The Shaky Foundations of the Supreme Court of Canada’s Public/Private Divide: Chartier v Métis Nation – Saskatchewan, 2021 SKQB 142

In a series of recent decisions, the Supreme Court of Canada has erected a divide between public and private law. First, judicial review of private organizations was restricted in Wall (see here), a restriction subsequently extended to judicial enforcement of private organizations’ constitutive documents in Aga (see here). Second, the appropriateness of judicial review of contractual arrangements was strongly doubted in J.W. (see here). Third, the Court explained in Wastech that judicial review concepts, such as reasonableness, do not apply in the area of contract law (see here).

I have been critical of every step in the construction of the divide, as the posts above indicate. A recent decision from Saskatchewan demonstrates the divide’s shaky normative foundations: Chartier v Métis Nation – Saskatchewan, 2021 SKQB 142. Here, the Legislative Assembly of the Métis Nation – Saskatchewan amended internal legislation in relation to elections and membership requirements.

The Nation is not a statutory body, but rather evolved organically over time to reflect the desire of the Métis to be recognized as “a self‑determining people with the inherent right to establish our own government and laws” (at para. 19, quoting from the affidavit of the Vice-President of the Nation). The Nation sees itself as an autonomous government (at para. 44). It has its own Constitution (at para. 19) and internal legislation, such as the Métis Nation – Saskatchewan Citizenship Act, 1999 and the Saskatchewan Métis Elections Act, 2007 (at para. 20).

The substantive point of contention here was a set of amendments to the internal citizenship and elections legislation. In particular, the amendments meant created a Registry, run by a Registrar: citizenship in the Nation and, thereby, eligibility to participate in elections, would be determined by reference to whether an individual was duly registered or had applied to be registered. This was a change from past practice (at para. 67) which, the applicants alleged, was inconsistent with the Nation’s Constitution.

Elson J held that the Nation is not subject to judicial review. Even though the Nation had been mentioned in Saskatchewan legislation and entered into a self-government agreement with Canada (at paras. 22-23), Wall represented an insurmountable obstacle to reviewing the compatibility of the amendments with the Nation’s Constitution. Without deciding whether or not the Nation is an autonomous government, it was clear for Elson J that it was not a “state” actor. Therefore, its actions are not reviewable:

For present purposes, and whether an autonomous government or not, the MNS is undeniably a voluntary organization. No one in Saskatchewan is compelled to be a Métis citizen. Without explicit recognition in law and statutorily delegated authority, I am satisfied that the MNS cannot, for the purposes of judicial review, serve as anything other than a voluntary organization.

While I do not wholly reject the autonomous government submission, I do not accept the applicants’ argument that, if the MNS is such a government, it must be subject to judicial review. By this argument, the applicants are implicitly seeking to resurrect the “public impact of a private entity” argument – now soundly rejected in [Wall]. Although there is little doubt that the Amendments passed by the MNLA will have a public impact, that is insufficient, by itself, to justify judicial supervision.

Further, I do not find that the Self‑Government Agreement supports the suggestion that judicial review should apply to the MNS decisions under review. The federal government’s recognition of inherent self‑determination does not transform the MNS into a state decision‑maker or a state‑delegated tribunal that attracts the supervisory jurisdiction of a s. 96 court. Moreover, Chapter 7 of the Self‑Government Agreement appears to concede this reality by acknowledging the need to create something it does not yet have – legal status (at paras. 47-49).

Had the applicants initiated an action rather than applied for judicial review, the conclusion would undoubtedly have been the same: no judicial oversight would be appropriate, based on the Supreme Court’s analysis in Aga (which Elson J did not reference, as it had not been argued before him). On the merits, Elson J saw no grounds to interfere on the basis of unreasonableness or breach of procedural fairness, but it is the amenability analysis which is of general interest and concern.

To me, this case aptly demonstrates the shaky normative foundations of the Supreme Court of Canada’s public/private divide. The Nation exercises significant de facto authority over people in Saskatchewan, in respect of matters going to the core of their identity. It has a Constitution, a written document setting out its governance structure and making general provision for membership in the Nation. Ordinarily, the interpretation of written documents forms part of the core function of the superior courts, as does upholding the precepts of procedural fairness. Here, the nexus of de facto authority and a written constitution sits uneasily with judicial refusal to exercise any sort of oversight function.

There might be other reasons to decline to oversee the affairs of the Nation: if Indigenous self-determination under s. 35 of the Constitution Act, 1982 were recognized, it might lead to the conclusion that the superior courts have no business interfering with autonomous Indigenous governments. Whatever about a s. 35 argument, however, the normative foundations of judicial abstentionism in cases like this one are shaky.

Moreover, Wall, Aga and associated cases sit uneasily with the full-blooded endorsement of superior court jurisdiction in Reference re Code of Civil Procedure (Que.), art. 35, 2021 SCC 27. There, the majority observed of s. 96 courts:

Only the superior courts have inherent powers that flow from their very nature, and the particular purpose of those powers is to enable the superior courts to ensure the maintenance of the rule of law in our legal system … [T]hese fundamental powers are constitutionally protected and therefore cannot be removed from them or unduly fettered. For example, the superior courts have the power to control their own process and enforce their orders. They also have the power to review exercises of public power for legality and to ensure that citizens are protected from arbitrary government action … Finally, the superior courts have residual jurisdiction as courts of original general jurisdiction, meaning they may — without statutory authorization — hear any matter that has not been assigned to a statutory court…[T]his provides superior courts with a comprehensive view of the law, allowing them to preserve the coherence of the judicial system and set its overall directions…(at para. 51)

Leaving the Indigenous self-determination point to one aside again, the decisions erecting a public/private divide are difficult to reconcile with the role of the superior courts in maintaining the rule of law, preventing citizens from arbitrary government action and the residual jurisdiction of s. 96 courts. When matters as important as those at issue in Chartier are walled off from judicial oversight, can the superior courts really develop a “comprehensive view of the law” and “preserve the coherence of the judicial system”?

Given its shaky normative foundations and the doctrinal tension created with the constitutional role of s. 96 courts, the long-term solidity of the Supreme Court of Canada’s public/private divide must be doubtful.

This content has been updated on September 8, 2021 at 14:58.

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