University of New Brunswick Law Journal Revue de Droit de l’Université du Nouveau-Brunswick Vol. 64/Tome 64 2013
Editor-in-Chief / Rédacteur en chef Philip C. Whalen
Associate Editors / Rédacteurs adjoints Andrea MacNevin Jack Masterman Andrew Moss
Matthew Moulton 2013 CanLIIDocs 114 Jennie Pick
Honourary Editor-in-Chief / Rédacteur en chef honoraire The Hon. G.V. La Forest
Business Manager / Administratrice Daniel Boyle
Faculty Advisors Prof. Anne Warner La Forest Prof. Hilary Young
University of New Brunswick Law Journal
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2013 CanLIIDocs 114 CONTENTS/SOMMAIRE
FORUM TOPIC: THE PROMISE OF EQUALITY - ARE WE THERE YET?
EDITOR’S PREFACE ix Philip C. Whalen
THIRTY-FOURTH VISCOUNT BENNETT MEMORIAL LECTURE
THE PERSONS CASE AND THE LIVING TREE THEORY OF 1 CONSTITUTIONAL INTERPRETATION Justice Robert J. Sharpe 2013 CanLIIDocs 114
FORUM TOPIC ARTICLES
THE CONTINUAL REINVENTION OF SECTION 15 OF THE CHARTER 19 Jennifer Koshan Jonnette Watson Hamilton
THE MARRIAGE OF HUMAN RIGHTS CODES AND SECTION 15 OF 54 THE CHARTER IN PURSUIT OF EQUALITY: A CASE FOR GREATER SEPARATION IN BOTH THEORY PRACTICE A. Wayne MacKay, CM, QC
EXPLORING INEQUALITIES UNDER THE INDIAN ACT 103 Cheryl Simon Judy Clark
STILL COLONIZING AFTER ALL THESE YEARS 123 Mary Eberts
THE DEVELOPMENT OF AN ABORIGINAL CRIMINAL JUSTICE 160 SYSTEM: THE CASE OF ELSIPOGTOG Donald Clairmont
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MOVING BEYOND THE PROSTITUTION REFERENCE: 187 BEDFORD V CANADA Maria Powell
NO SHADOWS IN THE FOG: PERSONAL REFLECTIONS ON THE 208 WORK TO MAKE THE PROMISE OF EQUALITY A LIVED REALITY Melina Buckley
BARRIERS TO WOMEN’S POLITICAL PARTICIPATION 218 IN CANADA Melanee Thomas
NEO-LIBERAL CRISIS/SOCIAL REPRODUCTION/GENDER 234 IMPLICATIONS Marjorie Griffin Cohen 2013 CanLIIDocs 114
EQUAL PARENTS, EQUAL CHILDREN: REFORMING CANADA’S 253 PARENTAGE LAWS TO RECOGNIZE THE COMPLETENESS OF WOMEN-LED FAMILIES Fiona Kelly
COMMENTAIRE D’ARRÊT – GIROUARD C DRUET – PEUT-ON 283 ACHETER UN CONDOMINIUM PAR COURRIEL? Andréa Ouellet
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Editor’s Preface
UNBLJ Forum:
The Promise of Equality -
Are We There Yet?
Each year the University of New Brunswick Law Journal publishes the written version of UNB’s Viscount Bennett Memorial Lecture. This public lecture, usually given during the Fall semester of the academic year, affords students, faculty, and guests an opportunity to hear from a leading figure in the legal community. The Forum Topic is typically selected to thematically complement the Lecture’s topic, which will hopefully generate submission interest from a diverse range of authors. 2013 CanLIIDocs 114 While a substantial portion of the Journal is devoted to publishing submissions accepted related to the Forum discussion, the UNB Law Journal also seeks to publish articles of a general nature too, as well as any relevant case-comments. This year we are pleased to include one case-comment by Professor Andréa Ouellet, “Commentaire d’arrêt – Girouard c Druet – Peut-on Acheter un Condominium par Courriel?”
On November 7, 2012, Justice Robert J. Sharpe of the Ontario Court of Appeal delivered UNB’s 34th Viscount Bennett Memorial Lecture. We are honoured to reproduce his talk in this year’s Volume.
Justice Sharpe’s paper, entitled “The Persons Case and the Living Tree Theory of Constitutional Interpretation”, paints a contextualized picture of some of the most influential people and events surrounding the famous decision, Edwards v Attorney General of Canada. The “Persons Case”, as it has come to be known, was monumental in Canada’s legal and political history. The Judicial Committee of the Privy Council’s decision that women are indeed eligible to be appointed to the Canadian Senate has been praised for both its progressive view of equality as well as its exemplary interpretative methodology for constitutional theory.
Justice Sharpe’s paper persuasively reminds us that no matter how impractical conceptions of constitutional theory and equality appear, at times, depending on one’s view of legal theory, practically useful and equitable consequences can result, sometimes even dramatically. However, Justice Sharpe’s ! ix
paper also displays some of the ironies at play behind the Persons Case. Despite achieving noble and equitable results by challenging traditional interpretations of the Constitution, some of the women advocating most vigorously on behalf of women’s equality held many controversial views. Such views, however controversial, must be recognized in order to fully appreciate the historical, biographical, political, and legal context surrounding the players involved in this most famous case.
This year’s Forum Topic was adopted to raise questions about equality anew, and to further explore some of the themes and issues raised in Justice Sharpe’s paper. Though we did not request specific responses to his article, the authors published in this Volume discuss topics related to equality from various perspectives, and identify areas where further advocacy is required. Some of these include: equality challenges facing First-Nations Peoples; challenges surrounding the recent Bedford v Canada case; economic inequalities based on gender; as well as perceived barriers to women participating in politics. 2013 CanLIIDocs 114
The editors of this year’s UNB Law Journal would like to express our sincere gratitude to Justice Sharpe for joining us in New Brunswick and speaking to us about the Persons Case. We would also like to express thanks to each contributing author who has submitted an article to our Journal this year.
Thank you to all of our student-volunteers who helped in checking footnotes, tracking down sources, and finalizing this year’s Volume. Your help is truly appreciated and without it this project could not have been completed.
We hope that Volume 64 of the UNB Law Journal will provide a valuable contribution to ongoing academic debates and stimulate further discussion. It has been a memorable experience preparing this year’s Journal. On behalf of the Journal staff, I hope that you will enjoy this year’s Volume as much as we enjoyed working on it. However, though we enjoyed an overwhelming response to this Volume’s Forum Topic, one thing is made clear in the articles that follow: there remain many people within our society that cannot answer our Forum question affirmatively. “The Promise of Equality – Are We There Yet?” Well, are we?
Philip C. Whalen Editor-in-Chief, Volume 64
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THE PERSONS CASE AND THE LIVING TREE THEORY OF CONSTITUTIONAL INTERPRETATION
The Honourable Justice Robert J. Sharpe*
On 18 October 1929, the Judicial Committee of the Privy Council ruled that women were legally eligible for appointment to the Senate of Canada.1 The judgment was written by Lord Sankey, the reform-minded Lord Chancellor appointed by Labour Prime Minister Ramsay MacDonald. Lord Sankey departed from a long line of cases and proclaimed an organic and progressive theory of constitutional interpretation. The British North America Act, 18672 had, according to Lord Sankey, planted in Canada “a living tree capable of growth and expansion within its natural limits.”3 This allowed him to rule that “the exclusion of women from all public offices is a 2013 CanLIIDocs 114 relic of days more barbarous than ours.”4
The Privy Council’s decision, popularly known in Canada as the “Person’s Case”, was a bold legal step that reverberates to this day as a proclamation of equality and universal personhood, and as a guiding principle of constitutional interpretation.
My lecture, drawn from a book I co-authored,5 is a case study based upon archival other contemporary sources that attempts to put the Persons Case in its historical context. Who were the people behind the case? What were the legal, social and political forces that produced this remarkable decision? I hope that the story I am about to tell you will provide some insight into the human and contextual factors that shape and influence the legal and interpretive process.
* Justice Sharpe has been a judge on the Ontario Court of Appeal since 1999. On November 7, 2012 he gave the 34th Viscount Bennett Lecture at the University of New Brunswick Faculty of Law. This paper is an adapted version of his lecture. 1 Edwards v Attorney General of Canada, [1930] AC 128 [Edwards]. 2 30 & 31 Vict, c 3, since 1982, The Constitution Act, 1867. 3 Edwards, supra note 1 at 135. 4 Ibid at 128. 5 Robert Sharpe & Patricia McMahon, The Persons Case: The Origins and Legacy of the Fight for Legal Personhood (Toronto: Osgoode Society and University of Toronto Press, 2007).
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ARE WOMEN PERSONS?
Let me start by explaining the precise legal issue put to the Privy Council in the Persons Case. The British North America Act, 1867, a statute enacted by the Westminster Parliament that served as Canada’s Constitution until 1982, provides for an appointed upper house, the Senate. The Act states that on the advice of the Canadian government, the Governor-General of Canada, as the Queen’s representative, can summon “qualified Persons to the Senate," and that “every Person so summoned shall become and be a Member of the Senate and a Senator."6 Do the words “qualified persons” include women? Today the answer is obviously “yes” but it was not so straightforward in 1929. There is no doubt that when the British North America Act was written in 1867, the drafters did not imagine women being considered “qualified Persons” capable of being appointed to the Senate. By 1929, Canadian women had entered the work force. They could vote and sit in the House of Commons but eligibility for the Senate remained cast in the language of 1867. The English courts had consistently interpreted similar statutory qualifications for public 7 office as excluding women. The conventional legal thinking of the day was that the 2013 CanLIIDocs 114 words of the constitution had to bear the same meaning in 1929 as they had borne in 1867, and that it would take a constitutional amendment to make possible a female Senator.
EMILY MURPHY’S SENATE CAMPAIGN
The Privy Council’s decision in the Persons Case was the result of the untiring efforts of Emily Murphy, a well-published author and social crusader,8 and the first woman to be appointed as a magistrate in the British Empire when she was named to the newly created Women’s Court in Edmonton Alberta in 1916.9 Murphy was not legally trained and she did not conduct herself either in or out of court as a traditional judge. She saw her role as being that of a social worker and she never surrendered her mantle as a social reformer. Courts, she proclaimed, should be “casualty clearing stations where ‘magistrate-physicians’ carefully diagnosed the offenders' problems and applied the proper remedy."10 Despite her judicial office, Murphy continued to speak out on social issues affecting women and children and she continued to advocate legal reforms. She attracted national attention with her tirade against the evil of drugs in a book entitled The Black Candle, arguing that illicit drug use posed
6 Supra note 2 at s 24. 7 See infra, under the heading “The Department of Justice Opinion and the Persons Cases”. 8 Byrne Hope Sanders, Emily Murphy: Crusader (Toronto: Macmillan, 1945). 9 "Woman Magistrate in Edmonton", Edmonton Journal (14 June 1916). 10 Emily Murphy, "A Straight Talk on Courts", Maclean’s (1 October 1920).
[2013] THE PERSONS CASE 3
a dire threat to the moral health of the nation.11 Clearly, Murphy’s ambitions could not be satisfied by the lowly position of a Police Magistrate and, very shortly after she was appointed to the bench, she set about to get herself appointed to the Canadian Senate.
Murphy’s campaign was widely supported by women’s groups and petitions from around the country flowed to the Prime Minister’s office. Her friends found it difficult to understand why she was so determined to gain admission to a body frequently ridiculed, as one newspaper put it, as a “superfluous fossil institution,"12 but they supported her out of feminist solidarity.
THE DEPARTMENT OF JUSTICE OPINION AND THE PERSONS CASES
Murphy quickly found that her quest for a Senate appointment faced a formidable
hurdle. In response to her lobbying efforts, the Canadian Department of Justice 2013 CanLIIDocs 114 developed a detailed legal opinion to the effect that women were not qualified persons for appointment to the Senate.13 According to the government’s law officers, nothing short of a constitutional amendment was needed if Murphy was to fulfill her Senate dream.
That opinion was well supported by authority. In a series of decisions knows as “the Persons cases,” the English courts had steadfastly denied that a woman could vote, hold public office, or gain admission to the universities or the professions. The leading decision, Chorlton v Lings,14 decided in 1868 dealt with the Representation of the People Act, 1867, which was debated and enacted the same year as the BNA Act. This legislation extended the vote to “every man” of full age who was a householder and not “subject to any legal incapacity."15 Relying on the Interpretation Act, 1850 that provided that “words importing the Masculine Gender shall be taken to include Females… unless the contrary … is expressly provided,”16
11 (Toronto: Thomas Allen, 1922). Cited in "The Grave Drug Menace", Maclean’s (15 February 1920); "The Underground System", Maclean’s (15 March 1920); "Fighting the Drug Menace", Maclean’s (15 April 1920); "The Doctor – and the Drug", Maclean’s (15 May 1920); "What Must be Done", Maclean’s (15 June 1920). 12 Grain Growers’ Guide (1921), Edmonton, City of Edmonton Archives (clipping in Emily Murphy Collection, MS2, Scrapbook 4). 13 Memorandum from WSE (2 March 1921), Ottawa, Archives Canada (Department of Justice File, RG 13, vol 2524, vol 2525, File C-1004). 14 Chorlton v Lings (1868), LR 4 CP 374 [Chorlton]. 15 30 & 31 Vict c 102, s 3. 16 13–14 Vict c 21, s 4.
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5000 female voters from Manchester insisted that they were entitled to vote. Their case was argued by John Duke Coleridge, QC, an eminent barrister and prominent Liberal member of the House of Commons, later Chief Justice, and Richard Pankhurst, a radical lawyer, who later married Emmeline Goulden, the leading figure in the suffrage movement. Coleridge and Pankhurst contended that the law extending the vote to “every man” had to be read in light of the Interpretation Act stipulation that masculine words presumptively included females and that women were every bit as entitled as men to vote. The argument was summarily rejected. Chief Justice Bovill conceded that the word “men” ordinarily included women by virtue of the Interpretation Act but that the provision did not apply where the result was “ridiculous.”17 So far as the Chief Justice was concerned, enfranchising women clearly fell into the category of ridiculous.
There were many other “Persons cases” that followed the same line of reasoning. A 1908 decision of the House of Lords held that a statute that gave a vote
to “all persons” who had graduated from certain universities did not give the vote to 2013 CanLIIDocs 114 female graduates.18 The tone of Lord Chancellor Loreburn’s judgment is revealing:
It is incomprehensible to me that any one acquainted with our laws or the methods by which they are ascertained can think, if any one does think, that there is room for argument on such a point.19
Parliament appeared to resolve the matter by enacting the Sex Disqualification (Removal) Act, 1919 providing that “[a] person shall not be disqualified by sex or marriage from the exercise of any public function.”20 But when Margaret Haig Thomas inherited her father’s peerage and sought admission to the House of Lords as Viscountess Rhonnda, the door was slammed by Lord Birkenhead’s ruling. The words used by Parliament, he stated, were so “vague and general” that “when dealing with a constitutional question of the utmost gravity” they could not be interpreted as “affecting a revolutionary change in the privileges of this House,” and that Parliament “cannot be taken to have employed such loose and ambiguous words to carry out so momentous a revolution in the constitution of this House.”21
17 Chorlton, supra note 14 at 386. 18 Nairn v the University of St. Andrews, [1909] AC 147. 19 Ibid at 160. 20 UK 9 & 10 GeoV, c 71, s 1. 21 Viscountess Rhonnda’s Claim (Committee for Privileges), [1922] AC 339 at 365, 375.
[2013] THE PERSONS CASE 5
Against this tide of authority stood one bold decision from Alberta that had rejected a challenge to the appointment of women as magistrates.22 As Murphy later recorded: “[O]n my initial appearance as a Police Magistrate…my jurisdiction was sharply challenged by counsel for the defence… It was then argued in almost every case upon which I sat that women were eligible to hold office.”23
In a ruling that foreshadowed the Persons Case, a strong and independent- minded Alberta Judge, Charles Allan Stuart, affirmed the legality of appointing female magistrates. Stuart proclaimed, “the Courts of this province are not in every case to be held strictly bound by the decisions of the English courts” and insisted that he was “at liberty to take cognizance of the different conditions… and the general attitude of the community”24 to hold women eligible for public office.
Murphy regarded the challenge to her right to sit on the bench as an affront
to her personal dignity. It was an insult that reverberated in her mind for years to 2013 CanLIIDocs 114 come and, combined with Justice Stuart’s progressive decision, fuelled her determination to fight the Persons case to the end.
LEGAL OPINIONS
To meet the road block created by the Department of Justice opinion, Murphy sought opinions of her own. First, she prevailed upon her brother William Ferguson, an Ontario Judge who could not give her a formal opinion but who obliged under the guise of a “dear sister” letter clearly intended for wider circulation.25 To bolster brother William’s encouraging advice, Murphy retained a distinguished Quebec lawyer, Eugene Lafleur, who frequently argued constitutional cases for the federal government. Lafleur was known to be sympathetic to women’s causes but he disappointed Murphy. He wrote that while the word “persons” was gender neutral and certainly could include women, the problem was the attitude of the judges. He advised that the Alberta judgment affirming Murphy’s appointment as a magistrate simply could not withstand scrutiny in the face of the overwhelming body of English cases to the contrary.26
22 R v Cyr, [1917] 3 WWR 849 [Cyr]. The case dealt specifically with Alice Jamieson who had been appointed as a magistrate in Calgary a few months after Murphy’s appointment. 23 Letter from Emily Murphy to JF Hynes (20 December 1932) in Emily Ferguson Murphy Papers, University of Waterloo, Doris Lewis Rare Book Room (WA 13, File 5). 24 Cyr, supra note 22 at 857. 25 Letter from WN Ferguson to Emily Murphy (18 March 1921), Ottawa, Archives Canada (Arthur Meighen Papers, Series 2, MG 26, 1, vol 48, File 192). 26 E Lafleur, "Opinion: Appointment of Women to the Senate of Canada" (9 December 1921), Waterloo (Murphy Papers, File 16).
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LOBBYING MACKENZIE KING
Murphy was undeterred by this legal set-back and decided to turn to politicking. She began a shameless lobbying campaign directed at Canada’s Prime Minister Mackenzie King. King was first elected in 1921. He would be Canada’s longest- serving Prime Minister and he was an extraordinarily crafty politician. He played along with Murphy, never saying no but realizing all the while that his political situation made it virtually impossible to appoint her to the Senate. In 1921, King led a minority government and his coalition partner, a radical populist party from the West, advocated Senate abolition, not reform. By the time King secured a majority in 1926, the federal government was deadlocked with the provinces on the issue of an amending formula for the British North America Act. Only the Westminster Parliament could amend Canada’s 1867 constitution but in the 1920s, Canadian politicians could not agree among themselves how and when to ask Westminster for an amendment.
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Neither Senate reform nor constitutional amendment were in the political cards. Another factor, unknown to Murphy, was King’s own sexist assessment of her. King, a life-long bachelor who regularly conducted séances to consult his deceased mother on important issues of state, also kept a detailed and often revealing diary. Here is what he wrote in his diary about Emily Murphy after agreeing to her persistent requests for a personal meeting: he found her “very friendly and pleasant to talk with” and a “genuine person,” but added that she was “a little too masculine, & possibly a little too sensational. I don’t care for aggressive women & she possesses a little aggressiveness ….”27
GOING TO COURT
As the months and years passed with vague assurances from King that he would do what he could, it became apparent to Murphy that she had to turn to the courts. There she faced not only the legal opinions that her case was doomed to fail but also significant procedural and practical hurdles. Murphy had no standing and no recognizable legal claim to advance. As the Department of Justice opinion that blocked her was merely advice given by the government, there was no way for her to attack it in court. Moreover, she lacked the means to fund a costly legal challenge.
But again, brother William Ferguson, the Ontario judge, came to her rescue. He advised Murphy to petition the government to direct a reference on the point to
27 Diary of, William Lyon Mackenzie King (26 October 1922), online: Archives Canada
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the Supreme Court.28 If the government agreed, the standing issue disappeared as did the matter of cost, as the government would fund the case.
References are a frequently used and distinctively Canadian device to bring contentious constitutional issues before the courts expeditiously.29 The government simply states the question of constitutionality and asks the Supreme Court to decide. Murphy had no right to demand a reference but fortunately for her, the wily Prime Minister King was very fond of the reference power, especially when it allowed him to get a contentious issue off his desk. Emily Murphy’s Senate campaign had become an annoyance and when she asked for a reference, King happily handed the ball over to the Supreme Court of Canada.
THE FAMOUS FIVE
Murphy wanted to distance her request for a reference from her own ambitions and 2013 CanLIIDocs 114 to make the case appear to be a request from the women’s movement. She enlisted four prominent women from her native Alberta to sign the petition. Henrietta Edwards had been a stalwart member of the women’s movement for over fifty years. Although she was not a lawyer, she wrote books on the legal rights of women and lobbied for their improvement.30 Nellie McClung was well-known across Canada as a writer and as a passionate advocate for temperance and women’s suffrage.31 Louise McKinney, a leading figure in the temperance movement, was the first woman elected to the Alberta legislature in 1917, the year after Alberta women got the vote.32 Irene Parlby, a founder of the United Farm Women’s Association, was elected to the Alberta legislature in 1921 and was serving as a minister without portfolio in the cabinet of the United Farmers Association government when the Persons case was argued.33
28 Letter from Emily Murphy to JP Hynes (20 December 1932), Waterloo (Murphy Papers, File 5). 29 See BL Strayer, The Canadian Constitution and the Courts: The Function and Scope of Judicial Review, 3d ed (Toronto: Butterworths, 1988) at 73-86; R Sharpe & K Roach, The Charter of Rights and Freedoms, 3d ed (Toronto: Irwin Law, 2005) at 107-10. 30 Henrietta Edwards, Legal Status of Canadian Women (Calgary: National Council of Women of Canada, 1908); Legal Status of Canadian of Women in Alberta (Edmonton: Attorney General of Alberta, 1921). 31 See Nellie McClung, In Times Like These (Toronto: University of Toronto Press, 1972). 32 See Nancy M Sheehan, "Achieving Personhood: Louise McKinney and the WCTU in Alberta, 1905- 1930" in Women as Persons, Proceedings of the Third Annual Meeting of the Canadian Research Institute for the Advancement of Women,Edmonton, November 9-11, 1979 (Toronto: Resources for Feminist Research, 1980). 33 Barbara Villy Cormack, Perennials and Politics (Sherwood Park, AB: Professional Print, 1968).
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The five women who signed the petition – after their victory in the Persons case known to Canadians by the heroic title “The Famous Five” – were determined social reformers who had fought for suffrage and for laws to improve the lives of women under Canadian law. Yet by 1928, they had lost touch with the aspirations of the next generation of women and their views diverged sharply from those of modern feminists. They espoused the distinctive role of women as mothers and wives. Maternal feminists34 believed that the application of female, maternal virtue to issues of social welfare would improve Canadian society and the lot of the disadvantaged, especially impoverished women and children. They advocated the legal equality of men and women but they did not seek to obliterate traditional gender roles. All five women were also strong Christians, adherents of the social gospel movement, and believed in societal improvement through the application of Christian morality in public life. Temperance and the prohibition of alcohol were central to the maternal feminist agenda. Alcohol was blamed for poisoning private, domestic life and was thought to have a corrupting influence on politics. Maternal feminists, in short were only distantly related to modern feminists. They were overwhelmingly middle-class,
white, heterosexual, Anglo-Saxon Christians with an elitist sense of their own virtue 2013 CanLIIDocs 114 and moral superiority. They viewed women as “naturally the guardians of the race,”35 and that race was decidedly white, British, and Protestant. Maternal feminists were progressive but they shared the racist and xenophobic attitudes that prevailed in the society in which they lived. Worse still to the modern eye, Murphy and her group promoted eugenics as a means to improve public health including laws that permitted the sterilization of “mental defectives.”36
These views shock the modern reader and quite rightly attract fire from today’s feminists, who on the one hand revere the Famous Five for the achievement of the Persons Case, yet struggle “to transcend” what they regard as the “insensitivity and arrogance” and “debilitating moral blind spots” of their predecessors.37
34 J McLaren, “Maternal Feminism in Action – Emily Murphy, Police Magistrate” (1988) 8 Windsor Yearbook of Access to Justice 234; A Acorn, “Snap-shots Then and Now: Feminism and Law in Alberta” (1996) 35 Alta LR 140; Linda Kealy, ed, A Not Unreasonable Claim: Women and Reform in Canada 1880’s–1920’s (Toronto: The Women’s Press, 1979) at 7; Veronica Strong-Boag, introduction to Nellie McClung, In Times Like These (Toronto: University of Toronto Press, 1972); Marlene LeGates, In Their Time: A History of Feminism in Western Society (London: Routledge, 2001) at 243; Sarah Carter, Lesley Erickson, Patricia Roome, and Char Smith, eds, Unsettled Pasts – Reconceiving the West Through Women’s History (Calgary: University of Calgary Press, 2005). 35 McClung, supra note 31 at 22. 36 Sterilization Act, SA 1928, c 37. See Timothy Christian, The Mentally Ill and Human Rights in Alberta: A Study of the Alberta Sexual Sterilization Act (Edmonton: Alberta Law Foundation, 1974). 37 Acorn, supra note 33 at 141-42; Mariana Valverde, “When the Mother of the Race is Free: Race, Reproduction, and Sexuality in First Wave Feminism” in F Iacovetta and M Valderde, eds, Gender Conflicts: New Essays in Women’s History (Toronto: University of Toronto Press, 1992) at ch 1.
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AT THE SUPREME COURT OF CANADA
The Supreme Court heard the case in a single day on 14 March 1928, the day Emily Murphy turned sixty years old. Less than six weeks later the court rendered its decision. The lead judgment was delivered by Chief Justice Frank Anglin, who believed in “scientific jurisprudence,” a version of legal formalism that saw the law in terms of fixed, immutable rules akin to the laws of science.38 Anglin remained true to his jurisprudential views when he sat down to write his judgment in the Persons Case. He insisted that he was “in no wise concerned with the desirability or the undesirability of the presence of women in the Senate, nor with any political aspect of the question submitted”.39 Adhering strictly to what he perceived to be the letter of the constitution and the English precedents, Anglin held that the words “qualified persons” had to “bear to-day the same construction which the courts would, if then required to pass upon them, have given to them when they were first enacted.”40 Anglin’s starting point, freezing the meaning of the constitution in terms of the prevailing norms of 1867, determined the outcome. Anglin was simply not prepared
to question the thinking of another age about the role of women in public life as that 2013 CanLIIDocs 114 would bring about a “striking constitutional departure from the common law.”41
No one can challenge the ideal that our system of law should be as free as possible from the personal beliefs, biases, and prejudices of judges. The difficulty is that the law does not operate in a vacuum. Legal texts and legal decision-making are imbued with moral, philosophical, and social values. To pretend that the law is a purely objective, morally neutral phenomenon ignores important questions of value that drive and determine decisions. Judges cannot decide cases entirely on the basis of neutral, objective principles, and the pretence that they do conceals a significant component of judicial reasoning.
The law’s treatment of women provides a classic example.42 The common law denied women property rights and the rights to vote and to hold public office. The denial of equal treatment to women was the product of social and political forces. It was a matter of moral and political choice. There is nothing inherent or
38 Frank Anglin, “Some Differences Between the Law of Quebec and the Law as Administered in the other Provinces of Canada” (1923) 1:33 Can Bar Rev 43; Ian Bushnell, The Captive Court: A Study of the Supreme Court of Canada (Montreal: McGill-Queen’s University Press, 1992) at 56. 39 Reference Re the Meaning of the Word ‘Persons’ in Section 24 of the British North America Act, [1928] SCR 276 at 281. 40 Ibid at 282. 41 Ibid at 285. 42 See Mary Jane Mossman, “Feminism and Legal Method: The Difference It Makes” (1986) 3:30 Aust J of Law and Soc where she discusses this point in relation to the Persons case.
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morally neutral about the subjection of women to inferior status, yet the formalist tradition of law, to which Chief Justice Anglin and his colleagues were so firmly wedded, precluded scrutiny of those values and choices long after they had ceased to reflect contemporary reality.
There is, to be sure, a legitimate debate on the extent to which judges should shape or change the law to meet changing social problems, but to pretend that judges never change or “make” the law is untenable. The common law is constantly shaped and moulded by the courts to suit the changing needs of society. Even when courts interpret and apply statutes enacted by Parliament, judges cannot avoid taking into account the needs of contemporary society. As we have seen, by refusing to apply the gender neutral principle proclaimed by the Interpretation Act and other legislation, judges had thwarted the will of Parliament.
43 The Supreme Court’s decision was denounced in the media as absurd, yet 2013 CanLIIDocs 114 the judgment caused nary a ripple in Canada’s conservative legal community, which seemed to have regarded the result as inevitable.
ON TO THE JUDICIAL COMMITTEE THE PRIVY COUNCIL
Emily Murphy regarded the Supreme Court’s decision as a temporary set-back and she prepared for her next battle in the Judicial Committee of the Privy Council, which was, until 1949, Canada’s court of last resort. This august imperial institution, one of the last vestiges of Canada’s colonial past, served as the final judicial arbiter for legal disputes throughout the Empire and played a pivotal role in Canada’s constitutional evolution for more than eighty years. Scholars still debate the merits of the Judicial Committee’s influence on Canada’s constitutional arrangements.44 In the seemingly unending string of jurisdictional disputes between Canada’s Parliament and the provinces, the Judicial Committee favoured provincial autonomy at the expense of federal authority. Many Canadian lawyers, legal scholars and politicians found this pattern in the Privy Council’s jurisprudence disturbing,45 but as it was
43 “It looks as though Bumble [“the law is a Ass”] was right”, Ottawa Evening Journal (25 April 1928) quoted in David Ricardo Williams, Duff: A Life in the Law (Vancouver: University of British Columbia Press, 1984) at 146; “Women Liberals Become Indignant at Ottawa Ruling”, Toronto Globe (25 April 1928); “Federal Women to Ask Change in Act Wording”, Toronto Daily Star (24 April 1928); Agnes MacPhail, “Seek Way to Admit Women to Senate”, Toronto Daily Star (25 April 1928). 44 See John T Saywell, The Lawmakers: Judicial Power and the Shaping of Canadian Federalism (Toronto: University of Toronto Press, 2002). 45 Richard Risk, “The Scholars and the Constitution: P.O.G.G. and the Privy Council” (1996) 23 Man LJ 496, reprinted in Richard Risk, A History of Canadian Legal Thought: Collected Essays (Toronto: University of Toronto Press, 2006) at 233; HA Smith, “Residue of Power in Canada” (1926) 4 Can Bar Rev 432 was among the first outspoken critics in the 1920s to complain about the JCPC and its
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based on a rejection of the “intention” theory of interpretation, it significantly improved Murphy’s chances. The fathers of Confederation envisaged a powerful central government and a highly centralized federation where the provinces were viewed as little more than glorified municipalities. Led by Sankey’s friend and predecessor as Lord Chancellor, Viscount Richard Haldane, a Hegelian philosopher and leading proponent of provincial rights,46 the Privy Council refused to abide by the apparent intention of the framers of Canada’s 1867 constitution.
Canadian constitutional lawyers were so alarmed by Haldane’s approach that there were calls for abolition of appeals to the Privy Council.47 But the Privy Council’s refusal to be bound by the framers' intentions augured well for Emily Murphy if – and it was a very big if – that judicial philosophy had sufficient force to overtake the sexist attitudes revealed in the earlier Persons case decisions.
JOHN SANKEY: LORD CHANCELLOR 2013 CanLIIDocs 114
On that front, Emily Murphy’s timing was perfect. In the summer of 1929, Britain elected a Labour government and Prime Minister Ramsay Macdonald appointed John Sankey as Lord Chancellor. Emily Murphy’s case would be one of the first Sankey heard while presiding over the Judicial Committee of the Privy Council.
John Sankey was a man of humble origins. He did, however, have an Oxford education. He was called to the bar in 1892. He had a varied practice on the South Wales circuit, with a concentration on workers’ compensation cases. Sankey’s initial political instincts were conservative and he was elected to the London County Council under the Conservative banner in 1910. However, politics did not figure in his appointment to the High Court Bench in 1914 by Richard Haldane, Lord Chancellor in Asquith’s Liberal government. Sankey earned a reputation as a solid judge who performed his duties “without fuss or notoriety.”48
construction of the BNA Act. Others followed suit, but primarily in the 1930s. See Risk, A History of Canadian Legal Thought at 241. 46 Frederick Vaughan, Viscount Haldane: Wicked Stepfather of the Canadian Constitution (Toronto: Osgoode Society and University of Toronto Press, 2010). 47 Among those making these pleas were Chief Justice Anglin: James G Snell and Frederick Vaughan, The Supreme Court of Canada: History of the Institution (Toronto: University of Toronto Press, 1985) at 183. Newton Rowell, Murphy’s counsel on the Persons Case also sought to have the Privy Council removed as Canada’s court of last resort: Letter from Rowell to King, (11 March 1926) in M Prang, N.W. Rowell: Ontario Nationalist (Toronto: University of Toronto Press, 1975) at 441. 48 RFV Heuston, Lives of the Lord Chancellors, 1885–1940 (Oxford: Clarendon Press, 1964) at 525.
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In 1919, Prime Minister Lloyd George appointed Sankey as the chairman of a commission to investigate the coal-mining industry. The industry, plagued by low production, squalid working conditions, and bitter relations between the owners and the miners, was in crisis because of the social and political upheaval of the war, the rise of the Labour movement, and the demands of workers for a greater share of the nation’s wealth. This appointment transformed Sankey’s political outlook and changed the direction of his career. Two of his fellow commissioners were Sidney Webb, a social reformer and the founder of the Fabian Society, and R.H. Tawney, a prominent economic historian and an activist in the Workers’ Educational Association. The hearings were difficult and acrimonious. Sankey recorded in his diary that presiding over the hearings was “like sitting on a barrel of gunpowder,”49 to which he added: “It would be possible to say without exaggeration of the miners’ leaders that they were the stupidest men in England if we had not frequent occasion to meet the owners.”50
Sankey’s work on the commission had a profound and lasting effect upon 2013 CanLIIDocs 114 his outlook. His “sense of justice was outraged by the descriptions of the living conditions of the miners; and his sense of decency was shocked by the cynical and selfish attitude of the owners”.51 To the shock of his conservative judicial colleagues, Sankey recommended nationalization of the coal mine industry. The government did not act but Sankey was a changed man, drifting steadily away from his innate conservatism towards an increasingly pro-Labour outlook. His social and intellectual circle now included many who were sympathetic to the cause of Labour. Fabian socialists Sydney and Beatrice Webb often included Sankey in their dinner parties with another famous Fabian, George Bernard Shaw, and the left-leaning political scientist Harold Laski. In a letter to U.S. Supreme Court Justice Felix Frankfurter, Laski described Sankey as “our best judge, with insight, scholarship and exquisite taste. His one defect is keen churchmanship.”52
Sankey was elevated to the Court of Appeal in 1928 and within a year he was appointed Lord Chancellor. In his speech at the annual Lord Mayor’s Judge’s Dinner at Mansion House in early July 1929, he announced an ambitious agenda of reform.53 It was clear that Sankey was determined to leave his mark.
49 Diary (6 May 1919), Oxford, Bodleian Library (John Sankey Papers, MSS Eng hist, e273). 50 Heuston, supra note 48 at 505. 51 Ibid. 52 Mark De Wolfe Howe, ed, Holmes – Laski Letters (New York: Atheneum,1963) at 383, quoted in Heuston, supra note 48 at 506. 53 "The Law and the Public", Times (London) (6 July 1929).
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AT THE PRIVY COUNCIL
The Persons Case was argued within a month of Sankey’s appointment before a panel of five judges. The Privy Council was a very busy court and to meet the need, membership was expanded to include a long list of retired and colonial judges. The panel of five selected for the Persons Case was certainly not drawn from the Privy Council’s “first team”. Only one member of the panel, Thomas Tomlin, was a Lord of Appeal in ordinary. The only other sitting judge was Lord Merrivale, President of the Probate, Divorce and Admiralty division of the high court.
The final two members of the panel were retired judges. Charles John Darling was a popular figure in the legal community with a mixed reputation as a judge. He was a poet and a journalist, not a prominent member of the bar. His Times obituary notice later described his practice as “microscopic.”54 Rumours of his possible appointment to the bench in 1897 had provoked an uproar. A leader in the
Times described him as a man of “acute intellect and considerable literary power,” 2013 CanLIIDocs 114 but asserted that he had “given no sign of legal eminence”, and argued that his appointment was based solely on his political affiliation.55 The Liberal Daily Chronicle was more scathing: “Mr. Darling… is an extreme partisan of the Government now in office…He has no serious knowledge of the law and has never handled any important practice at the Bar. The whole transaction is grossly scandalous.”56 Yet over the next twenty-six years, Darling presided over a number of difficult and sensational murder cases with considerable skill. His best-known trials are legendary57 and include the trial of the notorious “Chicago May” for attempted murder in 1907, the 1911 trial of Stennie Morrison for murder, and the sensational 1922 trial of Herbert Armstrong, a Welsh solicitor, for poisoning his wife. Darling was not a profound legal thinker nor was he a great judge but he displayed common sense, sound judgment, and a good understanding of human nature. These were the qualities of a reliable trial judge but hardly what was required for service on the apex court for the British Empire.
The fifth judge was Sir Lancelot Sanderson, not a well-known legal figure. He was a keen sportsman who had studied at Harrow and Cambridge before practicing as a barrister on the Northern Circuit. Elected to the House of Commons in 1910 as a Unionist MP, Sanderson was appointed Chief Justice of Bengal in 1915, a post he filled for eleven years. As his Times obituary would later report, “his tenure
54 Obituary, Times (London) (30 May 1936). 55 Times (London) (26 October 1897), quoted in LG Wickham Legg, ed, Dictionary of National Biography (1931–1940) (London: Oxford Univeristy Press, 1949) at 211. 56 Derek Walker-Smith, The Life of Lord Darling (London: Cassell and Company, 1938) at 93-94. 57 See Dudley Barker, Lord Darling’s Famous Cases (London: Hutchinson, 1936).
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of office [as Chief Justice of Bengal] left no permanent landmark in Indian legal history.”58 Sanderson returned to England following his retirement from the Indian Bench in 1926, and often sat in the Privy Council on appeal from India and occasionally from the Dominions.
THE LIVING TREE
We do not know what part, if any, the other four members of the panel took in the preparation of the Privy Council’s reasons, but it is clear from his diary that Sankey undertook to do the work,59 and it would seem that the final product was his alone. Two themes pervade the judgment.
The first is the recognition that legal rules or customs are the products of a particular social and historical context. Laws may outlive the customs and traditions
that gave rise to them, and courts should take this into account when interpreting the 2013 CanLIIDocs 114 law in a different context. Sankey carefully reviewed the legal authorities excluding women from public office. He acknowledged the centuries of legal discrimination against women, but refused to view the law in static terms or to be bound by the past. The word “persons” was “ambiguous, and in its original meaning would undoubtedly embrace members of either sex.” If the original meaning of the word could include women, it was social tradition and custom, not the law, that excluded women. Sankey concluded: “The appeal to history therefore in this particular matter is not conclusive.”60 In Sankey’s view, it was wrong “to apply rigidly to Canada of today the decisions and the reasons therefore which commended themselves, probably rightly, to those who had to apply the law in different circumstances, in different centuries, to countries in different stages of development.”61 As the word “persons” could include both genders, Sankey wrote, “to those who ask why the word should include females, the obvious answer is why should it not?”62
Sankey’s second theme was the difference between statutory interpretation and constitutional interpretation. He characterized the evolution of the British North America Act, 1867 as an affirmation of Canadian unity and self-determination. Again, Sankey emphasized the importance of social tradition and custom in legal development. As the final court of appeal for “the Britannic system,” which includes
58 Times (London) (11 March 1944). 59 Diary, (18 October 1929), Oxford, Bodleian Library (John Sankey Papers, e 283). 60 Edwards, supra note 1, at 134. 61 Ibid. 62 Ibid at 138.
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“countries and peoples in every stage of social, political and economic development and undergoing a continuous process of evolution,” the Privy Council “must take great care not to interpret legislation meant to apply to one community by a rigid adherence to the customs and traditions of another.”63 Ironically, the voice of supreme colonial power was insisting upon the very independence and legal maturity that Canada’s own judges had refused to claim for themselves.
It is within this context that Lord Sankey presented what has come to be the most memorable phrase in modern Canadian constitutional law: “The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits.”64 The living tree metaphor described the constitution in the organic terms of growth and evolution. It was, wrote, Sankey, neither the duty nor the desire of the Privy Council “to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation” to allow the Dominion to be “mistress in her own house.”65
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The Canadian press applauded the decision.66 The London dailies fastened on the phrase “a relic of an age more barbarous than ours” and warmly applauded the judgement. The Evening Standard proclaimed that the judgment “will have an indirect bearing on the political activities of women throughout the Empire.”67 The Daily Telegraph, which had given the case extensive coverage, called the decision “a significant advance towards the equality of political rights for both sexes.”68
However, the idea that the constitution was a timeless document capable of adapting over time to meet the changing needs of Canadian society did not have immediate resonance in the staid Canadian legal community. An article in the Canadian Bar Review defended the Supreme Court of Canada for having applied the settled rules of statutory interpretation that Lord Sankey and his colleagues had “simply… brushed aside,” ignoring points that were “obvious… to a legal mind.”69 The author, a senior practitioner, undoubtedly anxious to please Chief Justice Anglin, made the extraordinary accusation that the Privy Council had acted as the
63 Ibid. 64 Ibid at 136. 65 Ibid. 66 Toronto Daily Star (18 October 1929); Edmonton Journal (19 October 1929); “Woman, As Person, May Sit in Senate Says Privy Council”, Globe (19 October 1929). 67 “A Woman’s Big Victory in Privy Council”, Evening Standard (London) (18 October 1929). 68 Editorial, Daily Telegraph (19 October 1929). 69 George Henderson, “Eligibility of Women for the Senate” (1929) , 7 Can Bar Rev 617 at 619.
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willing tool of Mackenzie King, who he claimed had secretly invited the Privy Council to amend the constitution by judicial fiat.70
A SENATE SEAT FOR EMILY MURPHY?
For Emily Murphy and the Canadian feminist movement, the victory was gratifying but short-lived. A woman was appointed to the Senate by Mackenzie King in 1930, but that woman was not Emily Murphy.71 Murphy retired from the bench on 11 November 1931, but she never gave up her desire for a seat in the Senate. In April 1931, the death of Senator Lessard of Alberta created just such an opportunity. However, Mackenzie King’s Liberals had been defeated in the 1930 general election and Conservative leader R.B. Bennett was now Canada’s prime minister. Murphy knew Bennett from his days as a member of the Alberta legislature when he had been her ally in the promotion of improved property rights for women. Having spent the past decade currying favour with King and the Liberals, Murphy set out to renew her
ties with the Conservative Party. As with previous Senate vacancies, Murphy’s 2013 CanLIIDocs 114 supporters wrote to urge Murphy’s appointment.72
Bennett was willing to disregard political affiliation but he could not ignore religion. He decided that tradition dictated that “as the sole representative of the Catholic minority in our province,”73 Lessard should be replaced by a Catholic. Bennett appointed Pat Burns, a well-known Liberal and wealthy rancher. Murphy was not given serious consideration.74
THE LEGACY OF THE PERSONS CASE
The recognition of women as legal persons was a momentous legal achievement, but full personhood required more than an edict from the Privy Council at a time when that institution’s authority was being questioned and in an era not yet ready to embrace women as true equals. The philosophy of Murphy and the other member of the Famous Five based on maternal feminism, social gospel and temperance was a spent force. Murphy and her colleagues had lost touch with the concerns of younger women and their fight to secure the appointment of women to the Senate simply
70 Ibid at 628. 71 Carine Wilson was appointed to the Senate by Prime Minister King on 15 February 1930. 72 Letter from Edwards/Gardiner Family Fonds [nd] Calgary, Glenbow Archives (M7 283, File 15). 73 Sanders, supra note 8 at 258; “Five Are Mentioned by Rumors in City for Seat in Senate”, The Albertan (4 May 1931). 74 “Five Are Mentioned by Rumors in City for Seat in Senate”, supra note 73, does not mention Murphy as a possible contender and suggests that women’s groups were promoting the appointment of Mrs PJ Nolan.
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failed in their attempts to rekindle the passions of the suffrage movement. The advancement of rights for women would take real social change that would not come until the 1970s.
Canadian lawyers and judges also essentially ignored the majestic language of Lord Sankey’s living tree metaphor for over fifty years.75 It was not until the era of the Charter of Rights and Freedoms, adopted in 1982, that the Persons Case came into its own. The Supreme Court of Canada of the 1980s, a very different institution than the Supreme Court of the 1920s, fully embraced the living tree metaphor as a guiding principle of constitutional interpretation.76
The Persons Case, the ideal of universal personhood and the living tree approach to constitutional interpretation are now recognized as cornerstones of the Canadian constitution. Persons Day celebrations are held every October 18 and the
Governor General makes Persons Day awards to recognize contributions to the 2013 CanLIIDocs 114 equality of women in Canada. A statue of the Famous Five sits on Parliament Hill amid various leading lights of Canadian political history and, until very recently, our $50 bills bore an inscription of that statue on the reverse.
I hope that my story has persuaded you of the advantages to taking a close look at the people and the politics behind a specific case. One sees that individuals do make a difference and that a landmark ruling can be driven by unpredictable personal and political combinations. In retrospect, we can agree that the Privy Council got it right, yet at the time, there was nothing inevitable about the result. But for the unlikely coincidence of Emily Murphy’s unquenchable thirst for a Senate appointment, Mackenzie King’s fondness for referring difficult questions to the courts, and John Sankey’s determination to make his mark as a reforming Lord Chancellor, the result could easily have been quite different.
This case study also demonstrates that the law is necessarily constantly changing and that it does not and cannot operate in a vacuum isolated from political and social forces. In 1928, the Supreme Court, stuck in the mores of another age, had failed to move with the times. Women worked, voted and held public office, yet Canada’s highest court refused to recognize them as persons. A year later, the Privy
75 Justice Ivan Rand referred approvingly to the living tree approach in Winner v SMT (Eastern) Ltd, [1951] SCR 922. 76 Quebec (Attorney General) v Blaikie, [1979] 2 SCR 1029; British Columbia (AG) v Ellett Estate, [1980] 2 SCR 466 at 478; Reference re: Residential Tenancies Act 1979(Ontario), [1981] 1 SCR 714 at 723 per Dickson J: Hunter v Southam Inc, [1984] 2 SCR 145 at 155-56; Law Society of Upper Canada v Skapinker, [1984] 1 SCR 357 at 365 per Estey J.
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Council’s decision broke the centuries-old mould of exclusion because John Sankey saw that a way had to be found to permit the law to accommodate the change that social forces demanded.
The Persons Case further reveals how the symbolic importance of a constitutional decision can transcend the specific issue it decides. Even her closest friends could not understand why Emily Murphy was fighting so hard to secure an appointment to a body that most Canadians regarded as outdated and irrelevant. Yet her fight produced a strong assertion of the principle of equality.
Finally, the Persons Case teaches us that equality is a constantly evolving ideal. Emily Murphy herself held racist and discriminatory beliefs towards those suffering from mental illness and disability. Modern feminists distance themselves from the views Murphy expressed. But Emily Murphy had the conviction, courage and determination to be recognized as a person and, almost a century later, we embrace the ideals proclaimed in the Persons Case as lying at the core of our idea of 2013 CanLIIDocs 114 a just and democratic society.
THE CONTINUAL REINVENTION OF SECTION 15 OF THE CHARTER
Jennifer Koshan* ** Jonnette Watson Hamilton
I. INTRODUCTION
The Supreme Court of Canada has taken three different approaches to section 15 of the Canadian Charter of Rights and Freedoms1 as exemplified in the 1989 decision in Andrews v Law Society of British Columbia,2 Law v Canada (Minister of Employment and Immigration) 3 decided ten years later, and R v Kapp,4 handed down in 2008. Essentially, each decade the Court has tried a new approach to equality claims. In our view, these are not slightly different analytical frameworks; each 2013 CanLIIDocs 114 includes new formulas with new focuses requiring new types of evidence. This continual reinvention justifies Justice McIntyre’s claim in Andrews that equality is “an elusive concept,”5 and illustrates the Court’s admission in Law that section 15 “is perhaps the Charter’s most conceptually difficult provision.”6
In this paper,7 we reflect upon these reinventions and conceptual and analytical difficulties. We began writing together about section 15 as a result of the
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! * Jennifer Koshan, BSc, LLB (Calgary), LLM (BC), is Associate Professor at the University of Calgary, Faculty of Law. Koshan practiced law in the Northwest Territories as Crown counsel and worked as Legal Director of the BC Women’s Legal Education and Action Fund (LEAF) before beginning her teaching career in 2000. ** Jonnette Watson Hamilton, BA (Alta), LL.B (Dal), LL.M (Col), is Professor at the University of Calgary, Faculty of Law. She was called to the Alberta Bar in 1979 and practiced in Alberta until 1991. She began her teaching career in 1992. 1 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. 2 [1989] 1 SCR 143, 56 DLR (4th) 1 [Andrews, cited to SCR]. 3 [1999] 1 SCR 497, 170 DLR (4th) 1 [Law, cited to SCR]. 4 2008 SCC 41, [2008] 2 SCR 483 [Kapp]. 5 Andrews, supra note 2 at 164. 6 Law, supra note 3 at para 2. 7 This essay is based on the authors’ oral presentation to a non-specialist legal audience at a University of Calgary Faculty of Law Assentio Mentium (Meeting of the Minds) event in Calgary, Alberta on October 18, 2012. We have retained much of the informal nature of the oral presentation, while adding references to sources we relied upon. 20 UNB LJ RD UN-B [VOL/TOME 64] ! Kapp decision and have now jointly authored four articles8 and a number of blogs9 about developments since 2008. Our writing is informed by our volunteer work with the Women’s Legal Education Action Fund (LEAF), where we have both been members of LEAF litigation committees.10 We have found that it is useful to write about section 15 together because the case law is copious, rather technical and complex, and there is a great deal of secondary literature.
In our opinion, the continual reinvention of section 15 has led to a marked lack of success for equality-seeking individuals and groups before the Supreme Court,11 despite its periodic recognition of some of the problems with its previous approaches.12 Subject to a small number of important exceptions, we believe that the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 8 Jonnette Watson Hamilton & Jennifer Koshan, "Courting Confusion? Three Recent Alberta Cases on Equality Rights Post-Kapp" (2010) 47 Alta L Rev 927 [“Courting Confusion”]; Jennifer Koshan & Jonnette Watson Hamilton, "‘Terrorism or Whatever': The Implications of Alberta v Hutterian Brethren of Wilson Colony for Women's Equality and Social Justice," in Sanda Rodgers & Sheila McIntyre, eds, The Supreme Court of Canada and Social Justice: Commitment, Retrenchment or Retreat (Markham, Ont: LexisNexisCanada, 2010) 221 [“Terrorism or Whatever”]; Jennifer Koshan & Jonnette Watson Hamilton, 2013 CanLIIDocs 114 "Meaningless Mantra: Substantive Equality after Withler" (2011) 16 Rev Const Stud 31 [“Meaningless Mantra”]; and Jonnette Watson Hamilton & Jennifer Koshan, “The Supreme Court, Ameliorative Programs, and Disability: Not Getting It” (2013) CJWL 56 [“Not Getting It”]. See also Jennifer Koshan, “Redressing The Harms of Government (In)Action: A Section 7 Versus Section 15 Charter Showdown” (2013) Constitutional Forum (forthcoming) [“Charter Showdown”], which we also draw upon in this article. 9 See, for example, Jonnette Watson Hamilton & Jennifer Koshan, “The End of Law: A New Framework for Analyzing Section 15(1) Charter Challenges”, online: ABlawg
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We also include some consideration of the most recent decision of the Supreme Court on section 15, Quebec (Attorney General) v A,16 a decision rendered while this paper was under review. We will address the implications of that case for our arguments in the conclusion.17 Our initial response to the question posed by this issue, “The Promise of Equality – Are We There Yet?”, was a definite “no.” Our answer is still “no”, as we will explain.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 13 This is not just our opinion. Other advocates and academics have explored alternatives to s 15 such as s 7 of the Charter and Human Rights Codes. See, for example, ARCH Disability Law Centre, The Shield Becomes the Sword: The Expansion of the Ameliorative Program Defence to Programs that Support Persons with Disabilities, Research Paper (Law Commission of Ontario, 2010) at 31, online: ARCH Disability Law Centre
The wording of section 15 was broader than any comparable constitutional guarantee of equality in other jurisdictions, largely because of the advocacy of women and other equality-seeking groups during the drafting of the Charter.18 For example, the first part of section 15(1) speaks of what Andrews described as four basic rights:19 equality before the law, equality under the law, the right to the equal protection of the law, and the right to equal benefit of the law. The use of the phrase “under the law” was protection against decisions made under the Canadian Bill of Rights,20 in which the courts had held that discriminatory exclusions from entitlements to benefits were not covered by the guarantee of equality “before the law.”21 The more expansive wording of section 15 was seen at the time as having altered the entire orientation of the guarantee of equality from a negatively oriented guarantee of non- discrimination to a positively oriented right to equality.22 As another example of early promise, this time involving the second part of section 15(1) which lists the enumerated grounds of discrimination, we note that Canada was the first democracy to give constitutional status to the equality rights of persons with mental and physical disabilities.23 And section 15(2) was included in the Charter to silence debate about 2013 CanLIIDocs 114 the constitutionality of affirmative action programs and to protect those programs from charges of reverse discrimination.24
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 18 See generally Bruce Porter, “Twenty Years of Equality Rights: Reclaiming Expectations” (2005) 23 Windsor YB Access Just 145. 19 Andrews, supra note 2 at 170. Section 15(1) provides: 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 and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
20 Canadian Bill of Rights, RSC 1970, App III, s 1(b). 21 See Attorney General of Canada v Lavell, [1974] SCR 1349 (upholding s. 12(1)(b) of the Indian Act, RSC 1970, c I-6, which deprived women, but not men, of their membership in Indian Bands if they married non-Indians because it did not violate a guarantee of equality before the law); Bliss v Attorney General of Canada, [1979] 1 SCR 183 (holding that the denial of unemployment insurance benefits to women because they were pregnant did not violate the guarantee of equality before the law because any inequality was "not created by legislation but by nature": ibid at 190.) 22 Porter, supra note 18 at 150-56. See also Lynn Smith, “A New Paradigm for Equality Rights”, in Lynn Smith, ed, Righting the Balance: Canada’s New Equality Rights (Saskatoon: Canadian Human Rights Reporter, 1986) 353 at 368. See also Anne Bayefsky, “Defining Equality Rights” in Anne Bayefsky & Mary Eberts, eds, Equality Rights and the Canadian Charter of Rights and Freedoms (Toronto: Carswell, 1985) 24. 23 M. David Lepofsky, “The Charter’s Guarantee of Equality to People with Disabilities – How Well Is It Working?” (1998) 16 Windsor YB Access Just 155 at 161. 24 Lovelace v Ontario (1997), 33 OR (3d) 735, 148 DLR (4th) 126, (CA) cited with approval in Cunningham, supra note 15 at para 50. Section 15(2) provides: Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including [2013] THE CONTINUAL REINVENTION 23 !
Section 15 was thus seen as full of promise in 1982, when it was entrenched in the Constitution, and in 1985, when it finally came into effect. That promise seemed to be fulfilled in the first few cases before the Supreme Court.
III. ANDREWS / TURPIN (1989)
The Supreme Court's first opportunity to interpret section 15 arose in two 1989 cases: Andrews and R v Turpin.25 Andrews involved a successful challenge to the Law Society of British Columbia’s requirement that lawyers be Canadian citizens.26 At the time, the proposed answers to the question of how to analyze claims under section 15(1) lay at two extremes.27 On the one hand, constitutional law scholar Peter Hogg was of the view that every distinction drawn in law counted as discrimination and the question of whether that discrimination was justifiable or not should be resolved under section 1.28 The equality guarantee had little work to do under his approach. On the other hand, in her judgment in the British Columbia Court of 2013 CanLIIDocs 114 Appeal decision in Andrews,29 Justice Beverley McLachlin, as she then was, took the view that only unreasonable or unfair legislative distinctions were prohibited, as assessed within section 15. Her approach left no role for section 1.
It appears to us that, over the years, Chief Justice McLachlin has brought the Supreme Court’s jurisprudence around to her point of view,30 but her approach was not adopted in Andrews. Justice McIntyre, writing for the majority on the issue of whether there was a violation of section 15(1), rejected both Peter Hogg’s and Justice McLachlin’s approaches and chose a middle ground: only discrimination based on grounds, both listed and analogous, is prohibited, and questions of justification are left for section 1.31 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
25 [1989] 1 SCR 1296 [Turpin]. 26 Barristers and Solicitors Act, RSBC 1979, c 26, s 42. 27 Diana Majury, "Equality and Discrimination According to the Supreme Court of Canada" (1990-1991) 4 CJWL 407 at 411-12. 28 Peter W Hogg, Constitutional Law of Canada, 2d ed (Toronto: Carswells, 1985) at 800-801, cited in Andrews, supra note 2 at 178-79. 29 (1986), 2 BCLR 305, 27 DLR (4th) 600 at 610, [1986] 4 WWR 474 [Andrews BCCA]. 30 See infra text accompanying note 82 and text accompanying note 99. 31 Andrews, supra note 2 at 178-82. ! ! 24 UNB LJ RD UN-B [VOL/TOME 64] !
In Andrews, Justice McIntyre organized his analysis around three questions: 1) Has there been a denial of one of the four basic equality rights? 2) Is there discrimination? 3) Is the discrimination based on enumerated or analogous grounds?32 The focus on the four equality rights in the first step dissipated in subsequent cases. For the second step, Andrews relied on the concept of discrimination set out by the Court in its interpretation of human rights legislation to define “discrimination”:33
I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an 2013 CanLIIDocs 114 individual's merits and capacities will rarely be so classed.
The third step ensured that the claim fit within the overall purpose of the equality guarantee, which was said to be “to remedy or prevent discrimination against groups subject to stereotyping, historical disadvantage and political and social prejudice in Canadian society.”34
In addition to setting out the enumerated and analogous grounds approach that has prevailed, a three-part analysis and an oft-quoted definition of discrimination, Andrews established a number of important principles. Formal equality — referred to as the “similarly situated test” — was rejected and a commitment to substantive equality was made.35 Formal equality requires that “likes” be treated alike and “unlikes” be treated differently.36 Substantive equality is
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 32 Sheilah Martin, "Balancing Individual Rights to Equality and Social Goals" (2001) 80 Can Bar Rev 299 at 310. 33 Andrews, supra note 2 at 174-75, relying on Ontario Human Rights Commission and O'Malley v Simpsons-Sears Ltd., [1985] 2 SCR 536 at 551 [O’Malley]; Canadian National Railway Co. v Canada (Canadian Human Rights Commission), [1987] 1 SCR 1114 at 1138-39. 34 [1991] 1 SCR 933 at para 80 [Swain]. 35 Andrews, supra note 2 at 163-71. As we note below, however, the Court did not adopt the language of “substantive equality” until later; see note 70 and accompanying text. 36 Patricia Hughes, “Supreme Court of Canada Equality Jurisprudence and ‘Everyday Life’” (2012) 58 Sup Ct L Rev (2d) 245 at 246-47 (differentiating formal equality, substantive equality, equity and diversity). See also Colleen Sheppard, Inclusive Equality: The Relational Dimensions of Systemic Discrimination in Canada (Montreal: McGill-Queen’s University Press, 2010) at 38. [2013] THE CONTINUAL REINVENTION 25 ! concerned with ensuring that laws or policies do not impose subordinating treatment on groups already suffering social, political or economic disadvantage in Canadian society, and recognizes that some groups may need to be treated differently to achieve equality of results.37 For example, in the debate about whether the opposite- sex requirement in the legal definition of marriage violated section 15, a formal equality approach focused on whether same sex couples were similarly situated to opposite sex couples in relation to the objectives of the legal definition of marriage, whereas a substantive equality approach focused on whether the exclusion from marriage had the effect of further subordinating gays and lesbians in Canadian society.38
Commentators have noted that the Court’s understanding of substantive equality in Andrews amounted to little more than that of contextualized formal equality.39 Only the narrowest “similarly-situated” analysis was rejected in Andrews; that is, the Court merely rejected an analysis that would have accepted Canadian citizens and non-citizens as different without looking at any context before making that assessment.40 2013 CanLIIDocs 114
On a more positive note, Andrews also determined that the main consideration in any section 15 analysis must be the impact or effect of the law on the individual or group concerned; discriminatory intent is not required to prove a violation of section 15.41 As a result, both direct discrimination and adverse effects discrimination were recognized.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 37 Hughes, supra note 36; Sheppard, supra note 36. 38 This example also shows how formal and substantive equality may merge in particular outcomes such as the protection of same sex marriage, and how formal equality may sometimes be sufficient to achieve progressive goals. See Hester Lessard, “Charter Gridlock: Equality Formalism and Marriage Fundamentalism” in Sheila McIntyre & Sanda Rodgers, eds, Diminishing Returns: Inequality and the Canadian Charter of Rights and Freedoms (Markham, Ont: LexisNexis Butterworths, 2006) [“Diminishing Returns”] 291 at 292; Ryder, Faira & Lawrence, “What’s Law Good For?”, supra note 11at 107. 39 Majury, supra note 27 at 425; Sheila McIntyre & Sanda Rodgers, "Introduction: High Expectations, Diminishing Returns – Section 15 at Twenty", in McIntyre & Rodgers, Diminishing Returns, supra note 38, 1 at 8; Martha A McCarthy & Joanna L Radbord, "Foundations for 15(1): Equality Rights in Canada" (1999) 6 Mich J Gender & L 261 at 267; Beverley Baines, "Law v. Canada: Formatting Equality" (2000) 11 Constitutional Forum 65 at 69; Margot Young, “Unequal to the Task: “Kapp”ing the Substantive Potential of Section 15” in Sanda Rodgers & Sheila McIntyre, eds, The Supreme Court of Canada and Social Justice: Commitment, Retrenchment or Retreat (Markham, Ont: LexisNexisCanada, 2010) 183 at 186, 198-9 [Young, “Unequal to the Task”]. 40 Andrews, supra note 2 at 166-67. 41 Ibid at 174. ! ! 26 UNB LJ RD UN-B [VOL/TOME 64] ! Justice McIntyre also decided that equality is a comparative concept, with inequality discernible through comparison with others.42 However, not every individual within the relevant equality-seeking group must suffer from discrimination before it is found to exist.
