the “powers better exercised in relation to the country as a whole” to the federal Parliament (Canadian Western Bank, at para. 22).
[112] Each head of power has been assigned to one level of government (or, exceptionally, assigned concurrently to both levels (ss. 92A(3), 94A and 95)). Only the level of government to which a head of power has been assigned can validly legislate in respect of matters falling within that head of power. The burden is on the party challenging the validity of a law to establish that it is ultra vires the enacting level of government (see Hogg and Wright, at § 15:13; see also McNeil, at pp. 687‑88; Rogers Communications, at para. 81).
[113] A law is classified based on its main thrust or dominant characteristic, and its secondary effects are not the focus of the validity analysis (Canadian Western Bank, at para. 28). The fact that a valid law incidentally touches on a head of power belonging to the other level of government does not affect its validity. In other words, effects that are merely incidental — in the sense that they are “collateral and secondary to the mandate of the enacting legislature” — will not “disturb the constitutionality of an otherwise intra vires law” (para. 28; Global Securities Corp. v. British Columbia (Securities Commission), 2000 SCC 21, [2000] 1 S.C.R. 494, at para. 23; British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473, at para. 28; Rogers Communications, at para. 37; Quebec (Attorney General) 2015, at para. 32). . Reference re Impact Assessment Act
In Reference re Impact Assessment Act (SCC, 2023) the Supreme Court of Canada considered (and largely allowed) a constitutional division-of-powers challenge to the federal Impact Assessment Act.
Here the court considers the preliminary division-of-powers stages, which are the pith-and-substance 'characterization', and the division-of-powers 'classification'. The following quotes address the 'characterization' analysis:[60] The division of powers analysis has two steps: characterization and classification. I will begin by canvassing the principles governing the characterization inquiry.
VI. Step 1: Characterization
A. The Governing Principles
(1) The Pith and Substance Analysis
[61] At the characterization step, a court must consider the purpose and effects of the challenged law in order to identify its “pith and substance” (Union Colliery Co. of British Columbia v. Bryden, [1899] A.C. 580 (P.C.), at p. 587; Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14, [2015] 1 S.C.R. 693 (“Quebec (Attorney General) 2015”), at paras. 28-29; Reference re Pan-Canadian Securities Regulation, 2018 SCC 48, [2018] 3 S.C.R. 189, at para. 86; References re GGPPA, at para. 51). The objective of the characterization inquiry is to identify the precise “matter” to which the law in question relates (Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, at para. 26).
[62] In order to determine a law’s purpose, a court looks to both intrinsic and extrinsic evidence (Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783, at para. 17; Canadian Western Bank, at para. 27; Reference re Genetic Non-Discrimination Act, 2020 SCC 17, [2020] 2 S.C.R. 283, at para. 34; References re GGPPA, at para. 51). Intrinsic evidence refers to material contained within the four corners of the law in question, including the text of the law, its preamble, its purpose clause, if it has one, its title and its overall structure. Extrinsic evidence refers to evidence that speaks to the context of the law in question, such as Hansard debates, the minutes of parliamentary committees and relevant government publications.
[63] In analyzing the effects of the challenged law, a court considers both legal and practical effects. Legal effects are those effects that “flo[w] directly from the provisions of the statute itself”, while practical effects are those “‘side’ effects [that] flow from the application of the statute which are not direct effects of the provisions of the statute itself” (Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146, at para. 54; see also Morgentaler, at pp. 482-83; References re GGPPA, at para. 51).
[64] Finally, the court must characterize the pith and substance of the challenged law “as precisely as possible” (References re GGPPA, at para. 52). If the pith and substance is characterized in overly broad terms, then “there is a danger of its being superficially connected with a power of the other level of government” (Reference re Assisted Human Reproduction Act, 2010 SCC 61, [2010] 3 S.C.R. 457, at para. 190). In other words, an imprecise formulation of the pith and substance of the law can infect the subsequent classification analysis. An artificially narrow characterization can similarly distort the analysis. The court should “capture the law’s essential character in terms that are as precise as the law will allow” (References re GGPPA, at para. 52; Reference re Genetic Non-Discrimination Act, at para. 32).
