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Constitution (non-Charter) - 'Double Aspect'

. 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 considered the extent to which the federal parliament may bind provinces (ie. "within areas of federal jurisdiction"), here involving the 'double aspect' doctrine:

(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).

. Caruso v. The Law Society of Ontario

In Caruso v. The Law Society of Ontario (Div Court, 2023) the Divisional Court considered (and dismissed) a JR by an Ontario paralegal challenging the accepted constitutional governage of immigration consultants, specifically whether LSO By-law 4 ['Licensing'] governed the issue as opposed to s.91(2) ['Representation or Advice'] of the Immigration and Refugee Protection Act.

In these quotes the court considers constitutional federal-provincial conflict between the Ontario LSO Bylaw 4 and the Immigration and Refugee Protection Act s.91(2), concluding that the issue is one of 'double aspect' division-of-powers, which in turn leads to a conflict-paramountcy inquiry:

(2) Does By-Law 4 conflict with s. 91(2) of the IRPA, such that it is constitutionally inoperative to paralegals licensed by the LSO?

[81] The Applicant argues that if By-Law 4 does not permit paralegals to draft immigration documents or provide other immigration legal services that are not related to an IRB hearing, it conflicts with s. 91(2) (b) of the IRPA, which expressly authorizes “any other member in good standing of a law society of a province…, including a paralegal” to provide such services, and By-Law 4 is therefore inoperative under the federal paramountcy doctrine.

[82] In order to consider this second issue, we must start with the decision of the Supreme Court of Canada in Mangat.

[83] Mangat dealt with ss. 30 and 69(1) of the former Immigration Act, which authorized non-lawyers to appear at hearings before the IRB. The Supreme Court held that s. 26 of the British Columbia Legal Professions Act, S.B.C. 1998, c. 9, s. 15, which prohibited non-lawyers from engaging in the practice of law, was constitutionally inoperative because compliance with the provincial legislation was impossible without frustrating Parliament’s purpose.

[84] The Applicant argues that the decision in Mangat is determinative of the result in this case; that precisely the same conflict arises in this case, with the same result.

[85] Sections 30 and 69(1) of the former Immigration Act provided:

30. Every person with respect to whom an inquiry [by an adjudicator] is to be held shall be informed of the person’s right to obtain the services of a barrister or solicitor or other counsel and to be represented by any such counsel at the inquiry and shall be given a reasonable opportunity, if the person so desires, to obtain such counsel at the person’s own expense.

69. (1) In any proceedings before the Refugee Division, the Minister may be represented at the proceedings by counsel or an agent and the person who is the subject of the proceedings may, at that person’s own expense, be represented by a barrister or solicitor or other counsel.

[86] The central issues raised in Mangat were whether ss. 30 and 69(1) of the Immigration Act were intra vires the federal Parliament, and whether a provision of the provincial Legal Profession Act, which prohibits a person, other than a member of the Law Society in good standing or a person listed in the exceptions, to engage in the practice of law is constitutionally inoperative or inapplicable to persons acting under ss. 30 and 69(1) of the Immigration Act and its associated Rules and Regulations.

[87] The Supreme Court concluded, at para. 23, that the subject matter of the impugned provisions:

[F]alls within both the provincial jurisdiction over civil rights in the province under s. 92(13) of the Constitution Act, 1867 and the federal jurisdiction over aliens and naturalization under s. 91(25) of the Constitution Act, 1867. Statutes of the two levels of government regulating this subject matter will therefore coexist insofar as they do not conflict. Where there is a conflict, the federal legislation will prevail according to the paramountcy doctrine. In this case, there is a conflict between both statutes. The Immigration Act authorizes non-lawyers to appear for a fee, whereas the Legal Profession Act prohibits them from doing so. Dual compliance to both statutes is impossible without frustrating Parliament’s purpose. The Immigration Act must therefore prevail over the Legal Profession Act.

