Each Monday I will provide a potpourri of Quebec legal developments. Here’s the first issue. It begins with the Supreme Court refusing to hear an appeal from the Mohawk Mothers, Hydro-Québec ordered to pay $5 million to a First Nation, a $2 million for contaminating water, a class action settlement dealing with psychiatric patients, and a class action that was certified against a Montreal billionaire.
Aboriginal law
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Quebec Appeal Court sets precedent over First Nations police underfunding
In an “important precedent,” the Quebec Court of Appeal held that Ottawa and Quebec breached their duty to act honourably after it refused to adequately finance the police department of a First Nation to ensure that its services were equal in quality to those offered to non-Indigenous communities, according to aboriginal law experts.
The ruling, deemed by pundits as a “pretty striking way of reading” Canada’s agreements with First Nations on programs and services, ordered both the federal and the Quebec government to pay the Pekuakamiulnuatsh Takuhikan First Nation, located in Quebec’s Saguenay-Lac-St-Jean region, $1.6 million to cover years of underfunding of its police force. A year ago, the Canadian Human Rights Tribunal concluded in Dominique (on behalf of the members of the Pekuakamiulnuatsh First Nation) v. Public Safety Canada, 2022 CHRT 4 that the same First Nation were victims of discrimination due to inadequate police funding, a decision Canada is seeking judicial review.
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Quebec Court reaffirms authority of Aboriginal communities in youth protection
First Nations that have implemented youth protection legislation under the auspices of the federal Bill C-92 have jurisdiction over youth welfare regardless of place of residence held a provincial court judge in a decision viewed by legal experts as a precedent.
The long-awaited decision, widely regarded by legal pundits as an important stepping stone towards the right to self-government for First Nations, reaffirms the generic right to self-determination, confirms the authority of Aboriginal communities to withdraw children from the care of Quebec youth protection authorities, and highlights the importance of negotiating in good faith.
“This is the first judgment in such a matter, and we hope it will create a precedent,” said Frédéric Boily, a lawyer with Simard Boivin Lemieux in Dobeau-Mistassini in the Saguenay-Lac-Saint Jean region who represented the the Conseil des Atikamekw d’Opitciwan, an intervener in the case. “So another Aboriginal community that wanted to follow in our client’s footsteps would indeed have good moorings on which to build.”
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Pragmatic measures must be implemented to address problems plaguing Nunavik’s justice system: report
A series of wide-ranging concrete administrative and structural reforms, coupled with a new regional or municipal court, legal aid for all Inuit, and greater inclusion for traditional Inuit dispute resolution methods, should be implemented by the Quebec government and legal authorities to provide greater access to justice and tackle the alarming and increasing caseload in Nunavik, according to a recently published report.
“It is of primary importance to recognize that the system, as it currently exists, has failed in many respects,” said the report, which was mandated by the Quebec Ministry of Justice and the Makivik Corporation, the Inuit’s legal representative under the terms of the 1978 James Bay and Northern Quebec Agreement. “Reoffending rates have not declined, the Inuit have not been included, and bridges with traditional dispute resolution methods have not been used.”
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Canadian Constitution architecture dramatically altered following Quebec Appeal Court decision, according to experts
The architecture of the Canadian Constitution has been dramatically altered, with the emergence of a third level of government, after the Quebec Court of Appeal ruled that Indigenous people possess an existing right of self-government that is protected by section 35 of the Constitution Act, 1982, according to legal experts.
The “bold” decision, a reference case brought by the Attorney General of Québec after it challenged the constitutionality of the federal government’s Indigenous child welfare law, marks the first time a self-government right has been clearly recognized by the courts as a right of all Indigenous peoples in Canada, added aboriginal and constitutional legal experts.
“The Court recognized that Indigenous peoples in Canada have a right to self-government over child and family services recognized and affirmed by section 35 of the Constitution Act, 1982,” said Claire Truesdale, a Vancouver lawyer with JFK Law Corporation who practices Aboriginal, environmental and constitutional law. “This is remarkable.”
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Gladue may apply to homeless people rules Quebec Court of Appeal
In a decision welcomed by criminal lawyers, the Quebec Court of Appeal seems to have opened the door for the principle of proportionality of sentences to be applied to homeless offenders or members of a marginalized group who are non-Aboriginal.Tags: Gladue -
Quebec inquiry that examined treatment of Indigenous people calls for changes to justice system
It will take a healthy dose of political will, huge investments and nearly a generation for the Quebec government to implement the wide-ranging recommendations an inquiry that examined treatment of Indigenous people made to the province’s justice and correctional systems, according to legal experts.In the latest of a growing body of reports examining the plight of Indigenous people in Quebec, retired Quebec Superior Court Justice Jacques Viens concluded after an 18-month examination that “it seems impossible to deny” that members of the First Nations and Inuit are victims of systemic discrimination in accessing public services in Quebec.
