Editor’s Note: This post was written as a preview of an upcoming Supreme Court of Canada decision for the Fantasy Courts website and newsletter.

Hi, here’s what you need to know about the Supreme Court of Canada this week in 6 minutes.

Latest News

  1. The SCC is releasing its division of powers decision in Attorney General of Quebec v. Attorney General of Canada, et al. on Friday, February 9, 2024. It’s an appeal of a reference decision regarding the constitutionality of federal legislation that recognizes and empowers the Aboriginal right of self-government over child and family services. The Court of Appeal had found only two sections were unconstitutional.
  2. Last week the SCC released its decision in Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2024 SCC 4. The Court allowed the appeal and ruled that a Cabinet records exemption protects the Ontario Premier’s mandate letters from disclosure under freedom of information legislation.
  3. 58% correctly predicted last week’s decision.

Head over to Fantasy Courts to lock in your predictions for this week’s decision or read more about the cases below.

Case to Predict: Aboriginal Self-Government

Appeal as of right from Renvoi à la Cour d’appel du Québec relatif à la Loi concernant les enfants, les jeunes et les familles des Premières Nations, des Inuits et des Métis, 2022 QCCA 185

SCC factums & webcast of hearing

What Happened?

Reference Question: The Quebec government submitted the following question to the Quebec Court of Appeal: “Is An Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24, ultra vires the Parliament of Canada under the Constitution of Canada?”

Court of Appeal: The Court of Appeal answered that the Act is constitutional, except for ss. 21 and 22(3). It found that the pith and substance of the Act is to ensure the well being of Indigenous children by fostering culturally appropriate services that will reduce their over representation in provincial child welfare systems. The well being of Indigenous persons is part of the essence of the federal head of power set out in s. 91(24) of the Constitution Act, 1867, and the national principles stated in general terms in the Act are compatible with Quebec’s child welfare legislation. The Court of Appeal also held that the right of self-government in relation to child and family services falls within s. 35 of the Constitution Act, 1982.

Examining the framework established by the Act for circumscribing the exercise of this generic Aboriginal right, the Court found that the aim of s. 21 of the Act is to make the doctrine of federal paramountcy applicable to Indigenous laws. Because this alters the fundamental architecture of the Constitution, s. 21 is ultra vires. The same is true of s. 22(3), which provides that Indigenous laws prevail over any conflicting or inconsistent provisions of provincial legislation. Section 91(24) of the Constitution Act, 1867 does not authorize Parliament to give absolute priority to an Aboriginal right.

What Was Argued at the SCC?

Appellant: Quebec argued that s. 91(24) of the Constitution does not allow Parliament to dictate to the provinces the manner in which they must exercise their jurisdiction in matters of youth protection of Indigenous children. The Act is improperly attempting to unilaterally modify the scope and content of s. 35 of the Constitution by providing that s. 35 recognizes and confirms the inherent right to self-government of Aboriginal peoples. This offends the constitutional amendment procedure. It was also not necessary for the Quebec Court of Appeal to recognize a generic right of self-government of Aboriginal peoples in this reference.

Respondent: Canada argued that the Act marks an important step towards reconciliation with Indigenous peoples and is constitutionally valid in its entirety. The pith and substance of the Act is to protect and ensure the well-being of Indigenous children, families and communities. These provisions clearly fall under the federal authority set out in s. 91(24) since they concern relationships within Indigenous families and communities and aim to ensure the survival of Indigenous peoples’ distinctive cultures and their Indigenous character. In its cross-appeal, Canada argued that ss. 21 and 22(3) do not alter s. 35 or the architecture of the Constitution.

What Else Should You Know Before Making a Prediction?

For prediction purposes, we’ll be focused on Quebec’s main appeal. Also, note we’ve left Brown J. active on purpose to avoid a potential tie, which would be treated as appeal dismissed.

Quebec had a tough time at the Quebec Court of Appeal, and I don’t see it getting easier at the Supreme Court. I expect the SCC to confirm the existence of an Indigenous right to self-government in child and family welfare. I’m leaning towards Quebec’s appeal being dismissed. However, I’m not overly confident in that prediction as there are a lot of provisions potentially at issue that could be found ultra vires.

Previous Predictions: Disclosure of Cabinet mandate letters

On February 2, 2024, the SCC released its decision in Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2024 SCC 4.

Held (7:0): Appeal allowed. Mandate letters are exempt from disclosure.

Key Points:

  • Freedom of information legislation strikes a balance between the public’s need to know and the confidentiality the executive requires to govern effectively. In Ontario, s. 12(1) of FIPPA exempts records that would reveal the substance of deliberations of Cabinet or its committees.
  • The mandate letters reflect the view of the Premier on the importance of certain policy priorities and mark the initiation of a fluid process of policy formulation within Cabinet. The letters are revealing of the substance of Cabinet deliberations.
  • It is not necessary to resolve the issue of standard of review, as the same conclusion follows regardless of whether the standard of review of the IPC’s decision is correctness or reasonableness. The narrow zone of protection for Cabinet deliberations created by the IPC’s interpretation and application of s. 12(1) is not justified, even on the more deferential standard of reasonableness.
  • The IPC failed to give meaningful weight to the legal and factual context, including traditions and constitutional conventions concerning Cabinet confidentiality, the role of the Premier, and the fluid, dynamic nature of the Cabinet decision-making process.

Predictions: 58% of players correctly predicted the appeal would be allowed.

-Tom Slade

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