SUPREME COURT OF CANADA Case name: R. v. Safarzadeh‑Markhali copy

Case name: R. v. Safarzadeh‑Markhali
Collection: Supreme Court Judgments
Date: 2016-04-15
Neutral citation: 2016 SCC 14
Case number: 36162
Judges: McLachlin, Beverley; Abella, Rosalie Silberman; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell
On appeal from: Ontario
Subjects: Constitutional law
Notes: SCC Case Information: 36162

 

SUPREME COURT OF CANADA

Citation: R. v. Safarzadeh-Markhali, 2016 SCC 14
Appeal heard: November 4, 2015
Judgment rendered: April 15, 2016
Docket: 36162

Between:
Her Majesty the Queen
Appellant
and
Hamidreza Safarzadeh-Markhali
Respondent
- and -
Attorney General of Canada,
British Columbia Civil Liberties Association,
Criminal Lawyers’ Association (Ontario),
John Howard Society of Canada,
West Coast Prison Justice Society and
Aboriginal Legal Services of Toronto Inc.
Interveners


Coram: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.

Reasons for Judgment:
(paras. 1 to 74)
McLachlin C.J. (Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ. concurring)

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.





r. v. safarzadeh‑markhali

Her Majesty The Queen                                                                                 Appellant

v.

Hamidreza Safarzadeh‑Markhali                                                              Respondent

and

Attorney General of Canada,
British Columbia Civil Liberties Association,
Criminal Lawyers’ Association (Ontario),
John Howard Society of Canada,
West Coast Prison Justice Society and
Aboriginal Legal Services of Toronto Inc.                                                 Interveners

Indexed as: R. v. Safarzadeh‑Markhali

2016 SCC 14

File No.: 36162.

2015: November 4; 2016: April 15.

Present: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.

on appeal from the court of appeal for ontario

                    Constitutional law — Charter of Rights — Fundamental justice — Overbreadth — Sentencing — Credit for pre‑sentence custody — Criminal Code denying enhanced credit in certain circumstances — Whether denial of enhanced credit for pre‑sentence custody to offenders who are denied bail primarily because of prior conviction is overbroad in violation of s. 7 of Canadian Charter of Rights and Freedoms — If so, whether infringement justifiable under s. 1 of Charter — Criminal Code, R.S.C. 1985, c. C‑46, ss. 515(9.1), 719(3.1).

                    Constitutional law — Charter of Rights — Fundamental justice — Sentencing — Whether proportionality in sentencing process a principle of fundamental justice under s. 7 of Canadian Charter of Rights and Freedoms.

                    Sentencing courts have historically given enhanced credit for time spent in pre‑sentence custody, typically at a rate of two days for every day of detention. The Truth in Sentencing Act amended the Criminal Code to provide a general expectation of one day of credit for every day spent in pre‑sentence custody and, if the circumstances justify it, enhanced credit to a maximum of one and a half days. Pursuant to s. 719(3.1) of the Code, enhanced credit is not available if the person was denied bail primarily because of a prior conviction. M was arrested, charged with several offences and consented to his detention. At his bail hearing, the bail judge concluded that s. 515(9.1) required her to make an endorsement that M’s detention was warranted primarily because of M’s criminal record. The endorsement made M ineligible to receive enhanced credit for pre‑sentence custody. The sentencing judge found the restrictions on enhanced credit in s. 719(3.1) of the Code unconstitutional. The Ontario Court of Appeal agreed and concluded that the challenged portion of s. 719(3.1) is of no force and effect.

                    Held: The appeal should be dismissed.

                    The denial of enhanced credit for pre‑sentence custody to offenders who are denied bail primarily because of a prior conviction is overbroad because it catches people in ways that have nothing to do with the legislative purpose of s. 719(3.1) of the Code, which is to enhance public safety and security. Section 719(3.1) thus violates s. 7 of the Charter.

                    It is clear that s. 719(3.1) limits liberty. Its effect is to require offenders who come within its ambit to serve more time in prison than they would have otherwise. Laws that curtail liberty in a way that is overbroad do not conform to the principles of fundamental justice.

                    The first step in the overbreadth analysis is to ascertain the purpose of the challenged law. To determine a law’s purpose, courts look to statements of purpose in the legislation, if any; the text, context, and scheme of the legislation; and, extrinsic evidence such as legislative history and evolution. In presenting the Truth in Sentencing Act to Parliament, the Minister of Justice explained that denial of enhanced credit was aimed at promoting public safety and public confidence in the justice system, by imposing longer sentences on violent and repeat offenders and increasing their exposure to rehabilitative programming. Based on the text, context and scheme of the legislation, coupled with the Minister’s statements of purpose, the animating social value behind the denial of enhanced credit is enhancing public confidence in the justice system. The legislative purpose of the total denial of enhanced credit for pre‑sentence custody to offenders who are denied bail because of a prior conviction is to enhance public safety and security by increasing violent and chronic offenders’ access to rehabilitation programs. The means for achieving the legislative purpose is the challenged provision itself and the effect of the provision is to impose longer periods of custody on all persons who receive an endorsement under s. 515(9.1) of the Code.

                    It is a principle of fundamental justice that a law that deprives a person of life, liberty, or security of the person must not do so in a way that is overbroad. The law must not go further than reasonably necessary to achieve its legislative goals. The provision in issue captures people it was not intended to capture: offenders who do not pose a threat to public safety or security. Section 515(9.1) does not specify or even broadly identify the offences that warrant an endorsement and limited availability of judicial review means that persons wrongly tagged with an endorsement will be without recourse to have the error remedied.

                    The infringement of s. 7 of the Charter is not justified under s. 1. While the challenged provision is rationally connected to its purpose of enhancing public safety and security, it is neither minimally impairing nor proportionate. Alternative and more reasonable means of achieving its purposes were open to Parliament. The benefit to public safety by increasing access to rehabilitation programs is not trivial but the law’s overbreadth means that offenders who have neither committed violent offences nor present a risk to public safety will be unnecessarily deprived of liberty.

                    The Court of Appeal erred in holding that proportionality in the sentencing process is a principle of fundamental justice under s. 7 of the Charter. The principles and purposes for determining a fit sentence, enumerated in s. 718 of the Code and provisions that follow — including the fundamental principle of proportionality in s. 718.1 — do not have constitutional status. The constitutional dimension of proportionality in sentencing is the prohibition of grossly disproportionate sentences in s. 12 of the Charter. The standard imposed by s. 7 with respect to sentencing is the same as it is under s. 12.

Cases Cited

                    Applied: R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485; referred to: R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167; R. v. Malmo‑Levine, 2003 SCC 74, [2003] 3 S.C.R. 571.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 1, 7, 12.

Constitution Act, 1982, s. 52.

Criminal Code, R.S.C. 1985, c. C‑46, ss. 515(9.1), 520(1), 521(1), 524(4), (8), 718, 718.1, 718.2(b), 719(3), (3.1).

Truth in Sentencing Act, S.C. 2009, c. 29.

Authors Cited

Canada. House of Commons. House of Commons Debates, vol. 144, No. 41, 2nd Sess., 40th Parl., April 20, 2009, pp. 2417‑18 and 2432.

Canada. House of Commons. Standing Committee on Justice and Human Rights. Evidence, No. 20, 2nd Sess., 40th Parl., May 6, 2009, pp. 11 and 15.

                    APPEAL from a judgment of the Ontario Court of Appeal (Rosenberg, Watt and Strathy JJ.A.), 2014 ONCA 627, 122 O.R. (3d) 97, 316 C.C.C. (3d) 87, 325 O.A.C. 17, 13 C.R. (7th) 30, 319 C.R.R. (2d) 36, [2014] O.J. No. 4194 (QL), 2014 CarswellOnt 12258 (WL Can.), affirming a sentencing decision of Block J., 2012 ONCJ 494, 265 C.R.R. (2d) 32, [2012] O.J. No. 3563 (QL), 2012 CarswellOnt 9292 (WL Can.). Appeal dismissed.

                    Roger A. Pinnock, for the appellant.

                    Jill R. Presser, Andrew Menchynski and Timothy J. Lutes, for the respondent.

                    Sharlene Telles‑Langdon and Kathryn Hucal, for the intervener the Attorney General of Canada.

                    Nader R. Hasan and Justin Safayeni, for the intervener the British Columbia Civil Liberties Association.

                    Ingrid Grant, for the intervener the Criminal Lawyers’ Association (Ontario).

                    Andrew S. Faith and Jeffrey Haylock, for the intervener the John Howard Society of Canada.

                    Greg J. Allen and Kenneth K. Leung, for the intervener the West Coast Prison Justice Society.

                    Jonathan Rudin and Emily Hill, for the intervener the Aboriginal Legal Services of Toronto Inc.



The judgment of the Court was delivered by

                    The Chief Justice —

I.              Introduction

[1]                              A person charged with a crime is held in custody pending trial unless released on bail. If found guilty at trial, an issue arises: In calculating the sentence, how much credit should the person receive for the time already spent in custody? A credit of one day for every day of pre-sentence custody will almost never put the person on equal footing with offenders released on bail, because the time spent in pre-sentence custody does not count for purposes of parole eligibility, earned remission and statutory release: R. v. Summers, 2014  SCC 26, [2014] 1 S.C.R. 575, at para. 26. A one-for-one credit, in other words, results in longer incarceration for offenders detained in pre-sentence custody than for offenders released on bail. On account of this discrepancy and the reality that pre-sentence custody is generally more onerous than post-sentence custody, sentencing courts have historically given “enhanced” credit for time spent in pre-sentence custody.

[2]                              Parliament revised this regime in 2009. It did not do away with enhanced credit, but it capped that credit at one and a half days for each day of pre-sentence custody. Parliament also — which brings us to the issue in this case — removed a sentencing court’s discretion to give any enhanced credit to offenders for pre-sentence custody, if they were denied bail primarily on the basis of their criminal record. The question is whether this law violates the right to liberty guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms.

[3]                              For the reasons that follow, I conclude that the provision infringes s. 7 of the Charter, and is not justified under s. 1 of the Charter.

II.           Background

[4]                              The respondent, Hamidreza Safarzadeh-Markhali, was arrested and charged with several offences in November 2010. Because of the nature of some of the charges against him, Mr. Safarzadeh-Markhali bore the burden of justifying his release on bail. At his bail hearing, he initially sought to show cause for his release, but later made clear that he consented to his detention. Notwithstanding this consent, the bail judge concluded that s. 515(9.1) of the Criminal Code, R.S.C. 1985, c. C-46, required her to make an endorsement that Mr. Safarzadeh-Markhali’s detention was warranted primarily because of his criminal record. Under s. 719(3.1) of the Code, this endorsement made Mr. Safarzadeh-Markhali ineligible to receive enhanced credit for the pre-sentence custody that followed.

[5]                              The sentencing judge and the Ontario Court of Appeal held that the removal of discretion to award enhanced credit for pre-sentence custody in s. 719(3.1) is unconstitutional. The Crown appeals.

[6]                              Mr. Safarzadeh-Markhali has been deported to Iran. While the appeal is moot as to him, counsel agree that the issue of whether the relevant portion of s. 719(3.1) of the Criminal Code is constitutional is of importance throughout Canada, and that we should decide it.

