This edition of Current Cases Corner has two wonderful guest authors, both of whom are passionate about the cases they're rounding up for you. Without further ado, read "Reconciliatory Justice for the Pekukamiulnuatsh Takuhikan" by Rachel Ivey, 3L, and "Canada (SORTA) Works Together Against Overdose Crisis" by my wonderful co-Editor in Chief, Faith Thomson, 3L.
Reconciliatory Justice for the Pekukamiulnuatsh Takuhikan
Case coverage: Rachel Ivey
It was a big year for Aboriginal law in the Supreme Court of Canada. There have been four major decisions released in 2024, each with their own iconic opinions.¹
At first glance, Quebec v Pekuakamiulnuatsh is about the police. Specifically, it’s about a tripartite agreement between the governments of Canada, Québec, and Pekuakamiulnuatsh Takuhikan to establish, maintain, and more importantly fund, an Indigenous police force, the Sécurité publique de Mashteuiatsh (SPM). Unsurprisingly, the Crown governments underfunded the SPM from 2013 to 2017, leaving the Pekuakamiulnuatsh Takuhikan to assume a deficit reaching almost $1.6 million over the five-year period. Due to chronic under-funding, Pekuakamiulnuatsh Takuhikan was forced to decide between two options: impoverish their Nation assuming these deficits or stop providing an Indigenous-led police force.
Pekuakamiulnuatsh Takuhikan chose option #3.
They continued to operate the SPM and kept their Nation from financial ruin by rightfully bringing a legal claim against Canada and Québec to reimburse their accumulated deficit. They made this claim on a contractual basis under private law and on a public law basis anchored in principles of Aboriginal law. The Court found that Québec’s refusal to renegotiate its financial contribution when the agreements were renewed breached the private law principle of good faith in the performance of a contract. More importantly, the Court found Québec’s actions breached the obligation to act in a manner consistent with the Honour of the Crown that exists in some contracts between the Crown and Indigenous Peoples, according to the newly minted two-part test.
The agreement must be between the Crown and an Indigenous group on the basis of the group’s Indigenous difference. It must have a collective dimension.
The agreement must relate to an Indigenous right of self-government, whether that right be established or is the subject of a credible claim. The Court left open the possibility for this to extend to other Indigenous rights or interests.
If both parts of this test are met, the Honour of the Crown is engaged in contractual agreements. This finding can now be argued to apply to most funding agreements of essential services under program devolution, bringing this case far beyond the realm of policing services.
More interesting still, the Court seems to clarify what Shot Both Sides and Restoule had confused: that remedies other than a simple declaration are available and must be flexible, proportional and sensitive to the Indigenous perspective.
This is what the Court calls “reconciliatory justice”. I don’t know about you, but I think there’s a certain ring to this. I look forward to seeing how reconciliatory justice takes Crown-Indigenous relations to the next level, one where Indigenous Nations are negotiated with as the sovereign Nations that they are.
¹ My personal favourite being Justice Jamal’s succinct summary of the Ontario Crown’s-actions in Restoule when he said, “[Ontario], has lost the moral authority to simply say, ‘trust us.’”
² Quebec (Attorney General) v Pekuakamiulnuatsh Takuhikan, 2024 SCC 39.
Canada (SORTA) Works Together Against Overdose Crisis
Case Coverage: Faith Thomson
Turns out, misrepresenting how pharma products led to the overdose crisis is bad actually, and it can band provinces and territories together in a potential class action. That’s right! Canada’s provinces and (most) territories can work together – even Quebec is here! Sanis Health Inc v British Columbia, 2024 SCC 40 (“Sanis”) concerns legislation allowing BC to raise a class action against pharmaceutical companies that misrepresented the addictive qualities of opioids and recuperate associated healthcare costs.
Clickbait sellers beware!
According to our beloved SCC gang, BC’s provincial legislation allows other provinces to opt in/out of the procedural aspects of a class action if it’s related to cross-jurisdictional boundaries and does not offend the litigation autonomy and sovereignty of foreign Crowns.
The consensual aspect, and the fact that most provinces and territories have opioid damages legislation and are acting as intervenors on this issue, was substantial enough to meaningfully connect section 11 of BC’s Opioid Damages and Health Care Costs Recovery Act to Executive power in subsection 92(13)(14) of the Constitution Act ,1987. Well, most of the SCC gang agrees – Côté disagrees, and he believes there’s a lack of “meaningful connection.” But Côté always seems to be in disagreement as of late.
Let’s zoom out a bit. If the government can create crimes to penalize human behaviour, can it not do so to hold organizations accountable? The reason why drug-related crime escalated is because, well, they made any substance use illegal. Talk about fabricating evidence to swell crime-related budgets, am I right? The SCC has already medicalized addiction-related issues in Schneider v BC (SCC, 1982 at paras 49 and 62) so that they could detain people who use drugs (PWUDs). Canada’s tried detention and punitive programs that morally entrench substance use as a “public evil” (see PHS Community Services Society v Canada (AG), 2011 SCC 44 at paras 33, 52, 72-73 and 105), and it’s actually made the problem worse somehow. So while we work to change substance use culture, can we recoup some of the healthcare costs from key participants that misled healthcare providers and profited on the pain of others?
Procedurally and for nationwide access to justice, the SCC says yes.
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