SCC’s winter session features far-reaching Indigenous self-governance, division of powers appeals

By Cristin Schmitz

Law360 Canada (January 5, 2023, 12:26 PM EST) -- How much “structure and continuity” must a loose-knit group of criminals evince to qualify as an “criminal organization”? What informational duties do corporate directors seeking to buy the company owe to the controlling shareholders? Must police get court authorization before asking for IP addresses linked to crime?

Those are some issues raised in 16 appeals to be argued at the Supreme Court of Canada in its winter session from Jan. 9 to March 24 — of which 11 are criminal cases, including eight as-of-right criminal appeals (see some highlights of the docket below).

Among the most far-reaching are constitutional appeals of first impression, including a potentially foundational case which asks whether and how the Charter applies to self-governed First Nations and their members.

Dickson v. Vuntut Gwitchin First Nation, to be argued Feb. 7, has attracted 14 interveners, including attorneys general, First Nations and Indigenous associations and advocacy groups, as well as the Canadian Constitution Foundation and the B.C. Treaty Commission.

The appeal gives the top court the opportunity to address:
  • the interplay between Charter individual rights and freedoms, and the collective and Aboriginal rights of Indigenous peoples to self-governance under ss. 35 of the Constitution Act, 1982;
  • for the first time, whether under Charter s. 32(1), titled the “Application of the Charter,” the Charter applies in respect of First Nation governing bodies and their citizens; and
  • for the first time, the nature and scope of s. 25 of the Charter, a non-derogation provision stating that “the guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada ... .”

Cindy Dickson, a member of the Vuntut Gwitchin First Nation (VGFN), was granted leave to appeal a 2021 decision of the Yukon Court of Appeal which rejected her s. 15 Charter equality rights challenge to the residency requirement in her First Nation’s election code.

Dickson wanted to stand for election as a councillor in 2018, but the Vuntut Gwitchin First Nation’s council rejected her candidacy based on its modern constitution — established as part of a self-government and final land claim agreement and treaty with Canada — that requires that council members must live in, or relocate within 14 days of election to, the fly-in village of Old Crow on the First Nation’s settlement lands.

Dickson, who grew up in Old Crow for a number of years, lives and works in Whitehorse (800 kilometres south of Old Crow), where she needed to live near the hospital due to the medical needs of her son, who was 15 when the Vuntut Gwitchin council rejected the single mother’s candidacy, based on the residency provision in the First Nation’s constitution. The Yukon Court of Appeal accepted that the Charter does apply to the First Nation’s residency requirement as a “law” under s. 32, and that Dickson was discriminated against contrary to Charter s. 15(1), on the basis of the analogous ground of “aboriginality-residence” — even though the residency requirement “was obviously not intended to” perpetuate disadvantage and stereotyping.

The Yukon Court of Appeal went on to rule, however that s. 25 of the Charter shielded the First Nation’s residency requirement from the Charter — without the need to conduct any “reasonable limits” justificatory analysis or balancing of interests otherwise called for under s. 1 of the Charter when the Charter is breached.  

The Appeal Court held that the purpose of s. 25 is not to act as an interpretive lens, but rather to “protect certain Aboriginal rights from being abrogated or diminished by the judicial interpretation of personal rights and freedoms guaranteed by the Charter.”

“Where a conflict is encountered, the language of s. 25 is clear: derogation from the Aboriginal right is not permitted,” Yukon Court of Appeal Justice Mary Newbury wrote. “Moreover, to the extent there may be any ambiguity or lack of clarity, it seems to me that agreements such as the SGA [self-government agreement] must be interpreted not only liberally, but with serious consideration given to the First Nation’s point of view. In the circumstances of this case at least, to apply s.15(1) would indeed derogate from the Vuntut Gwitchin’s rights to govern themselves in accordance with their own particular values and traditions and in accordance with the ‘self‑government’ arrangements entered into in 1993 with Canada and Yukon.”

Bridget Gilbride, Fasken Martineau DuMoulin LLP

Bridget Gilbride, Fasken Martineau DuMoulin LLP

Bridget Gilbride of Vancouver’s Fasken Martineau DuMoulin LLP, who with co-counsel Harshi Mann is representing Dickson, pro bono, said the Supreme Court’s judgment in the case has the potential to break important constitutional ground with respect to the self-governance powers of Indigenous peoples, the Charter constraints/obligations of Indigenous governments and the individual Charter rights and freedoms of Indigenous citizens.  