[88] It is not necessary to fully review the Court’s federalism analysis in Mangat. The parties in the present case do not dispute the application of the double aspect doctrine to the federal and provincial statutes at play in this case, only the application of the paramountcy doctrine to those statutes. I note only the Court’s conclusion at para. 47, which applies to the statutory provisions at issue in this case:

The subject matter of the representation of aliens by counsel before the IRB has federal and provincial aspects. Parliament and the provincial legislatures can both legislate pursuant to their respective jurisdiction and respective purpose. The federal and provincial statutes and rules or regulations in this regard will coexist insofar as there is no conflict.

[89] In considering the federal paramountcy doctrine, the Court in Mangat began by interpreting the term “other counsel” in ss. 30 and 69(1) of the Immigration Act. The Court held, at para. 55, that the term “‘other counsel’ must mean non-lawyers”.

[90] Significantly, the term “other counsel” did not mean “paralegals”, since, at the time, paralegals were neither licensed nor regulated by any regulatory body. The Court stated, at para. 56: “[T]here is nothing in those provisions which requires other counsel, whether they act for a fee or not, to be licensed”. As such, the provision did not incorporate a licensing requirement for “other counsel”.

[91] The Court then moved to the question of whether there is an operational conflict between the federal and provincial legislation. The Court concluded, at para. 72, that there was such a conflict because the provincial law conflicted with the purpose of the federal law:

In this case, there is an operational conflict as the provincial legislation prohibits non-lawyers to appear for a fee before a tribunal but the federal legislation authorizes non-lawyers to appear as counsel for a fee. At a superficial level, a person who seeks to comply with both enactments can succeed either by becoming a member in good standing of the Law Society of British Columbia or by not charging a fee. Complying with the stricter statute necessarily involves complying with the other statute. However, following the expanded interpretation given in cases like M & D Farm and Bank of Montreal, supra, dual compliance is impossible. To require “other counsel” to be a member in good standing of the bar of the province or to refuse the payment of a fee would go contrary to Parliament’s purpose in enacting ss. 30 and 69(1) of the Immigration Act. In those provisions, Parliament provided that aliens could be represented by non-lawyers acting for a fee, and in this respect it was pursuing the legitimate objective of establishing an informal, accessible (in financial, cultural, and linguistic terms), and expeditious process, peculiar to administrative tribunals. Where there is an enabling federal law, the provincial law cannot be contrary to Parliament’s purpose. Finally, it would be impossible for a judge or an official of the IRB to comply with both acts.

[92] The Court therefore concluded, at para. 74, that the Legal Profession Act was inoperative to the extent that it prohibited non-lawyers from collecting a fee to act as representative and to provide services in hearings before the IRB.

[93] Also helpful in this analysis is the Supreme Court’s discussion of the two branches of the federal paramountcy doctrine in the later case of Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536, at para. 64:

Claims in paramountcy may arise from two different forms of conflict. The first is operational conflict between federal and provincial laws, where one enactment says “yes” and the other says “no”, such that “compliance with one is defiance of the other”: Multiple Access Ltd. v. McCutcheon, 1982 CanLII 55 (SCC), [1982] 2 S.C.R. 161, at p. 191, per Dickson J. In Bank of Montreal v. Hall, 1990 CanLII 157 (SCC), [1990] 1 S.C.R. 121, at p. 155, La Forest J. identified a second branch of paramountcy, in which dual compliance is possible, but the provincial law is incompatible with the purpose of federal legislation: see also Law Society of British Columbia v. Mangat, 2001 SCC 67, [2001] 3 S.C.R. 113, at para. 72; Lafarge Canada, at para. 84. Federal paramountcy may thus arise from either the impossibility of dual compliance or the frustration of a federal purpose: Rothmans, at para. 14.

[94] The Court clearly states that Mangat falls into the second branch of paramountcy cases in which dual compliance is possible, but the provincial law is incompatible with the purpose of the federal legislation.