A final broad principle recognized in the Andrews approach to section 15 was that the equality guarantee and section 1 are distinct and must be analyzed separately ― if only because the party bearing the burden of proof differs.43
The Court’s decision in Turpin reinforced the Andrews criterion of disadvantage which had figured in Justice McIntyre’s definition of discrimination.44 Justice Wilson, writing for a unanimous Court, emphasized that in order to ascertain if legislation is discriminatory one must consider the group in question and its place in the broader “social, political and legal context.”45 In doing so she raised a question about the role of historic disadvantage that lingered unresolved in the section 15 jurisprudence until recently.46 In the circumstances of Turpin, persons accused of 2013 CanLIIDocs 114 homicide offences in certain provinces, who were required to be tried by judge and jury, were not considered by the Court to belong to a "discrete and insular minority", and their claim of discrimination was dismissed.47
There were a number of other early highlights in the Court’s interpretation of section 15. For example, the Court affirmed in Schachter v Canada that the right to equality is a “hybrid” of negative and positive rights.48 A father had challenged a provision of the Unemployment Insurance Act, 1971 which discriminated between natural parents and adoptive parents with respect to parental leave. The section 15 violation was subsequently conceded by the federal government and the issue before the Court was the appropriate remedy for an underinclusive benefit. It accepted that in some cases courts should extend benefits to groups that have previously been denied them rather than imposing “equality with a vengeance” by striking down the
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 42 Ibid at 162. 43 Ibid at 177. The reasons for this analytical separation are clearly articulated by Justice McLachlin, as she then was, in Miron v Trudel, [1995] 2 SCR 418 at 485-86 [Miron]. 44 See also supra note 33 and accompanying text.. 45 Turpin, supra note 25 at 1331. 46 See infra note 134 and accompanying text. 47 Turpin, supra note 25 at 1332-33. 48 [1992] 2 SCR 679 at 721 [Schachter]. For critiques of the distinction between positive and negative conceptions of rights, see e.g. Sylvestre, supra note 13 at 403; Cara Wilkie & Meryl Zisman Gary, “Positive and Negative Rights under the Charter: Closing the Divide to Advance Equality” (2011) 30 Windsor Rev L Soc Issues 37; Young, “Unequal to the Task” supra note 39 at 197. [2013] THE CONTINUAL REINVENTION 27 ! benefit scheme altogether.49 Schachter has been cited frequently since for the proposition that governments do not have positive obligations to introduce particular benefit schemes under the Charter, but once such schemes have been created, they cannot be discriminatory about who is included.50
Despite this generally positive start to the interpretation and application of section 15, controversy soon overtook the Court.
IV. THE EQUALITY TRILOGY
By the mid-1990s, the Court was badly fractured into three camps, with the divisive issue being the role that “irrelevant personal characteristics” should play with respect to the distinctions drawn by the challenged law or policy. Relevance requires a consideration of whether distinctions between groups are sufficiently related to the purpose of the law in question. It thus requires the importation into section 15 of factors focused on government objectives, that is, matters properly left to section 1. 2013 CanLIIDocs 114 The so-called “equality trilogy” of the mid-1990s made this problem abundantly clear.
In Egan v Canada,51 Miron v Trudel,52 and Thibaudeau v Canada53 the Court was fundamentally divided as to the meaning of equality and the test for ascertaining a violation.54 Four judges ― McLachlin, Cory, Iacobucci, and Sopinka ― retained the analysis most resembling that developed in Andrews. For them, the question was whether there was a distinction based on a prohibited ground and resulting discrimination; if there was, section 1 analysis was required. They emphasized the importance of relieving historical disadvantage.55 But this group was not entirely consistent with Andrews. For example, in Miron Justice McLachlin, as she then was, restated the overarching purpose of section 15 as being “to prevent the violation of human dignity and freedom by imposing limitations, disadvantages or !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 49 The term “equality with a vengeance” was used by LEAF, one of the interveners in the case, and adopted by the Court: Schachter, supra note 48 at 702. 50 Ibid at 721-22. 51 [1995] 2 SCR 513 [Egan] (denial of spousal allowance based on opposite-sex definition of “spouse” violated s 15 but upheld under s 1). 52 Miron, supra note 43 (denial of accident benefits to common law spouses under provincial legislation- based automobile insurance policy violated s 15 and not justified under s 1). 53 [1995] 2 SCR 627 [Thibaudeau] (provision requiring custodial parent to include child support payments in income did not violate s 15). 54 See e.g. Marie-Adrienne Irvine, “A New Trend in Equality Jurisprudence?” (1999) 5 Appeal 54 at 58. 55 Martin, supra note 32 at 315-16. ! ! 28 UNB LJ RD UN-B [VOL/TOME 64] ! burdens through the stereotypical application of presumed group characteristics rather than on the basis of individual merit, capacity, or circumstance.”56 She elevated stereotyping to be the critical marker of discrimination.57
The test formulated by a second group of four judges — La Forest, Gonthier, Lamer and Major — required more than a distinction based on a ground and a resulting disadvantage. This group also asked whether that distinction was based on an irrelevant personal characteristic which was either enumerated or analogous.58 If a personal characteristic was relevant to the functional values underlying the challenged law, it in effect negated any possibility of finding discrimination. This approach was criticized almost immediately on the basis that it was a formal equality approach, and it brought section 1 considerations about the rationality of the law’s means in relation to its purpose into section 15, thus placing a burden on claimants to adduce evidence of the law’s purpose.59 But despite these early critiques and the rejection of the addition of relevance by a majority of the Court, relevance has kept re-surfacing as a factor in equality jurisprudence.
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Justice L'Heureux-Dubé rejected Andrews and its grounds approach in the trilogy. She proposed a new test focused on the impact of the law on the group involved and the nature of the interest affected by the distinction.60 This formulation was not supported by the other members of the Court at the time of the trilogy or later, although Justice L'Heureux-Dubé’s focus on the nature of the interest affected was picked up in the Law decision.61
The equality trilogy reflected the inconsistency and uncertainty of the Court with respect to the scope and application of section 15. But an empirical analysis of all of the decisions rendered in the decade after Andrews revealed even bigger problems.62 In the Supreme Court, the claimant success rate for section 15 claims !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 56 Miron, supra note 43 at para 54. 57 Martin, supra note 32 at 331-32 (noting that, before Law, supra note 3, dicta in other cases placed an increasing emphasis on the need to establish a form of stereotyping before there would be a finding of discrimination and that too great a reliance on stereotyping would force litigants to formulate complaints only in these terms, an approach that would be counter to both a purposive and contextual approach to s. 15). 58 Miron, supra note 43 at paras 23-30 (per Gonthier J). 59 Laura Fraser, "Rights Without Meaning: Failing to Give Effect to the Purpose of Section 15(1)" (1997) 6 Dal J Leg Stud 347 at 356; Irvine, supra note 54 at 58-59. See also Martin, supra note 32 at 327-8; Sheila McIntyre, “Deference and Dominance: Equality Without Substance” in McIntyre & Rodgers, Diminishing Returns, supra note 38, 95 at 100. 60 Egan, supra note 51 at 553-54. 61 See infra note 76 and accompanying text. 62 Ryder, Faira & Lawrence, “What’s Law Good For?”, supra note 11. [2013] THE CONTINUAL REINVENTION 29 ! was only seven out of twenty-seven cases, or 25.9 percent, consistently lower than that of other Charter claims which hovered around a thirty-four percent claimant success rate.63 Six of the nine grounds of discrimination listed in section 15 ― race, national origin, ethnic origin, colour, religion, and mental disability ― had not given rise to a single successful claim in the first decade of Supreme Court decisions.64 The theoretical promise of substantive equality to ameliorate historical disadvantage had not been fulfilled by the Courts’ practices up to that point.
V. POST-TRILOGY
In the later 1990s, following the equality trilogy, a number of cases were much more generous in their interpretation of section 15. The split in the Court was papered over. We were treated to an expansive definition of discrimination, a renewed emphasis on the importance of examining the broader context in which the rights claim took place, and vigorous effects-based analysis.65
2013 CanLIIDocs 114 During this period, the cases of Eldridge v British Columbia (Attorney General)66 and Vriend v Alberta67 brought in a short-lived period of hope for substantive equality analysis focused on ameliorating disadvantage. These were the first cases challenging the government's failure to act to remedy disadvantage. The hope was that the Court would order the disadvantage remedied, and not just because it was necessary to ensure equal treatment, but because the failure to remedy disadvantage was, in itself, a violation of the government's obligation to promote equality.68 Eldridge and Vriend were the first Supreme Court decisions in which the obligation to promote equality ― as opposed to simply preventing discrimination ― was given some real effect. In Eldridge, the Court recognized that the hearing- impaired had an equal right to access medical services which required the government to provide funded sign language interpretation, and in Vriend the Court read sexual orientation into Alberta’s human rights legislation as a protected ground of discrimination. The judgments provided dicta that moved somewhat in the
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 63 Ibid at 112. 64 Ibid at 115. 65 Irvine, supra note 54 at 55. 66 Eldridge, supra note 10. 67 [1998] 1 SCR 493 [Vriend]. 68 Margaret Denike & Kate Stephenson, “Twenty Years of Equality Rights: The Eternal Return of the ‘Same’”, Report Commissioned by the Court Challenges Program of Canada for a National Consultation on Equality Law (Ottawa, October 2004) at 74. ! ! 30 UNB LJ RD UN-B [VOL/TOME 64] ! direction of recognizing that courts could impose positive obligations on governments without undermining the legitimacy of democracy.69
Eldridge and Vriend were also the first time that the term "substantive equality” was used and affirmed by the Court itself.70 But their promise was short- lived. Eldridge and Vriend were followed soon after, in 1999, by Law, a case which came to be widely criticized for its approach to section 15.
VI. LAW V CANADA
The claimant in this case, Nancy Law, was 30 years old when her husband died. She was precluded from receiving survivor's benefits under the Canada Pension Plan until she reached the age of 65 because she was under the age of 35 at the time of her husband's death, she was not disabled, and she did not have any dependent children. The Supreme Court surprised observers with a unanimous decision with a new interpretation of section 15.71 And, oddly enough for a case with such substantive 2013 CanLIIDocs 114 revisions, there were no public interest interveners in Law ― unlike almost every other major section 15 case.
In the decade following Law, that unanimous decision, penned by Justice Iacobucci, dictated the governing approach under section 15. Law established a three step test for claims of discrimination:
1) Whether the purpose or effect of the law or government action imposed differential treatment between the claimant and others, either in purpose or effect; 2) Whether the differential treatment was based on one or more enumerated or analogous grounds; and 3) Whether the law’s purpose or effect was discriminatory.72
The question of discrimination, step three and the key issue, focused on whether the claimant could show a violation of their human dignity. Four contextual factors were relevant to this inquiry:
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 69 See e.g. Eldridge, supra note 10 at paras 73, 77-78 (the government obligation to provide sign language interpretation services in accessing health care was affirmed). The estimated cost of fulfilling the government’s obligation was only $150,000 per year, relatively little in the context of a health care budget: see Hester A. Lessard, “Dollars Versus [Equality] Rights’: Money and the Limits on Distributive Justice” (2012) 58 Sup Ct L Rev (2d) 299 at 309. 70 Young, “Unequal to the Task”, supra note 39 at 183; Eldridge, supra note 10 at para 61; Vriend, supra note 67 at paras 82, 83. 71 June Ross, "A Flawed Synthesis of the Law" (2000) 11 Constitutional Forum 74 at 74-77. 72 Law, supra note 3 at paras 39, 88. [2013] THE CONTINUAL REINVENTION 31 ! 1) Pre-existing disadvantage, stereotyping, prejudice, or vulnerability experienced by the claimant(s);73 2) The correspondence or lack of correspondence between the ground(s) on which the claim was based and the actual need, capacity, or circumstances of the claimant(s);74 3) The ameliorative purpose or effects of the law upon a more disadvantaged person or group;75 and 4) The nature and scope of the interest affected by the law.76
It was thought remarkable by some commentators that the four contextual factors in Law did not resolve the main question that plagued the equality trilogy, namely, the role that legislative “purpose,” or the “relevance” of a distinction to that purpose, should or should not play in the analysis of section 15 claims.77 However, the second contextual factor — in spite of the Court’s original intention that it would allow for differential treatment that promoted substantive equality — came to replicate the relevance consideration from the trilogy in some cases.78
2013 CanLIIDocs 114
Law provided a mechanical, formalistic approach to section 15. Justice Iacobucci had gone to some lengths to insist that Law was not to be applied as a “rigid test,”79 but the Court’s own mechanical application of Law in subsequent cases watered down this admonition somewhat. Its three-plus-four step test was eagerly seized on by law students, lawyers and lower courts as a formula to be marched through. It was embraced so eagerly that when Kapp was decided in 2008, lower courts were very reluctant to abandon the Law test.80 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 73 This factor is a reference to Turpin, supra note 25 at 1333: “A search for indicia of discrimination such as stereotyping, historical disadvantage or vulnerability to political and social prejudice would be fruitless in this case”. 74 This is a reference to Eaton v Brant Co. Board of Education, [1997] 1 SCR 241 at para 66 [Eaton], holding that “the avoidance of discrimination will frequently require that distinctions be made to take into account the actual personal characteristics of groups such as disabled persons”. 75 The source of this factor is also Eaton, ibid: “the purpose of s. 15(1) of the Charter is not only to prevent discrimination by the attribution of stereotypical characteristics to individuals, but also to ameliorate the position of groups within Canadian society who have suffered disadvantage by exclusion from mainstream society”. 76 This factor echoed Egan, supra note 51 at 556 (per L'Heureux-Dubé J, dissenting): “the more severe and localized the . . . consequences on the affected group, the more likely that the distinction responsible for these consequences is discriminatory within the meaning of s. 15 of the Charter”. 77 See e.g. Ross, supra note 71 at 77, 82. 78 See Martin, supra note 32 at 328; McIntyre, supra note 59 at 102-05; Baines, supra note 39 at 72. 79 Law, supra note 3 at paras 6, 88. 80 All of the lower courts which dealt with challenges under s 15 in the first seven months following the Kapp decision, supra note 4, used the two-part test set out in Andrews, supra note 2, as restated in Kapp. ! ! 32 UNB LJ RD UN-B [VOL/TOME 64] !
Law imported some section 1 considerations into section 15, particularly through the second contextual factor of correspondence which, in the following years, proved to be the most important of the four factors. Attention to “correspondence” between the grounds at issue and the claimant’s actual situation inevitably involved attention to the objective of the challenged law or policy, and a consideration of whether the differential treatment on a prohibited ground was relevant to the achievement of that objective. For example, in Lovelace v Ontario, the Court found that a gaming program that was targeted at First Nations bands registered under the Indian Act did not discriminate in excluding non-status Indians or Métis because, although their needs corresponded to the aims of the program, their capacities did not: they had “very different relations with respect to land, government, and gaming from those anticipated by the casino program.”81 But if section 15 is restricted to unreasonable, unfair or arbitrary distinctions ― Justice McLachlin’s approach from the Court of Appeal decision in Andrews ― it confuses the relationship between section 15 and section 1. The burden is on the claimant rather than government as it is under section 1, reducing the government’s Oakes 2013 CanLIIDocs 114 obligations.82
The abstract, subjective and malleable nature of human dignity was another problem. Law rendered dignity the touchstone of equality, and the violation of dignity the measure of discrimination.83 The promise of Andrews was that disadvantage ― a matter of structural and social relations ― would guide equality analysis, but in focusing on dignity, defined as feeling “self-respect and self- worth,"84 the effect of Law was to shift the focus from social disadvantage to personal feelings. This approach effectively individualized and de-contextualized the “experience” of discrimination, and rendered equality a matter of a personal psychological experience or emotion, rather than a matter of social and systemic disadvantage and exclusion.85 The concept was so malleable that it also made outcomes unpredictable.86 These criticisms of Law were acknowledged by the
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! See Hartling v Nova Scotia (AG), 2009 NSSC 2 at para 17; C.C.-W. (Litigation guardian of) v Ontario (Health Insurance Plan, General Manager), [2009] OJ No 140 (SCJ) at para 104; Withler v Canada (AG), 2008 BCCA 539 at para 155; Confédération des syndicats nationaux c Québec (PG), 2008 QCCS 5076 at paras 326-27; and Downey v Nova Scotia (Workers’ Compensation Appeals Tribunal), 2008 NSCA 65. However, three of the four ― all but C.C.-W ― also used the concept of human dignity and Law’s, supra note 2, four contextual factors to determine a violation of human dignity in the second step. 81 2000 SCC 37, [2000] 1 SCR 950, [Lovelace] at para 75. See also Martin, supra note 32 at 328. 82 R v Oakes, [1986] 1 SCR 103 [Oakes]. 83 Denike & Stephenson, supra note 68 at 91; Martin, supra note 32 at 328-330. 84 Law, supra note 3 at para 53. 85 Denike & Stephenson, supra note 68 at 95; Martin, supra note 32 at 329-30. 86 Debra M McAllister "Section 15(1) – The Unpredictability of the Law Test" (2003-04) 15 NJCL35; Diane Pothier, "Connecting Grounds of Discrimination to Real People's Real Experiences", (2001) 13 [2013] THE CONTINUAL REINVENTION 33 ! Supreme Court in Kapp in 2008,87 but in the post-Law era human dignity — and comparator groups — played major roles.
VII. POST-LAW
It is impossible to read the post-Law cases without being struck by the fact that human dignity is within the eye of the beholder.88 Whether a violation of dignity was made out in a given case seemed to depend upon the extent to which the factual context was taken into account, the significance that was assigned to the purpose of the law in question, and how that purpose was defined. Gosselin v Quebec (Attorney- General),89 Nova Scotia (Attorney General) v Walsh,90 and Trociuk v British Columbia (Attorney General)91 each illustrate how the Law test not only failed to fulfill its promise of greater predictability (suggested by the unanimity of the court in Law and the lower courts’ embrace of the three-plus-four step test), but also moved further away from substantive equality.
2013 CanLIIDocs 114 Gosselin involved a challenge by a young unemployed woman to Quebec social assistance laws that provided those who were single, unemployed, and under 30 years old with $170 per month in social assistance, only a third of the regular benefits. The case was framed as an age discrimination claim, and gave rise to a split in the Court that was as deep and as fundamental as the one evident in the equality trilogy. All of the judges applied the Law test but the Court split 5:4 on the results of its application to the facts, with the majority finding no discrimination.92 As in Law itself, the majority’s analysis of age discrimination was sorely lacking in context, with little attention paid to the conditions of poverty in which the claimant and others
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! CJWL 37 at 56; Christopher Bredt & Adam Dodek, “Breaking the Law’s Grip on Equality: A New Paradigm for Section 15” (2003) 20 Sup Ct L Rev (2d) 33 at 47. 87 Kapp, supra note 4 at paras 21-22 (citations omitted). 88 See Denise Réaume, “Discrimination and Dignity” (2003) 63 La L Rev 645; Donna Greschner, “Does Law Advance the Cause of Equality?” (2001) 27 Queen's LJ 299; Donna Greschner, “The Purpose of Canadian Equality Rights” (2002) 6 Rev Const Stud 290; Diana Majury, “The Charter, Equality Rights, and Women: Equivocation and Celebration” (2002) 40 Osgoode Hall LJ 297. 89 2002 SCC 84, [2002] 4 SCR 429 [Gosselin]. 90 2002 SCC 83, [2002] 4 SCR 325 [Walsh]. 91 2003 SCC 34, [2003] 1 SCR 835 [Trociuk]. 92 Gosselin, supra note 89 (per McLachlin, CJ for the majority and L’Heureux-Dubé, Bastarache, Arbour and LeBel JJ for the dissent on s 15). A majority of the Court also rejected Gosselin’s s 7 claim (L’Heureux-Dubé and Arbour JJ. dissenting). ! ! 34 UNB LJ RD UN-B [VOL/TOME 64] ! in the class that she represented actually lived, despite their youth and theoretical employability.93
In Walsh, the Court reversed the Nova Scotia Court of Appeal, which had struck down a matrimonial property law confined to married couples. Writing for the majority, Bastarache J characterized the central question as whether a reasonable unmarried member of a heterosexual couple would find that their exclusion from the division of property regime “has the effect of demeaning his or her dignity.”94 The Court held that such a person would not feel demeaned; on the contrary, he or she would feel approbated by the fact that the legislature recognized their “choice” not to marry.95
Trociuk was a unanimous decision that legislation excluding the particulars of some fathers from their children’s birth registration and the resulting denial of participation in the choice of the children’s surnames was discriminatory on the basis of sex. Justice Deschamps wrote that the absence of historical disadvantage need not 2013 CanLIIDocs 114 necessarily preclude a finding of discrimination.96 She also underscored the point that “neither the presence nor absence of any of the [Law] contextual factors is dispositive of a section 15(1) claim” or “determines the outcome of the dignity analysis.”97 Trociuk is one of a very few sex discrimination cases that have been successful — and it was a formal equality case where the claimant was a man.98
The analysis in each of these three cases is distilled into a test about the feelings of the reasonable person: would a reasonable person in the circumstances of the claimant, apprised of the relevant circumstances, legitimately feel that their !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 93 Gosselin supra note 89 and Law supra note 3 suggest that age-based discrimination claims will be very difficult to prove. See Gwen Brodsky, Rachel Cox, Shelagh Day & Kate Stephenson, “Gosselin v. Quebec (Attorney General) (Women’s Court of Canada) (2006) 18 CJWL 193 at 200-04 (analyzing the claim as one of age in intersection with reliance on social assistance); see also Hughes, supra note 36 at 262 (noting that age-based discrimination claims are given less scrutiny by the Court). 94 Walsh, supra note 90 at para 38 (per Bastarache J). 95 Walsh, Ibid at paras 43, 55-58, 62 (L’Heureux Dubé, J dissenting). For critiques of the Court’s choice- based reasoning, see Diana Majury, "Women are Themselves to Blame: Choice as a Justification for Unequal Treatment" in Fay Faraday, Margaret Denike & M Kate Stephenson, eds, Making Equality Rights Real: Securing Substantive Equality under the Charter (Toronto: Irwin Law, 2006) 209; Sonia Lawrence, “Choice, Equality and Tales of Racial Discrimination: Reading the Supreme Court on Section 15” in McIntyre & Rodgers, Diminishing Returns, supra note 38, 115. See also Quebec v A, supra note 16 (where a majority of the Court focused on choice as the reason for upholding Quebec’s exclusion of de facto spouses from a number of income- and property-sharing provisions in the Civil Code). 96 Trociuk, supra note 91 at para 20. 97 Ibid. 98 For critiques, see Hester Lessard, "Mothers, Fathers, and Naming: Reflections on the Law Equality Framework and Trociuk v British Columbia (Attorney General)" (2001) 16 CJWL 165; Ryder, Faira & Lawrence, “What’s Law Good For”, supra note 11 at 122-23. [2013] THE CONTINUAL REINVENTION 35 ! dignity is infringed? The focus on feelings in this test is problematic because it does not account for the social relations and larger systemic factors at issue. This test is similar to that advocated by Justice McLachlin in the British Columbia Court of Appeal in Andrews. Her question was “whether a fair-minded person, weighing the purposes of legislation against its effects on the individuals adversely affected, and giving due weight to the right of the Legislature to pass laws for the good of all, would conclude that the legislative means adopted are unreasonable or unfair.”99
Other problematic post-Law cases focused on the need for a comparative approach. In Granovsky v Canada (Minister of Employment and Immigration),100 where the Canada Pension Plan distinction between permanent and temporary disabilities was challenged, the Court emphasized that “identification of the group in relation to which [an] appellant can properly claim ‘unequal treatment’ is crucial,”101 and substituted a different comparator group for the group identified by the claimant.
Hodge v Canada (Minister of Human Resources Development)102 2013 CanLIIDocs 114 reaffirmed the judiciary’s role in scrutinizing the claimant’s choice of comparator. The Court asserted what came to be known as the “mirror comparator” approach:103
The appropriate comparator group is the one which mirrors the characteristics of the claimant . . . relevant to the benefit or advantage sought except that the statutory definition includes a personal characteristic that is offensive to the Charter or omits a personal characteristic in a way that is offensive to the Charter.
Only one comparator, a mirror of the claimant in all but one respect, was allowed.104
In Auton (Guardian ad litem of) v British Columbia (Attorney General),105 a case involving a claim for funded autism services, the Court came up with a comparator that was so narrow and complex that the claimants had no way of !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 99 Andrews BCCA, supra note 29 at 609-10. 100 2000 SCC 28, [2000] 1 SCR 703 [Granovsky]. 101 Ibid at para 45. 102 2004 SCC 65, [2004] 3 SCR 357 [Hodge]. 103 Ibid at para 23. 104 For critiques of Hodge, supra note 102, see e.g. Margot Young, “Blissed Out: Section 15 at Twenty”, in MacIntyre & Rodgers, Diminishing Returns, supra note 38 at 45; Daphne Gilbert and Diana Majury. “Critical Comparisons: The Supreme Court of Canada Dooms Section 15” (2006) 24 Windsor YB Access Just 111. 105 Auton, supra note 10. ! ! 36 UNB LJ RD UN-B [VOL/TOME 64] ! showing differential treatment based on the evidence they had led at trial. The mirror comparator in Auton was a “non-disabled person, or a person suffering a disability other than a mental disability, who seeks or receives funding for a non-core therapy that is important for his or her present and future health, is emergent and has only recently began to be recognized as medically required.”106 The claim was also dismissed on the basis that unlike Eldridge, there was no benefit that was being unequally provided by the law.107
There were some victories for equality-seeking groups in the post-Law period.108 For example, in Nova Scotia (Workers’ Compensation Board) v Martin; Nova Scotia (Workers’ Compensation Board) v Laseur,109 the Court held that the complete denial of benefits for chronic pain under Nova Scotia’s workers’ compensation scheme constituted discrimination on the basis of physical disability contrary to section 15. However, even that victory was short-lived. The Nova Scotia government responded by providing benefits for chronic pain ranging from three per cent to a maximum of six per cent, or 75 per cent of pre-accident gross weekly earnings. In Downey v Nova Scotia (Workers’ Compensation Appeals Tribunal),110 2013 CanLIIDocs 114 Cromwell J (as he then was), writing for a unanimous Court of Appeal, upheld the six per cent cap on the basis that it did not demean the dignity of workers suffering from chronic pain.
Corbiere is another important case in the period between Law and Kapp, where the Court first considered its approach to analogous grounds in depth.111 The case challenged the exclusion of off-reserve Indian band members from voting in band elections. The Court was unanimous in finding that this exclusion amounted to discrimination based on the analogous ground of Aboriginality-residence. Writing for the majority, Justices McLachlin and Bastarache stated that analogous grounds were those that “often serve as the basis for stereotypical decisions made not on the basis of merit but on the basis of a personal characteristic that is immutable or
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 106 Ibid at para 55. 107 For critiques, see e.g. Ravi Malhotra, “Has the Charter Made a Difference for People with Disabilities? Reflections and Strategies for the 21st Century” (2012) 58 Sup Ct L Rev (2d) 273 at note 83; Dianne Pothier, “Equality as a Comparative Concept: Mirror, Mirror on the Wall, What’s the Fairest of Them All?” in MacIntyre & Rodgers, Diminishing Returns, supra note 38 135 at 146-48; Martha Jackman, “Health Care and Equality: Is There a Cure?” (2007) 15 Health LJ 87. 108 Some of these victories could be considered formal equality wins. See e.g. M. v. H., [1999] 2 SCR 3; Nova Scotia (Workers’ Compensation Board) v Martin; Nova Scotia (Workers’ Compensation Board) v Laseur, [2003] 2 SCR 504 [Martin]. See also Ryder, Faira & Lawrence, “What’s Law Good For”, supra note 11 at 123-24 (discussing Martin as a formal equality case). 109 Martin, ibid. 110 2008 NSCA 65. 111 Corbiere v Canada (Minister of Indian and Northern Affairs), [1999] 2 SCR 203 [Corbiere]. [2013] THE CONTINUAL REINVENTION 37 ! changeable only at unacceptable cost to personal identity.”112 While the majority emphasized stereotyping and personal characteristics that were actually or constructively immutable in Corbiere, Justice L’Heureux Dubé, in a concurring judgment, approached analogous grounds more contextually. She concentrated on characteristics that were fundamental to “identity, personhood, or belonging”, as well as those that spoke to a lack of political power, disadvantage, or vulnerability.113 The majority’s approach to grounds has prevailed in the small number of cases raising issues of analogous grounds since Corbiere.114
To summarize the post-Law period, sixteen equality cases were heard by the Supreme Court under the Law approach and in only five — 31.2 percent of the cases — did the equality-seeking claimant(s) win.115 In at least one of these cases, the win did not promote substantive equality,116 so the success rate is arguably lower still. The majority of claims failed at the third step, the discrimination / human dignity stage. 117 Of particular concern is the fact that cases in which the recognition of rights is inexpensive have been successful and cases in which rights recognition is expensive have failed.118 2013 CanLIIDocs 114
At the end of the Law era, in Kapp the Supreme Court conceded that human dignity had indeed turned out to be an additional barrier to equality-seekers, adding another hurdle to what they had to prove.119 Kapp marked the end of the use of human dignity in section 15 cases (although lower courts and lawyers were slow to appreciate that abandonment).
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 112 Ibid at para 13. The focus on stereotyping here echoes Justice McLachlin’s elevation of stereotyping to be the critical marker of discrimination in Miron, and foreshadows its role as the Court’s major focus in the Kapp era. 113 Ibid at para 60. 114 See e.g. Delisle v Canada (Deputy AG), [1999] 2 SCR 989 (professional / employment status not an analogous ground); but see Justice L’Heureux Dubé’s concurring judgment, finding that it could be in the appropriate context; see also her judgment in Dunmore v Ontario (AG), 2001 SCC 94, [2001] 3 SCR 1016 (finding status as an agricultural worker to be an analogous ground). Three members of the Court dismissed the argument that status as an agricultural worker is an analogous ground in Ontario (AG) v Fraser, 2011 SCC 20, [2011] 2 SCR 3 [Fraser]. For discussions of grounds see Hughes, supra note 36 at 262-63; Joshua Sealy-Harrington, “Mutable Immutability: Clarifying and Criticizing the Role and Significance of Immutability in Equality Rights under the Charter” (2013) J L & Equality (forthcoming). 115 Ryder, Faira & Lawrence, “What's Law Good For?”, supra note 11. 116 See Trociuk, supra note 91. 117 See however NAPE, supra note 10, where the failure to deliver on pay equity obligations was found to violate the equality guarantee but was held to be justified under s. 1 due to a budget crisis. 118 Lessard, supra note 69. 119 Kapp, supra note 4 at paras 21-22. ! ! 38 UNB LJ RD UN-B [VOL/TOME 64] !
VIII. KAPP AND SECTION 15(1)
Kapp was a challenge to the federal government’s Aboriginal Fishing Strategy, which included a 24-hour priority licence to fishers from three First Nations on the Fraser River. A group of mostly non-Aboriginal commercial fishers argued that this priority violated their equality rights under section 15 of the Charter. Kapp is mainly thought to be significant for its approach to section 15(2), which we will discuss shortly, but it also made some important changes to section 15(1).120
First, Chief Justice McLachlin and Justice Abella, for a unanimous Court on the approach to section 15, simplified the test for discrimination somewhat by consolidating Law’s three steps into two: “(1) Does the law create a distinction based on an enumerated or analogous ground? (2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?”121 They then confusingly noted the continued relevance of Law’s four contextual factors, despite the 2013 CanLIIDocs 114 elimination of the need to show a violation of human dignity to prove discrimination. The Court suggested that the contextual factors of pre-existing disadvantage and the nature of the interest affected were relevant to the perpetuation of disadvantage and prejudice, and noted that the correspondence factor pertained to stereotyping.122 As for Law’s ameliorative purpose or effect factor, it was now to be considered under section 15(2), although the Court left open the possibility that it might also be pertinent to whether the law or program perpetuated disadvantage.123
Kapp said it was a reaffirmation of Andrews124 and worked Law’s four contextual factors into its new approach, but it was more than a consolidation of previous case law on section 15(1) – it was, in our view, another reinvention. As already mentioned, the focus of the final stage of analysis — whether there is discrimination — is no longer on human dignity. Given the problems with human dignity outlined earlier, we see this move away from dignity as the first of three positive aspects of the Kapp approach.125 But the Court did not replace dignity in a positive way in Kapp; the definition of discrimination was narrowed through its new !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 120 In Quebec v A, supra note 16 at paras 162, 170, 217, LeBel J characterizes the changes made by Kapp, supra note 4, as a reworked analytical framework for s 15(1). 121 Kapp, supra note 4 at para 17. Justice Bastarache’s concurring judgment focused on section 25 of the Charter. 122 Ibid at para 23. 123 Ibid. 124 Ibid at paras 14, 17. 125 Withler’s approach to comparator groups is the second exception; see text accompanying note 146. Kapp’s protection of ameliorative programs targeting disadvantaged groups from claims of “reverse discrimination” is the third exception; see text following note 179. [2013] THE CONTINUAL REINVENTION 39 ! focus on stereotyping and prejudice. The groundwork for this focus may have been laid in Miron and Corbiere, but Kapp does not mark a return to Andrews, which emphasized disadvantage. Kapp’s narrow definition of discrimination leaves out other harms, such as marginalization, oppression, and deprivation of benefits significant to well-being that may be relevant to individuals and groups claiming section 15’s protection.126 This may be particularly problematic for adverse effects cases, where the harms of discrimination typically go beyond prejudice and stereotyping. Kapp also provided little guidance to lower courts on how its new approach to section 15(1) should be applied, likely because section 15(1) was not fully applied to the facts of the case.127
IX. POST-KAPP: SECTION 15(1) AND WITHLER
The Court’s next major section 15(1) case was Withler in 2011, which can be seen as a companion case to Kapp. Surviving spouses of federal civil servants and Canadian Forces members challenged a reduction in the supplementary death benefits they received after their spouses died. The reduction was based on the age of the plan 2013 CanLIIDocs 114 member at the time of death, with surviving spouses of older plan members receiving reduced benefits. This led to a claim of age-based discrimination.
Chief Justice McLachlin and Justice Abella, again writing for a unanimous Court, confirmed the Kapp test for discrimination: “(1) Does the law create a distinction based on an enumerated or analogous ground? (2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?”128 The Court also built on Kapp somewhat by explaining that a law will perpetuate disadvantage when it treats a historically disadvantaged group in ways that exacerbate their situation.129 Further, it attempted to define discriminatory stereotyping by stating that it occurs where government action imposes a disadvantage “based on a stereotype that does not correspond to the actual circumstances and characteristics” of the claimant(s),130 thereby aligning stereotyping even more closely with Law’s correspondence factor !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 126 Iris Marion Young, Justice and the Politics of Difference (Princeton, NJ: Princeton University Press, 1990) at 48-65. See also Hamilton & Koshan, “Courting Confusion”, supra note 8 at 937; Sophia Moreau, “R v Kapp: New Directions for Section 15” (2008-09) 40 Ottawa L Rev 283 at 291-292; Young, “Unequal to the Task”, supra note 39 at 209. 127 This is because s 15(2) prevailed. See Hamilton & Koshan, “Courting Confusion”, supra note 8 at 928- 9. 128 Withler, supra note 14 at para 30, quoting Kapp, supra note 4 at para 17. 129 Withler, ibid at para 35. 130 Ibid at para 36. For a critical commentary on these definitions, see Hamilton & Koshan, “Meaningless Mantra”, supra note 8 at 48-49 (noting that the Court explains “perpetuation” rather than disadvantage, and that its explanation of “stereotyping” is essentially tautological). The Court provides more useful definitions of “prejudice” and “stereotyping” in Quebec v A, supra note 16. See infra note 201. ! ! 40 UNB LJ RD UN-B [VOL/TOME 64] ! than had Kapp.131 It noted that stereotyping may also perpetuate prejudice and disadvantage, but a group that is not historically disadvantaged may also be subjected to discriminatory stereotyping.132 This clears up the debate that had persisted since Turpin about whether equality rights claimants need to show pre- existing disadvantage.133 In cases of stereotyping, the answer appears to be no.134
Like Kapp, Withler confirmed the relevance of Law’s four contextual factors to the assessment of prejudice and stereotyping, and the Court added a fifth factor as well.135 Where the impugned law is part of a larger benefit scheme, the ameliorative effect of the law on others and the interests it attempts to balance will also influence the discrimination analysis.136 Showing a large degree of deference to the government, the Court indicated that “allocation of resources and particular policy goals that the legislature may be seeking to achieve” are relevant in the context of large benefit schemes.137 This approach seriously waters down the third factor from Law – the focus is no longer on other disadvantaged groups, let alone more disadvantaged groups, but on “others” writ large.138 It also imports section 1 considerations about balancing of interests and social policy goals into section 15. 2013 CanLIIDocs 114
Withler’s approach to comparative analysis under section 15(1) is also significant. As noted earlier, the Court’s analysis of comparators often created barriers to equality claims, especially when it took a mirror comparator approach.139 In Withler, the Court referenced the academic criticism of this approach, and admitted that it may result in formal equality where the focus is on comparing treatment of those who are similarly situated. It also acknowledged that the mirror approach may make intersecting grounds of discrimination more difficult to claim,
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 131 Kapp, supra note 4 at para 23. 132 Withler, supra note 14 at para 36. 133 See supra note 46 and accompanying text. 134 This point was confirmed in the opinion of Justice LeBel in Quebec v A, supra note 16 at para 182 (writing in dissent on s 15, but not on this point). Justice Abella’s majority decision on s 15 in Quebec v A focuses more heavily on historic disadvantage (see e.g. paras 318, 332, 349, 356), but does not state that it is necessary for a successful s 15 claim. 135 In Quebec v A, ibid at para 165, LeBel J categorizes the new factor introduced by Withler, supra note 14, as a second or alternative function attributed to the ameliorative contextual factor. 136 Withler, supra note 14 at para 38. 137 Ibid at para 67. 138 The third factor from Law, supra note 4, had been relaxed in earlier cases such as Lovelace, supra note 81 at paras 84-86, to focus on “other” disadvantaged groups that benefit programs might have been targeted, rather than “more” disadvantaged groups. 139 See supra note 103-10 and accompanying text. [2013] THE CONTINUAL REINVENTION 41 ! and may unfairly burden claimants to find the perfect comparator and to mount sufficient evidence to show differential treatment based on this comparison.140
The Court adopted a new, more flexible approach to comparison in Withler. At the first stage of the Kapp test, if the claimant establishes a distinction based on one or more protected grounds, the claim should proceed to the second step of the analysis, and there is no need to identify a particular comparator group. However, the Court indicated that this would be more difficult for claims of indirect discrimination, where the law on its face treats everyone the same but has an adverse impact on a particular group. Claimants in these cases “will have more work to do”, and may need to present evidence of historical or sociological disadvantage to show how the law imposes a burden or denies a benefit to them relative to others.141 At the second stage of the Kapp test, the Court noted that comparison may be of assistance in analyzing whether the law or government action perpetuates disadvantage or stereotyping.142
2013 CanLIIDocs 114 Applying these principles to the facts in Withler, the Court found that the legislation drew a distinction based on age, and the first step of the Kapp test was satisfied without the need to identify a particular comparator group.143 However, the Court held that this distinction did not amount to discrimination. The “central consideration” was said to be the overall purpose of the benefit scheme, the allocation of government resources, and legislative policy goals ― in other words, the new fifth contextual factor.144 Comparing the situation of the claimants to the beneficiaries of the broader benefit scheme, the Court found that the reduced death benefits were not discriminatory, as they did not fail to account for the claimants’ actual needs and circumstances.145
In its approach to comparator groups, Withler presents the second exception to our argument that the current reinvention of section 15 is the most problematic. The Court’s recognition of the problems with its mirror comparator approach is a positive step forward and has significant potential benefits for equality claimants.146 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 140 Withler, supra note 14 at paras 55-59 (citations omitted). 141 Ibid at para 64. 142 Ibid at paras 63-65. 143 Ibid at para 69. 144 Ibid at para 71. 145 Ibid at paras 72-73. 146 Withler’s (supra note 14) more flexible approach to comparators seems to have had a positive spillover effect in human rights cases. See Moore v British Columbia (Education), 2012 SCC 61 (finding that the courts below had taken too strict an approach to comparators in the context of educational services for ! ! 42 UNB LJ RD UN-B [VOL/TOME 64] ! It is somewhat ironic, however, that a mirror comparator approach might have actually exposed the discrimination inherent in the reduced supplementary death benefits for older widows.147 The Court’s statement that it will be more difficult to prove indirect or adverse effects discrimination claims, based on the need for comparative analysis in these cases, is another cause for concern. This may make it more challenging for groups such as persons with disabilities to make out section 15 claims, as many of the inequalities they face are based on laws that fail to take their particular needs and circumstances into account.148
We have already noted the difficulties with Withler’s addition of a fifth contextual factor in cases involving large benefit schemes. The importation of section 1 considerations into section 15 has been an issue since Justice McLachlin’s approach in Andrews was rejected, and as noted above, it resurfaced in the trilogy and in Law. Although the problems with this approach were acknowledged in Kapp in 2008, we see the Court return to a balancing approach under section 15 only three years later in Withler. The Court’s commitment to keep section 15 and section 1 considerations distinct, as first articulated in Andrews, was not kept in Withler. 2013 CanLIIDocs 114
A third concern with Withler is that even though the concepts are now defined with somewhat more detail, a continued focus on prejudice and stereotyping will make some section 15(1) claims difficult to mount, because only certain kinds of harm are recognized as discrimination.149 The Court’s decision that stereotyping may occur without proof of pre-existing disadvantage has the potential to promote substantive equality in some cases involving new forms of disadvantageous treatment ― for example, in the case of those who are stereotyped because of their genetic makeup. But it might also detract from substantive equality if cases like Trociuk, where the male claimant was not a member of a historically disadvantaged group, could be successful under this understanding of discrimination. The Court’s failure to consider the full context of the case in Withler — i.e. the vulnerability of the elderly widows150 — also suggests that stereotyping is overtaking disadvantage as the predominant definition of discrimination. This replicates one of the problems with the Law test, where the second contextual factor came to overshadow considerations such as pre-existing disadvantage.151
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! students with learning disabilities). Withler’s more flexible approach to comparators was also noted approvingly in Quebec v A, supra note 16 at paras 167-69, 189 by LeBel J, but not commented upon by Abella J. 147 See Hamilton & Koshan, “Meaningless Mantra”, supra note 8 at 52. 148 But see Malhotra, supra note 107 at 282-3 (noting that disability discrimination may also involve stereotyping and direct discrimination such as harassment). 149 Hamilton & Koshan, “Meaningless Mantra”, supra note 8 at 48-49. 150 Ibid at 56. 151 McIntyre, supra note 59 at 103-4. [2013] THE CONTINUAL REINVENTION 43 !
X. OTHER POST-KAPP SECTION 15(1) CASES
In other post-Kapp cases, section 15(1) claims have received minimal attention from the Court and have been dismissed in a few short paragraphs.152 Equality rights were not the focus of the claimants in most of these cases, yet they still provide useful illustrations of some of the problems with the Kapp approach to section 15. These cases were also subsequently relied upon by the Court as authority for the basic principles of their latest approach.153
For example, in Alberta v Hutterian Brethren of Wilson Colony, the Court reviewed a claim that Alberta’s mandatory photo requirement for drivers’ licences was unconstitutional in light of the belief of Hutterites that having their photos taken violates the second commandment.154 The main focus of the case was freedom of religion under section 2(a) of the Charter.155 A majority of the Court found the section 2(a) violation to be justified under section 1 and went on to summarily review and dismiss the section 15 argument as follows: 2013 CanLIIDocs 114
Assuming the respondents could show that the regulation creates a distinction on the enumerated ground of religion, it arises not from any demeaning stereotype but from a neutral and rationally defensible policy choice. There is no discrimination within the meaning of Andrews v Law Society of British Columbia, … as explained in Kapp.156
Once again the Court’s dismissal of equality rights seems to narrow the definition of discrimination to include only distinctions involving stereotyping. Moreover, its reference to a “neutral” policy choice ignored adverse effects
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 152 In addition to the cases discussed in this part, see also Ermineskin Indian Band and Nation v Canada, 2009 SCC 9, [2009] 1 SCR 222 [Ermineskin], where the Court dismissed a claim of discrimination in the context of First Nations’ property held in trust by the Crown under the Indian Act without a contextual inquiry into the treatment of “Indians” under the Indian Act. 153 See Withler, supra note 14 at paras 30, 31, 66, citing Ermineskin, supra note 152; at para 30 citing AC v Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 SCR 181 [AC]; and at paras 30 and 66 citing Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 SCR 567 [Hutterian Brethren]. See also Quebec v A, supra note 16 at paras 172, 178 (per LeBel J.) citing Ermineskin, supra note 152; at paras 171, 173 (per Lebel J) citing Hutterian Brethren, ibid; and at para 173 (per LeBel J) citing AC, ibid. 154 Hutterian Brethren, ibid. 155 Ibid at para 105 (indicating that “the s. 15 claim was not considered at any length by the courts below and addressed only summarily by the parties in this Court.”). 156 Ibid at para 108 (per McLachlin CJ). ! ! 44 UNB LJ RD UN-B [VOL/TOME 64] ! discrimination, and imported section 1 considerations about the rationality of government policy into section 15(1).157
In A.C. v Manitoba, the Court dismissed a section 15 claim of age discrimination in the context of a youth’s competency to make medical decisions, focusing its judgment on sections 2(a) and 7 of the Charter.158 A plurality of the Court in a judgment written by Justice Abella held that the competency of those under 16 to make such decisions was not based on any “disadvantaging prejudice or stereotype”, and did not amount to age-based discrimination.159 Justice Abella suggests that it will be very difficult to prove claims of age-based discrimination, citing the frequency with which the Court has dismissed such claims and quoting Chief Justice McLachlin’s remark in Gosselin that “age-based distinctions are a common and necessary way of ordering our society.”160 In a concurring judgment, Chief Justice McLachlin and Justice Rothstein found that the distinction between those under and over 16 was not discriminatory because it was “ameliorative, not invidious.”161 They improperly looked at amelioration in relation to the claimant rather than other groups, sending the message that even if a law treats a person 2013 CanLIIDocs 114 adversely, if it is for their own good it will not be discriminatory.162
In Ontario (Attorney General) v Fraser,163 the Court reviewed the constitutionality of the Agricultural Employees Protection Act, 2002,164 which created a specific labour relations regime for agricultural workers. The challenge centred on freedom of association under section 2(d) of the Charter, but also involved a claim that the regime involved discrimination based on status as an agricultural worker. The majority dismissed the section 15(1) claim, as they felt it had not been established that the regime “utilizes unfair stereotypes or perpetuates existing prejudice and disadvantage.”165 In a concurring judgment, Justice
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 157 See Hamilton & Koshan, “Terrorism or Whatever”, supra note 8 at 247-48. 158AC, supra note 153. A majority dismissed the claims under s 2(a) and s 7 as well. Writing in dissent, Justice Binnie found some support for the s 15(1) arguments, but ultimately found that “the real gravamen of A.C.’s complaint is … with the forced treatment of her body in violation of her religious convictions.”(at para 231). 159 Ibid at para 111. 160 Ibid at para 110, quoting Gosselin, supra note 89 at para 31. 161 Ibid at para 152. 162 The Court also took this approach in earlier cases. See Dianne Pothier, “But It’s for Your Own Good” in Margot Young, ed, Poverty: Rights, Social Citizenship, and Legal Activism (Vancouver: UBC Press, 2007) 40. 163 Fraser supra note 114. 164 SO 2002, c 16. 165 Fraser, supra note 114 at para 116 (per McLachlin CJ and LeBel J). Justice Abella, who dissented on the s 2(d) decision, did not consider s 15 of the Charter. [2013] THE CONTINUAL REINVENTION 45 ! Deschamps characterized the claim as one of “economic inequality”, which she found to be beyond the scope of section 15 of the Charter.166 Along with Justices Charron and Rothstein in a separate concurring judgment, she also found that employment status and the category of “agricultural worker” do not amount to analogous grounds protected under section 15.167
As noted, section 15(1) was not the major issue in these cases.168 Nevertheless, they show how challenging equality rights claims can be under the Kapp approach. The losses in these cases arguably flow from the narrow formulation of discrimination in Kapp and the Court’s failure to reconsider and reject the second contextual factor from Law, which continues to be the source of inappropriate section 1 considerations within section 15 analysis. The cases also suggest that some grounds are beyond the purview of section 15. As in Kapp, the cases fail to give guidance to claimants and lower courts about how to mount and assess equality claims because of their too brief analysis of those arguments.169
2013 CanLIIDocs 114 It is significant that no equality rights claims including or since Kapp have been successful at the Supreme Court.170 Of these losses, only Kapp can be seen as a victory for substantive equality in its dismissal of the “reverse discrimination” claim. While it has only been five years since Kapp was decided, it does not seem too soon to say that although the Court has acknowledged its critics and attempted to modify its approach to section 15(1) accordingly, the application of this approach has not been positive for equality seeking groups.
XI. SECTION 15(2): AFFIRMATIVE ACTION
To this point our discussion of Kapp has related to its implications for section 15(1) of the Charter. Kapp is also significant for changing the Court’s approach to section 15(2) from that of “interpretive aid” set out in Lovelace.171 In that 1997 case, the Court held that under section 15(2), laws, policies and programs aimed at improving the conditions of disadvantaged individuals or groups would generally be consistent !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 166 Ibid at para 315. 167 Ibid at paras 295, 315. 168 We do not dispute that equality can be advanced by non-section 15 cases; see Hughes, supra note 36 at 268-70. 169 See Hamilton & Koshan, “Courting Confusion”, supra note 8 at 928-29. 170 This was true even for dissenting judgments until Quebec v A, supra note 16, where five justices found a violation of section 15, but one of those five (Chief Justice McLachlin) found the violation to be justified under section 1. 171 Supra note 81 at 105-08. ! ! 46 UNB LJ RD UN-B [VOL/TOME 64] ! with the purpose of equality rights protections accorded by section 15, and could permissibly target certain groups for the provision of benefits. Ameliorative programs could not be underinclusive of the very people they were designed to assist, but exclusion from a targeted rather than a comprehensive program was less likely to be discriminatory.172
In Kapp, the Court departed from the interpretive aid approach, and decided that section 15(2) should have “independent force” in the section 15 analysis.173 Once a claimant proves a distinction made on an enumerated or analogous ground under the first step of the section 15(1) test, the government has an opportunity to prove that the impugned law, program or activity is ameliorative; if so, it is not discriminatory. If the government fails to demonstrate that its program falls under section 15(2), the law or program must then receive full scrutiny under section 15(1) to determine whether it is discriminatory.174
As a result of its new approach, Kapp also set out a new test for section 2013 CanLIIDocs 114 15(2). The government must prove that the law or program at issue has an ameliorative or remedial purpose, as opposed to effect. The ameliorative purpose must be genuine, although it need not be the sole purpose of the law or program, and it must be “plausible that the program may indeed advance the stated goal of combatting disadvantage.”175 The law or program cannot be restrictive or punitive. It must be aimed at a specific disadvantaged group, since section 15(2) is intended to protect targeted government programs rather than “broad societal legislation.”176 The Court explicitly avoided the language of “saving,” and noted that if the section 15(2) test is met, the program is by definition not discriminatory.177
On the facts of Kapp, the Court found that there was a distinction based on race under the first step of the section 15(1) test, as the claimant fishers did not have the same priority as the targeted First Nations fishers.178 However, the communal
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 172 Ibid at para 85. On the facts of the case, however, Law’s (supra note 3) second, “correspondence” factor operated to deny the claim of discrimination. See supra note 81 and 82 and accompanying text. 173 Supra note 4 at para 34. 174 Kapp, supra note 4 at para 40. 175 Ibid at paras 44-48, 51. 176 Ibid at paras 54-55. 177 Ibid at para 40. 178 For a critique of the finding that this distinction was race-based, see e.g. June McCue, “Kapp’s Distinctions: Race-Based Fisheries, the Limits of Affirmative Action for Aboriginal Peoples and Skirting Aboriginal People’s Unique Constitutional Status Once Again” (2008) 5 Directions 56. [2013] THE CONTINUAL REINVENTION 47 ! licence issued to the bands in question was seen as an ameliorative program targeted at a disadvantaged group, so the claim of “reverse discrimination” was defeated.179
The defeat of the section 15(1) claim in Kapp, on the basis that section 15(2) protects ameliorative programs targeting disadvantaged groups from claims of “reverse discrimination,” is the third exception to our general argument that the Kapp approach to equality rights is the Court’s worst. Kapp promoted substantive equality by dismissing the claim of generally more advantaged fishers that the communal licence intended to ameliorate historic disadvantage should be struck. However, Kapp left open the question of how section 15(2) should be approached in cases where underinclusive benefit programs are at issue, i.e., where a disadvantaged group claims that it was excluded from an ameliorative program in a discriminatory way.
XII. CUNNINGHAM AND UNDERINCLUSIVITY UNDER SECTION 15(2)
2013 CanLIIDocs 114 The Court dealt with an underinclusiveness claim in Cunningham in 2011.180 Cunningham involved Métis persons in Alberta who registered as status Indians to receive health benefits under the Indian Act,181 and as a result lost their status as members of a Métis settlement under the Metis Settlements Act.182 Their exclusion from the MSA resulted in a loss of benefits, including their ability to participate in their Métis community, their right to vote in Métis Council elections, and their right to continue to reside on or occupy Métis land.
In a unanimous decision written by Chief Justice McLachlin, the Court held that its approach to section 15(2) of the Charter under Kapp should also apply to underinclusive ameliorative programs. Noting that “it is unavoidable that ameliorative programs, in seeking to help one group, will necessarily exclude others,”183 it decided that governments could target particular disadvantaged groups as a matter of priority, leaving other disadvantaged groups out — even those persons who “share a similar history of disadvantage and marginalization.”184 This aspect of the ruling is an extension of Kapp, which dealt with a more advantaged group seeking to eliminate benefits that the government had provided. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 179 Kapp, supra note 4 at paras 58-61. 180 Cunningham, supra note 15. 181 Indian Act, RSC 1985, c I-5. 182 Metis Settlements Act, RSA 2000, c M-14 [MSA]. 183 Cunningham, supra note 15 at para 40. 184 Ibid at para 53. ! ! 48 UNB LJ RD UN-B [VOL/TOME 64] !
Although the Court avoided the language of underinclusivity in Cunningham, it held that exclusions that might otherwise be discriminatory are permitted if they “serve and advance” the object of the ameliorative program.185 This relaxes the burden on the government compared to that imposed in Kapp, which required that exclusions be “necessary” to advance the program’s goals.186 The Court also spoke of the “saving” effect of section 15(2) in Cunningham, further extending the impact of Kapp.187
Applying its test for section 15(2) to the facts of Cunningham, the Court found that the purpose of the MSA was “to enhance Métis identity, culture, and self- government through the establishment of a Métis land base,” and that this was an ameliorative purpose within the meaning of section 15(2).188 This framing of the purpose allowed the Court to conclude that the exclusion of status Indians from membership in Métis settlements did “serve and advance” the object of preserving distinctive Métis status. The exclusion was therefore seen as protected under section 2013 CanLIIDocs 114 15(2).189 The Court did not get to the issue of whether the MSA had discriminatory effects on the claimants, including those that perpetuated gender-based inequalities.190
Cunningham will make it difficult for disadvantaged groups to claim that they are wrongfully excluded from benefit programs. For example, persons with particular disabilities excluded from legislation or programs that focus on differently constructed disabilities will have an uphill battle after Cunningham.191 It is possible that Cunningham might be distinguished by other equality-seeking groups in future section 15 cases, as it dealt with what the Court called “a special type of ameliorative program … designed to enhance and preserve the identity, culture and self- governance of a constitutionally recognized group.”192 However, we are not hopeful, !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 185 Ibid at para 45. 186 Kapp, supra note 4 at para 52; Hamilton & Koshan, “Not Getting It”, supra note 8 at 65-69. 187 Cunningham, supra note 15 at paras 41, 44; Hamilton & Koshan, “Not Getting It”, supra note 8 at 65. 188 Cunningham, ibid at para 60. 189 Ibid at paras 72-83; Hamilton & Koshan, “Not Getting It”, supra note 8 at 67. 190 Ibid at 69 (citing Women’s Legal Education and Action Fund, Intervener Factum in Alberta (Minister of Aboriginal Affairs and Northern Development) v Cunningham, online: LEAF
XIII. CONCLUSION
There have been significant changes to the Supreme Court’s approach to sections 15(1) and (2) recently. However, despite a nod to criticisms of its earlier equality rights cases, and despite being presented with strong arguments that alternative approaches would take equality more seriously,194 the Court has made it very difficult for claimants to achieve success in cases where substantive equality principles warrant it. As Denise Réaume concluded, “[o]ne is tempted to conclude that the Supreme Court is bored with equality litigation, or finds it too difficult to actually work through the “elusive concept” of equality… and really doesn’t want to see any more equality cases. It has certainly done its utmost to discourage claimants.”195 Part of the problem is that the Court does not always follow through on its stated commitment to the goal of substantive equality, nor the principles it sets forth, when it actually applies section 15 to the facts of particular claims (as in 2013 CanLIIDocs 114 Withler).
There are some important equality rights challenges currently before the courts,196 so equality-seeking claimants are not yet giving up. What sort of approach should be taken in these cases to ensure that substantive equality is more likely to be achieved?
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 193 Supra note 10 at para 65. See generally Lessard, supra note 69, looking at social benefit challenges under s 15 from 1989 to 2012 and finding that “[a]ll the cases that are successful are ones in which rights recognition is costless, is of comparatively low cost, or is characterizes by the Court as an inexpensive or even money-saving outcome . . . [whereas all] of the cases in which rights recognition is ‘expensive’ fail”(ibid at 304). 194 In Cunningham, LEAF proposed an approach for cases of discriminatory underinclusion that would require full s 15(1) analysis. See LEAF Factum in Cunningham, supra note 190. 195 Réaume, supra note 191 (quoting Andrews, supra note 2 at 164). 196 See e.g. Tanudjaja et al v Ontario and Canada, Notice of Application (2010, ONSC) at 3, on-line: The Social Rights Advocacy Center:
The Court should continue to take a flexible approach to comparators, and must honour its commitment to undertake a contextual analysis of equality rights claims. It must also be open to accepting new and intersecting grounds of discrimination, including those related to economic disadvantage such as poverty and homelessness.198 Claims of age-based discrimination must also be given their due, 2013 CanLIIDocs 114 particularly where age intersects with other grounds, such as gender or poverty.
The Court’s consideration of how other individuals and groups may benefit or be affected by particular laws or programs, as seen in Withler, should be removed from section 15(1) and confined to section 1, and so should questions about the relevance or rationality of differential treatment in light of government objectives (i.e. Law’s correspondence factor). There should be less deference to government overall within section 15. In benefits cases, the Court is obviously worried about the cost of extending programs, but cost should be seen as relevant only to remedy, and not as an internal limit on section 15.199
In the realm of ameliorative programs, the Kapp approach to section 15(2) should be restricted to rejecting challenges by advantaged individuals or groups to affirmative action programs that attempt to remedy historic disadvantage. Challenges by disadvantaged groups to underinclusive programs should go through a full section 15(1) analysis, to allow the effects of exclusion to be comprehensively considered. Governments should not be permitted to rely on targeted benefit programs as an end- run around their obligation to promote equality. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 197 See Sophia Moreau, “The Wrongs of Unequal Treatment” (2004) 54 UTLJ 291. 198 Homelessness and poverty have not yet been recognized as analogous grounds under section 15. See e.g. R v Banks, 2007 ONCA 19 at paras 98-100, leave to appeal to SCC refused, [2007] SCCA No 139. But see Falkiner v Ontario (Minister of Community and Social Services), (2002) 59 OR (3d) 481 (CA), where receipt of social assistance was recognized as an analogous ground. 199 Schachter supra note 48 at 721-22 (per Lamer CJ). Budgetary concerns are also not a pressing and substantial objective for the purposes of s 1 of the Charter, short of a fiscal crisis. See Schachter, ibid; NAPE, supra note 10. See generally Lessard, supra note 69. [2013] THE CONTINUAL REINVENTION 51 !