“The implications of the respondents’ arguments are that the Charter wouldn’t apply at all,” said Gilbride, citing, for example, the potential impact on Indigenous citizens’ freedom of expression and other key individual rights. “The tenets of democracy are some of what the Charter rights are founded on, and was the reason why we have the Charter,” she said. “Every human government is subjected to frailties and errors, and if those can’t be challenged by the Charter, I think that’s what’s at stake here.”

Gilbride said the appeal is “about the scope of the powers of Indigenous self-governing bodies and the basic bounds of those powers,” including with respect to their citizens’ human and Charter rights.

Are there Charter “guardrails” on the powers of self-governing First Nations? Gilbride queried. “Are they the same as everywhere else in Canada, where Indigenous individuals have a right to access the Charter when their government acts?”

Krista Robertson, Mandell Pinder LLP

Krista Robertson, Mandell Pinder LLP

Whether the Charter’s s. 32 application clause extends Charter obligations to Indigenous governments is an issue not yet decided by the Supreme Court of Canada, said Krista Robertson of Vancouver’s Mandell Pinder LLP, who with Elin Sigurdson and Kris Statnyk represents the respondent Vuntut Gwitchin First Nation.

“Prior to the Dickson case, the issue of Charter application was generally considered by lower courts in the context of First Nations who are governed by the Indian Act,” Robertson remarked. “The Vuntut Gwitchin First Nation has a self-government agreement with Canada and the Yukon, within the framework of a modern treaty that confirms that the Indian Act does not apply to VGFN. The treaty and self-government agreement affirm VGFN’s right to have its own Constitution govern the rights and freedoms of its citizens, and does not agree to the application of the Charter.”

In Robertson’s view, if the court determines that the Charter applies in these circumstances, given the language of s. 32 applying the Charter to Parliament and legislatures, “it would be a more expansive interpretation than in the law currently, and would have implications for many self-governing First Nations in the future ... [affecting] many negotiations between Indigenous peoples and the Crown across the country.”

Robertson added that a second key aspect of the appeal is whether s. 25 of the Charter — which protects Aboriginal, treaty and other rights pertaining to Aboriginal peoples from abrogation or derogation by Charter interpretation — operates to “shield” Indigenous self-governance rights from Charter interpretations that would limit those rights.

“In this case, the right in question is the Vuntut Gwitchin people’s collective right to determine the selection of their leaders,” she explained. “There are no cases from the Supreme Court of Canada that have decided the full scope of s. 25, and how it operates as a non-derogation clause in relation to the Charter and Indigenous rights. The Yukon courts below determined that s. 25 shields the ... residency requirement from the appellant’s Charter challenge,” Robertson said. “The Supreme Court’s determination of the issue will be an important opportunity to clarify and develop the law regarding s. 25.”

With respect to the Charter’s s. 15 equality rights guarantee, Sigurdson said the high court is also asked to consider the application of Corbiere v. Canada, [1999] 2 S.C.R. 203, where the Supreme Court of Canada found that a residency requirement in the context of voting rules under the Indian Act, that exacerbated discriminatory effects of the Act, infringed the equality rights of band members on the basis of the analogous ground of “aboriginality-residence.”

Elin Sigurson, Mandell Pinder LLP

Elin Sigurson, Mandell Pinder LLP

“In this case, we argue that the ground is inapplicable in the context of a self-governing Indigenous community seeking to protect and uphold its governance traditions,” Sigurdson explained. “We also argue that a self-governing First Nation’s policy requiring residence of its elected leaders in the seat of government is no more discriminatory than any municipality, province or territory in Canada with similar requirements, and does not perpetuate prejudice or disadvantage.”

From the respondent First Nation’s perspective, Sigurdson said “Indigenous communities stand to gain more certainly and more autonomy with respect to how they choose to structure their governments, if the court agrees.”

Another major constitutional appeal on the Supreme Court’s winter docket, to be argued March 21, is A.G. Canada v. A.G. Alberta – a high-stakes reference case from Alberta whose importance is reflected in the fact that all nine other provincial attorneys general are weighing in, along with 22 additional interveners made up of groups, or coalitions, representing various First Nations, and environmental, business and industry interests.

In its successful division of powers challenge below, the Alberta government won a declaration in 2022 that Part 1 of the 2019 federal Impact Assessment Act (IAA) and the Canadian Energy Regulator Act, and the accompanying Physical Activities Regulations, are not a valid exercise of federal constitutional powers to regulate the environment.