[95] In addressing the “incompatible purpose” branch of paramountcy cases, the Court stated, at para. 68, that “invocation of federal paramountcy on the basis of frustration of purpose, as opposed to operational conflict, requires clear proof of purpose; mere permissive federal legislation does not suffice”.

[96] The Court explained this, with specific reference to its decision in Mangat, at paras. 69 and 70:

The distinction between a federal purpose sufficient to attract the doctrine of federal paramountcy on the one hand, and absence of specific purpose on the other, is illustrated by a comparison of this Court’s decisions in Spraytech and Mangat. In Spraytech, the federal pesticide legislation was permissive, allowing the manufacture and use of the pesticides. In this sense, the federal scheme resembled the Aeronautics Act, which permits the construction of aerodromes wherever their construction is not expressly restricted. The impugned municipal by-law prevented the use of pesticides that would have been permitted under the federal scheme. L’Heureux-Dubé J. held that the second branch of the doctrine of federal paramountcy was not engaged:

Analogies to motor vehicles or cigarettes that have been approved federally, but the use of which can nevertheless be restricted municipally, well illustrate this conclusion. There is, moreover, no concern in this case that application of By‑law 270 displaces or frustrates “the legislative purpose of Parliament”. [para. 35]

In Mangat, by contrast, federal legislation provided for “other counsel”, who were not members of a provincial bar, to appear before the Immigration and Refugee Board (“IRB”) for a fee. However, the provincial statute required agents appearing before the IRB to be members of a provincial bar association or else refrain from charging a fee. Though it was possible to comply with both the federal and provincial enactments (non-lawyers could appear without charging a fee), Gonthier J. concluded that the provincial law undermined the purpose of the federal legislation (para. 72). Parliament had specifically provided that non-lawyers could appear before the IRB. This express purpose prevailed over the Province’s conflicting legislation.

[97] The point here is that, in Mangat, the Court found that Parliament’s purpose was to permit unregulated “other counsel” to represent persons before the IRB. Provincial regulation of “other counsel” was found to be inconsistent with that purpose. As the Court stated, at para. 72 of Mangat: “To require “other counsel” to be a member in good standing of the bar of the province …would go contrary to Parliament’s purpose in enacting ss. 30 and 69(1) of the Immigration Act.”

[98] In the present case we are no longer dealing with ss. 30 and 69(1) of the former Immigration Act.

[99] While the former s. 69(1) is very similar to the current s. 167(1) of the IRPA, s. 167(1) must be read in conjunction with s. 91(1) and (2), which was first enacted by Parliament in 2011 and requires that the provider of such services in Ontario be a member in good standing of the provincial law society or the College of Immigration and Citizenship Consultants: Law Society of Ontario v. Leahy, 2018 ONSC 4722, at para. 23.

[100] If it had previously been Parliament’s intention to permit unregulated “other counsel” to represent persons before the IRB under the Immigration Act, that purpose was abandoned by the amendment to the IRPA in 2011, which restricted such representation to four categories of licensed persons: lawyers, notaries (in Quebec), immigration consultants and paralegals.

[101] Some legislative history will be helpful to put the 2011 amendment into context.

[102] Section 114(1)(v) of the version of the Immigration Act considered by the Supreme Court in Mangat gave the Governor in Council the authority to enact regulations:

(v) requiring any person, other than a person who is a member of the bar of any province, to make an application for and obtain a licence from such authority as is prescribed before the person may appear before an adjudicator, the Refugee Division or the Appeal Division as counsel for any fee, reward or other form of remuneration whatever;

[103] At the time Mangat was decided, no such regulations had been enacted. The Court held that this provision confirmed Parliament’s intention that any such regulation would come, if at all, from the federal government. The Court stated, at para. 67:

As I mentioned above, there is no obligation for Parliament to regulate the “other counsel”, even though it may be wise and advisable to do so. The enactment of ss. 30 and 69(1) and of s. 114(1)(v) illustrates Parliament’s intention to address the subject of who may appear before the IRB. Aside from the situations where Parliament refers to provincial legislation (as it does for barristers and solicitors), the federal government has defined “other counsel” as being “a person”, and the provinces cannot intervene in that sphere. Moreover, by the enactment of s. 114, Parliament has demonstrated its intent to regulate such counsel if and when needed. It has not yet done so, but that does not mean that the provinces can enact conflicting legislation in the meantime. However, to the extent that Parliament refers to the provincial statutes and regulations or leaves the matter unaddressed, the provinces can regulate that matter in accordance with their own powers.