To what extent have these suggestions been dealt with in the Supreme Court’s 2013 decision in Quebec v A?200 That case involved the exclusion of de facto spouses from Quebec’s Civil Code provisions dealing with spousal support and property division. A bare majority of the Court found that this exclusion violated section 15(1) of the Charter. Writing for that majority, Justice Abella reviewed the Kapp / Withler approach, and noted that the Court’s references to prejudice and stereotyping were not intended to “create a new s.15 test”, nor to impose “additional requirements” on equality claimants.201 Rather, stereotyping and prejudice should be seen as “two of the indicia” relevant to whether there is a violation of substantive equality.202 The majority seemed to accept that discrimination may involve other harms, such as oppression and denial of basic goods, and focused its analysis on broader questions of disadvantage.203 This aspect of the judgment does respond to one of our major concerns about the Kapp / Withler approach by broadening the definition of discrimination beyond prejudice and stereotyping. In contrast, the minority’s approach would have continued to focus on stereotyping and prejudice as
“crucial factors” in the identification of discrimination (although not the only 2013 CanLIIDocs 114 factors).204
Both Justice Abella and Justice LeBel acknowledged the place of adverse effects discrimination in the section 15(1) analysis, although the acknowledgements
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 200 It is difficult to predict the influence of Quebec v A, supra note 16, because the Court was as badly fractured as it was in the equality trilogy in the mid-1990s. There were four judgments. Abella J wrote only for herself but wrote the 5:4 majority judgment on the s 15(1) issue when Deschamps J (writing for herself, Cromwell J and Karakatsanis J) and McLachlin CJ (writing only for herself) indicated they agreed with her. LeBel J, writing for himself, Fish J, Rothstein J, and Moldaver J, wrote the dissent on the s 15(1) issue. However, on the issue of whether the violation of s 15(1) was justified under s 1, McLachlin CJ held that it was, thereby shifting the majority decision on the outcome — the decision that there was no (unjustified) discrimination — to the judgments of herself and LeBel J. Deschamps J agreed with McLachlin CJ that the discrimination was justified with respect to the property-sharing exclusion but held that it was not justified for the spousal support-sharing exclusion. Abella J held that neither exclusion was justified under s 1. LeBel J wrote at such length on the s 15(1) issue — 282 paragraphs of the 450 paragraph judgment — and with such obvious passion that his decision may yet influence the future direction of equality jurisprudence. See especially his conclusion that Abella J’s approach would reduce any analysis of discrimination claims to the simple requirement that only an adverse distinction need be proved, and his warning that her approach therefore deprived lower courts of guidance and potentially affected the legitimacy of their decisions (ibid at para 268). 201 Quebec v A, supra note 16 at paras 325, 327. The majority also provided definitions of prejudice and stereotyping, which recognized that those terms capture discriminatory attitudes, whereas section 15(1) must also protect against discriminatory conduct and impacts (at paras 326-328). 202 Ibid at para 325. 203 Ibid at para 325 (citing Moreau, supra note 126 at 292) and paras 349-357. 204 Ibid at paras 169, 185 (per LeBel J). ! ! 52 UNB LJ RD UN-B [VOL/TOME 64] ! were brief and the case itself did not involve adverse effects discrimination.205 Quebec v A therefore does not respond to our concerns about the shortcomings of the Kapp / Withler approach for adverse effects cases, except to the extent that the majority minimized the focus on stereotyping and prejudice, which are more difficult to prove in adverse effects cases.
The majority also indicated that courts should avoid a focus on government objectives and rationality under section 15(1), noting that this inquiry belongs under section 1 of the Charter.206 In the case at hand, this meant that considerations of the policy objective behind the exclusion of de facto spouses, which was based on their choice of that relationship, should be left to section 1.207 The majority’s deferral of government objectives to section 1 also responds to one of our major critiques of the Kapp / Withler approach, although it remains to be seen whether this deferral will prevail in cases involving government benefits rather than private benefits. We also note that there is one point in her judgment where Justice Abella refers to “arbitrary disadvantage”,208 suggesting a continued place for government objectives under section 15, but this may have been simply an unfortunate choice of words.209 2013 CanLIIDocs 114
Although a majority of the Court in Quebec v A dealt with two of the issues that we see as critical to the next reinvention of section 15, we still believe that we are not there yet. It will take an adverse effects discrimination claim to truly test the Court’s commitment to an effects based analysis that goes beyond stereotyping and prejudice, is flexible towards comparators, and leaves government objectives to section 1. Moreover, as noted above, Quebec v A did not involve a “dollars versus rights controversy”, nor a case of targeted government benefits that were provided in an underinclusive way. We must wait and see whether the Court will be open to reinventing its approach to section 15(1) and (2) in such cases. The Court’s openness to new grounds of discrimination also remains to be tested.
We encourage claimants, lawyers and courts to continue to think about what substantive equality really means, and to advocate and adopt legal approaches that
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 205 Ibid at para 171(per LeBel J) and paras 328, 355 (per Abella J). 206 Ibid at para 333. 207 Ibid at paras 334-38. The majority thus “decline[d] to follow Walsh” at para 338 (see Walsh, supra note 90). The dissenting judges on the s 15(1) issue relied upon choice in finding no discrimination (at paras 256-267), and choice formed the basis of Chief Justice McLachlin’s swing judgment, where she held that the violation of s 15 could be justified under s 1 of the Charter (at paras 435-448). 208 Ibid at para 331. 209 Justice Abella’s opinions in the human rights context often reference “arbitrary” discrimination as well. See e.g. Moore, supra note 146 at paras at paras 26, 59, 60, 61; McGill University Health Centre (Montreal General Hospital) v Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4, [2007] 1 SCR 161 at paras 48-49. [2013] THE CONTINUAL REINVENTION 53 ! will actually achieve it. We are not there yet, but perhaps the next reinvention of section 15 will reinvigorate the promise of equality. 2013 CanLIIDocs 114
! ! !
THE MARRIAGE OF HUMAN RIGHTS CODES AND SECTION 15 OF THE CHARTER IN PURSUIT OF EQUALITY: A CASE FOR GREATER SEPARATION IN BOTH THEORY AND PRACTICE
A. Wayne MacKay*
I. INTRODUCTION: FROM ENRICHMENT TO CONTAMINATION 55 II. BACK TO BASICS: DIFFERENT INSTITUTIONAL ROLES AND APPROACHES 57 a. CHALLENGING BENEFIT SCHEMES – BLURRING THE LINES 61 ESTS FOR ISCRIMINATION ECTION OF THE HARTER III. T D : S 15(1) C 2013 CanLIIDocs 114 AND O’MALLEY’S PRIMA FACIE CASE 62 a. THE ANDREWS ERA: HAPPY UNION 62 b. THE LAW ERA: STRAINS EMERGE 65 c. CONVERGENCE ON GOVERNMENT BENEFITS 67 d. THE LAW/DIGNITY HANGOVER 70 e. THE KAPP ERA: NEW TESTS? 73 IV. COMPARATOR GROUPS IN THE HUMAN RIGHTS CONTEXT 75 a. ACADEMIC CONCERNS ABOUT COMPARATORS 76 b. THE MOORE CASE 77 c. CHILD WELFARE SERVICES FOR FIRST NATIONS CHILDREN 81 V. AMELIORATIVE PRACTICES AND PROGRAMS UNDER SECTION 15(2) OF THE CHARTER AND UNDER HUMAN RIGHTS CODES 83 a. THE DANGERS OF A TOUGH LOVE APPROACH 83 b. PURPOSES VERSUS EFFECTS 85 c. RATIONAL CONNECTION 85 d. AMELIORATIVE OBJECT 87 e. AMELIORATIVE/SPECIAL PROGRAMS 88 VI. JUSTIFICATIONS FOR DISCRIMINATION: SECTION 1 OF THE CHARTER AND THE BONA FIDE JUSTIFICATIONS 90 a. MEIRORIN/GRISMER ANALYSIS 91 b. PARALLELS BETWEEN REASONABLE ACCOMMODATION AND SECTION 1 CHARTER ANALYSIS 92 c. DEFERENCE IS CRITICAL 94 VII. PRACTICAL IMPLICATIONS FOR EQUALITY SEEKERS: REMEDIES OF LAST RESORT 97 a. ACCESS TO JUSTICE 101
* A. Wayne MacKay, CM, QC, is Professor of Law at Dalhousie University, Schulich School of Law. This paper was written with assistance from Gillian Angrove and Victoria Young. [2013] THE MARRIAGE OF HUMAN RIGHTS CODES AND SECTION 15 55
I. INTRODUCTION FROM ENRICHMENT TO CONTAMINATION
Like many marriages, the equality provisions of the Charter of Rights and Freedoms and Canada’s human rights codes began with the hope and expectation that the experiences of each one would enrich the other. Both legal structures pursue a fairer and more egalitarian society, and there was optimism that the two traditions would reinforce each other and make life better for victims of discrimination. In an evolving symbiotic relationship, the concept of substantive equality would be advanced and Commissions, Tribunals and Courts would collaborate in producing a more egalitarian Canadian society. While not stated in these grandiose terms, these were the seeds planted by Justice McIntyre in the first section 15 case of Andrews v BC Law Society. In Andrews, McIntyre J advocates building the Charter’s equality jurisprudence on the foundation of Canada’s experiences with statutory human rights codes.1
Unfortunately as with too many marriages, the union of Charter equality 2013 CanLIIDocs 114 and human rights codes has not always been a positive one and the Charter has become more of a burden than a benefit to its statutory partner. Indeed, many now argue that the importation of Charter equality concepts into the interpretation of human rights codes has limited the goal of substantive equality and reduced access to justice for front line victims of discrimination. As Professor Leslie Reaume rightly argues, the nature of the Charter should be a source of enrichment for human rights codes and not a source of contamination.
[B]orrowing from the Charter context to the statutory context is appropriate so long as the exercise enriches the substantive equality analysis, is consistent with the limits of statutory interpretation, and advances the purpose and quasi-constitutional status of the enabling statute. The objection raised in this paper is not to the interplay but to the manner in which Charter principles, specifically those articulated in the decision in the Charter, are imported and then allowed to dominate an analysis which should be driven first by the principles of statutory interpretation, and second by the jurisprudence which has developed specifically in the regulatory context. 2
One of the ways in which the Charter might enrich human rights code jurisprudence would be in respect to theory. Both mechanisms are intended to reduce
1 Andrews v Law Society of British Columbia [1989] 1 SCR 143, at 175. He does also recognize that there are differences between the statutory and constitutional structures as well as points of convergence.
2 Leslie Reaume, “Postcards from O’Malley: Reinvigorating Statutory Human Rights Jurisprudence in the Age of the Charter” in Fay Faraday, Margaret Denike, and M Kate Stephenson, eds, Making Equality Rights Real: Securing Substantive Equality under the Charter (Toronto, Irwin Law, 2006) at 375. 56 UNB LJ RD UN-B [VOL/TOME 64]
discrimination in Canadian society and advance the cause of substantive equality. Substantive equality takes account of differences where appropriate and recognizes that formally neutral rules can have adverse and discriminatory effects on vulnerable groups in society. Thus one could expect some overlap in theory and even the legal tests to be applied. However, the marriage of the two systems has its limits in theory as well as practice.
Theory is about thinking systematically about what we think the ultimate goals are. In this sense there is nothing as practical as good theory. It helps decision- makers understand the value choices that they make. However, theory must be set in a practical and specific context and leave room for flexibility. This is true in all areas of the law but is particularly relevant to the complex pursuit of equality.
Theories, structures, and tests help to produce predictability and certainty in the law, including laws pertaining to equality. On the other hand, flexibility and context are always important in producing justice and equality in a particular case. 2013 CanLIIDocs 114 The challenge is to strike the correct balance between structure and predictability on the one hand and flexibility and context on the other.
The case-by-case bottom up approach of the common law has been rejected in respect to discrimination in favour of a more theoretical top down approach to equality.3 This is an important reality in the consideration of a balanced equality structure in Canada.
Professor Denise Reaume contrasts two methodologies for the design and development over time of legal norms: the top-down model of the comprehensive code designed to bring to life a grand theory about the norms regulating human interactions, and the bottom-up model of case-by-case analysis, aiming toward the development of a set of principals explaining and justifying individual decisions. The author argues the latter is better suited to creating and changing norms in the discrimination law area. However, the abdication of responsibility by the common law has led to the legislatures intervening in their typical top-down style. Without a grand theory (e.g., definition of discrimination etc.) the statutory rules become arbitrary pigeonholes into which complainants must fit their fact situation or fail.4 In early Charter section 15 cases such as Egan v Canada, Justice L’Heureux-Dube expresses a similar frustration with an excessive focus on grounds of discrimination into which all claims must be fitted.
3 Seneca College v. Bhaudaria, [1981] 2 SCR 181. 4 Denise G Reaume, “Of Pigeonholes and Principles: A Reconsideration of Discrimination Law” (2002) 40 Osgoode Hall LJ 113. [2013] THE MARRIAGE OF HUMAN RIGHTS CODES AND SECTION 15 57
By looking at the grounds for the distinction instead of at the impact of the distinction on particular groups, we risk undertaking an analysis that is distanced and desensitized from real people’s real experiences.5
Because of the limited role played by courts in pursuing equality and the rejection of a common law bottom up approach to equality, human rights codes play an important and continuing role in pursuing equality. There is obviously room for overlap and cross fertilization between the Charter and human rights codes but the tests and theories that properly apply in one context do not necessarily work in the other one. Some marriage of the two structures may well be fruitful, but the distinct and separate identities of the two partners should not be lost. As will be explored in the next section, courts and human rights tribunals play different institutional roles within the Canadian legal structure.
II. BACK TO BASICS: DIFFERENT INSTITUTIONAL ROLES AND APPROACHES
As with many complex legal problems it may be helpful to get back to some basics. 2013 CanLIIDocs 114 Section 15 of the Charter is a constitutional provision that is entrenched and superior to other forms of law. Human rights codes are statutes, and while frequently described as “quasi-constitutional”, they are not entrenched and can still be changed by the normal process of a majority vote in the relevant legislature. Thus one would expect that section 15 of the Charter would be a more powerful guardian of equality than statutory human rights codes. Both the Charter and human rights codes are committed to pursuing substantive equality and therefore a critical question arises: when should the two institutional structures converge and diverge?
Bruce Ryder, Cidalia Faria and Emily Lawrence refer to Eldridge v British Columbia to say that:
Section 15 has two purposes: ensuring that laws avoid treating individuals according to irrelevant personal characteristics, and ensuring that laws avoid further subordination of already disadvantaged groups.6
The authors also note that section 15 of the Charter raises some fundamental questions about the different roles of the institutional players in a Canadian democracy.
5 Egan v Canada, [1995] 2 SCR 513 at para 53. L’Heureux-Dube’s approach is supported and elaborated in Daphne Gilbert, “Time to Regroup: Rethinking Section 15 of the Charter” (2003) 48 McGill LJ 627- 649. 6 Bruce Ryder, Cidalia C. Faria & Emily Lawrence, “What’s Law Good For? An Empirical Overview of Charter Equality Rights Decisions” (2004) 24 Sup Ct L Rev (2d) 103, at 107. – citing Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624 at para 54. This same approach was supported in later cases such as Eaton v Brant County Board of Education, [1997] 1 SCR 241. 58 UNB LJ RD UN-B [VOL/TOME 64]
In a society characterized by persistent inequalities, the judiciary could enlist section 15 in the redistribution of a wide range of legal and material entitlements. Section 15 thus implicates, in a particularly profound manner, the appropriate division of responsibility between courts and legislatures in a constitutional democracy.7
Courts have been cautious in their approach to section 15. This may be because section 15 deals with such fundamental values, and courts believe these fundamental issues are better suited to the legislative or executive branches. Thus courts have been inclined to be deferential to the other levels of the state at both the violation and section 1 limitation stages.
This may in part explain the low success rate for section 15 claims, compared to those under most other sections of the Charter. Ryder’s study is one of the few empirical studies and it considered more than 350 cases (including some lower court rulings) between 1989-2004. 2013 CanLIIDocs 114
Overall, the data suggests that the success rate of section 15 claims has been relatively low, compared to Charter claims generally, throughout the Andrews decade and the first five years under Law. The data does not support the view that the Andrews test operated in a manner more supportive of equality claimants. Nor does it support the view that the courts have been particularly receptive to the claims of equality-seeking groups. For example, examining the record of Supreme Court decisions, it is striking that six of the nine grounds of discrimination listed in section 15 have not given rise to a single successful claim (race, national origin, ethnic origin, colour, religion, mental disability). Since there have been either no claims considered by the Court, or very few, on each of these grounds, this is a reminder that the costs of litigation remain the most formidable barrier to the affirmation and protection of equality rights….
Interestingly, the success rate of claims based on sex discrimination is 25 percent (2/8), and in the two successful cases, the claimants were men.8
The deference shown by courts in section 15 claims is even more pronounced when the effect of a successful claim would be to require the relevant government to spend significant sums of money.9 The reluctance of courts to act is even greater when the rights claim can be construed as a positive obligation on the state rather than a negative prohibition to refrain from acting.
7 Ryder, ibid at 104. 8 Ibid at 115. 9 Gosselin v Quebec (Attorney General), 2002 SCC 84, 4 SCR 429 and Auton (Guardian ad litem of) v British Columbia (Attorney General) 2004 SCC 78, 3 SCR 657 are but two examples of this. Moore v. British Columbia 2012 SCC 61 is at least in part an exception to this rule. [2013] THE MARRIAGE OF HUMAN RIGHTS CODES AND SECTION 15 59
The recognition of a positive dimension to rights to equality and rights to life, liberty and security of the person, and the imposition of corresponding obligations on government, is important for many equality- seeking groups, especially for people with disabilities.…
Courts’ reluctance to impose positive obligations on government under rights to equality can be largely attributed to deference toward executive and legislative decisions on the allocation of scarce resource and the prioritization of competing policy concerns.10
The comparative role of courts and human rights tribunals in respect to social and economic rights has been explored elsewhere.11
While there is no doubt that the courts are the primary players in a section 15 Charter claim, both the legislative and executive branches have roles to play in respect to human rights codes. It is the relevant legislature that enacts the codes and has the authority to amend or even repeal the statutes. Both the commissions and 2013 CanLIIDocs 114 tribunals are created by statute and are in some respects extensions of the executive branch of government, even though they claim a measure of independence.
Other academic commentators have explored the differences in institutional structures:
Ontario’s Human Rights Code is provincial legislation, it can be, and has been, amended in the manner of any other provincial legislation. It binds the Crown and prevails over other legislation. The Supreme Court has repeatedly described human rights legislation as fundamental and quasi- constitutional. The Code applies to particular areas of social life rather than to particular social actors, and it applies equally to government and private actors. The Code is a comprehensive scheme, and it specifically identifies which groups have been subjected to historic disadvantage and are to be protected by legislation.12
Denise Reaume emphasizes the opportunity for the legislature to balance the competing interests at play in equality claims, within the statutory structure itself.
The structure of the OHRC makes clear that the legislature has taken great pains to balance the right to equal treatment and the legitimate interests of
10 Cara Wilkie & Meryl Zisman Gary, “Positive and Negative Rights under the Charter: Closing the Divide to Advance Equality” (2011) 30 Windsor Rev Legal Soc Issues 37 at 38 and 44 respectively. 11 Wayne MacKay, “Social and Economic Rights in Canada: Who Can Best Protect Them?” (2009) 45 Sup Ct L Rev 385. 12 Lesli Bisgould, “Twists and Turns and Seventeen Volumes of Evidence, or How Procedural Developments Might Have Influenced Substantive Human Rights Law” (2012) 9 JL & Equality 5 at 17. 60 UNB LJ RD UN-B [VOL/TOME 64]
respondents. If its complex structure achieves that balance fairly through the interplay of factual prima facie case and variously tailored exemptions, there is no reason to tamper with it. The significance of the spheres included in the codes, together with creating exemptions wherever fairness requires, seals the argument that narrowing the scope of discrimination by increasing the threshold at the prima facie stage is an unworthy interpretation of the codes. It is precisely the significance of the spheres in this balance that the Court of Appeal seems not to appreciate in Tranchemontagne.13
Leslie Reaume provides a good review of the points of convergence and divergence between the Charter and human rights codes. She notes that the two are similar in that:
Both the Charter and human rights statutes share the goal of achieving substantive equality, and are driven by similar underlying principles, such
as the promotion of human dignity, the recognition of the benefits of 2013 CanLIIDocs 114 diversity, and the pursuit of activities related to full citizenship: all of these principles ground a broad, liberal, purposive interpretation by adjudicators and courts. In both arenas, discrimination means something more than mere distinction. Both schemes are also anti-majoritarian instruments, and adjudicators and judges frequently attract criticism for “activism” on interpreting them in favour of claimants. They are also beset by the same challenges in attempting to advance substantive equality within the limits of “prohibited grounds.” 14
She goes on to note that the two structures diverge in that they “arise in different social and legal contexts which is a significant factor in the interpretation of those instruments, including the development of definitions of discrimination.”15 Leslie Reaume also considers that “[h]uman rights legislation is regulatory in nature. It establishes and regulates a limited set of entitlements and expectations between individuals in the context of their private relationships and in the interaction of individuals with government service providers and employers”.16 Comparatively, the Charter “prohibits discrimination which arises by the application or operation of law and is invoked only against a government actor.”17 Finally, Leslie Reaume notes that the Charter has “much greater potential for advancing the equality rights of
13 Denise Reaume, “Defending the Human Rights Codes from the Charter” (2012) 9 JL & Equality 67 at 94. 14 Supra note 2 at 382. 15 Supra note 2 at 383-384. 16 Supra note 2 at 384. 17 Supra note 2 at 384. [2013] THE MARRIAGE OF HUMAN RIGHTS CODES AND SECTION 15 61 historically disadvantaged groups, through a focus on the experience of dominance and subordination that arise through the operation of law and government policy.”18
There are also other important differences such as the different dispute resolution processes. The human rights structures offer a wide variety of processes including mediation and more recently restorative approaches, before reaching a more adversarial tribunal stage. Also, human rights commissions and tribunals may have more comparative expertise in human rights than more generalist courts. They operate in related but different contexts and many of the problems that will be discussed in this article arise from a failure to take proper account of the different contexts and institutional roles.
A. CHALLENGING BENEFIT SCHEMES – BLURRING THE LINES
Claire Mumme links these contextual differences to the comparative roles of the
Charter and human rights codes in the pursuit of equality in Canada. Problems have 2013 CanLIIDocs 114 particularly arisen since human rights codes have been used to challenge government benefit schemes in ways that have traditionally been done by a constitutional challenge.
In a system of government that is based on parliamentary sovereignty as well as on a separation of powers between the legislature, executive, and judiciary, the human rights codes have come to take on an extraordinary role, and the human rights tribunals have come to occupy an unusual position. The codes, which are ordinarily enacted statutes (albeit quasi- constitutional ones), have been used to review the substance and administration of other statutes, in a manner that is seemingly at odds with the principles of parliamentary sovereignty, according to which only the Constitution limits the legislature's ability to legislate. And the tribunals, hybrid executive judicial actors, have been able to act as arbiters of decisions by the executive and legislative branches of government in regard to public spending.19
The author provides an historical account of human rights litigation, going back to the Bill of Rights and then forward. The historical account focuses on government services cases in the era of the Bill of Rights, pre-Charter, Charter, and post-Law and examines what led the courts to allowing quasi-constitutional tribunals to decide on other statutes/statutory schemes. This is illustrated through case-law.
The expanding reach of human rights statutes suggests that its adjudicators now rival the superior courts as sites for public law adjudication. However, it is perhaps also exactly for this reason that the
18 Supra note 2 at 384. 19 Claire Mumme, “At the Crossroads in Discrimination Law: How the Human Rights Codes Overtook the Charter in Canadian Government Services Cases” (2012) 9 JL & Equality 103, at 106-107. 62 UNB LJ RD UN-B [VOL/TOME 64]
door has opened to the use of constitutional jurisprudence in the statutory framework and that judicial decision makers have been receptive to claims of merger between these two instruments. Put simply, while the questions of the human rights codes' supremacy and of what constitutes a "service" have been effectively closed, a new unease has emerged with using an administrative tribunal to review legislative and executive decisions under a less deferential standard than is brought to the same questions under the Charter.20
We agree with Mumme that the government services cases are at the heart of the process of blurring the lines between equality challenges under human rights codes and the Charter. It does seem contrary to the natural constitutional order that government programs can be more effectively challenged by human rights codes than section 15 of the Charter. However, this may reflect more on the high degree of deference shown in Charter equality claims and the answer is not to treat the human rights challenges in the same way. If the view is that human rights code challenges are going too far in the benefits area, the relevant statutes can be amended by the legislature. The problems of merging the section 15 Charter approaches with those at 2013 CanLIIDocs 114 the prima facie stage of human rights code analysis are further magnified when these codes are applied in the private sector.
We turn in the next section to the complex questions arising from importing the more demanding Charter standard for finding an equality violation into the human rights code context. The case for some degree of separate approaches is fortified by the larger issues of institutional roles discussed above.
III. TESTS FOR DISCRIMINATION: SECTION 15(1) OF THE CHARTER AND O’MALLEY’S PRIMA FACIE CASE
A. THE ANDREWS ERA: HAPPY UNION
As alluded to earlier, the original Andrew’s test for finding a violation of section 15(1) of the Charter was based on the approach to discrimination in statutory human rights codes. Indeed Justice McIntyre emphasizes in Andrews that section 15 of the Charter is not an all-purpose guarantee of equality but rather a ban on discrimination pursuant to laws. The cornerstone of section 15 in McIntyre’s analysis is discrimination, and does not envision remedying all distinctions, even those with adverse effects. The origins of this cross fertilization between section 15 of the Charter and human rights codes is succinctly recognized and affirmed by the
20 Ibid at 135. See also supra note 2 at 374. Reaume emphasizes that there are two major consequences of importing a Charter standard – (1) raising the burden of proof and (2) diverting attention from the human rights statue. [2013] THE MARRIAGE OF HUMAN RIGHTS CODES AND SECTION 15 63 following passage from the well articulated reasons of Justice Rowles in British Columbia (Ministry of Education) v Moore.
Without doubt, there is considerable cross-fertilization between statutory human rights cases and equality cases decided under the Charter. In Andrews v Law Society of British Columbia, [1989] 1 S.C.R. 143, 56 D.L.R. (4th) 1 [Andrews cited to S.C.R.], the first decision of the Supreme Court of Canada under s. 15 of the Charter, McIntyre J. held, at 175, that, in general, the principles which have been applied under human rights codes are equally applicable in considering questions of discrimination under s. 15(1) of the Charter. He defined “discrimination” for the purposes of s. 15(1) by reference to prior human rights jurisprudence, as follows (at 174):
I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, 2013 CanLIIDocs 114 benefits, and advantages available to other members of society.
Subsequent to Andrews, the interplay has continued and McIntrye J.’s description of discrimination has been regularly employed in the adjudication of statutory human rights claims: see Battlefords and District Co-operative Ltd. v. Gibbs, [1996] 3 S.C.R. 566, 140 D.L.R. (4th) 1 at para. 20 [Gibbs]; McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4, [2007] 1 S.C.R. 161 at para. 47, Abella J. concurring; International Forest Products Ltd. v. Sandhu, 2008 BCCA 204, 82 B.C.L.R. (4th) 35 at paras. 24–32 [Sandhu].21
The interplay between the Andrews definition of discrimination and the same concept in human rights codes is emphasized not only by its use in adjudicating human rights cases but also its inclusion as the statutory definition in the Nova Scotia Human Rights Act.22 Furthermore, academic commentators have identified human rights jurisprudence as one of the key sources for giving meaning to the elusive concept of Charter equality.
In resolving the challenges posed by section 15 of the Charter, the courts have drawn significant guidance from anti-discrimination jurisprudence developed under Canadian human rights statutes, from the experience of other nations and from international law.23
21 British Columbia (Ministry of Education) v. Moore 2010 BCCA 478 at paras 40 and 41, 12 BCLR (5th) 246. 22 Nova Scotia Human Rights Act, RSNS 1989, c 214, s 4. 23 Ryder, supra note 6 at 105. 64 UNB LJ RD UN-B [VOL/TOME 64]
It would thus appear that there was considerable convergence between the concept of discrimination in human rights codes and the constitutional concept of equality as articulated in Andrews. The marriage of section 15 of the Charter and human rights codes appeared to be a beneficial union. In these happier days there was no suggestion that the Charter approach to equality replaced the established test for finding a prima facie case of discrimination as articulated by the Supreme Court of Canada in Ontario (Human Rights) v Simpsons Sears Ltd. (referred to as O’Malley).24 The essence of this test is set out by Justice Rowles in Moore as follows:
To make out prima facie discrimination in the provision of a service under s. 8(1) of the Code pursuant to O’Malley, human rights cases have generally held that a complainant must establish on a balance of probabilities that:
1. There is a service customarily available to the public; 2. The complainant is a member of a group possessing a characteristic 2013 CanLIIDocs 114 or characteristics protected under the Code; 3. The complainant was denied the service, or was discriminated against in the provision of a service; and 4. The protected characteristic was a factor in the denial or discrimination.25
In line with her general agreement with the dissenting opinion of Justice Rowles in the British Columbia Court of Appeal, Justice Abella for the Supreme Court of Canada in Moore v British Columbia agrees with the above description of the prima facie case test.
As the tribunal properly recognized, to demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur.26
This is a clear indication that the Supreme Court of Canada does not agree with those who argue that the traditional human rights code test for violation has
24 Ontario (Human Rights Commission) v Simpsons Sears Ltd., [1985] 2 SCR 536 [O’Malley]. 25 Supra note 21 at para 36. 26 Moore, supra note 9 at para 33. [2013] THE MARRIAGE OF HUMAN RIGHTS CODES AND SECTION 15 65 been modified by the section 15 Charter jurisprudence. As the following pages indicate not everyone saw it so clearly.
B. THE LAW ERA: STRAINS EMERGE
Problems began to develop after the reformulation of the test for section 15 violations in Law v Canada (Minister of Employment and Immigration).27 In simple terms the Law test repeated the Andrews requirements for a (1) distinction (by either an action or failure to take account of differences); (2) based upon an enumerated or analogous ground but added that (3) the action or omission is only discriminatory if it imposes a burden or withholds a benefit in a way that promotes stereotypes or a view that the claimant is less worthy of recognition. This third element required that the claimant prove a violation of “dignity” a term that is at least as elusive as the concept of equality itself.
This was widely regarded by academics and others as narrowing the scope 2013 CanLIIDocs 114 of Charter equality. The change placed additional burdens of proof on the claimant and imported balancing considerations into the section 15 analysis that should have been considered at the section 1 justification stage.28 As the cases unfolded these problems did emerge29 and the concerns about a retreat from substantive to formal equality were validated (at least in part) by the Supreme Court of Canada in Kapp.30 It is interesting to note that in a rare empirical study of the claimants’ success rates under section 15 of the Charter, the success rate actually improved under the Law test compared to the Andrews decade. However, Ryder et al. suggest there are many qualifications to this surprising conclusion.31 One limitation is that their study covers only the first 5 years of the Law era.
Some human rights tribunals and courts began to import both the violation of “dignity” component from Law, and a more formal comparator group analysis. The latter will be discussed further on in this article. In British Columbia Government and Service Employees’ Union v British Columbia (Public Services
27 Law v Canada (Minister of Employment and Immigration), [1999] 1 SCR 497. 28 R v Kapp, 2008 SCC 41, at para 22, 2 SCR 483. The Court noted that “as critics have pointed out, human dignity is an abstract and subjective notion that, even with the guidance of the four contextual factors, cannot only become confusing and difficult to apply; it has also proven to be an additional burden on equality claimants, rather than the philosophical enhancement it was intended to be. Criticism has also accrued for the way Law has allowed the formalism of some of the Court's post-Andrews jurisprudence to resurface in the form of an artificial comparator analysis focused on treating likes alike.” 29 See Gosselin, supra note 9 and Canadian Foundation for Children, Youth and the Law v Canada (Attorney General), 2004 SCC 4, 1 SCR 76. 30 Kapp, supra note 28. 31 Ryder, supra note 6. 66 UNB LJ RD UN-B [VOL/TOME 64]
Employee Relations Commission) (referred to as Reaney)32 and British Columbia School Employers’ Association v British Columbia Teachers’ Federation (referred to as Teachers)33 the courts applied the Law test in the human rights code context. In Reaney the concern was with the term of a collective agreement that was premised on a government benefits program, which had been found to not violate section 15 of the Charter. Lambert J.A. found that the Law test was a relevant point of reference, even if not applied as a strict test.
In the Teachers case, also in a labour context and involving employee benefits and the possible co-ordination of benefits between married teachers, the allegation was discrimination based upon marital status. Once again some of the justices referred to the Law test as well as the traditional O’Malley test for a prima facie case of discrimination.
In a third British Columbia case, Armstrong v British Columbia (Ministry of 34 Health) the issue was the discrimination on the basis of sex for providing less 2013 CanLIIDocs 114 funding for the prevention by screening of prostate cancer, compared to breast cancer in women. The human rights tribunal found no violation by applying parallel Law and O’Malley analyses and that decision was reversed on judicial review at the trial level, because of the Law analysis. At the British Columbia Court of Appeal the original tribunal decision was restored on the basis that the Law analysis was only an alternative analysis.
In reaching this decision Justice Tysoe in Armstrong made a clear case for continuing to treat Charter and human rights code situations as both overlapping but still distinct.
There is considerable promise in maintaining distinct analytical frameworks between the Charter and the statutory human rights arenas. The challenge will be to find ways to develop analytical concepts which give life to the purposes which underlie these important instruments, appreciating that they are linked by the grander purpose of eradicating discrimination. The goal should be an interactive framework which provides opportunities for enriching equality rights jurisprudence and advancing substantive equality without supplanting the principles developed specifically for the issues which arise in these two distinct contexts.35
32 British Columbia Government and Service Employees’ Union v British Columbia (Public Services Employee Relations Commission), 2002 BCCA 476, 4 BCLR (4th) 301 [Reaney]. 33 British Columbia School Employers’ Association v British Columbia Teachers’ Federation, 2003 BCCA 323, 15 BCLR (4th) 58. 34 Armstrong v British Columbia (Ministry of Health), 2010 BCCA 56, 2 BCLR (5th) 290. 35 Ibid at para 36. [2013] THE MARRIAGE OF HUMAN RIGHTS CODES AND SECTION 15 67
It is interesting that his sentiments echo those of some academic commentators calling for an interactive process that enriches but does not limit.36
C. CONVERGENCE ON GOVERNMENT BENEFITS
It is not accidental that the above British Columbia cases are governmental in nature and involve in some way the distribution of benefits. Benjamin Oliphant argues that the application of a Charter-like test at the prima facie stage appears to be particularly attractive to courts in cases that involve the government’s provision of services. This is especially the case where a concern is voiced that a strict application of the standard routinely applied to private services providers would be unfair to government respondents. The question of whether the Charter and code tests for discrimination should match is an important one, and its resolution turns on several complex issues including whether an approach such as that adopted in Tranchemontagne represents a change in the law as articulated by the Supreme Court 37 of Canada, and if so, whether that change is justified. Oliphant attempts to show 2013 CanLIIDocs 114 that in Tranchemontagne, a plain reading of the decision would suggest that the burden of showing the rule to be unacceptable has shifted. The burden to show the rule is somehow unreasonable, arbitrary, or based on prejudice and stereotyping has shifted to the claimant, running directly contrary to previous code jurisprudence. He outlines a number of cases to support this. He concludes that:
The mischief in the Tranchemontagne decision and others that follow a similar conceptual framework is not that these cases have necessarily reached the wrong conclusions on the facts but, rather, that by modifying the procedure for establishing a successful claim they have redefined the scope of the prohibition on discriminations, either without averting to this fact or acknowledging it openly.38
The case of Ontario (Director, Disability Support Program) v Tranchemontagne39 provides a convenient backdrop against which to explore the question of whether, and to what extent, different and distinct routes to equality ought to be maintained in respect to statutory human rights structures and the Charter of Rights. This decision places at the forefront the issue of the appropriate limits that a claimant should face in being allowed to import a constitutionally rooted “jurisprudential frame that imposes higher burdens on claimants than those
36 Supra note 2. 37 Benjamin Oliphant, “Prima Facie Discrimination: Is Tranchemontagne consistent with the Supreme court of Canada’s Human Rights Code Jurisprudence” (2012) 9 JL & Equality 33 at 35-36. 38 Ibid at 65. 39 Ontario (Director, Disability Support Program) v Tranchemontagne, 2010 ONCA 593, 324 DLR (4th) 87. 68 UNB LJ RD UN-B [VOL/TOME 64]
specifically designed for the statutory context.”40 The relevant legal test to apply in such cases is of great concern for the evolution of equality jurisprudence.41
In a later article Mumme reiterates the centrality of the core issue in Tranchemontagne in the following terms.
In Ontario (Director, Disability Support Program) v Tranchemontagne, the Ontario Court of Appeal entered on to the most recent battleground in the world of statutory human rights law - a challenge to the content of a statutorily created government program under the auspices of the Ontario Human Rights Code (OHRC) instead of under section 15(1) of the Canadian Charter of Rights and Freedoms.' The doctrinal question at issue was whether the traditional jurisprudential test for discrimination under the human rights codes should be used to analyze a challenge to a statute or whether that statutory standard should be displaced by the tests usually applied under section 15(1) of the Charter. As I will argue, however, lurking beneath this doctrinal question is a set of much more
fundamental issues about the relative purpose and scope of constitutional 2013 CanLIIDocs 114 equality and statutory anti-discrimination protection in Canadian equality law.
…
In government services claims, a challenge is brought under the Human Rights Code to the substantive content of a statute that creates a government program, or discretionary decision-making under the statute's terms. In Tranchemontagne for instance, the challenged services were the Ontario Disability Support Program, created by the Ontario Disability Support Program Act (ODSPA), and Ontario Works (welfare), created by the Ontario Works Act). Such claims seek either an order requiring a change in administrative practice or a declaration that an offending legislative provision is inoperative because it violates the OHRC.
These claims are thus almost identical to ones that would otherwise be brought under the section 15(1) constitutional equality provision, and the codes provide an almost identical remedy. They do so in a much more accessible manner because the tribunals are faster and less expensive. And, it can be argued, the analytical framework for determining a violation of the human rights codes is significantly friendlier to claimants than is the constitutional test.42
In the Tranchemontagne case the courts address a growing trend in equality jurisprudence – that of using the provincial human rights statutes to challenge the
40 Claire Mumme, “Tranchemontagne – Statutory Challenges to Statutory Enactments: What is the Appropriate Standard” The Court (10 September 2010), online:
What legal test to apply in such cases is of profound significance for equality jurisprudence. Cases such as Tranchemontagne have arisen because of the increasing difficulties faced by equality-seeking groups in bringing social and economic claims under section 15 of the Charter, leading claimants to seek remedies elsewhere.43
Mumme goes on to explore why many claimants prefer the human rights path to that of section 15 of the Charter.44 In addition to the lower costs and greater accessibility associated with the human rights commission structure, she argues that the O’Malley prima facie test sets a lower standard for claimants to meet than the Charter test. As a consequence, a section 15 Charter claim has become the last legal resort for many claimants.45 After the Law case the marriage of human rights codes 2013 CanLIIDocs 114 and the Charter has become strained and a greater degree of separation appears in order. This is well illustrated in Tranchemontagne, itself.
Specifically, in the course of deciding whether the claimants, as alcoholics who are disabled on account of their substance dependence, were entitled to income support under the Ontario Disability Support Program, the Social Benefits Tribunal conducted its analysis under the “rubric of the four contextual factors” contained in the third step of Law. They used the factors “as an analytical tool” rather than as a “checklist to be applied mechanically.”46 The Tribunal concluded that the human rights code and section 15(1) of the Charter should be interpreted in a congruent and consistent manner.47 For its part, the Ontario Divisional Court affirmed that these separate texts equally “represent guarantees of substantive equality.”48 There is “no question that the interpretation and application of each provision ought to inform the other.”49 With that said, the trial court cautions that “this does not mean that the tests used in one context can or should be imported wholesale into the other.”50
43 Supra note 40. 44 Supra note 40. 45 Supra note 40. 46 Ontario Disability Support Program v. Tranchemontagne, 2009 95 OR (3d) 327 (Div Ct) at para 118. 47 Ibid at para 96. 48 Ibid. 49 Ibid. 50 Ibid. 70 UNB LJ RD UN-B [VOL/TOME 64]
Most recently, the Ontario Court of Appeal in Tranchemontagne sought to uphold the Social Benefits Tribunal’s decision on the grounds that it “explained its reasons for rejecting the Director’s evidence using the full Law framework” and that its “reasons [we]re entirely consistent with Kapp.”51 The Appellate court readily overlooked or disregarded the context-specific nature of the analytical concepts which have been developed in the respective administrative and judicial arenas. This decision opens the door for an academic discussion on the dangers of courts and tribunals too readily importing legal ideas from one context into another. We will return shortly to the situation in the Kapp era of Charter analysis, but the hangover of the dignity analysis from Law may not be completely gone.
D. THE LAW/DIGNITY HANGOVER
The introduction of the dignity concept into the equality analysis following Law v Canada (Minister of Employment and Immigration)52 provoked a great deal of criticism and concern among those within the academic community. Academicians 2013 CanLIIDocs 114 greatly feared that the third prong of the Law test would impose serious and crippling “limitations on equality claims.”53 A sincere belief existed that the addition of the dignity step would invariably introduce “section 1 concerns into the section 15(1) analysis, thereby shifting the government’s burden to justify itself onto the claimants as part of proving rights violations” - with the unfortunate effect that this would “result in fewer findings of discrimination and fewer required justifications under section 1.”54
These concerns do not carry as much weight in the post-Kapp era. This is because the Supreme Court used Kapp as an opportunity to clarify the existing state of the law. It held that:
Law does not impose a new and distinctive test for discrimination, but rather affirms the approach to substantive equality under s. 15, as set out in Andrews and developed in numerous subsequent decisions. The factors cited in Law should not be read literally as if they were legislative dispositions, but as a way of focusing on the central concern of s. 15
51 Supra note 39 at para 123. 52 Supra note 27. 53 Caroline Hodes, “Dignity and the Conditions of Truth: What Equality Needs from Law” (2007) 19:2 Canadian Journal of Women and the Law 273 at 283. See also Donna Greschner, “Does Law Advance the Cause of Equality?” (2001), 27 Queen’s LJ 299; Daphne Gilbert, “Time to Regroup: Rethinking Section 15 of the Charter” (2003), 48 McGill LJ 627; R. James Fyfe, “Dignity as Theory: Competing Conceptions of Human Dignity at the Supreme Court of Canada” (2007), 70 Sask L Rev 1; Dianne Pothier, “Connecting Grounds of Discrimination to Real People’s Real Experiences” (2001), 13 CJWL 37. 54 Caroline Hodes, “Dignity and the Conditions of Truth: What Equality Needs from Law” (2007) 19:2 Canadian Journal of Women and the Law 273 at 282. See also Gosselin, supra note 9 and Canadian Foundation for Children, supra note 29. [2013] THE MARRIAGE OF HUMAN RIGHTS CODES AND SECTION 15 71
identified in Andrews - combating discrimination, defined in terms of perpetuating disadvantage and stereotyping.55
The potential for misuse and abuse of the dignity concept is much less of an issue in present times. The possibility that the dignity barrier might be wrongly applied and overextended in the human rights context is thus, by extension, a more distant and removed one.
There is little debate that the Court in Kapp distanced itself from the Law test when it rejected the need for an explicit consideration of the dignity concept as the umbrella for the four contextual factors. However, this does not mean that there is no value in further considering the potential dangers that arise after exporting the dignity analysis or other forms of Charter analysis from a constitutional forum to a human rights one. Human dignity may now be seen less as a discrete, additional hurdle. Nevertheless, human dignity is now the “definitional objective of equality, as reflected in questions of whether a person is treated with equal concern, respect, 56
and consideration.” Human dignity is an “essential value” which underlies the 2013 CanLIIDocs 114 whole section 15 guarantee and appears in the preambles of many human rights codes. The “protection of all of the rights guaranteed by the Charter has as its lodestar the promotion of human dignity.”57 Indeed many human rights codes also refer to dignity of the individual as an underlying concept.
A post-Kapp definition of dignity might reasonably encompass everything from “having the means to subsistence, enough food, adequate shelter, adequate medical care, and a quality education, including skills training, protection from violence, protection from social exclusion, and protection from poverty.”58 In this way, to the extent that human dignity continues to be regarded as the hallmark of discrimination, the potential still exists for this Charter-based idea to be overextended and invoked to an unreasonable degree, within the human rights framework. To put it another way, insofar as the dignity concept merely “adds substance” to one of the already articulated purposes of the section 15 Charter guarantee, human rights tribunals may be enticed to consider whether a claimant has suffered a violation of their dignity.
A rights claimant need only prove prima facie discrimination before the onus shifts to the respondent to prove a bona fide justification encompassing reasonable accommodation. However, this fair and balanced shifting of the burden has the potential to be seriously undermined by the importation of the dignity
55 Supra note 28 at para 24. 56 Gilbert, supra note 53 at 630-631. 57 Supra note 28 at para 21. 58 Hodes, supra note 53 at 285. 72 UNB LJ RD UN-B [VOL/TOME 64]
concept into the human rights world. Specifically, the Law test merges the distinction between violation (a section 15(1) concern) and justification (at the section 1 Charter stage), with the effect that the claimant faces an increased burden to prove a violation of their right.59 The government enjoys a correspondingly reduced burden to justify its decisions. If this logic were to be extended outside of the Charter context, it means that private employers could discriminate more easily in the workplace and more easily resist adjudicative efforts to even the playing field.
A statutory adjudicator who recognizes the inherent interplay between constitutional and human rights instruments may be inclined to allow the Law principles to dominate the human rights analysis. A likely consequence of such a practice is “an elevated burden on a human rights claimant which effectively supplants the more appropriate evidentiary principles articulated in O’Malley.”60 This is of immediate concern when only a small proportion of the complaints that are filed with human rights commissions ultimately make their way to a public hearing stage.61 This increased claimant burden would seemingly limit the potential for any meaningful evolution in human rights jurisprudence. Quite simply, too great of an 2013 CanLIIDocs 114 emphasis on Law and even its successors Kapp62 and Withler63 outside of the constitutional realm, creates problems. Too little attention will be given by statutory decision-makers to the “language of the enabling statute, the principles which have evolved through statutory human rights adjudications, the regulatory context in which statutory human rights allegations arise, the intent of the framers of the legislation, and the quasi-constitutional nature of human rights.”64
Statutory human rights do not enjoy the status of being constitutionally entrenched. As such, they require “appropriate contextual interpretation” in order to “give life to the values which underlie them.”65 The problem is that the human dignity concept or its Kapp and Withler successors become “element[s] of the burden of proof”, rather than a value or guiding force, which underscores the entire statutory scheme.66 To the extent that the Law test introduced a highly rigid, mechanistic, and unnecessarily formal method of screening equality claims, it follows that the importation of this test into the statutory context puts adjudicators directly at odds
59 Greschner, supra note 53 at 306. 60 Supra note 2 at 374. 61 Supra note 2 at 374. 62 Supra note 28. 63 Withler v Canada (Attorney General), 2011 SCC 12, 1 SCR 396. 64 Supra note 2 at 374. 65 Supra note 2 at 374. 66 Supra note 2 at 376. [2013] THE MARRIAGE OF HUMAN RIGHTS CODES AND SECTION 15 73 with the broad wording of their enabling legislation and the generous and liberal reasoning of the O’Malley decision.67
The point is not that statutory human rights frameworks offer an inferior means of resolving claims, but rather, that they provide a “contextually different” arena through which to achieve broad principles of justice.68 With respect to statutory justifications and exemptions, Canadian courts consistently highlight the need to construe these limitations narrowly. A finding of no discrimination is limited to either the claimant’s failure to prove a prima facie case or to the respondent’s successful reliance on one of the listed defenses. Should an adjudicator be tempted to require “evidence of impairment to dignity” on the subjective-objective evidentiary standard, there would be a resulting elevation in the burden on the claimant.69 This increased onus would be “tantamount to creating a justification which is not articulated in either the statute or the Meiorin framework.”70
E. THE KAPP ERA: NEW TESTS? 2013 CanLIIDocs 114
After the Kapp71 and Withler72 decisions from the Supreme Court of Canada there has been a retreat from the dignity analysis in Law73 as well as the more formal comparator analysis. This raises the question whether the importing of Charter analysis into human rights adjudication still poses a problem for claimants. One could argue that the strains imposed by Law on the marriage between human rights codes and section 15 of the Charter have been removed and the Supreme Court has signaled a return to the happier days of the Andrews74 analysis. However, such a conclusion is premature. The Kapp case calls for a demonstration that the state by its actions or omissions is promoting either stereotyping or disadvantage.
[L]aw does not impose a new and distinctive test for discrimination, but rather affirms the approach to substantive equality under s. 15 set out in Andrews and developed in numerous subsequent decisions. The factors cited in Law should not be read literally as if they were legislative dispositions, but as a way of focusing on the central concern of s. 15
67 Supra note 2. 68 Supra note 2 at 374. 69 Supra note 2 at 391. 70 Supra note 2 at 392. See also British Columbia (Public Service Employee Relations Commission) v British Columbia Government and Service Employees’ Union (BCGSEU) (Meiorin Grievance), [1999] 3 SCR 3, SCJ No 46. 71 Supra note 28. 72 Supra note 63. 73 Supra note 27. 74 Supra note 1. 74 UNB LJ RD UN-B [VOL/TOME 64]
identified in Andrews -- combatting discrimination, defined in terms of perpetuating disadvantage and stereotyping.75
Furthermore, both Kapp and Withler apply the four contextual factors from Law, albeit in a different way and not under the umbrella of dignity. Thus the Charter test still imposes a higher burden on the human rights claimant than the O’Malley one of the prima facie case.
In an excellent special issue of the Journal of Law and Equality in 2012, many of Canada’s top equality experts explore the post Kapp situation in the context of the important Tranchemontagne case. The general conclusion appears to be that the problem of importing Charter analysis into human rights adjudication has been reduced, but is still present. Strains and challenges to the marriage of the Charter and human rights codes still exist.
2013 CanLIIDocs 114 In Tranchemontagne, the Court of Appeal for Ontario furthered the conflation of HR jurisprudence and the Charter by deciding that discrimination should have the same meaning in the Ontario Human Rights Code as the Charter. In particular, in both realms a person claiming discrimination must now demonstrate a distinction based on a prohibited ground that creates a disadvantage by perpetuating prejudice or stereotyping.
The apparent appeal of uniformity can be misleading in this context. Rather than improve the law, uniformity here smooths away important distinctions, with significant implications for those who seek meaningful enforcement of their human rights.76
Denise Reaume emphasizes that the cases following Kapp have clearly placed upon the claimant in a section 15 Charter case the burden of proving stereotyping or disadvantage.77
The most recent decisions of the Supreme Court seem to make stereotyping crucial to the establishment of a section 15 violation, placing the burden on the claimant to prove stereotyping rather than requiring the government to disprove it. …
75 Supra note 28 at para 24. 76 Supra note 12 at 5-6. 77 Supra note 13. In this regard, Reaume cites the following cases to support that claim: Ermineskin Indian Band and Nation v Canada, [2009] 1 SCR 222 at para 190; Alberta v Hutterian Brethren of Wilson Colony, [2009] 2 SCR 567 at para 108; Withler v Canada (Attorney General), [2011] 1 SCR 396 at para 34; Alberta (Aboriginal Affairs and Northern Development) v Cunningham, 2011 SCC 37 at para 39. [2013] THE MARRIAGE OF HUMAN RIGHTS CODES AND SECTION 15 75
Making stereotyping effectively part of the definition of discrimination under section 15 places the burden on the claimant to prove that the legislation does indulge in stereotyping, whereas under the conventional approach to human rights adjudication under the codes, the burden falls on respondents to prove that their generalizations are accurate.78
Denise Reaume summarizes the issues well. From the beginning of the Charter era, there has been borrowing back and forth in the human rights code and section 15 jurisprudence, such as when the Supreme Court of Canada adopted the conclusion from human rights code jurisprudence that adverse effect discrimination counts as discrimination and incorporated that concept into the Charter jurisprudence. Thus an action with an unintended discriminatory effect is an equality violation as much as an action that intentionally discriminates. The two bodies of jurisprudence have developed along parallel tracks. It may be that the codes and the Charter are directed at the same problem, but the result of recent developments is to produce a different conception of discrimination under the Charter than has been operational under the codes. The difference matters because the “former conception of discrimination is potentially wider in scope”.79 Denise Reaume and others argue that the tests for the 2013 CanLIIDocs 114 codes should be protected from Charter encroachment. Traditionally, the burden to make out a prima facie case has been relatively light, one that is largely factual rather than normative.80 As will be discussed later in this article, the effect of conflating the Charter and human rights codes tests may be to make both routes to equality less accessible to needy claimants.
Denise Reaume encapsulates the situation in the following way:
To summarize, there are two significant differences between the Charter test and the conventional code analysis: a difference in onus of proof and a difference in conception of discrimination. Imposing greater proof requirements under the codes makes it that much harder for vulnerable claimants to get an argument off the ground. More importantly, the Charter conception of equality seems bound up with finding stereotype.81
IV. COMPARATOR GROUPS IN THE HUMAN RIGHTS CONTEXT
Another important way in which the section 15 Charter jurisprudence has limited the broad and flexible interpretation of human rights codes is with respect to comparator
78 Supra note 13 at 81 and 82 respectively. 79 Supra note 13 at 69. 80 Supra note 13 at 70. 81 Supra note 13 at 87. 76 UNB LJ RD UN-B [VOL/TOME 64]
groups. As the post Law82 Charter cases evolved, it became increasingly clear that an equality claim was often won or lost at the stage of selecting the appropriate comparator group. As early as Andrews, the Supreme Court recognized that equality is a comparative concept.83 However, the comparator analysis became increasingly rigid and formalized, as represented in Hodge v Canada84 and Auton v British Columbia.85 It is thus not surprising that many academics were concerned about the importation of this comparator analysis into the human rights code jurisprudence.
A. ACADEMIC CONCERN ABOUT COMPARATORS
Andrea Wright was one of the early academic commentators to recognize the limiting effect of importing the Charter comparator analysis into statutory discrimination cases. She decries the growing trend of human rights tribunals relying on and often misusing comparator group analysis in the statutory context. She even questions the general assumption in section 15 Charter cases that equality is necessarily comparative. Referring to Charter comparator analyses she states:
2013 CanLIIDocs 114 These formulas cause claimants to thread their discrimination experiences through templates that are ill-fitting and rigid, and that often operate like formal-equality analyses. The result is often the de-contextualization of the complaint and the denial of substantive equality.86
In another article, Daphne Gilbert and Diana Majury echo the concern raised above. Their article examines the role of comparator groups. The authors' position is that a comparator group approach impedes the equality analysis when it is imposed as a requirement and when it is used as a test the claimant has to meet, rather than as one of a number of potential analytic tools. They also go on to argue that to focus exclusively on a single, narrow comparison and to treat that comparison as determinative of the claim substitutes oversimplification for complexity. It can also sidestep much of the section 15 Charter jurisprudence and in so doing divest equality of much of its meaning.87
82 Supra note 27. 83 Supra note 1 at para 26. 84 Hodge v Canada (Minister of Human Resources Development), 2004 SCC 65, 3 SCR 357. 85 Auton (Guardian ad litem of) v British Columbia (Attorney General), 2004 SCC 78, 3 SCR 657. 86 Andrea Wright, “Formulaic Comparisons; Stopping the Charter at the Statutory Human Rights Gate” in Fay Faraday, Margaret Denike, and M Kate Stephenson (eds) Making Equality Rights Real: Securing Substantive Equality under the Charter (Toronto: Irwin Law, 2006) at 409. 87 Daphne Gilbert & Diana Majury, “Critical Comparisons: The Supreme Court of Canada Dooms Section 15” (2006) 24 Windsor YB Access Just 111. [2013] THE MARRIAGE OF HUMAN RIGHTS CODES AND SECTION 15 77
In a later article Diana Majury is even more pessimistic about expanding section 15 Charter analysis into the human rights code context. She asserts that the gap between the Supreme Court of Canada analysis of equality and that preferred by feminists and other equality advocates is growing. She states:
The fact that equality is the language enshrined in s.15 of the Charter supports a pragmatic argument for persisting with trying to make the language of equality meaningful and effective for those marginalized and oppressed people who continue to experience multitudes of inequalities in their daily lives and for persisting in trying to craft equality analyses that expose and offer ways out of systemic inequality.88
In both the Kapp89 case and even more specifically in Withler v Canada (AG)90, the Supreme Court of Canada acknowledged many of the academic critics and signalled a retreat from the rigid comparator analysis that evolved out of the Law case. The Court did not abandon the assertion articulated in Andrews91 that equality is a comparative concept, but it did call for a more flexible and less structured application of the comparator group analysis. The Court also left open the possibility 2013 CanLIIDocs 114 that comparators are not always needed.
Nonetheless, as late as 2011 some academics were still expressing concern about the comparator analysis generally.92 Nathan Irving, in a report for the Council of Canadians with Disabilities, echoes these concerns and suggests that the most glaring illustration of the Charter’s comparator analysis infecting human rights code jurisprudence is illustrated in the lower court decisions in Moore.93
B. THE MOORE CASE
Indeed, the comparator problem is directly confronted in the Moore v British Columbia94 case. This compelling case involved a claim that Jeffrey Moore, who has severe dyslexia, was denied equal access to education in the British Columbia
88 Diana Majury, “Equality Kapped: Media Unleashed” (2009) 27 Windsor YB Access Just 1 at 7. 89 Supra note 28. 90 Supra note 63. 91 Supra note 1. 92 Hart Schwartz, “Making Sense of Section 15 of the Charter” (2011) 29 NJCL 201. He lamented the focus of section 15 Charter cases on comparator goups as turning the jurisprudence into an arcane and tedious game. 93 Nathan Irving, “An Overview of the Comparator Group Analysis in Human Rights Jurisprudence” (6 September 2009): Council of Canadians with Disabilities
education system. His father argued on his behalf that significant cuts to the services offered to learning disabled students, including this son, were discriminatory and resulted in a denial of equal access to an appropriate education. During the long process of litigation, starting with a human rights complaint in 1997 and culminating in a Supreme Court of Canada victory on November 9, 2012, Jeffrey Moore pursued his education in a private school.
Both the reviewing Divisional Court in Moore and Mr. Justice Low speaking for the majority of the British Columbia Court of Appeal defined the relevant service as “special education.”95 The definition of the service and the use of comparators were the central issues in Moore.
In Eaton v Brant Co.96 special education was regarded as the reasonable accommodation necessary to give disabled children valuable access to the larger public education. In contrast to this case, Wynberg v Ontario (Education)97 defined the claim on behalf of autistic children as a claim to special education. Thus, the 2013 CanLIIDocs 114 proper comparator group(s) was other categories of disabled students. On the basis of this analysis the claim in Wynberg was defeated.
As we were completing this article the Supreme Court of Canada rendered its landmark decision in Moore.98 In an expansive and compelling decision Justice Abella agrees with the original human rights tribunal decision that Jeffrey Moore was discriminated against by the relevant school board.99 The core of her decision was the broad definition of the relevant “services” under the human rights code, as a meaningful access to education and not just to a sub category of “special education.” Justice Abella states as follows:
The preamble to the School Act,[1] the operative legislation when Jeffrey was in school, stated that “the purpose of the British Columbia school system is to enable all learners to develop their individual potential and to acquire the knowledge, skills and attitudes needed to contribute to a healthy, democratic and pluralistic society and a prosperous and sustainable economy”. This declaration of purpose is an acknowledgment by the government that the reason all children are entitled to an education, is because a healthy democracy and economy require their educated
95 British Columbia (Ministry of Education) v Moore, 2008 BCSC 264, 81 BCLR (4th) 107; Supra note 21 at para 168. 96 Eaton v Brant County Board of Education, [1997] 1 SCR 241. 97 Wynberg v Ontario, [2006], OJ No 2732, 269 DLR (4th) 435. The Ontario Court of Appeal relied upon the earlier decision of Auton, supra note 85. 98 Moore, supra note 9. 99 The Court did not agree with the tribunal’s broad award of systemic remedies against the provincial Department of Education but rather laid the blame on the school board. [2013] THE MARRIAGE OF HUMAN RIGHTS CODES AND SECTION 15 79
contribution. Adequate special education, therefore, is not a dispensable luxury. For those with severe learning disabilities, it is the ramp that provides access to the statutory commitment to education made to all children in British Columbia.100
In reaching this conclusion Justice Abella is in agreement with the dissenting approach of Justice Rowles in the British Columbia Court of Appeal, as is clearly articulated in the following passages from the Supreme Court decision.
In dissent, Rowles J.A. would have allowed the appeal. In her view, special education was the means by which “meaningful access” to educational services was achievable by students with learning disabilities. She found that a comparator analysis was both unnecessary and inappropriate. The Tribunal’s detailed evidentiary analysis showing that Jeffrey had not received sufficiently intensive remediation after the closing of the Diagnostic Centre, justified the findings of discrimination.101 . . .
2013 CanLIIDocs 114 A central issue throughout these proceedings was what the relevant “service . . . customarily available to the public” was. While the Tribunal and the dissenting judge in the Court of Appeal defined it as “general” education, the reviewing judge and the majority defined it as “special” education.
I agree with Rowles J.A. that for students with learning disabilities like Jeffrey’s, special education is not the service, it is the means by which those students get meaningful access to the general education services available to all of British Columbia’s students:
It is accepted that students with disabilities require accommodation of their differences in order to benefit from educational services. Jeffrey is seeking accommodation, in the form of special education through intensive remediation, to enable him equal access to the “mainstream” benefit of education available to all. … In Jeffrey’s case, the specific accommodation sought is analogous to the interpreters in Eldridge: it is not an extra “ancillary” service, but rather the manner by which meaningful access to the provided benefit can be achieved. Without such special education, the disabled simply cannot receive equal benefit from the underlying service of public education. [Emphasis added; para. 103.]102
In these critical passages, the Supreme Court of Canada established two important principles. First, that a comparator analysis may be unnecessary and even inappropriate in some circumstances. It will be interesting to see if this observation
100 Moore, supra note 9 at para 5. 101 Ibid at para 25. 102 Ibid at paras 27-28. 80 UNB LJ RD UN-B [VOL/TOME 64]
will be extended to the section 15 Charter analysis, as well as the human rights code context (the applicable one in Moore). Second, it agrees with Justice Rowles of the British Columbia Court of Appeal, that special education is the means by which disabled students can gain meaningful access to a general education, and is not itself the relevant “service” under the human rights code. The implications of this is that the adequacy of the special education services are more appropriately considered as a matter of reasonable accommodation at the justification stage of the human rights analysis. Broadly defining the services covered by human rights codes also promotes a broad and purposive interpretation of equality.
The retreat by the Supreme Court of Canada from the formalism of the comparator group analysis is made even more explicit in the following passage, as is the link to the section 15 Charter re-evaluation of comparators in Withler. This suggests that much of the logic in Moore would be equally applicable in a section 15 Charter context.