The Alberta Court of Appeal ruled 4-1 that the legislation violates provincial rights — under s. 92 of the Constitution Act, 1867, which gives the provinces exclusive power to make laws related to the exploration and development of non-renewable and forestry resources within its boundaries: Reference re Impact Assessment Act, 2022 ABCA 165.

“The fundamental defect of the IAA is that it purports to apply a comprehensive [federal] regulatory regime to numerous physical activities which are by their nature matters falling within the exclusive legislative competence of the provinces and subject to comprehensive provincial regulatory assessment and approval processes,” the respondent Alberta government asserts in its Supreme Court of Canada factum. “The Alberta Court of Appeal recognized the dramatic impact of the IAA on provincial authority over economic activity, holding that, if upheld, ‘all provincial industries, almost every aspect of a province’s economy that the federal government chooses to sweep within the IAA … would be subject to federal regulation, including an effective federal veto,’  and that this would ‘undermine the division of powers.’ ”

However, Canada argues to the contrary that the IAA and Regulations do not amount to a federal veto over “provincial projects.”

“Rather, the pith and substance of the IAA is to safeguard against adverse environmental effects in relation to matters within federal jurisdiction under the Constitution Act, 1867,” the federal attorney general argues in his Supreme Court factum. “The pith and substance of the Regulations is to identify projects with the greatest potential for adverse federal effects for the purpose of determining whether an impact assessment is warranted. The IAA and Regulations restrict federal assessments to projects that have effects in relation to federal subject matters. They do this by carving out projects, at a preliminary stage, from the requirement for a federal assessment where it is determined that there are no expected adverse federal effects. In addition, where a federal assessment does take place, federal conditions are limited to mitigating those federal effects.”

Other noteworthy appeals to be argued in the winter session include:

Abdullah v. R. (Jan. 11) — The appellant was convicted at trial and on appeal of gun-related offences, including one count of participating in the activities of a criminal organization for the purpose of trafficking weapons, contrary to s. 467.11 of the Criminal Code. His as-of-right appeal, based on Ontario Court of Appeal Justice David Paciocco’s dissent below, argues that the trial judge erred by failing to charge the jury in respect of what structure and continuity is needed to meet the definition of a “criminal organization.” The defence argues the evidence at trial was consistent with a group of friends — from the same neighbourhood and cultural background — involved in criminal activity, who occasionally co-operated on an ad hoc basis, but that this did not establish they had the structure and continuity required to qualify as a criminal organization.

Ponce v. Société d’investissements Rhéaume ltée (Jan. 12): What informational duty is owed to controlling shareholders by company directors who want to buy the company — in order to sell it on at a significant profit to an interested third party, unbeknownst to the controlling shareholders?

This Quebec civil law case asks, among other things, whether the duty to inform, deriving from the duty to act in good faith, places responsibility on a prospective buyer to inform a prospective seller about other prospective buyers. “This cannot be what the law pertaining to good faith, or the contractual allocation of risks amongst sophisticated parties expects,” the appellant buyers/directors urge. “This court’s intervention is needed given the vast implications such a duty would have on a wide array of commercial transactions.” The appeal also raises questions about “loss of chance” as a compensable loss.  

Bykovets v. R. (Jan. 17): Must police obtain judicial authorization to get an IP (internet protocol) address associated with a crime? This as-of-right defence appeal from Alberta alleges police violated the appellant’s s. 8 Charter right to be free from unreasonable search and seizure when officers asked for (i.e. without a production order), and received from, payment processer Moneris in 2017 two numeric IP addresses which were involved in the purchase of thousands of dollars of virtual gift cards from a Calgary liquor store, using fraudulent credit card information.

By subsequently searching a publicly available IP look-up site, the police learned that Telus had issued the IP addresses. The police then lawfully obtained a production order for the IP addresses’ subscriber information — which turned out to belong to the appellant and a family member. Police then obtained a warrant to search the appellant’s residence where they seized instruments of forgery, fraudulent ID documents and credit card data of innocent victims. The trial judge, upheld by a majority of the Alberta Court of Appeal, ruled that the appellant had no reasonable expectation of privacy in the IP addresses and therefore police were not required to obtain a warrant to get the addresses from Moneris and there was no constitutional breach. The appellant was convicted of offences relating to the possession and use of third parties’ credit cards and personal identification documents and firearms.

The Crown argues that a reasonable expectation of privacy does not attach to an IP address itself that is logged by a third party (here by the payment processor Moneris), but only to subscriber information or other specific identifying information linked to the IP address.