III.        The Challenged Legislation

[7]                              The challenged legislation relates to the practice of granting enhanced credit for pre-sentence custody.

[8]                              Enhanced credit serves two purposes. First, it ensures that an offender detained in pre-sentence custody — which is not subject to parole and early release provisos — does not spend more time behind bars than an identically situated offender released on bail. Second, it compensates for factors such as overcrowding, inmate turnover, and labour disputes that make pre-sentence custody more onerous than post-sentence custody: Summers, at para. 28. For these reasons, sentencing courts have long followed a practice of granting offenders enhanced credit — typically at a rate of two-for-one, but occasionally higher or lower depending on an offender’s particular circumstances — for time in pre-sentence custody.

[9]                              Parliament sought to change this practice by enacting the Truth in Sentencing Act, S.C. 2009, c. 29, which amended the Criminal Code to provide:  (1) a general expectation of one day of credit for every day spent in pre-sentence custody; (2) the possibility of enhanced credit, capped at one and a half days of credit for every day of pre-sentence custody, “if the circumstances justify it”; (3) a cap of one day (i.e., no enhanced credit) if the offender was denied bail primarily on the basis of a prior conviction as certified under s. 515(9.1), or if the offender’s bail was revoked under ss. 524(4) or (8) of the Code.

[10]                          These provisions are found in ss. 719(3) and 719(3.1) of the Criminal Code:

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).

This appeal is concerned only with the underlined portion of s. 719(3.1) of the Criminal Code.

[11]                          The denial of enhanced credit in s. 719(3.1) relevant here is triggered by an endorsement made by a bail judge under s. 515(9.1) of the Criminal Code:

(9.1) Despite subsection (9), if the justice orders that the accused be detained in custody primarily because of a previous conviction of the accused, the justice shall state that reason, in writing, in the record.

[12]                          No one disputes that a s. 515(9.1) endorsement is, in some circumstances, unreviewable. The review provisions of the Criminal Code, ss. 520(1) and 521(1), do not refer to endorsements under s. 515(9.1). In oral argument, the Crown took the position that if a reviewing judge vacates an accused’s detention order, the endorsement is also necessarily vacated. As a matter of statutory interpretation, it is not obvious that this is so. In any event, the Crown concedes that a s. 515(9.1) endorsement is unreviewable where the reviewing judge determines that an accused’s detention is justified, even if the reviewing judge believes that the bail judge erred in making the endorsement. Nor, it appears, would the sentencing judge have discretion to vacate an endorsement based, for example, on a clerical error, or on a conviction that was later reversed.

IV.        Judicial History

[13]                          At his bail hearing, Mr. Safarzadeh-Markhali consented to detention pending trial and argued that the bail judge should therefore not make a s. 515(9.1) endorsement. The judge rejected this argument and concluded that an endorsement was required. This made Mr. Safarzadeh-Markhali ineligible for enhanced credit for pre-sentence custody.

[14]                          Mr. Safarzadeh-Markhali was tried on June 14 and 17, 2011, and convicted on July 28, 2011. His sentencing was initially scheduled for December 9, 2011, but on December 1, newly retained counsel learned of the endorsement, and brought an application asserting that s. 719(3.1) of the Criminal Code violates s. 7 of the Charter.

[15]                          The sentencing judge, Block J., found the restrictions on enhanced credit in s. 719(3.1) of the Criminal Code unconstitutional, and credited Mr. Safarzadeh-Markhali with 31 months of pre-sentence custody based on a rate of one and a half for one, to be deducted from his sentence of six years (2012 ONCJ 494, 265 C.R.R. (2d) 32). He held that the purposes of the statute that added s. 719(3.1) to the Code, the Truth in Sentencing Act, are to repress manipulation of pre-sentence custody to achieve a lower sentence than would otherwise be served, and to provide transparency in this aspect of the sentencing process. He went on to hold that s. 719(3.1):  (1) problematically binds the discretion of the sentencing judge; (2) has a disproportionate effect on equally placed offenders; (3) creates arbitrariness because the deprivation of liberty effected has no rational connection to either of the statute’s stated aims; (4) leads to double-counting and double penalization; (5) improperly lowers the burden of proof for sentencing; and (6) has the oblique purpose of increasing sentences outside the sentencing process.

[16]                          The Court of Appeal (Rosenberg, Watt and Strathy JJ.A. (now Strathy C.J.O.)) agreed that the challenged portion of s. 719(3.1) of the Criminal Code is inconsistent with s. 7 of the Charter (2014 ONCA 627, 122 O.R. (3d) 97). While it is open to Parliament to set markers to guide judges in sentencing, Strathy J.A. concluded that restricting credit for time served to a one-for-one ratio in this manner infringes s. 7, because it deprives affected persons of liberty in a manner inconsistent with the principle of proportionality in sentencing. This principle, which Strathy J.A. identified as a principle of fundamental justice under s. 7 of the Charter, prevents Parliament from making sentencing contingent on factors unrelated to the determination of a fit sentence. The challenged provision offends that principle because it subjects identically placed offenders to periods of incarceration of varying lengths for irrelevant reasons. Increasing the custodial terms of repeat offenders may be an appropriate objective. Strathy J.A. found, however, that Parliament’s attempt to give effect to that objective through ss. 515(9.1) and 719(3.1) of the Criminal Code misses the mark, and results in unfairness, discrimination, and unjust sentences.

[17]                          The Court of Appeal held that the breach of s. 7 is not justified as a reasonable measure under s. 1 of the Charter. It held that the objectives of the denial of enhanced credit — which, at this stage, Strathy J.A. articulated as preventing manipulation of credit for pre-sentence custody and enhancing public safety by increasing the likelihood that repeat offenders and those who breach their bail conditions will serve part of their sentence in post-sentence custody with access to rehabilitative programs unavailable in remand centres — are pressing and substantial. However, the denial of enhanced credit for pre-sentence custody in s. 719(3.1) of the Criminal Code is not rationally connected to these purposes, because it draws distinctions between offenders with criminal records on arbitrary grounds — whether they seek bail and whether, if denied bail, they receive an endorsement under s. 515(9.1) of the Criminal Code. Nor does the provision minimally impair the right to liberty, since Parliament could have achieved its objectives through less intrusive measures. Finally, the benefit secured by the provision — keeping some offenders in jail longer and thus increasing their access to rehabilitative programs — is outweighed by the detriment flowing from an artificial distinction that undermines public confidence in the justice system. The court therefore dismissed the Crown’s appeal and concluded that the challenged portion of s. 719(3.1) is unconstitutional and of no force and effect.

V.           Analysis

[18]                          The central issue on this appeal is whether s. 719(3.1) of the Criminal Code infringes s. 7 of the Charter. If it does, we must ask whether the limitation is justified under s. 1 of the Charter.

[19]                          Section 7 of the Charter provides the following:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[20]                          It is clear that s. 719(3.1) limits liberty. Its effect is to require offenders who come within its ambit to serve more time in prison than they would have otherwise. The only issue under s. 7 is whether this deprivation of liberty comports with the principles of fundamental justice.

[21]                          The Court of Appeal based its analysis on the principle of proportionality in the sentencing process, which it found to be a principle of fundamental justice. The Crown argues that, while proportionality is an important principle of sentencing, it should not be treated as a principle of fundamental justice under s. 7. I agree with the Crown. Proportionality in the sentencing process, as distinct from the well-accepted principle of gross disproportionality under s. 7, is not a principle of fundamental justice.

[22]                          However, I conclude that the portion of the Truth in Sentencing Act challenged in this appeal — the denial of any enhanced credit for pre-sentence custody to persons to whom bail is denied primarily because of a prior conviction — violates s. 7 of the Charter for another reason: it is overbroad. Laws that curtail liberty in a way that is arbitrary, overbroad or grossly disproportionate do not conform to the principles of fundamental justice: Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 105. Mr. Safarzadeh-Markhali contends that the challenged provision violates all three of these principles. For the reasons that follow, I conclude that the challenged law is unconstitutionally overbroad, because its effect is to deprive some persons of liberty for reasons unrelated to its purpose. This conclusion makes it unnecessary to address whether the law is arbitrary or grossly disproportionate.

[23]                          The first step in the overbreadth analysis is to ascertain the purpose of the law. I turn to that now.

A.           The Purpose of Section 719(3.1)

[24]                          Whether a law is overbroad within the meaning of s. 7 turns on the relationship between the law’s purpose and its effect: R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485, at para. 24. It is critically important, therefore, to identify the purpose of the challenged law at the outset of the s. 7 inquiry.

[25]                          Moriarity summarizes the considerations that guide the task of properly characterizing Parliament’s purpose in a s. 7 analysis into overbreadth.

[26]                          First, the law’s purpose is distinct from the means used to achieve that purpose: Moriarity, at para. 27. A law’s means may be helpful in determining its objective, but the two must be treated separately.

[27]                          Second, the law’s purpose should be characterized at the appropriate level of generality, which “resides between the statement of an ‘animating social value’ — which is too general — and a narrow articulation” that amounts to a virtual repetition of the challenged provision, divorced from its context: Moriarity, at para. 28.

[28]                          Third, the statement of purpose should be both precise and succinct: Moriarity, at para. 29. Precision requires that courts focus on the purpose of the particular statutory provision subject to constitutional challenge: ibid.; see also RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 144.

[29]                          Fourth, the analysis is not concerned with the appropriateness of the legislative purpose. The court must take the legislative objective “at face value” and assume that it is appropriate and lawful: Moriarity, at para. 30. The appropriateness of a legislative objective may be relevant to its constitutionality under other Charter provisions. But it has no place in the s. 7 analysis of overbreadth.

[30]                          With these propositions in mind, I turn to the task at hand: to formulate a statement of purpose for s. 719(3.1)’s denial of enhanced credit to persons denied bail primarily because of a prior conviction.

[31]                          To determine a law’s purpose for a s. 7 overbreadth analysis, courts look to:  (1) statements of purpose in the legislation, if any; (2) the text, context, and scheme of the legislation; and (3) extrinsic evidence such as legislative history and evolution: Moriarity, at para. 31.

[32]                          The first source of purpose is statements of purpose in the legislation. The Truth in Sentencing Act does not contain explicit statements of legislative purpose. The title of the statute suggests that the evil to which it is directed is opaqueness in the sentencing process. Beyond this, however, the statute is silent as to its purposes. More to the point, it contains no explicit statement of the specific purpose of denying enhanced credit to offenders denied bail primarily on the basis of a prior conviction.

[33]                          I turn next to the text, context and scheme of the legislation. These provide the contextual matrix in which the challenged portion of s. 719(3.1)’s denial of enhanced credit is embedded.

[34]                          Part of the contextual matrix is this Court’s decision in Summers, which considered, as a matter of statutory interpretation, the one-and-a-half-for-one cap on enhanced credit for pre-sentence custody. The Court there said that the broad purposes of the legislative scheme were to enhance public confidence in the justice system and make the process of granting enhanced credit more transparent: Summers, at paras. 52-53. Summers suggests a broad over-arching purpose for the 1.5:1 limit on enhanced credit for pre-sentence custody — enhancing confidence in the justice system. This purpose is pitched at a high level of generality and underlies the other objectives of the scheme and the challenged provision. In the words of Moriarity, enhancing confidence in the justice system is more of an “animating social value” than a statement of purpose.

