Bellegarde v Carry the Kettle First Nation, 2024 FC 699 (May 7, 2024)
Category: Indigenous law and judicial review.
Context: This is a judicial review of a decision of the Carry the Kettle First Nation [CTKFN]. The applicants were elected as councillors of CTKFN. Later, they were removed for misconduct following a vote of two other elected councillors of the First Nation, as well as the elected Chief.
Issues: (1) Does the Federal Court have jurisdiction to hear the application for judicial review related to decisions of CTKFN? (2) Did the removal process breach the applicants’ procedural fairness rights? (3) Did the removal breach the CTKFN customary Election Act/was it otherwise substantively unreasonable?
Holding: The Federal Court has jurisdiction to hear and decide the application for judicial review, notwithstanding purported developments in the law related to the United Declaration on the Rights of Indigenous Peoples Act [UNDRIPA]; the removals were contrary to the CTKFN customary Election Act; in light of the previous conclusion, the Court (per Régimbald J) found it unnecessary to address the procedural fairness issues, though offers some comments on applying the rules of procedural fairness in the First Nations context [139].
Analysis: First, this case presents an interesting discussion of the Federal Court’s judicial review jurisdiction over First Nations councils. It is well accepted that the Federal Court has jurisdiction to review decisions of a First Nations Council “where the issue is over a matter that is ‘public’ in nature, and where a source of the jurisdiction or power originates from an Act of Parliament such as the Indian Act” [29]. However, the respondents tried to get around this conclusion. First, they argued that the Federal Court lacked jurisdiction because the election code, a customary code, was not found in an Act of Parliament [31]. But this was somewhat beside the point. Here, CTKFN “followed the process established by the federal government to ‘revert to custom’…” by enacting its own election rules, ratified through a referendum [42]. In this way, there was a sufficient statutory authority that nourished the CTKFN Council’s decisions: “…Chief and council, even if chosen under a “custom,” are elected following a process that is ‘incorporated by reference under the definition of ‘council of the band’ pursuant to…the [Indian Act]” [91].
Interestingly, the respondents also argued that the Court “cannot have jurisdiction because the oversight of Canadian courts over the decision-making of First Nations is contrary to CTFKN’s inherent right to self-determination and therefore in breach of section 35 of the Constitution Act, 1982, but also of the UNDRIPA.” The gist of this argument was bold: “The Respondents’ argument relying on section 35 of the Constitution Act, 1982 and the UNDRIPA essentially means that CTKFN’s right to self-government renders the First Nation immune from judicial review by any court in Canada” [75].
Régimbald J is right to reject this argument wholesale. The Respondents led no evidence that this any custom existed that precluded review, especially in absence of an alternative tribal court to deal with the dispute, which “could represent an adequate alternate remedy or forum to the Court’s initial jurisdiction” [77]. Additionally, and importantly, the force of UNDRIPA was not as broad as the respondents suggested. It is true that the UNDRIPA purports to implement UNDRIP, which affirms an inherent right to self-government at the international level. But even that instrument contemplates legal restrictions on Indigenous self-government, such that the exercise of self-government must be consistent with basic international standards. Those standards include the recognition that “State courts have a role to play…” [79]. As a result, Régimbald J is right to say that UNDRIPA does not upturn the Canadian constitutional framework [80]. Nor could it.
On substantive issues, Régimbald J reiterates that even when it comes to interpretation of customary election codes, the normal rules of interpretation apply [99]. This means that, while wide deference is owed to Indigenous decision-makers, “a First Nation can only proceed pursuant to a specific provision existing in its electoral code or under an established ‘custom’…” [98]. This is some sound common sense. The reasons that courts defer to Indigenous decision-makers are well-known: they have a better understanding than a court about the content of their laws; and there are constitutionally significant reasons that courts should stay their hands when reviewing decisions made by Indigenous councils. At the same time, as Régimbald J explains, the rule of law does not disappear—and as the Supreme Court has stated, there is only one approach to interpretation of law. That is the approach we apply to all other instances of law-making.
On that approach, Régimbald J concludes that, under the Election Act, Council did not have the appropriate quorum nor the qualified majority to ground removal. There was an acknowledged problem with the Election Act: it was ambiguous about the actual requirements for quorum, it was clear in this case that quorum was not met [111].