(2) Characterization Is Distinct From Classification
[65] When formulating the pith and substance of a law, litigants and courts may be inclined to glance ahead to the classification step and the catalogue of potential heads of power. It is imperative, however, that the characterization and classification analyses be kept distinct (References re GGPPA, at para. 56). In determining the pith and substance of a law, courts must not refer to the heads of power contained within the Constitution Act, 1867. Only after precisely stating the matter to which the law relates should a court proceed to the classification phase of the analysis and consider specific heads of power.
[66] The judges in the court below, the parties and the interveners adopt differing articulations of the impugned scheme’s pith and substance. With respect, several of these articulations erroneously combine or conflate the characterization of the scheme with its classification.
[67] The Attorney General of Canada submits that the pith and substance of the IAA is to “establish a federal environmental assessment process to safeguard against adverse environmental effects in relation to matters within federal jurisdiction” (A.F., at para. 47). The latter part of this characterization — “in relation to matters within federal jurisdiction” — predetermines the classification of the matter of the scheme under federal heads of power. It amounts to a statement that the main thrust of the scheme is to do what it does in a constitutionally valid manner.
[68] The majority of the Court of Appeal fell into the same error when it concluded, as part of its characterization inquiry, that the scheme’s purpose and effects reveal an “impermissible degree of federal jurisdictional overreach” (para. 373). This is the language of classification; the characterization step of the analysis must focus exclusively on the “pith and substance” or “dominant characteristic” of the law. . Murray‑Hall v. Quebec (Attorney General)
In Murray‑Hall v. Quebec (Attorney General) (SCC, 2023) the Supreme Court of Canada considered the analytic framework for categorizing legislative topics by the constitutional division of powers, including the specific situation where only parts of a statute are being challenged:(1) Analytical Framework
[21] The analytical framework for determining the constitutional validity of laws is well established and is not the subject of any particular controversy in this case, so a brief review will suffice.
[22] To decide whether a law or some of its provisions are constitutionally valid under the division of powers, courts must first characterize the law or provisions and then, on that basis, classify them by reference to the heads of power listed in ss. 91 and 92 of the Constitution Act, 1867 (Reference re Genetic Non‑Discrimination Act, 2020 SCC 17, [2020] 2 S.C.R. 283, at para. 26, citing Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783, at para. 15).
[23] At the characterization stage, what must be determined is the pith and substance of the law (Reference re Genetic Non‑Discrimination Act, at para. 28, citing Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, at para. 26). In its jurisprudence, the Court has described the aim of this exercise as being to identify the “dominant purpose” of the law (RJR‑MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199, at para. 29), its “dominant or most important characteristic” (Friends of the Oldman River Society v. Canada (Minister of Transport), 1992 CanLII 110 (SCC), [1992] 1 S.C.R. 3, at pp. 62‑63) or its “leading feature or true character” (R. v. Morgentaler, 1993 CanLII 74 (SCC), [1993] 3 S.C.R. 463, at pp. 481‑82). At the classification stage, in turn, what must be determined is whether the pith and substance thereby defined comes within one of the heads of power of the enacting legislature (Reference re Firearms Act, at para. 25).
[24] To ascertain the pith and substance of a law, courts look at its purpose and effects (Reference re Firearms Act, at para. 16). This essentially interpretative exercise is meant to be neither technical nor formalistic, to use the words of the late Professor Peter W. Hogg (Constitutional Law of Canada (loose‑leaf ed.), vol. 1, at p. 15‑12, cited in Ward v. Canada (Attorney General), 2002 SCC 17, [2002] 1 S.C.R. 569, at para. 18). Indeed, in addition to the words used in the law itself, courts may consider the circumstances surrounding its enactment (Ward, at para. 17, citing Reference re Firearms Act, at paras. 17‑18, and Morgentaler, at p. 483).
[25] To analyze the purpose of a law, courts rely on intrinsic evidence, that is, the actual text of the law, including its preamble and purpose clauses, as well as extrinsic evidence, such as parliamentary debates and minutes of parliamentary committees (Canadian Western Bank, at para. 27; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146, at paras. 53‑54; Reference re Assisted Human Reproduction Act, 2010 SCC 61, [2010] 3 S.C.R. 457 (“Reference re AHRA”), at paras. 22 and 184). In looking at the effects of the law, courts consider both its legal effects, namely those related directly to the provisions of the law itself, and its practical effects, that is, the “side” effects arising from its application (Kitkatla Band, at para. 54, citing Morgentaler, at pp. 482‑83).