To define ‘special education’ as the service at issue also risks descending 2013 CanLIIDocs 114 into the kind of “separate but equal” approach which was majestically discarded in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). Comparing Jeffrey only with other special needs students would mean that the District could cut all special needs programs and yet be immune from a claim of discrimination. It is not a question of who else is or is not experiencing similar barriers. This formalism was one of the potential dangers of comparator groups identified in Withler v. Canada (Attorney General), 2011 SCC 12 (CanLII), [2011] 1 S.C.R. 396.103
Instead of the problematic analysis above that the Supreme Court rejected, Justice Abella asserts that the core question is whether Jeffrey Moore and other disabled students, were given “meaningful access” to the general education services available in the province. In support of this proposition she cites various sources.104 The possible impact of this expansive Supreme Court ruling is that human rights code jurisprudence may lead the way to more expansive rulings in respect to section 15 Charter cases as well. We will return to this mutually enriching aspect of the marriage between human rights codes and the Charter in the final section of this article.
103 Ibid at para 30. 104 Ibid at para 34, where she references the following sources - Eldridge v. British Columbia (Attorney General), [1997] 3 SCR 624, at para 71; University of British Columbia v. Berg, [1993] 3 SCR 353, at 381-82. (See also Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), [2000] 1 SCR 665, at para 80; Council of Canadians with Disabilities v. VIA Rail Canada Inc., [2007] 1 SCR 650, at paras 121 and 162; A. Wayne MacKay, “Connecting Care and Challenge: Tapping Our Human Potential” (2008), 17 Educ & LJ 37, at 38 and 47.). [2013] THE MARRIAGE OF HUMAN RIGHTS CODES AND SECTION 15 81
C. CHILD WELFARE SERVICES FOR FIRST NATIONS CHILDREN
How far courts will extend the Moore analysis even in the human rights code context remains to be seen. An interesting test case would be the challenge to child welfare services to on-reserve First Nations students as exemplified in Canada (Human Rights Commission) v Canada (AG).105 The factual context for this case was the considerably lower level of child welfare services provided to First Nations’ children living on a reserve in comparison to the child welfare services provided to children living off reserve. An added complication is that the federal government was the service provider for those on the reserve, while the various provinces were the relevant service provider for those living off the reserves. Thus the question of whether the child welfare services were a “service” within the meaning of section 5 of the Canadian Human Rights Act106 was a complex one.
The case was referred to a tribunal by the Canadian Human Rights Commission. The tribunal’s decision is succinctly summarized by the reviewing
Federal Court Trial Division as follows: 2013 CanLIIDocs 114
The Tribunal then considered whether two different service providers could be compared to each other in order to find adverse differentiation under subsection 5(b) of the Act. Specifically, the Tribunal asked itself whether it could compare the child welfare services provided by the Government of Canada to those provided by the provinces in order to determine whether the Government of Canada had committed a discriminatory practice in the provision of services.
In concluding that such a comparison could not be made, the Tribunal held that subsection 5(b) required a comparison to be made to services provided to others by the same service provider. Given that the Government of Canada did not provide child welfare services to recipients other than First Nations children living on reserves, it followed that there could be no adverse differentiation in the provision of services under subsection 5(b) of the Act. As a result, the Tribunal dismissed the complaint.107
The reviewing Federal Court reversed the human rights tribunal decision. In fact, the Court concluded that the tribunal’s decision was “unreasonable and flies in the face of the scheme and purposes of the Act, and leads to patently absurd results that could not have been intended by Parliament.”108 The Federal Court then addressed the proper role of comparator groups in a discrimination analysis in the following passages.
105 Canada (Human Rights Commission) v Canada (Attorney General) 2012 FC 445 (Trial Division). 106 Canadian Human Rights Act, RSC 1985, c H-6. 107 Supra note 105 at paras 106-107. 108 Supra note 105 at para 251. 82 UNB LJ RD UN-B [VOL/TOME 64]
While not a universally accepted proposition2, the Supreme Court of Canada has long held that equality is an inherently comparative concept, and that determining whether discrimination exists in a given case will often involve some form of comparison: Law Society British Columbia v. Andrews, [1989] 1 S.C.R. 143, [1989] S.C.J. No. 6 (QL) at para. 26.
This does not mean, however, that there must be a formal comparator group in every case in order to establish discrimination under subsection 5(b) of the Act.
The onus is on a complainant to establish a prima facie case of discrimination under the Canadian Human Rights Act. The test for establishing a prima facie case of discrimination is a flexible one, and does not necessarily contemplate a rigid comparator group analysis.109
In addition to the above reasons for reversing the decision of the human rights tribunal, the Federal Court referred to the dissenting reasons of Justice Rowles in the British Columbia Court of Appeal decision in Moore.110 This is the reasoning 2013 CanLIIDocs 114 that has now been upheld by the Supreme Court of Canada in Moore as well.111 The Federal Court also rejects the “similarly situated” approach to equality, in line with earlier Supreme Court rulings on this point.112 It also draws support from the general concern about comparators expressed by the Supreme Court of Canada.
As was noted earlier, the use of comparator groups in the statutory human rights context has been imported from the section 15 Charter jurisprudence. However, the Supreme Court of Canada has recently expressed real concern with respect to the role of comparator groups in the evaluation of section 15 claims. As will be discussed in the next section of these reasons, the recent decision in Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396 lends further support for the view that the Tribunal’s interpretation of subsection 5(b) of the Act is unreasonable.113
In general the Federal Court calls for flexibility rather than rigidity in interpreting human rights. It appears to be in line with the thinking of the Supreme Court of Canada as expressed in Moore.114 At present the First Nations’ Children’s Services Case has been sent back to the human rights tribunal to hold a new hearing on the case. As this case winds its way through the legal process, it may provide an
109 Supra note 105 at paras 281-283. 110 Supra note 105 at para 287. 111 Moore, supra note 9. 112 Supra note 105 at paras 294-295. 113 Supra note 105 at para 315. 114 Moore, supra note 9. [2013] THE MARRIAGE OF HUMAN RIGHTS CODES AND SECTION 15 83 interesting test of how far the de-emphasizing of comparator analysis will go. It certainly appears that the comparator analysis threat to human rights interpretation has been substantially reduced, if not eliminated completely.
V. AMELIORATIVE PRACTICES AND PROGRAMS UNDER SECTION 15(2) OF THE CHARTER AND UNDER HUMAN RIGHTS CODES
A. THE DANGERS OF A TOUGH LOVE APPROACH
Tranchemontagne indirectly raises some section 15(2) kind of issues like Kapp115 and Cunningham,116 although the court of appeal does not reference these cases or section 15(2) itself. In Tranchemontagne the argument is that putting those addicted to alcohol under temporary welfare legislation117 is better for them in the long term than putting them on the disability program. It is a “tough love” approach of putting the alcoholics on lower benefits and thereby getting them back into the workforce more quickly. In that regard, it is analogous to the Gosselin v Quebec case where 2013 CanLIIDocs 114 putting the claimants on lower benefits was justified as a kind of equity (ameliorative) program. It is also important to note that in Gosselin these good intentions of the legislators’ was a critical factor in allowing McLachlin for the majority, to conclude that there was no violation of section 15(1) at all. While this was done under the Law test much the same result could be reached using the Kapp analysis by trying to argue that this is a section 15(2) situation. In both cases there is no need to resort to section 1 of the Charter for justification.
This kind of analysis, whether in the Gosselin context or the one in Tranchemontagne, emphasizes that the Kapp section 15(2) approach allows the government to have an early opportunity to justify their actions or omissions. The government can do this on the bases of good purposes or intentions on their part and thereby make an early exit from the Charter equality analysis. As both Kapp and Cunningham reinforce, the rational link between the ameliorative purpose and the means adopted to pursue that purpose does not have to be strong. The beneficial effects of the ameliorative program are largely left to the legislative and executive branches of the state, as a matter of public policy. This emphasizes a deferential role for courts, at both the violation and justification stages of Charter analysis.
This is even more concerning in the Charter context after the court’s decision in Cunningham.118 In Cunningham, several members of the Peavine Métis
115 Supra note 28. 116 Alberta (Aboriginal Affairs and Northern Development) v Cunningham, 2011 SCC 37, 2 SCR 670. 117 Ontario Works Act, 1997, SO 1997, c 25, Schedule A. 118 Supra note 116. 84 UNB LJ RD UN-B [VOL/TOME 64]
Settlement challenged the constitutionality of certain provisions of Alberta’s Métis Settlements Act (MSA).119 Sections 75 and 90(1) of the MSA prevented membership in a Métis settlement community to individuals who had registered for status under the Indian Act.120 The Court held that the purpose of the MSA was ameliorative, that being “to establish a Métis land base to preserve and enhance Métis identity, culture and self-government, as distinct from Indian identity, culture and modes of governance.”121 Significantly, the Court held that if the “government relies on s. 15(2) to defend the distinction, the analysis proceeds immediately to whether the distinction is saved by s. 15(2)”.122 This degree of deference is of particular concern given that the “ameliorative program” forced the claimants to select one “identity”, and limited rather than expanded the rights of the individuals based on that sole identity. Arguments that section 15(2) should not allow an early exit from section 15 Charter analysis, if the effect was limiting rather than advancing minority rights, failed to convince the Supreme Court.
What remains to be seen is the extent to which section 15(2) considerations will be taken into account by commissions and tribunals in the course of deciding the 2013 CanLIIDocs 114 merits of human rights claims. An interesting and as of yet unresolved issue, is whether the respondent in a human rights case would first have the opportunity to invoke the equity defence before being required to justify the alleged discriminatory practice as satisfying the criteria for reasonable accommodation. As noted above, in Cunningham, the Supreme Court of Canada held that an equality claim should proceed directly to an analysis of section 15(2) if government relies on the provision.123 Interestingly, the language here appropriately focuses on the “government” as the actor – but what this means in terms of human rights claims is unclear. Absent the Charter context, if a respondent in a human rights case is relying on section 15(2), would the analysis also immediately move to whether the distinction is justified?
While the “tough love” explanation for putting alcoholics on short term welfare benefits, rather than the higher paying disability benefits, was not tied to importing either the Gosselin interpretation of Law, or the Kapp interpretation of section 15(2), it could have been. Thus in this section we raise a caution about possible future interpretations, whereby, section 15(2) analysis is imported into the interpretation of ameliorative / special statutory programs in human rights codes. One major danger of such an approach would be to focus the analysis on the purposes or intentions of the public or private services providers and to downplay the effects or effectiveness of such special programs under statutory human rights codes.
119 Métis Settlements Act, RSA 2000, c M-14. 120 Indian Act, RSC, 1985, c I-5, s 6. 121 Supra note 116 at para 69. 122 Supra note 116 at para 44. 123 Supra note 116 at para. 44. [2013] THE MARRIAGE OF HUMAN RIGHTS CODES AND SECTION 15 85
B. PURPOSES VERSUS EFFECTS
The first source of concern in the possible misapplication of section 15(2) in the human rights context is that its’ language suggests that the “legislative goal rather than actual effect” is the “paramount consideration in determining whether or not a program qualifies for section 15(2) protection.”124 Granted, there is no reason to blindly or “slavishly accept the government’s characterization of its purpose.”125 There is nothing to prevent judges from critically examining the relevant legislation to “ensure that the declared purpose is genuine.”126 In this way, “a bald declaration by government that it has adopted a program” which has as its object the amelioration of conditions of disadvantage “does not ipso facto meet the requirements to sanctify the program under section 15(2) of the Charter. The government cannot employ such a naked declaration as a shield to protect an activity or program which is unnecessarily discriminatory.”127
However, despite this well-intentioned and cautious judicial approach 2013 CanLIIDocs 114 outlined in Kapp, there is an inherent and undeniable danger in adopting a mentality that seeks to privilege purpose above effect. Commissions may be well positioned to identify the gravest of injustices, but may have little recourse when private employers’ conduct is somewhat suspect but sufficiently protected by a plausibly positive and ameliorative purpose. The mere fact that courts will refuse to allow governments to hide behind smokescreens in order to “protect discriminatory programs on colourable pretexts”128 does little to calm fears about the ability of employers to operate as they please within a wide range of tolerable conduct.
C. RATIONAL CONNECTION
Courts are encouraged to look for a nexus or correlation between the “program and the disadvantage suffered by the target group.”129 This would suggest that there is at least some basis for judicial intervention and some opportunity for judicial remedies to respond to discriminatory treatment. However, the Court in Kapp insisted on preserving an “intent-based analysis”130 and explicitly sought to avoid turning any
124 Supra note 28 at para 44. 125 Supra note 28 at para 46. 126 Supra note 28 at para. 46. 127 Apsit Manitoba Rice Farmers Association v. Human Rights Commission (Man.), [1987] 50 Man R (2d) 92 (QB) at para 51. 128 Supra note 28 at para 54.
129 Supra note 28 at para 49. 130 Supra note 28. 86 UNB LJ RD UN-B [VOL/TOME 64]
analysis of the “means employed by the government” into an assessment of the program’s effects. This would seem to limit in scope any meaningful review of the respondent’s conduct. Respondents are afforded a great measure of flexibility and discretion in deciding how to structure their programs.
The mere demonstration of a rational connection between the impugned program and a section 15(2) object renders unnecessary much if any, “attention to the position of the rights claimant” and wholly negates any “insistence on proportionality of government action.”131 There is no means of evaluating alleged affirmative action programs in the absence of “structured balancing.”132
In Tranchemontagne, there was a distinction drawn between persons suffering from substance dependence and those afflicted with more traditionally accepted forms of disability. This distinction was seen as “necessary” and appropriate to create a program which provides financial assistance only to those disabled persons “sharing key features such that they may be grouped together” 2013 CanLIIDocs 114 under the governing legislation.133 These features are said to be “related to the program’s purpose.”134 By “expressly referencing the eligibility restrictions in its legislated objective, the statute effectually circumscribes the scope of the benefit it intends to confer on persons identified as experiencing specific disadvantage and needing specific support.”135
The distinction in Tranchemontagne was supported by the government on the general, vague, and largely subjective grounds that the governmental program caters to the specific needs, capacities, and circumstances of the targeted group. On this analysis an employer would be free to design an (un)intentionally discriminatory workplace scheme drawn along equally arbitrary lines.136 A rational connection is a dangerously low standard for an employer to meet. Inasmuch as the government is presumed to act in the best interests of society, or is at least expected to operate with a broader public purpose in mind, the same cannot be said of private employers, who are more likely to be motivated by profit margins or bottom line considerations. In this sense, employers are arguably more likely to stretch, manipulate, and exploit what could be considered a rational connection.
131 Jess Eisen, “Rethinking Affirmative Action Analysis in the Wake of Kapp: A Limitations- Interpretation Approach” (2008) 6:1 JL & Equality 1. 132 Ibid. 133 Daniel Del Gobbo and Stephanie DiGiuseppe, “Transposing Tranchemontagne into the Charter Context: S. 15(2)” The Court (23 March 2010), online: The Court
D. AMELIORATIVE OBJECT
Further, the Kapp test does not require that the ameliorative object be the sole object. Rather, it must simply be “one of several.”137 The Court reasons that it is unlikely that a “single purpose will motivate any particular program.”138 This is because “any number of goals are likely to be subsumed within a single scheme.”139 According to this logic, programs should not be prematurely denied section 15(2) protection on the grounds that they contain other, possibly competing, objectives.
While it is true that a “purpose-based approach” best positions state actors to do “whatever they wish” in eliminating discrimination, it does not automatically follow that such an approach allows the government to most effectively tackle discrimination.140 If a “well-intentioned program nevertheless has discriminatory effects, then intervention from a court which required the government to redesign the program would seem to help the government achieve its goal of combating 141 discrimination, rather than to hinder it.” The exclusive focus on the government’s 2013 CanLIIDocs 114 intended purpose rather than the program’s actual effects means that disadvantaged groups are without recourse “where a program has an ameliorative purpose but is under-inclusive” or where the program indirectly stigmatizes or harms some other disadvantaged group.142
The need for a section 15(1) analysis is easily avoided so long as the respondent can meet the low bar of showing the program has an ameliorative purpose and targets a disadvantaged group.143 Once this minimal requirement is satisfied, there is no consideration of whether the program is “appropriately inclusive” or whether it has “deleterious effects” on other vulnerable members of society.144 Yet a program can be simultaneously ameliorative in purpose and harmful in its effect.145
137 Supra note 28 at para 50. 138 Supra note 28 at para 51. 139 Supra note 28 at para. 51. 140 Sophia Moreau, “R v Kapp: New Directions for Section 15” (2008-2009) 40 Ottawa L Rev 283 at 295. 141 Ibid. 142 Ibid. 143 Ibid. 144 Ibid at 296. 145 Ibid. 88 UNB LJ RD UN-B [VOL/TOME 64]
Kapp offers a clear example of a judicial body invoking a respondent’s “affirmative action argument” under the section 15(2) umbrella, for the purposes of bypassing the “rest of the s. 15(1) process.”146 The test to meet to escape a “reversion” to a section 15 review is “unnervingly low.”147 The focus on the purposes of the program means that “sincerity” and “plausibility” become the relevant standards, with the effect that “significant deference” is consciously afforded to the legislature.148 Such a deferential attitude demands little in the way of governmental justification or judicial review.149
In both a Charter and a human rights code context, the more sincere or plausible the justification, the more likely it is that employers can hide behind a policy that has adverse consequences for members of its workforce. The employer can rely on the fact that it is best positioned to respond to problems at its workplace – that its oversight of the daily operations, its knowledge of the everyday problems which arise make it uniquely capable of promoting fairness at its facilities. This argument becomes all the more convincing and all the more attractive to administrative bodies when sincerity and plausibility are relied on as primary 2013 CanLIIDocs 114 screening factors.
E. AMELIORATIVE/SPECIAL PROGRAMS
In Cunningham, Chief Justice McLachlin states that the goal of section 15 is to “enhance substantive equality.”150 She explains that this is achieved in two ways. First, section 15(1) “is aimed at preventing discrimination.”151 Second, section 15(2) is “aimed at permitting governments to improve the situation of members of disadvantaged groups that have suffered discrimination in the past, in order to enhance substantive equality.”152 Importantly, the Court states that section 15(2) accomplishes this by:
[A]ffirming the validity of ameliorative programs that target particular disadvantaged groups, which might otherwise run afoul of s. 15(1) by excluding other groups. It is unavoidable that ameliorative programs, in seeking to help one group, necessarily exclude others.
The purpose of s. 15(2) is to save ameliorative programs from the charge of “reverse discrimination”. Ameliorative programs function by targeting
146 Supra note 88 at 10. 147 Supra note 88 at 11. 148 Supra note 88. 149 Supra note 88. 150 Supra note 116 at para 38. 151 Supra note 116 at para 39. 152 Supra note 116 at para 40. [2013] THE MARRIAGE OF HUMAN RIGHTS CODES AND SECTION 15 89
specific disadvantaged groups for benefits, while excluding others. At the time the Charter was being drafted, affirmative action programs were being challenged in the United States as discriminatory — a phenomenon sometimes called reverse discrimination. The underlying rationale of s. 15(2) is that governments should be permitted to target subsets of disadvantaged people on the basis of personal characteristics, while excluding others. It recognizes that governments may have particular goals related to advancing or improving the situation of particular subsets of groups. Section 15(2)affirms that governments may not be able to help all members of a disadvantaged group at the same time, and should be permitted to set priorities. If governments are obliged to benefit all disadvantaged people (or all subsets of disadvantaged people) equally, they may be precluded from using targeted programs to achieve specific goals relating to specific groups. The cost of identical treatment for all would be loss of real opportunities to lessen disadvantage and prejudice.153
Importantly, both the Charter and a variety of human rights codes have in place provisions that allow for affirmative action or “special programs.” Both section 15(2) and these special program provisions in human rights codes recognize the 2013 CanLIIDocs 114 “importance of dealing with historical disadvantage by protecting special programs to assist marginalized groups.”154
Some of the special programs provisions in human rights codes across Canada seem to align more with the Charter approach to focus on the purposes of the ameliorative program as opposed to the practical effects. For example, the Nova Scotia Human Rights Act special program provisions states:
6 Subsection (1) of Section 5 does not apply (i) to preclude a law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or classes of individuals including those who are disadvantaged because of a characteristic referred to in clauses (h) to (v) of subsection (1) of Section 5.155 (emphasis added)
Alternatively, other human rights codes do not use the language of “has as its object”, but utilize potentially broader language that could be interpreted to implicate more effects or impact-based analyses. The Ontario Human Rights Code states:
153 Supra note 116 at para 40-41. 154 Ontario Human Rights Commission, “Special Programs and the Ontario Human Rights Code: A Self- Help Guide”, OHRC (11 November 2012), online: Ontario Human Rights Commission < http://www.ohrc.on.ca> 155 Supra note 22 at s 6(i). 90 UNB LJ RD UN-B [VOL/TOME 64]
14. (1) A right under Part I is not infringed by the implementation of a special program designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity or that is likely to contribute to the elimination of the infringement of rights under Part I.156 (emphasis added)
Further, the Canadian Human Rights Act also defines special programs as:
16. (1) It is not a discriminatory practice for a person to adopt or carry out a special program, plan or arrangement designed to prevent disadvantages that are likely to be suffered by, or to eliminate or reduce disadvantages that are suffered by, any group of individuals when those disadvantages would be based on or related to the prohibited grounds of discrimination, by improving opportunities respecting goods, services, facilities, accommodation or employment in relation to that group.157 (emphasis added)
2013 CanLIIDocs 114 Special programs in human rights codes are protected in order to “protect affirmative action programs from challenge by people who do not experience disadvantage” and to “promote substantive equality, to address disadvantage and discrimination in all its forms.”158 While the current trend in section 15 jurisprudence, as exemplified by Kapp and Cunningham, is to afford significant deference to the legislature, it remains to be seen whether or not this approach will transfer over to the human rights context. It is our view that the Charter approach to section 15(2) should not be imported into the analysis of special programs in a human rights code context. As with the section 15(1) analysis discussed earlier, there can be some useful overlap and cross fertilization but the Charter and human rights code structures should be kept separate. The different constitutional and statutory contexts justify maintaining separate and distinct approaches. Merging the two would likely result in a limitation on the potential scope of statutory human rights jurisprudence.
VI. JUSTIFICATIONS FOR DISCRIMINATION: SECTION 1 OF THE CHARTER AND BONA FIDE JUSTIFICATIONS
The differences between a section 15 Charter challenge and one arising under a human rights code do not end at the violation stage discussed earlier. In some ways the differences are even more pronounced and the second stage of justification. In Meiorin,159 Chief Justice McLachlin eliminated the distinction between direct and
156 Human Rights Code, RSO 1990, c H 19, s 14(1). 157 Supra note 106 at s 16(1). 158 Supra note 154. 159 [British Columbia (Public Service Employee Relations Commission) v British Columbia Government and Service Employees’ Union (BCGSEU) (Meiorin Grievance), [1999] 3 SCR 3 at para 25, SCJ No 46. [2013] THE MARRIAGE OF HUMAN RIGHTS CODES AND SECTION 15 91 indirect discrimination (adverse effects) by making reasonable accommodation a vital aspect of a bona fide justification. In doing so (on behalf of the Supreme Court), she cited as one of the reasons an unsatisfactory “dissonance” between Charter and human rights jurisprudence. As Justice Rowles points out in British Columbia v Moore160 even the desire to produce a greater unity between Charter and human rights jurisprudence, did not lead the Supreme Court to import the Law standard into the violation stages in Meiorin or Grismer. Furthermore, there was no suggestion that the approach to a section 1 Charter analysis should be imported into the human rights context.
A. MEIORIN/GRISMER ANALYSIS
The Meiorin/Grismer test as the appropriate approach to justifying discrimination complaints in a human rights code context has been reinforced consistently in the cases. Coast Mountain Bus Co. v National Automobile, Aerospace, Transportation and General Workers of Canada (CAW- Canada), Local 111161 confirms
Meiorin/Grismer as the correct approach, with a possible modification of the third 2013 CanLIIDocs 114 step, commenting as follows:
The adjudicator in the present case did not make the error made by the Quebec Court of Appeal in Hydro-Québec. She did not say the Employer was required to demonstrate it was impossible to accommodate employees with disabilities. Rather, she stated that the issue was whether the Employer had demonstrated it was impossible to accommodate them without experiencing undue hardship. Hence, the adjudicator was not incorrect in her formulation of the legal test, and the chambers judge erred in finding her to have been incorrect.162
In the hot off the press decision in Moore v British Columbia, Justice Abella, for a unanimous Supreme Court of Canada, reaffirms that Meiorin/Grismer provide the relevant test for justifying complaints of discrimination. Any reference to parallels with section 1 Charter analysis is absent. Having found that the School Board District had violated Jeffrey Moore’s rights under the human rights code, Justice Abella makes the following observations about the approach to justifications under the statute.
This same approach was also applied in the services context in British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights), [1999] 3 SCR 868 [“Grismer”]. 160 Supra note 21 at paras 46-48. 161 2010 BCCA 447. 162 Ibid. at para. 90. The Québec Court of Appeal was reveresed in Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), [2008] 2 SCR 561, 2008 SCC 43. 92 UNB LJ RD UN-B [VOL/TOME 64]
The next question is whether the District’s conduct was justified. At this stage in the analysis, it must be shown that alternative approaches were investigated (British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 (“Meiorin”), at para. 65). The prima facie discriminatory conduct must also be “reasonably necessary” in order to accomplish a broader goal (Ontario Human Rights Commission v. Borough of Etobicoke, [1982] 1 S.C.R. 202, at p. 208; Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, at p. 984). In other words, an employer or service provider must show “that it could not have done anything else reasonable or practical to avoid the negative impact on the individual” (Meiorin, at para. 38; Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489, at pp. 518-19; Council of Canadians with Disabilities v. VIA Rail Canada Inc., at para. 130).163
Justice Abella in Moore did comment upon the unifying approach of the Meiorin analysis and the fact that it allowed not just for accommodations within the 2013 CanLIIDocs 114 set standard, but also for a broader evaluation of the standard itself at a broader systemic level.
… But in Meiorin, McLachlin J. observed that since few rules are framed in directly discriminatory terms, the human rights issue will generally be whether the claimant has suffered adverse effects. Insightfully, she commented that upholding a remedial distinction between direct and adverse effect discrimination “may, in practice, serve to legitimize systemic discrimination” (para. 39). The Meiorin/Grismer approach imposed a unified remedial theory with two aspects: the removal of arbitrary barriers to participation by a group, and the requirement to take positive steps to remedy the adverse impact of neutral practices.
Meiorin and Grismer also directed that practices that are neutral on their face but have an unjustifiable adverse impact based on prohibited grounds will be subject to a requirement to “accommodate the characteristics of affected groups within their standards, rather than maintaining discriminatory standards supplemented by accommodation for those who cannot meet them” (Grismer, at para. 19).164
B. PARALLELS BETWEEN REASONABLE ACCOMMODATION AND SECTION 1 CHARTER ANALYSIS
While the problems of importing the limiting section 1 Charter analysis into the justification stage of human rights code analysis has generally not emerged, there were some early hints that it might. These came in the form of some observations of
163 Moore, supra note 9 at para 49. 164 Ibid at paras 61-62. [2013] THE MARRIAGE OF HUMAN RIGHTS CODES AND SECTION 15 93
Justice Laforest in Eldridge v British Columbia (Attorney General) in the form of the following two passages.
It is also a cornerstone of human rights jurisprudence, of course, that the duty to take positive action to ensure that members of a disadvantaged groups benefit equally from services offered to the general public is subject to the principle of reasonable accommodation… In my view, in s. 15(1) cases this principle is best addressed as a component of the s. 1 analysis. Reasonable accommodation, in this context, is generally equivalent to the concept of “reasonable limits”. It should not be employed to restrict the ambit of s. 15(1).
…
In summary, I am of the view that the failure to fund sign language interpretation is not a “minimal impairment” of the s. 15(1) rights of deaf persons to equal benefit of the law without discrimination on the basis of their physical disability… Stated differently, the government has not made a “reasonable accommodation” of the appellants’ disability. In the language of this Courts’ human rights jurisprudence, it has not 2013 CanLIIDocs 114 accommodated the appellants’ needs to the point of “undue hardships”; see Simpsons-Sears, supra, and Central Alberta Diary Pool, supra.165
While Justice La Forest was in no way suggesting that the section 1 Charter analysis and the duty of reasonable accommodation under human rights codes were always a similar process, he did feel that they in part converged in that particular case. If there was any doubt about the Supreme Court of Canada’s position on the convergence of the Charter and human rights code justification systems, it was clarified by Chief Justice McLachlin in Alberta v Hutterian Brethren of Wilson County.
The broader societal context in which the law operates must inform the s. 1 justification analysis. A law’s constitutionality under s. 1 of the Charter is determined, not by whether it is responsive to the unique needs of every individual claimant, but rather by whether its infringement of Charter rights is directed at an important objective and is proportionate in its overall impact… The question the court must answer is whether the Charter infringement is justifiable in a free and democratic society, not whether a more advantageous arrangement for a particular claimant could be envisioned.166
This contrast between the focus on the individual parties in a human rights complaint and the broader social and societal nature of a Charter complaint was also raised in the earlier case of Multani v Commission Scolaire Marguerite-Bourgeoys where Justices Abella and Deschamps explain as follows.
165 Eldridge v. British Columbia (Attorney General), [1997] 3 SCR 624 at paras 79 and 94 respectively. 166 Alberta v Hutterian Brethren of Wilson Country, [2009] 2 SCR 567 at para. 69. 94 UNB LJ RD UN-B [VOL/TOME 64]
The process required by the duty of reasonable accommodation takes into account the specific details of the circumstances of the parties and allows for dialogue between them. This dialogue enables them to reconcile their positions and find common ground tailored to their own needs. [para. 131]167
The differences between the process under a section 15 Charter analysis and a discrimination complaint under a human rights code were also recognized in Ontario v Tranchemontagne in the following paragraphs.
However, fundamental differences exist between the Charter and the Code, including differences in: the nature of the legislation (constitutional versus quasi-constitutional); the scope of the guarantees provided (the Charter contains a broad equality guarantee while the Code creates a limited right to be free of discrimination in prescribed areas); the circumstances in which the guarantees will apply (the Charter is restricted
to government conduct while the Code applies to both private and public 2013 CanLIIDocs 114 actors); and, finally, the specific exemptions or defences that are available (s. 15 of the Charter contains an absolute prohibition against discrimination but s. 1 of the Charter provides a limited defence of justification, while the Code prohibits discrimination absolutely but also contains some absolute exemptions and defences): see Andrews at pp. 175- 176.
Because of these differences, the precise nature of the evidence to be led and the stringency of the test to be applied to establish discrimination may vary and ultimately will depend significantly on the context. …
I find support for my conclusion about the meaning of discrimination in the human rights context in the concurring reasons of Abella J. in McGill University Health Centre (Montreal General Hospital) v Syndicat des employés de l'Hôpital général de Montréal, [2007] 1 SCR 161.168
C. DEFERENCE IS CRITICAL
The balancing processes involved in justifying both violations of section 15 of the Charter and discrimination under human rights codes have similarities. However the critical difference is the degree of deference (or margin of appreciation) that should be shown to the rights violator. The need for a considerable degree of deference in the section 15 Charter context is well established and the following passage from Wynberg v Ontario makes this point clearly.
167 Multani v Commission Scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 SCR 256. 168 Ontario (Disability Support Program) v Tranchemontagne, 2010 ONCA 593, at paras 88, 89 and 92 respectively. [2013] THE MARRIAGE OF HUMAN RIGHTS CODES AND SECTION 15 95
The Supreme Court of Canada has held repeatedly that where the government has made a difficult policy choice regarding the claims of competing groups, or the evaluation of complex and conflictng research, or the distribution of public resources, or the promulgation of solutions which concurrently balance benefits and costs for many different parties, then the proper course of judicial conduct is deference.169
The issue of deference is not as clear in a human rights code context. First, the codes apply to both private and public respondents, unlike the Charter, which only applies to the public sector. The case for deferring to the private economic decisions of an employer or private service provider is not clear. Second, even in the public sector, the legislation which creates the human rights structure has built in balances between the claimants and the respondents and if either party is not happy with the balance they can lobby through the political process to get an amendment. The Charter is entrenched and any changes require a much more difficult constitutional amendment process.
2013 CanLIIDocs 114 That does not mean that deference has no relevance in a human rights process. This is demonstrated to some extent, in the Supreme Court of Canada decision in Moore v British Columbia170, when Justice Abella addresses the issues of justification in the human rights code context.
More significantly, the Tribunal found, as previously noted, that the District undertook no assessment, financial or otherwise, of what alternatives were or could be reasonably available to accommodate special needs students if the Diagnostic Centre were closed. This was cogently summarized by Rowles J.A. as follows:
The Tribunal found that prior to making the decision to close [the] Diagnostic Centre, the District did not undertake a needs-based analysis, consider what might replace [the] Diagnostic Centre, or assess the effect of the closure on severely learning disabled students. The District had no specific plan in place to replace the services, and the eventual plan became learning assistance, which, by definition and purpose, was ill-suited for the task. The philosophy for the restructuring was not prepared until two months after the decision had been made (paras. 380-382, 387-401, 895- 899). These findings of fact of the Tribunal are entitled to deference, and undermine the District’s submission that it discharged its obligations to investigate and consider alternative means of accommodating severely learning disabled students before cutting services for them. Further, there is no evidence that the District considered cost-reducing alternatives for the continued operation of [the] Diagnostic Centre. [Emphasis added; para. 143.]
169 Supra note 97 at para 184. 170 Moore, supra note 9. 96 UNB LJ RD UN-B [VOL/TOME 64]
The failure to consider financial alternatives completely undermines what is, in essence, the District’s argument, namely that it was justified in providing no meaningful access to an education for Jeffrey because it had no economic choice. In order to decide that it had no other choice, it had at least to consider what those other choices were. 171
This unwillingness to defer to the financial choices made by the District School Board were in part counter balanced by a greater show of deference to the need for financial cuts by the Department of Education at the provincial level. Indeed, the Supreme Court of Canada reversed the first level human rights tribunal on its broad award of systemic remedies against the province. It did this not as a matter of principle, but because the Court felt that the link between the provincial cuts to education and the discrimination suffered by Jeffrey Moore, was too remote a link.
The above conclusion was not stated in terms of deference but that appeared 2013 CanLIIDocs 114 to be a factor, at least between the lines of the decision. As in the earlier Charter equality challenge in Newfoundland (Treasury Board) v NAPE,172 the Supreme Court of Canada was sensitive to the needs of the legislatures to respond to matters of financial crisis. It is one thing to require school boards to manage even reduced budgets, in a way that does not discriminate; it is quite another to second guess the legislative and the executive branches, as to the need for and extent of budget cuts. Thus deference can have some role to play even in the human rights context.
In the Moore case Abella J. for the Supreme Court of Canada recognises that even in respect to a human rights code challenge to government benefits, such as education, some degree of deference is owed to the service provider. She does not directly address whether the “margin of deference” should be different in a section 15 Charter context and the human rights code context presented in Moore.
… As with many public services, educational policies often contemplate that students will achieve certain results. But the fact that a particular student has not achieved a given result does not end the inquiry. In some cases, the government may well have done what was necessary to give the student access to the service, yet the hoped-for results did not follow. Moreover, policy documents tend to be aspirational in nature, and may not reflect realistic objectives. A margin of deference is, as a result, owed to governments and administrators in implementing these broad, aspirational policies.173
171 Moore, supra note 9 at para 52. 172 Newfoundland (Treasury Board) v NAPE, 2004 SCC 66, 3 SCR 381. 173 Moore, supra note 9 at para 35. [2013] THE MARRIAGE OF HUMAN RIGHTS CODES AND SECTION 15 97
Justice Abella concludes that even with a show of deference, discrimination occurred when there was a denial of “meaningful” access to education.174
At the end of the day, the justification processes and approaches in Charter and human rights contexts should continue to be treated differently. There are of course points of overlap in some particular cases and some convergence of the approaches may enrich the equality process. The range of different interests at stake in these two contexts, and the need to engage in a broader social balance in the Charter setting, emphasizes the need for separation at this stage as well as at the violation stage.
VII. PRACTICAL IMPLICATIONS FOR EQUALITY SEEKERS: REMEDIES OF LAST RESORT
Although the importation of the section 15 Charter framework into statutory human rights jurisprudence is troubling in terms of substantive equality theory, there are 2013 CanLIIDocs 114 also significant practical implications for claimants that must be considered. The decision to import the section 15 analytical framework has real financial, temporal, and outcome-based consequences for the claimant pursuing a discrimination claim. As a result of these consequences, access to justice is devalued and considerably limited.
Hart Schwartz explains that “human rights should be clear and understandable”, and that “Human Rights Commissions and Tribunals need to be accessible to many people, most of whom are not lawyers.”175 However, there is no definitive analytical structure in place that may be considered the standard to abide by in human rights jurisprudence. There is inconsistency between whether the O’Malley or section 15 Charter structure should be employed,176 and this leads to unpredictability as to what the courts will require of claimants.
What are the consequences of unclear, or inconsistent, approaches to human rights in Canada? First, if section 15 tests are imported into human rights jurisprudence, it is obvious that the Charter standards will now be applicable to the
174 Moore, supra note 9 at para 36. 175 Supra note 92 at 201-202. 176 Examples of cases that discuss the appropriate analytical structure include Canadian Human Rights Commission v Canada (Attorney General), 2012 FC 445, 2012 CarswellNat 1026; Moore v British Columbia (Ministry of Education), 2010 BCCA 478, 326 DLR (4th) 77; Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593. These cases are explored at length earlier in this article. 98 UNB LJ RD UN-B [VOL/TOME 64]
private sector.177 Second, if there is any uncertainty as to what is required of the claimant in proving discrimination, human rights are not “clear and understandable”. If the inconsistencies remain, “accessibility” in a broad sense will also be at stake. Any claimant who is unsure of what is required of them to make a claim before a court or tribunal would not feel as if that system were “accessible”. Ultimately, it is important to pause and consider – will claimants bear the burden of an unpredictable approach to the violation analysis or justification of discrimination?
Claire Mumme suggests that many claimants choose to pursue an equality claim via human rights commissions and tribunals rather than a constitutional challenge because “of the perceived formality and formulaic nature of the section 15 Charter analysis over the past few decades, as well as the time and cost involved. This has made a constitutional equality claim the last legal resort for many”. She further notes that the O’Malley test is “arguably easier” for claimants to meet.178 If, as Mumme suggests, the constitutional equality claim is the last legal resort for claimants, what effect does placing that formulaic test on human rights code claims have? Would this, in turn, result in both (and therefore, all) routes to pursuing a 2013 CanLIIDocs 114 discrimination claim becoming the path of last resort?
In comparison to the O’Malley test, the section 15 structure is lengthy and onerous. This has direct and serious implications for claimants. For example, Maurina Beadle, the mother of 17-year-old Jeremy Meawasige from Pictou Landing First Nation, fought in the courts for her right to provide care at home to her son who has hydrocephaslus, autism, and cerebral palsy. Ms. Beadle had provided for all of Jeremy’s care without government assistance, until she suffered a stroke in 2010. Upon applying for government funding for home health care, Ms. Beadle found herself in a jurisdictional conflict in which the Federal government would not pay for health care services unless Jeremy moved off the reserve and into a facility outside the Pictou community.179
As part of her challenge, Ms. Beadle and her lawyer, Paul Champ, submitted that denying a disabled First Nations child on-reserve the health care
177 Raj Anand & Tiffany Tsun, “Discrimination and Equality Rights: The Role of Human Rights Statutes in Advancing Equality” (2009) 25 NJCL 161. They argue that the Charter and human rights codes should supplement each other. 178 Supra note 40. This argument is further fortified by the argument that the Supreme Court of Canada is becoming “Charter averse,” K. Makin, “Supreme Court becoming “Charter averse” expert says” Toronto Globe and Mail (April 13, 2013). 179 “Mother fights to keep disabled son on N.S. reserve” CBC News (12 June 2012), online: http://www.cbc.ca/news/canada/nova-scotia/story/2012/06/11/ns-health-care-pictou-landing-reserve.html. Ms. Beadle is looking to invoke “Jordan’s Principle.” Jordan’s Principle is a child-first policy passed in the House of Commons in 2007, named in honour of Jordan River Anderson of Norway House Cree Nation. Jordan spent his entire life in a hospital while the province of Manitoba and the government of Canada engaged in a jurisdictional argument over who was responsible for funding his care at home. [2013] THE MARRIAGE OF HUMAN RIGHTS CODES AND SECTION 15 99 services available to any child off reserve is in conflict with section 15 of the Charter.180 Although Justice Mandimen, who heard the case, acknowledged its time- sensitive nature, the decision will still take time – which does not serve the interests of Jeremy. As Ms. Beadle acknowledged “this case won’t necessarily change things for Jeremy, by the time it’s over”.181
As this article goes to press, the Federal Court decision of Justice Mandimen was released on April 4th, 2013. In that decision, the court quashed the decision that the funding could not be provided, and found that the Federal Government and Health Canada were responsible for reimbursement, of an unspecified amount, to the Pictou Landing Band Council (PLBC) for Jeremy’s care. Interestingly however, the section 15 Charter arguments were not the ones that won the day. The Judge made the decision based on the application of a common law doctrine, known as Jordan’s principle. This principle is meant to prevent access to service delays to First Nation children because of jurisdictional arguments.182
2013 CanLIIDocs 114 In the landmark case of Jeffrey Moore, his father, Mr. Frederick Moore, on behalf of his son, filed a human rights complaint against the Board of Education of School District #44 (North Vancouver) in May 1997. Jeffrey had begun kindergarten in September 1991 while at Braemar Elementary School, a British Columbia public school. While there, he was diagnosed as having severe dyslexia. By the end of grade two, Jeffrey was diagnosed as severely learning-disabled. This entitled the school district to supplemental funding from the Ministry of Education to support Jeffrey’s learning. However, the specialized Diagnostic Center that was recommended for Jeffrey was closed due to financial reasons, before he could attend.
In 1999, Mr. Moore filed a second human rights complaint against the Ministry of Education. The hearing before the Tribunal took place in 2001, 2002 and 2005, with a decision being released in 2005. In response to the Tribunal’s decision, the School District and Ministry brought petitions forward for judicial review of the case. The case was taken to the British Columbia Supreme Court in 2008 and the Court of Appeal for British Columbia in 2010.183
The case ultimately was appealed to the Supreme Court of Canada and a unanimous decision was released on November 9, 2012. Justice Abella, writing for
180 Moira Peters, “Boudreau is the Law”: The legal nature of an exception, and health care for First Nations children” (19 June 2012): Halifax Media Co-op
the Court, was notably deferential to the findings of the human rights tribunal in affirming that Jeffrey had been discriminated against both individually and systemically. This approach of deference to the tribunal is reminiscent of Justice L’Heureux-Dube in Mossop. However, the difference is that Justice L’Heureux- Dube was dissenting in Mossop, and Justice Abella in Moore was writing for a unanimous court.184
Although the Supreme Court of Canada in Moore rejected systemic remedies against the Department of Education that were awarded by the Tribunal, the Moore case is a striking example of human rights commissions and tribunals leading the way on equality rights. The broad interpretation by Justice Abella of ‘services’ encompassing education generally and not just “special education”, is an example of how a human rights tribunal can function as a leader in achieving substantive equality. The Supreme Court in Moore explained that “to define ‘special education’ as the service at issue also risks descending into the kind of ‘separate but equal’ approach.”185One institutional structure should enhance the other and not impose new external limits. That is what happened in the Moore case. 2013 CanLIIDocs 114
The contrast between the Supreme Court of Canada decision in Moore186 under the human rights code structure and its earlier decision in Auton v British Columbia187 under section 15 of the Charter, is striking. In Auton the particular therapy sought for the children with autism was not a benefit encompassed within the British Columbia statutory structure. However, even if it had been included the Supreme Court compared the claimant group to other narrowly defined disabled groups, rather than the larger group of people seeking medically needed services. This could be construed as the “separate but equal” analysis that the Supreme Court rejected in Moore, albeit in a human rights code rather than a Charter context. As discussed earlier, the importation of a section 15 Charter narrower comparator analysis would have defeated Jeffrey Moore’s claim. Indeed, this was the basis of the majority decision at the British Columbia Court of Appeal in Moore, where the relevant comparator was deemed to be other groups seeking different forms of special education.188
It will be interesting to watch whether the expansive approach to equality demonstrated in Moore will be used in future section 15 Charter claims to chart a broader course in the constitutional context. If so, this would be an example of the
184 Canada (Attorney General) v Mossop, [1993] 1 SCR 554, SCJ No 20. 185 Moore, supra note 9 at para 30. 186 Moore, supra note 9. 187 Supra note 85. 188 Supra note 21. [2013] THE MARRIAGE OF HUMAN RIGHTS CODES AND SECTION 15 101 human rights code jurisprudence enriching the section 15 Charter analysis. This would be a positive development.
A. ACCESS TO JUSTICE
Although the Moore decision is to be commended, Jeffrey Moore is no longer enrolled in elementary school; he has long since completed both elementary and high school. He is now gainfully employed as a plumber in British Columbia.189 Evidently, human rights commissions and tribunals are not without problems in cost and delay. For example, common complaints and concerns regarding the human rights process in British Columbia included “delays at intake and investigation” and “duration, complexity and costs of the process”,190 and the Moore case exemplifies these concerns. However, we should not shift towards importing a section 15 Charter analysis that increases complexity, extends the process, and raises the costs for claimants, as importing section 15 will do? Instead, we should focus on improving the human rights process in order to ensure an efficient, effective, and accessible system for any and all equality claimants. 2013 CanLIIDocs 114
Access to justice has been characterized as a crisis in Canada.191 In 2007, during her remarks to the Canadian Bar Association, Chief Justice Beverley McLachlin stated that “access to justice is the essential foundation for our legal system to function and to maintain the confidence of the public it serves”.192 However, in 2010-2011, approximately 670,000 applications for legal aid were submitted to legal aid plans in ten provinces and territories (excluding Alberta, Northwest Territories and Nunavut) with civil matters making up over 56% of the applications.193 In British Columbia, 90% of civil litigants are unrepresented.194 If the importation of section 15 into human rights jurisprudence continues, this trend of self-representation may continue. The cost and length of pursing either a section 15 Charter claim or a human rights code claim could prove to be too much for most claimants to bear.
189 Kirk Makin, “Rights of special needs students upheld”, The Globe and Mail (10 November 2012) A7. 190 Deborah K. Lovett & Angela R. Westmacott, Human Rights Review: A Background Paper (Victoria: Administrative Justice Project, 2001), online: Administrative Justice Office
In the Ryder article, the authors note that “we need more investigation of the impact of legal decisions on political actors and policy development, and, perhaps, most importantly, we need more inquiries into how and in what ways policy changes generated by equality litigation, are actually having an impact on the lives of equality litigants and the groups they represent.” 195 There needs to be more empirical analysis on the impact of changes in equality theory and practices on the everyday lives of the front line equality claimants. The law should be interpreted in a way that advances rather than limits their pursuit of equality.
The approaches under section 15 of the Charter and human rights jurisprudence are intrinsically linked by what they try to achieve: substantive equality. However, achieving substantive equality is a dynamic and complex pursuit, and complex pursuits require complex solutions. It is not enough to suggest that there is a one-size-fits-all test to determining or justifying discrimination. The approach to human rights under O’Malley is a model that allows for both 2013 CanLIIDocs 114 contextualized claimant experiences and systemic discrimination complaints. Rather than making human rights equality claims more difficult for claimants by importing the section 15 Charter analysis, we should be actively working to achieve a multi- faceted approach to ending discrimination. We need an approach that works to solve the access to justice crisis, rather than perpetuate it.
Maintaining distinct but mutually reinforcing human rights codes and Charter structures is the best route to making equality claims more accessible to the most vulnerable members of Canadian society. In that vein, the Supreme Court of Canada will hopefully expand upon its advances for equality in Moore, in a way that maintains the distinct identities of the section 15 Charter and human rights code structures. The best marriages are those in which the individual partners maintain their own identities but also enrich rather than limit each other’s lives. This is our hope for the marriage of human rights codes and section 15 of the Charter.
195 Ryder, supra note 6 at 114. EXPLORING INEQUITIES UNDER THE INDIAN ACT
Cheryl Simon, Judy Clark*
INTRODUCTION
The lives of Aboriginal women have been deeply affected by Government policy. The Indian Act1 (the Act) was enacted in 1876 and continues to govern the lives of status Indians. The Act has long discriminated against women and eroded cultural values and practices within the Mi’kmaq nation.
In 1982 the Canadian Constitution2 was repatriated. The new Constitution included the Canadian Charter of Rights and Freedoms (the Charter). As part of the 2013 CanLIIDocs 114 supreme law of Canada, the Charter guarantees the protection of individual rights. For many Canadians, this was a positive step ensuring government could not infringe on their rights. However, in an effort to balance the collective and individual rights of Aboriginal people, the implementation of the Charter not only failed to protect Aboriginal women in our First Nation, it enshrined a system of discrimination where remedy would prove to be extremely elusive.
As Mi’kmaq, the legal history of the Act’s membership provisions cannot be viewed in an objective manner. The women in our family live under the Act and are born, married and give birth within the Act’s regime. The Act has impacted not only how we view ourselves, but also how we are treated by our extended family and Canadian society. While these issues impact men as well as women, our story will be told through the experiences of Mary Jane Jadis (grandmother), Judy Clark (Mother), Cheryl Simon (daughter) and Declan Simon (grandson).
We are from Abegweit First Nation and our membership is determined by a custom code that was developed under section 10 of the Act. This paper traces the development of our community’s Custom Membership Code, the on-going problems with the Code, and our options for seeking justice. Much has been written about the discrimination in the Act, and the recent attempt by Bill C-3 to address the discriminatory provisions. However, the amendments have had little impact on our Membership Code and we feel that we must share our story to help people understand why.
* This piece is a reflection piece telling the story of the Authors’ experiences in relation to the Indian Act. 1 Indian Act, RSC, 1985, c I-5. 2 Constitution Act, 1982, Schedule B to the Canada Act 1982, (UK) 1982, c 11. 104 UNB LJ RD UN-B [VOL/TOME 64]
This paper is a search for a safe and effective forum to discuss our membership issues given the love we have for our children and the lessons learned from our ancestors. We have permission to share our family’s story with you. As mothers, we are givers of life and teachers and will carry these obligations until we are Grandmothers.3 Our method of teaching involves telling stories. People must draw lessons from the stories they hear. What is asked in return is that you treat our story with respect.
MI'KMA'KI
We are members of the Mi’kmaq nation. Our territory, Mi’kma’ki, is divided into seven districts located in eastern Canada. The majority of our family live within the Epekwitk aq Piktuk district which includes the island Epekwitk, also known as Prince Edward Island (PEI). Traditionally, family groups made use of specific areas within the district for their livelihood. Each district had a Saqamaw4 who spoke for the people. The Mi’kmaq Grand Council brought the district Saqamaq’s together to decide issues that affected the nation as a whole. 2013 CanLIIDocs 114
After the French lost the battle for North America, the British annexed the island with the Royal Proclamation of 1763. Upon acquisition, the British had Epekwitk surveyed. The island was divided into lots and a lottery held in London; no consideration was given for the rights of the Mi’kmaq.
Mi’kmaq continued to live on what became known as Lennox Island off the western coast. The Aborigines Protection Society purchased Lennox Island for the Mi’kmaq in 1870. The island became a reserve and a Band under the Indian Act, 1876.5 Three more reserves would be added, purchased primarily by philanthropists groups: Scotchfort, Morell and Rocky Point.
The people who settled these reserves were Mi’kmaq and membership was determined according to Mi’kmaq law. There is no question that there were non- Native people who were part of these communities, but Mi’kmaq law was inclusive. On PEI, non-Natives married Mi’kmaq people and were accepted by their family, they were adopted by Mi’kmaq people and brought up according to Mi’kmaq culture, or they moved to the community and lived a life that aligned with Mi’kmaq cultural values and were accepted.
3 The term “grandmother” refers to a female Elder. 4 Chief 5 The Indian Act, 1876, SC 1880, c 19, s 3(1).
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However, the Canadian government viewed people of mixed heritage differently than the Mi’kmaq. Our first Prime Minister, Sir John A McDonald, stated in 1885 that “[if] they are half-breed, they are [considered by the government to be] white."6 Another big change was that the Mi’kmaq nation had always been matrilineal. However, under the Indian Act, lineage passed through the male line. The government’s exclusive view of heritage coupled with the patrilineal system would undermine the role women played in the governance structure of the nation. From the time the first Indian Act was passed, the government approach would create an assimilationist policy with long-lasting effects.
MARY JANE
Mary Jane Thomas was born on January 26, 1921 in a campsite in Tyne Valley, which is located on the mainland, across from Lennox Island. Her mother passed away when she was 5 years old and she lived with various family members until her father remarried.
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Mary Jane was only able to obtain 2 years of education in Lennox Island. As a teenager she was sent to Shubenacadie, Nova Scotia with her sister, but did not attend the residential school because they were at full capacity and not accepting students. She returned to Lennox Island when she was sixteen.7
Mary Jane met Francis Frederick Jadis (Frank) when she was 17 years old. Frank was born in Kentville, NS and his family was from Sipekne’katik district and had been put on the Shubenacadie Band List. As a young man, Frank had joined the Merchant Marine in the United States (US) during World War II. By serving in the US, he avoided becoming an “enfranchised Indian”, a legal status which serving in the Canadian army would have granted. Enfranchisement would have caused him to lose his Indian status. Compared to others at the time, Frank was considered to be an educated man because he had obtained a grade ten education.
Frank and Mary Jane were married on March 5, 1938 when she was 17 and he was 30. It was an arranged marriage, but Mary Jane was happy because she thought he was a good man whom she could grow to love. Because Frank had avoided enfranchisement, they both remained status Indians upon their marriage.
6 1876-1877: The Indian Act, 1876 and numbered treaties six and seven, online: Canada in the Making
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It was customary for Mi’kmaq men to move to the woman’s community when they were planning on getting married. They would live there for a year and if the family approved, they would marry and remain with her family. While we do not know the extent this custom would have had an effect on them, we do know that Frank and Mary Jane moved to Nova Scotia but returned shortly thereafter because Mary Jane missed the island and her family.
This practice was in contrast to the patrilineal system established by the Act. In addition, the governance structure was a patriarchy and politics was a male arena, one which Frank soon entered. Frank was Chief of Lennox Island Band on Sept 4, 1951 when new amendments to the Act came into force. 8
The amendments were troublesome. A central registry was created to list those registered as Indians. These people would be entitled to live on the reserves and receive other benefits. The amendments did not change earlier Act provisions that defined “Indian” in a manner that treated men and women differently. Now, 2013 CanLIIDocs 114 Section 12(1)(b) provided that a women who married a non-Indian was not entitled to be registered. In contrast, section 11(1)(f) stated that the wife or widow of any registered Indian man was entitled to status.9 These provisions emphasized the male lineage. An Indian woman lost her status once she was married. Any adopted children had to be registered.
The effect was immediate. The Lennox Island Band Council in 1951 was comprised of five members. One of the councillors was James Tuplin. James was not born Mi’kmaq, but had been given up at three months and raised on Lennox Island10. He was the adopted child of his Mi’kmaq family and spoke Mi’kmaq as a first language. He married a Mi’kmaq woman and they had children. However, he was not registered as an Indian. In 1951, the Indian Agent11informed him that as non-Indians he and his family would have to leave the reserve.
Mary Jane’s younger sister, Aunt Josephine, married a non-Indian. She lost her status and was not entitled to live on the reserve. Unfortunately, her marriage did not last. Although she was no longer married, she was still a non-Indian and not entitled to come home. Judy remembers how Aunt Josephine and her children could only come back to visit for two weeks at a time. She could not even be buried with
8 Indian Act, SC 1951, c 29. 9 Megan Furi & Jill Wherrett, Indian Status and Band Membership Issues (Ottawa: Queens Printer, 2003). 10 M Olga McKenna, MicMac by Choice: Elsie Sark- An Island Legend (Halifax: Formac, 1990). 11 Government employees under the authority of the Indian Act working on reserves.
[2013] EXPLORING INEQUITIES 107 her family because the cemetery was on reserve. Aunt Josephine’s loss was poignant because family ties are an extremely important element of Mi’kmaq culture.
Mary Jane would have 14 pregnancies with 7 surviving children.12 Judith (Judy) Jadis was born in 1955 and was the eldest of two daughters. They continued to live on Lennox Island but would move to Maine for blueberry and potato harvesting seasons. Frank taught his children about the Indian Act, the Peace and Friendship Treaties and the Jay Treaty; it was the Jay Treaty that enabled them to work across the border.
Mary Jane and Frank worked hard to provide for their growing family. They were gifted basket makers and taught their children how to fish and live off the land. They were surrounded by a large extended family and Mi’kmaq was the language spoken at home. While family life continued to follow the natural cycles in Lennox Island and Maine, Canada was entering very tumultuous times politically.
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As Chief, Frank was a member of the National Indian Brotherhood (NIB) and was often in Ottawa. The organization was a result of the growing Aboriginal identity that grew out of the resistance to the 1969 White Paper. The White Paper proposed getting rid of the special status that Indians “enjoyed” under the Indian Act. It was part of the vision Prime Minister Pierre Trudeau had for Canada. Frank was on an advisory committee and was in Ottawa a lot during this time. Mary Jane found it difficult to have her husband away on political business but she could count on her family and older boys to help her with her growing family.
All that would change, for circumstances in Lennox Island compelled the family to leave the reserve. Frank was in Amherst, NS when the family moved to the Scotchfort reserve, which is 20 minutes east of Charlottetown and approximately 2 hours away from Lennox Island. Upon his return, Frank built a house for the family with sweat equity and money from a trust set up by the same group who had purchased the reserve for the Indians.
JUDITH
In 1972, three reserves separated from the Lennox Island Band to form the Abegweit Band.13 The first Chief was a woman named Margaret Bernard who lived on the
12 In order of age: Joseph, Michael, Peter, Judy, Francis, Barbara and Thomas. 13 “Abegweit” is the anglicized version of Epekwitk.
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Scotchfort Reserve. The Band’s administration and programs were the primary source of employment for band members.
My brothers worked for the band and became involved with a fishery project in the early 1970’s that required them to become certified SCUBA divers. Their instructor was John Clark and he became a good friend of theirs. They brought him out to the reserve to meet the rest of the family, which is how he and I (Judy) met.
When John proposed in 1975, I asked him for six months to consider. This may seem harsh but the decision went beyond the normal scope of a marriage proposal. I was 19 years old and had a good job with Abegweit Band’s administration. I lived on the reserve as a status Indian and was surrounded by my family. Marriage meant losing my status as an Indian, and leaving my job, the reserve, and my family.
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My mom was worried because of what happened to Aunt Josephine and Dad was worried about what the loss of status would mean. These were valid concerns given recent court decisions at the time.
In 1974 the Supreme Court of Canada (SCC) released Lavell v Canada and Isaac v Bedard simultaneously.14 Both cases involved women who had lost their status upon marriage. Jeannette Vivian Corbiere Lavell was one of the women. Both alleged that the loss of status was sex discrimination under the 1960 Bill of Rights.15 The court found, in a 5-4 decision, that there was no discrimination. Ritchie J. stated that equality is “part of the ‘rule of law’ and means equality in the administration or application of the law.”16 Therefore, because the Act was applied to all Indian men and women equally, there was no discrimination. This was a highly controversial decision.
There seemed to be no legal recourse to the loss of status. Despite this, I accepted John’s proposal within a month and we were married on December 22, 1975. I will never forget Dad asking, “Judy are you sure?” before he walked me down the aisle. Our guests were anxious to congratulate us, but I was overcome with the change the marriage would bring and found their wishes difficult to accept. Dad
14 Attorney-General of Canada v Lavell, Isaac v Bedard, (1973) 38 DLR (3d) 481, 23 CRNS 197 [Lavell]. 15 Canadian Bill of Rights, SC 1960, c 44. 16 Lavell, supra note 14 at 483.
[2013] EXPLORING INEQUITIES 109 seemed to understand and instructed John to take care of me as we left. It was a truly life-altering event.
John had joined the military to give us employment stability, and he was posted to British Columbia (BC). We flew to BC on December 31, 1975 and the notification that I had been struck from the Indian registry was waiting when we arrived. The irony is that while I had lost my ability to stay with my family, John’s family did not accept me. While I may not have been an Indian in the eyes of the law, I was certainly one in the eyes of my in-laws.
The early years of married life were extremely hard. I was young and being suddenly uprooted from the Atlantic, felt claustrophobic due to the looming mountains. In addition, I soon became pregnant with the first of two girls and found myself dealing with motherhood far removed from the support network my family would normally have provided.
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Military bases bring with them other people uprooted from friends and family and we would soon meet another young couple; she was from Miramichi and he was Mi’kmaq from Eel Ground Reserve in northern New Brunswick. It was little wonder we would become life long friends and “Aunts” and “Uncles” to each other’s children.
Shannon was born in 1976, and Cheryl was born in 1978. Our girls were not Indians when they were born. However, they did become Indians when the youngest (Cheryl) was almost 8 years old.
This is because Canada’s position regarding discrimination in the Act changed. In 1977, Sandra Lovelace, a Maliseet17 woman from eastern Canada lost her status. After the disappointing Lavell decision of the SCC, she took the issue to the United Nations Human Rights Committee. She claimed the Act was sex discrimination. Canada’s submission stated that it:
recognized that "many of the provisions of the ... Indian Act, including section 12 (1) (b), require serious reconsideration and reform". The Government further referred to an earlier public declaration to the effect that it intended to put a reform bill before the Canadian Parliament. 18
17 The Maliseet Nation are neighbours of the Mi’kmaq nation. Both nations are part of the Wabanaki confederacy that stretches into New England in the United States. 18 Sandra Lovelace v Canada, Communication No R6/24 (29 December 1977), UN Doc Supp No 40 (A/36/40) at 166 (1981).
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Regardless, Canada was in violation of the International Covenant on Civil and Political Rights. The loss of status prevented Sandra from practicing her culture by keeping her from the reserve. The government proposed to amend the Act. It seemed a victory for Indian women.
The Constitution Act, 1982 came into effect and brought the Charter. Two sections of the Charter seemed to have particular consequences for Aboriginal women:
15.(1) 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 and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
25. 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 2013 CanLIIDocs 114 including (a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and (b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired. 19
The guaranteed rights reflected the growing recognition of human rights in Canada. Its passage seemed to usher in an era of equality.
