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Review (Appeal-JR) - Fresh Law - Charter (2). Saddle Lake Cree Nation #462 v. Collins [fresh law in an indigenous context]
In Saddle Lake Cree Nation #462 v. Collins (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal from a Federal Court JR, here brought against a ruling "that the decision to deny the right to vote to Bill C-31 members was unreasonable" - where Bill-31 "had the effect of reinstating status to women, and by extension to their children, who had lost their Indian status upon marrying non-status men".
The court considered 'fresh law' (my term) doctrine, here in an indigenous context:[16] Saddle Lake contends that since this category no longer exists and is therefore unrelated to the denial of voting rights to Bill C-31 members, the Federal Court had no basis upon which to declare the Voting Prohibition unconstitutional.
[17] There are several problems with Saddle Lake’s submission. To begin with, its argument that section 2(a) of the Election Regulations is not the "“source”" of the Voting Prohibition was not raised in its Notice of Appeal, nor was it clearly set out in its Amended Memorandum of Fact and Law. The general rule is that this Court will not hear grounds of appeal that were not raised in the Notice of Appeal. This is to ensure that "“the parties know at an early stage of the appeal what is in issue and can make legal, tactical and policy decisions accordingly”" (Canada v. Jim Shot Both Sides, 2022 FCA 20 at para. 40).
[18] Furthermore, raising this new argument on appeal deprives this Court of the benefit of an evidentiary record upon which to consider it. As the Supreme Court has stated, new issues should not be considered on appeal "“unless it be clear that, had the question been raised at the proper time, no further light could have been thrown upon it”" (Quan v. Cusson, 2009 SCC 62 at para. 36, citing Lamb v. Kincaid, 1907 CanLII 38 (SCC), 38 S.C.R. 516, at p. 539). Had Saddle Lake raised this argument before the Federal Court, it would have been required to submit evidence to support its submission that section 2(a) of the Election Regulations was not the basis for the Voting Prohibition. It did not do so. . J.F.R. v. K.L.L.
In J.F.R. v. K.L.L. (Ont CA, 2024) the Ontario Court of Appeal allowed an appeal from a s.16.1 ['Parenting order'] Divorce Court proceeding (here regarding "the parties’ adult son’s residence schedule with each of his parents"), but which was made without a Substitute Decision Act "capacity for personal care and property" determination for the Down's Syndrome adult child.
The court dismisses any constitutional challenge to a portion of the Divorce Act, here where the issue was not raised in the lower court:(1) Constitutional Issues and Standing
[13] In addition to asserting M’s right to participate, the appellant raises a constitutional challenge to s. 2(1)(b) of the Act. She submits that the definition of “child of the marriage” under s. 2(1)(b) of the Act, as it applies to a parenting order under s. 16.1 for adult persons living with a disability, infringes those persons’ rights under s. 15 of the Charter of Rights and Freedoms.[3] She did not raise this issue before the motion judge.
[14] I conclude that the appellant’s constitutional challenge cannot succeed. First, this court does not have an appropriate record from which to carry out the requisite analysis: R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at paras. 41-43, leave to appeal refused, [2016] S.C.C.A. No. 432. Second, the appellant lacks standing to raise the Charter issue.
[15] The appellant does not have standing to raise the constitutional issues that she puts forward on behalf of her son. She does not allege that her constitutional rights have been infringed. She has not formally claimed public interest standing. Nor would she meet the test for public interest standing because she purports to assert her son’s private rights that he could have brought forward had he been served: see Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524, at para. 37. She has also not been appointed to represent her son, for example, as his litigation guardian under r. 7 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 or s. 4 of the Family Law Rules, O. Reg. 114/99, under the Courts of Justice Act, R.S.O. 1990, c. C.43, or as his guardian under s. 55(1) of the SDA.
[16] M. is now independently represented by counsel, pursuant to the July 6, 2023 order of this court. Counsel for M. submits that M.’s dignity and autonomy must be considered and that he has strong views and preferences, which should be given considerable weight. Counsel for M. does not assert any breach of M.’s constitutional rights on this appeal.[4]
[17] As such, the appellant has no standing to raise these constitutional issues on this appeal.[5]
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