Appeals Watch: Clashing Constitutional Principles — SCC grants leave in Cindy Dickson v Vuntut Gwitchin First Nation
On April 24th, 2022, the Supreme Court of Canada (“SCC”) granted an application for leave in the case of Cindy Dickson v Vuntut Gwitchin First Nation, 2021 YKCA 5 [Vuntut Gwitchin First Nation]. The case decided at the Yukon Court of Appeal (“YCA”) in July 2021 is one of a few that has ever dealt with the appropriate scope and content of s. 25 of the Canadian Charter of Rights and Freedoms (“Charter”), which concerns the rights of Indigenous and Aboriginal peoples in Canada, as they are enshrined in s. 35 of the Constitution. The following is a summary of the case, starting with its factual matrix, then moving to its trial judgment, and ending with a description of its most recent treatment by the YCA. After summarizing the decision, this article will conclude by providing some remarks about its current (and potential) significance to Canadian constitutional jurisprudence as it heads to the SCC.
The Vuntut Gwitchin First Nations (“VGFN”) are located in the far north of the Yukon Territory. The VFGN, as per the VFGN Final Agreement and Self-Government Agreement (“FASGA“), operate based on a constitution with characteristics quite similar to those found in the Charter.
Within the VFGN constitution was a requirement that any member of the VFGN’s Council must reside on Settlement Land (‘Old Crow’) within fourteen days of being elected and remain there as a resident so long as they remain on the Council.
As a resident of Whitehorse (the capital of Yukon), the appellant was precluded from running for the VFGN Council based on this residency requirement.
The Appellant brought a Charter claim (specifically a s. 15  claim) before the Supreme Court of Yukon (“SCY”), where the Chambers Judge ruled against her application, finding that the residency requirement was not in violation of the Appellant’s s. 15 (1) right and, even if answered in the affirmative, was shielded by s. 25 of the Charter. Section 25 of the Charter is as follows:
25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including:
(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and
(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.
Issues on Appeal
The Appellant was then granted leave before the Yukon Court of Appeal. At issue was a) whether the residency requirement was a “law” within the meaning of s. 32 of the Charter, so as to subject it to Charter scrutiny; b) whether the residency requirement did in fact constitute an infringement on the appellant’s s. 15 (1) rights; c) whether, more generally, s. 25 should have effect before or after a determination has been made about whether another Charter right has been breached and justified; and d) whether the operation of s. 25 of the Charter should take primacy over the application of other rights contained therein (Vuntut Gwitchin First Nation, para 76).
In the decision she authored for the majority in July 2021 at the YCA, Madam Justice Newbury addressed each issue in the order they were pleaded. Before doing so, she clarified the question of if, and to what extent, deference should be given to the treaty underlying the dispute at bar. Justice Newbury noted that, where it concerns modern treaties, the Federal Court’s “highly deferential” approach in Pastion v Dene Tha’First Nation, 2018 FCC 648 (para 18–22) ought to be followed, but with certain guardrails. This means that, while modern treaties were the product of “meticulous negotiation” by “well-resourced parties,” as was laid out in Quebec (Attorney General) v Moses, 2010 SCC 17 (para 5), they remain “subject to such constitutional limitations such as the honour of the Crown,” as laid out in Beckmann v Little Salmon/Carmacks First Nation, 2010 SCC 53 (para 54).
Issue 1: Principles of Interpretation
On the first issue, Justice Newbury focused her attention on the language of s. 32 of the Charter, which is as follows:
32 (1) This Charter applies
(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
Justice Newbury, relying on Justice La Forest’s decision in Godbout v Longueil (City),  3 SCR 844, held that the categories enumerated in s. 32 (1) are not exhaustive, and, citing (among other cases) Taypotat v Taypotat, 2013 FCA 192, concluded that the VFGN is a sui generis entity acting as a government under federal legislation and, therefore, within the authority of Parliament (Vuntut Gwitchin First Nation, para 98). Thus, the work of the VFGN, including the constitution it drafted, was subject to s. 32 (1) scrutiny.
Issue 2: Rights to Equality before and under the Law
Turning to the second issue, Justice Newbury outlined the authoritative jurisprudence on s. 15 (1) of the Charter, specifically the Corbiere v Canada (Minister of Indian and Northern Affairs),  2 SCR 203 decision, finding that the Appellant’s factual matrix did meet the threshold for an infringement of their s. 15 (1) right to be “equal before and under the law” (Vuntut Gwitchin First Nation, para 117). Because the Chambers Judge did not address s. 1 due to their findings with respect to s. 25, no arguments at appeal were brought forward related to the Oakes analysis to justify a breach of s. 15 (1). On that basis alone, Justice Newbury allowed the appeal but, before ending the discussion, turned to the major question of how s. 25 operates.