[35]                          Turning to the text of the provision, s. 515(9.1) of the Criminal Code requires a bail justice to make a written endorsement if the accused is detained “primarily because of a previous conviction”. The language in this section is very broad. A lengthy record is not necessary, nor is a particular type of conviction required. Any previous conviction could theoretically lead to an endorsement. Section 515(9.1) tells justices only that they must make the endorsement if detention is ordered “primarily” for this reason. In short, the breadth of the section does not provide much guidance in determining Parliament’s purpose, beyond indicating that Parliament intended to target accused persons with criminal records.

[36]                          This brings us to the third source of legislative purpose — extrinsic evidence of legislative history and evolution. We have little evidence of the legislative evolution of the challenged provision. However, we do have the statements of the Minister who introduced it. Statements of purpose in the legislative record may be rhetorical and imprecise. Yet providing information and explanations of proposed legislation is an important ministerial responsibility, and courts rightly look to it in determining the purpose of a challenged provision.

[37]                          In presenting the Truth in Sentencing Act to Parliament and the House of Commons Standing Committee on Justice and Human Rights, the Minister of Justice explained that denial of enhanced credit was aimed at promoting public safety and public confidence in the justice system, by imposing longer sentences on violent and repeat offenders and increasing their exposure to rehabilitative programming. He said:

The practice of awarding generous credit erodes public confidence in the integrity of the justice system. It also undermines the commitment of the government to enhance the safety and security of Canadians by keeping violent or repeat offenders in custody for longer periods. [Emphasis added.]

(House of Commons Debates, vol. 144, No. 41, 2nd Sess., 40th Parl., April 20, 2009 (“Debates”), at p. 2418)

The Minister’s reference to “violent or repeat offenders” suggests that the challenged provision is targeted at two groups: (1) dangerous persons, who have committed crimes of violence or threatened violence; and (2) chronic offenders, whether convicted of violent crimes or not.

[38]                          The Minister also linked longer periods in custody to rehabilitation:

As a result of [the challenged provision], a greater number of offenders would now serve a federal sentence of two or more years , and there will be an increased number of federal offenders spending in federal custody.

     This time [in] the federal system will present the opportunity for longer-term programming that may have a positive effect on the offender.  [Emphasis added.]

(Standing Committee on Justice and Human Rights, Evidence, No. 20, 2nd Sess., 40th Parl., May 6, 2009 (“Evidence”), at pp. 11-12)

[39]                          The Minister referred to other goals. One was the goal of adequate or fit punishment, in a retributive sense. On this, he said:

Not only does [enhanced credit] deprive offenders of the prison programs   that might help to keep them out of jail in the future, it also fails to punish them adequately for the deeds that led to their convictions in the first place. [Emphasis added.]

(Debates, at p. 2418)


[40]                          The Minister coupled the desire for adequate punishment with the idea that enhanced credit gives repeat offenders a “benefit” they do not deserve: “You shouldn’t get any benefit for being detained if there are legitimate reasons for you not to make bail” (Evidence, at p. 15). Although the Minister erred in characterizing enhanced credit as a “benefit” (see Summers, at paras. 23-27), it is clear that he wanted to ensure “adequate” periods of incarceration for repeat offenders — a “final sentence [that] reflects the seriousness of the crime”: Evidence, at p. 11.

[41]                          Do the Minister’s comments on achieving adequate sentences for repeat offenders reflect the central purpose of denying any enhanced credit for pre-sentence custody to offenders denied bail because of a prior conviction? I think not. Those comments must be considered in context. The weight of the legislative record suggests that the challenged provision was geared towards promoting public safety and security, not retribution. Achieving adequate punishment is not, in the s. 7 analysis, a purpose of the challenged provision.

[42]                          Finally, the Minister referred to the goals of making the system more transparent and preventing offenders from manipulating the system: see e.g. Debates, at p. 2417. Once again, it is difficult to see these goals as the purpose of a total denial of enhanced credit for pre-sentence custody to persons denied bail primarily because of a prior conviction.

[43]                          The challenged provision — the denial of enhanced credit to repeat offenders who receive a s. 515(9.1) endorsement — is difficult to relate to a desire to make the system clearer or easier to understand. While requiring a bail judge to make a written notation that the primary basis for denying bail is a prior conviction may enhance transparency in the bail system, it cannot be said that the actual deprivation of liberty imposed by s. 719(3.1) seeks to further transparency.

[44]                          Similarly, the challenged provision, by its words and how it operates, is not directed at preventing offenders’ manipulation of the system. The Minister expressed concern that under the old system, offenders were prolonging pre-sentence custody to take advantage of enhanced credit that would shorten their total time in custody. While this goal is reflected in the one-and-a-half-for-one cap on enhanced credit, which removes the incentive to extend the period of pre-sentence custody, it is not related to the challenged provision.

[45]                          In summary, examined in the light of Moriarity, the text, context and scheme of the legislation, coupled with the Minister’s statements of purpose, lead me to the following conclusions.

[46]                          First, the animating social value behind the denial of enhanced credit for pre-sentence custody in s. 719(3.1) is enhancing public confidence in the justice system.

[47]                          Second, the legislative purpose of the total denial of enhanced credit for pre-sentence custody to offenders who are denied bail because of a prior conviction is to enhance public safety and security by increasing violent and chronic offenders’ access to rehabilitation programs. To be sure, the Minister referred to other legislative purposes — providing adequate punishment, increasing transparency in the pre-sentence credit system, and reducing manipulation. But these are peripheral, for the reasons discussed above.

[48]                          Third, the means for achieving the purpose of enhancing public safety and security is the challenged provision itself — the denial of enhanced credit for pre-sentence custody to persons refused bail primarily on the basis of their existing criminal record.

[49]                          Finally, the effect of the provision is to impose longer periods of custody on all persons who receive an endorsement indicating they were denied bail primarily on the basis of a previous conviction.

B.            Is the Law Overbroad?

[50]                          It is a principle of fundamental justice that a law that deprives a person of life, liberty, or security of the person must not do so in a way that is overbroad. In other words, the law must not go further than reasonably necessary to achieve its legislative goals: Bedford, at para. 101.

[51]                          The Court explained the substance of the principle against overbreadth in Bedford, at paras. 112-13:

Overbreadth deals with a law that is so broad in scope that it includes some conduct that bears no relation to its purpose. In this sense, the law is arbitrary in part. At its core, overbreadth addresses the situation where there is no rational connection between the purposes of the law and some, but not all, of its impacts. . . .

Overbreadth allows courts to recognize that the law is rational in some cases, but that it overreaches in its effect in others. Despite this recognition of the scope of the law as a whole, the focus remains on the individual and whether the effect on the individual is rationally connected to the law’s purpose. For example, where a law is drawn broadly and targets some conduct that bears no relation to its purpose in order to make enforcement more practical, there is still no connection between the purpose of the law and its effect on the specific individual. Enforcement practicality may be a justification for an overbroad law, to be analyzed under s. 1 of the Charter. [Underlining added.]

[52]                          The denial of enhanced credit for pre-sentence custody to offenders who are denied bail primarily because of a prior conviction is overbroad because it catches people in ways that have nothing to do with enhancing public safety and security.

[53]                          First, the provision’s ambit captures people it was not intended to capture: offenders who do not pose a threat to public safety or security. Section 515(9.1) is broadly worded. It catches any person denied bail primarily for a criminal record, without specifying or even broadly identifying the nature or number of offences that would warrant a s. 515(9.1) endorsement. The section may therefore ensnare persons whose imprisonment does not advance the purpose of the law. For example, a person with two or three convictions for failing to appear in court might be subject to a s. 515(9.1) endorsement, even though he or she did not pose any real threat to public safety or security. And even if such a person receives greater access to rehabilitative programming and benefits from it, the consequence is not necessarily to improve public safety and security. In short, a s. 515(9.1) endorsement is an inexact proxy for the danger that an offender poses to public safety and security. The Crown says the law casts the net broadly because targeting all offenders with a criminal record is a more practical option than attempting to identify only offenders who pose a risk to public safety and security. But practicality is no answer to a charge of overbreadth under s. 7: Bedford, at para. 113.

[54]                          Second, regardless of the types of offenders the challenged provision was meant to capture, the provision suffers from overbreadth because, as the intervener the Criminal Lawyers’ Association (Ontario) notes, the limited availability of judicial review means that persons wrongly tagged with an endorsement will be without recourse to have the error remedied. There is dispute about precisely when if ever review for an endorsement is available. But the Crown concedes that if the reviewing judge finds that the detention order was properly made, he or she is powerless to vacate an endorsement and that the sentencing judge has no choice under the challenged provision but to give effect to an endorsement in computing an offender’s sentence. This absence of review and discretion renders the challenged provision overbroad for at least two categories of individuals: (1) persons who erroneously received the endorsement because their detention is not warranted primarily because of their criminal record, and (2) persons who, during the period between the bail hearing and sentencing, successfully appeal the conviction that drew the endorsement. In both cases, the effect of the provision is to strip persons of liberty even though their detention does not obviously advance public safety and security.

[55]                          I conclude that the challenged provision seeks to advance the objective of enhancing public safety and security in a manner that is overbroad.

C.            Is the Infringement Justified Under Section 1 of the Charter?

[56]                          The Crown contends that if the challenged provision violates s. 7 of the Charter, the infringement is justified under s. 1. I cannot accept this submission.

[57]                          It is difficult, but not impossible, to justify a s. 7 violation under s. 1. Laws that deprive individuals of liberty contrary to a principle of fundamental justice are not easily upheld. However, a law may be saved under s. 1 if the state can point to public goods or competing social interests that are themselves protected by the Charter: Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 95. Courts may accord deference to legislatures under s. 1 for breaches of s. 7 where, for example, the law represents a “complex regulatory response” to a social problem: Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, at para. 37.

[58]                          An infringement of the Charter is justified under s. 1 where the law has a “pressing and substantial object and . . . the means chosen are proportional to that object”: Carter, at para. 94. A law is proportionate where the means adopted are rationally connected to the law’s objective, minimally impairing of the right in question, and the law’s salutary effects outweigh its deleterious effects : R. v. Oakes, [1986] 1 S.C.R. 103.

[59]                          The main objective of the challenged provision in this case is, as noted, enhancing public safety and security with longer and more rehabilitative sentences for violent and chronic offenders. This objective is pressing and substantial.

[60]                          The real issue is whether the means chosen here are proportionate to this objective. For reasons much the same as those discussed in the overbreadth analysis, I conclude that this has not been established.

[61]                          The challenged provision is rationally connected to its purpose of enhancing public safety and security. The denial of enhanced credit gives rise to longer periods of custody. It is therefore likely to increase the opportunities of some offenders to access rehabilitative programs.

[62]                          However, the law is neither minimally impairing nor proportionate in the balance it achieves between salutary and deleterious effects.

