2018 QCCA 1077, 2018 QCCA 1077

Translated from the original French Procureure générale du Canada c. Sarrazin 2018 QCCA 1077 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-026173-161 (500-06-000600-128) DATE: June 28, 2018 CORAM: THE HONOURABLE JACQUES CHAMBERLAND, J.A. MARIE-JOSÉE HOGUE, J.A. CLAUDINE ROY, J.A. ATTORNEY GENERAL OF CANADA APPELLANT – respondent v.

DENIS SARRAZIN RESPONDENT- applicant JUDGMENT [ 1 ] The appellant Attorney General of Canada appeals from a judgment of the Superior Court, District of Montreal (the Honourable Marie-Anne Paquette, J.S.C.), rendered on May 27, 2016, authorizing the respondent to institute a class action on behalf of approximately 45,000 persons who, between 1985 and 2011, were allegedly deprived of their Indian status and privileges relating thereto because of the discriminatory nature of s. 6 of the Indian Act . [ 2 ] For the reasons of Chamberland J.A., with which Hogue and Roy JJ.A. agree, THE COURT: [ 3 ] DISMISSES the appeal, with legal costs.

JACQUES CHAMBERLAND, J.A. MARIE-JOSÉE HOGUE, J.A. CLAUDINE ROY, J.A. Mtre Dah Yoon Min Mtre Nathalie Drouin Mtre Marie-Emmanuelle E. Laplante Minister of Justice Canada Counsel for the appellant Mtre Roch Dupont Merchant Law Group Counsel for the respondent Date of hearing: April 11, 2018

REASONS OF CHAMBERLAND, J.A. [ 4 ] With leave from a judge of the Court, the appellant Attorney General of Canada appeals from a judgment rendered on May 27, 2016, by the Superior Court of Quebec, District of Montreal (the Honourable Marie-Anne Paquette, J.S.C.), [1] authorizing the respondent to institute a class action on behalf of a class composed of approximately 45,000 persons who, between 1985 and 2011, were allegedly deprived of their Indian status and the privileges relating thereto because of the discriminatory nature of s. 6 of the Indian Act . [2] [ 5 ] The appeal concerns the conditions for authorizing a class action, more specifically the prima facie case criterion, i.e., that “the facts alleged appear to justify the conclusions sought” (art. 575(2) C.C.P. ). [ 6 ] For the reasons below, I find that the appeal should be dismissed.

Background and judgment under appeal [ 7 ] The respondent’s application is based on the following legal syllogism: ‒ The amendments made to the Indian Act by the Act to amend the Indian Act , [3] which came into force retroactively to April 17, 1985, [4] were discriminatory because they prevented his mother from transmitting Indian status to him based solely on the fact that her own Indian mother [5] had married a non-Indian, which would not have been the case if her Indian father [6] had married a non-Indian woman; ‒ Parliament displayed bad faith or abused its authority by enacting these discriminatory provisions.

Thus, the principle of restrictive state immunity or the protection of s. 9 of the Gender Equity in Indian Registration Act [7] cannot be invoked to protect the state from being ordered to pay for all the losses suffered as a result of this discrimination.

Section 9 provides: 9. For greater certainty, no person or body has a right to claim or receive any compensation, damages or indemnity from Her Majesty in right of Canada, any employee or agent of Her Majesty, or a council of a band, for anything done or omitted to be done in good faith in the exercise of their powers or the performance of their duties, only because (

a) a person was not registered, or did not have their name entered in a Band List, immediately before the day on which this Act comes into force; and (

b) one of the person’s parents is entitled to be registered under paragraph 6(1)( c.1 ) of the Indian Act , as enacted by subsection 2(3) . 9.

Il est entendu qu’aucune personne ni aucun organisme ne peut réclamer ou recevoir une compensation, des dommages-intérêts ou une indemnité de l’État, de ses préposés ou mandataires ou d’un conseil de bande en ce qui concerne les faits — actes ou omissions — accomplis de bonne foi dans l’exercice de leurs attributions, du seul fait qu’une personne n’était pas inscrite — ou que le nom d’une personne n’était pas consigné dans une liste de bande — à l’entrée en vigueur de la présente loi et que l’un de ses parents a le droit d’être inscrit en vertu de l’alinéa 6(1) c.1 ) de la

Loi sur les Indiens , édicté par le paragraphe 2(3) . [ 8 ] The first part of the syllogism is not contested because of the British Columbia Court of Appeal’s conclusion in McIvor with respect to the discriminatory nature of the 1985 amendments ( s. 6 of the Indian Act condoned the differential treatment of matrilineal and patrilineal descendants in the transmission of Indian status). [ 9 ] The second part of the syllogism is contested. [ 10 ] In his application for authorization to institute a class action dated February 6, 2015, which was the last one filed before the judgment a quo , Mr.

