OTTAWA: The Canadian Constitution Foundation (“CCF”) will be appearing at the Supreme Court of Canada on December 7-8 as an intervener in the Reference re An Act respecting First Nations, Inuit and Metis children, youth and families (also known as Attorney General of Quebec v. Attorney General of Canada).
In this reference, the Attorney General of Quebec challenged the constitutionality of portions of An Act respecting First Nations, Inuit and Metis children, youth and families. Broadly speaking, the Act does two things: (i) establishes a “national standards” framework for Indigenous child and family services; and (ii) it notably recognizes a right of Aboriginal self-government in relation to child and family services. The Attorney General of Quebec argues that sections dealing with national standards are invalid notably because they are inconsistent with Canada’s federal structure and the system of responsible government because the federal government cannot require a province to implement its law unless the province consents. It also makes arguments on the second issue, which involves s. 35 of the Constitution Act, 1982 and on which the CCF takes no position.
“The problem with the challenged provisions of An Act respecting First Nations, Inuit and Metis children, youth and families is that the federal government appears to be directing the provincial executive and public service,” said CCF Litigation Director, Christine Van Geyn. “There is no dispute from us that the federal government could have enacted this legislation and then created a federal body to implement their own law. There is also no dispute that the federal government could have consulted with the provinces and asked them to consent to implementing federal law. However, the federal government cannot coerce the provinces into operationalizing a federal law.”
In other words, as an intervener the CCF is arguing that, while the national standards in the legislation may fall within federal jurisdiction under s. 91(24) of the Constitution Act 1867, the way the federal government is going about this crosses a well-established constitutional line. “This intervention is in line with the CCF’s commitment to protecting the liberty-promoting functions of the Canadian constitution, including its federal structure. If the federal government can direct the executive and public service of a province, it could remove a check on power and erode responsible government. Coercion is also inconsistent with the value of diversity and experimentation that federalism entails,” continued Van Geyn
The CCF is represented in this case by Jesse Hartery, Simon Bouthillier and Allison Spiegel of McCarthy Tétrault. “The outcome of this case is significant because it could also have implications on the constitutionally of the newly proposed Alberta Sovereignty Within A United Canada Act. Political and legal observers should pay close attention.” concluded Van Geyn.
Members of the public interested in livestreaming the hearing on December 8 can view it here: https://www.scc-csc.ca/case-
Members of the public interested in supporting the legal fees associated with this case can make a tax deductible charitable donation at theCCF.ca/donate/