Race-Based Law

Why Doesn’t the Charter Apply to All Canadians?

Peter Best
November 20, 2022
Everyone has an opinion about Canada’s Charter of Rights and Freedoms these days. Does it really include the right to strike? Should provinces use the notwithstanding clause to suspend its rights? But there’s never been any debate about who should hold these rights. All fair-minded Canadians would be deeply offended by the idea that the Charter should be applied selectively on the basis of race or culture. Yet that is what Canada’s courts are doing. Peter Best examines an incendiary ruling in Yukon that sets aside the individual equality rights of Indigenous Canadians in favour of the collective rights of native self-government. Is this sort of discrimination a new Canadian tradition?
Race-Based Law

Why Doesn’t the Charter Apply to All Canadians?

Peter Best
November 20, 2022
Everyone has an opinion about Canada’s Charter of Rights and Freedoms these days. Does it really include the right to strike? Should provinces use the notwithstanding clause to suspend its rights? But there’s never been any debate about who should hold these rights. All fair-minded Canadians would be deeply offended by the idea that the Charter should be applied selectively on the basis of race or culture. Yet that is what Canada’s courts are doing. Peter Best examines an incendiary ruling in Yukon that sets aside the individual equality rights of Indigenous Canadians in favour of the collective rights of native self-government. Is this sort of discrimination a new Canadian tradition?
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Travellers driving to Yukon Territory can expect a variety of novel road signs alerting them to their upcoming destinations. At the outskirts of Whitehorse, for example, sits a large carved wooden sign welcoming visitors to the “Capital of the Yukon” emblazoned with a paddle steamer and sunny mountain vista. Dawson City’s sign pays homage to its Gold Rush glory days with a Belle in a fancy dress waving from the second-floor balcony of a dance hall. As for Old Crow, a remote native community about 800 km north of Whitehorse, there’s no road in at all. But if there was, recent legal battles suggest a proper road sign would contain the warning “Charter-Free Zone Ahead.”

Old Crow is the hub community of the sprawling Vuntut Gwitchin First Nation (VGFN), covering nearly 8,000 square km in northern Yukon. It is also the focus of a set of recent court rulings undermining the bedrock concept that all Canadians share the same basic rights as guaranteed by the Canadian Charter of Rights and Freedoms. In place of this fundamental doctrine of equality for all, Canada’s court system seems bent on installing a doctrine of race-based laws. In this case, denying Indigenous Canadians on reserves rights that the rest of us take for granted. It is now up to the Supreme Court of Canada to decide if such a legal caste system is compatible with a modern, liberal Canada.

Hard to reach: Old Crow, in the sprawling Vuntut Gwichin First Nation (VGFN) in northern Yukon, is only accessible by aircraft for most of the year. More than half its 560 members live elsewhere. (Source of map:
Natural Resources Canada)

Running for Office in Old Crow

Set along the meandering Porcupine River near the Alaskan border, Old Crow is accessible for most of the year only by plane. As a result, approximately 300 of the VGFN’s 560 members choose to live away. Such is the case for Cindy Dickson, who makes Whitehorse her home because of her son’s health needs and her job as executive director of the Arctic Athabaskan Council, an intergovernmental forum representing Indigenous people of Athabaskan descent in Canada and the United States. “I consider Old Crow to be my home – I grew up there,” Dickson says in an interview. “But I moved out to further my education.”

In an effort to improve representation for that majority of VGFN members who live outside Old Crow, in 2018 Dickson put her name forward for election on the VGFN council. “There is a real need for leadership to reach out to our members wherever they live. I see a lot of our citizens here in Whitehorse and they have struggles,” she explains. “We need someone to advocate at the political level for all those citizens that live outside Old Crow.”

As a trustee of the Vuntut Gwitchin Business Trust and an active member of her local community, she is eminently qualified to serve that role. But the VGFN’s local constitution states that only residents living in Old Crow can serve on council. Since Dickson says she observed past council members meet the residency requirement by claiming an empty cabin in Old Crow as their permanent residence, she figured the rule was not a big deal. But after her nomination papers were accepted by the clerk, Dickson was later told her name had been removed from the ballot by the VGFN leadership.