[63]                          To establish minimal impairment, the Crown must show the absence of less drastic means of achieving the objective in a “real and substantial manner”: Carter, at para. 102. The Crown has not discharged that burden. Alternative and more reasonable means of achieving its purposes were open to Parliament. Strathy J.A. provided one example — a law requiring the sentencing judge to consider whether to grant enhanced credit for pre-sentence custody based on (i) the offender’s criminal record, (ii) the availability of rehabilitative programs and the desirability of giving the offender access to those programs, and (iii) whether the offender was responsible for prolonging his or her time in pre-sentence custody. Such a regime would achieve the goal of promoting public safety and security through rehabilitation, without catching chronic or other offenders who pose no risk to public safety.

[64]                          The Crown argues that the provision is reasonably tailored to its objective because it “applies to a relatively narrow class of offenders, focusing on the most serious recidivists”: A.F., at para. 62. But the law plainly does the opposite: it makes any person with a criminal record, even for missed court dates, a potential target for restriction of enhanced credit. In my view, the challenged provision is not minimally impairing of the right to liberty.

[65]                          Finally, I agree with Court of Appeal that the Crown has failed to establish benefits that outweigh the detrimental effect of the challenged provision on the right to liberty. The benefit to public safety by increasing access to rehabilitation programs is not trivial. But the law’s overbreadth means that offenders who have neither committed violent offences nor present a risk to public safety will be unnecessarily deprived of liberty. The Crown has failed to meet that high bar required to justify such a deprivation.

[66]                          I conclude that the challenged provision is not saved under s. 1.

D.           The Court of Appeal’s Reliance on Proportionality of Process

[67]                          The Court of Appeal held that proportionality in the sentencing process is a principle of fundamental justice under s. 7 of the Charter, and that the denial of enhanced credit for pre-sentence custody in s. 719(3.1) offends that principle. The court erred in doing so. Proportionality in the sentencing process is not a principle of fundamental justice under s. 7.

[68]                          The content of the principle the Court of Appeal recognized is not entirely clear. Strathy J.A. stated that the principle of proportionality already finds expression in s. 718.1 of the Criminal Code: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” He also noted that the principle of proportionality “is informed by other sentencing principles in the Code” (para. 77), including the parity principle, found at s. 718.2(b): “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”. These statements suggest that the Court of Appeal viewed proportionality in sentencing as a comparative concept, concerned with the relationship between the seriousness of the offence committed and the sentence imposed.

[69]                          At the same time, Strathy J.A. emphasized that proportionality is about the sentencing process, not its result. As he put it, proportionality in sentencing entitles an offender “to a process directed at crafting a just sentence” and “prevents Parliament from making sentencing contingent on factors unrelated to the determination of a fit sentence”: paras. 82 (emphasis in original) and 85. Proportionality in this sense is more concerned with what considerations properly belong in the sentencing process, and less with the magnitude of the sentence ultimately imposed.

[70]                          Proportionality in the sense articulated at s. 718.1 of the Code — that a sentence be proportionate to the gravity of an offence and an offender’s degree of responsibility — is a fundamental principle of sentencing. As LeBel J. stated for a majority of the Court in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37, proportionality is “the sine qua non of a just sanction”. It is grounded in elemental notions of justice and fairness, and is indispensable to the public’s confidence in the justice system.  LeBel J. went so far as to opine that “proportionality in sentencing could aptly be described as a principle of fundamental justice under s. 7 of the Charter”:  para. 36 (emphasis added); see also R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 21. LeBel J. also, however, recognized that the “constitutional dimension” of proportionality in sentencing is the prohibition of grossly disproportionate sentences in s. 12 of the Charter: para. 36.

[71]                          To say that proportionality is a fundamental principle of sentencing is not to say that proportionality in the sentencing process is a principle of fundamental justice for the purpose of determining whether a deprivation of liberty violates s. 7 of the Charter, notwithstanding the obiter comment of LeBel J. in Ipeelee. The principles and purposes for determining a fit sentence, enumerated in s. 718 of the Criminal Code and provisions that follow  — including the fundamental principle of proportionality in s. 718.1 — do not have constitutional status. Parliament is entitled to modify and abrogate them as it sees fit, subject only to s. 12 of the Charter. Parliament can limit a sentencing judge’s ability to impose a fit sentence, but it cannot require a sentencing judge to impose grossly disproportionate punishment. It follows, then, that the Court of Appeal erred in declaring proportionality in the sentencing process to be a principle of fundamental justice under s. 7.

[72]                           This conclusion accords with precedent. In R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571, at para. 160, a majority of this Court squarely rejected the proposition that there is “a principle of fundamental justice embedded in s. 7 that would give rise to a constitutional remedy against a punishment that does not infringe s. 12”.  The standard imposed by s. 7 with respect to sentencing is the same as it is under s. 12: gross disproportionality.

[73]                          I see no reason to depart from that holding here. Proportionality, as expressed in s. 718.1 of the Criminal Code, is a foundational principle of sentencing. But the constitutional standard against which punishment is measured is and remains gross disproportionality. Proportionality in the sentencing process is not a principle of fundamental justice under s. 7.

VI.        Conclusion

[74]                          I would dismiss the Crown’s appeal. The challenged portion of s. 719(3.1) violates s. 7 of the Charter, and the Crown has not justified that infringement under s. 1. It is therefore declared to be of no force and effect under s. 52 of the Constitution Act, 1982.



                    Appeal dismissed.

                    Solicitor for the appellant: Attorney General of Ontario, Toronto.

                    Solicitors for the respondent: Presser Barristers, Toronto; Timothy J. Lutes, Toronto.

                    Solicitor for the intervener the Attorney General of Canada: Attorney General of Canada, Winnipeg.

                    Solicitors for the intervener the British Columbia Civil Liberties Association: Stockwoods, Toronto.

                    Solicitors for the intervener the Criminal Lawyers’ Association (Ontario): Russel Silverstein & Associate, Toronto.

                    Solicitors for the intervener the John Howard Society of Canada: Polley Faith, Toronto.

                    Solicitors for the intervener the West Coast Prison Justice Society: Hunter Litigation Chambers, Vancouver.

                    Solicitor for the intervener the Aboriginal Legal Services of Toronto Inc.: Aboriginal Legal Services of Toronto, Toronto.

SUPREME COURT OF CANADA Case name: Daniels v. Canada (Indian Affairs and Northern Development) Collection: Supreme Court Judgments Date: 2016-04-14 Neutral citation: 2016 SCC 12 Case number: 35945 Judges: McLachlin, Beverley; Abella, Rosalie Silberman; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell On appeal from: Federal Court of Appeal Subjects: Constitutional law Notes: SCC Case Information: 35945 copy

Case name: Daniels v. Canada (Indian Affairs and Northern Development)
Collection: Supreme Court Judgments
Date: 2016-04-14
Neutral citation: 2016 SCC 12
Case number: 35945
Judges: McLachlin, Beverley; Abella, Rosalie Silberman; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell
On appeal from: Federal Court of Appeal
Subjects: Constitutional law
Notes: SCC Case Information: 35945



SUPREME COURT OF CANADA

Citation: Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12
Appeal heard: October 8, 2015
Judgment rendered: April 14, 2016
Docket: 35945

Between:
Harry Daniels, Gabriel Daniels, Leah Gardner,
Terry Joudrey and Congress of Aboriginal Peoples
Appellants/Respondents on cross-appeal
and
Her Majesty the Queen as represented by the
Minister of Indian Affairs and Northern Development and
Attorney General of Canada
Respondents/Appellants on cross-appeal
- and -
Attorney General for Saskatchewan, Attorney General of Alberta,
Native Council of Nova Scotia, New Brunswick Aboriginal Peoples Council,
Native Council of Prince Edward Island, Metis Settlements General Council,
Te’mexw Treaty Association, Métis Federation of Canada,
Aseniwuche Winewak Nation of Canada, Chiefs of Ontario,
Gift Lake Métis Settlement, Native Alliance of Quebec,
Assembly of First Nations and Métis National Council
Interveners


Coram: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.

Reasons for Judgment:
(paras. 1 to 58)
Abella J. (McLachlin C.J. and Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ. concurring)

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.







daniels v. canada (indian affairs and northern development)


Harry Daniels, Gabriel Daniels,
Leah Gardner, Terry Joudrey and
Congress of Aboriginal Peoples Appellants/Respondents on cross‑appeal


v.


Her Majesty The Queen
as represented by the
Minister of Indian Affairs and
Northern Development and
Attorney General of Canada Respondents/Appellants on cross‑appeal


and


Attorney General for Saskatchewan,
Attorney General of Alberta,
Native Council of Nova Scotia,
New Brunswick Aboriginal Peoples Council,
Native Council of Prince Edward Island,
Metis Settlements General Council,
Te’mexw Treaty Association,
Métis Federation of Canada,
Aseniwuche Winewak Nation of Canada,
Chiefs of Ontario,
Gift Lake Métis Settlement,
Native Alliance of Quebec,
Assembly of First Nations and
Métis National Council Interveners


Indexed as: Daniels v. Canada (Indian Affairs and Northern Development)


2016 SCC 12


File No.: 35945.


2015: October 8; 2016: April 14.


Present: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.


on appeal from the federal court of appeal


Constitutional law — Aboriginal law — Métis — Non‑status Indians — Whether declaration should be issued that Métis and non‑status Indians are “Indians” under s. 91(24) of Constitution Act, 1867 — Whether declaration would have practical utility — Whether, for purposes of s. 91(24), Métis should be restricted to definitional criteria set out in R. v. Powley, [2003] 2 S.C.R. 207 — Constitution Act, 1867, s. 91(24) — Constitution Act, 1982, s. 35.


Three declarations are sought in this case: (1) that Métis and non‑status Indians are “Indians” under s. 91(24) of the Constitution Act, 1867; (2) that the federal Crown owes a fiduciary duty to Métis and non‑status Indians; and (3) that Métis and non‑status Indians have the right to be consulted and negotiated with.


The trial judge’s conclusion was that “Indians” under s. 91(24) is a broad term referring to all Indigenous peoples in Canada. He declined, however, to grant the second and third declarations. The Federal Court of Appeal accepted that “Indians” in s. 91(24) included all Indigenous peoples generally. It upheld the first declaration, but narrowed its scope to exclude non‑status Indians and include only those Métis who satisfied the three criteria from R. v. Powley, [2003] 2 S.C.R. 207. It also declined to grant the second and third declarations. The appellants sought to restore the first declaration as granted by the trial judge, and asked that the second and third declarations be granted. The Crown cross‑appealed, arguing that none of the declarations should be granted. It conceded that non‑status Indians are “Indians” under s. 91(24).


Held: The first declaration should be granted: Métis and non‑status Indians are “Indians” under s. 91(24). The appeal should therefore be allowed in part. The Federal Court of Appeal’s conclusion that the first declaration should exclude non‑status Indians or apply only to those Métis who meet the Powley criteria, should be set aside, and the trial judge’s decision restored. The trial judge’s and Federal Court of Appeal’s decision not to grant the second and third declarations should be upheld. The cross‑appeal should be dismissed.


