⚖️ Incorporation by reference

The SCC's latest decision on Indigenous child welfare. Plus Justice Moreau's welcome ceremony, this month's SCC appeals, and Donald Trump's sneaker launch.

Happy short week — at least, to the majority of Canadians who treated yesterday as a holiday. Whether you called it Family Day, Louis Riel Day, Nova Scotia Heritage Day, Islander Day, or an unnamed civic holiday (looking at you, Corner Brook), hopefully you made the most of it.

— Dylan Gibbs

TODAY'S DOCKET

7 min read

  • SCC paves the way for self-regulated Indigenous family services

  • February appeals at the SCC

  • Justice Moreau’s official welcome

  • Safe injection site gets sued

  • Trump’s sneaker launch

SCC

Green light for Indigenous child and family services

Orange cloth sign saying Every Child Matters, with bacpacks, shoes, and toys in front.

Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5

The Supreme Court recently upheld federal legislation that lets Indigenous groups create independent child welfare systems. The decision doesn’t guarantee Indigenous peoples a right to self-government — but it’s a step in that direction, and it’s a notable advancement for Indigenous rights.

Thinking about the kids: Canadian governments don’t have the best track record when it comes to protecting Indigenous children. Past policies led to Indigenous children making up 52% of the foster care population even though they make up less than 8% of the general population (as of 2016). In the spirit of reconciliation, Canada enacted An Act respecting First Nations, Inuit and Métis children, youth and families.

The Act says Indigenous peoples have the right to self-govern, including by legislating their own child and family services.

  • It gives Indigenous child and family services laws the same force as federal legislation — if there’s a conflict, the Act says Indigenous laws take priority over provincial laws.

  • The Act also creates minimum national standards stressing the importance of Indigenous culture in child welfare decisions. Even if Indigenous groups don’t create their own laws, the Act forces provincial child and family services agencies to follow the national standards.

Quebec’s reference: Quebec argued the Act encroaches on provincial jurisdiction. The Quebec Court of Appeal mostly disagreed, but it struck down one of the Act’s key features — the Court said the federal government can’t make Indigenous laws paramount over provincial laws.

Upheld at the Supreme Court: According to the Supreme Court, the entire Act falls within Parliament’s jurisdiction over Indigenous affairs.

  • Like the Court of Appeal, the Court said there’s no issue with the minimum national standards. The federal government can regulate child and family services for Indigenous children. Although the standards impact the provinces’ more general jurisdiction over child and family services, the effects are incidental.

  • And there’s nothing wrong with giving Indigenous laws the same force as federal laws. Parliament could enact each Indigenous law itself, which would have the same effect. The legislation simply takes a shortcut, using a general statement to incorporate Indigenous laws by reference.

Big picture: The Court stopped short of recognizing that Indigenous peoples have a constitutional right to manage their own child and family services, leaving that question for another day. But the Court’s comments strongly suggest it would have recognized a constitutional right if it had been necessary to resolve the appeal:

Parliament, after thoroughly inquiring into the matter, chose to advance reconciliation by affirming that the right of self‑government in relation to child and family services is “inherent” as well as “recognized and affirmed by section 35 of the Constitution Act, 1982” … The importance of this affirmation will undoubtedly [be] a factor to consider when the courts are called upon to formally rule on the scope of s. 35.

Para 117 (see also paras 112-116)

HEARSAY ROUNDUP

Canadiana

👩‍⚖️ Justice Mary Moreau’s welcome ceremony took place yesterday at the Supreme Court. You can watch the recorded webcast if you missed it — and if you want to jump right to Justice Moreau’s remarks, they start around 1:03:00.

🥸 Montreal has seen a surge in complaints about unlicensed immigration lawyers scamming unsuspecting victims, leading to warnings from the Barreau de Montréal.

🚛 BC’s Commercial Vehicle Safety and Enforcement branch revoked the license of a trucking company that struck six overpasses in the past three years.

💉 A Toronto resident and local business filed a proposed class action against a supervised injection site. Last summer, a stray bullet killed a woman walking near the site. The lawsuit claims the South Riverdale Community Health Centre, the city, and the province are all responsible for a rapid deterioration in the neighbourhood since the safe injection site opened.

👀 Pornhub might block Canadian access if Canada’s proposed age verification legislation moves forward.

🏳️‍⚧️ UR Pride can still challenge Saskatchewan’s controversial pronoun law, even though the government invoked the notwithstanding clause. More to come on Justice Megaw’s decision in tomorrow’s newsletter.

Beyond the border

💰 Donald Trump’s civil fraud case wrapped up on Friday, with the Court ordering Trump to pay US$354.9 million in disgorgement for misrepresenting the value of his assets. The ruling also prevents Trump from serving as an officer or director of any business in New York state for the next three years. Trump plans to appeal, but — in the meantime — he’s focused on launching his new line of golden high-top sneakers.

SCC

February’s appeal hearings

The Supreme Court won’t be breaking any first-quarter appeal hearing records. Like last month, February’s docket was remarkably thin and exclusively criminal.

But at least the Court plans to write some decisions for this month’s appeals. The Court dealt with two out of three appeals from the bench in January, reserving only one decision. This month, the Court reserved its reasons for each of the three appeals it heard.

Here’s what the hearings covered:

R. v. Lozada & R. v. Ramos dealt with causation for a killing that occurred during a group assault. A fistfight turned deadly after one of the participants pulled a knife. The two appellants contributed to the assault but didn’t know about the knife.

The jury had to decide — based on the appellants’ contributions and the intervening stabbing — whether the appellants caused the victim’s death. After being convicted of manslaughter, the appellants argued that the trial judge misdirected the jury about the causation requirement. A majority of the Ontario Court of Appeal upheld the convictions, but Justice Paciocco would have ordered new trials:

The trial judge twice directed the jury that they could use a lower, more easily achieved standard of “reasonable foreseeability” in finding the causation element to be satisfied.

2023 ONCA 221 at para 134, per Paciocco JA

R v. Archambault dealt with a niche issue about the availability of preliminary hearings. As of 2019, only the most serious offences (those with maximum sentences of at least 14 years) qualify for a preliminary inquiry. This case deals with offences that currently have a 14-year max but had only a 10-year max when the two accused allegedly committed the crimes.

Since the accused have a constitutional right to the lower punishment, their maximum jeopardy is the 10-year sentence. Does that eliminate their right to a preliminary inquiry? Quebec’s Superior Court said yes, but the Court of Appeal said no.

R. v. Hodgson dealt with self-defence. The accused killed someone at a house party by restraining them with a headlock. The accused testified he was fearful and figured the headlock would help get the situation under control. The trial judge acquitted based on self-defence.

The Court of Appeal said the trial judge didn’t consider the objective danger of a headlock — instead focusing on the accused’s subjective views. But the Supreme Court didn’t see it the same way. Although the Court reserved its reasons for a later date, the Court granted Mr. Hodgson’s appeal and restored his acquittal right away.

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Dylan Gibbs

That’s all for today.

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