“Old Crow is my home”: Cindy Dickson was raised on the VGFN land and currently lives in Whitehorse, where she is executive director of the Arctic Athabaskan Council. (Source of photo: National News)

When she requested a meeting to make her case, she was stonewalled. “I was shocked and upset. I sent letters and texts and no one got back to me,” Dickson recalls. Out of options, she filed a petition in 2019, arguing the residency requirement violated her Charter rights as a Canadian citizen to be free from discrimination. She lost both at trial and on appeal; her case is now headed to the Supreme Court of Canada.

The Dickson Decision

Section 15(1) of the Charter states that “every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination.” This guarantee provides much of the legal foundation and overall force to the traditional rights and freedoms that are separately expressed in the Charter and that Canadians enjoy on a daily basis: freedom of religion, freedom of expression, freedom of the press, freedom of association and assembly, the right to life, liberty and security of the person, and the right not to be deprived of same without due process.

Some other rights, however, do not apply to all Canadians. Section 25, which covers “Aboriginal rights,” states that, “The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada.” It goes on to list various treaties, royal proclamations and land claim agreements that may offer additional rights or privileges exclusively for the benefit of native peoples. Among these are a right to self-government. Section 35 explains that any future rights will be given equivalent protection.

Access denied: When Dickson tried to run for the VGFN council to advocate for the majority of members who live outside Old Crow, her name was removed from the ballot. Pictured is the Sarah Abel Chitze Administration Building in Old Crow. (Source of photo: APTN)

It is this author’s opinion that the Charter’s framers intended ss. 25 and 35 to protect the additional rights Indigenous people may enjoy without disrupting the other rights they hold in common with all other Canadians, a legal notion sometimes promoted as “Citizens Plus.” While this may violate the universalist notion of strict equality among all Canadians, what has happened to Dickson seems far more outrageous. She has been essentially stripped of her full rights in her “nation” of Canada due to her status as a member of an aboriginal community.

In defending its power to limit council eligibility to Old Crow residents, the VGFN leadership argued that s. 25’s protection of “Aboriginal rights” allows it to set aside Dickson’s individual equality rights in favour of the collective rights of the band itself. The band council claimed that the self-government agreement VGFN signed with Ottawa in the 1990s gives it a free hand to discriminate against its members as it sees fit, without regard to Canadian norms.

“Rooted in the land”: VGFN chief Dana Tizya-Tramm argued in court that unique aspects of Vuntut Gwitchin culture and tradition meant it didn’t have to respect Dickson’s Charter rights. (Source of photo: Jackie Hong/CBC)

“Vuntut Gwitchin practices, customs and traditions related to leadership and governance are…rooted in the land itself,” VGFN Chief Dana Tizya-Tramm testified at trial. Another witness affirmed, “Most VGFN cultural and political values…are collective in nature.” In 2021 the Yukon Supreme Court sided with the VGFN. The result seems a perversion of the original intent of s. 25; Dickson now has fewer rights than other Canadians, not more.

The case thus turns on a clash between Dickson’s individual rights as a Canadian citizen to be free from discrimination in pursuing lawful activities such as running for elected office, and the VGFN’s collectivist claim that as an Indigenous government it is allowed to ignore such obligations because of its historical customs and deep connection to the land. Such a collision of rights left Yukon’s courts twisted in knots.

As Madam Justice Mary Newbury of the Yukon Court of Appeal noted in her judgment upholding the trial decision, the Dickson case is “particularly difficult” because it raises “issues that have never been dealt with by a Canadian court…regarding s. 25 and how it relates to personal Charter rights held by citizens of self-governing first nations.”

