Aboriginal Law

R v JW: Programming-Based Sentencing, “Wrongful Conduct,” and Enhanced Credit

The Supreme Court of Canada’s decision in R v JW addresses two intertwined controversies in Canadian sentencing law. First, it clarifies whether—and how—a sentencing judge may take account of the time an offender is likely to need to complete institutional programming when setting a custodial term. Second, it refines the meaning of “wrongful conduct” for the purpose of denying enhanced pre-sentence credit under s 719(3.1) of the Criminal Code.

Saskatchewan v Métis Nation: SCC on Multiple Proceedings, Duty to Consult, and Abuse of Process

The Supreme Court of Canada (“SCC”) has dismissed the appeal in Saskatchewan (Environment) v Métis Nation, 2025 SCC 4 [Métis Nation]. A unanimous court found that proceedings for judicial review which raise similar issues to ongoing or past litigation do not inherently amount to an abuse of process.

Contracts and Reconciliatory Justice: Quebec v Pekuakamiulnuatsh Takuhikan

In Quebec (Attorney General) v Pekuakamiulnuatsh Takuhikan, 2024 SCC 39 [PT], the Supreme Court of Canada (“SCC” or the “Court”) developed a test to determine when contracts between the state and Indigenous entities engage the honour of the Crown. Applying this test to tripartite agreements between Canada, Quebec, and the Pekuakamiulnuatsh First Nation, the Court found Quebec liable […]

APPEAL WATCH: Mohawk Council of Kanesatake v. Sylvestre On The Right To Seize Band Property

The Supreme Court of Canada (“SCC”) is set to hear an appeal out of the Quebec Court of Appeal (“QCCA”) on where the prescription period for the creditor’s right to seize band property was interrupted by a notice of execution. The SCC will require the parties in Mohawk Council of Kanesatake v. Sylvestre, 2023 QCCA […]

APPEAL WATCH: MNS v Saskatchewan (Environment) on Land Claims and Judicial Review

The Supreme Court of Canada (“SCC”) is set to hear an appeal out of the Saskatchewan Court of Appeal (“SKCA”) on a decades-long Métis land claim proceeding through a judicial review application in the case of Métis Nation – Saskatchewan v Saskatchewan (Environment), 2023 SKCA 35 [MNS]. 

APPEAL WATCH: SCC to Rule on Fair Funding of Indigenous Police Services

In Takuhikan c Procureur général du Québec, 2022 QCCA 1699, [Takuhikan], the Court of Appeal of Québec (“QCCA”) held that the governments of Canada and Québec breached their honour of the Crown obligations to a First Nation by knowingly underfunding the latter’s Indigenous police service and refusing to fund it to the same level as […]

SCC to Address Indigenous Peoples’ Inherent Right to Self-Govern in Bill C-92 Reference

Editor’s Note: The author’s analysis of Renvoi à la Cour d'appel du Québec relatif à la Loi concernant les enfants, les jeunes et les familles des Premières Nations, des Inuits et des Métis, 2022 QCCA 185 [QCCA Reference] is based on an unofficial English translation of the opinion of the Quebec Court of Appeal (“QCCA” […]

Appeals Watch: Clashing Constitutional Principles — SCC grants leave in Cindy Dickson v Vuntut Gwitchin First Nation

Introduction   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 […]

Anderson v Alberta: The SCC Revises the Test for “Impecuniosity” and Advance Legal Costs in the Era of Reconciliation

The Supreme Court of Canada (“SCC” or “The Court”) has modified the threshold of “impecuniosity” where a First Nations government seeks advance cost awards in litigation against the federal or provincial governments. In the unanimous decision of Anderson v Alberta, 2022 SCC 6 [Anderson], the Court determined that a First Nations government which has access […]

Appeal Watch: Crown must increase annual payments to its Anishinaabe treaty partners in Restoule v Canada

In 1850, the Anishinaabe of the upper Great Lakes agreed to share their vast territory in exchange for hunting and fishing rights, as well as an annual payment (“annuity”) from the Crown. The Crown promised that the annuities could increase over time so long as resource development in the area proved profitable. Mining and forestry […]