A declaration can only be granted if it will have practical utility, that is, if it will settle “a live controversy” between the parties. The first declaration, whether non‑status Indians and Métis are “Indians” under s. 91(24), would have enormous practical utility for these two groups who have found themselves having to rely more on noblesse oblige than on what is obliged by the Constitution. A declaration would guarantee both certainty and accountability. Both federal and provincial governments have, alternately, denied having legislative authority over non‑status Indians and Métis. This results in these Indigenous communities being in a jurisdictional wasteland with significant and obvious disadvantaging consequences. While finding Métis and non‑status Indians to be “Indians” under s. 91(24) does not create a duty to legislate, it has the undeniably salutary benefit of ending a jurisdictional tug‑of‑war.


There is no need to delineate which mixed‑ancestry communities are Métis and which are non‑status Indians. They are all “Indians” under s. 91(24) by virtue of the fact that they are all Aboriginal peoples. “Indians” has long been used as a general term referring to all Indigenous peoples, including mixed‑ancestry communities like the Métis. Before and after Confederation, the government frequently classified Aboriginal peoples with mixed European and Aboriginal heritage as Indians. Historically, the purpose of s. 91(24) in relation to the broader goals of Confederation also indicates that since 1867, “Indians” meant all Aboriginal peoples, including Métis.


As well, the federal government has at times assumed that it could legislate over Métis as “Indians”, and included them in other exercises of federal authority over “Indians”, such as sending many Métis to Indian Residential Schools — a historical wrong for which the federal government has since apologized. Moreover, while it does not define the scope of s. 91(24), s. 35 of the Constitution Act, 1982 states that Indian, Inuit, and Métis peoples are Aboriginal peoples for the purposes of the Constitution. This Court has noted that ss. 35 and 91(24) should be read together. “Indians” in the constitutional context, therefore, has two meanings: a broad meaning, as used in s. 91(24), that includes both Métis and Inuit and can be equated with the term “aboriginal peoples of Canada” used in s. 35, and a narrower meaning that distinguishes Indian bands from other Aboriginal peoples. It would be constitutionally anomalous for the Métis to be the only Aboriginal people to be recognized and included in s. 35 yet excluded from the constitutional scope of s. 91(24).


The jurisprudence also supports the conclusion that Métis are “Indians” under s. 91(24). It demonstrates that intermarriage and mixed‑ancestry do not preclude groups from inclusion under s. 91(24). The fact that a group is a distinct people with a unique identity and history whose members self‑identify as separate from Indians, is not a bar to inclusion within s. 91(24). Determining whether particular individuals or communities are non‑status Indians or Métis and therefore “Indians” under s. 91(24), is a fact‑driven question to be decided on a case‑by‑case basis in the future.


As to whether, for purposes of s. 91(24), Métis should be restricted to the three definitional criteria set out in Powley in accordance with the decision of the Federal Court of Appeal, or whether the membership base should be broader, there is no principled reason for presumptively and arbitrarily excluding certain Métis from Parliament’s protective authority on the basis of the third criterion, a “community acceptance” test. The criteria in Powley were developed specifically for purposes of applying s. 35, which is about protecting historic community‑held rights. Section 91(24) serves a very different constitutional purpose. The constitutional changes, the apologies for historic wrongs, a growing appreciation that Aboriginal and non‑Aboriginal people are partners in Confederation, as well as the Report of the Royal Commission on Aboriginal Peoples and the Final Report of the Truth and Reconciliation Commission of Canada, all indicate that reconciliation with all of Canada’s Aboriginal peoples is Parliament’s goal.


The historical, philosophical, and linguistic contexts establish that “Indians” in s. 91(24) includes all Aboriginal peoples, including non‑status Indians and Métis. The first declaration should accordingly be granted.


Federal jurisdiction over Métis and non‑status Indians does not mean that all provincial legislation pertaining to Métis and non‑status Indians is inherently ultra vires. As this Court has recognized, courts should favour, where possible, the operation of statutes enacted by both levels of government.


Cases Cited


Distinguished: R. v. Powley, 2003 SCC 43, [2003] 2 S.C.R. 207; R. v. Blais, 2003 SCC 44, [2003] 2 S.C.R. 236; considered: Reference as to whether “Indians” in s. 91(24) of the B.N.A. Act includes Eskimo inhabitants of the Province of Quebec, [1939] S.C.R. 104; Attorney General of Canada v. Canard, [1976] 1 S.C.R. 170; referred to: Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44; Solosky v. The Queen, [1980] 1 S.C.R. 821; Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; Lovelace v. Ontario, 2000 SCC 37, [2000] 1 S.C.R. 950; Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103; R. v. Sparrow, [1990] 1 S.C.R. 1075; Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388; Lax Kw’alaams Indian Band v. Canada (Attorney General), 2011 SCC 56, [2011] 3 S.C.R. 535; Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 37, [2011] 2 S.C.R. 670; Reference re Same‑Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698; Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3; NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union, 2010 SCC 45, [2010] 2 S.C.R. 696; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 257.


Statutes and Regulations Cited


Act further to amend The Indian Act, S.C. 1894, c. 32.


Act providing for the organisation of the Department of the Secretary of State of Canada, and for the management of Indian and Ordnance Lands, S.C. 1868, c. 42.


Act to amend the Indian Act, S.C. 1958, c. 19.


Canadian Bill of Rights, S.C. 1960, c. 44.


Canadian Charter of Rights and Freedoms, s. 15.


Constitution Act, 1867, s. 91(24).


Constitution Act, 1982, ss. 35, 37, 37.1.


Game and Fish Act, R.S.O. 1990, c. G.1.


Indian Act, R.S.C. 1970, c. I‑6, s. 43.


Indian Act, R.S.C. 1985, c. I‑5.


Indian Act, 1876, S.C. 1876, c. 18.


Manitoba Act, 1870, S.C. 1870, c. 3 (reprinted in R.S.C. 1985, App. II, No. 8).


Metis Settlements Act, R.S.A. 2000, c. M‑14.


Authors Cited


Bell, Catherine. “Who are the Metis People in Section 35(2)?” (1991), 29 Alta. L. Rev. 351.


Borrows, John. Canada’s Indigenous Constitution. Toronto: University of Toronto Press, 2010.


Canada. Commission to Inquire into the Matters of Membership in the Indian Bands in Lesser Slave Lake Agency. Report of Mr. Justice W.A. Macdonald Following an Enquiry Directed Under Section 18 of the Indian Act, August 1944 (online: http://epe.lac‑bac.gc.ca/100/200/301/pco‑bcp/commissions‑ef/macdonald1947‑eng/macdonald1947‑eng.htm).


Canada. Department of Indian Affairs and Northern Development, Intergovernmental Affairs, Corporate Policy. Natives and the Constitution — Background and Discussion Paper. August 1980.


Canada. Royal Commission on Aboriginal Peoples. Report of the Royal Commission on Aboriginal Peoples, vol. 2, Restructuring the Relationship. Ottawa: The Commission, 1996.


Canada. Royal Commission on Aboriginal Peoples. Report of the Royal Commission on Aboriginal Peoples, vol. 3, Gathering Strength. Ottawa: The Commission, 1996.


Canada. Truth and Reconciliation Commission. The Final Report of the Truth and Reconciliation Commission of Canada, vol. 3, Canada’s Residential Schools: The Métis Experience. Montréal: McGill‑Queen’s University Press, 2015.


Canada. Truth and Reconciliation Commission. Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. Winnipeg: The Commission, 2015.


Chartier, Clem. “‘Indian’: An Analysis of the Term as Used in Section 91(24) of the British North America Act, 1867” (1978‑79), 43 Sask. L. Rev. 37.


Gaffney, R. E., G. P. Gould and A. J. Semple. Broken Promises: The Aboriginal Constitutional Conferences. Fredericton: New Brunswick Association of Metis and Non‑Status Indians, 1984.


Great Britain. House of Commons. Select Committee on the Hudson’s Bay Company. Report from the Select Committee on the Hudson’s Bay Company; Together with the Proceedings of the Committee, Minutes of Evidence, Appendix and Index. London: HMSO, 1858.


Hogg, Peter W. Constitutional Law of Canada, 5th ed. Supp. Toronto: Carswell, 2007 (updated 2015, release 1).


King, Thomas. The Inconvenient Indian: A Curious Account of Native People in North America. Toronto: Anchor Canada, 2013.


Lyon, Noel. “Constitutional Issues in Native Law”, in Bradford W. Morse, ed., Aboriginal Peoples and the Law: Indian, Metis and Inuit Rights in Canada, rev. 1st ed. Ottawa: Carleton University Press, 1989, 408.


Magnet, Joseph Eliot. “Who are the Aboriginal People of Canada?”, in Dwight A. Dorey and Joseph Eliot Magnet, eds., Aboriginal Rights Litigation. Markham, Ont.: LexisNexis Butterworths, 2003, 23.


Stevenson, Mark. “Section 91(24) and Canada’s Legislative Jurisdiction with Respect to the Métis” (2002), 1 Indigenous L.J. 237.


APPEAL and CROSS‑APPEAL from a judgment of the Federal Court of Appeal (Noël, Dawson and Trudel JJ.A.), 2014 FCA 101, [2014] 4 F.C.R. 97, 371 D.L.R. (4th) 725, 457 N.R. 347, [2014] 3 C.N.L.R. 139, 309 C.R.R. (2d) 200, [2014] F.C.J. No. 383 (QL), 2014 CarswellNat 1076 (WL Can.), setting aside in part a decision of Phelan J., 2013 FC 6, [2013] 2 F.C.R. 268, 357 D.L.R. (4th) 47, 426 F.T.R. 1, [2013] 2 C.N.L.R. 61, [2013] F.C.J. No. 4 (QL), 2013 CarswellNat 8 (WL Can.). Appeal allowed in part and cross‑appeal dismissed.


Joseph Eliot Magnet, Andrew K. Lokan and Lindsay Scott, for the appellants/respondents on cross‑appeal.


Mark R. Kindrachuk, Q.C., Christopher M. Rupar and Shauna K. Bedingfield, for the respondents/appellants on cross‑appeal.


P. Mitch McAdam, Q.C., for the intervener the Attorney General for Saskatchewan.


Angela Edgington and Neil Dobson, for the intervener the Attorney General of Alberta.


Written submissions only by D. Bruce Clarke, Q.C., for the interveners the Native Council of Nova Scotia, the New Brunswick Aboriginal Peoples Council and the Native Council of Prince Edward Island.


Garry Appelt and Keltie Lambert, for the intervener the Metis Settlements General Council.


Written submissions only by Robert J. M. Janes and Elin R. S. Sigurdson, for the intervener the Te’mexw Treaty Association.


Christopher G. Devlin, John Gailus and Cynthia Westaway, for the intervener the Métis Federation of Canada.


Karey M. Brooks and Claire Truesdale, for the intervener the Aseniwuche Winewak Nation of Canada.


Scott Robertson, for the intervener the Chiefs of Ontario.


Paul Seaman and Maxime Faille, for the intervener the Gift Lake Métis Settlement.


Marc Watters and Lina Beaulieu, for the intervener the Native Alliance of Quebec.


Guy Régimbald and Jaimie Lickers, for the intervener the Assembly of First Nations.