It is “difficult” partly because of the courts’ burgeoning habit of heroically and imaginatively pushing Canadians’ individual Charter rights to ever-higher levels. Judges have frequently ordered elected governments to abide by strict timelines or meet ambitious funding requirements in order to correct policies they find to have violated Canadians’ sacred individual rights. In some cases – assisted suicide and the right to strike come to mind – these rights have simply been invented by judges reading between the lines of the Charter rather than ruling on its text as written.

Now, however, this expansive urge for judge-made law has crashed headlong into “a collective right…being exercised by a self-governing first nation,” as Newbury put it.

The Canadian Charter of Rights and Freedoms explicitly protects certain Aboriginal rights in Sections 25 and 35; but Section 15(1) also protects the individual rights of all Canadians, including the right to equal treatment without discrimination. (Source of photo: Wandering views/Shutterstock)

The lower court ruled that Old Crow’s residency requirement did not breach Dickson’s Charter right to equal treatment. And even if it had, the judge said, the VGFN was fully insulated against Charter challenges by s. 25. Last year the Yukon Court of Appeal essentially upheld the previous ruling. When individual rights come into conflict with the collective rights of Indigenous self-government, the collective wins.

Such a finding requires creating a distinction between laws for Indigenous Canadians and those that apply to the rest of us. As Newbury wrote, “The kinds of considerations relevant to the determination of which rights ‘pertain to’ Aboriginal persons are obviously not the same as those normally examined…[for non-indigenous people]. Where the ‘collective’ is a first nation that has survived years of paternalism and the suppression of its culture, the better view seems to be that under s. 25 the collective right should prevail undiminished.”

“Inherent differences”: In deciding Dickson’s case, the Yukon Court of Appeal’s Madam Justice Mary Newbury (left) ruled that the collective rights of native self-government trump the “liberal enlightenment concept of individual rights.” (Source of right photo: Yukon Courts)

In coming to her momentous conclusion, Newbury accepted the VGFN’s argument that there are “inherent differences between the liberal enlightenment concept of individual rights and the collective nature of Indigenous rights.” She also gave credence to the many Canadian legal academics who agreed it was acceptable for First Nations to sacrifice the civil liberties of their “citizens” in this way. Previously, academia championed activists such as Nelson Mandela and the Rev. Martin Luther King, Jr. in fighting for the principle of race-blind laws applied equally to all individuals in their respective countries. Today, Canada’s liberal voices argue against efforts to do the same here.

A Sword and Shield to Create a Charter-Free Zone

“Given this disappointing result, Dickson sought and was granted leave to appeal to the Supreme Court of Canada. Her case will be heard in February 2023. Among the ten approved intervenors,  the Canadian Constitution Foundation (CCF) intends to speak on her behalf. “We will argue that the purpose of section 25, when read in context, is to ensure the Charter is not used as a sword by non-Indigenous peoples to deny the special status of, or a benefit for, Indigenous peoples,” CCF litigation director Christine Van Geyn said in a press release. “Its purpose is not to shield all Indigenous government conduct from Charter scrutiny.”

All the other intervenors are aboriginal groups, including the Teslin Tlinglit Council, Council of Yukon First Nations and Carcross/Tagish First Nation, and most will be speaking on behalf of the VGFN, which has launched a cross-appeal to also overturn Newbury’s decision.

At issue for this assembled Indigenous lobby is that, unlike the lower court, Yukon’s Court of Appeal ruled that the residency requirement actually does violate Dickson’s Charter rights, but only theoretically. Newbury declared that Dickson’s “inability to serve on the Council without moving to…[Old Crow] is an incursion on her equality rights. For those brought up in the Western democratic tradition, this incursion is indeed a serious one.” Despite such a threat, however, Newbury agreed with the lower court that s. 25 acts as a shield against all efforts to defend such rights. It is therefore impossible to enforce Dickson’s right to stand for office with the VGFN, even if it is a serious matter.