The amendments the government spoke of in their UN submission are known as Bill C-31.20 The new status requirements were applied equally:
6(1) Subject to section 7, a person is entitled to be registered if (a) that person was registered or entitled to be registered immediately prior to April 17, 1985; (b) that person is a member of a body of persons that has been declared by the Governor in Council on or after April 17, 1985 to be a band for the purposes of this Act; (c) the name of that person was omitted or deleted from the Indian Register, or from a band list prior to September 4, 1951, under subparagraph 12(1)(a)(iv), paragraph 12(1)(b) or subsection 12(2) or under subparagraph 12(1)(a)(iii) pursuant to an order made under subsection 109(2), as each provision read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as any of those provisions;
19 Constitution Act, supra note 2. 20 Supra note 1.
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(2) Subject to section 7, a person is entitled to be registered if that person is a person one of whose parents is or, if no longer living, was at the time of death entitled to be registered under subsection (1).
This gave status to the women who lost it under s.12(1)(b) and all people with one non-Indian parent. The amendment was backdated until April 17, 1985 to bring it under the Charter.
There was a national campaign to reach the women affected. I had to apply and prove my genealogy; my girls were included under my application. Unfortunately, my dad, who worried so much about my loss of status died on February 24, 1986, before the application had been processed. We officially became Indians but not in time for him to witness it.
It is difficult to capture what I went through in the almost 10 years I did not have status. As a child, my Mi’kmaq/Indian identity was not something I ever 2013 CanLIIDocs 114 thought would change; it was not something I thought could be changed. People are aware now of the effects of lateral violence and it is not a stretch to say I suffered it at the hands of my family. Even today, close relatives will get angry and bring up my off-reserve status. In addition, I found it difficult to pass on the Mi’kmaq language, though it was not for a lack of trying. I raised my girls to be proud Mi’kmaq women and to understand that marrying for love and having children should be a positive experience and not something that requires you to give up the only life you have known. The experience made us all strong, but it was difficult.
CUSTOM CODE
Cheryl is a status Indian today because of legislative changes. While it seemed an era of advancement, the new system created distinctions between status Indians. The sections that applied to us are:
6(1)Subject to section 7, a person is entitled to be registered if (a) that person was registered or entitled to be registered immediately prior to April 17, 1985; (2) Subject to section 7, a person is entitled to be registered if that person is a person one of whose parents is or, if no longer living, was at the time of death entitled to be registered under subsection (1).21
The resistance to Bill C-31 was fierce. Many Bands feared they could not provide housing and services to the new Indians. Others felt that the government should not intervene in national membership issues. The government deferred to the
21 Ibid.
112 UNB LJ RD UN-B [VOL/TOME 64] latter by giving the Bands until June 28, 1987 to enact custom membership codes. These codes were to determine membership by the custom of the Band. They would not be subject to Bill C-31 amendments. They could exclude women who had lost their status and their children without being subject to Charter scrutiny.
My girls and I had been registered with the new Abegweit Band. The Council, with my brother Mike as Councillor, wasted no time drafting the Abegweit Band Membership Code (the Code) and an Election Code. In her book Beyond Blood, Dr. Pam Palmater states that “though many First Nations are looking at self- government agreements and their own citizenship codes as a way of moving forward, some are considering using the same principles or criteria embedded in the Indian Act, 1985 as the basis for their citizenship codes. ”22 This was certainly the case with the Abegweit Band where the Code reads:
8. Persons entitled to membership in the Abegweit Band shall be all persons described under section 11.(1) (a)(b)(c) and (d) of the Indian Act, 23
which reads as follows…. 2013 CanLIIDocs 114
The Code makes no reference to the customs, practices or traditions of the Mi’kmaq Nation. It takes criteria from the Act with one distinguishing feature. It does not include people registered under s.6(2). Any status Indian registered with Abegweit Band with a non-Indian parent does not qualify as a Band Member.
This sounds like strictly a policy issue, but my younger brother Francis made the motion to accept the Code. Out of a possible 75 votes there were 69 cast in the plebiscite to pass the Code. Only 1 person voted against it. Needless to say I was not happy with my brothers. They assured me that notwithstanding the criteria, the Chief had the discretion to create new members and Cheryl and her sister would get membership when they turned 18. There was nothing I could do but wait.
There is one other provision of the Code that needs to be discussed. Initially the Code required a majority vote to pass amendments; it was amended to increase the threshold to 75%. The Code has never been subject to legal scrutiny. The question we, and a group within the community are now facing, is whether it should be.
22 Pamela D Palmater, Beyond Blood: Rethinking Indigenous Identity (Saskatoon: Purich Publishing Ltd, 2011). 23 Abegweit Band Membership Code, 1982.
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CHERYL
Colonisation caused our traditional governance to be replaced by the Act. The balance within our communities was disrupted and men were given power over women. Our Code is called “custom” by the Act but it is more reflective of a Canadian government than a Mi’kmaq government.
When I turned 18, I (Cheryl) applied for Band Membership and a status card was issued to me for the first time. As an adult, I now had my own registry number and Mom (Judy) was relieved when it came. I went off to university and followed the recommendation of my older sister to take Native American Studies. I enjoyed it so much it soon became my major.
While at school, the government launched the Royal Commission on Aboriginal Peoples (RCAP). RCAP was a response, in part, to the brutal and degrading slaying of an Aboriginal Woman. RCAP’s report was released in 1996. 2013 CanLIIDocs 114 The commission had travelled the country hearing from Aboriginal people about issues of concern. The report includes a chapter on women’s perspectives. It speaks of how “tensions stemmed from the perception that women's rights were pitted against Aboriginal rights.”24 In challenging the provisions of the Act, the women are often viewed as bringing challenges to the Band Council’s authority.
The Band Councils are recognized as the beneficiaries to the Treaties by the government and courts. They are the political representatives of the Aboriginal people in Canada and many are in active negotiations. Dissent is viewed as a challenge to the self-government the Bands are working towards, not as a justified critique of the system. The Act creates Indians, not members of the Mi’kmaq nation, but everyone does not understand the distinction.
A Maliseet woman told the commission:
If we are to put…self-government…in place, we must ensure that all our people will have a means to take their complaints forward. We must ensure that all our administration and self-governing is accountable to ensure that the basic rights and freedoms our grandfathers and our mothers suffered starvation for will be assured….We must protect all of our people's rights. We are being blinded by the terminology being used today that helps to divide us, such as status and non-status, on-reserve, off- reserve.25
24 Canada, Report of the Royal Commission of Aboriginal Peoples: Perspectives and Realities, vol 4 (Ottawa: Supply and Services Canada, 1996). 25 Ibid.
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University gave me the national context for my family’s story. Despite this, I was shocked in 1999 when three women were arrested in Scotchfort when they tried to vote in the Band Council Election. My auntie Barbara, Mom’s younger sister,26 was one of the women. I remember my cousin calling to report “Mom’s in Jail!” The women could not vote because they lived off reserve and the Abegweit Band dealt with the issue by allowing it to become a criminal matter. The Court refrained from addressing the discrimination issue because of a case before the SCC. It seemed at the time that change was finally going to happen.
Off-reserve voting is seen as a woman’s issue because the majority of off- reserve members are Bill C-31 women and their children. In Corbiere v Canada (Corbiere), the SCC found that the residency requirement constituted discrimination under section 15 of the Charter.27 The Court of Appeal found a constitutional exemption was warranted because other Bands might prove an Aboriginal Right to restrict voting. However, the SCC found that if “"Aboriginality-residence" is to be 2013 CanLIIDocs 114 an analogous ground…then it must always stand as a constant marker of potential legislative discrimination.”28 Further, the “effect [of the requirement] is clear, as is the message: off-reserve band members are not as deserving as those band members who live on reserves. ”29 The SCC declared that the on-reserve residence requirement was void but suspended the judgment for 18 months. This was to allow the government to develop a process that balanced the interests of all members.
The government spent the time developing election regulations. The new process involves mail-in ballots (without affidavits) and a notification period that is longer than the federal government elections. They did not apply to Abegweit First Nation because of our custom election code. Due to the timing of the arrests, if the Code were to be challenged, an application would still have to be brought forward. The women who were arrested received probation; the election was carried out with only on-reserve, 6 (1) members being able to vote, and no application was filed so nothing changed with respect to the codes. My Uncle Francis became Chief and my Uncle Joe as one of the two Councillors.
By now I had graduated from university and Uncle Fran had an administration to be filled. I moved in with Grammy (Mary Jane) and eagerly started
26 Auntie Barbara’s action was very risky for her. She is a teacher and had a lot to lose from gaining a criminal record. It worked out well for her but it speaks to her level of commitment on the issue. 27 Corbiere v Canada (Minister of Indian and Northern Affairs), [1999] 2 SCR 203 [Corbiere]. 28 Ibid at para 10. 29 Ibid at para 18.
[2013] EXPLORING INEQUITIES 115 work as Director of Administration. I was 21 years old and only 1 of 5 Band members with a university degree. Mom also moved home, became Financial Comptroller, and for a time lived with Grammy as well.
During the early days of the administration, the Band was involved in a judicial review because the former Chief, who had held the position for over 20 years, wanted to create a new Band. I went to the Discovery with Uncle Fran and it was there that a witness30 had me removed from the proceedings. I was told that the case was a Band matter, and as I was not a Band member, I was not entitled to be there. Words cannot explain how shocking and humiliating it was.
As a child, I had been listed under Mom’s registry number on the central registry of Indians. When the Band sent my membership card, they issued a new registry number but because I was a s.6(2) Indian, I was not put on the Band list. The Council could have granted membership but the addition to the Band list would have been open to challenge. For several years, I was not a member but had not been 2013 CanLIIDocs 114 told.
It was very degrading. When my lack of membership became common knowledge, I even had a first cousin ask if I was Mi’kmaq. Being a s.6(2) Indian means nothing in Abegweit First Nation.
CHANGE
In 2002 the department of Indian Affairs approved a Band proposal to amend the Code. With the support of Council, I was the director of the project and began a community consultation process that would lead to a referendum. In the meantime, the government was again proposing amendments to the Act.
The purpose of the First Nations Governance Act (FNGA)31 was to bring accountability and transparency to Band governance. This would include application of Charter values. However, the FNGA did not address membership or other “women’s issues”. It did however, set out requirements that even custom election codes would have to adhere to.32 While changing the Code would have been worthwhile, there were many reasons why it was better that the FNGA did not pass.
30 The witness, Brian Francis is the current Chief of Abegweit First Nation. 31 Bill C-7, First Nations Governance Act, 2nd Sess, 37th Parl, 2002-2003. 32 Mary C Hurley, "Bill C-7: The First Nations Governance Act" (10 October 2002), online: Parliament of Canada Legislative Summaries
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Meanwhile, the community consultation process was underway. It was hoped that the dialogue across the region about Custom codes would provide an incentive to bring about change. By the time the proposal was accepted, money received, consultations carried out and drafting occurred, it was once again election time. There was fierce opposition to the amendments, which would have included s.6(2)’s, a more fair amendment process, an appeals process, and a mechanism that would allow transfers of membership to the Band.33 For various reasons, the 74 on- reserve Band members voted against the amendments.34
When the results were announced, one woman was heard to declare that she had voted against the change because she was glad her daughter would have to live off reserve when she turned 18; it would mean a better life. Unfortunately, this is not always the case.
2013 CanLIIDocs 114 Mom is President of the Aboriginal Women’s Association of PEI and has been active on the National Woman’s Advisory Council (NWAC) Executive Council. NWAC has worked tirelessly to bring the issue of Murdered and Missing Women to the attention of the Canadian public. The reality is that life off reserve is often very difficult and can be tragic, especially when moving is not voluntary and the loss of family and separation from culture becomes a reality.
In the meantime, my experience with the band referendum and judicial review was strong motivation to become a lawyer. In 2003 I attended the University of Victoria Law School and spent three years thinking about possible ways the Code could be amended. Given the SCC Corbierre decision which did not apply to custom codes, the failed referendum, the lack of appeals process, the arrests, and the proposed changes under the FNGA, none of which served as a catalyst for change within Abegweit First Nation, there seemed to be few options available.
Bringing a court challenge would likely bring change. Despite having approved the Code, the Department of Aboriginal Affairs and Northern Development Canada (AANDC) will not involve themselves in the issue because the Band has jurisdiction. There seems to be an acknowledgement within the community that the Code is discriminatory and needs to be changed, but the Council
[2013] EXPLORING INEQUITIES 117 is looking to the Court for direction on the issue. Councillors have repeatedly told Mom that they are waiting for someone to bring forward a challenge.
We have explored this possibility by speaking to a lawyer about our options and the possible costs, which are prohibitive. One off reserve member expressed reluctance to join a court procedure due to the disruption it would cause the on- reserve Band members. This may seem counter-intuitive, but remember we are considering the impact on the families we love and have first-hand experience with unexpected change to your identity. That being said, we cannot envision a remedy, which would not result in a community-led referendum on proposed amendments. The courts have been reluctant to rewrite problematic codes, which is warranted because we would not want non-Mi’kmaq people to define such an important cultural component.
A human rights challenge is another possible mechanism for change. While there may be ample grounds for challenging the membership code, we would still 2013 CanLIIDocs 114 face the issue of who would be voting in a referendum to accept amendments.
The problem is that a referendum would have to be held to amend the Code but the Election Code restricts the voters to members residing on-reserve, while the Membership Code prohibits 6(2)’s from voting. These provisions, in addition to no new members being added to the list, have kept the electorate small. Unfortunately, the issue of residency, which had been grounds for amending the Indian Act provisions under the Charter, is not available for a human rights challenge.
This would be a costly process because we might still be dealing with a Charter challenge where the remedy would lead back to a referendum, a process that has already been unsuccessful. There is a frustrating lack of accountability by Abegweit First Nation to the Mi’kmaq nation and its citizens.
DECLAN
Declan is my (Cheryl’s) son and the only one of Mom’s three grandchildren not registered as an Indian. During the time when legal options and possible remedies were being explored, I married a non-Native man in 2008. The wedding was in September but it was not until January that the marriage was registered with AANDC. I was extremely reluctant to do so, but a membership case was on its way to the SCC so there was a glimmer of hope for my situation and that of any children we might have. I was in Winnipeg on a business trip and decided to finally go through with it. I expected to have to simply report that my husband was non-Native and was taken back by the level of personal information they required regarding my
118 UNB LJ RD UN-B [VOL/TOME 64] husband. The process was more intrusive than expected and it left me feeling ashamed for several days afterwards. I still do not like to think about that day, and it’s been four years.
Unfortunately, Grammy passed away while I was in my second year of law school and my husband did not have the opportunity to meet her. Her spirit lives on in her many grandchildren, great grandchildren, and great-great grandchildren. The extended family is huge and while we may all be from the same family, we are still not equal under the law.
During this time, the membership case McIvor35 was being decided and we had great hope that the court challenge we had considered might be already accomplished. The decision dealt with the distinctions that were made in status when Bill C-31 was enacted. Sharon McIvor had been reinstated under Bill-C31 just as Mom had. The case dealt with the inequity of the “second generation cut-off” because Sharon’s son was not able to pass status to his children as a s.6(2). 2013 CanLIIDocs 114 Unfortunately, the court narrowed the issues in McIvor and many of the problems with the Act were not addressed. For example, the court attempted to resolve the issue of the grandchildren who could not be registered as status Indians but would not address the issue of being denied Band membership, nor did it deal with the inherent right of Aboriginal nations to define their own membership.
Mom and I were both anxious about whether the Crown would decide to seek leave to appeal to the SCC. Many people were frustrated with how the government continually fights these types of cases. Many resources are wasted in a fight to prevent citizens from realizing their rightful place within their nations.
Parliament was given one year to amend legislation to address the discriminatory provisions. Bill C-3, the Gender Equity in Indian Registration Act,36 received Royal Assent on December 15, 2010. While it appeared that my sister and I would both be entitled to have our status changed from 6(2) to 6(1), this was not the case. Shannon already had children and was therefore entitled to apply for her children to be registered, which would then enable her status to be changed. I did not have children, so would not be entitled to have my status changed until I had a child. This distinction was an indication that suggested that the amendments were not going to adequately deal with the problem of having different types of status Indians.
35 McIvor v Canada (Registrar of Indian and Northern Affairs), 2009 BCCA 153 [McIvor]. 36 Gender Equity in Indian Registration Act, SC 2010, c 18.
[2013] EXPLORING INEQUITIES 119
I was finally able to have my status changed with the birth of Declan in 2011. I was entitled to become a s.6(1)(c.1) Indian, which was still not the same as the s.6(1)(a) that Judy is, but is as close as we have ever been to being equals.
After all these years of struggling to be recognized and find equality under the law, something happened when Declan was born that was completely unexpected. I found myself unwilling to register his birth with AANDC. The reason: I love my son and was hesitant to introduce him to a system that had brought so much degradation, pain, and discrimination to my mother and myself. Not being an Abegweit Band member has caused me to explore and develop a deep sense of self as a Mi’kmaq woman, which in my mind is clearly distinct from whether or not I am an Indian. It is this Mi’kmaq identity I wish to pass to my son.
While I struggled with this issue, Abegweit First Nation has held yet another referendum where members rejected amendments to the Code. The dialogue within the community has not centred on citizenship, Mi’kmaq law, the fear of the 2013 CanLIIDocs 114 dwindling membership nor the discrimination that is now widely recognized. It is not known whether my change in status would affect my ability to become a Band member. The Code could be interpreted so as to grant membership to the s.6(1) status Indians as per the 1985 legislation and not those defined as 6(1)’s under the recent amendments. We have not obtained an opinion on this issue but it may be worth exploring if the Abegweit First Nation continues to deny membership.
Many community members are concerned over the lack of housing and limited funds for programs. This fear is understandable due to the dependency on AANDC funding; increased numbers would appear to only be a liability. It is unfortunate that the Mi’kmaq values of inclusiveness have suffered so much damage. Some successful First Nations have embraced those who have lived off reserve and welcomed them back as valued contributors to their economy and community. This lesson is not one that has been embraced by Abegweit First Nation.
There may be a lack of legal recognition, but on a social level, Declan has been welcomed to the family and his birth, baptism and first birthday were celebrated with the extended family on PEI.
Mom says she understands my feelings with respect to Declan’s registration. Her reinstatement has not served to bring her equality because she lives off reserve and is not able to vote, she still suffers lateral violence, she has watched her daughters be denied Band membership, and when her grandchildren were born
120 UNB LJ RD UN-B [VOL/TOME 64] they were viewed as non-Native by the government. All of this has taken place without any dialogue surrounding Mi’kmaq cultural values or membership law.
Given all of this, why should Declan be registered? The argument for registration is twofold. First, there is the exertion of his Aboriginal and Treaty rights. While I may be hesitant to have him defined as an Indian under the Act and section 91(24) of the Constitution, there remains the issue of being a recognized Indian under section 35. Aboriginal people are defined as “Indian, Inuit and Metis” and I am concerned about Declan not being able to fully exercise his Aboriginal Rights if he is not registered. He has already accompanied me in the harvesting of sweet grass and other medicines and given this start to life, it is hoped he will continue to exercise his rights as he grows.
This fear may be unfounded; in Daniels37 the Federal Court recently addressed the issue of people who are “Indians” with respect to the Constitution, but not “Indians” as per the Indian Act. While the Crown has decided to appeal the 2013 CanLIIDocs 114 ruling, I am hopeful that this type of distinction bodes well for Declan if I decide not to register him. While this case winds its way up through the system, I also take comfort in recent case law in New Brunswick that found that non-Status Indians were recognized as Aboriginal Peoples with Aboriginal Rights38 by applying a modified Powley39 analysis. How this would play out while harvesting birch bark or sweet grass remains to be seen. This body of law is growing and I hope it triggers an effort to work on Mi’kmaq citizenship rather than adding more and more layers to the already complex definitions of “Indian” under the Indian Act.
This distinction between Indians may allow Declan to exercise his Aboriginal rights, but I wonder about his Treaty rights. The Bands are the recognized descendants of the signatories to the Mi’kmaq Treaties. If Declan is not registered with a Band, can he exercise his Mi’kmaq Treaty right to Fish? We come from a long line of fishers and it is worrisome that he may be denied this opportunity. There is also nothing to say that Declan would not suffer the same lateral violence I have, because he is not officially registered as a 6(2). Regardless, he will still not be an Abegweit Band member.
The second issue is that it would be difficult for me to not consider the generations of women who have fought for change and brought about the
37 Daniels v Canada, 2013 FC 6 [Daniels]. 38 Hopper v R, (2008), 331 NBR (2d) 177; R v Acker, (2004) 281 NBR (2d) 275; and R v Lavigne, (2007) 319 NBR (2d) 261. 39 R v Powley, 2003 SCC 43 [Powley].
[2013] EXPLORING INEQUITIES 121 advancements over the past few decades. Respect for these women runs deep and it is this, more than anything, which will probably lead to Declan’s registration.
CONCLUSION
This paper has sought to demonstrate the impact of the Indian Act on Abegweit First Nation through four generations our family. The Act has created a system of discrimination that has eroded traditional Mi’kmaq values and caused pain during times that should have been celebrated: marriage, coming of age, motherhood, and becoming a grandmother.
The distinction between the types of Indian status is a legal construct far removed from citizenship and self-government. While the Department of Indian Affairs (as it was then known) approved the Code, it has declined to become involved in the problematic membership issues of Abegweit First Nation. While it is neither desirable nor appropriate for the federal government to define Mi’kmaq 2013 CanLIIDocs 114 citizenship, it is also not appropriate to delegate the liability of the Code without also delegating the appropriate authority to address the discrimination and oversee a return to Mi’kmaq law. A Governance model for Abegweit First Nation which is not culturally relevant is destined to fail regardless of how “transparent or accountable” it is with respect to its funding.
We are not advocating that Abegweit First Nation address Mi’kmaq citizenship in isolation; this dialogue needs to take place within the Mi’kmaq Nation. Mi’kmaq citizenship needs to return to the inclusivity of Mi’kmaq traditional law with the necessary mechanisms to interpret and enforce this law.
We believe this paper has also demonstrated the inadequacies of the Canadian legal system to effectively deal with these complex national issues. If Abegweit First Nation is discriminating against Mi’kmaq citizens, there should be an adjudicative body that can enforce Mi’kmaq law in a culturally appropriate manner. Administering the current system is not self-government and until this system is dismantled, the discrimination will not end.
In addition, Mi’kmaq people need to move away from the “Us vs Them” dichotomy created by the Indian Act regime. Nations have the authority to enact immigration policies and Mi’kmaq people should seriously consider what they would have to gain by adding people of other nationalities. We are a nation and we need to govern like one.
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Wela’lin (thank you), for reading the story of our family’s journey under the Indian Act. We continue to hope that the distinctions we have lived with will be resolved for Declan and his cousins. 2013 CanLIIDocs 114
STILL COLONIZING AFTER ALL THESE YEARS
Mary Eberts*
This paper began life as two lectures, given in Saskatchewan in 2012 while I was holding the Ariel F. Sallows Chair in Human Rights at the University of Saskatchewan.1 I had been struck by parallels between the contemporary advocates of giving “Indians” fee simple interests in reserve land,2 and the “enfranchisement” schemes which originated before Confederation, in which male Indians who had attained a certain level of accomplishment would be given interests in reserve land that would eventually ripen into fee simple title and be severed from the reserve; these men would become eligible to vote, and shed their Indian status altogether.3 The similarity between the older enfranchisement plan and the contemporary scheme to divide reserves into fee simple parcels, suggested to me that the colonial 2013 CanLIIDocs 114 era was not actually over in Canada. I decided to pursue this idea further when it met with interest from my two Saskatchewan audiences.
These explorations of past and present colonizing within the context of the Indian Act and its predecessors broadened to include far more than just the enfranchisement scheme and the modern-day fee simple proposals. It was necessary to set the inquiry against the overall historical background. The !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! * Professor Eberts holds the Ariel Sallows Chair in Human Rights at the College of Law, University of Saskatchewan. 1 The first was a public lecture given at the University of Regina on February 29, 2012, under the auspices of the Department of Political Science. The second was the keynote address at the fall continuing legal education seminar of the lawyers of Legal Aid Saskatchewan, September 27, 2012, in Saskatoon. 2 I deliberately use the term “Indian” here because the proposals for fee simple interests in land relate to land on reserves under the Indian Act, RSC 1985, c I-5. For a blueprint of this proposal, see Tom Flanagan, Christopher Alcantara and Andre LeDressay, Beyond the Indian Act, McGill-Queens University Press, 2010. (“Flanagan et al.”) 3 First enacted in An Act to encourage the gradual Civilization of the Indian Tribes in this Province, and to amend the Laws respecting Indians, 20 Vict c 26 (1857). This enfranchisement scheme, in various forms, remained in place until 1985. Enfranchisement was dealt with in sections 109 to 112 of the Indian Act, RSC 1970, c I-6. Those sections were all repealed by SC 1985 (1st Supp), c 32, s 20 (“Bill C- 31”). In 1960, registered Indians living on reserve in Canada became eligible to vote in federal elections by the Canada Elections Act, SC 1960, c 39, effectively removing the promise of the franchise as an inducement to individual assimilation through “enfranchisement” schemes. A short-lived variation on the larger enfranchisement scheme was The Electoral Franchise Act of Canada, SC 1885, c 40, repealed by The Franchise Act, 1868, SC 1898, c 14. Under that plan, which applied east of Manitoba, a male Indian on reserve could vote if he had possession of a separate and distinct parcel of land on the reserve, to which he had made improvements to the value of at least $150. Again, the link between citizenship rights for “Indians” and their assumption of individualized responsibility for plots of reserve land was evident. 124 UNB LJ RD UN-B [VOL/TOME 64] ! government of Canada pursued a staggeringly ambitious program of separating Indigenous peoples from their traditional territories, and acquiring those lands for the Crown. These lands were then either alienated to third parties for settlement, resource development, nation-building, or other government purposes, or retained as “Crown lands”. The land acquisitions were accomplished in part through a program of Treaty-making with Indigenous peoples, particularly in Ontario and the west and north-west, but they also involved de facto acquisition or occupation, without going through the formality of making Treaties. Small tracts of land were “reserved” in various ways for Indigenous peoples4; whether these lands were reserved under Treaty5 or not, all of the reserves came to be administered under the federal Indian Act. The Indian Act, in effect, was the repository for the strategies of colonization, and carried them forward to the present day, where their vitality remains unabated. To be clear, I am not contending that we are now living in an era of neocolonialism, or some other post-colonial state, with colonizing machinery that resembles that of the past. Rather, I contend that the process of colonization which began hundreds of years ago is still going on, using the same strategies and many of the same tools developed in past centuries.
2013 CanLIIDocs 114
I begin this paper with a description of colonization, and in particular, of “internal colonization” which is central to the relations between what is now Canada and the Indigenous peoples who held this land before the arrival of incomers from Europe. I then sketch Canada’s historic and continuing efforts to secure possession and control of Indigenous land, whether by way of the historical methods or contemporary processes modelled on them. I link the processes of land acquisition to the Indian Act, and apply the understanding of internal colonization to that statute. In that context, I look at not only in its provisions about reserve lands (affected by both the enfranchisement scheme of yore and modern day proposals for fee simple interests in reserve land), but also the definition of who is an “Indian” under the Act, which has served the colonizer’s goal of reducing the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 4 The Royal Commission on Aboriginal Peoples, Looking Forward, Looking Back, Vol 1 (Printed from For Seven Generations, published by Libraxus Inc., 1991) (“Commission, Volume 1, part 1”) describes some of the ways reserves were created other than by Treaty. The French Crown would grant land for Indian reserves to missionary orders on the theory that the Crown had the right and title to the lands in question (at 109); the first reserve in New France was established in 1637 (at 107). Royal Commission reported that the creation of reserves in the Atlantic region was “as a result of Indians’ petitions or their sorry circumstances, rather than the policy of a central authority” (at 109). A few reserves were set aside in New Brunswick by licences of occupation to individual Indians on behalf of themselves and their families or bands, which licences were then confirmed by order-in-council (at 109); In Nova Scotia lands were set aside by order-in-council to be held in trust for individuals (at 109); in Prince Edward Island one reserve was established by a private benefactor and later private land was purchased with government funds in order to create other reserves. (at 109) In pre-Confederation Ontario reserves were created by order-in-council or established by trust agreements with missionary societies (at 118-120). 5 Reserves created by Treaty before Confederation include those established by the Robinson Huron and Superior Treaties (1850) and the Manitoulin Island Treaty (1862) in Ontario (Commission, Volume 1, part 1, at 118-120) and by 14 land surrender treaties between the governor of the Vancouver Island colony, William Douglas, and the Coast Salish and Lekwammen Nations between 1850 and 1854 (Commission, Volume 1, part 1, at 119 and James (Sa’k’ej) Youngblood Henderson, Treaty Rights in the Constitution of Canada (Toronto: Thomson Carswell, 2007) at 255). [2013] STILL COLONIZING 125 ! Indian population. I argue that Canada is still actively practising internal colonization, trying to complete the job which was begun over a century and a half ago. Despite the occasional contemporary public disavowal of its old practices6, Canada is still colonizing after all these years.7
COLONIZATION
The Royal Commission on Aboriginal Peoples (RCAP) comments on the variety of methods used by European powers to expand into the rest of the world.8 The Commission includes Canada among the four modern-day countries identified by “settler colonialism”.9 These four countries, says the RCAP Report, were “targeted” for settlement, as “safety valves for the rapidly growing populations of European home countries”.10
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 6 See, for example, Aboriginal Affairs and Northern Development Canada, “Statement of Apology: Prime Minister Harper offers full apology on behalf of Canadians for the Indian Residential Schools 2013 CanLIIDocs 114 System” (11 June 2008, Ottawa, Ontario) online:
The transplanting of Europeans to what became Canada was, at one level, a manifestation of “external colonization”: that “salt-water” expansion by which Europeans established themselves in distant places.11 Europeans created the governmental framework of Canada as an “external” colony, first of France and then of Great Britain, a colony forming part of the extended empire of an imperial European state.12 Paul Kael emphasizes that the relations between imperial state and colony were Inherently unequal, with the imperial state controlling the sovereignty of the colony.13 One celebrated narrative of the Canadian state features its evolution from colony to nation, to use Arthur R.M. Lower’s evocative phrase14. In that story, patriation of the Canadian constitution from the Parliament of the United Kingdom at Westminster in 198215 marks Canada’s final achievement of full sovereignty as a nation.
Lower’s colony to nation narrative of Canada illustrates one of James Tully’s crucial points about external colonies. Where the colony and the imperial power are located on different territories, “the colonies can free themselves and 2013 CanLIIDocs 114 form geographically independent societies with exclusive jurisdiction over their !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! observation is equally true of the impact of the fur trade and other mercantile activities that penetrated from the east into central and ultimately western Canada, or from the Pacific coast inland. 11 Paul Kael uses Catherine Irons’s terms: external colonization, external colonization by neighbouring states, and internal colonization, stating that “by external colonization is meant so-called ‘salt-water’ colonization in which aliens colonized distant places.” Paul Kael, European Conquest and the Rights of Indigenous Peoples: The Moral Backwardness of International Society (New York: Cambridge University Press, 2003) at 43 12 The Royal Commission on Aboriginal Peoples pointed out that there were basic differences between the constitutions of the settler colonies created by European powers, which stemmed largely, if not entirely, from explicit grants of power, in the form of royal charters, proclamations, commissions, instructions or Acts of Parliament, supplemented by basic unwritten principles, and the constitutions of Aboriginal nations which “sprang from their own internal arrangements and philosophies and were nourished by their inherent powers as self-governing nations….” Commission, Volume 1, at 91, and see the discussion below about the governments established in new British colonies in the Americas, by means of the Royal Proclamation of 1763. 13 Kael, op. cit. supra note 11, at 37-38 and 41, relying on the definition of imperialism fashioned by Benjamin Cohen and of empire created by Michael Doyle. 14 Arthur R.M. Lower, Colony to Nation: A History of Canada, 1st ed (Toronto, Longmans, Greene & Company, 1946); 5th ed (Toronto: McClelland and Stewart, 1977). Francis writes that “Lower’s desire was to free Canada from its restricting position in the Empire-Commonwealth and thus allow it to reach full maturity as a nation-state – to evolve from colony to nation”: R. Douglas Francis, “The Golden Age of Canadian National Historiography” (1977) 6:2 Acadiensis 106 at 106-107 and places him in a group of Canadian historians including Frank Underhill and Harold Innis which wanted to “carve out a Canadian ‘civilization’ in the wilderness”, Ibid at 116. The “civilization” of Canada through historiography presents a striking parallel to the “civilization” that was sought for Indigenous peoples through the instrumentality if the Indian Act and related government policy. The model of civilization in both cases was that of white, colonizing Europe.
15 Canada Act, 1982 (UK) (1982, c 11) to which was appended, as Schedule B, the Constitution Act, 1982. [2013] STILL COLONIZING 127 ! own territories….”16 This is not possible with internal colonization. Tully observes that the “ground of the relationship” between the colonizer and the colonized in an internal colony is “the appropriation of the land, resources and jurisdiction of the indigenous peoples, not only for the sake of resettlement and exploitation (which is also true in external colonization) but for the territorial foundation of the dominant society itself.”17 There is, in this model, no geographical separation between dominant and subordinated, imperial and colonized, to provide a land-based platform from which the colonized can assert or reassert sovereignty.
Interwoven with the narrative of Canada as an evolving, and ultimately fully sovereign, external colony of Europe, then, is the story of internal colonization of the Indigenous peoples on the land mass of what is now Canada. This internal colonization was effected at first by European powers; at Confederation, the Canadian state assumed the dominant role of internal colonizer18. So-called “settler colonies”, like Canada, are an instance of internal colonialism; such colonies were not primarily established to “extract surplus value from Indigenous labour”, but were premised on displacing Indigenous peoples from 2013 CanLIIDocs 114 the land (or replacing them on it).19
The RCAP Report describes the complex displacement of Indigenous peoples integral to the process of internal colonization. Indigenous peoples were physically displaced from their traditional territories; they were socially and culturally displaced, as missionary activities and European schools undermined the ability to transmit traditional knowledge and values from one generation to the next and substituted the values of Victorian Europe; and they were politically displaced as colonial laws forced them to abandon or at least disguise traditional governing structures and processes in favour of colonial municipal institutions.20 RCAP notes
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 16 James Tully, “The Struggles of Indigenous Peoples for and of Freedom,” in Duncan Ivison, Paul Patton & Will Saunders, eds, Political Theory and the Rights of Indigenous Peoples (New York: Cambridge University Press, 2009) 36-59 at 39. 17 Tully, supra note 16, at 39 18 Constitution Act, 1867, 30 & 31 Vict, c 3, 91(24). See Olive Patricia Dickason & David T. McNab, Canada’s First Nations: A History of Founding Peoples from Earliest Times, 4th ed, (Don Mills, Ont: Oxford University Press, 2009) at 216, at which the authors refer in footnote 9 to John E. Hodgetts, Pioneer Public Service: An Administrative History of the United Canadas, 1842-1867 (Toronto: University of Toronto Press, 1955) at 223 for his description of the transfer of Indian administration from London to Canada. 19 Patrick Wolfe, Settler Colonialism and the Transformation of Anthropology: the Politics and Poetics of an Ethnographic Event (London: Cassell, 1999) at 1. Wolfe illustrates his point with reference to the clearing of Native North Americans from their land, and the importation of African slaves to provide labour on that expropriated land: see 1-2. See also Tully, op. cit. supra note 16, at 39 20 Commission, Volume 1, part 1 at 105 ! ! 128 UNB LJ RD UN-B [VOL/TOME 64] ! that the negotiation of Treaties continued side by side with “the legislated dispossession through the Indian Act”21. It states, “From the Crown perspective it seemed clear that these treaties were little more than real estate transactions designed to free Aboriginal lands for settlement and resource development.”22
Tully describes one of the fundamental contradictions of internal colonization as “the dominant society coexists on and exercises exclusive jurisdiction over the territories and jurisdictions that indigenous peoples refuse to surrender.”23 He asserts that since the beginning, “the long-term aim of the administrators of the system has been to resolve the contradictions by the complete disappearance of the indigenous problem: that is, the disappearance of the indigenous peoples as free peoples with the rights to their territories and governments.”24 Tully identifies two strategies for bringing that about. One is that the Indigenous peoples could become extinct in fact (by dying out, intermarriage, urbanization) or by extinguishing their will to resist assimilation. The second “and more common” strategy, in Tully’s view, is to attempt to extinguish the rights of 25 Indigenous peoples to their territories and self-government.” Both of these 2013 CanLIIDocs 114 strategies have been used historically and are used today.
LANDS SURRENDERED AND LAND RESERVED: THE FOUNDATION OF INTERNAL COLONIZATION
The Treaty of Paris, 1763, marked the ascendancy of Great Britain over France in the Americas. Following the signing of the Treaty, King George III issued in 1763 a Royal Proclamation establishing a framework for the governance of Britain’s new possessions. The Royal Proclamation created four “distinct and separate Governments”, including that of Quebec, the former French colony. The Governors of these new colonies were directed to summon General Assemblies, which, along with the Governors and their Executive Councils, would make “Laws, Statutes, and Ordinances” for their “Public Peace, Welfare, and good Government” “as near as may be agreeable to the Laws of England.” The Governors were also given the power to make grants of land to persons in those colonies or coming from other British colonies “upon such Terms…as have been appointed and settled in our other Colonies, and under such other Conditions, as shall appear to us to be necessary and expedient for the Advantage of the Grantees, and the Improvement
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 21 Commission, Volume 1, part 1 at 105-106 22 Commission, Volume 1, part 1, at 106. And see also 117, 120. These comments are directed at both the Ontario Treaties and the numbered Treaties signed in the former Northwest Territory, west and north of the Manitoba/Ontario border. 23 Tully, op. cit. supra note 16, at 39 24 Tully, op. cit. supra note 16, at 40 (emphasis in original) 25 Tully, op. cit. supra note 16, at 40 [2013] STILL COLONIZING 129 ! and settlement of our said Colonies.”26 This creation of public governments for the colonies, reflecting the Westminster model and exercising limited powers conferred by the Monarch, was not the approach which the Royal Proclamation took to the Crown’s Indigenous allies.
The Royal Proclamation of 1763 expressed the Monarch’s view that:
…it is just and reasonable, and essential to our Interest, and the security of our Colonies, that the several nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds…27
The Proclamation also declared the King’s “Royal Will and Pleasure”:
2013 CanLIIDocs 114 To reserve under our Sovereignty, Protection, and Dominion, for the use of the said Indians, all the Lands and Territories not included within the Limits of Our said Three new Governments, or within the Limits of the Territory granted to the Hudson’s Bay Company, as also all the Lands and Territories lying to the Westward of the Sources Of the Rivers which fall into the Sea from the West and North West as aforesaid…28
The Proclamation forbade “all our loving Subjects from making any Purchases or Settlements whatever, or taking Possession of any of the Lands above reserved, without our especial leave and Licence for that Purpose first obtained.”29 Moreover, the Proclamation also provided that even in the parts of the colonies where the King had thought it appropriate to allow settlement, no private person should purchase land directly from the Indians in any Lands reserved to the Indians. Rather, declared the Proclamation:
…if at any Time any of the Said Indians should be inclined to dispose of the said Lands, the same shall be Purchased only for Us, in our Name, at
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 26 The Royal Proclamation, October 7, 1763, as reproduced in Brian A. Crane et al., First Nations Governance Law, 2d ed, (LexisNexis, 2008) at Appendix 1, page 327. The quoted passages are found at 327-330. 27 Royal Proclamation, op. cit. supra note 26, at 330 28 Ibid. 29 Royal Proclamation, op. cit. supra note 26, at 331 ! ! 130 UNB LJ RD UN-B [VOL/TOME 64] ! some public Meeting or Assembly of the said Indians, to be held for that Purpose by the Governor or Commander in Chief of our Colony…30
The huge land mass affected by the Proclamation was occupied by a diverse population of Indigenous nations, with their own languages, cultures, beliefs, and practices. In the Proclamation, the single term “Indian” is employed to encompass all of them. The uses to which the various parts of these traditional lands were put varied with the seasons, and the economic, social, and spiritual practices of the peoples inhabiting them. Yet, the Proclamation refers solely to “Hunting Grounds”. The reduction of a complex web of peoples and societies to a unidimensional “Indian” population, that was to characterize the Indian Act, had already begun with the Proclamation.
The Proclamation contemplates only two kinds of transactions in land between the Crown and Indigenous peoples. On the one hand is the Indigenous act of selling or ceding land to the Crown. On the other is the Crown’s “reservation” 2013 CanLIIDocs 114 of lands to the Indigenous peoples. The Proclamation leaves it open for Indigenous peoples to remain in possession of their lands, presumably to govern those lands as they had always done, at least as a matter of constitutional theory. It is that constitutional space which is one of the primary assets of the Proclamation as a rights-conferring or protecting instrument. However, the realpolitik of the situation was that pressure from settlers and developers to acquire those vast lands was intense, and the Indigenous peoples were comparatively powerless to resist it. It was, in these circumstances, not unwise to cast the Crown into the role of protector of Indigenous interests.
Yet nothing in the Proclamation laid out standards of ethical behaviour for the Crown to follow in its role of protector. Such standards were clearly necessary, because the Crown itself (later the government of Canada) was one of the primary driving forces behind the opening of Canada for settlement and resource development, a role which could, and did, conflict with its role as protector of Indigenous interests. By way of the Proclamation the Crown gave itself a monopoly on acquisition of lands from Indigenous peoples, but the Proclamation did not enforce, or even recommend, Crown moderation in taking over Indigenous lands, or require that fair market value be paid for these lands. These shortcomings in the Proclamation, and the absence of other standards of behaviour for Crown exercise of the monopoly it enjoyed, opened the way for predatory behaviour by the Crown that would be cemented into the administrative and legislative arrangements of the Canadian state by way of the Indian Act. 31 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 30 Ibid. 31 In Wewaykum Indian Band v Canada, [2002] 4 SCR 245, Binnie J. for the Court observes at para 80 that “the degree of economic, social and proprietary control and discretion asserted by the Crown also left aboriginal populations vulnerable to the risk of government misconduct or ineptitude.” I mention the absence of standards to govern Crown behaviour quite deliberately here, fully aware of the later [2013] STILL COLONIZING 131 !
Following the issuance of the Royal Proclamation, the use of Treaty as a mechanism of land cession by First Nations was first practised extensively in what is now Ontario. In what J.R. Miller calls the “first stage of Upper Canadian Treaty- making”32 between the Royal Proclamation of 1763 and the beginning of the War of 1812, Great Britain acquired all the land along the Great Lakes and other boundary waters in southern Ontario.33 In the second stage of treaty-making, between 1815 and 1827, seven treaties with the Crown opened up for settlement and other purposes almost all of the remaining arable land in southern Ontario34 By 1836, the Crown had acquired access to all of the arable land in Upper Canada south of the Canadian Shield.35 Treaty-making resumed in 1850, because of the desire to open up the Shield to mining.36 Under the direction of Treaty Commissioner William B. Robinson, the Robinson Huron and Superior Treaties were concluded in 1850, acquiring very large tracts of territory in west and northern parts of what is now Ontario.37 The Manitoulin Island Treaty of 1862, granting the western part of that Island to the Crown, was the last pre- 38 Confederation Treaty in Upper Canada. As the sale of their lands progressed, 2013 CanLIIDocs 114 “First Nations were confined to smaller and smaller tracts, typically in areas that were least suited to European settlement, agriculture or resource extraction.”39
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! development in Canadian law of finding such standards in “the honour of the Crown.” Historically, and in contemporary Canada, the honour of the Crown has not actually been a reliable inspiration of moral behaviour from the Crown or the Canadian government, although it has been used to support a theoretical obligation for such behaviour. 32 JR Miller, Compact, Contract, Covenant: Aboriginal Treaty-Making in Canada (Toronto: University of Toronto Press, 2009), at 91. 33 Op cit supra, note 32, at 90. There were thirteen treaties in this period, the making of which is described in Miller, op cit supra, note 32 at 79-90 34 JR Miller, op cit supra note 32, at 93-95 35 JR Miller, op cit supra note 32, at 109. The largest acquisition was from the Saugeen, who lost much of their 1.5 million acres on first, the southern part, and then the northern part, of the Bruce Peninsula in Ontario, in a treaty of 1836, and later dispossession in 1854. Miller, at 107; Commission, Volume 1, at 118-120, 196-197 36 JR Miller, op cit supra note 32, at 110 37 JR Miller, op cit supra note 32, at 114, 117 38 JR Miller, op cit supra, note 32, at 118, 121. Another “round” of Treaty-making in Ontario occurred in 1923, after it was realized that title to lands around Georgina Island, Rama, Scugog, Curve Lake and Alderville had never been extinguished, and the government obtained land surrenders through the two Williams Treaties. JR Miller, op. cit. supra, note 41, at 223-225 39 Commission, Volume 1, part 1, at 118 ! ! 132 UNB LJ RD UN-B [VOL/TOME 64] ! At Confederation, legislative authority over “Indians and Lands reserved for Indians” was assigned to the government of Canada by section 91 of the Constitution Act, 1867.40 The first post-Confederation statute of the government of Canada to deal with Indian lands, passed in 1868, provided that “All lands reserved for Indians or for any tribe, band or body of Indians, or held in trust for their benefit, shall be deemed to be reserved and held for the same purposes as before the passage of this Act, but subject to its provisions.”41 The Act also provided that “no such lands shall be sold, alienated or leased until they have been released or surrendered to the Crown for the purposes of this Act.”42 Just as the Royal Proclamation of 1763 had set out the conditions for a valid surrender or cession of Indian lands to the Crown43, the 1868 Act also established conditions for a valid surrender, and stipulated that a surrender could only be made to the Crown.44 The stage was already being set, in the young nation, for the state’s acquisition of what small pieces of land remained to Indigenous peoples (in the form of reserves) after the pre-Confederation round of settlement, land appropriation, and cession by Treaty. Land surrender remains a feature of the Indian Act down to the present day.45
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The first comprehensive statute dealing with Indian matters was passed by Canada in 1876.46 The Indian Act, 1876 defined “reserve” as any tract or tracts of land set apart by treaty or otherwise for the use or benefit of, or granted to, a particular band of Indians, of which the legal title is in the Crown, but which is unsurrendered.47 RCAP points out that this legislation was passed in “the midst of the treaty-making process going on in western Canada”48. Indeed, Treaties 1 through 7 were concluded between 1871 and 187749; these western numbered Treaties followed closely upon the acquisition of the Hudson’s Bay Company territory in Rupert’s Land and the North-Western Territory by Great Britain and its
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 40 The Constitution Act, 1867, 30 & 31 Victoria, c.3 (UK), s 91 (24). 41 An Act providing for the organization of the Department of the Secretary of State of Canada, and for the management of Indian and Ordnance Lands, SC 1868, c 42, s 6. 42 Ibid. 43 The Proclamation provided that the lands were to be purchased “only for Us, in our Name, at some public Meeting or Assembly of the said Indians, to be held for that Purpose by the Governor or Commander in Chief of our Colony….”. Crane et al. op cit supra note 26 at 331. 44 SC 1868, c 42, ss 8-10. 45 See “Surrenders and Designations”¸ ss 37-4, ss 37-41, and “Management of Reserves and Surrendered and Designated Lands,” ss 53-60 in Indian Act, RSC 1985, c I-5. 46 An Act to amend and consolidate the laws respecting Indians, 39 Vict. 1876, c 18 (“ Indian Act, 1876”). 47 Indian Act, 1876, s 6. 48 Commission, Volume 1, part 2, unit 8, at 66. 49 JR Miller, op cit supra note 32, at 166. [2013] STILL COLONIZING 133 ! transfer to Canada.50 Four more numbered Treaties, covering more northerly lands, were made between 1899 and 192151. The numbered Treaties contained formulae for determining how much land would be allocated to the peoples signing or adhering to the Treaty, and thus the size of the “reserves” they would inhabit. Although the definition of “reserve” in the Indian Act, 1876 includes tracts of land set apart by Treaty, RCAP points out that the Act is otherwise silent on the question of the Treaties already made, and those in process when the Act was passed. RCAP comments, “It is almost as if Canada deliberately allowed itself to forget the principal constitutional mechanism by which the nation status of Indian communities is recognized in domestic law.”52 The Manitoba Justice Implementation Commission argues that while Indigenous peoples were negotiating the numbered Treaties under the expectation that they would continue as before to govern their own affairs, the Crown knew that it would be imposing a legislative regime to suppress traditional authority, and did not communicate that knowledge across the table. 53
There is no specific suite of provisions in the Indian Act dealing with land 2013 CanLIIDocs 114 affected by treaties. There was no administrative structure created in government to ensure that the Treaties were implemented54 and Treaties were not put into their own specific implementing legislation55. Absent any specific provisions to implement the Treaties or administer lands affected by Treaty, the Indian Act became the governing statute, applying in the same fashion to land acquired with or without Treaty. Under the Indian Act regime, the government of Canada exercised virtually total control over Indian lands, including power to lease or sell them56. In fact, while the Treaty-making process was still going on, between 1896 and 1911, there were over 100 surrenders of Treaty reserve land under the Indian Act, with 21% of the land which had been so recently reserved by Treaty to the Prairie First !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 50 The acquisition by Britain was by means of the Rupert’s Land Act, 1868 (UK), 31-32 Vict, c 105, and these lands were admitted to Canada by The Order of Her Majesty in Council Admitting Rupert’s Land and North-Western Territory into the Union, 1870 (UK), RSC 1985, Appendix II, No 9, in accordance with s 146 of the Constitution Act, 1867. See JR Miller, op cit supra, note 32, at 430 and fn 11. 51 Treaty 8 (1899), Treaty 9 (1905), Treaty 10 (1906) and Treaty 11 (1921), JR Miller, op cit supra note 32, at 187 52 Commission, Volume 1, part 2, unit 8, at 67 53 Manitoba Aboriginal Justice Implementation Commission, The Justice System and Aboriginal People, chapter 5, Aboriginal & Treaty Rights, at page 30, online:
The Indian Act, 1876 made clear that reserve lands were held in common. It defined a “band” as any tribe, band or body of Indians who own or are interested in a reserve, or in Indian lands in common, of which the legal title is vested in the Crown.60 The recognition that reserve lands are held in common continues to the present day61, and is one of the protections established in the Royal Proclamation of 1763 which endures. However, in the 1876 Act, the Superintendent General of Indian Affairs was given power to order that a reserve be surveyed and divided into lots, and to require that band members obtain “location tickets” for individual plots 62 of land. This creation of individual possessory interests in reserve land was 2013 CanLIIDocs 114 carried over into successive versions of the Indian Act, with the evidence of such interests now being termed certificates of possession.63
By conflating Treaty and non-Treaty situations, and administering all “Indian” matters through the Indian Act, Canada subjected to the assimilative forces of the Indian Act all of those Nations who had signed or adhered to Treaty expecting a relationship of more equality or mutuality with the Crown. Government hegemony over Indigenous peoples by way of the Indian Act was very different from the purportedly benevolent and protective, but respectful, stance of the Monarch in the Royal Proclamation of 1763. The Indian Act reduced all of the Indigenous nations who had once arguably been the Treaty partners of the Crown (and even before that, its military allies), into small polities structured and managed according to a single legislative template that left them with almost no power. Moreover, Nations who had never ceded land in the manner required by the Royal !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 57 Peggy Martin-McGuire, First Nation Land Surrenders in the Prairies, 1896-1911 (Prepared for the Indian Claims Commission, Ottawa, September 1998) xiii-xvi. 58 Martin-McGuire, op cit supra note 57, at xviii. 59 Martin-McGuire, op cit supra note 57, at xiii. 60 Indian Act, 1876, s 3.1. Emphasis supplied. 61 The definition of Band in section 2(1)(a) of the Indian Act, RSC 1985, c I-5, is that it is a body of Indians for whose use and benefit in common lands, the legal title to which is vested in Her Majesty, have been set apart. 62 Commission, Volume 1, part 1 at 68. 63 Indian Act RSC 1985, c I-5, ss 20-27. The recording of individual possessory interests in reserve land is done in a central registry in Ottawa, but this registry does not establish priorities or other protections like those found in a modern Torrens land title system, or even a land registry system. [2013] STILL COLONIZING 135 ! Proclamation of 1763 were similarly swept into the constraining structure of the Indian Act, in spite of claims to continuing sovereignty over their lands. 64
65 “OLD FAMILIAR WAYS” STILL A SUPPORT AND COMFORT
Published just after the centennial of Confederation, in 1969, Canada’s White Paper on Indian policy66provides a snapshot of government thinking not only at that time, but also for the preceding century. The White Paper embraced the goal of promoting “true equality”67 for Indian people, proposing that the Indian Act should be repealed and legislation passed to permit Indians to control Indian lands (ie reserves) and acquire title to them.68 Responsibility for Indians would devolve upon the provinces and the federal Department of Indian Affairs would be wound up.69 The White Paper spoke of Canada’s “ultimate aim of removing the specific references to Indians from the constitution” so as to end the legal distinctions between Indians and other Canadians.70 This is the “civilization” and assimilation of the 1857 Act by another name.
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The White Paper acknowledged that “Many of the Indian people…believe that lands have been taken from them in an improper manner, or without adequate compensation, that their funds have been improperly administered, that their treaty rights have been breached.”71 However, Canada asserted that “the terms and effects of the treaties between the Indian people and the Government are widely misunderstood.”72 It continued, “A plain reading of the words used in the treaties !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 64 The Nisga’a never ceased to assert their claim to their traditional lands in northwestern British Columbia. In a Petition to the King in 1913, the Nisga’a Nation asserted that “No part of the said territory has been ceded to or purchased by the Crown.” Hamar Foster, Heather Raven & Jeremy Webber, Let Right Be Done: Aboriginal Title, the Calder Case, and the Future of Indigenous Peoples (Vancouver: UBC Press, 2007), at 243: Appendix B (The Nisga’a Petition of 1913), Article 5. Yet it was necessary to stipulate in the Nisga’a Final Agreement that lands owned by the Nisga’a will no longer be reserve lands under the Indian Act: Nisga’a Final Agreement in Brief, Appendix II to Tom Molloy, The World is Our Witness: The Historic Journey of the Nisga’a into Canada (Calgary: Fifth House Ltd, 2000) at 220. 65 In Paul Simon’s song, “Still crazy after all these years”, from which the title to this paper has been adapted, he says “I seem to lean on old familiar ways”. © 1975 words and music by Paul Simon. 66 Canada, Department of Indian Affairs and Northern Development, Statement of the Government of Canada on Indian Policy (Ottawa: Queen’s Printer, 1969). (“White Paper”) 67 White Paper, at 6. 68 White Paper, at 6, 11-12. 69 White Paper, at 6. 70 White Paper, at 8. 71 White Paper, at 11. 72 White Paper, at 11. ! ! 136 UNB LJ RD UN-B [VOL/TOME 64] ! reveals the limited and minimal promises that were included in them.”73 The government argued that the significance of the treaties “has always been limited and will continue to decline” and predicted that “Once Indian lands are securely within Indian control, the anomaly of treaties between groups within society and the government of that society will require that these treaties be reviewed to see how they can be equitably ended.”74
The White Paper did acknowledge the need to explore ways of dealing with claims arising from the performance of the terms of treaties and other agreements, and the administration of monies and lands under legislation relating to Indians. In addition to these “specific claims”, Canada also recognized that some of the land which had been promised under certain of the numbered Treaties had still not been allocated.75 With respect to “aboriginal claims to land”, however, the White Paper states that “these are so general and undefined that it is not realistic to think of them as specific claims capable of remedy except through a policy and program that will end injustice to Indians as members of the Canadian 76 community.” 2013 CanLIIDocs 114
The White Paper was widely criticized77 and withdrawn in 1970. Shortly after that, in 1973, the Supreme Court of Canada decision in Calder78made the government reassess its rejection of Indian rights to land.79 In Calder, the Court recognized that the Indigenous interest in their ancestral lands constituted a legal interest that predated European settlement.80 After Calder, the government of Canada acknowledged not just the specific claims arising from previous administration of treaty or statute, and treaty land entitlement claims under the numbered treaties 81 but also what came to be known as comprehensive claims,82 involving claims to land and, often, governance rights. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 73 White Paper, at 11. 74 Both quoted passages are from White Paper, at 11. 75 White Paper at 11. 76 White Paper at 11. 77 Two of the strongest critiques of the White Paper were “A Presentation by the Indian Chiefs of Alberta to the Right Honourable P.E. Trudeau, Prime Minister and the Government of Canada”, Citizens Plus, June 1970, (“the Red Paper”), and Union of B.C. Indian Chiefs, A Declaration of Indian Rights: The B.C. Indian Position Paper, Vancouver, BC, November 17, 1970, (“the Brown Paper”). 78 Calder v Attorney General of British Columbia, [1973] SCR 113. 79 This view is taken from R v Sparrow, [1990] 1 SCR 1075 at para 50. 80 Binnie J. in Mitchell v Canada (MNR), [2001] 1 SCR 911 at para 67 and Wewaykum Indian Band v Canada, [2002] 4 SCR 245 at para 75. 81 A treaty land entitlement claim arises when a First Nation asserts that the government did not provide all of the reserve land promised in a Treaty. Once the government is satisfied that the First Nation has a valid claim, a settlement is negotiated and set out in a treaty land entitlement agreement. Most of the TLE claims relate to land in Manitoba and Saskatchewan. Auditor-General of Canada, 2009 March [2013] STILL COLONIZING 137 !
The publication of the White Paper in 1969 effectively derailed the work then underway to establish a body to deal in a systematic way with specific claims arising from government administration under Treaty or statute83, which had been recommended in July 1947 by the Special Joint Committee of the Senate and House of Commons. 84 It was not until 2008 that Canada put in place an independent claims tribunal that could make binding adjudications on specific claims.85 Until the 1960s, these claims were handled through the regular administrative processes of the government, and occasionally by reference to an outside third party.86 Daniel concludes that “while it was sometimes recognized by government that administrative decisions on claims were not always adequate politically, there was not, apparently, any recognition that such decisions were frequently neither just nor efficient….”.87 He comments that administrative solutions “assume that the Crown is capable of determining where its responsibilities lie…”88 From 1969 to 2008, the government appointed Claims Commissioners under the Public Inquiries Act, who could investigate and make 89 recommendations but not make any binding determination. 2013 CanLIIDocs 114
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! Status Report, ch 4, Treaty Land Obligations online:
The ad hoc approach to dealing with specific claims resulted in “both chronic inefficiency and instances of continuing glaring injustice.90 Government had been aware since the end of World War II that there was a backlog of claims91. In 2007, it was reported that there were more than 1,300 claims filed against Canada, and Professor Michael Coyle of the University of Western Ontario made a somewhat conservative estimate that at the current rate, it would take 50 years for the federal government to resolve the claims already filed.92 The desperately slow pace of addressing some of these claims is evident. The Caldwell First Nation, whose traditional lands included Point Pelee on the Lake Erie shore in Ontario, pressed claims from the 1830s, seeking benefits provided for under a 1790 Treaty, and land at Point Pelee promised to them for their military assistance to the British in the War of 1812. It was not until 2010 that they received a settlement.93 Claims were submitted in 1986, and settled in 2010, by the Fort William First Nation and the Mississaugas of the New Credit.94 The process for each claim took 24 years. More striking is the fact that the Fort William claim arose from faulty land surveys conducted in 1853 to implement the 1850 Robinson Superior Treaty, and the 2013 CanLIIDocs 114 Mississauga Claim arose from the exploitative terms of an 1805 surrender to the British of 251,000 acres of land in what is now Toronto.95
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! create an independent permanent body to expedite the resolution of specific claims. Chief Commissioner’s Message, Indian Claims Commission, Treasury Board Secretariat, 2008 online:
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For over two centuries, the Mohawks of Kanesetake repeatedly laid claim to lands holding deep historical and sacred significance to them, which had been granted by King Louis XV of France to the seminary of St. Sulpice. Their claims were rebuffed in numerous forums from 1781 onwards. In contemporary times, Canada failed to respond to their request in 1961 to make the land a reserve, rejected a comprehensive claim to the land filed in 1975, and in 1986 rejected a specific claim which had been filed in 1977. In 1990, the town of Oka Quebec proposed to expand its golf course into sites sacred to the Mohawks, and a standoff of several months ensued. One Quebec Provincial Police Officer was killed, and the Canadian Army was mobilized to break up the blockade. In the aftermath of this crisis, in 1991, Canada established the Royal Commission on Aboriginal Peoples, which rendered its report in 1996. To date, more than twenty years after its establishment, the recommendations of the Royal Commission remain in limbo. 97
In September 1995, unarmed peaceful protesters from Stoney Point First Nation occupied Ipperwash Provincial Park in Ontario; protester Dudley George, shot by the Ontario Provincial Police during that occupation, was the first Indigenous person to be killed in a land rights dispute since the nineteenth
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 96 Rene Dussault and George Erasmus, Address for the launch of the report of the Royal Commission on Aboriginal Peoples,” Aboriginal Affairs and Northern Development Canada (last modified 2010-09-15) at 5, online:
In 1942, the Department of National Defence appropriated the entire Stoney Point Reserve under the War Measures Act, overriding the wishes of the Kettle Point and Stoney Point peoples, and not following the land surrender 101 procedures in either the Indian Act or the Royal Proclamation. National Defence 2013 CanLIIDocs 114 promised to return the land after the war, if it was no longer needed for military purposes, but still had possession of it when the Report of the Ipperwash Inquiry was released in 2007, long after its military utility had expired.102 The Inquiry concludes, “Unfortunately, the issues that were at the heart of the Ipperwash occupation remain unresolved by the federal government to this day. This inexcusable delay and long neglect, by successive federal governments, are at the heart of the Ipperwash story.”103
Since Canada recognized in 1973 the right to bring comprehensive claims, comprehensive land claims agreements have been negotiated and signed between claimant First Nations, Canada and provincial or territorial authorities. A 2009 report by Canada listed 21 such agreements which had been ratified, covering 40% of Canada’s land mass. According to that report, outstanding claims cover approximately 20% of Canada. In contrast to the huge land mass involved in these outstanding entitlement issues, the numbers of Indigenous peoples are relatively small. The 21 completed agreements involved over 91 communities with over !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 98 The Honourable Sidney B Linden, Commissioner, Report of the Ipperwash Inquiry (“Ipperwash”) (Queen’s Printer for Ontario, 2007), Vol 1: Investigation and Findings, at 671. 99 Ipperwash, at 673, 685. 100 Ipperwash, at 673, 685. 101 Ipperwash, at 673. 102 Ipperwash, at 673. However, the government of Ontario announced in December of 2007 that it would return Ipperwash Park to the Chippewas of Kettle and Stoney Point. Dickason, op cit supra note 90, at 443. 103 Ipperwash, at 685. These two claims resulted in Commissions of Inquiry, but they are by no means the only long-standing cases of injustice perpetrated by Canada against First Peoples. [2013] STILL COLONIZING 141 ! 70,000 members, while the work in progress at the time of the 2009 report involved approximately 270 communities with approximately 200,000 members.104 A 2012 report states that as of September 2012, there were 93 active self-government and comprehensive land claims negotiation tables across the country.105
Even if the Indigenous peoples involved work collectively, it is clear that the bargaining strength of any particular community or group on the one hand, and Canada on the other, cannot possibly be commensurate. Human resource issues, as well as monetary resource issues, weigh heavily on small communities. Moreover, while often lengthy negotiations are under way, the communities must deal with all of the business of daily life, and often with pressure from resource exploration companies seeking to exploit the riches of the territories under discussion. One is reminded of the circumstances confronting First Nations during the negotiation of the first round of land surrender Treaties, from 1763 onwards: the pressure of would-be settlers and developers, and the dwindling vigour of traditional ways of providing a living, placed the First Nations under a comparative disadvantage at the bargaining table. 2013 CanLIIDocs 114
One of the main prizes for government of modern comprehensive land agreements is the surrender of First Nation title to their traditional lands. This is one of the reasons that Indigenous scholar and activist Russ Diabo refers to the modern treaty process as the government’s “First Nations Termination Plan.”106 Extinguishment of Aboriginal title, now as in the first round of treaty negotiations, is in keeping with the goals of the internal colonizer. Even in the context of specific claims based on historical Treaties, one is still dealing with extinguishment issues; the modern First Nation is trying to realize, today, the terms of the historical bargain for surrender or extinguishment that was never fulfilled or was otherwise undermined by government action.