Sarrazin states several times [8] that the federal Crown acted knowingly and in bad faith by amending the Indian Act as it did in 1985.

In support of this allegation, he invokes a lengthy excerpt from the House of Commons Debates during the second reading of Bill C-31, on March 1, 1985, when the Bill was referred to the Standing Committee on Indian Affairs and Northern Development (Hansard at 2644–2662), more specifically, remarks made by Members of Parliament Keith Penner and Sheila Finestone. [ 11 ] The authorizing judge concluded that the second criterion of. 575 C.C.P. was met [9] and that the class action ought to be authorized. [10] [ 12 ] Moreover, for the fair administration of justice and in accordance with the principle of proportionality, the authorizing judge split the action so that the preliminary and decisive issue of state immunity would be decided first. [11]

The appeal [ 13 ] The assessment of the criteria that allow the bringing of a class action is subject to the discretion of the judge hearing the application for authorization. The Court of Appeal must show deference to the judgment authorizing, or refusing to authorize, a class action, unless the judge “ erred in law or if the judge’s assessment with respect to the criteria of art. [575] C.C.P. is clearly wrong”. [12] [ 14 ] The appeal raises two issues that I will address in the following order: 1.

Did the authorizing judge err in interpreting or assessing the second criterion of art. 575 C.C.P. (the approach)? 2. Do the facts alleged by the respondent appear to justify the conclusions sought, in particular the conclusion that the federal Crown acted in bad faith or abused its authority (a prima facie case)?

The approach [ 15 ] The allegation at the heart of the analysis concerns the application of the principle of restrictive state immunity with respect to actions for damages based on the invalidity of a legislative instrument, [13] a principle frequently set out by the Supreme Court and codified in s. 9 of the Gender Equity in Indian Registration Act . [14] [ 16 ] The authorizing judge had to decide whether the facts alleged by Mr.

Sarrazin appeared to justify the conclusion of bad faith or abuse of right alleged against the federal government. [ 17 ] The appellant submits that the authorizing judge failed to fully exercise her role at the authorization stage by avoiding the issue before her and deferring it to the trial judge. [ 18 ] In my opinion, this criticism is unfounded. [ 19 ] The authorizing judge did indeed find that the evidence adduced by the respondent, although tenuous, appeared to justify the conclusion sought with respect to bad faith.

It is erroneous to claim that the judge authorized the class action on the basis of mere legal characterizations, in the absence of any allegations of fact whatsoever or that she shifted the burden of proof onto the appellant by requiring it to establish the absence of bad faith on the part of the federal government. [ 20 ] With respect for the contrary opinion, that is not my understanding of the authorizing judge’s reasons. [ 21 ] It is true that certain sentences taken out of context could imply that she imposed the burden on the federal government of establishing the absence of bad faith.

For example, when the judge wrote [ translation ] “ without analyzing the evidence, the Court cannot find that the allegations of bad faith, abuse of right, or clearly wrongful conduct on the part of the state are indisputably without merit”, [15] or when she added that the Court could not assert [ translation ] “that the facts alleged and established leave no doubt as to the absence of bad faith, abuse of right, or clearly wrongful conduct .” [16] [ 22 ] But when these phrases are considered in the general context of her reasoning, it is understood that she refused, at the authorization stage, to analyze the evidence in depth, as the appellant was proposing, to reverse or confirm the prima facie conclusion that the respondent draws from the March 1, 1985, parliamentary debates, and in particular from the remarks made by MPs Penner and Finestone.

In so doing, the judge certainly did not err. [ 23 ] There therefore remains the second issue raised by the appellant. Did the authorizing judge correctly find that the facts alleged by the respondent appeared to justify his conclusion that the federal Crown acted in bad faith or abused its authority. A prima facie case [ 24 ] The Code of Civil Procedure is clear. A person who wishes to institute a class action must establish that “the facts alleged appear to justify the conclusions sought”.

In this case, the respondent relies on the remarks of two MPs who denounced the discriminatory nature of the bill in support of his allegations of bad faith and abuse of right against the federal government. [ 25 ] That is not much [17] in view of the principle of relative state immunity with respect to legislation, vigorously and consistently confirmed by the Supreme Court of Canada on many occasions over the past twenty years. [ 26 ] It is also not much considering the British Columbia Court of Appeal’s conclusion that the federal government acted in good faith in McIvor , [18] which is the same case that the respondent relies on with respect to the discriminatory nature of the 1985 legislative amendments.