Not supposed to be a shield: The Canadian Constitution Foundation will argue at Dickson’s Supreme Court hearing in February that s. 25 was never intended to deny Indigenous people their individual Charter rights. Pictured is Christine Van Geyn, the Foundation’s litigation director. (Source of photo: Facebook/Canadian Constitution Foundation)

It seems a distinction without a difference; it does Dickson no good to discover she has a right if she cannot act upon it. “Growing up, I just took it for granted that I was part of the Canadian Charter,” Dickson recalls. “Nobody ever told me it didn’t apply.” This sense of inequality is what has mobilized her to action throughout the saga, culminating in her upcoming Supreme Court appeal. “I felt I could not just leave it with Section 25 being used as a shield against our own people. If I did, I would always regret it.” Dickson adds that her actions should not be seen as an effort to diminish the concept of self-government. Rather, she says, “it strengthens self-government by adding clarity. And it acknowledges our individual right to challenge.”

But the mere possibility that Charter rights could have a presence in the VGFN has also mobilized the aboriginal lobby into action. They want to convince the Supreme Court that s. 25 means the Charter is always and everywhere off-limits, eliminating any legal flights of fancy that it could even be theoretically in effect on reserves. The native intervenors, in other words, want the VGFN declared a Charter-free zone. Full stop.

Charter-free zones: In its cross-appeal to the Dickson decision, the VGFN wants the Supreme Court to rule once and for all that individual Charter rights have no standing on Canada’s Indian reserves. (Source of photo: Haley Ritchie/Yukon News)

As it stands, the Dickson decision is a troubling rejection of the principles upon which Canada was founded and which serve as the foundation for our continuing liberal democracy. If the Supreme Court does not categorically reject the lower court decisions, Indigenous Canadians will be deprived of their birthright civil liberties on their “nations” or reserves and will be further set apart from the rest of the country.

Encouragingly, native self-government agreements signed subsequent to the VGFN deal, such as the 2000 Nisga’a Final Agreement, specifically declare Charter rights to be in effect on native lands. This further highlights the error in Old Crow that the Supreme Court now has the opportunity to correct. As Dickson puts it, “I am a proud Canadian and I am proud to be a First Nations person.” She shouldn’t have to pick between the two.

The Big Problem of Small Democracies

Beyond the obvious unfairness of denying Dickson her full rights as a Canadian, it is also necessary to grapple with how the interests of Indigenous Canadians are to be protected if the decision is not overturned. In its ruling last year, the Yukon Court of Appeal declared that the intent of s. 25 was to “allow Aboriginal governments to protect, preserve and promote the identity of their citizens through unique institutions, norms and government practices.” If so, where can we find these unique Indigenous judicial bodies?

The Yukon Court of Appeal considered evidence from Dave Joe, the VGFN’s lead negotiator for the 1993 self-government agreement, that the VGFN constitution was intended to replace the Charter, since the Charter “was not developed with any consideration of Vuntut Gwitchin legal and political traditions or governance.” Yet this concept of the VGFN’s “legal traditions” seems more mythological than substantive.

The 1993 deal called for the establishment of a “Vuntut Gwitchin Court…[which would] have power to hear and decide all cases of alleged violation of Vuntut Gwitchin Laws.” Thirty years later, no such court exists. Rather, the current case about the legality of local band council rules was litigated in a Yukon courtroom by lawyers and judges using traditional British-based procedural and substantive laws. Indeed, it seems a stretch to imagine there could ever be a unique court system for a community of 560 people, of whom only 260 live in Old Crow.

“What realistic chance do band members have against chief and council who control their money and resources?” asks Indigenous scholar Rob Louie, explaining how the reserve system is stacked against members who attempt to fight for their individual rights.

And even if one was created, it would be unlikely to act as a bulwark in defence of Dickson’s individual rights. As Indigenous writer Rob Louie pointed out in a recent Lawyer’s Daily article, the odds are heavily stacked against any band member trying to take on the reserve establishment. “A First Nation election appeal typically looks like this,” explained Louie, “An electoral appeal body is comprised of a lawyer hand-picked by the band manager, or a few band staff and a hand-picked lawyer; the First Nation is named as a nominal party and represented in the electoral appeal by another hand-picked lawyer; the incumbent chief and council pay their lawyers out of band funds; and the incumbents that ran in the election are at the centre of the election appeal.”