Jason T. Madden, Clément Chartier, Q.C., Kathy Hodgson‑Smith and Marc Leclair, for the intervener the Métis National Council.





The judgment of the Court was delivered by

Abella J. —


[1] As the curtain opens wider and wider on the history of Canada’s relationship with its Indigenous peoples, inequities are increasingly revealed and remedies urgently sought. Many revelations have resulted in good faith policy and legislative responses, but the list of disadvantages remains robust. This case represents another chapter in the pursuit of reconciliation and redress in that relationship.


Background


[2] Three declarations were sought by the plaintiffs when this litigation was launched in 1999:


1. That Métis and non-status Indians are “Indians” under s. 91(24);


2. That the federal Crown owes a fiduciary duty to Métis and non-status Indians; and


3. That Métis and non-status Indians have the right to be consulted and negotiated with, in good faith, by the federal government on a collective basis through representatives of their choice, respecting all their rights, interests and needs as Aboriginal peoples.





[3] Section 91(24) of the Constitution Act, 1867 states that


91. . . . it is hereby declared that . . . the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated . . .

. . .

24. Indians, and Lands reserved for the Indians.


[4] The trial judge, Phelan J., made a number of key factual findings in his thoughtful and thorough reasons.[1] As early as 1818, the government used “Indian” as a general term to refer to communities of mixed Aboriginal and European background. The federal government considered Métis to be “Indians” in various treaties and pre-Confederation statutes, and considered Métis to be “Indians” under s. 91(24) in various statutes and policy initiatives spanning from Confederation to modern day. Moreover, the purpose of s. 91(24) was closely related to the expansionist goals of Confederation. The historical and legislative evidence shows that expanding the country across the West was one of the primary goals of Confederation. Building a national railway was a key component of this plan.


[5] Accordingly, the purposes of s. 91(24) were “to control Native people and communities where necessary to facilitate development of the Dominion; to honour the obligations to Natives that the Dominion inherited from Britain . . . [and] eventually to civilize and assimilate Native people” (para. 353). Since much of the North-Western territory was occupied by Métis, only a definition of “Indians” in s. 91(24) that included “a broad range of people sharing a Native hereditary base” (para. 566) would give Parliament the necessary authority to pursue its agenda.


[6] His conclusion was that in its historical, philosophical, and linguistic contexts, “Indians” under s. 91(24) is a broad term referring to all Indigenous peoples in Canada, including non-status Indians and Métis.


[7] He found that since neither the federal nor provincial governments acknowledged that they had jurisdiction over Métis and non-status Indians, the declaration would alleviate the constitutional uncertainty and the resulting denial of material benefits. There was therefore practical utility to the first declaration being granted, namely, that Métis and non-status Indians are included in what is meant by “Indians” in s. 91(24). He did not restrict the definition of either group.


[8] He declined, however, to grant the second and third declarations on the grounds that they were vague and redundant. It was already well established in Canadian law that the federal government was in a fiduciary relationship with Canada’s Aboriginal peoples and that the federal government had a duty to consult and negotiate with them when their rights were engaged. Restating this in declarations would be of no practical utility.


[9] The Federal Court of Appeal accepted the trial judge’s findings of fact, including that “Indians” in s. 91(24) included all Indigenous peoples generally. It therefore upheld the trial judge’s decision to grant the first declaration, but narrowed its scope to exclude non-status Indians and include only those Métis who satisfied the three criteria from R. v. Powley, [2003] 2 S.C.R. 207. While it was of the view that non-status Indians were clearly “Indians”, setting this out in a declaration would be redundant and of no practical usefulness. For the same reasons as the trial judge, it declined to grant the second and third declarations.


[10] Before this Court, the appellants sought to restore the first declaration as granted by the trial judge, not as restricted by the Federal Court of Appeal. In addition, they asked that the second and third declarations be granted. The Crown cross-appealed, arguing that none of the declarations should be granted. For the following reasons, I agree generally with the trial judge.


Analysis


[11] This Court most recently restated the applicable test for when a declaration should be granted in Canada (Prime Minister) v. Khadr, [2010] 1 S.C.R. 44. The party seeking relief must establish that the court has jurisdiction to hear the issue, that the question is real and not theoretical, and that the party raising the issue has a genuine interest in its resolution. A declaration can only be granted if it will have practical utility, that is, if it will settle a “live controversy” between the parties: see also Solosky v. The Queen, [1980] 1 S.C.R. 821; Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342.


[12] The first disputed issue in this case is whether the declarations would have practical utility. There can be no doubt, in my respectful view, that granting the first declaration meets this threshold. Delineating and assigning constitutional authority between the federal and provincial governments will have enormous practical utility for these two groups who have, until now, found themselves having to rely more on noblesse oblige than on what is obliged by the Constitution.


[13] Both federal and provincial governments have, alternately, denied having legislative authority over non-status Indians and Métis. As the trial judge found, when Métis and non-status Indians have asked the federal government to assume legislative authority over them, it tended to respond that it was precluded from doing so by s. 91(24). And when Métis and non-status Indians turned to provincial governments, they were often refused on the basis that the issue was a federal one.


[14] This results in these Indigenous communities being in a jurisdictional wasteland with significant and obvious disadvantaging consequences, as was recognized by Phelan J.:


One of the results of the positions taken by the federal and provincial governments and the “political football — buck passing” practices is that financially [Métis and non-status Indians] have been deprived of significant funding for their affairs. . . .

. . . the political/policy wrangling between the federal and provincial governments has produced a large population of collaterally damaged [Métis and non-status Indians]. They are deprived of programs, services and intangible benefits recognized by all governments as needed. [paras. 107-8]


See also Lovelace v. Ontario, [2000] 1 S.C.R. 950, at para. 70.


[15] With federal and provincial governments refusing to acknowledge jurisdiction over them, Métis and non-status Indians have no one to hold accountable for an inadequate status quo. The Crown’s argument, however, was that since a finding of jurisdiction under s. 91(24) does not create a duty to legislate, it is inappropriate to answer a jurisdictional question in a legislative vacuum. It is true that finding Métis and non-status Indians to be “Indians” under s. 91(24) does not create a duty to legislate, but it has the undeniably salutary benefit of ending a jurisdictional tug-of-war in which these groups were left wondering about where to turn for policy redress. The existence of a legislative vacuum is self-evidently a reflection of the fact that neither level of government has acknowledged constitutional responsibility. A declaration would guarantee both certainty and accountability, thereby easily reaching the required jurisprudential threshold of offering the tangible practical utility of the resolution of a longstanding jurisdictional dispute.


[16] We are left then to determine whether Métis and non-status Indians are in fact included in the scope of s. 91(24).


[17] There is no consensus on who is considered Métis or a non-status Indian, nor need there be. Cultural and ethnic labels do not lend themselves to neat boundaries. ‘Métis’ can refer to the historic Métis community in Manitoba’s Red River Settlement or it can be used as a general term for anyone with mixed European and Aboriginal heritage. Some mixed-ancestry communities identify as Métis, others as Indian:


There is no one exclusive Metis People in Canada, anymore than there is no one exclusive Indian people in Canada. The Metis of eastern Canada and northern Canada are as distinct from Red River Metis as any two peoples can be. . . . As early as 1650, a distinct Metis community developed in LeHeve [sic], Nova Scotia, separate from Acadians and Micmac Indians. All Metis are aboriginal people. All have Indian ancestry.


(R. E. Gaffney, G. P. Gould and A. J. Semple, Broken Promises: The Aboriginal Constitutional Conferences (1984), at p. 62, quoted in Catherine Bell, “Who are the Metis People in Section 35(2)?” (1991), 29 Alta. L. Rev. 351, at p. 356.)


[18] The definitional contours of ‘non-status Indian’ are also imprecise. Status Indians are those who are recognized by the federal government as registered under the Indian Act, R.S.C. 1985, c. I-5. Non-status Indians, on the other hand, can refer to Indians who no longer have status under the Indian Act, or to members of mixed communities which have never been recognized as Indians by the federal government. Some closely identify with their Indian heritage, while others feel that the term Métis is more reflective of their mixed origins.


[19] These definitional ambiguities do not preclude a determination into whether the two groups, however they are defined, are within the scope of s. 91(24). I agree with the trial judge and Federal Court of Appeal that the historical, philosophical, and linguistic contexts establish that “Indians” in s. 91(24) includes all Aboriginal peoples, including non-status Indians and Métis.


[20] To begin, it is unnecessary to explore the question of non-status Indians in a full and separate analysis because the Crown conceded in oral argument, properly in my view, that they are recognized as “Indians” under s. 91(24), a concession that reflects the fact that the federal government has used its authority under s. 91(24) in the past to legislate over non-status Indians as “Indians”.[2] While a concession is not necessarily determinative, it does not, on the other hand, make the granting of a declaration redundant, as the Crown suggests. Non-status Indians have been a part of this litigation since it started in 1999. Earlier in these proceedings, the Crown took the position that non-status Indians did not fall within federal jurisdiction under s. 91(24). As the intervener Aseniwuche Winewak Nation of Canada submitted in oral argument, excluding non-status Indians from the first declaration would send them “back to the drawing board”. To avoid uncertainty in the future, therefore, there is demonstrable utility in a declaration that confirms their inclusion.


[21] We are left then to consider primarily whether the Métis are included.


[22] The prevailing view is that Métis are “Indians” under s. 91(24). Prof. Hogg, for example, sees the word “Indians” under s. 91(24) as having a wide compass, likely including the Métis:


The Métis people, who originated in the west from intermarriage between French Canadian men and Indian women during the fur trade period, received “half-breed” land grants in lieu of any right to live on reserves, and were accordingly excluded from the charter group from whom Indian status devolved. However, they are probably “Indians” within the meaning of s. 91(24).


(Peter W. Hogg, Constitutional Law of Canada (5th ed. Supp.), at p. 28-4)


See also Joseph Eliot Magnet, “Who are the Aboriginal People of Canada?”, in Dwight A. Dorey and Joseph Eliot Magnet, eds., Aboriginal Rights Litigation (2003), 23, at p. 44; Clem Chartier, “‘Indian’: An Analysis of the Term as Used in Section 91(24) of the British North America Act, 1867” (1978-79), 43 Sask. L. Rev. 37; Mark Stevenson, “Section 91(24) and Canada’s Legislative Jurisdiction with Respect to the Métis” (2002), 1 Indigenous L.J. 237; Noel Lyon, “Constitutional Issues in Native Law”, in Bradford W. Morse, ed., Aboriginal Peoples and the Law: Indian, Metis and Inuit Rights in Canada (rev. 1st ed. 1989), 408, at p. 430.