Régimbald J also offers some thoughts on procedural fairness, though in this case, fairness arguments were not properly raised before the decision-maker [149]. Much like in substantive review, there are good reasons that courts afford deference to choice of procedure in Indigenous contexts [140]. But this is not carte blanche. Still, those subject to decisions made by Indigenous bodies are entitled to rely on the principles of procedural fairness. They must know the case to meet, including any allegations made against them, and in certain contexts, the high stakes of removal from office might imply an equally stringent duty of fairness [118].
This decision represents a considered attempt to wade through difficult issues at the intersection of Indigenous custom and the law of judicial review. These issues are becoming increasingly common, and with the advent of UNDRIPA, I expect them to be more common. My only comment at this stage is this: absolutist arguments are unlikely to be successful or productive. Rather, there are good reasons for deference to Indigenous bodies, but the right to seek judicial review—and to have state action of all sorts subject to an impartial reviewer—is a general principle of law that applies to Indigenous and non-Indigenous peoples alike. Arbitrariness can arise in different ways. Absent a comparable appeal body to act as an adequate remedy, UNDRIPA—or any other source of law—should not serve to deny the applicants the ability to seek redress.
Gill v Health Professions Appeal and Review Board, 2024 ONSC 2588 (May 7, 2024)
Category: Doré review.
Context: This case involves two applications for judicial review over various decisions of the HPARB and an investigative decision of the Registrar (Inquiries, Complaints and Reports Committee). Gill is a doctor who expressed opinions on social media about COVID-19, which led to several complaints about her conduct. She argued that the various decisions failed to proportionately balance her Charter protected expression rights with the College’s statutory objectives.
Issues: There are several issues in this case, but I draw specific attention to the Court’s brief discussion of the Doré standard as applied to the facts of this case.
Holding: The College’s decision represents a proportionate balance.
Analysis: The Divisional Court seems to be developing a particular approach to the issues raised in professional college cases, especially when it comes to “off-duty” speech and conduct (though the line between on and off duty is fuzzy, at best): see Peterson v College of Psychologists of Ontario, 2023 ONSC 4685 (Issue #103). First, the Court is emphasizing that, even on constitutional matters, administrative reasoning can be quite scant, depending on the decision-making context and the stakes to the individual [59-60, see also Peterson, at para 74]. Second, the Court is emphasizing that certain “penalties” imposed by colleges—cautions, training, etc—are not truly punitive, and therefore do not impose a higher burden of reasoning on administrators.
As I wrote in Issue 103, there is no doubt that the history, context, and nature of the decision-making at issue conditions the way that reasons must be crafted. But—for all of its incredible warts—the Supreme Court’s recent decision in CSFTNO, 2023 SCC 31 suggests that Charter values will be a heavy weight in administrative reasoning that courts can freely re-weigh on judicial review. The balance here is tough, but it is my view that we should explicit and careful consideration from decision-makers—even screening committees—about the implications of constitutional rights.
Here, the Court seems to see things differently, as it did in Peterson:
[61] In this case, the impact of the impugned decisions on Dr. Gill was the imposition of a caution by the ICRC. The ICRC is a screening committee. It does not make findings of professional misconduct. Rather, it investigates complaints and determines if they merit a referral to discipline or can be dealt with in a less intrusive manner, such as a caution. Cautions are educational and remedial in nature and do not reflect a finding of professional misconduct.
It appears that the combination of a caution, the fact that the screening committee played a key role, and that the decisions appeared to at least mention the freedom of speech was enough for the Court to find the decision reasonable. The College drew the line at public statements made by Gill that it considered contained “misinformation” [81]. But, as I mentioned in Peterson, I think there is a risk that these become outs for certain decision-makers to render decisions that, in a boilerplate way, “deal” with constitutional arguments without really giving them the necessary weight. In other words, there is a risk that a decision-maker could write “I am alive to the Charter values at play, and find them to be minimally intruded upon by my decision,” and that this could satisfy the judicial review standard in professional college cases. In non-professional college cases, we should expect more. In professional college cases, we need to balance the need for public safety and confidence with the fact that doctors and other professionals have rights that they can exercise, even off-duty, that should not be traded away easily.
Disclaimer: Nothing in the SEAR is legal advice. The SEAR is not designed to be comprehensive. It is designed to collect some cases that I believe are interesting to practitioners and students, and to provide my quick thoughts. Not all of the cases presented are fully analyzed ie) I’ve selected the most relevant issues in some of the cases. Please complement the SEAR with your own research and study. Any mistakes are my own