OTTAWA: The Canadian Constitution Foundation (“CCF”) is pleased that the Supreme Court of Canada appears to have upheld the longstanding constitutional principle that provinces cannot be compelled to administer federal laws or programs, even though the court has found that provinces who choose to deliver child and family services to Indigenous peoples can be bound by these general national standards.
In Reference re An Act respecting First Nations, Inuit and Metis children, youth and families, the Attorney General of Quebec challenged the constitutionality of portions of a federal statute that established a “national standards” framework for Indigenous child and family services and that recognized a right of Aboriginal self-government in relation to child and family services.
The Attorney General of Quebec argued that sections of the Act dealing with national standards were invalid because they were inconsistent with Canada’s division of powers, and would compel provinces to administer federal laws or programs without the province’s consent. The Supreme Court disagreed, finding that the Act was a valid exercise of the federal government’s power to enact Indigenous child welfare legislation under section 91(24) of the Constitution Act, 1867, which gives Parliament jurisdiction over “Indians, and Lands reserved for the Indians.”
The CCF took the position that the federal government could constitutionally enact Indigenous child welfare legislation, but that it could not coerce the provinces into putting that law into operation. The CCF is of the view that if the federal government wants to implement and enforce its own laws for a purpose within its jurisdiction under the constitutional division of powers, it must use its own funds and public service to do so.
Friday’s Supreme Court decision found that the general national standards are within federal jurisdiction and can be binding on the provincial government when the provinces choose to deliver such services to Indigenous peoples. The effects on provincial public servants were held to be incidental in this particular case but the constitutional principle the CCF sought to preserve remains intact.
“The bottom line is that the Court has not said that a province can be compelled to administer federal laws or programs,” said Jesse Hartery, who argued the case in the Supreme Court on behalf of the CCF. “The Court has said that a province can be required to comply with these general standards if it is choosing to provide these services, like all other service providers.”
CCF Executive Director Joanna Baron said she believes the CCF’s arguments appeared to make a difference and thanked Jesse Hartery, Simon Bouthillier and Allison Spiegel for their work on the intervention.
“We intervened on a narrow point of law in this case to preserve the constitutional division of powers and we are pleased that the court appears to have done so,” she added
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/