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 will release its judgment in Dickson v. Vuntut Gwitchin First Nation on Thursday, March 28, 2024. At issue is the constitutionality of Aboriginal residency requirements for serving on council in a fly-in fly-out community. This case gives the Court a chance to consider s. 25 of the Charter, which reconciles Charter and Indigenous rights but has received very little judicial consideration.
  2. 🌊 On March 15, 2024, the SCC released Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, making waves in administrative law. The Court unanimously allowed the appeal, finding it was an error for the courts below to hold that, where there is a limited right of appeal, judicial review should only be exercised in exceptional or rare cases.
  3. 🔮 Only 12% correctly predicted the result, with most of us expecting calm seas.

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

Cases to Predict: Aboriginal Residency Requirements Meet Section 15

Appeal by leave from Dickson v. Vuntut Gwitchin First Nation, 2021 YKCA 5

SCC factums and webcast

What Happened?

Background: The appellant, Cindy Dickson, is a member of the respondent Vuntut Gwitchin First Nation (“VGFN”) in the Yukon Territory. She lives in Whitehorse, approximately 800km away from the VGFN’s Settlement Lands, for family medical reasons and other socio-economic reasons. Ms. Dickson sought to stand for election to the Council of the VGFN. However, the VGFN constitution specifies that any Councillor must reside on the Settlement Land. It also states that if an eligible candidate for Chief or Councillor does not reside on Settlement Lands during the election, and wins their desired seat, they must relocate to the Settlement Lands within 14 days of election day. Given that Ms. Dickson was unwilling to move to the Settlement Lands, the VGFN Council rejected Ms. Dickson’s candidacy for the position of Councillor. Ms. Dickson then sought a declaration in the Yukon Supreme Court that the residency requirement was inconsistent with her right to equality protected and guaranteed by s. 15(1) of the Charter, could not be justified under s. 1 of the Charter, and was therefore of no force or effect.

Trial: The chambers judge issued a number of declarations, concluding that while the Charter applies to the VGFN Council and to the residency requirement in the VGFN constitution, the residency requirement at its core does not infringe s. 15(1) of the Charter. However, the time limit for relocation specified in the residency requirement — “within 14 days” — does infringe s. 15(1), and should be severed from the requirement and declared to be of no force and effect pursuant to s. 52 of the Constitution Act, 1982. Alternatively, if this was incorrect and the residency requirement does infringe the s. 15(1) equality right, even without the time limit, the chambers judge concluded that s. 25 of the Charter would apply so as to “shield” the residency requirement from a finding of infringement.

Appeal: The Yukon Court of Appeal allowed both Ms. Dickson’s appeal and the VGFN’s cross-appeal from the chambers judge’s decision. It concluded that, subject to any justification demonstrated under s. 1 of the Charter, the residency requirement as a whole (with or without the time limit for relocation) does infringe s. 15(1). However, the Court of Appeal also concluded that, in the event of an unjustified breach of s. 15(1), s. 25 of the Charter would “shield” the residency requirement from challenge, with the ultimate result that the residency requirement is valid. A majority of the Court of Appeal issued a number of declarations to that effect. In partially dissenting reasons, one judge agreed with the majority’s overall disposition of the case, but would have dismissed Ms. Dickson’s appeal and not issued specific declarations.

What Was Argued at the SCC?

Appellant: Ms. Dickson argued that in finding s. 25 of the Charter operated as an absolute shield to uphold the residency requirement even though it violated s. 15 rights, the courts below failed to consider the discriminatory character of the law or its significant adverse effects on her and all other VGFN citizens. The residency requirement is not the type of interest or provision related to Indigenous persons that falls within the scope of s. 25. Giving too broad a scope to rights within s. 25 would not provide adequate respect for, or protection of, the fundamental rights enshrined in the Charter.

Respondent: The VGFN argued that the selection of their leaders is an aspect of their inherent right to self-government. The residency requirement is consistent with their pre-colonial land-based legal order. Also, most if not all other electoral jurisdictions in Canada have such a requirement. They say the Charter is not applicable to an Indigenous governing body such as their General Assembly and even if it is then s. 25 protects the residency requirement.

What Else Should You Know Before Making a Prediction?

It’s been over 400 days since the hearing of this appeal, which could suggest it will be a lengthy and possibly split decision. For prediction purposes, we’ll focus on Ms. Dickson’s main appeal, not the cross-appeal. Similar issues arose in Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30 and the Court sided with the First Nation, but the Court left open the door for a case with better evidence. Justice Abella authored Taypotat, and only Justices Karakatsanis (who didn’t hear this appeal) and Chief Justice Wagner remain on the bench. I’m leaning towards appeal dismissed only on the basis that I see more outs for the Court to rule in favour of the First Nation (i.e. Charter doesn’t apply, because of s. 32 s. 15 doesn’t apply, saved by s. 1, or saved by s. 25).

Previous Prediction: Right to Judicial Review

On March 15, 2024, the SCC released its decision in Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8.

Held (9:0): Appeal allowed and matter remitted to tribunal. Judicial review was available to Ms. Yatar for issues not dealt with under the statutory right of appeal.

Key Points:

  • When there is a limited right of appeal available that does not mean that judicial review is limited to exceptional or rare cases. Individuals can still seek judicial review for questions not dealt with in the appeal.
  • While a court doesn’t have the discretion to decline to consider the application for judicial review outright, it does have discretion in whether to consider the merits of the judicial review application or to grant relief.
  • The discretion is to be exercised in accordance with the framework set out in Strickland v. Canada (Attorney General), 2015 SCC 37.

Predictions: 12% of players correctly predicted that the appeal would be allowed.

-Tom Slade

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