Simon's Legal Resources

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.