Especially since, having read the judgment, it is clear that the appellate judges were in possession of the parliamentary debates concerning bill C-31, the same that Mr.

Sarrazin now invokes in support of his application for authorization. [ 27 ] That being said, the authorizing judge nevertheless concluded that the respondent’s application met the second criterion of art. 575 C.C.P. [ 28 ] Her conclusion should be treated with deference. [ 29 ] It is only necessary [ translation ] “for the applicant, at the authorization stage, to present an arguable case, that is, having a chance of success, without having to establish a reasonable or realistic possibility of success”. [19]

[ 30 ] In this case, the appellant has not convinced me that the authorizing judge committed a reviewable error justifying the intervention of this Court. [ 31 ] In their remarks, MPs Penner and Finestone both noted that despite the enactment of the statute proposed by the government, discrimination on the basis of sex did not disappear from the Indian Act . The relevant excerpts from these remarks are reproduced below: Keith Penner Discrimination remains within the Indian Act . The Bill still categorizes Indians as status and non-status.

It still indicates those who are band members by action of this Parliament, and those who are not band members and must seek that status or will in some way be ineligible for it. As an example of how discrimination will continue to exist I will describe two different types of marriage union. In one marriage union an Indian man marries a non-Indian. If they were married before the Act, both will have Indian status. Their children and their children’s children will have Indian status transmitted even if they marry non-Indians.

However, if an Indian woman married a non-Indian man their child will have status, but that status will not be transmitted if that child marries a non-Indian. Therefore, we have solved all our problems. We still have discrimination. Sheila Finestone I applaud the Minister’s action in repealing Section 12(1)(

b) but I cannot support his restoration of status to the women but not to their children . His effort to restore Indian identity is somewhat negated by his potential division of the family. … I understand with respect to the transmittal of status that women who lost their status will now have it back but their children will be treated differently from the children of an Indian man who married a non-Indian woman.

Therefore, if I understand it correctly, one can be in a situation where first cousins who are of Indian ancestry will not have the right to claim that ancestry, which could put them into conflict . [20] [Emphasis added.] [ 32 ] It is common ground that the discrimination denounced by the two MPs concerned Mr. Sarrazin’s specific situation. Indeed, as MP Penner submits, if an Indian woman married a non-Indian, as the respondent’s grandmother did, her child would have Indian status (the respondent’s mother has Indian status under s. 6(2) of the Indian Act ).

However, this status will not be transmitted if that child marries a non-Indian. In this case, the respondent’s father is a non-Indian.

Thus, MP Finestone was right when she said that “women who lost their status will now have it back but their children will be treated differently from the children of an Indian man who married a non- Indian woman”. [21] [ 33 ] These remarks certainly justify the respondent saying, at the class action authorization stage, that the federal government was aware of the issues affecting bill C-31. [ 34 ] While this is probably insufficient to conclude that the federal Crown acted in bad faith, it certainly constitutes a first step in establishing the respondent’s claim. [ 35 ] The appellant notes that these are the remarks of only two of the some 280 MPs that made up the House of Commons at the time; that they have only relative weight because they were expressed without the benefit of the teachings of the Supreme Court concerning the test and interpretive framework specific to the application of ss. 1 and 15 of the Charter , which would come only later; [22] that during their March 1, 1985, remarks, MPs Penner and Finestone (along with other MPs) did not fail to mention the considerable difficulties associated with the work undertaken by the Minister responsible for the Bill and congratulate him for his work, which comments are difficult to reconcile with the respondent’s allegations of bad faith and abuse of right; and finally, that the British Columbia Court of Appeal, which had the same issue before it in McIvor , concluded that there had been a “bona fide attempt [by the federal government] to eliminate discrimination on the basis of sex” [23] in the Indian Act . [ 36 ] All this is no doubt true, but belongs to a more thorough analysis of the evidence, which cannot and should not be conducted at the authorization stage. [ 37 ] From the perspective of the “simple, liberal and generous approach” recommended by the Supreme Court, it is also appropriate to note the particular nature of the remedy and what the respondent is required to demonstrate to counter the relative immunity of the federal Crown in legislative matters.

The evidence is complex, and its historical and political aspects cannot be overlooked. Part of this evidence, if it exists, is likely to be found in the hands of the government officials and politicians who worked on the Bill at the time. At this stage of the proceedings, it is difficult to fault the respondent for not providing stronger evidence in support of his allegations. [ 38 ] For all these reasons, I would dismiss the appeal, with legal costs. JACQUES CHAMBERLAND, J.A.