One can rightly ask, then, whether there is anything in the legal system now to protect Indigenous interests that was not available in the past, and if so, how
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 104 Indian and Northern Affairs Canada, Impact Evaluation of Comprehensive Land Claim Agreements, February 17, 2009, at 5-6. 105 Aboriginal Affairs and Northern Development Canada, Fact Sheet: Comprehensive Land Claims, September 2012, at 1, online:
In the administration of both the old and the new Treaties, and of the Indian Act, and in its other relations with Indigenous peoples, Canada is now – at least in theory -- subject to high standards of behaviour articulated by the Supreme Court. The core of these standards is the honour of the Crown, a principle that servants of the Crown must conduct themselves with honour when acting on behalf of the sovereign.109 The Court traces the application of this principle in Indigenous 110 law to the Royal Proclamation of 1763, and states that its ultimate purpose is the 2013 CanLIIDocs 114 reconciliation of pre-existing Indigenous sovereignty with assumed Crown sovereignty.111
In Manitoba Metis Federation Inc. v. Canada (Attorney General)112, the majority of the Court states that the honour of the Crown arises from the Crown’s assertion of sovereignty over an Indigenous people and the de facto control of land and resources that were formerly in the control of that people.113 The honour of the Crown recognizes the impact of the superimposition of European laws and customs on pre-existing Indigenous societies, which were “here first” and never conquered, but nonetheless made subject to a legal system which they did not share. The historical treaties were framed in that unfamiliar legal system and negotiated and
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 107 In R v Sparrow, [1990] 1 SCR 1075, the Court found it significant that after Calder the federal government for the first time expressed a willingness to negotiate claims of Aboriginal title, and they went on to say that section 35(1) of the Constitution Act, 1982 “provides a solid base upon which subsequent negotiations can take place.” Paras 51, 53. In Delgamuukw v BC, [1997] 3 SCR 1010 at para 186 Chief Justice Lamer alludes to these comments, and expresses the wish that instead of proceeding to the retrial granted by the Court, the parties in Delgamuukw will enter into negotiations at which all with potential interests in the land can be represented. 108 At para 186. 109 Manitoba Metis Federation Inc v Canada (Attorney General), 2012 SCC 14, at para 65 (“Manitoba Metis”). 110 Manitoba Metis para 66. 111 Haida Nation v British Columbia (Minister of Forests), [2004] 3 SCR 511 at para 20 and Metis para 66. 112 Loc cit note 109. 113 Manitoba Metis, at para 66 citations omitted. [2013] STILL COLONIZING 143 ! drafted in a foreign language.114 The majority states, “The honour of the Crown characterizes the ‘special relationship’ that arises out of this colonial practice”,115 and specifically adopts the following passage from Professor Brian Slattery:
…when the Crown claimed sovereignty over Canadian territories and ultimately gained factual control over them, it did so in the face of pre- existing Aboriginal sovereignty and territorial rights. The tension between these conflicting claims gave rise to a special relationship between the Crown and Aboriginal peoples, which requires the Crown to deal honourably with Aboriginal peoples.116
The honour of the Crown has been applied by the Supreme Court in several situations, with the caution that it gives rise to different duties in different circumstances.117 Treaties will be interpreted generously and enforced in a way that upholds the honour of the Crown.118 Interpretation of statutes as well as Treaties must be approached in a manner which maintains the integrity of the Crown; it is always assumed that the Crown intends to fulfil its promises, and no appearance of “sharp dealing” will be sanctioned.119 The Crown must act in a way that accomplishes the intended purpose of Treaty and statutory grants.120 Negotiation of 2013 CanLIIDocs 114 Treaties, similarly, is to be conducted in accordance with the honour of the Crown. 121The honour of the Crown informs the purposive interpretation of section 35 of the Constitution Act, 1982122; the way in which a legislative objective is to be attained must uphold the honour of the Crown.123 The government’s duty to consult with Indigenous peoples and accommodate their interests when the Crown contemplates an action that will affect a claimed but as yet unproven interest is also grounded in the honour of the Crown.124
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 114 Manitoba Metis, para 67 (quote marks and specific references to the cases cited in this paragraph have been omitted). 115 Manitoba Metis, para 67, cite omitted. 116 “Aboriginal Rights and the Honour of the Crown,” (2005) 29 SCLR (2d) 433, at 436, quoted in Manitoba Metis at para 67. 117 Haida, para 18. 118 Binnie J. in Mitchell v Canada (MNR), [2001] SCR 911 at para 138. 119 R v Badger, [1996] 1 SCR 771, at para 41. 120 Manitoba Metis, at para 73 (4). 121 Haida, at para 20; Manitoba Metis, at para 73 (3). 122 Manitoba Metis, at para 73 (1). 123 Badger, at para 78, quoting Sparrow at page 1110. 124 Haida, para 16; Manitoba Metis, para 73 (2). ! ! 144 UNB LJ RD UN-B [VOL/TOME 64] ! One particular application of the honour of the Crown was first established in the Guerin125 case, decided in 1984.. Where the Crown has assumed discretionary control over specific Aboriginal interests, the honour of the Crown gives rise to a fiduciary duty, which requires that the Crown act in the groups’ best interests in exercising its discretionary control.126 In Guerin, Canada was acting to secure a lease of reserve land which had been surrendered to it for that purpose, and accepted a lease on terms that were unfavourable to the Band, and contrary to what it had authorized. The Court found that a “sui generis” fiduciary relationship existed between Canada and the Band, in law; until this “watershed decision”, courts had characterized any trust relationship between the Crown and a Band as a political trust only, not enforceable in court.127 The source of the fiduciary relationship in Guerin was found in the Band’s aboriginal title to its land, inalienable except upon surrender to the Crown, a feature common to both the Royal Proclamation and the Indian Act. While identifying the relationship as a fiduciary one, however, the Court makes clear that not all of the obligations arising between the parties to a fiduciary relationship are themselves fiduciary in nature, saying that the Crown’s fiduciary duty towards Indigenous peoples varies with the 128 nature and importance of the interest sought to be protected. 2013 CanLIIDocs 114
In Sparrow, the Court states that Guerin grounds a general guiding principle for section 35 of the Constitution Act, 1982: the government has the responsibility to act in a fiduciary capacity with respect to Aboriginal peoples, in a relationship that is trust-like rather than adversarial129. Reading section 91(24) of the Constitution Act, 1867 with section 35, interpreted this way, means that “federal power must be reconciled with federal duty”.130 The most recent decision of the Supreme Court to consider and apply the principle of honour of the Crown is Manitoba Metis. The Court granted a declaration that the federal government failed to implement in accordance with the honour of the Crown the land grant provision set out in section 31 of the Manitoba Act, 1870 , providing for timely allocation of 1.4 million acres of land to the children of Metis in Manitoba at confederation.131 It holds that the honour of the Crown is engaged by an explicit obligation to an Indigenous group that is enshrined in the constitution132, and in that situation, the honour of the Crown requires that it take a broad purposive approach to the interpretation of the promise, and act
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 125 Guerin v Canada, [1984] 2 SCR 335. 126 Haida, para 18 and Manitoba Metis para 73 (1). 127 Wewaykum, at para 73. 128 Guerin, at paras 83, 86. 129 Sparrow, at para 59. 130 Sparrow, at para 62; Manitoba Metis at 69. 131 Manitoba Metis, para 154. 132 Manitoba Metis para 70. [2013] STILL COLONIZING 145 ! diligently to fulfil it.133 While acknowledging that “implementation, in the way of human affairs, may be imperfect”, the Court states that “..a persistent pattern of errors and indifference that substantially frustrates the purposes of a solemn promise may amount to a betrayal of the Crown’s duty to act honourably in fulfilling the promise.”134
Although the events giving rise to the obligation, and the claim, took place over a hundred years before, the Court refuses to hold that the claim is barred under provincial limitations acts. Characterizing the issue as a constitutional grievance, the Court states that:
So long as the issue remains outstanding, the goal of reconciliation and constitutional harmony, recognized in s.35 of the Charter and underlying s.31 of the Manitoba Act, remains unachieved. The ongoing rift in the national fabric that s.31 was adopted to cure remains unremedied. The unfinished business of reconciliation of the Metis people with Canadian sovereignty is a matter of national and constitutional import. The courts are the guardians of the Constitution and, …cannot be barred by mere 2013 CanLIIDocs 114 statutes from issuing a declaration on a fundamental constitutional matter. The principles of legality, constitutionality and the rule of law demand no less: see Reference re Secession of Quebec, [1998] 2 SCR 217, at para. 72135
So, too, the Court rejects Canada’s argument that the claim is barred by the doctrine of laches. It holds that the required element of acquiescence in Canada’s conduct is not present: “In the context of this case – including the historical injustices suffered by the Metis, the imbalance of power that followed Crown sovereignty, and the negative consequences following delays in allocating the land grants – delay by itself cannot be interpreted as…acquiescence or waiver.”136
These doctrinal developments relating to the honour of the Crown sound encouraging. However, they leave me deeply cynical and discouraged. Under our constitution, the Crown is an arm of government, and the powers and duties of the Crown do not vary with the personality or inclinations of any particular monarchical incumbent. Canada was a monarchy, with limited responsible !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 133 Manitoba Metis para 75. 134 Manitoba Metis, para 82. The Court also refers to the Crown’s repeated mistakes and inaction that persisted for more than a decade (para 128) and persistent inattention (para 110). 135 Manitoba Metis, at 140. 136 Manitoba Metis, at 147. ! ! 146 UNB LJ RD UN-B [VOL/TOME 64] ! government and limited autonomy, before it became an independent modern state. The doctrine upon which the Court’s modern honour of the Crown jurisprudence is based is old doctrine. In Mikesew Cree, Binnie J. notes that the honour of the Crown was first referred to as a treaty obligation by Gwynne J. of the Supreme Court of Canada in 1895137. While it is beyond the reach of this paper to document all of the instances where the Crown’s behaviour fell below the standards now being articulated by the Supreme Court of Canada, the record verifies that these were numerous, and include contemporary examples as well as historical ones.138 The policy expressed in the White Paper, of disdain for important Treaty obligations, manifests how badly the honour of the Crown was wanting in its dealings with obligations under Treaties it had signed to open Ontario, the prairies and the northwest for settlement and development.
There remains much land acquisition business underway in Canada; the modern land claims agreements affect about 60% of our land mass. What assurances can we have that the modern Crown, even with the clear instructions from the Supreme Court of Canada, will behave appreciably better than the Crown 2013 CanLIIDocs 114 of past decades? And if the Crown in right of Canada and the provinces does not
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 137 Mikesew Cree First Nation v Canada (Minister of Canadian Heritage), [2005] 3 SCR 388, at para 51, citing Province of Ontario v Dominion of Canada (1895), 25 SCR 434 at pages 511-12. Although he acknowledges that Gwynne J. was dissenting in the result, Binnie J. states “nothing was said by the majority in that case to doubt that the honour of the Crown was pledged to the fulfillment of its obligations to the Indians.” Mikesew, at para 51. 138 In addition to the examples already provided, see Whitefish Lake Band of Indians v Attorney General of Canada, 2007 ONCA at 744, at paras 1, 2, 9, 14-21. The Whitefish Lake Band, a signatory to the Robinson Huron Treaty in 1850, surrendered timber rights on its reserve to the Crown in 1886. The Crown sold these rights to a Conservative member of the provincial legislature, under value, and the licence was then flipped twice for successively higher prices. The Crown kept renewing the licences until the timber was virtually exhausted. There was considerable political furor at the time about the “swindle” of the Indians. However, it was not until 2005, a week before the trial of an action for damages brought by Whitefish, that the Crown admitted to breaching its fiduciary duty in 1886 by failing to obtain fair value for the timber licence. Whitefish still had to proceed to trial, and to appeal, before eventually overcoming the Crown’s argument for a very low valuation to be placed on the licence. In Joseph et al v Her Majesty the Queen in Right of Canada (Ministry of Indian Affairs and Northern Development) 2008 FC 574, the Hagwilget Indian Band enjoyed a natural salmon fishery caused by a rock fall on the river where it had made its home for generations (though only made a reserve in 1938). In 1959, over the objection of the Hagwilget, the federal Department of Fisheries blasted the rock in the canyon, destroying the fishery. The government did nothing to provide compensation for the destruction, and the Hagwilget started litigation in 1985. In 1997, the Hagwilget accepted to enter the specific claims process, but were told in 2001 that the claim could not be resolved in anything less than 20 years, and so they revived their action. The Crown tried unsuccessfully to have the claim struck, and then persuaded the Hagwilget to enter into negotiations in 2006, although the Crown had no negotiating mandate. Having exhausted its resources and gone deeply into debt, the Hagwilget Band applied successfully to the Federal Court for an order of advance costs so that it could continue its litigation. The Court stated that the Crown’s behaviour raised serious questions about the honour of the Crown; “for over 25 years the plaintiffs were continuously put off by a series of unkept and broken promises that the situation would somehow be remedied” (at 21), then they were “sidetracked” into the special claims process (at 21), and then the Crown tried to get them to negotiate, an “extraordinary” move given that the Crown is “nowhere near to giving proper instructions and a mandate to counsel to enter into meaningful negotiations.” (at 23). [2013] STILL COLONIZING 147 ! behave in accordance with these standards, what recourse is available to the comparatively small and powerless First Nations that must deal with Canada and a province or territory in modern negotiations? How can a First Nation or group of First Nations not only deal with the negotiation or specific claims process but also respond to third party, primarily corporate, initiatives to claim and develop land to which the First Nation has a historic claim? The transaction costs of the negotiations or litigation that would be necessary to enforce the Crown’s duty of honourable behaviour are huge, and can easily exhaust resources that would otherwise be spent on the basics of daily life, like housing, health and education. Even if litigation is successful, like the Manitoba Metis case, or Delgamuukw, the reward for success is the opportunity to spend more time at the negotiation tables, at a pace determined in some considerable measure by Canada. Recently, for example, Canada has announced that it will concentrate on negotiations that are the “most productive”, leaving the less productive negotiations to languish;139 that message, as well as Canada’s overall yearly budget for land settlements, has a profound impact on the negotiating process.
2013 CanLIIDocs 114 The Court’s anxiety about the past conduct of the Crown is evident in its jurisprudence on the honour of the Crown. The Court emphasizes that honourable behaviour is necessary in order to promote reconciliation of Crown sovereignty with the prior occupation (and in some cases it even says prior sovereignty) of the Indigenous peoples. The Court knows that dishonourable behaviour by the Crown, at least in theory, tarnishes its exercise of the sovereignty it claims. While it did not achieve this sovereignty by conquest, dishonourable behaviour is the behaviour of a conqueror not an erstwhile ally. I believe that the Court is right about the moral jeopardy into which dishonourable behaviour puts Crown and indeed Canadian sovereignty over Indigenous lands and peoples. Dishonourable Crown behaviour confirms Indigenous resistance to the assertion of Crown sovereignty, and eventually it will bring non-Indigenous people, in great numbers, to resist dishonourable acts done by the government as their representative. It is only if, and when, the government itself begins to appreciate that moral jeopardy, and believe that it is important to prevent it, that we will see honourable conduct from the Crown on a consistent basis, as a matter of government priority.
Meanwhile, the Crown in its modern dress will continue to work towards completion of one element of its agenda of internal colonization, namely securing the surrender to it of Indigenous lands, and extinguishment of Indigenous title. The conditions of that work, for both Crown and Indigenous peoples, will be little different from what they were during the first round of Treaty making which ended !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 139 Aboriginal Affairs and Northern Development Canada, Result-Based Approach to Treaty and Self- Government Negotiations, online:
INTERNAL COLONIZATION WRIT SMALL: LAND UNDER THE INDIAN ACT AND THE DEFINITION OF INDIAN
Canada’s imposition of the Indian Act, without regard to the underlying constitutional imperatives affecting the relationship of Indigenous peoples with the state, has resulted in a permanent, and continuing exposure of Indigenous peoples to the oppressions of internal colonialism. The Indian Act not only facilitates the continuing erosion of the small interests in land still held by those subject to it. It is a device for gradually reducing the numbers of those whom the government is prepared to recognize as “Indian”. In the end, even if there remain “lands reserved for Indians” there may well be no “Indians” eligible to inhabit them.
2013 CanLIIDocs 114 The enfranchisement scheme started in 1857 highlights several aspects of colonial policy towards Indigenous peoples which are still with us, embedded in the Indian Act. One of the most enduring is the use of legislation to define who is an Indian. Before the 1857 legislation, reference to “Indians” in legislation was very broad and seemed to reflect Indigenous practice140. With the introduction of enfranchisement, with its notion that one could become non-Indian by having certain attainments, it became necessary to define the starting point of this transformation, that is, who was an Indian.141 The connection between being defined as an Indian and having an interest in land on reserve was also foundational to the enfranchisement scheme, and this link would continue to characterize the Indian Act. In the White Paper, Canada states that as long as the Crown controls the land for the benefit of the bands who use and occupy it, the Crown is responsible for determining who may, as a member of a band, share that band land.142
Another dimension of the Indian definition established in the enfranchisement scheme was the primacy given to the male. Enfranchisement was only available to male Indians; only their attainments were scrutinized, and only they received fee simple title if successfully enfranchised. When her husband was enfranchised, however, a woman would also lose her Indian status, as would the couple’s children, but neither the wife nor the children would take any interest in !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 140 See, for example, An act for the better protection of the Lands and Property of the Indians in Lower Canada, S Prov C 1850, c 42 (10th August 1850), discussed below. 141 JR Miller, Skyscrapers Hide the Heavens: A History of Indian-White Relations in Canada, rev ed (“Skyscrapers”) (Toronto: University of Toronto Press, 1989) at 111, describes this as a paradox: first define who the non-citizens are, and then define how to become a citizen. 142 White Paper, at 12. [2013] STILL COLONIZING 149 ! land. This exclusive focus on the male Indian for purposes of determining the Indian-ness of his wife and children would continue until 1985.
Not surprisingly, voluntary enfranchisement was never a success. The Chiefs of Canada West had made it clear in 1846 that they did not want provisions that would allow conversion of band lands held in common to individual fee simple parcels,143 and Indians protested against the 1857 Act itself.144 Only one Indian enfranchised between 1857 and the first Indian Act in 1876145. Between 1857 and 1920 only 250 individuals enfranchised.146 The failure of voluntary enfranchisement provoked legislation in 1920 to make it compulsory.147 The involuntary provision was repealed by a new government in 1922 148, then restored in 1933, finally to be removed in 1951.149 After 1951, very few Indians chose to be enfranchised150. There were 228 voluntary enfranchisements of men and women between 1965 and 1975151 and only 11 voluntary adult enfranchisements from 1973 to 1976.152 In 1960, registered Indians living on reserves had finally been given the vote in federal elections,153 and so it is unlikely that those enfranchising after that date were doing it to get the vote. 2013 CanLIIDocs 114
The impact on reserve lands of enfranchisement was never seriously tested because of the unpopularity of the measure. Experience with the General Allocation Act (Dawes Act) in effect in the United States from 1887 to 1934 clearly suggests, however, that the success of enfranchisement in Canada would have reduced the overall acreage of land available to reserves154. The Dawes Act provided for fee simple interests in reserve land and Flanagan observes that the
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 143 Skyscrapers, at 112. 144 Skyscrapers, at 113. 145 Skyscrapers, at 113. 146 Skyscrapers, at 190. 147 Op cit supra, note 32, at 233. 148 Op cit supra, note 32, at 234. 149 Op cit supra, note 32, at 238. 150 Kathleen Jamieson, Indian Women and the Law: Citizens Minus (Canadian Advisory Council on the Status of Women; Indian Rights for Indian Women, April 1978), (“Jamieson”) at 63. 151 Jamieson, at 63. 152 Jamieson, 64. 153 Op cit supra note 3. 154 Flanagan et al, op cit supra note 2, at 42-52. ! ! 150 UNB LJ RD UN-B [VOL/TOME 64] ! “main real-world effects” of 67 years of that legislation was to reduce the size of Indian reservations by half.155
Experience in the Canadian prairies with the issuance of land scrip, “a type of promissory note for land”156, also suggests that individual interests in reserve land would have proven more vulnerable than land held collectively. Between the negotiation of Treaty 1 and the signing of Treaty 11, the government of Canada carried out thirteen “scrip commissions” that issued to Metis people land and money scrip amounting to $2,888,157 in the currency of the day.157 These scrip commissions were issuing scrip as a way of extinguishing any claims to land title which the Prairie Metis might have had, and the land scrip could be traded in for land. However, Miller observes of this process, “as far as the Metis were concerned they had little to show for the effort.”158 In Saskatchewan, scrip buyers, often representing banks, followed the Treaty Commissioners and offered cash at a discounted rate in exchange for scrip that was signed over to them.159 “The land that scrip was supposed to represent rarely ended up in Metis hands and they did 160 not assemble a land base of any sort.” 2013 CanLIIDocs 114
At confederation, Canada pledged 1.4 million acres of land to be allocated to the children of Metis then living in Manitoba, to give them a head start on becoming established in the face of the looming influx of settlers competing for land. Long delays in allocating the land meant that “many Metis sold potential interests for too little”161, with the price for land after it had been allocated being twice what could be gained from selling the entitlement only.162 Some children, left out of the land allocation process, received scrip only, which was sold for cash on the open market and received about ½ of its face value.163 In Metis, the Supreme Court found that government behaviour contrary to the honour of the Crown contributed to the disadvantage experienced by the Metis. In any scheme to divide reserve holdings into individual fee simple parcels, government is bound to be involved, and history has shown that it is imprudent simply to assume, or trust, that government will adhere to high standards of behaviour.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 155 Flanagan et al, at 51. 156 Op cit supra note 32 at 193. 157 Op cit supra note 32 at 227. 158 Ibid. 159 Op cit supra note 32 at 206. 160 Op cit supra note 32 at 207. 161 Manitoba Metis, at para 110. 162 Manitoba Metis, at para 116. 163 Manitoba Metis, at para 118. [2013] STILL COLONIZING 151 !
The desire to establish individualized fee simple interests in reserve land surfaced again in the White Paper, as a way of giving Indians the same rights and treatment in law as other Canadians. The Red Paper issued by the Alberta chiefs rejected the sameness as equality argument, declaring that “equality in fact may involve the necessity of different treatment.”164 The Chiefs also challenged Canada’s argument that individualized fee simple interests were necessary to unlock the economic potential of reserve lands. Canada had argued that government ownership of Indian reserves blocked their beneficial economic exploitation. The Red Paper argued that the government does not “own” Indian reserves, but merely holds them in trust for the bands which are their beneficial owners.165 It also stated that the government wrongly assumes that Indians can control their land only if they take ownership the way ordinary property is owned.166 The chiefs contended that the Indian Act could, instead, be changed to give Indians control of their lands without changing the fact that the land is being held in trust.167 As far as I have been able to determine, there never has been a satisfactory rejoinder to the simple basic point that the Indian Act could be changed to unlock economic potential of reserve land without going all the way to 2013 CanLIIDocs 114 individualized fee simple title.
The Red Paper’s arguments work just as well against the contemporary advocates of the First Nations Property Ownership Act.168 The unwillingness to explore thoroughly what means might be developed to foster commerce on reserve land without giving up its collective character suggests to me that proponents of the fee simple option are not necessarily interested in the collective wellbeing of the First Nation, or even the welfare of the individual holder of fee simple. Rather, these proponents seem to be fixing on fee simple title because it is a bedrock of modern financing, and thus meshes easily with the established practices of the commercial interests which command their real loyalty and attention. The proponents of fee simple seem to want to make the capital value of reserve land (and resources) available to third parties seeking to exploit the land for commercial benefit, without making them invest in innovative and perhaps riskier methods of taking security for monies advanced. The fee simple option may also appeal to the state itself, not just because of its interest in business and resource development, but because revenues from the use or disposal of fee simple land interests are easier
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 164 Red Paper, at 5. 165 Red Paper, at 9. 166 Red Paper at 10. 167 Red Paper, at 10. 168 Flanagan et al, at 29. ! ! 152 UNB LJ RD UN-B [VOL/TOME 64] ! to find and tax than revenue from some more collective deployment of assets might be.169
The First Nations Property Ownership Act has not collected, so far, a strong enough following to ensure its passage.170 This does not mean that Canada has lacked other means of disposing of interests in reserve land, to the benefit of third parties or the Crown itself. Surrenders, sales, leases, and other means have been in the Indian Act repertoire from the outset. Indigenous peoples have learned the hard way that sorrow and loss for them, and financial profit for white colonizers, has been the result of engagement with the “dynamic market economy”171 . For now, without fee simple interests in land as yet another tool of exploitation, it is on the tried and true ways of reducing the size of reserve land that Canada’s colonizing efforts must continue to rely.
However, one final colonizing strategy remains to be considered. We will find that it is still a robust means of internal colonization, because of its 2013 CanLIIDocs 114 usefulness in making Indians disappear, even without giving them any land at all to take away with them.
“INDIANS” DEFINED, AND DEFINED AWAY
James Tully identifies making Indians extinct in fact as one of the strategies of internal colonialism; a related one is to weaken their resistance to being assimilated. Tully’s formulation recalls to mind the well-known statement of Duncan Campbell Scott, Deputy Minister of Indian Affairs, in 1920, when he explained to Parliament why he wanted to make enfranchisement compulsory:
I want to get rid of the Indian problem….Our objective is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic, and there is no Indian question and no Indian department and that is the whole object of this Bill. 172
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 169 It has also been suggested that government likes the fee simple option because it would be easier to overcome individual owners’ resistance to an unpopular project like the Northern Gateway Pipeline than to overcome the collective resistance of First Nations: Editorial, “Property rights not a priority,” The Saskatoon Star-Phoenix, August 11, 2012, at A 10. 170 Ibid. 171 Tom Flanagan, First Nations? Second Thoughts (Montreal: McGill-Queens University Press, 2000) at 131. 172 Evidence of Duncan Campbell Scott before the Committee of the House of Commons considering “Bill 14”, later enacted as An Act to amend the Indian Act, chapter 26, 12-13 George V (assented to June 28, 1922). Quoted in E Brian Titley, A Narrow Vision: Duncan Campbell Scott and the Administration of Indian Affairs in Canada (Vancouver: UBC Press, 1986) at 50, fn 55. [2013] STILL COLONIZING 153 !
While actual death and extinction did play a role in the reduction of Indigenous populations in Canada173, an arguably larger role was played by a form of “desk murder”174: being defined out of existence by Indian department bureaucrats and Canadian legislators. While arguing that a definition of “Indian” was necessary in order to identify those entitled to access Indian lands175, the Canadian government constructed the term very narrowly, and in accordance with its own, not Indigenous, concepts of kinship.
The number of claimants to “Indian” status (that debased version of Indigeneity which was all that Canada was prepared to recognize) was accordingly much smaller than it might have been if Indigenous peoples had been able to use their own definitions, or even if the definitions first used by colonial governments had persisted. The goal of Indian policy well into the twentieth century was to assimilate, or “civilize” the Indians; presumably, anyone whose Indian-ness was legislatively “defined away” could be considered “civilized” and thus became a statistic on the plus side of the assimilation ledger. 2013 CanLIIDocs 114
The original colonial definition of “Indian” was a fairly broad one. Lower Canadian legislation in 1850, for example, had four categories of “Indians”: (1) all persons of Indian blood (not further defined or specified as to “quantum”) reputed to belong to the particular Body or Tribe of Indians interested in the lands at issue, and their descendants; (2) all persons intermarried with any such Indians and residing amongst them (including men intermarried with Indigenous women), and all descendants of such persons; (3) all persons residing among such Indians, whose parents on either side (fathers and mothers) were or are Indians of such Body or Tribe, or entitled to be considered as such; and (4) all persons adopted in infancy by any such Indians, and residing in the Village or upon the lands of such Tribe or Body of Indians and their descendants.176
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 173 Bonita Lawrence, op cit supra note 10 at 34-35. 174 The term was used by Israeli Attorney General Gideon Hausner, the Chief Prosecutor of Adolf Eichmann at his trial, to describe the activities of Eichmann and other bureaucrats of the Nazi Holocaust, who issued from their offices the orders for rounding up, transportation, and other activities that resulted in the slaughter of European Jewry in the death camps. David Cesarini, Becoming Eichmann: Rethinking the Life, Crimes and Trial of a “Desk Murderer” (Cambridge: DaCapo Press, 2006) at 3, 6. 175 An argument still being made as late as 1969 in the White Paper. 176 An Act for the better protection of the Lands and Property of the Indians in Lower Canada, S Prov C 1850, c 42 (10th August 1850), s V. An Act for the protection of the Indians in Upper Canada from imposition, and the property owned or enjoyed by them from trespass and injury, S Prov C 1850, c 74 (10th August 1850) simply referred to Indians and those intermarried with Indians (s X). ! ! 154 UNB LJ RD UN-B [VOL/TOME 64] !
This definition was restricted quite substantially the next year177. By 1876, when the first comprehensive Indian Act in post-Confederation Canada was passed, the term Indian was narrowly defined as (1) any male person of Indian blood reputed to belong to a particular band; (2) any child of such person; and (3) any woman who is or was lawfully married to such person.178 Until 1985179, eligibility to be considered an “Indian” for purposes of the Indian Act180 descended through the male line, even though matrilineal descent and matrifocal family and kinship structures were a feature of many Indigenous nations. Under this system a child would derive Indian status from his or her father181. A status Indian woman who was unmarried could pass status to her child, only if it could not be established that the father of the child was a non-Indian.182
A man could confer Indian status on his non-Indian wife. However, from 1869 to 1985, a woman would lose her entitlement to registration if she married a non-Indian male.183 With no Indian father to bestow it, the children of such unions would be ineligible for Indian status. There are no statistics to show how many 2013 CanLIIDocs 114 women and children were affected by these provisions, but I have noted elsewhere that over 110,000 persons who had lost status this way regained eligibility for registration under Bill C-31, passed in 1985.184
Until the Indian Act of 1951, a woman who married a non-Indian man might not be totally excluded from her community. If she did not opt to accept “commutation” of her interest in Band funds (which entailed a lump sum
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 177 An Act to repeal in part and to amend an Act, intituled, An Act for the better protection of the Lands and property of the Indians in Lower Canada, S Prov C 1851, (30th August 1851), s II. The amendment dropped the category of infants adopted by the Indians, and restricted the acquisition of Indian status by marriage to women “lawfully married” to Indians, excluding altogether the husbands of Indian women. 178 The Indian Act, 1876, s 3(3). 179 Bill C-31, op cit supra note 3. 180 Which I call “Indian status” here, in keeping with relatively common usage, although this is not a term used in the Indian Act 181 In Martin v Chapman, [1983] 1 SCR 365, a male born out of wedlock to a status Indian father and non-Indian mother was permitted to be registered under s 11(1)(c) of the Indian Act because he was a male person who is a direct descendant of a male status Indian. The fact that he was “illegitimate” did not prevent his registration. However, a female child in the same circumstances would not be registered. 182 For the last version of the legislation before its change in 1985, see Indian Act, SC 1951, c 29, s 11.
183 The most infamous version of this provision, which had existed since 1876, is the one found in section 12(1)(b) of the Indian Act, SC 1951, c 29. It was this section that faced the legal challenges which eventually led to the repeal of this provision. 184 See Mary Eberts, “McIvor: Justice Delayed – Again,” (2010) 9:1 Indigenous Law J 15-46, at 21-22 and note 25. [2013] STILL COLONIZING 155 ! payment),185 she might still remain on the Band list, and if her Band had signed a treaty, she would remain eligible for treaty rights. Some Indian agents would issue “red ticket” identity cards to such women, identifying them as Indian for purposes of some Band benefits and treaty money.186 However, this loophole was closed in the l951 legislation, which provided that a woman who married a non-Indian could be involuntarily enfranchised by order-in-council.187 The woman’s minor children would be enfranchised with her, even if her non-Indian husband was not their father.188 In 1956, the “red ticket” loophole was also closed, and women were required to accept a lump sum payment and deprived of their remaining ties with their Band.189
Women who were compulsorily enfranchised for marrying a non-Indian formed by far the largest cadre of Indians who experienced enfranchisement. In 1965 to 1975, just over 5000 women and children were involuntarily enfranchised190, and from 1973 to 1976 when the practice was ended administratively, there were 1,335 involuntary adult enfranchisements.191
Enfranchisment did not bring these adults the right to vote in Canadian elections; 2013 CanLIIDocs 114 they had already received it in 1960. It did not earn them the fee simple interest in reserve land which voluntary enfranchisement brought to male Indians, but only ensured their complete exile from their home communities. As non-Indians, they were now forbidden by the Indian Act192 from even coming onto the reserve, let alone living there. Yet, this compulsory enfranchisement was, in some ways, the consummate act of colonizing: the women and children were removed from the Indian register, and thus no longer part of the Indian problem so decried by Duncan Campbell Scott. They had been assimilated, dare I say “civilized”, not gradually but at the stroke of a pen.
This highly discriminatory treatment of women under the Indian Act became a focus of Indigenous women’s activism in the 1970s, through !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 185 Jamieson, at 62. 186 Jamieson, at 61. 187 Indian Act, SC 1951, c 149, s 109(1)(2), KJ 91. 188 Jamieson, at 91. This enfranchisement of the children continued until a legislative amendment in 1956: SC l956, c 40, s 26. 189 Jamieson, at 62; SC 1956, c 40, s 6(5). 190 Jamieson gives the number as 5,035 at 63. 191 Jamieson, at 64. The practice did not end by statute until passage of Bill C-31. See supra note 3. 192 Because reserves were lands set aside for the use and benefit of Indians, a non-Indian could not come on a reserve, and might be charged with trespass if she did. See the original provision in SC 1876, c 18, s 11. ! ! 156 UNB LJ RD UN-B [VOL/TOME 64] ! organizations like Indian Rights for Indian Women and the Native Women’s Association of Canada. Two high-profile Court cases challenged the provisions which deprived a woman of Indian status upon marriage to a non-Indian. The first of these, brought by Ojibway Jeannette Lavell and Mohawk Yvonne Bedard of Ontario under the equality before the law guarantee of the Canadian Bill of Rights, was unsuccessful in the Supreme Court of Canada.193 Sandra Lovelace, a Maliseet woman from New Brunswick, took the issue to the United Nations Human Rights Committee and secured a ruling that the provision violated the UN Covenant on Civil and Political Rights.194 The equality guarantees of the Canadian Charter of Rights and Freedoms, entrenched in the constitution in 1982, were scheduled to come into effect in 1985.195 The pressure of the Lovelace ruling, and the coming into force of the equality guarantees, produced amendments to the Indian Act in the form of Bill C-31196, a term which is still used colloquially to describe this package of legislative changes.
Bill C-31 provided for the reinstatement to Indian status of women who had been deprived of status by reason of their marriage to non-Indian men, and also 2013 CanLIIDocs 114 cancelled the “enfranchisement” of these women where it had been forced on them. It also provided that their children could be returned to status. However, these welcome changes were set in an overall legislative framework that deprived them of their full force. Bill C-31 provided that henceforth, a child would be registered as an Indian only if both of her parents were Indian. This two-parent requirement for status was not the only policy choice available: the government could have continued the system which required only one parent to be a status Indian, but made it possible for both the mother and the father to convey status. Instead, it replaced the privilege of the male parent with a requirement that both parents be Indian in order to convey status. This choice made it more difficult to secure Indian status, and would contribute to a lessening of the status Indian population in the not-so-distant future.197
Under the 1985 legislation, a child could derive status from one Indian parent, but that concession would only happen once in a line of descent. A child who had herself derived status from one Indian parent could not, as a single parent, pass that status along. This provision, known colloquially as “the second generation cut-off” was particularly hard on the children of women who had lost status for !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 193 AG Canada v Lavell; Bedard v Isaac et al, [1974] SCR 1349. 194 Lovelace v Canada, Communication No R 6/24, UN Doc Supp No 40 (A/36/40) (1981) (UN Human Rights Committee). 195 Section 32(3) of Constitution Act, 1982, being Schedule B to Canada Act, 1982, 1982, c 11 (UK). 196 Supra, note 3. 197 See Megan Furi & Jill Wherrett, Indian Status and Band Membership Issues (Ottawa: Library of Parliament, Parliamentary Information and Research Service, BP-410E, February 1966 (rev. Feb. 2003), cited in Eberts, op. cit. supra note 184, footnotes 23 and 131. [2013] STILL COLONIZING 157 ! marrying out. Those children could not pass their status on to their own children unless the other parent of those children was also a status Indian.
Sharon McIvor, of the Lower Nicola Band of British Columbia, and her son Jacob Grismer, challenged the preference for male parents in the pre-1985 Indian Act, winning a partial victory.198 Although the trial court had been prepared to find unconstitutional the whole history of the Act’s preference for the male parent, the Court of Appeal chose a much narrower ground for its finding, based on a legislative peculiarity called the “double mother” rule. Under the old Act, for a short period of time, a person would lose Indian status at 21 if both his mother and his grandmother had been non-status women who had gained status by marrying a status male. The BC Court of Appeal considered this to be discrimination against the child of a woman who lost status by marrying –out, as that child had been deprived of status right away, and the child with the “double mothers” had had one additional generation of opportunity to secure status.
2013 CanLIIDocs 114 Following this convoluted, and highly unpopular, ruling by the BC Court of Appeal, the government of Canada responded with a small legislative amendment. 199 It permitted the grandchildren of women restored to status by Bill C-31 to be registered as Indians with only one Indian parent. The “second generation cutoff” was, in effect, dropped down one more generation for those children. It is estimated that up to 45,000 children could benefit from this amendment.200
The two-parent rule installed by Bill C-31 has had another substantially negative effect on the ability of persons to be registered as Indians. The government interprets the two-parent rule to require that the identities of both a child’s parents be known, and their Indian status confirmed, before it will register
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 198 McIvor v The Registrar, Indian and Northern Affairs Canada, 2007 BCSC 827 and 2007 BCSC 1712, reversed in part by McIvor v. Canada (Registrar of Indian and Northern Affairs) 2009 BCCA 153, leave to appeal to SCC denied 11.05.2009 SCC Case Information Docket 33201, 2009.11.05 online: Supreme Court of Canada,
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The two-parent rule, like its predecessor barring women from conveying status, are government rules that have been applied to limit and reduce the population of registered Indians in Canada. These rules are not consistent with the kinship practices of many Indigenous peoples; children who would be accepted as members by a First Nation could well be excluded by the statutory rules. If a First Nation choses to have its own membership code, which is an option under the Indian Act, Canada will not provide any per capita funding to that Nation for anyone who is not considered a registered Indian under Canada’s rules. There is, in other words, a fiscal punishment for inclusiveness.
In the long term, if a First Nation ceases to consist of Indians who are registrable or registered under Canada’s rules, it will cease to be entitled to its reserve, and the reserve will revert to the Crown.202 What Canada could not accomplish by enfranchisement, namely the reabsorption of Indian reserves, it is still trying to accomplish by means of the desk murder of registered “Indians”. Narrow the definition to the vanishing point, and First Nations’ claims under the Indian Act to the only piece of territory left to them after the first great sweep of internal colonization will also be gone.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 201 See Michelle M Mann, Indian Registration: Unrecognized and Unstated Paternity (Ottawa, Status of Women Canada, June 2005), executive summary v-vii. 202 The Act defines Indians as those registered under the Act, and provides that reserves are for the use and benefit of Indians. [2013] STILL COLONIZING 159 ! CONCLUSION
I have tried to demonstrate here that colonization is not a feature of Canada’s past, but continues with vigour in the present day. While we now have explicit constitutional protections of Indigenous rights, and specific instructions from the Supreme Court of Canada that the Crown must behave with honour towards Indigenous peoples, enforcing these obligations is extremely difficult in practice. What is really required is that Canada renounce its colonizing ways, and embrace a new approach of partnership and true reconciliation with Indigenous peoples. I believe that one way of signalling such a change is for Canada to accept unreservedly the provisions of the UN Declaration on the Rights of Indigenous Peoples and to act in accordance with it, in both its policies and its administrative practices. Canada has refused to give that ungrudging endorsement up to now, characterizing the Declaration as aspirational, and non-binding203because of its concerns that the Declaration gives Indigenous peoples too much power204. The degree of power given in the Declaration is only a problem to a state that remains determined to pursue its old agenda of internal colonization. Two hundred and fifty years after the issuance of the Royal Proclamation of 1763, it is not too early 2013 CanLIIDocs 114 to signal the end of Canada’s colonial era.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 203 Statement of Canada, op cit supra, note 6. 204 Neve and Benjamin, op cit supra note 9, identify the Declaration’s several requirements of the full, prior and informed consent of Indigenous peoples to proposed government action as the source of Canada’s concern about the instrument. ! ! The Development of an Aboriginal Criminal Justice System: the Case of Elsipogtog
Don Clairmont*
INTRODUCTION
This paper focuses on the development of a comprehensive community-based Aboriginal criminal justice system in Elsipogtog New Brunswick, the apex of which has been its Healing to Wellness Court (HWC) which became operational in 2012. Initially the authoritative and policy context for Aboriginal Justice which facilitated this emergence is examined. Subsequently, the local Elsipogtog context, a decade- long struggle for social order is considered, primarily from the perspective of policing. The third section deals specifically with the emergence of the HWC, its 2013 CanLIIDocs 114 special features and challenges for Aboriginal justice.1
I. AUTHORITATIVE AND POLICY CONTEXT
The signal events in the past 30 years that have shaped the context for justice possibilities for Aboriginals in Atlantic Canada have been (a) the Constitution Act, 1982 (“the existing Aboriginal and treaty rights of Aboriginal peoples of Canada are hereby recognized and affirmed”);2 (b) the 1989 report of the Hickman Inquiry on the Wrongful Prosecution of Donald Marshall Jr. (bearing most specifically on the Mi’kmaq in Nova Scotia but having rippling effects throughout Atlantic Canada);3 (c) the 1996 Royal Commission on Aboriginal Peoples (RCAP) report, Bridging The Cultural Divide, which laid out a revitalizing agenda for Aboriginal justice in Canada;4 (d) the Supreme Court of Canada’s (SCC) 1999 Gladue decision which was a culmination of earlier court decisions and sentencing policies and emphasized the unique considerations that should be taken into account by judges when
* Don Clairmont, BA, MA (McMaster), PhD (Washington at St. Louis), is Professor Emeritus and Director of Atlantic Institute of Criminology, Department of Sociology and Social Anthropology, Dalhousie University. 1 This paper draws heavily upon the eleven reports completed by the author between 2003 and 2012 which dealt with justice programs and initiatives in Elsipogtog and with the initiatives responding to the pervasiveness of the threat there of Fetal Alcohol Spectrum Disorder (FASD). 2 Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s.35. 3 Province of Nova Scotia, Report of the Royal Commission on the Donald Marshall Jr Prosecution. By A Hickman (Halifax: Queen's Printer, 1989). 4 Canada, Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada (Ottawa: Supply and Services, 1996). [2013] THE CASE OF ELSIPOGTOG 161 sentencing Aboriginal offenders;5 (e) the SCC’s 1999 rulings in the case of Donald Marshall Jr’s conviction for illegal eel fishing (a regulatory conviction whose overturning by the SCC had profound effects for Aboriginal economic development and Aboriginal regulatory governance, attacking the roots of First Nations’ (FN) social problems).6
The Hickman / Marshall Inquiry impacted most directly on Nova Scotia but its ramifications were important as well in New Brunswick and PEI. The three Royal Commission commissioners determined that the wrongful prosecution of Marshall in 1971 was directly a function of the fact that Marshall was Aboriginal and that Nova Scotia’s justice system had been “racist and two-tiered”, a damning indictment by respected, mainstream judges. The Inquiry’s recommendations were wide-ranging, extending well beyond redress for Marshall and Aboriginal issues to the organization of policing and prosecutorial services in Nova Scotia and advancing new policies to respond to the problems of disclosure, wrongful prosecution and political interference. The Inquiry has had a profound impact on issues of Aboriginal 7 justice in Nova Scotia generating initiatives such as restorative justice programs, 2013 CanLIIDocs 114 and regular provincial court sittings on the largest FN, Eskasoni; currently, a wide range of province-wide Aboriginal justice services are provided through the Mi’kmaq Legal Support Network (MLSN) which may well be the most effective and well-established multi-FN, Aboriginal justice programming in Canada.8 The Inquiry’s report was generally seen as progressive by First Nations and, overall, was favourably received by the Union of Nova Scotia Indians which emphasized that “We agree with the principle that change must be community-based and, in implementing a justice system on Mi’kmaq communities, it will require the active involvement of community members. A broad base of community acceptance and community support are essential for any initiative to succeed”.9 The Inquiry’s recommendations have mostly been implemented; indeed, the justice services provided by MLSN in some ways have gone well beyond them. A key factor in this progress has been the Inquiry’s recommended Tripartite Forum on Native Justice whereby high-ranking federal, provincial and Mi’kmaq representatives meet regularly to monitor current justice initiatives for the FNs and consider new ones.
5 R v Gladue, [1999] 1 SCR 688 [Gladue]. 6 R v Marshall (No 1) [1999] 3 SCR 456, and R v Marshall (No 2) [1999] 3 SCR 533. 7 It was recommended that, as in the Mohawk FNs of St. Regis and Kahnawake, there should be established a “Native Criminal Court’ as a 5 yr pilot project incorporating the following elements – a) a Native JP under section 107 of Indian Act to hear cases involving summary conviction offences committed on reserve; b) diversion and mediation services; c) community work projects to provide alternatives to fines and imprisonment; d) aftercare service on reserve; e) community input into sentencing where appropriate; f) court worker services. 8 Don Clairmont & Jane McMillan, “The MLSN and Future Directions in Mi’kmaq Justice”, (Tripartite Forum on Native Justice, Department of Justice, Nova Scotia, 2006). 9 Union of Nova Scotia Indians, Mi’kmaq Response to the Report of the Royal Commission of the Donald Marshall Jr. Prosecution, (Union of Nova Scotia Indians, February 21, 1990).
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The Tripartite Forum launched in 1991 continues on and has recently spawned the multi-year “Made in Nova Scotia” treaty process.
The Marshall Inquiry advanced – as did most, but not all, such Canadian inquiries on Aboriginal justice issues between 1985 and 1992 – an agenda oriented to greater engagement and decision-making on the part of Aboriginal people within a more progressive mainstream justice system: “We agree that some degree of control should be accorded to Native people in respect of their institutions of justice. A Native Criminal Court is one way to return to them some degree of control over Native justice.”10 The underlying ethos of the Marshall Inquiry and its recommendations might best be described as focused on “fairness and integration”. The vision and the accompanying agenda were to eliminate racism, reduce legacy effects (e.g., the impact of the IRS experience) and secure the more satisfactory inclusion of Mi’kmaq people in mainstream society. As the Commissioners emphasized they were not proposing “a separate system of Native laws but rather a different process for administering on reserve certain aspects of the criminal law”. In their view Aboriginals should be so empowered “Because they are Native” 2013 CanLIIDocs 114 (Hickman, p168),11 having a history and culture prior to colonization, and could generate successful measures for resolving disputes. In a modest way the Inquiry’s approach had “legs” that could go significantly beyond simple fairness and integration. Also, while the recommendations focused on the criminal justice sector there were aspects that referred to family justice issues and the general use of alternative dispute resolution (ADR) in civil and regulatory (e.g., band bylaws) matters; clearly these justice issues have become more salient in Aboriginal society over the past two decades.
In 1996, at a general meeting of Nova Scotia FN chiefs, there was consensus that, given the realization of the gist of the 1989 Marshall recommendations, the appropriate agenda for Aboriginal justice services in Nova Scotia, going forward, should be that advanced by recently concluded RCAP hearings. In the RCAP analyses and recommendations prominence was given to “autonomy and difference” through a set of arguments , namely (a) the mainstream criminal justice system (CJS) was imposed, alien and ineffective for Aboriginal peoples; (b) treaty rights to develop alternatives exist, and (c) community controls would be appropriate given the treaties, cultural differences and pragmatic imperatives. The RCAP agenda called attention to two additional points that are salient in considerations of Aboriginal justice in general, namely (a) the possible importance of transcending community-specific justice programming to construct tribal or multiple-FN, partnered justice services in order to achieve cost efficiency and better cope with conflicts of interest and favouritism, and (b) the importance of justice segments other than the criminal sphere in order to effect more culturally appropriate and need-specific justice services (e.g., family justice and regulatory or
10 Supra note 3 at 167. 11 Supra, note 3 at168.
[2013] THE CASE OF ELSIPOGTOG 163 band-initiated administrative justice initiatives). RCAP discussed jurisdictional and collaborative issues at length with respect to both law-making and administration of justice and, in arguing for significant Aboriginal rights in both areas, differentiated between core and peripheral concerns; core concerns, defined as crucial to Aboriginal culture and society and not profoundly impacting on mainstream society, were the areas where, in the RCAP argument, significant Aboriginal autonomy could be exercised. But while the justice system and policing were deemed to be core-relevant, the RCAP position was that in these segments there would be only modest difference vis-à-vis mainstream society. It was underlined that perhaps some but certainly not all laws enacted in Aboriginal nations will be criminal laws; indeed considerable emphasis was given to the regulatory and family spheres of justice.12
Family justice, it was argued, would be more likely than criminal justice to be a jurisdictional site where Aboriginal values and practices might yield substantially different justice laws, policies and practices. Having an ethos of “difference and autonomy”, then, RCAP directed attention to where constitutional rights, cultural differences and circumstances could lead to Aboriginal 2013 CanLIIDocs 114 administration and jurisdiction in justice matters. Interestingly, though, the RCAP commissioners expected that whatever the level of parallelism in justice matters, there would only be minor differences in the criminal justice field were the RCAP position to be accepted by Government and Aboriginal peoples. Thus, there is much commonality in the Marshall Inquiry and the RCAP perspectives on Aboriginal criminal justice despite their different premises. Both suggest that significant Aboriginal criminal justice initiatives are required but can be accommodated within the mainstream justice context. In the RCAP instance it was acknowledged that standards of effectiveness, efficiency and equity may require a stronger cohesion of FN identity that transcends band affiliation; certainly in many circumstances a province or sub-province -wide system is being advanced; that position was implicitly adopted in the Marshall Inquiry.
The other two signal turning points highlighted above sprang from two decisions (including related judicial clarifications and subsequent policy imperatives) of the SCC in 1999, one dealing with criminal and the other, regulatory justice. A major SCC decision and entailed policy directive announced in 1999 concerned the Gladue case where the conviction and incarceration of an Aboriginal person was successfully challenged on the grounds that more attention in sentencing should have been paid to the attenuating factors associated with the unique legacy of the Aboriginal experience in Canada which has long been associated (and continues
12 Writing on this for the Royal Commission, Peter Hogg and Mary Ellen Turpel, suggested that dispute resolution in the following areas should always lie within the exclusive territorial jurisdiction of Aboriginal nations: the management of land; the recognition of activity on the land, including hunting, fishing, gathering, mining and forestry; the licensing of businesses; planning, zoning and building codes and environmental protection. [PW Hogg & ME Turpel, “Implementing Aboriginal Self-Government: Constitutional and Jurisdictional Issues” (1995) 74 Can Bar Rev, 187].
164 UNB LJ RD UN-B [VOL/TOME 64] to be) with a very highly disproportionate level of incarceration.13 The policy called for judges to ensure that Aboriginal offenders being sentenced were recognized as such and that special Gladue reports be submitted indicating the salience of the Aboriginal legacy, if any, in relation to the offence before the court. This SCC imperative has been adhered to most strongly in Ontario where there are several designated Gladue courts and where the applicability of the Gladue policy has been, in principle, extended to bail, another point at which a person’s freedom from incarceration is at stake. Elsewhere in Canada, the Gladue policy has been much less implemented if implemented at all. Canada-wide visits to courts dealing with Aboriginal offenders by this writer in 2008 and 2009 found that there were few specially designated Gladue reports produced in any criminal court, that most judges left the determination of whether a formal Gladue report should be prepared to the crown prosecutor, and especially to the defence counsel, and that, generally, Aboriginal probation officers and court workers were presumed to deal with the Gladue issues in their regular court roles. Field observations suggested that some FN justice providers themselves may not fully appreciate the significance of the Gladue decision since they may assume they have already been taking the Aboriginal legacy and other factors into account in their dealings with specific offenders. But Gladue is 2013 CanLIIDocs 114 important for directing attention to alternatives to incarceration and for a better appreciation of how legacy, in terms of an offender’s personal history and social circumstances, links up with offending patterns. The emphasis too is on having a holistic approach, avoiding custody if possible and providing access for the offender to treatment programs and other beneficial social services.
In Atlantic Canada there have been formally designated Gladue reports submitted at sentencing for Aboriginal offenders only in Nova Scotia and not always even there; the Gladue reports have been prepared for the court by the Aboriginal justice services provider, MLSN. Justice authorities in New Brunswick and PEI have considered requiring formal Gladue reports at sentencing but thus far none have taken place. Interestingly though the New Brunswick Minister of Justice in 2009 indicated, in response to a preliminary Elsipogtog suggestion for an HWC, that he was considering establishing a Gladue court in the province (i.e., something along the lines of the Ontario Gladue courts though perhaps having a “circuit court” feature). And in PEI, there have been “sentencing recommendation circles” where community inputs into sentencing have been received.14 In New Brunswick, under the auspices of NBLA, Elsipogtog had an Aboriginal duty counsel for roughly seven years from 1998 to 2005, and since 2009 has had the services of a defence counsel specifically charged with handling Aboriginal cases and related matters (in both instances the services were provided to specific other FNs as well).
13 Supra note 5. 14 There was a full-fledged sentencing circle held on November 2007 in PEI. There were 19 participants including the trial judge and other key CJS role players. Since that time when judges have requested a sentencing circle, the participants have been the parties to the offence, the Aboriginal circle facilitators and, occasionally, other service providers but not the key CJS officials. The written recommendations of the circle are sent to the court for its consideration.
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The SCC’s 1999 decisions and recommendations on the Marshall eel fishing case has had a major impact in Atlantic Canada on Aboriginal economic development, supporting an Aboriginal right to earn an average living from commercial fishing and leading to the provision of funds for the purchase of fishing licenses and equipment.15 They have also had implications for band governance since they created a situation where it has become more important for the FNs to exercise their governance capacity both in convincing members to adhere to the agreements entered into by the band, whether with governments or the private sector, and to effectively be part of any required enforcement. In essence, then, the SCC’s 1999 decision has reinforced the RCAP position that the regulatory area of justice would be a major, growing focus of Aboriginal justice as Aboriginal rights are fleshed out. This evolution builds upon the fact that increasingly FNs in Canada have been developing a dispute resolution capacity which appears essential to sustain effective self-government.16
While Aboriginal fisheries activities facilitated through Department of 2013 CanLIIDocs 114 Fisheries and Oceans (DFO) programs have preceded the SCC’s Marshall decision, there is little doubt that a qualitative change occurred as a result of it, especially in Atlantic Canada. A DFO official reported in 2006, “that [since 2000 in Atlantic Canada] more than 1000 FN people are employed in an orderly fishery and hundred more fisheries-related jobs have been created. Unemployment has dropped 4% (in absolute terms) from 2000 and fishing licenses held by FN people have generated economic return of roughly $41 million in 2004 or $4000 per household, an increase of more than 300% from the return generated from licenses held in 2000”17 A spokesperson for the Atlantic Policy Congress of FN Chiefs, interviewed on the same news item, noted that, “the money has had a positive effect on Aboriginal communities. Our communities have a new sense of hope. It is not a money thing. It’s a whole mindset. And it has fundamentally changed our communities forever and that is really good”.18
While the fisheries agreements signed with DFO did not live up to expectations in many FN communities and certainly did not readily yield the “moderate livelihood” that the SCC decision sanctioned, they have apparently often produced the changed mindset referred to by the APC spokesperson above,
15 Supra note 6. 16 According to the federal Department of Justice, there were approximately 89 community-based agreements with a reach of 451 communities as early as 2005. The Department stated that it was working with INAC and the Aboriginal Justice Directorate to develop projects and resources to support self- government capacity building in the local administration and enforcement of Aboriginal laws separate to the implementation phase of self-government negotiations (Clairmont and McMillan, op.cit). 17 Mail Star (February 27, 2006). 18 Ibid.
166 UNB LJ RD UN-B [VOL/TOME 64] generated funds for the bands to provide needed social and recreational programs, and allowed for local leaders to organize their fisheries in such a way as to distribute the work opportunities to fish, thereby spreading the benefits and E.I. eligibility. There has been a multiplier effect in a number of FN communities, including Elsipogtog, creating more small businesses and more partnerships with mainstream and other FN businesses. The economic developments have reinforced the significant expansion of FN government. The combination of economic developments, expansive government activity, and optimistic mindset usually can be expected to impact positively on the root causes of social malaise, crime and other, related problems. Still such development is a work in progress. The fishing industry as a growth engine has declined in recent years and Elsipogtog for example remains economically depressed with a large proportion of the population dependent on social assistance, and a seasonally adjusted unemployment rate of 65% in 2009 and 2010.
Overall, then, the five signal events discussed above have generated a very positive social context for the development of Aboriginal justice activity especially 2013 CanLIIDocs 114 at the community level, and it is fair to conclude that they have generated exciting times in Aboriginal justice across Canada as First Nations and other Aboriginal groupings seek to realize the promise of their constitutional rights and the new federal and provincial policies, in developing justice programs that respond to their own needs and wishes as their societies evolve in terms of self-government. The form and substance of that Aboriginal justice activity has been channeled via the three broad justice developments discussed below.
II. THREE PIVOTAL THEORETICAL AND POLICY DEVELOPMENTS
There are three theoretical and policy developments that merit special attention for Aboriginal justice and that have had much relevance for the creation of the criminal justice system in Elsipogtog, namely (a) the research and policy literature on the foundations for Aboriginal self-government in Canada; (b) the continued evolution of therapeutic jurisprudence (e.g., the problem-solving court, extra-judicial sanctions), and (c) the increased attention to restorative justice and practices throughout society.
(A) RESEARCH AND POLICY LITERATURE
Belanger and Newhouse reviewed the salient literature of the past thirty years and commented on the expansion of the meaning of Aboriginal self-government (i.e., far more expansive and substantial than ‘communities have municipal-like powers’), noting that Aboriginal self-government now is more a question of how rather than why.19 Interestingly, the courts have consistently rejected claims of analogous rights
19 Belanger Yale & David Newhouse, “Emerging from the Shadows: The Pursuit of Aboriginal Self- Government to Promote Aboriginal Well-Being” (2004) 24 J Native Studies 1.
[2013] THE CASE OF ELSIPOGTOG 167 to Aboriginal programs and services (e.g., Gladue ‘rights’) on behalf of advocates for Black Canadians.20 Court rulings have contended that Aboriginals are in a unique position vis-à-vis the justice system not because they have formal self-government rights but for their combining two considerations, namely overrepresentation in custody and a distinctive cultural heritage. The uniqueness of the Aboriginal position is reflected in the comment of one interviewed crown prosecutor that “with Aboriginals there are different issues for court officials such as me”. The Aboriginal uniqueness is essentially a consensus view within the Canadian justice system but there has long been significant divergence on its underpinnings. In 1963 the famous
Hawthorn Report, focused on Aboriginal rights in British Columbia, concluded that the most appropriate way to conceptualize Aboriginal rights in Canada would be in terms of a “citizenship plus” concept, that is, all the rights of ordinary citizens plus other rights related to treaties and to their exercise of governance prior to the settlements of Europeans.21 A large and growing academic and policy literature appears to have reached a consensus that self-government is appropriately based not on cultural differences or over-representation in prisons but 2013 CanLIIDocs 114 on the pre-settlement exercise of governance.