[26] That being said, I would nonetheless emphasize that textual analysis is the focus of the characterization exercise. As Kasirer J. noted in Reference re Genetic Non‑Discrimination Act, “[i]n the final analysis, it is the substance of the legislation that needs to be characterized, not speeches in Parliament or utterances in the press” (para. 165).
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[30] Where, as in this case, only very specific provisions are being challenged and not the entire law, certain principles apply. A court should begin by characterizing the provisions rather than considering the validity of the law as a whole, a principle articulated by Dickson J. (as he then was) in Attorney General of Canada v. Canadian National Transportation, Ltd., 1983 CanLII 36 (SCC), [1983] 2 S.C.R. 206. However, Dickson J. added, this does not mean that the provisions must be read in isolation. A contextual analysis of the provisions is necessary when they are part of a regulatory scheme. Dickson J.’s remarks in this regard are as follows:It is obvious at the outset that a constitutionally invalid provision will not be saved by being put into an otherwise valid statute, even if the statute comprises a regulatory scheme under the general trade and commerce branch of s. 91(2). The correct approach, where there is some doubt that the impugned provision has the same constitutional characterization as the Act in which it is found, is to start with the challenged section rather than with a demonstration of the validity of the statute as a whole. I do not think, however, this means that the section in question must be read in isolation. If the claim to constitutional validity is based on the contention that the impugned provision is part of a regulatory scheme it would seem necessary to read it in its context. If it can in fact be seen as part of such a scheme, attention will then shift to the constitutionality of the scheme as a whole. [Emphasis added; p. 270.] [31] This Court has repeatedly emphasized the need to consider the impugned provisions in light of their interaction with the scheme to which they belong. In Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14, [2015] 1 S.C.R. 693 (“Quebec (Attorney General) 2015”), one of the issues was whether a provision requiring the destruction of long‑gun registration data related to the same matter — public safety — as the legislation repealing the registration scheme. Writing for the majority, Cromwell and Karakatsanis JJ. stated the following: “. . . the ‘matter’ of the provision must be considered in the context of the larger scheme, as its relationship to that scheme may be an important consideration in determining its pith and substance . . .” (para. 30).
[32] The principle enunciated by McLachlin C.J. in Ward, where the issue was whether a section of federal fisheries regulations prohibiting the sale of young seals was constitutionally valid, is also relevant: “The question is not whether the Regulations prohibit the sale so much as why it is prohibited” (para. 19 (emphasis in original)). In that case, therefore, the Court could not simply focus on the fact that the impugned provision imposed a prohibition on sale, trade or barter, which could have suggested that it fell within provincial jurisdiction over property or trade. When the why of the prohibition and its interaction with the rest of the scheme were considered, it became apparent that the purpose of the prohibition was to curtail commercial hunting and that Parliament was validly exercising its fisheries power.
[33] I would also note that reading the impugned provisions in the context of the scheme into which they are integrated is crucial in distinguishing the purpose of the law from the means chosen to achieve it. Indeed, in Ward, McLachlin C.J. cautioned against “confus[ing] the purpose of the legislation with the means used to carry out that purpose” (para. 25).
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[79] The presumption of constitutional validity of legislation remains a cardinal principle of our division of powers jurisprudence (Reference re The Farm Products Marketing Act, 1957 CanLII 1 (SCC), [1957] S.C.R. 198, at p. 255; Nova Scotia Board of Censors v. McNeil, 1978 CanLII 6 (SCC), [1978] 2 S.C.R. 662, at pp. 687‑88; Husky Oil Operations Ltd. v. Minister of National Revenue, 1995 CanLII 69 (SCC), [1995] 3 S.C.R. 453, at para. 162; Reference re Firearms Act, at para. 25). According to this presumption, every legislative provision is presumed to be intra vires the level of government that enacted it. At paras 28-82 the court walks through the case's facts on this analysis.
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