Issue 3: Preceding or Succeeding Analysis
On the third issue, Justice Newbury canvasses the scarce supply of case law on s. 25 that has spoken to its scope, and how it interfaces with other parts of the Charter. Justice Newbury seizes on Justice Bastarache’s concurring obiter dicta in R v Kapp, 2008 SCC 41 [Kapp] as a launching pad, which surveys the academic literature surrounding the provision. Justice Bastarache found that any legislation that makes a distinction between Aboriginal and non-aboriginal people in order to protect the interests of Aboriginal peoples should be shielded from Charter scrutiny (Kapp, para 103). Justice Newbury then builds on this characterization, taking a step forward to describe s. 25 as a shield that precedes (rather than follows) an analysis of an infringement of another provision of the Charter (Vuntut Gwitchin First Nation, para 143). Thus, where an individual right is in tension with a collective right protected under s. 25, the individual right would be read down or modified before it is viewed through the lens of a s. 1 analysis; that is to say, prior to assessing whether it is in violation of a competing Charter right or freedom. This is because, as noted by Justice Newbury in agreement with Justice Bastarache, s. 25 was “not meant to provide for the balancing of Charter rights against Aboriginal rights” (Vuntut Gwitchin First Nation, para 145) and therefore can and should proceed independent of that analysis. As a sidebar, Justice Newbury also endorses the view that s. 25 does not require rights or freedoms to be of a “constitutional character” in order to apply (Vuntut Gwitchin First Nation, para 147).
Issue 4: Primacy, Equality, or Subordination
Finally, on the issue of s. 25’s relationship to other, individual rights enshrined in the Charter, Justice Newbury agreed that, in understanding the language of the provision in the context of its purpose and the Crown’s broader responsibility towards reconciliation, derogation of a s. 25 right is not permitted, even if it results in the restriction of an individual Charter right (Vuntut v Gwitchin First Nation, para 148). Thus, even after being read down and modified, an individual right that infringes on a collective right, as it is protected under s. 25, will not pass an Oakes analysis. It is only in providing s. 25 a unique, elevated status as it relates to Indigenous affairs, rights, and responsibilities, can it give effect to Parliament’s intention to protect the rights of Aboriginal peoples in Canada to govern themselves.
Forecasting the SCC’s Focus
Ever since the Charter was built into Canada’s constitutional architecture in 1982, the SCC has been eager to grant leave to, and provide their opinion on any cases which allow them to properly clarify, delineate, and lay out the boundaries of each right and freedom enshrined in the document.
This analysis will likely be draped in discussions over one of the oldest and most opined over challenges facing any democratic society governed by a liberal constitutional order: how individual rights should be weighed against collective rights when the two are in tension and/or conflict with each other. Where the highest court of any given liberal constitutional democracy lands on this will be a reflection of that society’s distinctive constitutional design, political values, and history. These collective rights in Canada, as expressed in s. 25, are specific to the country’s Indigenous and Aboriginal peoples, included into the Charter as a safeguard against the erosion of Indigenous and Aboriginal self-governance, self-determination, and distinctiveness. Canada’s history is rife with instances of legislative and judicial actions that were designed to weaken the ability of Indigenous and Aboriginal peoples to govern themselves using their distinct legal systems, which is why s. 25 was included into the Charter. In understanding the context and history of settler-colonialism in Canada, the genesis of Indigenous legal recognition, and the ongoing efforts at reconciliation, the courts have a keen interest in clearly defining how s. 25 operates in relation to other parts of the Charter. In doing so, the SCC will have an opportunity to retrace the trajectory of Indigenous legal rights recognition (or lack thereof) since the assertion of Crown sovereignty and redraw the unique, historically sensitive relationship between the Crown and Indigenous peoples of Canada.
Given the context, history, and ongoing efforts at reconciliation, it is my own view that the SCC will and should see s. 25 as taking primacy over all other Charter rights, precluding any one person — Indigenous or otherwise — from having a constitutionally empowered veto on how Indigenous groups decide to govern themselves. Thus, where a First Nations Government institutes a policy pursuant to efforts at either preserving or exercising the right of self-determination and self-governance, an applicant relying on the powers of the Charter should not be able to step in and render the policy of no force or effect given their individual interests were adversely impacted. Nevertheless, a wholesale rule permitting no derogation is likely a step too far, given, as is evident in the Charter’s inclusion of a s. 1 reasonable limits clause, the Charter has always taken a “flexible and non-hierarchical approach” to the rights contained therein (Kapp, para 123). Thus, it may be necessary to establish a separate test for determining whether, in the instance that a s. 25 related policy infringes on another right in the Charter, the infringed right in question is of a gravity and nature that may warrant estopping a policy instituted by a First Nations Government by placing it under Oakes analysis. This would thus introduce a two staged Charter analysis, the first stage being unique to s. 25 and the second following the regular s. 1 jurisprudence. This may be the appropriate balance struck between upholding the spirit and language of s. 25, while ensuring that First Nations Governments are not given carte blanche with respect to infringing on the fundamental freedoms, civil, and political rights of their citizens. What exactly the intermediate considerations should be in the first stage of the analysis will likely require stringing together a panoply of prior jurisprudence, academic literature, and input from Indigenous communities themselves, and will be left to a potential next article. This two staged analysis will be in keeping with the long march — spearheaded by the Courts in their s. 35 jurisprudence — towards a Canadian polity that preserves the Constitution’s supreme authority while providing a measurable amount of autonomy to the nations that existed here prior to the Crown.