Law in Quebec

Quebec youth protection authorities recognized in practice that First Nations’ children living in an aboriginal community fell under the jurisdiction of the community itself, explained Stéphanie Émond, a Chicoutimi lawyer with Justitia Cabinet d’avocats, who represented the mother. But Quebec youth protection maintained that children who lived outside the First Nations’ community should fall under the ambit of the province’s Youth Protection Act, even if the children were members of the community or their parents were members of the community. The decision will now put an end to that practice, said Émond.

“The most important finding of the decision is that First Nations that have enacted youth protection legislation now have jurisdiction over children who do not live in the community, and that is big breakthrough,” added Émond.

Montreal aboriginal and constitutional lawyer Franklin Gertler, who described the legal challenge as “part of a long term battle to get one’s kids back,” noted that following the Court of the Quebec decision “a lot of what the game is now is to show that this exercise of jurisdiction is a feasible thing, and that it’s going to be done and is being done responsibly and with organized systems.”

But the decision by Judge Doris Thibault of the Youth Division of the Court of Québec hinges on an upcoming case before the Supreme Court of Canada that will be heard in early December following a constitutional challenge by the Quebec government over Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families. Bill C-92, described by the Quebec Court of Appeal this past February in a reference case as a “recent milestone in a process set in motion nearly two centuries ago,” establishes national standards and a framework to ensure Aboriginal children across the country are provided with a minimal level of services. The comprehensive Act, inspired by the United Nations Declaration on the Rights of Indigenous Peoples, also recognizes the inherent right of Aboriginal self-government, including legislative authority in relation to child and family services.

In a landmark decision, the Quebec Appeal Court held that Indigenous people possess an existing right of self-government that is protected by section 35 of the Constitution Act, 1982, marking the first time a self-government right has been clearly recognized by the courts as a right of all Indigenous peoples in Canada, according to experts. The Appeal Court decision also affirms that there are two types of Aboriginal rights, specific and general rights. Generic rights are rights held by all s. 35 Indigenous peoples, regardless of their specific practices on a given issue, by virtue of the fact that they are “peoples” in and of their own.

A year after the federal Bill C-92 came into effect, the Atikamekw community of Opitciwan enacted its own youth protection legislation, Atikamekw of Opitciwan Social Protection Act (Act), that came into force this past January. The Act, the first in Quebec and the fourth in Canada, allows the Opticiwan community to control jurisdiction over youth welfare. So far, nine notices of intent representing 15 First Nations communities have been sent to the federal and provincial governments to exercise legislative jurisdiction over child and family services, according to the Assembly of First Nations Quebec-Labrador (AFNQL). Moreover there are four requests for 22 First Nations communities to reach coordination agreements in order to exercise their authority in this jurisdiction.

The case before the Court of Quebec surfaced after the mother of an Atikamekw child from Opitciwan living outside the community argued that the child should not be under the jurisdiction of Quebec youth protection. The mother argued that the Youth Division of the Court of Québec does not have jurisdiction over the child because of C-92, which the Quebec Appeal Court deemed to be constitutional and which recognized the right to autonomy of Indigenous peoples in matters of child and family services – a position embraced by a host of First Nations’ organizations that acted as interveners, including the Conseil des Atikamekw d’Opitciwan, the AFNQL and the First Nations of Quebec and Labrador Health and Social Services Commission (FNQLHSSC). The mother and the interveners also argued that the Aboriginal community has the right to self government under s. 35 of the Constitution Act, 1982 and that right can only be infringed if the province can justify the infringement.

The Attorney General of Quebec countered that the Court of Quebec does not have to rule on a constitutional issue as it does not have to determine which of the two laws should take precedence. Both pieces of legislation, it added, apply concurrently.

Judge Thibault dismissed Quebec’s stance, and concluded that the mother’s and intervener’s position that the Court of Quebec does not have jurisdiction is well-founded. In reasons informed by the Quebec Appeal Court decision in the reference case, Judge Thibault also held that while a debate about a constitutional right in the context of a young child’s protection case may have significant consequences for the impact of the passage of time on the child’s relationship with his or her caregiver, the debate remains in the interests of the child concerned as well as in the interests of other children in the same situation.

Judge Thibault also brushed off Quebec’s contention that it is up to the Court of Quebec to decide whether the Indigenous child should receive services under the Act or the Quebec Youth Protection Act. “This exercise obscures the purpose of Bill C-92, which is to allow Aboriginal people to decide on the nature of the services to be provided to children in their community,” said Judge Thibault in Protection de la jeunesse — 225102, 2022 QCCQ 6353. “Leaving it up to the province to decide which regime best meets the interests of the child is certainly not the legislator’s intention.”

Gertler, who represented both the AFNQL and FNQLHSSC, said that Judge Thibault “basically says that the provincial law infringes the right to self government expressed by the Atikamekw law, and that once you got an infringement like that, then it’s up to the province under Sparrow test to justify the infringement.”

The Quebec Appeal Court held in the reference case that conflicts that may arise between Indigenous and other laws must be dealt with under the Sparrow test, which outlines the conditions under which the government can regulate an Aboriginal right. Judge Thibault held that the Act and the Quebec Youth Protection Act at first glance have similar objectives and means to achieve their objectives. As a result, there is a conflict of application and she held that the “dual compliance of the two laws is incompatible.”

Both laws define the interests of the child differently which could in the “name of the child’s interests” lead to two different decisions and different measures applied, added Judge Thibault. Quebec, while acknowledging that Bill C-92 unjustifiably interferes with the aboriginal right, offered no evidence to decide the issue of justification. In the absence of justification by Quebec, Judge Thibault recognized the primacy of the Act over the child.

Judge Thibault also pointed out that s. 20(1) of Bill C-92 provides that an Aboriginal governing body that intends to exercise legislative jurisdiction over child and family services may give notice to the Minister of its intention or, pursuant to section 20(2), may enter into a coordination agreement respecting the exercise of that jurisdiction with the government of the province. The “uncontradicted” evidence revealed “reasonable efforts to enter into a coordination agreement with Quebec” were not successful.

Quebec’s position to contest the constitutionality of Bill C-92 placed Aboriginal communities in a difficult situation when trying to negotiate coordination agreements, “particularly since Quebec does not recognize the legitimacy of Bill C-92,” said Boily.

But Boily, like others, expect far more legal developments to take place. “This is an field of law that is very dynamic, in which there are many new developments, beginning with the Quebec Court of Appeal decision issued earlier this year and now with this decision which represents a big step in the wake of Bill C-92.”