Sharp et al. v. Autorité des Marchés Financiers (Jan. 18), a private international law case involving art. 3136 of the Civil Code of Quebec, asks whether the Quebec Court of Appeal erred by deciding that the province’s Financial Markets Administrative Tribunal (FMAT) could assert adjudicative jurisdiction over alleged illegal securities manipulation involving an American company trading in the U.S. Before the tribunal, Quebec’s securities regulator alleged a “pump and dump scheme” connected to multiple jurisdictions against out-of-province and international defendants, arguing the FMAT has legislative or territorial jurisdiction (some investors and a defendant live in Quebec).

Noting that the international character of market manipulation schemes creates challenges for provincial securities regulators, the FMAT held that it has “wide discretion” on matters of jurisdiction, in line with its statutory “public-interest” discretion.

An appellant defendant who resides in B.C. opposes what he calls the FMAT’s “jurisdictional overreach” — arguing the Quebec Court of Appeal’s decision illustrates and exacerbates “the persistent confusion and instability in the law governing the assumption of exterritorial jurisdiction by provincial administrative tribunals.”

The intervener Ontario Securities Commission argues in its factum at the Supreme Court that the “broad and flexible” common law approach to territorial jurisdiction allows provincial securities regulators to assert jurisdiction against out-of-province actors who pose a threat to local investors and markets, and that narrowing the existing test “would undermine the protection of investors and capital markets.”

Commission scolaire francophones des Territoires du Nord-Ouest v. Ministre de l’Education (Feb. 9): This language rights appeal, which attracted 11 interveners, raises multiple issues, including whether the right to use English or French before the Northwest Territories’ courts entitles a litigant to be understood by the court without simultaneous interpretation, or does it protect only the right to use the official language of one’s choice in addressing the court? The issue arose in the context of judicial review of the denial by the N.W.T. government of admission to French-language-minority schools of the children of non-language-rights-holder parents. The appellants argue that the right to use French in the courts of the N.W.T. includes the right to be understood directly, without an interpreter, pursuant to ss. 19(1) and 23 of the Charter and s. 9(1) of N.W.T.’s Official Languages Act.

R. v. Marchand (Feb. 15) and Attorney General of Quebec v. H.V. (Feb. 16): These back-to-back Crown sentencing appeals from Quebec respectively ask: whether the trial judge and majority of the Quebec Court of Appeal erroneously struck down the one-year mandatory minimum penalty for child luring that is prosecuted by indictment, (s.172.1(2)(a) of the Criminal Code), as it applied to the accused Marchand, as an unjustified violation of the Charter’s s. 12 prohibition of cruel and unusual punishment; in H.V.’s case, did the Appeal Court erroneously declare that the six-month mandatory minimum sentence for child luring prosecuted summarily (s. 172.1(2)(b) of the Criminal Code) of no force or effect as an unjustified breach of s. 12?

Kahsai v. R. (March 14). There are seven interveners in this as-of-right defence appeal from Alberta that argues when a self-represented accused does nothing to advance a meaningful defence, amicus curiae should be empowered to discharge a broader adversarial mandate — i.e. beyond adopting the usual stance of neutrality — without fear of assuming all the duties of defence counsel. (Intervening are the federal Director of Public Prosecutions, the Attorney General of Ontario, the Empowerment Council, the Independent Criminal Defence Advocacy Society, the Criminal Trial Lawyers’ Association, the Canadian Civil Liberties Association and the Criminal Lawyers’ Association.)

The appellant, accused of a double murder, was muted 60 times during his remote appearance at trial because of his unruly conduct. His counsel at the Supreme Court argues the top court should set aside his convictions for first-degree murder and order a new trial because the trial judge appointed amicus curiae whose neutral approach in the proceedings led to a “lopsided trial [that] was unmistakably unfair.”

“The position of amicus curiae must be sufficiently flexible for courts to stave off threats of injustice,” the appellant’s co-counsel, Daniel Song of Vancouver’s Pringle, Chivers, Sparks, Teskey and Katherine Clackson of Legal Aid Alberta, argue in their Supreme Court factum. “While this court’s decision in Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, clarified that amicus curiae cannot act as defence counsel, it was not a full précis of the roles that amici might occupy in a criminal proceeding,” they urge. “This court should confirm that an amicus curiae can indeed provide an adversarial perspective in a trial where the accused completely refuses to defend himself. An incompetent, contumelious, disruptive self-represented accused remains an unrepresented accused.”

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