It is very difficult to imagine the individual rights of any particular resident being properly defended in a system prone to such self-dealing and reinforced by familial ties. “What realistic chance do band members have against chief and council who control their money and resources? For many band members in Canada, the battle is not just with the Crown, it is also with their own leadership,” concluded Louie. “Perhaps reconciliation within Indigenous communities needs to take place before reconciliation can happen with Canada.”

A similar theme runs through Dickson’s personal experiences. “Many people are upset with me, not just in my community, but Yukon-wide. They say that if someone is elected chief, you have to support them,” she says. “I feel like the Black Sheep – all eyes are on me.” Dickson says she has heard from lots of supporters as well, but they’re not as easy to spot. “I have been receiving a lot of support from regular people at other First Nations,” she says, “But it is not always public because it is tough to challenge a First Nations government. We often talk about the need for an Ombudsman or another neutral process that would allow people to bring up grievances. We need a stronger voice so that First Nations governments have to look at their policies to make sure all their citizens are treated equally and fairly.”

The problem of small democracies: Indigenous policy expert Gordon Gibson (top left) and Aboriginal writer Calvin Helin (top right) have both argued that many Indigenous reserves suffer from too much power wielded by largely unaccountable chiefs and councils. (Source of bottom photo: CTV News)

Despite the popular Romantic image of Indigenous governance as a dreamy exercise in pastoral collectivism, life on the reserve is more often akin to the crony capitalism familiar in other less-advantaged parts of the world. The predominant reason has nothing to do with race or culture. It is the eternal problem of “small democracies.” As well-known Indigenous affairs expert and former British Columbia Liberal leader Gordon Gibson has written, “It is a sad truth that everywhere in the world, small governments with large powers and little accountability tend to become corrupt – not always, but often. The reserve system is the centre of this…Indians are human beings just like the rest of us. But most are burdened by the system.”

Aboriginal writer Calvin Helin’s book Dances with Dependency: Out of Poverty through Self-Reliance echoes Gibson’s observation. Helin calls local band chiefs “colonizers of their own people” and life on most reserves “a situation not unlike many banana republics.” Dickson’s individual right to be free from discrimination cannot be protected by the “unique legal traditions” of a tiny remote northern outpost comprising a couple of hundred residents. Like anywhere else in Canada, a proper defence of her rights requires the institutional power of a large and depersonalized legal system.

As history and human nature have taught us repeatedly, traditional liberal values and a cosmopolitan ethos focussed on the sanctity of the individual over any kind of group ethos are the best guarantees of a life free from unjust rule or authoritarian diktat. “The individual human being is the ultimate unit of all law…[and his or her] well-being is the ultimate object of all law,” wrote Hersch Lauterpacht (as quoted in Philippe Sand’s 2017 book East West Street), a British professor of international law whose work on crimes against humanity laid the foundation for the 1946 Nuremburg Trials against officials of Germany’s Nazi regime.

We should heed Lauterpacht’s stirring advice. The prospect of quasi-apartheid laws that distinguish between the race of the individual in order to advance retrograde collective goals is not only socially and economically divisive, it should be morally toxic to any thoughtful Canadian. Amidst endless talk of reconciliation, the most obvious benefit Canadians can offer their Indigenous compatriots is full access to the entire suite of legal protections the rest of us take for granted every day.

“The ultimate unit of all law”: Noted British scholar Hersch Lauterpacht stressed that the individual must be the focus of any truly just legal system; Canada’s Supreme Court will have a chance to defend this principle with its upcoming Dickson decision. (Source of photo: University of Cambridge)

With files from Peter Shawn Taylor.

Main image created for C2C Journal.

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