[23] In fact, “Indians” has long been used as a general term referring to all Indigenous peoples, including mixed-ancestry communities like the Métis. The term was created by European settlers and applied to Canada’s Aboriginal peoples without making any distinction between them. As author Thomas King explains in The Inconvenient Indian:[3]


No one really believed that there was only one Indian. No one ever said there was only one Indian. But as North America began to experiment with its ‘Indian programs,’ it did so with a ‘one size fits all’ mindset. Rather than see tribes as an arrangement of separate nation states in the style of the Old World, North America imagined that Indians were basically the same. [p. 83]


[24] Before and after Confederation, the government frequently classified Aboriginal peoples with mixed European and Aboriginal heritage as Indians. Métis were considered “Indians” for pre-Confederation treaties such as the Robinson Treaties of 1850. Many post-Confederation statutes considered Métis to be “Indians”, including the 1868 statute entitled An Act providing for the organisation of the Department of the Secretary of State of Canada, and for the management of Indian and Ordnance Lands, c. 42.


[25] Historically, the purpose of s. 91(24) in relation to the broader goals of Confederation also indicates that since 1867, “Indians” meant all Aboriginal peoples, including Métis. The trial judge found that expanding British North America across Rupert’s Land and the North-West Territories was a major goal of Confederation and that building a national railway was a key component of this plan. At the time, that land was occupied by a large and diverse Aboriginal population, including many Métis. A good relationship with all Aboriginal groups was required to realize the goal of building “the railway and other measures which the federal government would have to take.” With jurisdiction over Aboriginal peoples, the new federal government could “protect the railway from attack” and ensure that they did not resist settlement or interfere with construction of the railway. Only by having authority over all Aboriginal peoples could the westward expansion of the Dominion be facilitated.


[26] The work of Prof. John Borrows supports this theory:


The Métis Nation was . . . crucial in ushering western and northern Canada into Confederation and in increasing the wealth of the Canadian nation by opening up the prairies to agriculture and settlement. These developments could not have occurred without Métis intercession and legal presence.


(Canada’s Indigenous Constitution (2010), at pp. 87-88)


In his view, it would have been impossible for Canada to accomplish its expansionist agenda if “Indians” under s. 91(24) did not include Métis. The threat they posed to Canada’s expansion was real. On many occasions Métis “blocked surveyors from doing their work” and “prevented Canada’s expansion into the region” when they were unhappy with the Canadian government: Borrows, at p. 88.


[27] In fact, contrary to its position in this case, the federal government has at times assumed that it could legislate over Métis as “Indians”. The 1876 Indian Act[4] banned the sale of intoxicating liquor to “Indians”. In 1893 the North-West Mounted Police wrote to the federal government, expressing their difficulty in distinguishing between “Half-breeds and Indians in prosecutions for giving liquor to the latter”. To clarify this issue, the federal government amended the Indian Act[5] in 1894 to broaden the ban on the sale of intoxicating liquor to Indians or any person “who follows the Indian mode of life”, which included Métis.


[28] In October 1899, Indian Affairs Minister Clifford Sifton wrote a memorandum that would become the basis of the federal government’s policy regarding Métis and Indian Residential Schools for decades. He wrote that “I am decidedly of the opinion that all children, even those of mixed blood . . . should be eligible for admission to the schools”: The Final Report of the Truth and Reconciliation Commission of Canada, vol. 3, The Métis Experience (2015), at p. 16. This policy was applied haphazardly. Provincial public school systems were reluctant to admit Métis students, as the provinces saw them as a federal responsibility: p. 26. Many Métis attended Residential Schools because they were the only educational option open to them.


[29] In some cases, the federal government directly financed these projects. In the 1890s, the federal government provided funding for a reserve and industrial school at Saint-Paul-des-Métis in Alberta, run by Oblate missionaries: vol. 3, at p. 16. The reserve consisted of two townships, owned by the Crown, and included a school for teaching trades to the Métis. As long as the project lasted, it functioned equivalently to similar reserves for Indian peoples.


[30] Many Métis were also sent to Indian Residential Schools, another exercise of federal authority over “Indians”, as The Final Report of the Truth and Reconciliation Commission of Canada documents. According to the Report, “[t]he central goal of the Canadian Residential School system was to ‘Christianize’ and ‘civilize’ Aboriginal people . . . . In the government’s vision, there was no place for the Métis Nation”: vol. 3, at p. 3. The Report notes that


[t]he existing records make it impossible to say how many Métis children attended residential school. But they did attend almost every residential school discussed in this report at some point. They would have undergone the same experiences — the high death rates, limited diets, crowded and unsanitary housing, harsh discipline, heavy workloads, neglect, and abuse . . . [p. 4]


The federal government has since acknowledged and apologized for wrongs such as Indian Residential Schools.


[31] Moreover, throughout the early twentieth century, many Métis whose ancestors had taken scrip continued to live on Indian reserves and to participate in Indian treaties. In 1944 a Commission of Inquiry in Alberta was launched to investigate this issue, headed by Justice William Macdonald. He concluded that the federal government had the constitutional authority to allow these Métis to participate in treaties and recommended that the federal government take steps to clarify the status of these Métis with respect to treaties and reserves: Report of Mr. Justice W.A. Macdonald Following an Enquiry Directed Under Section 18 of the Indian Act (1944).


[32] Justice Macdonald noted that the federal government had been willing to recognize Métis as Indians whenever it was convenient to do so:


It would appear that whenever it became necessary or expedient to extinguish Indian rights in any specific territory, the fact that Halfbreeds also had rights by virtue of their Indian blood was invariably recognized.

. . .

. . . mixed blood did not necessarily establish white status, nor did it bar an individual from admission into treaty. The welfare of the individual and his own desires in the matter were given due weight, no cast-iron rule was adopted. [pp. 557-58]


In 1958, the federal government amended the Indian Act,[6] enacting Justice Macdonald’s recommendation that Métis who had been allotted scrip but were already registered as Indians (and their descendants), remain registered under the Indian Act, thereby clarifying their status with respect to treaties and reserves. In so legislating, the federal government appeared to assume that it had authority over Métis under s. 91(24).


[33] Not only has the federal government legislated over Métis as “Indians”, but it appears to have done so in the belief it was acting within its constitutional authority. In 1980, the Department of Indian Affairs and Northern Development wrote a document for Cabinet entitled Natives and the Constitution. This document clearly expressed the federal government’s confidence that it had constitutional authority to legislate over Métis under s. 91(24):


Métis people . . . are presently in the same legal position as other Indians who signed land cession treaties. Those Métis who have received scrip or lands are excluded from the provisions of the Indian Act, but are still “Indians” within the meaning of the BNA Act. . . .

Should a person possess “sufficient” racial and social characteristics to be considered a “native person”, that individual will be regarded as an “Indian” . . . within the legislative jurisdiction of the federal government, regardless of the fact that he or she may be excluded from the coverage of the Indian Act. [p.43]


[34] Moreover, while it does not define the scope of s. 91(24), it is worth noting that s. 35[7] of the Constitution Act, 1982 states that Indian, Inuit, and Métis peoples are Aboriginal peoples for the purposes of the Constitution. This Court recently explained that the “grand purpose” of s. 35 is “[t]he reconciliation of Aboriginal and non-Aboriginal Canadians in a mutually respectful long-term relationship”: Beckman v. Little Salmon/Carmacks First Nation, [2010] 3 S.C.R. 103, at para. 10. And in R. v. Sparrow, [1990] 1 S.C.R. 1075, this Court noted that ss. 35 and 91(24) should be read together: para. 62, cited in Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623, at para. 69.


[35] The term “Indian” or “Indians” in the constitutional context, therefore, has two meanings: a broad meaning, as used in s. 91(24), that includes both Métis and Inuit and can be equated with the term “aboriginal peoples of Canada” used in s. 35, and a narrower meaning that distinguishes Indian bands from other Aboriginal peoples. As will be noted later in these reasons, this Court in Reference as to whether “Indians” in s. 91(24) of the B.N.A. Act includes Eskimo inhabitants of the Province of Quebec, [1939] S.C.R. 104 (“Re Eskimo”), held that s. 91(24) includes the Inuit. Since the federal government concedes that s. 91(24) includes non-status Indians, it would be constitutionally anomalous, as the Crown also conceded, for the Métis to be the only Aboriginal people to be recognized and included in s. 35 yet excluded from the constitutional scope of s. 91(24).


[36] The Report of the Royal Commission on Aboriginal Peoples, released in 1996, stressed the importance of rebuilding the Crown’s relationship with Aboriginal peoples in Canada, including the Métis: see vol. 3, Gathering Strength. The Report called on the federal government to “recognize that Métis people . . . are included in the federal responsibilities set out in section 91(24) of the Constitution Act, 1867”: vol. 2, Restructuring the Relationship, at p. 61. The importance of this reconstruction was also recognized in the final report of the Truth and Reconciliation Commission of Canada: Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (2015), at p. 183; see also Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388, at para. 1, and Lax Kw’alaams Indian Band v. Canada (Attorney General), [2011] 3 S.C.R. 535, at para. 12.


[37] The constitutional changes, the apologies for historic wrongs, a growing appreciation that Aboriginal and non-Aboriginal people are partners in Confederation, the Report of the Royal Commission on Aboriginal Peoples, and the Final Report of the Truth and Reconciliation Commission of Canada, all indicate that reconciliation with all of Canada’s Aboriginal peoples is Parliament’s goal.


[38] The jurisprudence also supports the conclusion that Métis are “Indians” under s. 91(24). There is no case directly on point, but by identifying which groups have already been recognized as “Indians” under this head of power and by establishing principles governing who can be considered “Indians”, the existing cases provide guidance.


[39] In Re Eskimo, this Court had to determine whether the Inuit were “Indians” under s. 91(24) of the Constitution Act, 1867. Relying on historical evidence to determine the meaning of “Indians” in 1867, the Court drew heavily from the 1858 Report from the Select Committee on the Hudson’s Bay Company. Acting on behalf of the federal government, the Hudson’s Bay Company had conducted a survey of Rupert’s Land and the North-Western territories in which the Inuit were classified as Indians. The Court found that while the Inuit had their own language, culture, and identities separate from that of the “Indian tribes” in other parts of the country, they were “Indians” under s. 91(24) on the basis of this survey. It follows from this case that a unique culture and history, and self-identification as a distinct group, are not bars to being included as “Indians” under s. 91(24).


[40] In Attorney General of Canada v. Canard, [1976] 1 S.C.R. 170, this Court traced the outer limits of the “Indian” power under s. 91(24). An Indian couple lived on a reserve most of the year except for a few weeks each summer during which they lived off the reserve and the husband worked on a farm. The husband died during one of the weeks he was away from the reserve. This resulted in the superintendent in charge of the Indian district (which included their reserve) being appointed as administrator of his estate, pursuant to s. 43 of the Indian Act.[8] His wife challenged s. 43 on the grounds that it violated the Canadian Bill of Rights, S.C. 1960, c. 44. While the Court held that s. 43 of the Indian Act did not violate the Bill of Rights, Beetz J. concluded that in determining who are “Indians” under s. 91(24), “it would not appear unreasonable to count marriage and filiation and, unavoidably, intermarriages”: p. 207.


[41] These two cases left jurisprudential imprints that assist in deciding whether Métis are part of what is included in s. 91(24). As stated above, Canard shows that intermarriage and mixed-ancestry do not preclude groups from inclusion under s. 91(24). And Re Eskimo establishes that the fact that a group is a distinct people with a unique identity and history whose members self-identify as separate from Indians, is not a bar to inclusion within s. 91(24).


