Frameworks all the way down?

In Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, a unanimous Supreme Court of Canada found that the Act in question is a valid exercise of Parliament’s s. 91(24) authority over “Indians, and Lands reserved for the Indians.” As a result, the Indigenous laws it incorporates by reference are paramount over provincial laws in the event of a conflict.

As a division of powers case, the Reference is kind of basic. That’s certainly what the Court wants us to think, as it states over (¶9) and over (¶120)…and over (¶130) and over (¶133) again that the Act does not alter “the architecture of the Constitution.” 

The Court doth protest too much, methinks. 

The Court snatched ambiguity from the jaws of agnosticism by noting – after repeatedly (¶76) declining (¶127) to acknowledge inherent Indigenous jurisdiction over child and family services and relying explicitly (¶¶9, 19, 60-63) on Parliament’s affirmation of such jurisdiction – that “The Act creates space for Indigenous groups, communities and peoples to exercise their jurisdiction to care for their children” (¶134, emphasis added). The structural implications of this late own goal remain TBD.

The Court introduced additional uncertainty when, instead of “the imperative of reconciliation” (Anderson v. Alberta ¶4), it referred to “the imperatives of reconciliation” (¶115). Given the fundamental constitutional importance of reconciliation as the “grand purpose” of Section 35 (Little Salmon ¶10), the “ultimate purpose” of the honour of the Crown (Manitoba Metis ¶66), and “a first principle of Aboriginal law” (Mikisew Cree (2018) ¶22), that one extra letter could have an outsized impact. It might mean nothing. Or it might signal and support a profound shift from a constitutive conception of reconciliation, in which the Crown is defined by its original assertion of sovereignty over indigenous peoples (remember “federal power must be reconciled with federal duty”? (Sparrow, p. 1109)), to a shallow pragmatic understanding of reconciliation that does not consider its source or status, only what it requires in each moment.

On a more explicitly structural level, in reaching its somewhat obvious conclusion that the Act is valid, the Court used the term “framework” 17 times in 137 paragraphs:

  • the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP) provides a framework for reconciliation (¶¶4, 5, 13, 89);
  • the federal UNDRIP Act is a framework for implementation of UNDRIP (i.e. it is a framework for implementation of a framework for reconciliation) (¶15).
  • the Act itself is a framework for reconciliation and, more specifically, “a framework within which Indigenous groups, communities or peoples may exercise the jurisdiction affirmed” by Parliament (¶26); 
  • Sections 9 to 17 of the Act “establish a normative framework for the provision of culturally appropriate child and family services that applies across the country” (¶¶67-69); and
  • Section 35 of the Constitution Act, 1982 “recognizes and affirms “a constitutional framework for the protection of the distinctive cultures of aboriginal peoples”” (¶114).

Frameworks within frameworks (within frameworks) stacked upon frameworks. If not constitutional architecture, is this at least constitutional scaffolding?

The Court has invoked frameworks involving Indigenous peoples before (Tsilhqot’in ¶28; Nacho Nyak Dun ¶10). But now they seem to be proliferating around the Constitution and, like standards, transoms, and tarps on a leaky Vancouver condominium, obscuring the work going on underneath.

In fact, the recent reasons in R. v. Brunelle, 2024 SCC 3 demonstrated exactly this problem in the Charter context. For the majority, O’Bonsawin J. mentioned 30 frameworks in just 124 paragraphs and characterized one of the questions on appeal as “how to reconcile the relevant frameworks, that is, the s. 7 framework and the frameworks for ss. 8 and 10(b) of the Charter” (¶4, also ¶70). However, she never actually reconciled them. Instead, she characterized the test for a stay under s. 24(1) of the Charter as yet another framework (¶29). Then, she relied on the observation of the majority in R. v. J.J. that “the methodology for assessing multiple alleged Charter breaches is highly context‑ and fact‑specific” to conclude that “the framework applicable to each of these procedural guarantees will remain relevant in determining whether the infringements making up the accumulation of infringements actually occurred…In this way, the frameworks coexist, those for the procedural guarantees being intertwined with the s. 7 framework” (¶¶71-72).

As Rowe J. points out in concurring reasons (six paragraphs, zero frameworks), the majority’s approach perpetuates an “uncertainty as to methodology” when an accused seeks a stay under s. 7 and ss. 8-14 (¶130).

On the surface, all of those “frameworks” appear to convey a preference for clarity and predictability in constitutional analysis. Ironically, as they multiply, they have the opposite effect: they confirm the central importance of judicial discretion, in part by attempting to conceal it.


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5 responses to “Frameworks all the way down?”

  1. […] proliferation of frameworks may have dominated the headlines (at least around here), but the (re)emergence of constitutional imperatives may prove by far the […]

  2. […] and “braiding” different types of legal norms into a single “rope” (that somehow forms yet another framework) (Reference re An Act ¶7). But they are sitting in the shadow of the basic constitutional […]

  3. […] The framework is the contemporary, technocratic version of the classic metaphor deployed by Viscount Sankey: “a living tree capable of growth and expansion within its natural limits” (Edwards v. Canada (Attorney General), [1930] AC 124, p. 136). Of course, we know now there is nothing natural about it. Right? Right? […]

  4. […] surface of its reasons, the Court’s convoluted metaphors and analyses create a real risk of “structures all the way down”: an Escher sketch with […]

  5. […] Frameworks within frameworks (within frameworks?). Maybe it really is frameworks all the way down. […]

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