The Descheneaux case: Québec Court of Appeal grants extension to attorney general of Canada

On August 18, 2017, the Québec Court of Appeal allowed an application by the Attorney General of Canada ("AGC") to extend the temporary suspension of the coming into effect of the conclusion set out in Descheneaux c. Canada (Procureur général),¹ rendered on August 3, 2015, by the Québec Superior Court, declaring that paragraphs 6(1)(a), (c) and (f) and subsection 6(2) of the Indian Act (the "Act") are of no force or effect.

Background

In 1985, when section 15 of the Canadian Charter of Rights and Freedoms³ (the "Charter") came into effect, the Parliament of Canada undertook a reform of the rules with respect to Indian status in order to eliminate the discriminatory distinctions contained in the Act on the basis of sex, notably with respect to transmission of Indian status. Despite the reform's objective, the changes, as made, generated other forms of sex-based discrimination, as found in R. v. McIvor.⁴ In response to this judgment by the Supreme Court of Canada, Parliament adopted the Gender Equity in Indian Registration Act⁵ in 2010.

Despite this measure, other forms of sex-based discrimination were identified by the Québec Superior Court judge in the Descheneaux judgment. In the view of the Québec Court of Appeal, "[t]he discrimination flows from complex scenarios created by the convoluted nature of the Indian Act provisions relating to eligibility for registration in the Indian Register."⁶

Québec Superior Court Decision

In light of a finding that these forms of discrimination infringed section 15 of the Charter, the trial judge declared paragraphs 6(1)(a), (c) and (f) and subsection 6(2) of the Act of no force or effect and suspended the effect of this declaration for a period of 18 months in order to provide Parliament with an opportunity to adopt remedial legislation.

The AGC's initial application for extension was granted on January 20, 2017. On June 26, 2017, the AGC requested that the Court grant another extension, but it was refused on June 27, 2017, on the grounds that:

(1) the parliamentary process did not allow the Court to conclude that Bill S‑3⁷ would be adopted before the expiry of the suspension of the declaration of invalidity;

(2) the suspension of the coming into effect of a declaration of invalidity of a law is an extraordinary measure and, in the case at bar, it would be inappropriate to extend the suspension, which had already lasted 23 months; and

(3) despite the imminent expiry of the suspension, neither the AGC nor Parliament had implemented transitional measures to mitigate the impacts an extension would have on the affected individuals.

Québec Court of Appeal Decision

The Québec Court of Appeal allowed the appeal and set aside the trial court's judgment. The Court determined that under the applicable standard of review, the appellant had to demonstrate that the constitutional remedy was not "appropriate and just in the circumstances."⁸ In its analysis, the Court considered four factors: (1) the change in circumstance justifying the extension; (2) the circumstances that led to the initial suspension of the declaration of invalidity; (3) the likelihood that remedial legislation will be adopted; and (4) the administration of justice. The Court determined that were it not for the impacts on the public of the coming into effect of the declaration of invalidity before remedial legislation is adopted, it would have dismissed the appeal. However, given that the impacts would be very real and not insignificant, the Court stated that the appeal should be allowed so that Parliament could complete the legislative process surrounding Bill S‑3.⁹