[42] There is no doubt that the Métis are a distinct people. Their distinctiveness was recognized in two recent cases from this Court — Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, [2011] 2 S.C.R. 670 and Manitoba Metis Federation. The issue in Cunningham was whether Alberta’s Metis Settlements Act, R.S.A. 2000, c. M-14, violated s. 15 of the Canadian Charter of Rights and Freedoms by terminating the membership of Métis who voluntarily registered as Indians under the Indian Act. The Court concluded that the Metis Settlements Act was justified as an ameliorative program. In commenting on the unique history of the Métis, the Court noted that they are “widely recognized as a culturally distinct Aboriginal people living in culturally distinct communities”: para. 7.


[43] And in Manitoba Metis Federation, this Court granted declaratory relief to the descendants of Manitoba’s Red River Métis Settlement. The federal Manitoba Act, 1870, S.C. 1870, c. 3, promised land to the children of the Métis. Errors and delays resulted in many of them receiving inadequate scrip rather than land. The Court held that Canada had a fiduciary relationship with the Métis, and that the Crown’s promise to implement the land grant engaged the honour of the Crown. This created a duty of diligent implementation. In so deciding, the Court stated that the Métis of the Red River Settlement are a “distinct community”: para. 91.


[44] The Crown, however, submits that including Métis as “Indians” under s. 91(24) is contrary to this Court’s decision in R. v. Blais, [2003] 2 S.C.R. 236. With respect, I think Blais can be easily distinguished. The issue in Blais was whether a provision of Manitoba’s Natural Resources Transfer Agreement, which allowed “Indians” to hunt out of season, included Métis. It is true that the Court concluded that “Indians” in the Natural Resources Transfer Agreement did not include Métis, but what was at issue was a constitutional agreement, not the Constitution. This, as this Court noted in Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698, is a completely different interpretive exercise:


. . . it is submitted that the intention of the framers should be determinative in interpreting the scope of the heads of power enumerated in ss. 91 and 92 given the decision in R. v. Blais, [2003] 2 S.C.R. 236, 2003 SCC 44. That case considered the interpretive question in relation to a particular constitutional agreement, as opposed to a head of power which must continually adapt to cover new realities. It is therefore distinguishable and does not apply here. [para. 30]


[45] While there was some overlapping evidence between Blais and this case, the interpretation of a different record in Blais directed at different issues cannot trump the extensive and significantly broader expert testimony and the findings of Phelan J. Of most significance, however, is the fact that this Court itself expressly stated in Blais that it was not deciding whether s. 91(24) included the Métis. Far from seeing Blais as dispositive of the constitutional scope of s. 91(24), the Court emphasized that it left “open for another day the question of whether the term ‘Indians’ in s. 91(24) of the Constitution Act, 1867 includes the Métis — an issue not before us in this appeal”: para. 36.


[46] A broad understanding of “Indians” under s. 91(24) as meaning ‘Aboriginal peoples’, resolves the definitional concerns raised by the parties in this case. Since s. 91(24) includes all Aboriginal peoples, including Métis and non-status Indians, there is no need to delineate which mixed-ancestry communities are Métis and which are non-status Indians. They are all “Indians” under s. 91(24) by virtue of the fact that they are all Aboriginal peoples.


[47] Determining whether particular individuals or communities are non-status Indians or Métis and therefore “Indians” under s. 91(24), is a fact-driven question to be decided on a case-by-case basis in the future, but it brings us to whether, for purposes of s. 91(24), Métis should be restricted to the definitional criteria set out in Powley in accordance with the decision of the Federal Court of Appeal, or whether, as the appellants and some of the interveners urged, the membership base should be broader.


[48] The issue in Powley was who is Métis under s. 35 of the Constitution Act, 1982. The case involved two Métis hunters who were charged with violating the Game and Fish Act, R.S.O. 1990, c. G.1. They claimed that the Métis had an Aboriginal right to hunt for food under s. 35(1). The Court agreed and suggested three criteria for defining who qualifies as Métis for purposes of s. 35(1):


1. Self-identification as Métis;


2. An ancestral connection to an historic Métis community; and


3. Acceptance by the modern Métis community.





[49] The third criterion — community acceptance — raises particular concerns in the context of this case. The criteria in Powley were developed specifically for purposes of applying s. 35, which is about protecting historic community-held rights: para. 13. That is why acceptance by the community was found to be, for purposes of who is included as Métis under s. 35, a prerequisite to holding those rights. Section 91(24) serves a very different constitutional purpose. It is about the federal government’s relationship with Canada’s Aboriginal peoples. This includes people who may no longer be accepted by their communities because they were separated from them as a result, for example, of government policies such as Indian Residential Schools. There is no principled reason for presumptively and arbitrarily excluding them from Parliament’s protective authority on the basis of a “community acceptance” test.


[50] The first declaration should, accordingly, be granted as requested. Non-status Indians and Métis are “Indians” under s. 91(24) and it is the federal government to whom they can turn.


[51] But federal jurisdiction over Métis and non-status Indians does not mean that all provincial legislation pertaining to Métis and non-status Indians is inherently ultra vires. This Court has recognized that courts “should favour, where possible, the ordinary operation of statutes enacted by both levels of government”: Canadian Western Bank v. Alberta, [2007] 2 S.C.R. 3, at para. 37 (emphasis in original). Moreover, this Court has been clear that federal authority under s. 91(24) does not bar valid provincial schemes that do not impair the core of the “Indian” power: NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union, [2010] 2 S.C.R. 696, at para. 3.


[52] I agree, however, with both the trial judge and the Federal Court of Appeal that neither the second nor third declaration should be granted.


[53] The second declaration sought is to recognize that the Crown owes a fiduciary duty to Métis and non-status Indians. Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 accepted that Canada’s Aboriginal peoples have a fiduciary relationship with the Crown and Manitoba Metis Federation accepted that such a relationship exists between the Crown and Métis. As a result, the declaration lacks practical utility because it is restating settled law.


[54] The third declaration sought is that Métis and non-status Indians have the right to be consulted and negotiated with, in good faith, by the federal government on a collective basis through representatives of their choice, respecting all their rights, interests and needs as Aboriginal peoples.


[55] The claim is that the First Ministers’ conferences anticipated by ss. 37 and 37.1 of the Constitution Act, 1982[9] did not yield the hoped-for results in identifying and defining Aboriginal rights. The subsequent lack of progress implies that the federal government has not fulfilled its constitutional obligations.


[56] However, Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, Tsilhqot’in Nation v. British Columbia, [2014] 2 S.C.R. 257, and Powley already recognize a context-specific duty to negotiate when Aboriginal rights are engaged. Because it would be a restatement of the existing law, the third declaration too lacks practical utility.


[57] For the foregoing reasons, while I agree with the Federal Court of Appeal and the trial judge that the second and third declarations should not be granted, I would restore the trial judge’s decision that the word “Indians” in s. 91(24) includes Métis and non-status Indians.


[58] The appeal is therefore allowed in part and the Federal Court of Appeal’s conclusion that the first declaration should exclude non-status Indians or apply only to those Métis who meet the Powley criteria, is set aside. It follows that the cross-appeal is dismissed. The appellants are entitled to their costs.








Appeal allowed in part and cross‑appeal dismissed, with costs.


Solicitors for the appellants/respondents on cross‑appeal: University of Ottawa, Ottawa; Paliare Roland Rosenberg Rothstein, Toronto.


Solicitor for the respondents/appellants on cross‑appeal: Attorney General of Canada, Saskatoon, Ottawa and Edmonton.


Solicitor for the intervener the Attorney General for Saskatchewan: Attorney General for Saskatchewan, Regina.


Solicitor for the intervener the Attorney General of Alberta: Attorney General of Alberta, Edmonton.


Solicitors for the interveners the Native Council of Nova Scotia, the New Brunswick Aboriginal Peoples Council and the Native Council of Prince Edward Island: Burchells, Halifax.


Solicitors for the intervener the Metis Settlements General Council: Witten, Edmonton.


Solicitors for the intervener the Te’mexw Treaty Association: JFK Law Corporation, Vancouver.


Solicitors for the intervener the Métis Federation of Canada: Devlin Gailus Westaway, Victoria.


Solicitors for the intervener the Aseniwuche Winewak Nation of Canada: JFK Law Corporation, Vancouver and Victoria.


Solicitors for the intervener the Chiefs of Ontario: Nahwegahbow, Corbiere Genoodmagejig, Rama, Ontario.


Solicitors for the intervener the Gift Lake Métis Settlement: Gowling WLG (Canada) Inc., Ottawa.


Solicitors for the intervener the Native Alliance of Quebec: Gagné Letarte, Québec.


Solicitors for the intervener the Assembly of First Nations: Gowling WLG (Canada) Inc., Ottawa.


Solicitor for the intervener the Métis National Council: Métis National Council, Ottawa.


[1] [2013] 2 F.C.R. 268.
[2] When Newfoundland and Labrador joined Confederation in 1949, for example, they brought with them many Aboriginal peoples who were obviously not — and had never been — registered under the federal Indian Act and were therefore non-status Indians. The federal government nonetheless assumed jurisdiction over them and many were incorporated into the Indian Act in 1984 and 2008.
[3] The Inconvenient Indian: A Curious Account of Native People in North America (2013), winner of the 2014 RBC Taylor Prize.
[4] The Indian Act, 1876, S.C. 1876, c. 18.
[5] An Act further to amend The Indian Act, S.C. 1894, c. 32.
[6] An Act to amend the Indian Act, S.C. 1958, c. 19.
[7] 35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.
[8] R.S.C. 1970, c. I-6.
[9] 37. (1) A constitutional conference composed of the Prime Minister of Canada and the first ministers of the provinces shall be convened by the Prime Minister of Canada within one year after this Part comes into force.

(2)  The conference convened under subsection (1) shall have included in its agenda an item respecting constitutional matters that directly affect the aboriginal peoples of Canada, including the identification and definition of the rights of those peoples to be included in the Constitution of Canada, and the Prime Minister of Canada shall invite representatives of those peoples to participate in the discussions on that item.

(3)  The Prime Minister of Canada shall invite elected representatives of the governments of the Yukon Territory and the Northwest Territories to participate in the discussions on any item on the agenda of the conference convened under subsection (1) that, in the opinion of the Prime Minister, directly affects the Yukon Territory and the Northwest Territories.

37.1 (1) In addition to the conference convened in March 1983, at least two constitutional conferences composed of the Prime Minister of Canada and the first ministers of the provinces shall be convened by the Prime Minister of Canada, the first within three years after April 17, 1982 and the second within five years after that date.

(2)  Each conference convened under subsection (1) shall have included in its agenda constitutional matters that directly affect the aboriginal peoples of Canada, and the Prime Minister of Canada shall invite representatives of those peoples to participate in the discussions on those matters.

(3)  The Prime Minister of Canada shall invite elected representatives of the governments of the Yukon Territory and the Northwest Territories to participate in the discussions on any item on the agenda of a conference convened under subsection (1) that, in the opinion of the Prime Minister, directly affects the Yukon Territory and the Northwest Territories.

(4)  Nothing in this section shall be construed so as to derogate from subsection 35(1).