[104] When the IRPA was enacted in 2004, s. 114(1)(v) of the former Immigration Act was replaced by s. 91 of the IRPA, which provided:

91. The regulations may govern who may or may not represent, advise or consult with a person who is the subject of a proceeding or application before the Minister, an officer or the Board.

[105] Pursuant to this regulation making authority, in 2004, the Governor in Council adopted Regulation SOR/2004-59 that prohibited any person other than an “authorized representative” to “for a fee, represent, advise or consult with a person who is the subject of a proceeding or application before the Minister, and officer or a Board.”

[106] An “authorized representative” was defined as:

A member in good standing of a bar of a province, the Chambre des notaires du Quebec or the Canadian Society of Immigration Consultants ...

[107] The Canadian Society of Immigration Consultants is an independent body established by the federal government in 2003 to regulate non-lawyer immigration consultants.

[108] Thus, between 2004 and 2011, only licensed lawyers, Quebec notaries and immigration consultants could represent persons in proceedings before the IRB. (Recall that there was no such thing as a licensed paralegal anywhere in Canada prior to 2007).

[109] In 2011, s. 91 was amended to its present version. This amendment moved the prohibition against the unauthorized provision of immigration services from the regulation to the body of the IRPA.

[110] As the parties both point out, the original version of the draft legislation (Bill C-35) did not include paralegals, but the Bill was amended – at the request of the LSO – to include paralegals licensed by a provincial law society.

[111] In my view, the purpose of s. 91 can be discerned by comparing s. 91 to the statutory regime that existed when Mangat was decided by the Supreme Court.

[112] As indicated above, the Court in Mangat found that Parliament’s purpose was to permit unregulated “other counsel” to represent persons before the IRB. Parliament reserved for itself the authority to regulate such other counsel “if and when needed”. In the absence of such federal regulation, provincial regulation of “other counsel” was found to be inconsistent with that purpose. “To require “other counsel” to be a member in good standing of the bar of the province …would go contrary to Parliament’s purpose in enacting ss. 30 and 69(1) of the Immigration Act.”

[113] Section 91 now demonstrates a decidedly different legislative purpose. The purpose of s. 91 is to restrict the provision of immigration services to only regulated “other counsel”. These “other counsel” are regulated by three regulatory bodies identified in s. 91: the provincial law society, the Chambre des notaires du Québec, and the College of Immigration and Citizenship Consultants. Requiring “other counsel” to be members in good standing is no longer contrary to Parliament’s purpose, it is Parliament’s purpose.

[114] The text of s. 91(2) refers to a paralegal who is a “member in good standing of a law society of a province”. By limiting s. 91(2) to paralegals “in good standing”, Parliament demonstrated its intention that such paralegals would be regulated by the provincial law societies and comply with their regulatory requirements.

[115] This is made abundantly clear at para. 67 of Mangat, where the Court stated:

However, to the extent that Parliament refers to the provincial statutes and regulations …, the provinces can regulate that matter in accordance with their own powers.

[116] Where Parliament’s purpose is to restrict the provision of legal services to persons regulated by the provincial law society, regulation by the provincial law society is not incompatible with Parliament’s purpose. Indeed, regulation by the provincial law society is exactly what Parliament intended. These regulations may include matters such as educational requirements, professional competence, codes of conduct and scope of practice restrictions.

Conclusion

[117] Based on the foregoing, I conclude that LSO By-Law 4 does not conflict with the purpose of s. 91(2) of the IRPA, and the doctrine of federal paramountcy has no application.