While the SCC has yet to rule directly and definitively on the question of Aboriginal self-government, its decisions on other Aboriginal rights issues have undeniable consequences for any future ruling. Murphy traced the key court decisions from the Calder case in 1973 through the Constitutional Act, 1982 to Sparrow and Sioui in early 1992 to Van der Peet in 1996.22 He argued that the SCC’s choice thus far to anchor the legal recognition of Aboriginal rights in the distinctive character of Aboriginal cultures (their Aboriginality) constitutes a serious diminishment of the legal and political status of Aboriginal peoples. Murphy contended that scholars and activists increasingly have based their position on Aboriginal self-government claims not on Aboriginals having a distinctive culture but on their being the original sovereigns in their traditional territories. In Murphy’s view, the appropriate context is the analogy of “national minorities living within the boundaries of multinational states, grounding claims on self-government in their authority as separate and independent peoples forming their own political community and being neither derivative nor subordinate to the self-governing authority of the more powerful national communities with whom they share a
20 Michelle Mann, “Common Ground: An Examination of Similarities Between Blacks and Aboriginals”, in Aboriginal Peoples Collection (CA, 2009) 29. 21 Hawthorn Report, A Survey of Contemporary Indians of Canada (Ottawa: DIAND, 1963). 22 Michael Murphy, “Culture and the Courts: A New Direction in Canadian Jurisprudence on Aboriginal Rights”, (2001) XXXIXV: 1 Can J Political Science; Calder et al v Attorney-General of British Columbia, [1973] SCR 313; supra, note 2; R v Sparrow, [1990] 1 SCR 1075; R v Sioui, [1990] 1 SCR 1025; R v Van der Peet, [1996] 2 SCR 507.
168 UNB LJ RD UN-B [VOL/TOME 64] state”.23 He advanced a model of self-government rooted in a normative authority claim to the design, delivery and administration of selected services and institutions in an urban or rural setting or to a process of gradual capacity building in specific sectors such as education, resource extraction or small business development. SCC rulings clearly have stated that the Crown has ultimate sovereignty (though it must meet a ‘strict’ constitutional test to justify its actions) so the relation between Crown and Aboriginal peoples established by this position is not one of equals. Still, it appears that even a SCC interpretation, congruent with the model of national communities with a substantial degree of autonomous self-governing authority, would arguably seem very much like the approach that is already part of the official federal policy for the recognition and negotiation of Aboriginal self-government, and quite a reasonable fit to RCAP recommendations, as well as reaching back to the Hawthorn “citizenship plus’” model.24
Issues of “rights’ and “alternatives” dominate the literature on Aboriginal justice practices, not evaluation of the initiatives per se. Apart from some assessments featuring sentencing circles and singular initiatives such as Hollow 2013 CanLIIDocs 114 Water, formal evaluations of specific initiatives have tended to focus on the offender and conventional CJS measures of success, and to be justificatory – i.e., “mainstream CJS programs do not work for us but Aboriginally administered ones do”.25, 26 Two major themes have emerged from examining Aboriginal initiatives, namely (a) the Hollow Water generic position which emphasizes “we want to focus on those justice issues that matter the most to our communities and not just handle Aboriginals’ minor crimes for the mainstream CJS”; (b) the broad use of restorative justice or practices within and beyond criminal justice issues to deal with conflict for reasons of feasibility and necessity (e.g., the opportunities provided by the small scale society of FNs, the extensive social problems, and the absence of checks and balances in governance). Underlying the Aboriginal arguments have been two major premises, namely rights (to administer and to some degree do things differently) and differences (a different culture / world view reworking mythology and cultural heritage in today’s understandings). The widespread Aboriginal view appears to be
23 Ibid at 113. 24 Throughout Atlantic Canada partnership agreements have become the vogue. Nova Scotia, in addition to the Tripartite Forum established in 1991 and current engagement in collaborative planning over a variety of institutional areas, has had a treaty-making process underway for three years (the “Made in Nova Scotia” negotiations). In PEI there has been a partnership agreement since 2007, essentially a tripartite agreement (federal, provincial and Aboriginal) which provides for the parties to work cooperatively on a variety of matters, including the five “tables” of health, education, economic development, justice and child and family services. While not formally a treaty-making process, it appears to be similar in a substantive sense. Thus far, the focus has been on the “education table” but the process ultimately could well result in significant changes in Aboriginal justice there. There is apparently a more embryonic but similar partnership process taking place in New Brunswick. 25 Barry Stuart, Building Community Justice Partnerships: Community Peacekeeping Circles (Ottawa: Department of Justice 1999). 26 Aboriginal Corrections Policy Unit, The Four Circles of Hollow Water. (Ottawa: Supply and Services, 1997).
[2013] THE CASE OF ELSIPOGTOG 169 that effective Aboriginal justice services would likely spawn a growth of beneficial restorative practices throughout Aboriginal society.
(B) THE PROBLEM-SOLVING COURT
Over the past two decades, there has been a very significant growth in the United States and Canada in a social justice movement captured in the phrases “therapeutic jurisprudence” and “problem-solving court” which features an integrated health / treatment and justice system approach to dealing with crime, and often is seen as getting at the roots of certain criminal activity. The problem-solving court links justice and treatment for persons committing criminal offences who are addicted to drugs and / alcohol or who have manageable mental health problems. It is a voluntary alternative to regular court processing and typically the accused person must plead guilty and commit to a closely monitored and lengthy in-depth treatment program. Usually the offender receives bail and avoids incarceration if he or she adheres to that commitment. The movement has spawned drug treatment courts, mental health courts, FASD courts, and other substance abuse courts. Generally, the 2013 CanLIIDocs 114 increasingly widespread restorative justice movement has been considered a kindred development. Social scientists have argued that the general perspective is itself a by- product of the evolution of citizenship from legal rights to political rights to social rights where in the social rights stage there is significant emphasis directed to taking into account the views and interests of all segments of society, especially those directly impacted by a designated policy.27 Given the evolution of Aboriginal rights and the strong constitutional and governmental acknowledgement of Aboriginal uniqueness, and given the fact that the problems targeted by the problem-solving courts (e.g., substance abuse) are particularly rampant among Aboriginal people in Canada (e.g., the colonialist legacy), this broad social movement would seem very salient for Aboriginal people and as noted below the drug treatment court (DTC) definitely has become a template for Elsipogtog leaders.
The first formally designated DTC was established in Florida in 1989 and by 2007 there were approximately 1800 in the USA.28 In Canada the first DTC was established in Toronto in the late 1998 and ten years later the DTC model had been implemented in other metropolitan jurisdictions such as Vancouver, Ottawa, Winnipeg, Edmonton, Calgary and Saskatoon. These courts usually deal with serious offending where the adult offender voluntarily pleads guilty and opts for a treatment program which is very demanding (e.g., regular individual and group counseling, urine tests for drug use, bi-weekly appearances in court etc) and of significant length (seven months to well over a year). There are variants of this DTC model where youth are involved and also where the offending is of a less serious
27 Talcott Parsons, Politics and Social Structure (NY Free Press, 1965). 28 US, Washington: Congressional Research Service, Drug Courts: Background, Effectiveness and Policy Issues for Congress by Celinda Franco (2010).
170 UNB LJ RD UN-B [VOL/TOME 64] nature and the program parameters accordingly are different (e.g., pre-charge, taking responsibility but not required to plead guilty, shorter program duration etc). Participation in the program enables the offender to avoid incarceration (or a record in the minor version) and to receive considerable and coordinated rehabilitative attention. The problem-solving court in the USA is popular as well in “Indian Territory” where it is called a “healing to wellness court” and more open to cultural and community input (i.e., incorporation of Aboriginal symbols, traditional treatment options, and engagement of elders). The first HWC was established in 1997 and there are now roughly 75 such courts in the USA, a handful of these characterized as mentor courts for other interested Aboriginal communities.29 In Canada the only formally designated drug and alcohol treatment court among Aboriginal people is the Wellness Court in Whitehorse which was initiated in 2008 in a collaboration between the territorial government and FN chiefs of the Whitehorse area; the clients are primarily Aboriginal (i.e., 75%).
The DTCs, the vanguard problem-solving court, emerged as a possible solution to the strong association between high crime levels and substance abuse 2013 CanLIIDocs 114 both directly (i.e., addicts cause much repeated crime) and indirectly (i.e., gang violence for control of the illicit drug business). The core features of the problem- solving courts in general remained the same over the past decades (e.g., the DTC court team including judge, prosecutor, defence counsel and treatment coordinator, the court dynamics especially the important interaction between the judge and the offender, and the lengthy out-patient treatment period). The DTCs and HWCs have achieved significant positive success. In most evaluated programs in North America, roughly 20% of the eligible offenders have either graduated from the program or have been less involved in crime as a result of their participation.30 There has been much variation in success by age, race/ethnicity and gender but two factors have been identified by the more successful clients as crucial to their success, namely the fact that there is close monitoring for compliance with swift consequences, and that there is direct contact between the judge and the offender.31 There has been some evolution in the approach of these problem-solving courts too, as harm reduction (e.g., tolerating less destructive drug use) has increasingly replaced total abstention as a program strategy. There continues to be significant public controversy32 concerning the priority to be given to these types of offenders (e.g., the expensive, intensive treatment) and to what some refer to as the criminalization of addiction and mental illness. In Canada, the DTC versions of problem-solving courts are usually funded through the federal ministries of Health and Justice.33 A major equity
29 Tribal Law and Policy Institute, Tribal Healing to Wellness Courts (West Hollywood: 2009). 30 Supra note 28, and J Latimer, K Morton-Bourgon, & J Chretien, A Meta-Analytic Examination of Drug Treatment Courts: Do they Reduce Recidivism? (Research and Stats, Department of Justice Canada 2006). 31 Supra note 28, and Susan Goldberg, “Judging for the 21st Century” (National Judicial Institute Ottawa, 2005). 32 D Werb, et al, “Drug Treatment Courts in Canada” (2007) 12:2 HIV/Aids Policy and Law Review. 33 Don Clairmont & Tammy Augustine, “Advancing the Strategic Action Plan in Elsipogtog” (Atlantic Institute of Criminology: Dalhousie University, 2009).
[2013] THE CASE OF ELSIPOGTOG 171 challenge for Canada is how to make these kinds of justice programs available to citizens living outside the large urban areas where small populations spread out over large areas are deemed to represent a major obstacle to a cost-effective, problem- solving court.
(C) THE RESTORATIVE JUSTICE MOVEMENT
Another social movement that has shaped the emergence of current styles of Aboriginal criminal justice has been restorative justice (RJ) / restorative practices (RP), which have become especially prominent over the past 25 years in “Western” societies rooted in common law.34 These alternative justice developments have occurred in both mainstream and Aboriginal societies, and there have been many common issues arising in both these societal segments (e.g., the proper balance between being offender-oriented and victim-oriented, the limited services and reintegrating programs available to the RJ service providers, the benefits and challenges of community-based justice programs). It is generally held in the RJ literature that the approach fits well with Aboriginal traditions or at least the current 2013 CanLIIDocs 114 dominant interpretations of traditional Aboriginal practices. This view, in conjunction with the above analyses of Aboriginal rights and government policy, should be expected to foreshadow RJ’s extensive development in Aboriginal communities such as Elsipogtog.
While there is considerable unevenness in the extent to which RJ and RP have been implemented in the CJS and outside it, there is little doubt that RJ has increasingly become more entrenched in the CJS in Canada and other societies. RJ has been replacing Alternative Measures programming for young offenders and Adult Diversion programs for adults.35 Indeed, much research has been focused on the extent to which RJ has become institutionalized, that is, an accepted and vital dimension of the CJS. In Nova Scotia, for example, RJ programs delivered by 9 non-profit agencies are closely coordinated and fully funded (roughly $2.5 million per year) by the Department of Justice. The province-wide RJ service handles referrals from police and crowns and to a much lesser extent from judges (the court) and corrections. Fully one–third of all youth arrests are diverted to the RJ stream and several pilot projects are now guiding the extension of the service to adult offenders.
34 Bruce Archibald, “Democracy and Restorative Justice: Comparative Reflections on Criminal Prosecutions, the Role of Law and Reflexive Law”, (delivered at the 5th International Conference on Restorative Justice, Leuven Belgium, 2000). The RJ and RP terms are frequently used interchangeably but RJ better refers to alternative ways of dealing with the harm caused by crime and is linked to the CJS whereas RP refers to a general approach for reducing conflict, strengthening social relationships and building ‘community’. The circle, where ostensibly all participants have their views listened to and considered in the solutions, is the most well-known tactic employed in both (IIRP, World Conference, Toronto, 2008). 35 Don Clairmont, “Restorative Justice in Elsipogtog: a Decade of Progress” (Ottawa: Aboriginal Justice Directorate, 2012).
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The underlying premise of the RJ in Nova Scotia has been “some kind of RJ can be utilized with all offences and offenders”. Over the past decade the RJ program in Nova Scotia has clearly penetrated the CJS, passing well beyond the gate-keeping police-level of referring minor offences by first or second time offenders; the leading referral agents are increasingly the crown prosecutors and all CJS officials acknowledge that without the RJ option for repeat offenders and somewhat more serious offences, the CJS would be in a workload crisis.36 RJ has stronger roots now in law (the YCJA in 2003 and its subsequent judicial clarifications) and governmental policies, and is reinforced by kindred social movements in the justice field, such as ‘the problem-solving court”, not to mention developments in Aboriginal society in the use of sentencing circles. While it seems most advanced in Nova Scotia, and there is extensive RJ activity in Quebec, Alberta and the North, in most areas of Canada the RJ programs focus exclusively on youths and are operated by non-profit organizations with limited governmental funding.
Within its limits, RJ appears to have been a successful, efficient and effective justice strategy but at the same time, there is a growing view among some 2013 CanLIIDocs 114 of the leading RJ experts in Canada that the RJ movement has now stalled and requires fresh input of theory and policy, and new applications.37 The same judgment might be rendered with respect to Aboriginal justice circles and sentencing circles where there remains significant activity in the North and in Saskatchewan and Alberta but little evidence of development. Basically, the critics argue, RJ (and related alternative justice programs) remain largely a minor intervention (usually limited to just one short session per case, limited victim involvement, and with very infrequent referrals to psychological and other treatment services), and too closely linked to vagaries of the CJS referral agents. A major issue then has become how far can RJ go in the CJS? Can it deal effectively with serious crimes and problem repeat offenders? Will it become as extensively utilized with adult offenders in the absence of the supportive legal infrastructure that exists for youth programs such as the YCJA and encouraging associated SCC interpretations? Will the CJS and the community allow it do so? Does it and can it respond with equity, meeting the needs of special constituencies (e.g., age groups, the socio-economically disadvantaged, youths with behavioural problems, immigrant subcultures etc).
The limits of current RJ programming may be less crucial among FNs given that most Aboriginal RJ programming in Canada already includes adults and, more importantly, the specific RJ programs dealing with minor crimes may be just one dimension of a transformed justice system there. Sentencing circles, for example, have been rare in non-Aboriginal communities and are likely to remain so in light of their demands on resources and the views of judges as to their role
36 Don Clairmont, “Moving On To Adults: An Assessment of the Nova Scotia Restorative Justice’s Adult Pilot Project” (Halifax: Department of Justice, 2012). 37 Jeff Latimer et al, “The Effectiveness of Restorative Justice Practices: A Meta Analysis” (2005) 85 The Prison Journal.
[2013] THE CASE OF ELSIPOGTOG 173 responsibilities in sentencing, but in one form or another they continue in FNs. Other restorative ways of dealing with serious offences have been developing as in Hollow Water (Manitoba), Alexis FN (Alberta) and Elsipogtog. There also appears to be more potentially valuable use of RP in the Aboriginal communities. The use of restorative practices has been catching on in mainstream societies in schools and even municipal administrations such as Hull U.K.38 and Bethlehem, Pennsylvania. Examining the literature associated with these developments, one finds numerous references to the materials / literature on Aboriginal justice / healing circles, presumably a model for these mainstream initiatives. At present however there is in fact little RP programming in FNs but there have been some such developments (e.g., the Siksika FN in Alberta) and, in three of the Atlantic provinces, modest training programs have been initiated (though there is little evidence of significant actual implementation) presumably combining Aboriginal and Mainstream methods of conflict resolution in areas of band policy such as housing and economic issues.
III. THE ELSIPOGTOG CONTEXT: THE STRUGGLE FOR SOCIAL ORDER
2013 CanLIIDocs 114
CRIME, SOCIAL DISORDER AND POLICING
Elsipogtog, is home to the largest FN in New Brunswick, a Mi’kmaq community of 3000 residents and a band membership of 3300 in 2011. It is approximately 90 kilometers from Moncton, has had and continues to have a very significant level of social problems, including high underemployment, high levels of single parent households, and rates of serious violent crime and of substance abuse far greater than neighbouring mainstream towns and cities.39 For example, on average, over the past several years, “one of every seven adults in Elsipogtog between the ages of 18 and 33 has been either authorized by provincial health authorities to receive regular methadone treatment or regularly and illegally consumes addictive drugs (mostly prescription drugs), a rate minimally 25 times greater than in metropolitan Halifax, deemed by many as the “drug capital” of Atlantic Canada. At the same time, the community has an extensive Health and Social Services capacity, leads the province
38 Hull Municipality, Towards a Restorative City. (Hull: England, 2010). 39 Throughout the first decade of the 21st century, Elsipogtog, compared to neighbouring communities, had much higher annual rates of virtually all types of offences and police arrests, whether property crimes (e.g., break and enter, property damage), social disorder offences (e.g., mischief, public disturbance), administration of justice offences (e.g., breaches, failure to appear), and interpersonal / intimate partner and sexual crimes. Also notable, the level of arrests under the Mental Health Act was typically more than 5 times greater than in comparably populated nearby communities (Clairmont, 2005, 2008, and 2012). As will be discussed below only in more recent years – since 2008 – has there been an appreciable decline in property and violent offences though the rates in these and other arrest categories remains quite high in comparison to neighbouring communities.
174 UNB LJ RD UN-B [VOL/TOME 64] in its progressive justice programming, and has national renown for its Eastern Door program focusing on the prevention, diagnosis and treatment of FASD”.40
Elsipogtog then is a complex community where problems of crime and social disorder run deep but also where positive community-based initiatives have readily challenged the status quo, and with increasing, if mixed, success in recent years. Extensive research focused on the community context for the development of the justice system in Elsipogtog over the past decade has dealt with the political economy, population and educational trends, police statistics on offending, the pervasive drug and alcohol abuse, and the community capacity to support justice programming (for references see the several Clairmont reports noted). In regards to political economy, there have been significant economic developments over the past decade (especially the fisheries as noted above) but underemployment is still considerable and particularly affects young adult males, while politically there has been stability in recent years that has been valuable for the extension of justice programs. Key aspects of the population and education data have been the modest growth in population and post-secondary education (PSE), and the significant 2013 CanLIIDocs 114 differences in migration and PSE by gender (i.e. females more than males in both instances). The police data over the past decade reveal very interesting patterns, namely that Elsipogtog has had for over a decade a very high level of crime and social disorder but that property and social order offenses peaked in 2008 and statistics from 2010 and 2011 suggest that personal violence has also now begun to decline significantly. Data on the considerable, continuing level of substance abuse indicate the potential value of the HWC. Data on community capacity indicate that Elsipogtog has built up a slew of services relevant to, and providing support for, effective intervention through healing circles, sentencing circles and now a problem- solving court approach (i.e., the HWC).41 Significant collective efficacy, a requisite for a community-based justice system, has been achieved but the short term nature of much of the funding for these community services / programs and sometimes the shortfall in the training of their staff are realistic limits on much of the community capacity.
40 Don Clairmont, “Community-based Policing in Aboriginal Communities” in Mahesh Nalla & Graeme Newman, eds, Community Policing in Indigenous Communities, (University of Michigan : CRC Press, 2013). The section here on the background for Elsipogtog policing is a significant revision of that article. 41 The hub for the services and programs most directly salient for the criminal justice system is the Health and Wellness Centre housing core medical staff (1.5 fte doctors and 9 nurses), a Methadone program, Alcohol and Drug program, Victims’ Assistance, FASD and related problems’ diagnosis, treatment and prevention, a Mental Health service and a Parent-Child Assistance program. Other services and programs include a Crisis Centre, Children and Family Services, and traditional dispute resolution and healing programs. These services and programs are staffed by roughly 50-55 fte role players. A recently released (2010-2011) survey and assessment of the Elsipogtog Health and Wellness Centre’s Services, Structures and Functions (Process Management Inc., A Survey of Elsipogtog Services. Elsipogtog, 2011) showed, comparing the 2009 survey to the 2004 study carried out by the same consultants, that there has been significant growth in services, client numbers, funding, accountability, and infrastructure across virtually all program areas; as well, the survey indicated an increase in community reception, trust and approval, across the different sectors of the Centre. Of course there are also many community services such as an elementary school, fire and ambulance services and so forth.
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Given the limits of “game-changing” externalities (e.g., the political economy, socio-cultural transformation) the challenge for social order in Elsipogtog has largely been to harness community and policing thrusts to facilitate an intensive and positive criminal justice system. RCMP community-based policing with its emphasis on problem-solving and in-depth cultivation of community partnerships, in conjunction with its continued commitment to professional-based policing, has played a significant role in facilitating an Aboriginal justice system there. How that has been accomplished is described below.
THE LARGER CONTEXT FOR POLICING IN ABORIGINAL COMMUNITIES
From the formation of the Canadian Confederation (1867) and the Indian Act (1876) until the 1960s, all institutionalized policing in Aboriginal communities was federal. As the contracted provincial police, except in the two most populous provinces (Ontario and Quebec), the RCMP was also responsible for all policing outside cities and towns and in select urban areas by special supplemental contract. The few 2013 CanLIIDocs 114 reserves within municipal boundaries were usually policed by the extant municipal police services. As the 1960s evolved and SCC decisions increased provincial jurisdiction over Aboriginal people both on and off reserve, major changes in the police organization and approach in Aboriginal societies began to occur, leading ultimately to the First Nations Policing Policy in 1991 and the subsequent FNP Program in 1992.42 The FNPP required greater Aboriginal involvement and partnership in policing in FN communities and also facilitated and encouraged, especially in Ontario and Quebec, the growth of self-administered, independent FN police services. It mandated a “community-based policing plus” strategy of policing, parallel to the “citizenship plus” conception of Aboriginal rights in Canada as rooted in treaties and protected in the Constitution Act of 1982. Most importantly, the FNPP mandated tripartite partnerships among federal and provincial governments and the FNs, not simply bilateral policing contracts between the two senior levels of government which had been the norm. This change, in conjunction with FNPP’s other central features, has led many researchers to identify Canada as the only country that has developed a comprehensive national policing approach for its Aboriginal peoples.43,44
42 Three central events have shaped Aboriginal policing in the modern era, namely (a) the withdrawal of the RCMP from regular policing in FNs in Ontario and Quebec announced in the 1960s; (b) Indian Affairs’ (DIAND) 1971 Circular 55 policy on policing Aboriginal communities which identified principles that should guide such policing (e.g., greater consultation and “ownership” by Aboriginals) and expanded the role for band constable policing services; (c) the FNPP in 1991 (Don Clairmont, “Ipperwash Inquiry, Aboriginal Policing in Canada: An Overview of Developments in First Nations” (Toronto: Ontario Department of Justice, 2006)). 43 Savvas Lithopoulus, “International Comparison of Indigenous Policing Models” (Ottawa: Public Safety Canada, 2008). 44 The three chief FNPP objectives are listed as (a) enhance the personal security and safety of FN communities; (b) provide access to policing that is professional, effective and culturally appropriate; (c)
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There have been distinct phases in the style of RCMP policing in Aboriginal communities, basically evolving from a subordination and colonialist model to one formally at least emphasizing integration and partnership. Until the 1960s, the RCMP approach effected “a broad policing mandate wherein officers carried out a wide range of tasks additional to conventional law enforcement (such as census gathering and linking people to governmental programs). Aboriginal persons engaged with the policing service were helpers and clients rather than colleagues or partners. The style of policing was community sensitive in a colonialist, paternalistic context where the RCMP officers worked closely with the Anglican and Roman Catholic churches operating schools and hospitals, the Hudson Bay traders and the appointed Indian Agents. Beginning after World War Two, but picking up steam in the 1960s, the old order was transformed as Aboriginals received the right to vote in federal elections, government bureaucrats assumed the dominant leadership role in providing services in Aboriginal communities, and the Indian Agent position was gradually abolished in favour of the empowered band council. The traditional, broader police role had some community-based policing features but it was thoroughly enmeshed in the assimilation policies of the federal 45 government in that colonialist context and did not employ Aboriginal members nor 2013 CanLIIDocs 114 acknowledge accountability to Aboriginals”.46
Aboriginal policing steadily if slowly became appreciative of cultural sensitivity and local priorities and the need for collaboration and partnership with Aboriginal peoples. The band constable system began in the mid-1960s and grew significantly over the next twenty years. Here, typically, the officers were local residents hired and paid for by the bands, modestly trained, appointed under RCMP warrant, in effect village constables under the guidance of the RCMP or provincial police to whom they turned over any cases involving the criminal code or offences under other federal or provincial legislation. In the mid-1970s, special Indian constables began to be hired directly by the RCMP (and the Provincial Police services in Ontario and Quebec) to complement the work of the credentialized, regular members. And, increasingly in the 1980s, some Aboriginal persons were recruited as full-time regular members into these services. Generally this evolution in policing was assessed positively by Aboriginal leaders who rated the successive steps as valuable enhancements. Nevertheless, evaluation studies also showed that they always wanted more, essentially an accountable, community-based policing service if not their own fully credentialized, self-administered service. Each advancement was also subsequently found wanting by Indian Affairs which focused on the continuing major public safety issues in FN communities, by a slew of increase the level of police accountability to FN communities (Public Safety Canada, “2009-2010 Evaluation of the First Nations Policing Program” (Ottawa: Public Safety Canada, 2010). 45 Nor did it generate significant trust among Aboriginal people. Few Aboriginals reported any abuse in the Indian Residential School system to the RCMP, an abuse that has been shown in both personal accounts and court materials to have been quite widespread (Marcel-Eugene LeBeuf, “The Role of the Royal Canadian Mounted Police During the Indian Residential School System” (Ottawa: RCMP, 2009)). The RCMP managers, along with the federal government and the church leaders have profusely apologized in recent years for their complicity in this approach to Aboriginal peoples and communities. 46 Supra note 42.
[2013] THE CASE OF ELSIPOGTOG 177 independent inquiries and commissions focused on policing shortcomings in specific cases, and by the mainstream police leaders themselves in their assessments of their effectiveness and lack of meaningful partnership with Aboriginal people;47 most strikingly, RCMP assistant commissioner Head concluded his 1987 in-depth, country-wide assessment of policing in Aboriginal communities48 with the warning “the RCMP will have to dramatically change the way it policies Aboriginal communities or it will soon find itself out of business there”.49
Since 1991 the FNPP has provided the framework for policing Aboriginal communities. “Its major principles and imperatives harkened back to the 1971 Circular 55 policy of Indian Affairs but incorporated as well contemporary approaches to policing such as community-based policing and current government acknowledgement of the constitutional and treaty rights of Aboriginal peoples to exercise as much self-government as is feasible in their communities. Policing in Canada’s Aboriginal communities faces much challenge, due to the combination of colonialist legacy (e.g., racism, dependency), scant economic opportunities in conjunction with the decline of traditional activities in the often off-the-beaten path locations, and a high level of need for and local expectation for the policing service. 2013 CanLIIDocs 114 Violent and property crime levels have been very high and the 24/7 local demand for policing has usually far exceeded the police resources available”.50 National surveys of police officers working in Aboriginal communities over the past fifteen years, whether in self-administered FN police services (referred to as SAs)51 , the RCMP or provincial police organizations, have consistently and increasingly identified “unsolvable social problems” as the major issue negatively impacting on their policing efforts.52
47 Cited in Supra note 42. 48 Robert Head, “Policing for Aboriginal Canadians: The RCMP Role” (Ottawa: RCMP 1989). 49 Supra note 40. 50 Ibid. 51 In 2011 there were 46 SA police services in Canada policing 190 Aboriginal communities. 38 of the 46 are in Ontario and Quebec where both the provincial government and its distinctive provincial police service strongly support and appear to prefer the self-administered FN policing arrangement. SA services in the rest of Canada are vulnerable for several reasons including competition from the RCMP. The RCMP – the contracted provincial police service in these regions – has emphasized its historic role in policing Aboriginal communities, and has officially declared such policing to be one of its four priorities as a police organization; in 2010 fully 8% of the roughly 20,000 RCMP officers were self-declared Aboriginal, about 3 times the percentage of Aboriginals among the RCMP’s policed clientele at the community level. 52 Rick Gill & Don Clairmont, “Socio-Demographic Survey of Police Officers Serving in Aboriginal Communities” (Ottawa: Public Safety Canada, 2008).
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POLICING IN ELSIPOGTOG: CHALLENGES FOR THE RCMP AND FOR THE COMMUNITY
The RCMP assumed full control of Elsipogtog policing in late 2002, replacing the Elsipogtog band constable service which had exercised a limited policing mandate and did not lay charges or process criminal cases through the provincial court. Since then the RCMP has gradually evolved a policing approach that combines strong professional enforcement with extensive community crime prevention programming. Most importantly, and more uncommonly, the local RCMP leadership has emphasized collaborative problem-solving with and accountability to Elsipogtog political leaders and community justice program staffers. An explicit strategy has been to effectively contain if not diminish the offending, responding swiftly and professionally to improve public safety while emphasizing crime prevention and participating fully in community efforts to get at the deep roots of social disorder. Arrests and charges increased in the years between 2003 and 2008 as the police complement increased and social order issues were prominent. Between 2008 and 2012 there was a sharp decline in actual incidents of break and enter, disturbing the peace, property damage, impaired driving and “failure to comply”(e.g., break and enters declined from 81 in 2008 to 23 in 2011). Interpersonal violence (e.g., assault, 2013 CanLIIDocs 114 assault causing, sexual assault) continued to increase until 2011 but have also fallen off very sharply since then (e.g. assaults declined 335 in 2010 to 124 in 2011 and sexual assaults from 22 to 5 during the same period).
In 2004-05 the RCMP reported that Elsipogtog had the highest crime rate among all RCMP detachment units in Canada. The sub-detachment, headed by a corporal, had a complement of five or six officers and it was basically absorbed in dealing with the offences (plus making many arrests under the Mental Health Act). The everyday approach to policing, by necessity as much as by choice from the police perspective, was the conventional, professional-based policing approach. The evolution in Elsipogtog policing since that time has seen more police officers (eight in 2006 and 13 now in 2011-2012), more Aboriginal officers (from 2 to 7 in 2011), an organizational change to a more independent, Elsipogtog-focused detachment status, and a staff sergeant in charge with much experience policing in Aboriginal communities who espoused the importance of communication, partnership and problem-solving. These changes were in significant part the result of strong community pressure on the senior RCMP management by the Elsipogtog police advisory committee. Its claims were accepted that public safety considerations and the need to get at the roots of the offending required these specific changes (e.g., 13 officers meant a police to population ratio of 1 to 240, a ratio much higher than elsewhere in Atlantic Canada).
In the early 2000s, before the RCMP sub-detachment was well entrenched in the community, there was a fair consensus among Elsipogtog leaders and activists in the justice field that “When we talk about justice, we need to step back and ask ourselves, what values do we promote? What are the beliefs that influence our vision
[2013] THE CASE OF ELSIPOGTOG 179 of justice?”53 In general terms the direction they advanced was to promote the values and practices of restorative justice and healing. Like residents in the poor urban areas of America two decades earlier when the community-based policing movement became popular, they wanted to reduce crime and enhance public safety by getting at roots of the inappropriate behaviour, not solely by arresting and jailing “our people”. The Elsipogtog population was modestly divided about disbanding their own band constables system in favour of an RCMP service largely staffed by non-Aboriginal but their priority was on effective social order (i.e., safety and security). There was also a widespread view that, while the replacement of the band constable system by the RCMP was a positive step, “the community has no power over the RCMP” and that effective action on root problems required closer collaboration between police and community.
In 1996 a band council resolution delegated the authority to address justice matters to the Elsipogtog Justice Advisory Committee and by 2000 there was in place an Elsipogtog Police Advisory committee, a Victim Services program, band members serving as probation officer and duty counsel (both employees of 2013 CanLIIDocs 114 provincial justice services) and a small RJ program. There was also an holistic approach to problems and solutions adopted in Elsipogtog, clearly evident in that all Justice programming (save the police service and the court roles) had been – and continues to be - embedded in the Health Centre and managed by its directors. The evolution in the policing approach made for a good fit with this holistic approach; indeed, it accelerated further kindred developments especially a more extensive use of restorative justice (RJ) and sentencing circles (the latter beginning in 2009-2010). In recent years, the Elsipogtog justice program has handled far more RJ cases than the other 14 New Brunswick FNs combined and just slightly less than in all the rest of the province’s RCMP detachments combined. It is the only FN regularly involved with sentencing circles.54 A major accomplishment this year has been the successful implementation of the first problem-solving court (i.e., the HWC) to be located in an Aboriginal community, or any mainstream community of such small population size, in Canada.
RCMP policing in Elsipogtog has the usual features found in many RCMP detachments’ policing in Aboriginal communities, such as a police advisory committee, a service delivery plan (required under the Community Tripartite Agreement or CTA) including an annual performance plan, school programs such as Drug Abuse Resistance Education and Aboriginal Shield delivered by a designated
53 Cited in Don Clairmont, “Elsipogtog Justice: A Strategic Action Plan” (Atlantic Institute of Criminology: Dalhousie University, 2005). 54 The first Elsipogtog sentencing circle (SC) took place in 2010 and was a classic “full monty” SC involving roughly 20 persons, including all key CJS officials, elders, offenders and victim and their supporters, and social services providers; the circle facilitator was the Elsipogtog director of justice programming. That format has been retained in all 15 SCs that have taken place since. The offences involved have been serious crimes such as intimate partner violence.
180 UNB LJ RD UN-B [VOL/TOME 64] officer and/or in collaboration with local civilians, Neighbourhood Watch, participation in varied community committees (e.g., Violence and Abuse) and close collaboration with a band-funded crime prevention worker across a large variety of activities. One difference has been that the detachment commander has put a major effort into making these features effective through personal and other members’ attendance in these activities and record keeping and indeed going beyond the usual expectations. For example, in addition to his own meeting regularly with chief and council, all Elsipogtog officers have been assigned a Band Councilor to meet with on a monthly basis to discuss any concerns and such monthly contacts are documented on a Detachment file. The staff sergeant has also been quick to bring to Elsipogtog innovative programs which further communications and understanding between the police and the community (e.g., the Aboriginal Perceptions program). Most importantly, the local RCMP has been an active mobilizer for restorative justice and the HWC and other programs which can hopefully get at root problems through collaborative effort and healing. The staff sergeant summed up his approach as follows:
Community based Policing is very important to me. I believe it is 2013 CanLIIDocs 114 important to be involved with community events, building partnerships with Elders, Service Providers, community and Band Council. From day one it was my focus to be transparent and ensure that the members working in Elsipogtog be involved in the community, collaborating with key people in the community to identify problems of crime and disorder and to search for solutions to these problems. My focus is partnerships between the RCMP and the community. It is very important to respect people in the community and gain their trust.55
The impact of substantive community-based policing in Elsipogtog is still a work in progress. The crime rate remains comparatively high, especially interpersonal violence, and drug and alcohol abuse is widespread. The RCMP data do show however that both property crimes and crimes of violence have decreased significantly in recent years. Reflective of the enhanced social order, Police contend that significant trust has been achieved and that there is less under-reporting of assaults, especially domestic violence and sexual assaults. Still, there is much victim reluctance to pursue charges (accordingly, a relatively low percentage of charges per actual offences involving interpersonal violence), something attributed by police and others to real or perceived vulnerability and familism (presumably a leftover from the colonialist legacy). There appears little doubt however that Elsipogtog and the RCMP detachment have forged a partnership and are on the right track to getting at the deep roots of the crime and enhancing public safety. The aspect of the colonialist legacy that causes people to protect or shield their own versus the outside justice system is increasingly incongruent with the current realities based on greatly enhanced band council authority and administrative responsibility, the significant, if
55 Personal communication, 2012.
[2013] THE CASE OF ELSIPOGTOG 181 modest, economic and political developments especially over the past decade, and the collaborative policing approach that has developed.
Aboriginal communities in Canada often have much higher crime rates and far more serious public safety and related social problem concerns than their mainstream counterparts. And these issues remain very significant even though over the past several decades both federal and provincial governments have adopted more progressive policies and significantly increased FN funding. Aboriginal people continue to be vastly overrepresented in prisons despite ostensibly dramatic changes in sentencing and other policies designed to eradicate this differential. The Grand Chief of the Assembly of First Nations in 2004, in addressing the National Aboriginal Policing Forum, emphasized the need for safer FNs and better police efforts in that regard, and commented, “The root cause of our difficulties – the problems in education, physical and emotional health and economic and social development – must be examined as part of community relations, community policing and strengthening a sometimes rocky relationship between the law 56 enforcement agencies and Canada’s Aboriginal peoples”. In Elsipogtog there is 2013 CanLIIDocs 114 evidence that that such an examination has been happening and that approaches that emphasize a strengthened relationship have been implemented, and, further, that outputs that have included strategies to get at the “roots of the difficulties” in a healing fashion are being pursued without sacrifice to public safety concerns.
IV. THE HEALING TO WELLNESS COURT IN ELSIPOGTOG
In its Strategic Action Plan (SAP), developed after extensive research in 2004-2005 on Elsipogtog justice patterns and the community’s justice system-related experiences and priorities for future directions57 the Elsipogtog Justice Advisory Committee EJAC) identified the appropriateness of obtaining a HWC. RCMP reports for that year indicated that Elsipogtog had the highest offence caseload per officer of any sub-detachment or detachment in Canada. The singularly extensive crime, whether person violence or property offending, was found to be largely a function of widespread addiction to alcohol or drugs, a legacy of colonialism, racism and accompanying cultural / family degradation. Research had emphasized the possible benefit of alternative justice approaches especially therapeutic jurisprudence and the problem-solving court. While there was limited understanding of how the HWC would actually function, the community’s FN leadership and ordinary residents – and indeed most CJS officials having to deal with the offending behaviour in Elsipogtog - highlighted the depth of the community’s social problems and the need for a community-based response. In agreement with objective police and court statistics collected in the multifaceted community research, the majority of the surveyed FN’s adults depicted Elsipogtog as a high crime area for both property
56 National Aboriginal Policing Forum (Ottawa, Ontario 2004). 57 Supra note 53.
182 UNB LJ RD UN-B [VOL/TOME 64] and person violence, with the level of crime increasing in recent years even while, in neighbouring communities and New Brunswick as a whole, it was decreasing; 75% called for “community research on justice issues and alternative court possibilities”.
The SAP, developed from the 2004/2005 research, vetted through extensive community consultations and supported by a formal band council resolution in 2006, called for the HWC to be implemented several years down the road after significant research on the model was undertaken, and subsequent to the building up of RJ programming including victim services and sentencing circles. RJ programming was to expand but remain focused on minor offences by first or second time offenders. It was considered crucial that there should also be a restorative, healing approach to the more serious intimate partner violence and sexual offending and that a first step should be the development of post-conviction sentencing circles along the lines of the “full monty” version established in Canada’s North a decade earlier. Given the scale and depth of the underlying causal factors, it was also deemed important to consider the realization of a HWC. In the SAP, goal # 3 called for exploring the
HWC approach and preparing appropriate proposals for funding, while goal # 4 2013 CanLIIDocs 114 called for the establishment of such a court in Elsipogtog if appropriate, and goal # 6 for the HWC beginning to address certain family and civil matters only in subsequent years after the criminal court was effectively implemented. This agenda was followed in sequence under the direction of the EJAC.
As noted above, the HWCs follow the core DTC format but they have also always included both alcohol and drug addiction and, unlike the mainstream problem-solving courts, have emphasized the need for significant cultural and community engagement. This emphasis was particularly salient for Elsipogtog since community leaders and most local CJS officials held that these features were the keys to an effective alternative court processing for Elsipogtog offenders given that the substance abuse associated with so much of the offending has been pervasive and reflective of a long-term, deep-seated destructive response pattern to stress and conflict.
ELSIPOGTOG AND THE HEALING TO WELLNESS COURT
The first step in following the 2005-2006 SAP mandate regarding the HWC – beyond the prerequisite work of expanding the ERJ program, securing a full-time Victim Services capacity and launching plans for having sentencing circles – was to examine closely how the HWC worked among Aboriginal tribal court systems in the USA and explore what embryonic varieties of it, and possible alternatives to it, were in place in Canada. As in most things the EJAC has done, preparatory, solid research was emphasized. Beginning in 2008, with the financial assistance from the federal Department of Justice’s Aboriginal Justice Program, the examination began and the field research and write-up stretched over 18 months. Sites visited by the Elsipogtog RJ coordinator and this researcher included the Akwesasne Community Court, the courts at the Alexis, Siksika and Tsuu T’ina First Nations in Alberta, the
[2013] THE CASE OF ELSIPOGTOG 183 conventional criminal court sitting at Eskasoni FN in Nova Scotia, the Mental Health Court and the Domestic Violence Court at Saint John and Moncton respectively, and the Gladue and DTC courts in Toronto. In addition, site visits were made to Hollow Water in Manitoba and Mnjikaning in Ontario where significant, culturally-infused programs for dealing with serious person violence have been developed outside a formal problem-solving court context. This fieldwork was supplemented by telephone and email contacts with other Aboriginal court initiatives (e.g., the Whitehorse Wellness court) and extensive review of the pertinent literature.
The main conclusions of the research were:58
1. There were common issues among the FNs visited of extensive substance abuse, high levels of interpersonal and especially intimate partner violence, and a sense that conventional CJS responses were inefficient and ineffective.
2. Local leadership, and many CJS officials serving these communities, were 2013 CanLIIDocs 114 placing their hopes for solutions to widespread justice problems in more community-based approaches to justice and were confident that such emphasis was consistent with both developing interpretations of Aboriginal constitutional rights and senior governments’ Aboriginal policies.
3. Whatever the approach and style of the court visited, the leadership and stakeholders there considered that having a provincial criminal court on reserve led to positive changes in crime patterns and effected a greater sense of community ownership in justice services
4. Crucial to the success of courts shaped towards a HWC approach were having (a) good FN relations with judges and crown prosecutors, and (b) active support of chief and council.
After much discussion of the report’s findings in the EJAC and later with chief and council, Elsipogtog formally adopted in 2009 the position, as suggested in the earlier SAP justice strategy, that the FN should begin discussions with the provincial government to secure a HWC as soon as possible (a formal “briefing note” document signed by the chief and the EJAC was sent to New Brunswick Justice officials in November 2009). That case was based on eight arguments, namely:
1. The efficiency and effectiveness of the problem-solving court and its HWC variant.
58 Supra note 33.
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2. Equity in Canadian justice policy requires that such a court model not be accessible only in large centers and that principle especially applies to FNs given the legacy of substance abuse linked to colonialism and related factors.
3. The Elsipogtog substance abuse legacy is precisely what the problem- solving courts have been directed at.
4. Constitutional rights, treaties and Government policy acknowledge the unique status of Aboriginal peoples and underline the appropriateness of significant cultural and administrative self-government.
5. Elsipogtog’s level of substance abuse and rates of violent crime, and the resistance of both patterns to conventional ameliorative punishment and treatment are strong evidence of the need for and practicality of a HWC.
6. Elsipogtog’s significant evolution in justice programming and the
availability in the community of significant diagnostic and treatment 2013 CanLIIDocs 114 capacity are evidence of capacity and readiness.
7. Elsipogtog justice programming has a proven record of efficiency and accountability and will advance an appropriate business plan for the HWC.
8. An HWC at Elsipogtog, in the long-run, would stimulate other FNs and contribute to centres of excellence for FN justice systems, and could also benefit mainstream communities outside the larger metropolitan centers.
COLLABORATION WITH THE NEW BRUNSWICK GOVERNMENT
Developments in the delivery of justice services in New Brunswick created a favourable opportunity for the Elsipogtog HWC proposal. The NB Justice Department had been considering court options in response to crime patterns in the FNs and the CJS’ responsibilities entailed in the SCC’s Gladue rulings. Also, a significant reorganization and regionalization of the court system was in progress. In January 2010 an all-day meeting was held in Elsipogtog where attendees included the Lieutenant Governor, the Minister of Justice, senior Justice administrative officials, the chief justice, local CJS role players, Elsipogtog political leadership, EJAC officials and others. Presentations were made by the ERJ program and the discussion was lively and informative. A senior administrative NB Justice official characterized the meeting as “fascinating, interesting and necessary but we have to go slow, step by step”. Agreement was reached to strike a working committee to explore the dimensions of, and requirements for, such a court. In addition to the overall working committee, subcommittees were subsequently created to deal with different facets of the proposed HWC (e.g., court procedures, eligibility, healing and treatment etc). The discussions and negotiations went on for two full years, harmonious and with careful attention to the specifics such as offence and offender eligibility, treatment services, and required staffing. The problem-solving court was
[2013] THE CASE OF ELSIPOGTOG 185 the basic model for these discussions and protocols from such courts in New Brunswick and elsewhere (e.g., Whitehorse) framed much of the discussions and negotiations. The launching of the Elsipogtog HWC was announced by the NB government in August 2010 and staffing completed for three administrative and treatment coordination positions (Court Stenographer, Court Coordinator and Primary Case Manager) in the fall of 2011. Factors unrelated to the government- community agreement however delayed the actual start of the new court until the summer of 2012. The basic 63 page document detailing rationale, objectives, policies and procedures, eligibility, privacy protocols, and treatment options for the pilot project was available in September 2012.59 The HWC serves both youths and adults.
While the Elsipogtog HWC shares the underlying philosophy and usual protocols of most problem-solving courts, it had three special features in the penultimate draft, additional to its Aboriginal character, namely (a) it will deal also with domestic violence cases, (b) a guilty plea will not be required for an offender’s acceptance into the HWC processing, and (c) significant attention would be given to 2013 CanLIIDocs 114 the inclusion of victims and victim advocates. These first two features involved much discussion between NB Justice and Elsipogtog members of the working groups. In the case of domestic violence, the Elsipogtog negotiators emphasized the importance placed by the FN leadership on having this major community justice problem dealt with by the court and could point to the fact that most sentencing circles over the past two years had dealt successfully with such offences. That position was well appreciated by CJS officials and subsequently was agreed to by the NB Government. There were serious concerns raised by top NB Justice officials about dropping the requirement of a guilty plea for acceptance into the HWC stream. The acceptance / eligibility of a person who explicitly takes responsibility for the offence had long been a principle in the Elsipogtog restorative justice program and had been assumed in earlier drafts of the proposed HWC format but some reservations were expressed at the penultimate stage of the negotiations. While the requirement of a guilty plea has been standard in the problem-solving court model, there were some exceptions, most notably in Nova Scotia’s Mental Health Court; in any event, after some discussion, the NB Government agreed to waive the requirement of a guilty plea for first time offenders but, under specific circumstances still to be finalized, required the registration of a guilty plea for certain previously convicted offenders.60
59 New Brunswick Department of Justice and Elsipogtog First Nation, “General Policy and Procedures: Elsipogtog HWC” (Fredericton: 2012). 60 A wide range of offences are eligible to be processed through the Elsipogtog HWC but generally not those where the conviction carries a mandatory minimum or where very serious violence has occurred (e.g., murder, attempted murder, manslaughter). The crown prosecutor, federal or provincial, can exclude an application where there is serious violence even if the offence does not carry a mandatory minimum.
186 UNB LJ RD UN-B [VOL/TOME 64]
The successful conclusion to the Elsipogtog pursuit of a HWC with the New Brunswick Government in a period of provincial financial constraint and despite the additional funding required has been a considerable achievement of the EJAC, the ERJ program and the provincial government. It attests to the strong case made by Elsipogtog justice committee for the need and practicality of the HWC model and also for the capacity and readiness, efficiency and effectiveness of Elsipogtog justice-related programming. The provincial government’s commitment to explore the HWC project and expend scarce resources on it has been a very positive response to FN concerns in the justice field. Having the HWC brings the provincial criminal court back to the Elsipogtog area after several years of its being transferred from Richibucto to Moncton. At the same time, building on the success of the circles, the HWC offers great promise for overcoming the in-depth legacy problems that have plagued the community and generated so much interpersonal violence and criminal activity. If successful, it also offers hope to FNs and smaller mainstream communities elsewhere in Canada for accessing the types of justice programming that up to now have been restricted to larger metropolitan centers.
2013 CanLIIDocs 114 V. CONCLUSION
With the successful launching of the HWC it can be said that the Elsipogtog now has a reasonably complete community-based justice system, namely a restorative justice program, sentencing circles and a problem-solving court. The first two have an established record of accomplishment while the first quarter of the HWC’s implementation has been regarded by CJS and community stakeholders as “working well so far” (i.e., accused persons are opting for it, treatment plans have been developed and thus far there has been solid commitment to the program by the offenders). The community-based policing approach provided by the RCMP provides crucial support for this justice programming. Overall then, these justice developments represent a considerable achievement by a small complex First Nation and underline the effectiveness of the combination of its vision of FN community “ownership” and a commitment to social planning that has been cautious, consensus-building, and evidence-based. At the same time, significant challenges remain, most particularly the significant level of interpersonal violence and social disorder and the adequacy of the community resources for treatment (this latter has been a major problem in virtually all DTCs as noted by Franco, 2010). How transferable this Elsipogtog experience can be to other FNs and to mainstream communities also will be an important question.
MOVING BEYOND THE PROSTITUTION REFERENCE: BEDFORD V CANADA
Maria Powell*
Canada’s Criminal Code1 does not criminalize the sale of sex, but instead regulates the activities which surround commercial sexual acts. In 2007, Terri Jean Bedford, Amy Lebovitch and Valerie Scott launched a constitutional challenge on the provisions of the Criminal Code prohibiting: keeping a common bawdy house (s. 210), living on the avails of prostitution (s. 212(1)(j)) and communicating for the purposes of prostitution (s. 213 (1)(c)).2 They argued these provisions contribute to the risk that sex trade workers will become victims of violence, in violation of their rights to liberty and security of the person under s. 7 of the Charter.3 The applicants also submitted that the communicating provision was a violation of their s. 2(b) right 2013 CanLIIDocs 114 to freedom of expression under the Charter.4 Each of the women has a lengthy history of work in the sex trade. Lebovitch continues to earn a living through sex work, while both Bedford and Scott expressed a desire to return to the profession. All three are members of Sex Professionals of Canada, an organization that advocates for the decriminalization of sex work. Their victory at the Ontario Superior Court of Justice and partial victory at the Ontario Court of Appeal5 signals that the dialogue about how prostitution is regulated in Canada has been re-opened. On June 12, 2013, the Supreme Court of Canada will hear the appeal of the Attorney General and Bedford’s cross-appeal.6
Bedford argued the bawdy-house provision forces sex workers to practice their trade in public places, rather than from safer, indoor locations.7 A bawdy-house !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! *!BA (University of Prince Edward Island), JD (University of New Brunswick).!
1 Criminal Code, RSC 1985, c C-46 [Criminal Code]. ! 2 Bedford v Canada (Attorney General), 2010 ONSC 4264 [Bedford].
3 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being schedule B to the Canada Act 1982 (UK), 1982, c 11, s.7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
4 See Charter, Ibid s 2(b). Everyone has the following fundamental freedoms: freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.
5 Canada (Attorney General) v. Bedford, 2012 ONCA 186 at 325 [Bedford Appeal].
6 Canada (Attorney General) v. Bedford, [2012] SCCA 159.
7 Bedford, supra note 2 at 11.
188 UNB LJ RD UN-B [VOL/TOME 64] ! is defined in s. 197 (1) as: “a place that is kept or occupied, or resorted to by one or more persons, for the purpose of prostitution or to practice acts of indecency”.8 Courts have interpreted “place” broadly to mean that “any defined space is capable of being a bawdy-house, from a hotel, to a house, to a parking lot – provided that there is frequent or habitual use of it for the purposes of prostitution.”9 As a result, virtually wherever a sex worker chooses to work may make them liable under the criminal law. The offence carries a maximum penalty of two years imprisonment.
Section 212 of the Criminal Code lists various offences, under the general heading of “procuring” including enticing a person to enter into prostitution, and exercising control or force over a person who has been compelled into the sex trade. The applicants challenged only the constitutionality of s. 212 (1)(j), which creates the offence of living wholly or partly on the avails of prostitution, commonly referred to as “pimping.” A conviction under this section carries a maximum penalty of ten years in prison. Under s. 212(3), anyone who “lives with or is habitually in the company of a prostitute” is presumed to be “living on the avails of prostitution.” Thus, spouses, partners and even roommates of a sex worker could be convicted of 2013 CanLIIDocs 114 pimping, unless they can introduce evidence rebutting the presumption.10 This section also creates the risk of prosecution for people the sex worker might hire to work as drivers, security, or reception staff. As the applicants argued in Bedford, having such staff creates a safer environment for those in the sex trade.11 The ability to have staff is often closely linked to the being able to work in an indoor location.
The communicating provision in s. 213 of the Criminal Code prohibits: stopping or attempting to stop a motor vehicle or a person, or impeding access to or from a public place for the purposes of prostitution.12 The applicants argued that this provision forces sex workers to operate covertly, often without the necessary time to assess whether a client is potentially threatening, prior to accepting them.13 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 8 Criminal Code, supra note 1, s 197 (1).
9 Parliamentary Information and Research Service, Prostitution in Canada: International Obligations, Federal Law, and Provincial and Municipal Jurisdiction by Laura Barnett (Ottawa: Library of Parliament, 2004) Online: Government of Canada Publications
10 The authority that allows the presumption to be rebutted was developed by the court in R. v. Grilo (1991), 2 OR (3d) 514. Justice Arbour stated: “The true parasite whom s. 212(1)(j) seeks to punish is someone the prostitute is not otherwise legally or morally obligated to support.
11 Bedford, supra note 2 at 11; Criminal Code, supra note 1, s 3.; Karin Galldin et al, “Bedford v. Canada: a paradigmatic case toward ensuring the human and health rights of sex workers” (2011) 15 HIV/AIDS Policy Review at 5 [Galldin et al].
12 Criminal Code, supra note 1.
13 Bedford, supra note 2 at 11.
! [2013] BEYOND THE PROSTITUTION REFERENCE 189
This paper will offer insight into how the Supreme Court will decide the Bedford appeal by closely examining the issues presented through the trial and the appeal. The paper will also weigh the decision of the Supreme Court in the 1990 Prostitution Reference14 upholding the impugned provisions and the 2011 Supreme Court decision Canada (Attorney General) v. PHS Community Services Society15 (PHS), which offers a way to move forward. The harms that sex workers face are at the heart of the Bedford case, which is what separates it from the Prostitution Reference. Instead of considering sex work generally, the Bedford appeal gives the issue a human face and asks for the striking of laws that put sex workers at risk of violence. The issue of harms and the wealth of evidence supporting the fact that the impugned provisions of the Criminal Code aggravate the harms faced by sex workers were not put forward in the Prostitution Reference. In addition, the principles of fundamental justice that the Court uses to scrutinize provisions challenged under s. 7 of the Charter have also evolved considerably in the intervening years. The principles that define when a government needs to consider the adverse harms caused by legislative and decision-making processes set out in 2013 CanLIIDocs 114 PHS offer insight into how the issues raised in Bedford may be interpreted. Examining the evidence presented at trial and the Court of Appeal leads to an appreciation for the need to decriminalize sex work. The Supreme Court should not feel bound by the Prostitution Reference, which focused on different issues and did not have the benefit of the recent PHS case, which I argue indicates a way for the Supreme Court to decriminalize sex work in Canada.
THE PROSTITUTION REFERENCE
The Supreme Court upheld the constitutionality of both the bawdy-house and communicating provisions of the Criminal Code in the 1990 Prostitution Reference. An understanding of the Prostitution Reference is essential to appreciating the issues raised in Bedford. At trial and on appeal, Bedford submitted the Prostitution Reference was distinguishable and the Attorney General contended that it is a binding authority.
In the Prostitution Reference, the Supreme Court was asked to determine whether the provisions of the Criminal Code dealing with bawdy-houses (s. 193, now s. 210) and communicating for the purposes of prostitution (s. 195 (1)(c), now s. 213 (1)(c)), separately or in combination, were a violation of ss. 2(b) or 7 of the Charter. Chief Justice Dickson, writing for the majority concluded both provisions !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 14 Reference re ss. 193 and 195.1 (1)(C) of the Criminal Code (Man.) [1990] 1 SCR 1123 at 21 [Prostitution Reference].
15 Canada (Attorney General) v. PHS Community Services Society 2011 SCC 44 [PHS].
! 190 UNB LJ RD UN-B [VOL/TOME 64] ! were consistent with s.7.16 While the liberty interests were engaged by the possibility of imprisonment, the provisions could not be determined to be sufficiently “unfair as to violate the principles of fundamental justice”.17 The majority also found the bawdy-house provision did not infringe on a person’s right to freedom of expression.18 With respect to communicating, the majority determined that while there was an infringement to the s. 2(b) right of freedom of expression it could be upheld as a justifiable limit.19 Dickson CJ described the legislative objective of the communicating provision as suppressing the social nuisance caused by public solicitation and keeping it out of the view of the public.20
Despite reaching the same conclusions in his own reasons, Lamer J’s opinion in the Prostitution Reference branched into a discussion of economic liberty, which highlights the difference between what the Supreme Court was asked to decide in 1990 and what Bedford is asking the Court to decide now. The argument in 1990, as summarized by Lamer J, was that the impugned provisions violated liberty under s. 7 because sex workers were unable to “exercise their chosen profession”, which then violated their right to security of the person by rendering them unable to 2013 CanLIIDocs 114 provide for themselves.21 While he could not accept that the infringement was contrary to the principles of fundamental justice, he encapsulated when s. 7 is triggered, stating that it is “implicated when the state restricts individuals’ security of the person by interfering with, or removing from them, control over their physical or mental integrity”,22 which is precisely the argument being made in Bedford. Lamer J also characterized the legislative objective of communicating differently from the majority of the court. His definition extended to “general confusion and congestion that is accompanied by an increase in related criminal activity such as possession and trafficking of drugs, violence and pimping”.23 It is important to remember that this view was that of Lamer J alone as his characterization is raised by the Ontario Court of Appeal in Bedford.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 16 Prostitution Reference, supra note 14 at 21.
17 Ibid at 19.
18 Ibid at 1.
19 Ibid at 11.
20 Ibid at 2.
21 Ibid at 49
22 Ibid at 68.
23 Ibid at 95 & 97.
! [2013] BEYOND THE PROSTITUTION REFERENCE 191
In dissent, in her s.7 analysis, Wilson J found that while the bawdy-house provision could be considered consistent with s. 7 of the Charter, the communicating provision did constitute a breach.24 In her view, the risk of incarceration was disproportionate to the legislative objective of curbing public nuisance, especially in light of her finding that the communicating provision also violated a person’s right to freedom of expression and could not be upheld by s. 1.25
The Trial Decision
The arguments of both Bedford and the Attorney General presented the Application Judge (Justice Susan Himel) with a formidable task because of the stigma attached to sex work. Bedford’s position was that the criminal prohibitions make sex work more dangerous and that the Supreme Court decision in the Prostitution Reference relating to communicating and freedom of expression needed to be revisited in light of “new evidence and a material change in circumstances.”26 The Attorney General of Canada argued Bedford had not shown sufficient reasons in law or new evidence which would warrant a re-evaluation of the Supreme Court’s previous ruling and that the 2013 CanLIIDocs 114 danger inherent in the sex trade was not caused by the impugned provisions.27 Interveners, the Attorney General of Ontario, the Christian Legal Fellowship, REAL Women of Canada and the Catholic Civil Rights League all spoke to human dignity and vulnerability of the people that the impugned provisions were enacted to protect.28 The judgment of Himel J shows thoughtful consideration of the issues, presented in a manner that demonstrated that she anticipated an appeal of the decision. Himel J found the impugned provisions unconstitutional for exacerbating the harms faced by sex workers.
The risk of imprisonment is sufficient to initiate a review of the impugned provisions under s. 7 of the Charter because of the threat to a person’s liberty.29 Bedford argued their security of the person was also at issue because of the risk of violence sex workers face. Himel J. found the threat of violence forced sex workers to choose “between their liberty and their security of the person” and the evidence demonstrated that the impugned provisions played “significantly contributory role”
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 24 Ibid at 158.
25 Ibid at 157.
26 Bedford, supra note 2 at 13.
27 Ibid at 15-17.
28 Ibid at 21-24.
29 Re BC Motor Vehicle Act, [1985] 2 SCR 486 at 74; Bedford, Supra note 2 at 281; Prostitution Reference, supra note 18 at 15.
! 192 UNB LJ RD UN-B [VOL/TOME 64] ! by prohibiting actions that would make sex work safer. 30 With s. 7 engaged, Himel J was then tasked with determining if the interference with the rights to liberty and security of the person were in accordance with the principles of fundamental justice.31 Her analysis included the principles against: arbitrariness, overbreadth and gross disproportionality and she determined that it was unnecessary to consider the principle of the rule of law as it was inapplicable in this case.32
To determine if any or all of the provisions violated these principles of fundamental justice, Himel J surveyed the history of each provision to determine the legislative objectives. She found that the bawdy-house provision was aimed at “combating neighbourhood disruption and disorder and safeguarding public health and safety”.33 The objective of the provision prohibiting living on the avails of prostitution is to protect prostitutes from those who may seek to profit from their work.34 Finally, relying on the determination of the Supreme Court in the Prostitution Reference, the communicating provision is an attempt to “eradicate the various forms of social nuisance arising from the public display of the sale of sex”.35 2013 CanLIIDocs 114
Based on these determinations, Himel J found that the bawdy-house provision was both overbroad, because the “wide geographic scope” that encompasses areas beyond a “traditional brothel”36 and grossly disproportionate to the intended objectives, because sex workers are denied the safety and stability that a permanent indoor location can provide.37 She found the living on the avails provision to be arbitrary, because sex workers are prohibited from hiring anyone who could make their work safer,38 overbroad for its inclusion of “non-exploitive arrangements”,39 and grossly disproportionate as it forces sex workers to choose
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 30 Bedford, supra note 2 at 362.