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Ottawa given until Christmas to address sex-based discriminatory provisions in the Indian Act
The federal government dodged a potential crisis that would have halted Indian status registrations after the Quebec Court of Appeal begrudgingly gave Ottawa until Christmas to address sex-based discriminatory provisions in the Indian Act and complete a bill that has been held up by the Senate.In a ruling that marks the first time a Canadian appellate court has been called upon to decide whether or not to extend yet again the suspension of a judicial declaration of constitutional invalidity of a legislative provision, the Quebec appeal court scolded the federal government for the “unacceptable delays” and the absence of administrative measures that would have mitigated the discrimination.
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Supreme Court of Canada clarifies duty to consult
The Supreme Court of Canada shed new light on the Crown’s constitutional duty to consult with Aboriginal communities and clarified the role and obligation of decision-making bodies in two separate decisons that has the potential of providing greater predictability for natural resources companies seeking regulatory approval. -
Appeal court postpones ruling that would have suspended Indian status registrations
The Quebec Court of Appeal granted a safeguard order today that temporarily postpones a court ruling that would have suspended new Indian status registrations as of July 4th.
Quebec Court of Appeal Justice Nicholas Kasirer granted the Attorney General of Canada leave to appeal from a June 27th decision that refused to extend for a second time the suspension of its August 3, 2015 judgment that found that the principal registration provisions of the Indian Act were invalid because it breached s.15 of the Canadian Charter of Rights and Freedoms.
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New Indian status registrations in jeopardy
A suspension on new Indian status registrations could begin new week unless the Quebec Court of Appeal issues a safeguard order that would temporarily suspend a ruling that ordered the federal government to correct discriminatory provisions in the Indian Act that infringe the Charter of Rights and Freedoms.
Quebec Superior Court Justice Chantal Masse dismissed a motion earlier this week to extend Parliament’s deadline for eliminating sex discrimination from the registration provisions in the Indian Act. Ottawa had already received a couple of extensions.
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Federal and provincial governments need to demonstrate “stronger engagement” towards duty to consult, says UN panel
Federal and provincial governments “need” to demonstrate a “stronger engagement” towards conducting meaningful consultations with indigenous communities, according to a United Nations working group on business and human rights.The duty to consult takes on added weight given that extensive mining and oil and gas extraction in several indigenous territories is “accompanied” by significant adverse environment impacts that affect the right to health, added the UN panel.
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UN Working Group calls on Canada to do more to address human rights abroad
A United Nations working group on business and human rights is calling on federal and provincial governments as well as industry associations and companies to bolster their efforts to prevent and address “adverse human rights impacts” of business activities in Canada and abroad.The UN panel lauded the federal government for undertaking some initiatives to deal with business and human rights, particularly in the extractive sector, but underscored that it could do much more.
“We believe that there is greater room for both federal and provincial governments, industry associations and companies, to consider their activities both domestically and overseas through a human rights lens, using the UN Guiding Principles (on business and human rights) as a baseline to assess corporate respect for human rights,” said the panel in its statement.
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Quebec Ombudsman slams detention conditions in the North
Nearly three years after the president of the Quebec legal society warned the provincial government that prison conditions faced by Inuit inmates in northern Quebec were appalling and deplorable, the Quebec Ombudsman upbraided the government for turning a blind eye to the daily violation of basic human rights, unacceptable detention conditions, and systemic shortcomings in the administration of justice in Nunavik.
Remote Arctic jails Unsanitary and overcrowded holding cells, nauseating odours, soiled bedding, inaccessible showers, sanitation facilities that fail to provide detainees with privacy, and prisoners having to eat their meals on the floor are among some of the more disturbing findings made by the Quebec Ombudsman Raymonde Saint-Germain who likened Nunavik’s detention and justice system to the Third World. Just as troubling were her findings that detainees are kept in cells 24 hours a day because there are no outdoor courtyards, with some detainees having to wait as long as two weeks in preventative custody. The Criminal Code of Canada prescribes a maximum waiting time of three days.
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Federal government given 18 months to amend Indian Act
The federal government has been given 18 months to correct discriminatory provisions in the Indian Act that infringe the Charter of Rights and Freedoms after a Quebec judge held that generations of indigenous women have suffered discrimination based on gender.Despite several amendments to the Indian Act, the latest in 2010 in response to a ruling by the Court of Appeal for British Columbia, Quebec Superior Justice Chantal Masse found that it still discriminated against women and their descendants on the issue of registration or “Indian status.” The federal government has until January 2017 to amend the discriminatory provisions before they are declared invalid as an unjustifiable breach of the right to equality guaranteed by section 15 of the Charter.