31 Chaoulli v. Quebec (Attorney General), 2005 SCC 35 at 109, per McLachlin C.J. and Major J.; Malmo- Levine; R v. Clay [2003] 3 SCR 571 at 83.
32 Bedford, supra note 2 at 439.
33 Bedford, supra note 2 at 242.
34 Ibid at 259.
35 Ibid at 374; Prostitution Reference, supra note 14 at 2.
36 Bedford, supra note 2 at 400-401.
37 Ibid at 428.
38 Ibid at 379.
39 Ibid at 402.
! [2013] BEYOND THE PROSTITUTION REFERENCE 193 between their own safety and jeopardizing the liberty of another.40 The communicating provision was determined to be grossly disproportionate in light of the evidence that the provision prevents the screening of clients and disperses sex workers to more isolated areas.41 In Himel J’s weighing of the evidence she found that the breach of the s.7 Charter rights could not be saved by an analysis under s. 1, because the challenged provisions are disproportionate and cause more than a minimal impairment to the rights of sex workers.42
Bedford also challenged the communicating provision under s. 2(b) of the Charter, as an unconstitutional limit on freedom of expression. Previously this provision had been determined- by the Supreme Court in the Prostitution Reference- as a “prima facie infringement of s. 2(b)”, which Himel J accepted.43 Given the established infringement of the right, she moved on to consider the infringement in light of the test developed in R v Oakes.44 The test dictates that the impugned provision must have a “pressing and substantial” objective.45 Concurring with the finding of Dickson CJ in the Prostitution Reference, Himel J found that eliminating 46 social nuisance represented a legitimate pressing and substantial objective. 2013 CanLIIDocs 114
The second part of the test requires that the provision is rationally connected to the objective, while impairing the right “as little as possible” and the impairment of the right must be proportional to the objective.47 Himel J found the “need to safeguard their own bodily integrity through communication with customers lies at or near the core of expression s. 2(b) of the Charter seeks to protect.”48 Her assessment departed greatly from Dickson CJ in the Prostitution Reference who stated: “It can hardly be said that communications regarding an economic transaction of sex for money lie at, or even near, the core of the guarantee of freedom of
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 40 Ibid at 431.
41 Ibid at 434.
42 Ibid at 441. Being that Himel J. only included a very succinct analysis of s. 1, the full test is articulated below, in relation to the challenge of the communicating provision to freedom of expression, as guaranteed by s. 2(b).
43 Ibid at 444; Prostitution Reference, supra note 14 at 1.
44 Bedford, supra note 2 at 446; R v. Oakes, [1986] 1 SCR 103 [Oakes].
45 Ibid at 69.
46 Bedford, supra note 2 at 448.
47 Oakes, supra note 44 at 70
48 Bedford, supra note 2 at 462.
! 194 UNB LJ RD UN-B [VOL/TOME 64] ! expression.”49 The difference of opinion is understandable considering Himel J had the benefit of over 25,000 pages of evidence, in addition to witnesses ranging from sex workers, to police, to social workers, and academics.50 Apart from the recommendations of the Special Committee on Pornography and Prostitution which were released in 1985, much of the evidence relied upon in the Bedford case was not available at the time of the Prostitution Reference.
Himel J found the communicating provision was rationally connected to the objective of curbing social nuisance, but (just as Wilson J found in her dissent in the Prostitution Reference) the provision represented more than a minimal impairment to the right of freedom of expression.51 In the final balancing, Himel J found the prohibition on communicating adds to the risk that sex workers will become victims of violence and that this was “simply too high a price to pay” to curb social nuisance and represented an “unjustifiable limit” on freedom of expression.52
Himel J struck down the three challenged provisions, because of the 2013 CanLIIDocs 114 infringement of the rights of sex workers. The judgment was stayed for 30 days to avoid a legislative gap.53 A stay of Himel J’s judgment remained in effect pending the outcome of the appeal.
THE ONTARIO COURT OF APPEAL DECISION
The Attorney General of Canada and the Attorney General of Ontario, appealed the decision to the Ontario Court of Appeal. The decision was released on March 26, 2012 upholding the decision of Himel J that the bawdy-house and living on the avails provisions are unconstitutional.54 All five judges were unanimous in their decision on these two provisions. With respect to living on the avails of prostitution in s. 212(1)(j), the court read in the words “in the circumstances of exploitation” to clarify when it will be permissible to benefit from the proceeds of sex work.55 While the partial remedy granted by the Court of Appeal represents a victory for sex workers generally, the failure of the majority to uphold the application judge’s ruling !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 49 Prostitution Reference, supra note 14 at 5.
50 Bedford, supra note 2 at 84.
51 Ibid at 481.
52 Ibid at 504-505.
53 Ibid at 539.
54 Bedford Appeal supra, note 5 at 325.
55 Ibid at 327.
! [2013] BEYOND THE PROSTITUTION REFERENCE 195 on the communicating provision means that street-based sex workers will continue to rush into transactions with clients that they have not had time to screen.
The majority of the Court of Appeal held that the decision of the Supreme Court in the Prostitution Reference deeming the communicating provision to be a reasonable limit on freedom of expression under s. 2(b) of the Charter remained binding on the trial judge.56 When it came to the constitutionality of the communicating provision with respect to s. 7, there was a stark difference of opinion. The majority disagreed with Himel J’s finding that the communicating provision was grossly disproportionate and did not find a s. 7 violation. In dissent, MacPherson JA agreed with the application judge’s finding that the impugned provision was grossly disproportionate.
In the majority’s assessment of the communicating provision and the principles of fundamental justice, they agreed with Himel J that a provision is not 57 rendered arbitrary because it is ineffective. Thus, they concurred with the 2013 CanLIIDocs 114 application judge that the communicating provision is not arbitrary, despite their disagreement with her finding that the law was ineffective in reducing street solicitation.58 The majority also agreed with Himel J’s finding that the communicating provision was not overbroad.59 However, they concluded that Himel J’s analysis of the communicating provision and principles of gross disproportionality was flawed.60 They found that in the balancing of the objective and the effects of the law, too little weight had been given by Himel J to the objective, while too much was assigned to the effects.61
At the appeal, the Attorney General of Canada argued Himel J “failed to take into account the seriousness of nuisance presented by street prostitution, which is attended by drug use and other crimes.”62 This argument was a parallel of Lamer J’s characterization of the legislative objective in the Prostitution Reference;63 a view
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 56 Ibid at 328.
57 Ibid at 287; Bedford, supra note 2 at 383.
58 Bedford Appeal, supra note 5 at 289; Bedford, supra note 2 at 383.
59 Bedford Appeal, supra note 5 at 290.
60 Ibid at 280.
61 Ibid.
62 Bedford Appeal, supra note 5 at 285.
63 Prostitution Reference, supra note 14 at 95
! 196 UNB LJ RD UN-B [VOL/TOME 64] ! rejected by the majority.64 The majority of the Court of Appeal in Bedford controversially agreed with the Attorney General and found that Himel J “under- emphasized the importance of the legislative objective”, for failing to take into account the same activities that were included in Lamer J’s rejected characterization of the legislative objective. The majority also found that given the striking down of the bawdy-house provision less weight should be accorded to harms caused by the communicating provision, because sex workers would now have the option to move to indoor locations.65
The majority in the Bedford appeal also held that the application judge had placed too much weight on the impact the communicating provision has on sex workers.66 Himel J saw the ability to screen clients as an “essential tool” to enhancing the safety of sex workers. The majority at the Court of Appeal was not convinced that the evidence supported this.67 Instead, they found that Himel J drew her conclusion from the “anecdotal evidence from prostitutes.”68 This reinforcement of the outdated notion that sex workers are unreliable witnesses, because of their chosen profession is an error by the Court of Appeal. Beyond sex workers 2013 CanLIIDocs 114 themselves, the screening of clients is discussed several times in Himel J’s judgment. Dr. Gayle MacDonald’s 2006 presentation to the House of Commons Standing Committee on Justice and Human Rights Subcommittee on Solicitation, which Himel J quotes, supports the use of screening as a safety mechanism:
Continued criminalization, specifically the communications provision of the Criminal Code, puts the sex worker in danger by increasing the speed of the negotiation of terms between the sex worker and her client, which is the most critical point for her to assess the client’s propensity to violence. If the sex worker is rushing to avoid encounters with police, she may misjudge – at great peril to her – the safety of a client.69
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 64 Dickson CJ, in the Prostitution Reference, supra note 14 at 2.
65 Bedford Appeal, supra note 5 at 309.
66 Ibid at 305.
67 Ibid at 310.
68 Bedford Appeal, supra note 5 at 311.
69 Bedford, supra note 2 at 171. Dr. MacDonald is a Professor of Sociology at St. Thomas University, where she is also the Assistant Vice-President (Research). She holds a BA (Dalhousie), MA (Ottawa) and a PhD (UNB). She has published extensively on sex work including the book “Sex Workers of the Maritimes Talk Back (2006) with co-author with Leslie Jeffrey. Dr. MacDonald also contributed to the forthcoming book Selling Sex: Experience, Advocacy, and Research on Sex Work in Canada (UBC Press, 2013).
! [2013] BEYOND THE PROSTITUTION REFERENCE 197
The views of MacDonald, who also served as an affiant for Bedford, are echoed by other expert witnesses including: Dr. Augustine Brannigan,70 Dr. Eleanor Maticka- Tyndale,71 Dr. Cecilia Benoit,72 and Dr. Frances Shaver.73 Himel J also referenced the ability of decriminalized sex workers in New Zealand to make better assessments of potential clients because they no longer fear prosecution.74 While decriminalized sex workers in New Zealand still face stigma, “the realisation of employment and legal rights has given many sex workers confidence to avert or react to situations that hold the potential for violence”.75 While the majority of the Court of Appeal felt Himel J’s conclusion on the effectiveness of screening as a safety tool reached “well beyond the limits of the evidence,” the support for screening is actually quite robust.76
The majority of the Court of Appeal also disagreed with Himel J’s comparison of the case at bar with PHS, finding it “is simply not comparable” to draw parallels between the communicating provision’s effects on sex workers with the consequences of the Minister’s denial of an exemption from the Controlled 77 78 Drugs and Substances Act on drug addicts. While the court recognized the 2013 CanLIIDocs 114 distinct vulnerability of sex workers on the streets and acknowledged that, even with the ability to move to indoor sites many would not have the resources to facilitate such a move. The majority was unconvinced that the impact of the communicating provision was a factor that, when combined with the other evidence, would tip the balance towards a finding of gross disproportionality.79
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 70 Ibid at 307.
71 Ibid at 337.
72 Ibid at 339.
73 Ibid at 340.
74 Ibid at 194.
75 Gillian Abel and Lisa Fitzgerald, “Risk and risk management in sex work post-Prostitution Reform Act: a public health perspective” in Taking the Crime Out of Sex Work: New Zealand Sex Workers’ Fight for Decriminalisation, Gillian Abel et al Eds. (Portland: Policy Press, 2010).
76 Bedford Appeal, supra note 5 at 311.
77 Controlled Drugs and Substances Act SC 1996, c 19.
78 Bedford Appeal, supra note 5 at 315.
79 Ibid at 322
! 198 UNB LJ RD UN-B [VOL/TOME 64] ! THE DISSENT OF MACPHERSON JA
Writing in dissent, MacPherson JA concurred with the analysis of the majority on all points except for their finding that the communicating provision was not grossly disproportionate. MacPherson JA would have upheld the application judge’s finding of gross disproportionality in violation of s. 7 of the Charter.80 MacPherson JA alleged that the majority without reason, used a different method is assessing the communicating provision and that the analysis was in stark opposition to the method and reasoning which was used to amend the provisions concerning bawdy-houses and living on the avails. It was MacPherson JA’s opinion that even with the amendments to the bawdy-house and living on the avails provisions, the communicating provision still prevents sex workers from using all available means to protect themselves. He offers seven reasons to support his conclusion that the communicating provision is grossly disproportionate and should be found unconstitutional.
MacPherson JA took support for a finding of gross disproportionality within 2013 CanLIIDocs 114 the majority’s own conclusions on the bawdy-house and living on the avails provisions. He disagreed with the change in the tone of the analysis for communicating and the incorporation of the concepts of “cruel and unusual punishment” and “abhorrent or intolerable” to the analysis.81 While it is correct that the test for gross disproportionality under s. 12 of the Charter82 requires a similar balancing test including these notions, these “touchstones” were not brought into consideration in determining the previous two provisions.83 Further, this treatment was not only different from the treatment given to the other provisions, but it was contradictory to statements made by the majority that found that the communicating provision contributed “equally” to the violence sex workers face.84 MacPerson JA’s position was that if the bawdy-house and living on the avails provisions could not be upheld then the communicating provision “with its equally serious – and perhaps worse – effects on prostitutes” should not be upheld either.85
The opinion of MacPherson JA that these provisions are so closely linked that they should receive similar treatment, could lend itself to an argument that !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 80 Ibid at 333.
81 Ibid at 339; Source of quote on which MacPherson J.A. relies at 300.
82 Charter, supra note 3, s. 12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
83 Bedford Appeal, supra note 5 at 340.
84 Ibid at 343. Source of quote on which MacPherson J.A. relies at 206.
85 Ibid at 344.
! [2013] BEYOND THE PROSTITUTION REFERENCE 199 perhaps all three provisions should be upheld as constitutional. However, each of the provisions contributes to the risk of violence faced by sex workers. It is difficult to separate the effects of the impugned provisions. Kara Gillies is a long time sex worker and an activist with Maggie’s, an intervening organization. She describes the inter-play between the impugned provisions and how the communicating provision still hinders a sex workers ability to work safely:
It is not tenable to have a safe place to see a client if you can’t screen him first or clearly set out what you offer, your rates and your safe sex requirements. Further, many street-based workers don’t have access to an indoor place to work.86
If the concepts of “cruel and unusual punishment”, “abhorrent” and “intolerable” are to be incorporated into the analysis, the evidence before the court clearly indicates that violence is occurring and that the impugned provisions prevent sex workers from protecting themselves and from working with police to see that perpetrators of violence are punished. It is difficult to make an argument that 2013 CanLIIDocs 114 violence is an acceptable alternative to calm and orderly neighbourhoods, which is the legislative objective of the communicating provision that the Supreme Court agreed upon in the Prostitution Reference. Further, the reasons of MacPherson JA point out that the application judge was correct in her appraisal of the legislative objective of the communicating provision. MacPherson JA found that by including criminal conduct commonly associated with street solicitation, the majority had inflated the actual legislative objective than what was accepted by the majority of the Supreme Court in the Prostitution Reference.87
MacPherson JA also took issue with the weight assigned to the importance of sex workers being able to screen their clients, largely prevented by the communicating provision. His opinion was that the fallibleness of screening as a means of protection against violence does not diminish its value.88 MacPherson JA reasoned further that the majority took a narrow view by failing to consider the other risks to safety, beyond an inability to screen clients, which are caused by the provision.89 In agreement with the application judge, MacPherson JA found that the effect of the provision also displaced and dispersed sex workers, which added to their
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 86 Maggie’s Toronto Sex Workers Action Project, Press Release, “Ontario Court Leaves Most Vulnerable Sex Workers Unprotected”(26 March 2012) Online: Maggie's Toronto Sex Workers Action Project
87 Bedford Appeal, supra note 5 at 345-47. Source of quote on which MacPherson J.A. relies at 307.
88 Ibid at 348.
89 Ibid at 351.
! 200 UNB LJ RD UN-B [VOL/TOME 64] ! vulnerability, and that these factors could not be discounted in the balancing exercise.90
MacPherson JA recognized that the provision “denies an already vulnerable person the opportunity to protect herself from serious physical violence.”91 He referenced the interveners who advocated that the communicating provision adversely affect street prostitutes who are already part of groups who are traditionally marginalized. This is particularly clear from research conducted in Vancouver’s Downtown Eastside that found “almost 70% of women working in the lowest paying and most dangerous street sex work tracts are women of Aboriginal ancestry”.92 MacPherson JA cited the Supreme Court authority of New Brunswick (Minister of Health and Community Services) v. G.(J.), which compels a consideration of s. 7 rights with a view to the equality rights granted under s. 15 of the Charter.93 MacPherson JA recognized the reality that street prostitution will not disappear, because of the changes to the bawdy-house provision and that the communicating provision would continue to limit the means of street prostitutes to protect themselves.94 2013 CanLIIDocs 114
The Attorneys General argued the impugned provisions were not the cause of the depravation of security of the person, because it is the actions of others – namely clients - at the root of the violence faced by sex workers. In considering this argument, the majority acknowledged similarities between sex workers and the addicts who sought access to a safe-injection site in PHS.95 MacPherson JA took issue with their sudden change in position, finding that “the application judge also erred by equating this case with PHS.”96 The majority offered no explanation for the reversal.
The final reason for MacPherson JA’s dissent is that he found that the amendments made to the bawdy-house and living on the avails provisions were not !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 90 Ibid at 353.
91 Ibid at 360.
92 Dara Culhane, “Their spirits live within us: Aboriginal Women in Downtown Eastside Vancouver Emerging into Visibility” (2003) 27 Am Indian Q 593-601 at 597.
93Bedford Appeal, supra note 5 at 356; citing New Brunswick Minister of Health and Community Services v. GJ, [1999] 3 SCR 46 at 115.
94Bedford Appeal, supra note 5 at 360.
95Ibid at 116.
96 Ibid at 315.
! [2013] BEYOND THE PROSTITUTION REFERENCE 201 enough to provide a sufficient remedy. Again he acknowledged street prostitution will continue and that the communicating provision, if it is allowed to stand, will continue to put sex workers at an increased risk of becoming victims of violence. MacPherson JA concluded by concurring with the application judge’s assessment that the communicating provision is unconstitutional.
REVISITING THE PROSTITUTION REFERENCE
The argument of Bedford et al in asking the court to reexamine the bawdy-house and communicating provisions under s. 7 of the Charter was that the Prostitution Reference only considered the right to liberty and the vagueness of the impugned provisions, in contrast to their contention that the provisions also violated security of the person and are not in accordance with the principles of fundamental justice against arbitrariness, overbreadth and gross disproportionality and the rule of law, which had not been developed at the time of the reference.97
2013 CanLIIDocs 114 Bedford asserted that they were asking the court to reconsider the communicating provision under s. 2(b) in a different context than the previous case because the situation facing sex workers had changed in the intervening years. Whereas the Prostitution Reference focused on the impugned provisions as a barrier to economic liberty, the core of the Bedford case was centered on the harms that sex workers faced because of the impugned provisions.98 Finally, they pointed out that unlike the reference, this case presented empirical evidence that was not available in 1990. It was their position that a “material change in circumstances” justifies a full hearing on the merits.99
The Attorneys General argued the standard for overturning a Supreme Court decision is high and requires reasons that are “beyond compelling”.100 It was their position that taking a second look at the conclusions of the Supreme Court in the Prostitution Reference would need to be grounded in either law or evidence, which they contended Bedford had not shown. This is despite the fact that the Federal government completed some of the research on which Bedford relies.101
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 97 Bedford, supra note 2 at 70.
98 Ibid at 71.
99 Ibid at 72.
100 Ibid at 74.
101 Ibid at 73.
! 202 UNB LJ RD UN-B [VOL/TOME 64] ! Himel J recognized the principle of stare decisis, but also considered the body of jurisprudence that provided guidance on when a court can revisit an issue. She used Laskin JA’s reasoning in Polowin Real Estate Ltd as a justification to reconsider the issue.102 Polowin contended that firm reliance on stare decisis “might lead to injustices in individual cases.”103 She also relied on the authority of the five factors listed by the Supreme Court in Bernard,104 Chaulk,105 and Salituro106 which establish when the top court can overrule an earlier decision. The factors are:
Where a previous decision does not reflect the values of the Canadian Charter of Rights and Freedoms; where a previous decision is inconsistent with or “attenuated” by a later decision of the Court; where the social, political or economic assumptions underlying a previous decision are no longer valid in a contemporary society; where the previous state of the law was uncertain or where a previous decision caused uncertainty; and, in criminal cases, where the result of overruling is to establish a rule favourable to the accused.107
The factors are echoed by the trial decision Leeson v. University of Regina, 2013 CanLIIDocs 114 which stated: “necessarily such revisitations must commence at the trial court level.”108 Himel J interpreted the authorities as allowing a lower court to deviate from a Supreme Court decision when the years between the decisions have yielded new jurisprudence and social facts justify readdressing the issue at bar.109 The evidence before Himel J was not present when the Supreme Court ruled in 1990 and she reasoned that the “social, political and economic assumptions underlying the Prostitution Reference are no longer valid today.”110
The Court of Appeal agreed the issues and evolution of s.7 warranted reexamining the bawdy-house and communicating provisions, because security of !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 102 Polowin Real Estate Ltd. v. The Dominion of Canada General Insurance Co. (2006) 76 OR (3d) 161 [Polowin Real Estate].
103 Bedford, supra note 2 at 68; Polowin Real Estate, supra note 119 at 121.
104 R v Bernard, [1988] 2 SCR 833.
105 R v Chaulk, [1990] 3 SCR 1303.
106 R v Salituro, [1991] 3 SCR 654.
107 Bedford, supra note 2 at 81.
108 Leeson v. University of Regina (2007), 301 Sask R 316, 2007 SKQB 252 qtd. in Bedford, supra, note 2 at 82.
109 Bedford, supra note 2 at 83.
110 Ibid at 83.
! [2013] BEYOND THE PROSTITUTION REFERENCE 203 the person was not at issue in the Prostitution Reference.111 However, with regard to the argument that the communicating provision violated s. 2(b) and needed to be revisited, the Court of Appeal found it was not open for Himel J to overrule the decision of the highest court, only to develop the record so the Supreme Court can determine whether or not it believes their previous position should be reevaluated.112 The Court of Appeal also found that Himel J’s reliance on the authority of Polowin Real Estate was misguided as it only allows for a court of the same level to reconsider its own decisions.113 The Court of Appeal also held it was not open for Himel J. to rule on the issue just because it had been framed differently from the previous decision of the Supreme Court.114 The Court of Appeal was concerned this would open decisions of the Supreme Court to reevaluation by the lower courts too frequently and relegate the “vibrant living tree” of constitutional interpretation to be recast into a “garden of annuals to be regularly uprooted and replaced.”115
While the two levels of courts disagreed in their approach to when previously decided issues warrant revisiting, the more important point is that the Supreme Court has agreed to take a fresh look at the communicating provision. It will rest with the 2013 CanLIIDocs 114 top court to decide whether the provision can remain in its current form or whether it will fail to pass constitutional muster in light of the evolved circumstances. With the benefit of the record from both levels of court and the overwhelming evidence of the harms that are worsened by the impugned provision, a Supreme Court decision to strike down the communicating provision would not be a moral endorsement of sex work. It would be a welcome move to help protect a vulnerable group, by allowing them to use techniques which prevent violence in sex work, which in and of itself is not a criminal act. It would also pave the way for community groups to expand upon programs that help move sex workers off the streets such as safe-house brothels.116 A Vancouver study, the results of which will be used as affiant evidence in the Bedford appeal to the Supreme Court, found that when safe spaces were offered for sex workers, the result was not only increased safety, but facilitated better relationships with police, access to informal safety mechanisms, an enhanced ability to negotiate transactions and a greater sense of dignity.117 The positive impact of these programs
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 111Ibid at 52, 66.
112 Bedford Appeal, supra note 5 at 76.
113 Ibid at 81.
114 Ibid at 82.
115 Ibid at 84.
116Safe house brothels provide spaces for sex workers to bring clients but sex workers are still dependant on soliciting those clients as currently prohibited by the communicating provision. See Bedford Appeal, supra note 5 at 368.
117 Andrea Krüsi et al “Negotiating Safety and Sexual Risk Reduction with Clients in Unsanctioned Safer Indoor Sex Work Environments: A Qualitative Study”, (June 2012) 102 American Journal of Public ! 204 UNB LJ RD UN-B [VOL/TOME 64] ! cannot be continued without law reform.
The report of the Missing Women Commission of Inquiry in British Columbia echoes many of the arguments that were made about the dangers faced by street-based sex workers, as many of them became victims of serial murderer Robert Pickton. Although the Commission, lead by former BC Attorney General Wally Oppal, was criticized for not going far enough to include the voices of marginalized women during the hearing process,118 the Commission confirmed “[t] here is no dispute that women engaged in the survival sex trade are at an extremely elevated risk for various forms of severe violence”.119
THE IMPACT OF THE INSITE DECISION
The 2011 Supreme Court decision in PHS will have a large impact on the Bedford case. The Supreme Court in PHS held that the government does have an obligation to protect those who are harmed by a law, when it can be empirically shown that the 2013 CanLIIDocs 114 harms created by the law are more severe than the harms prevented. The Court found that the Minister of Health’s refusal to grant a s. 56 exemption to the application of ss. 4(1) and 5(1) of the Controlled Drugs and Substances Act which would allow for the continued operation of Insite, a safe-injection site in Vancouver’s Downtown East Side, represented a breach of s. 7 rights that was both arbitrary and grossly disproportionate to the health and safety objectives of the Act and could not be upheld by the limitations in s.1 of the Charter.120
As anticipated, the decision in PHS has reverberated within the courts, who have already considered the implications of the ruling in relation to sex work.121 In Bedford, a wealth of evidence was presented showing the impugned provisions !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! Health, No 6, 1154-1159.
118 “Legal Group pulls out of B.C.’s Missing Women Inquiry” CBC News (20 September 2011), Online: CBC News
119 Forsaken: Report of the Missing Women Commission of Inquiry: Nobodies: How and Why We Failed the Missing and Murdered Women, Vol IIA (Victoria: Distribution Centre, 2012) at 1.
120 PHS, supra note 15 at 127.
121 Cameron Ward, “Canada (A.G.) v. PHS Community Services Society – The Insite Decision” Case Comment (2012) 50:1 Alta L Rev 195. PHS has also been cited in Carter v. Canada (Attorney General) 2012 BCSC 886, which granted a constitutional exemption for Gloria Taylor from the Criminal Code provisions that prohibit assisted suicide.
! [2013] BEYOND THE PROSTITUTION REFERENCE 205 prevent sex workers from taking precautions which would help protect themselves from violence. The government’s own research validated claims made by Bedford: “[a] review of s. 213 by the Standing Committee on Justice and the Solicitor General in 1990 concluded that street prostitution in cities across the country either had not decreased or had been displaced to other neighbourhoods.”122 In reference to the ineffectiveness of s. 213, Himel J held that “[b]y increasing the risk of harm to street prostitutes, the communicating law is simply too high a price to pay for the alleviation of social nuisance.”123 She turned to the appeal decision in PHS, the most recent at the time, to reinforce that the government needs to balance both the intended effects of a law and the actual effects of a law.124 While safe, orderly communities are a laudable goal, this order should not be achieved at the expense of the lives and wellbeing of sex workers.
As Galldin, Robertson and Wiseman stated, “the autonomy protected by Section 7 does not differentiate between state-approved choices and those that may be unpopular.”125 The government has conducted research on sex work and different modes of regulating the sex trade. While those reports have been collecting dust, sex 2013 CanLIIDocs 114 workers have continued to be the victims of violence. Not every choice rises to the level of Charter protection, however, in Rodriguez v. British Columbia (Attorney General),126 the Supreme Court, referencing Morgentaler,127 recognized the importance of personal autonomy and to what degree s.7 can be asserted to protects the rights that it grants. They stated: “personal autonomy involving, at the very least, control over one's bodily integrity free from state interference and freedom from state-imposed psychological and emotional stress”.128 To hold true to those values, it is imperative that the Supreme Court now strike down the impugned provisions.
On appeal, the Attorney General stated “the court below erred in assuming that an individual is entitled to engage in prostitution and that Parliament is obligated to minimize hindrances and maximize safety for those that do so contrary to law.”129 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 122 Parliamentary Information and Research Service, Prostitution in Canada: An Overview by Julie Cool (Ottawa: Library of Parliament, 2004), Online: Government of Canada Publications
123Bedford, supra note 2 at 504.
124 Ibid at 434.
125 Galldin et al, supra, note 12 at 26.
126 Rodriguez v. British Columbia (AG), [1993] 3 SCR 519 [Rodriguez].
127 R v Morgentaler [1988] 1 SCR 30.
128 Rodriguiez, supra note 126 at 136.
129 Bedford v. Canada (Attorney General), 2010 ONCA 814 (Factum of Appellant).
! 206 UNB LJ RD UN-B [VOL/TOME 64] ! The Court of Appeal found the authority of PHS was an apt comparison for the case that the sex workers had made.130 For sex workers, the situation is similar in that it is not sex work that poses the danger, but the client. The impugned provisions add to the danger of sex work by creating a situation where most precautions sex workers could take are prohibited by the criminal law. The Court of Appeal stated “in one sense, the prostitutes’ claim is even stronger in that prostitution, unlike illicit possession and use of narcotics, is not an unlawful activity.”131 The majority of the Court of Appeal later criticized Himel J’s reliance on PHS. MacPherson JA disagreed with the reversal of the majority’s opinion on the authority of PHS. It was his opinion that “PHS supports the conclusion that the communicating provision in this case, like the Ministerial decision in PHS violates s.7”.132
While several cases have already turned to PHS as demonstrating that the principles of fundamental justice against arbitrariness, overbreadth and gross disproportionality are distinct and should be considered individually, it remains to be seen how the Supreme Court will apply the analysis to the Bedford case. Given MacPherson JA’s strong dissent, the reasons of the Supreme Court in PHS and the 2013 CanLIIDocs 114 changes in circumstances since the Prostitution Reference, the Supreme Court should strike down the impugned provisions. Due to the fact that a finding of gross disproportionality is a high standard to meet, the Supreme Court has yet to overturn a law on this basis under s. 7.133 It is possible Bedford will become a first in that regard. Deference must be paid to the objectives of legislation; however, the opportunity to protect an already marginalized group who face violence in the course of a legal activity warrants judicial intervention.
CONCLUSION
Bedford should serve as a call to action. In the wake of the murder conviction of Robert Pickton, the dangers faced by sex workers have become more evident. The comments of Williams J, the British Columbia Supreme Court judge who sentenced Pickton, spoke to the fragile position of the murdered women which struck at the core of the Bedford case: “[t]he women who were murdered, each of them, were members of our community. They were women who had troubled lives and who found themselves in positions of extreme vulnerability.”134 That sex workers face a !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 130 Bedford Appeal, supra note 5 at 116.
131 Ibid
132 Ibid at 363.
133 Hamish Stewart, Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms (Toronto: Irwin Law Inc, 2012) at 149.
134 R v. Pickton, 2007 BCSC 2039 at 16.
! [2013] BEYOND THE PROSTITUTION REFERENCE 207 greater propensity to violence, because of the criminal provisions that prevent them from taking measures to protect themselves should have been enough to compel the government to take action.
A finding of unconstitutionality by Canada’s highest court would force the change necessary to bring Canada’s sex work laws in line with other liberal democracies like New Zealand where sex work was decriminalized in 2003 with the passing of the Prostitution Reform Act.135 The PRA, which commenced as a health initiative, repealed the criminal provisions surrounding the sex trade, and introduced new measures to criminalize only aspects that involve children. What was created is a comprehensive piece of legislation that offers sex workers not only greater protection from exploitation, but grants them the same occupational health and safety rights as any other worker. After being in force for five years, PRA underwent a review to ascertain its effectiveness. The report concluded that:
During that time, the sex industry has not increased in size, and many of 2013 CanLIIDocs 114 the social evils predicted by some who opposed the decriminalisation of the sex industry have not been experienced. On the whole, the PRA has been effective in achieving its purpose, and the Committee is confident that the vast majority of people involved in the sex industry are better off under the PRA than they were previously.136
The Director of HIV, Health and Development practice for the UNDP commended New Zealand’s law for “promoting safety and slowing the spread of HIV”.137 With positive implications for both the safety and the health of sex workers, and a legislative model that has been proven effective, Canada should be confident in moving forward with law reform that would decriminalize the sex trade.
Putting this issue back on the shelf for another twenty years would only put Canada further behind progressive nations that have already implemented legal reform to liberalize the sex trade. Prostitution will always find a place in society; decriminalizing the sex trade would mean that the law is no longer contributing to the violence that sex workers face. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 135 Prostitution Reform Act 2003 (NZ), 2003/28.
136 New Zealand, Ministry of Justice, Report of the Prostitution Law Review Committee on the Operation of the Prostitution Reform Act 2003 (Wellington: Ministry of Justice, 2008) Online: Ministry of Justice
137 Josh Martin, “NZ - it's a great place to be a prostitute” The New Zealand Herald (26 Oct 2012), Online: The New Zealand Herald
! NO SHADOWS IN THE FOG: PERSONAL REFLECTIONS ON THE WORKING TO MAKE THE PROMISE OF EQUALITY A LIVED REALITY
* Melina Buckley
The pursuit of substantive equality is an ongoing struggle. I imagine the struggle for equality as a long journey, a road marked by forks, turning points and dead ends. I imagine many of us setting out on this journey, working in our own ways, alone and together; creating a dense network of pathways to our shared aspirational goals. This journey is to an unknown place, a land of full substantive equality for all, but there are numerous way stations en route where one can stop and assess the road travelled and the road ahead; to pause and perhaps to enjoy a small success, a reassurance that we are on a correct track. 2013 CanLIIDocs 114
These way stations can sometimes take the form of a deliberately created space and time to assess the journey’s progress. These spaces can be well-planned and multi-faceted initiatives, such as the national forum entitled Transforming Women’s Future: Equality Right in the New Century hosted by West Coast Legal Education and Action Fund in 1999 as part of its achieving equality in the new millennium initiative.1 They can be stand alone publications containing multiple diverse perspectives such as this special volume of the University of New Brunswick Law Journal on the theme of the promise of substantive equality: are we there yet? They can also be generated at critical moments in the development of an equality-seeking legal strategy or triggered in a more impromptu fashion.
I experienced an unexpected way station during a recent appeal. A line of reflection about where we are was triggered for me by a comment made by Mr. Justice Donald of the British Columbia Court of Appeal in the course of a hearing on the constitutionality of hearing fees charged by the provincial government to the plaintiff for a day in court, fees that escalate substantially for longer trials.2 Sharon Matthews Q.C. and I were representing the Canadian Bar Association - BC Branch as an intervenor in this matter. Our constitutional arguments were largely premised !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! *!Melina Buckley is an associate with Camp, Fiorante, Matthews & Mogerman. 1 The national forum contributed to the publication of Transforming Women’s Future: A Guide to Equality Rights Theory and Action (M. Buckley, ed., West Coast LEAF, 2001) online:
The provincial Crown took the position that we could not argue equality rights because there was no pleading that the hearing day fees infringed s. 15 of the Canadian Charter of Rights and Freedoms. Mr. Justice Donald rejected this view and in clear and unguarded terms described his sympathy to the parties “just not wanting to go down that road.” I paraphrase his comments here in a manner that I hope does them justice. He said something to the effect, that it came as no surprise to him that the Canadian Bar Association had stayed clear of framing a s. 15 argument given the “fog” that is s. 15 jurisprudence with its “countless ups and downs, twists and turns, and ins and outs.” My jaw dropped (I hope not too noticeably) to hear such an apt description from the bench of the murky, gloomy miasma that characterizes the majority of s. 15 jurisprudence. Then I started to ponder the implications of foggy, impenetrable s. 15 analyses, and its impact on some of the equality work outside of the courtroom that has engaged me over the 2013 CanLIIDocs 114 past few years.
THERE ARE NO SHADOWS IN THE FOG
All government institutions have the responsibility to respect, promote and fulfill constitutional rights and civil society institutions have an important role in encouraging and monitoring the full implementation of rights. Lawyers often focus on the role of courts in declaring rights and remedying rights violations. Courts, however, play a small, residual but still vital role in ensuring progress toward achieving substantive equality through legal means. Clear judicial pronouncements on the meaning and extent of equality rights norms not only regulate the specific matter before the court, these pronouncements cast strong shadows within which other legal change strategies can flourish, and where successful, can result in the actual enjoyment of equality extending well beyond the scope of the originating judgment.
My use of the term “shadow” in this context finds its origin in an oft-cited article by Robert Mnookin and Lewis Kornhauser “Bargaining in the Shadow of the Law: The Case of Divorce”.3 Mnookin and Kornhauser introduced an alternative way of conceptualizing divorce law: law operating not by imposing order from above in the courtroom but rather, by providing a framework within which parties to a marriage can gain the assistance required to negotiate post-dissolution rights and responsibilities. Similarly, substantive equality norms serve as legal shadowing, delineating the space within which equality-building work can take place. Legal !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 3 Robert Mnookin & Lewis Kornhauser, “Bargaining in the Shadow of the Law: The Case of Divorce” (1979) 88 Yale LJ 950. 210 ! UNB$LJ$$$$$RD$UN)B$$ $[VOL/TOME64]$ ! shadows cast indirect light, shading rather than determining outcomes outside of the courtroom. The clarity of the legal norm correlates to its power to guide dialogue, negotiation and reform. I recognize that this definition of shadow does not comport with the laws of physics in a strict sense, but it is consistent with our understanding of what is meant by bargaining, or in this case equality-seeking, in the shadow of the law.
One example of clearly delineated substantive equality norms originates in the Supreme Court of Canada’s decision on the extent of the duty to accommodate under human rights legislation in a case brought by Tawney Meiorin who challenged the validity of a mode of fitness testing required of forest firefighters.4 The Court’s decision in that case cast a long ultra-sharp legal shadow encouraging the proactive development of more inclusive, equal workplaces and the provision of public services.5 I am hard-pressed to identify a comparable delineation of substantive equality rights norms in the Supreme Court of Canada’s s. 15 jurisprudence. This is not to say this body of case law offers no assistance, there are shiny bits here and there, positive outcomes, strong turns of phrase (often in obiter) which litigators can 2013 CanLIIDocs 114 and do weave together to craft substantive equality rights arguments. Certainly the Court has steadfastly described s. 15 as a substantive equality provision from its first decision in Andrews6 to its latest decisions. Nevertheless, the fact is that this jurisprudence when viewed as a whole can be aptly described as a “fog” and a dense one at that. There are no shadows in the fog and this absence of shadows is detrimental to the shared goal of achieving substantive equality. Murky substantive equality rights norms disempower equality-rights seekers in the same measure that crystalline norms empower us to do this work.
In the courtroom, equality-seekers rarely have a an unfettered choice of legal framework, generally speaking their claims need to be based on either s. 15 or provisions in human rights legislation. Substantive equality rights norms flow back and forth between these two regimes, as enlarged by to some extent by equality doctrines developed under international and comparative equality rights law. Equality-seekers engaged in negotiating in the shadow of the law have greater flexibility in choice of normative order. As I reflect on my recent work, I realize that my colleagues and I rarely summon up s. 15 jurisprudence as the primary shelter for our efforts. I will illustrate my point through a brief description of the approach taken in two initiatives: a joint Canadian Bar Association-Nepal Bar Association project developing a guide to implementing constitutional equality rights under the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 4 British Columbia (Public Service Employee Relations Commission) v British Columbia Government and Service Employees’ Union (BCGSEU), [1999] 3 SCR 3, SCJ No 46. 5 I discuss the impact of this decision in greater detail in M. Buckley, “Law v. Meiorin: Exploring the Governmental Responsibility to Promote Equality Under Section 15 of the Charter” in Fay Faraday, Margaret Denike, & M. Kate Stephenson ,!eds, Making Equality Rights Real: Securing Substantive Equality Under the Charter (Irwin Law, 2006), 179-206, at 187-192. 6 Law Society of British Columbia v. Andrews, [1989] 1 SCR 143, SCJ No 46. [2013] NO SHADOWS IN THE FOG 211 ! new Nepali constitution and the Missing Women Commission of Inquiry in British Columbia.
IMPLEMENTING CONSTITUTIONAL EQUALITY RIGHTS IN NEPAL
The people of Nepal have been engaged in a period of constitution making since 2007.7 The Canadian and Nepali Bar Associations developed and implemented a joint project from 2008 to 2011 to support democratic and constitutional developments in Nepal. One aspect of this larger Developing Democracy in Nepal initiative involved working with members of the Bar, the Constituent Assembly and civil society organizations to promote the adoption of strong equality-promoting constitutional provisions and proactive plans for implementation. I was a member of the team of Nepali and Canadian experts providing technical support to this initiative from 2008 to 2010.
One facet of this initiative a series of workshops on implementing 2013 CanLIIDocs 114 constitutional equality rights with a focus on gender equality. The idea was to gather together key ideas, strategic options and specific examples employed in other countries as a starting point for facilitated dialogue within Nepal. The material developed for this purpose and refined through a collaborative workshop process was collated into a manual and resources designed to foster ongoing dialogue and action.8 It was anticipated that these materials would inform the development of plans to implement constitutional equality rights, enhance capacity for implementation and assist in building human rights institutions and practice at this critical phase in Nepali history. As one of the resource people charged with gathering the key ideas, options and examples to share with our Nepali colleagues, I found this initiative to be an important opportunity to reflect on what lessons we might have to share from our own uncertain Canadian path toward achieving substantive equality.
What were the points to be highlighted from our journey thus far? A first critical point was that the right to equality be should recognized in the constitution in unequivocal terms that impose positive obligations on governmental actors. Constitutions matter but constitutional words are not self-executing: they do not come about simply because they are promised in a document. Even powerful words
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 7 Nepal is currently governed by the Interim Constitution of 2007. An elected Constituent Assembly was originally scheduled to present a new constitution for ratification in May 2010. This task remains incomplete despite several extensions.!! 8 Implementing Constitutional Rights: Training Kit. The kit includes a Workbook, a CD-ROM containing resources and facilitation guides and a discussion paper entitled From Words of Promise to Lived Reality: Implementing Constitutional Equality Rights (Kathmandu: Nepal Bar Association, October 2011). [From Words of Promise to Lived Reality] 212 ! UNB$LJ$$$$$RD$UN)B$$ $[VOL/TOME64]$ ! without action remain merely an intention or a promise. This key idea was described in these words:
The constitutional right to equality is a bridge or a legal tool to be employed to diminish and eventually erase the gap between the promise of equality and experience of inequality and to create a situation in which all can flourish in the lived reality of equality.9
The easy part, as it turned out, was to describe the roles and responsibilities of legislatures, executives, specialized human rights bodies, the courts, and civil society organizations in implementing equality rights.10 We had a lot to say about action plans, indicators and monitoring.11
Looking back at this work in the context of this reflection, it is not surprising that few of the lessons we chose to share emanated from the s. 15 jurisprudence. Yes, we described the way Charter jurisprudence has repudiated
formal equality and embraced substantive equality. When it came time to describing 2013 CanLIIDocs 114 substantive equality norms and linking them to the achievement of lived equality for women, all of our examples came from the international legal order. We talked about how the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)12 particularizes women’s constitutional equality rights and it can serve as the “shadow” within which to negotiate the meaning of women’s equality in Nepal including in setting of goals in the implementation plan. Beyond the delineation of the abstract categories of various forms of discrimination (adverse effects, multiple or intersecting, systemic) there was little inspiration to be found in the s. 15 jurisprudence that gave concrete meaning to the concept of substantive equality taking into account the actual living conditions of various groups of women with an emphasis on the most disadvantaged and marginalized.
REVIEWING POLICE CONDUCT IN AN EQUALITY RIGHTS FRAMEWORK
Section 15 jurisprudence turned out to be similarly unhelpful in developing a robust legal framework for the review of police conduct. The government of British Columbia established the Missing Women Commission of Inquiry in September 2010 with a central mandate to investigate and make findings of fact with respect to police investigations of cases of women reported missing from the Downtown Eastside of the city of Vancouver from January 1997 to February 2002 and to make
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 9 From Words of Promise to Lived Reality, supra note 8 at 1. 10 From Words of Promise to Lived Reality, supra note 8 at 17-34. 11 From Words of Promise to Lived Reality, supra note 8 at 4, 14-16, 35-36. See also the Workbook and CD ROM of resources that are in this kit.! 12 Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979, 1 UNTS 1249 at 13, (entered into force 3 September 1981). [2013] NO SHADOWS IN THE FOG 213 ! recommendations for the improvement of the initiation and conduct of missing women and suspected multiple homicides.13 While the Inquiry centered largely on the horrendous crimes committed by serial killer Robert Pickton, it also acknowledged that the tragedy of missing and murdered women is one of the epic proportions that extends far beyond the deeds of one man and the time and place limitations of its terms of reference. The Commission released its report to the public on December 17, 2012.14 I served as policy counsel to the inquiry with primary responsibility for the study commission aspects of the inquiry (as distinct from the formal hearings) and write from the perspective of one closely connected to this work.
Two of the focal points of the Commission’s work were to study, understand and make findings of fact concerning the context of the missing and murdered women’s lives and to review the police conduct within an equality rights framework. The report demonstrates, at least in these two respects, the operation of the shadow of substantive equality rights norms in a non-judicial forum. 2013 CanLIIDocs 114
Volume I of the Commission Report is entitled The Women, Their Lives and the Framework of the Inquiry: Setting the Context for Understanding and Change. It contains an overview of the international, national and provincial dimensions of the crisis of missing and murdered women15 and brief portraits of the 67 women included within the Commission’s fact-finding mandate.16 The context of women’s lives and deaths is reviewed under four main headings: the Downtown Eastside community, conditions of marginalization and vulnerability, the disproportionate number of Aboriginal women victims, and the survival sex trade.17
The Commission made a number of findings of fact based on this evidence:
The missing and murdered women were members of one of the most marginalized groups in Canadian society. As a group, these women shared the experience of one or more disadvantaging social and economic factors: violence, poverty, addiction, racism, mental health issues, intergenerational impact of residential schools and so on. A disproportionate number of the women were Aboriginal; this is sadly consistent with the broader provincial and Canadian trend of Aboriginal !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 13 The full terms of reference can be viewed online:
More specifically, the Commission found that a number of conditions contributed to the women’s vulnerability to violence: grossly inadequate housing, food insecurity, health issues and inadequate access to healthcare, extreme poverty, and drug dependency.19 The women’s lives were structured to a large extent by drug addiction and the horrible consequences of drug sickness, and the Commission concluded that “withdrawal in itself posed additional safety risks.”20 The report notes that “there are symbiotic relationships between poverty, drug addiction and the survival sex trade.”21
The Commission recognized in unflinching terms that the women’s 2013 CanLIIDocs 114 marginalized status meant that they were seen as “nobodies” by much of society and that their devalued, precarious social status made them the target of predators, like poor women across Canada and around the world.22 This recognition inevitably leads to the question of whether the women’s marginalized status also had an impact on the police investigations. This was one of the most contested questions before the Commission and it was answered in the affirmative. One of the report’s main findings is that systemic bias played a role in the police failures.23
While the finding of bias has garnered headlines, little attention has been paid to the rationale for that conclusion. Volume I elaborates the Commission’s approach to reviewing police actions within an equality rights framework.24 Section 15 jurisprudence provides a conceptual foundation for these legal duties anchored as they are in the general definitions of substantive equality and a recognition of adverse effects and systemic discrimination. The contextualized norms needed to guide the equality analysis vis-à-vis police duties are derived mainly from US Department of Justice policy25 and international human rights law both of which !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 18 Forsaken: Volume IIA, at 1. 19 Ibid. 20 Ibid. 21 Ibid. 22 Ibid, at 2. 23 Forsaken: Volume IIB at 217-238, 289-290. 24 Forsaken: Volume I, at 114-127. 25United States Department of Justice, Civil Rights Division, Investigation of the New Orleans Police Department (Washington: Department of Justice, 2011), at 31-32. [USDOJ].! [2013] NO SHADOWS IN THE FOG 215 ! incorporate the notion of a proactive duty to protect women from violence. The Commission also relies on the judgment of the Ontario Superior Court in the Jane Doe Case, 26 which did create a very effective shadow for incorporating substantive equality norms into police conduct in sexual assault cases.27
Aside from the Jane Doe Case, the Commission had to look further afield for more refined substantive equality norms relevant to it mandate. The US Department of Justice’s definition of discriminatory policy was developed for the purpose of reviewing US police forces’ compliance with the US Constitution and federal civil rights law and specifically recognizes that discriminatory policing is manifested in the under-investigation and under-enforcement of crimes of violence against women. 28 The Commission also relied heavily on the more advanced international legal norms that emphasize the requirement that governments and governmental actors including police forces demonstrate “due diligence” in taking sufficient measures to respond to this violence against women and girls.29 Under international law, the due diligence standard refers to the standard of care required of States to prevent, investigate, punish and provide remedies for acts of violence 2013 CanLIIDocs 114 regardless of whether these are committed by State or non-State actors.
The standard of due diligence has been considered and applied by numerous courts as a practical tool allowing them to assess whether the state has met its human rights obligations to protect women from violence committed by both private and state actors. The Commission undertook a review of this international jurisprudence 30 and summarized this research in its report. The Commission concluded:
While the requirements of due diligence depends on a case-by-case analysis, the courts have nonetheless provided some general guidelines. The obligation on state authorities includes several clear duties:
• The duty to investigate promptly and effectively !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 26 Jane Doe v Board of Commissioners of Police for the Municipality of Metropolitan Toronto et al, (1998) 39 OR (3d) 487, OJ No 2681, Ont Ct J (Gen Div). The Court found that the police had violated Jane Doe’s constitutional rights to equality and her right to physical security and had failed in their duty to protect her and other women in her position. The Court held that Jane Doe was not simply discriminated against as a woman by the individual officers involved in the case but that systemic bias existed within the police force, which adversely impacted all women. 27 See also the Commission’s discussion of the role the Jane Doe case played in structuring a change process centered on an external audit of the Toronto police service’s conduct of sexual assault investigations. Forsaken: Volume III, at 59. 28 USDOJ at 43-50. 29 Forsaken: Volume I, at 123-127. 30 Missing Women Commission of Inquiry, Violence Against Women: Evolving Canadian and International Legal Standards on Police Duties to Protect and Investigate (Vancouver: Missing Women Commission of Inquiry, 2012), at 38-68.! 216 ! UNB$LJ$$$$$RD$UN)B$$ $[VOL/TOME64]$ ! • The duty to take effective judicial action • The duty to take adequate prevention measures, and • Heightened duty owed to particularly vulnerable groups.31
It is the substantive equality norms developed under US and international law that provided the framework for the Commission’s findings and recommendations. The report includes fourteen recommendations designated as “equality-promoting measures.” 32 They are aimed at further translating equality norms into police practices so as to contribute to the increased safety of marginalized and vulnerable women.
The Missing Women Commission of Inquiry has completed its work. The terrain of action has shifted to a whole set of individuals, institutions and organizations with the responsibility to implement the Commission’s recommendations. Only time will tell whether the contextualization of the police failures in the reality of the missing and murdered women’s lives and the framing of the failures within a substantive equality norms assists in creating the required space 2013 CanLIIDocs 114 for the community-police dialogue required to effect real change. From my perspective, the Commission will achieve a measure of success if becomes a shadow within which women’s equality can be advanced in concrete ways leading to enhanced safety for the most vulnerable women and girls in our communities.
CONCLUSION
My recent experiences with constitution-making in Nepal and the Missing Women Commission of Inquiry in British Columbia have underscored the foggy quality of all but the most basic elements of s. 15 jurisprudence and its consequent lack of utility as to shelter and inform equality-seekers working in the shadow of the law. Much work lies ahead in creating substantive equality norms in the context of Charter litigation. Creative approaches such as those fostered by the Women’s Court of Canada33 and other feminist legal judgment projects that allow greater space for imaginative legal analysis are one important path for getting unstuck from current s. 15 jurisprudence with its “countless ups and downs, twists and turns, and ins and outs.” I am in no way arguing for abandoning the powerful words of constitutional equality – we need to reimagine and reinvigorate it. In the mean time we can rely on the shadows offered by substantive equality norms developed under alternate legal orders as briefly described in this reflection.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 31 Forsaken: Volume I, at 125. 32 Forsaken: Volume III, at 56-85. 33 For more information see online:
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 34 Vilardell v Dunham, 2013 BCCA 65, at para 39. 35 Ibid at paras 39-40.!! BARRIERS TO WOMEN’S POLITICAL PARTICIPATION IN CANADA
* Melanee Thomas
THE CONTINUED UNDER-REPRESENTATION OF WOMEN IN CANADIAN POLITICS
In The Second Sex, Simone de Beauvoir noted that, among other things, politics “has always been a man’s world.” 1 This statement remains as true today as it was when it was first published. In all aspects of political leadership – be that in the community, in advocacy, or in electoral politics – Canadian politics is a man’s world. Here, I outline why this is the case, identifying obstacles to women’s political participation at the individual, social, and political levels. I conclude by examining if targeted education efforts such as campaign schools can help women overcome these barriers. 2013 CanLIIDocs 114
It may be tempting to conclude that women have made great political gains in Canada. More women were elected to the House of Commons in 2011 than ever before in the past. As of early 2012, women lead six provincial or territorial governments: British Columbia, Alberta, Ontario, Quebec, Newfoundland and Labrador, and Nunavut. However, many of these women are in “glass cliff” circumstances: their party’s electoral fortunes have declined to the point where their re-election prospects are grim.2 Furthermore, these higher profile political events obscure the dearth of women in politics in Canada. Less than 20 per cent of the candidates nominated by major parties in 2011 were women; this is much the same as it was in 1997.3 Stated differently, Canada’s political parties nominate and elect about as many women today as they did fifteen years ago (see Appendix A). And yet, Canada’s international ranking for women’s political representation fell from 16th in
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! * Melanee Thomas, BA (Lethbridge), MA (Calgary), PhD (McGill), is Assistant Professor at the Department of Political Science, University of Calgary. 1 Simone de Beauvoir, The Second Sex, translated by H.M. Parshley. (New York: Vintage Books, 1989). 2 Research shows that women leaders are often preferred to men only under these precarious circumstances. See Susanne Bruckmüller and Nyla Branscombe, “The glass cliff: When and why women are selected as leaders in crisis contexts” (2010) 49 British Journal of Social Psychology 433. 3 Elections Canada, Final List of Confirmed Candidates -- 41st General Election (6 June 2011), online: Elections Canada
1997 to 49th in 2011.4 It is hardly surprising that the Canadian electoral project – the goal to elect 50 percent women to legislatures – is characterized as “stalled.”5
Indeed, if women’s political empowerment is measured as women’s participation in political decision-making at the national level, then gender-based political inequality is the most pernicious and robust indicator of inequality. This is measured by the Global Gender Gap Reports6 In the top-ranked country (Iceland), women’s political empowerment is roughly two-thirds of men’s; in Canada, women’s political empowerment is less than 20 per cent of men’s.7
Women’s political underrepresentation is not restricted to names on federal election ballots. In 2010, women comprised a mere 25% of municipal elected representatives in some Canadian provinces.8 This is the same rate of participation as the federal House of Commons, though municipal politics is broadly perceived to be more “woman friendly.” Similarly, though women are as likely as men to vote,9
academic research concludes they have been less likely than men to be members of 2013 CanLIIDocs 114 political parties and civil society-based advocacy groups.10 Research also shows that women are less likely than men to work on political campaigns for parties and for
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 4 Interparliamentary Union, Women in Parliaments: Word and Regional Averages (Statistical Archive), online: Interparliamentary Union
The most recent data suggest that some of these trends have changed over time, while others have persisted. According to the 2011 Canadian Election Study,12 women and men are now equally likely to have volunteered for, and been members of a political party at some point in their lives. Women and men are equally likely to sign petitions, engage in protest activities, and use the Internet to be politically active. They are also equally likely to have been active in professional, environmental, and ethnic associations. However, women remain less likely to donate to political parties.13 Women are less likely than men to participate in buycotts – buying products for political, ethical, or environmental reasons – and women remain less likely than men to volunteer for a community group or non-profit organization. Women continue to be less likely than men to be active in unions, and business and sports associations.
2013 CanLIIDocs 114 Finally, women are less likely to be interested in politics or confident in their political abilities.14 They are also less likely to be knowledgeable about some aspects of political affairs.15
WHY ARE WOMEN’S LOWER LEVELS OF POLITICAL PARTICIPATION PROBLEMATIC?
Women’s lower levels of political participation are problematic for three reasons. First, women are a historically underrepresented group. In the past, they were formally barred from participating in politics and democracy. Even though these formal restrictions have been removed, informal barriers continue to act to hamper women’s political participation. In the face of these barriers, Canada’s representative institutions cannot function in a just, fair, and democratic manner. Second, women
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 11 Nancy Burns, Kay Leman Schlozman, and Sidney Verba, The Private Roots of Public Action (Cambridge, MA: Harvard University Press, 2001); Gidengil et al.; Ronald Inglehart and Pippa Norris, Rising Tide: Gender Equality and Cultural Change around the World (New York: Cambridge University Press, 2003); Young and Cross; Young and Everitt. 12 Patrick Fournier et al. The 2011 Canadian Election Study [Dataset]. Author’s calculations. 13 This difference in donations does not achieve conventional levels of statistical significance. The other differences are statistically significant at p<0.05. 14 Jennifer Lawless and Richard Fox, It Still Takes a Candidate: Why Women Don't Run for Office (Cambridge: Cambridge University Press, 2010); Melanee Thomas, "The Complexity Conundrum: Why Hasn't the Gender Gap in Subjective Political Competence Closed?" (2012) 45:2 Canadian Journal of Political Science 337 [Thomas “Complexity”]; Melanee Thomas, Feminist Mobilization and Gender Gaps in Political Interest (2012) [unpublished, archived at the University of Calgary] [Thomas, “Feminism”]. 15 Dietlind Stolle and Elisabeth Gidengil, "What Do Women Really Know? A Gendered Analysis of Varieties of Political Knowledge" (2010) 8:1 PS: Perspectives on Politics 93. [2013] BARRIERS TO WOMEN’S POLITICAL PARTICIPATION 221
are a heterogeneous group with a diversity of political opinions and preferences.16 Representing this diversity is difficult, if not impossible, with a small number of representatives and activists. This task would be more realistically achieved if women are as active in politics as justified by proportionality and their demographic weight.17 Third, research shows that in the legislature and the laboratory alike, women’s and men’s decision-making behaviour changes with the gender composition of that group.18 Specifically, men paired with women are more likely to choose outcomes that closely match their preferences than are teams made up exclusively of men, 19 and women are more likely than men to “prioritize the protection of the vulnerable and support government intervention on ‘compassion’ issues.”20 This suggests that women’s lower levels of political participation lead to outcomes that are less desirable for society as a whole.
These trends – or, rather, the stability of women’s lower levels of political participation – suggest that that considerable barriers to women’s political participation persist in Canada. These barriers exist at the individual,
community/social, and political levels; specific barriers at each level will be 2013 CanLIIDocs 114 discussed in turn.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 16 Elisabeth Gidengil, "Beyond the Gender Gap: Presidential Address At the Canadian Political Science Association, Saskatoon 2007" (2007) 40:4 Canadian Journal of Political Science 815; Pei-Te Lien, "Does the Gender Gap in Political Attitudes and Behavior Vary across Racial Groups?" (1998) 51:4 Political Research Quarterly 869. 17 Jane Mansbridge, "Myth and Reality: The Era and the Gender Gap in the 1980 Election" (1985) 49:2 Public Opinion Quarterly 164. This is one theoretical idea that underpins the notion of a “critical mass” of women in politics. Many academics and advocacy groups argue that real political change can occur for women in politics once they comprise 30 percent of a decision-making group, as advocated for by the Federation of Canadian Municipalities. Others argue that this characterization of “critical mass” is based on a misinterpretation of earlier work, and that increasing the number of women in politics could potentially lead to less cohesive political representation for women. See Sarah Childs and Mona Lena Krook "Critical Mass Theory and Women's Political Representation" (2008) 56 Political Studies 725. Those arguing from this second perspective suggest that “critical actors” may be more important for women’s political representation. 18 Nicholas Goedert, Christopher Karpowitz, and Tali Mendelberg, "Does Descriptive Representation Facilitate Women's Distinctive Voice? How Group Gender Composition and Decision Rules Affect the Content of Deliberation" (Paper delibered at the NYU CESS Annual Experimental Political Science Conference, New York, 3 March 2012), online:
Individual-Level Barriers to Women’s Political Participation
A number of individual-level barriers contribute to women’s lower levels of political participation. The most important barriers at this level today in Canada are psychological. One socioeconomic factor – income – continues to be an important individual-level barrier.
Historically, socioeconomic factors were highlighted in the literature as the most important. The earliest studies of political behaviour argued that as women’s levels of education, income, and occupational status caught up to men’s, so too should their levels of political participation and engagement.21 Canadian women’s levels of education now rival and even exceed men’s.22 Though women’s median income is about two-thirds of men’s, women’s wages grew faster than men’s since the late 1980s, and women have been steadily moving into higher status occupations over time.23 These factors are not immaterial to political participation: education and household income are both strong predictors of participation in Canada.24
2013 CanLIIDocs 114
If women’s lower levels of political participation could be explained by these socioeconomic factors, then gender gaps in political participation should have narrowed, if not closed over time. This has not been the case.25 Though women’s lower levels of earned income remain a barrier to their political participation, women’s other socioeconomic gains – notably, their great strides in educational attainment – should have powerful effects on closing gender gaps in political participation. This may be due, in part, to the fact that women remain underrepresented in the upper echelons of many professions, despite their education gains overall. Still, because women’s political underrepresentation persists, other barriers must also be at work.
Income acts as an individual-level barrier through campaign finance regulation (or lack thereof). Electoral contests remain unregulated in some municipal !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 21 Gabriel Almond and Sidney Verba, The Civic Culture: Political Attitudes and Democracy in Five Nations (Princeton, NJ: Princeton University Press, 1963); A Campell et al., The American Voter (New York: John Wiley & Sons, Inc, 1960); Paul Lazarzfeld, Bernard Berelson, and Hazel Gaudet, The People's Choice (New York: Columbia University Press, 1968). 22 Statistics Canada, “Educational Portrait of Canada, 2006 Census.” (Ottawa, Minister of Industry, 2006; OECD, Centre for Educational Research and Innovation, The Reversal of Gender Inequalities in Higher Education: An On-going Trend by Stéphan Vincent-Lancrin, Higher Education to 2030 (Paris: OECD, 2008). 23 Statistics Canada, Why has the Gender Wage Gap Narrowed? by Marie Drolet (Ottawa: Minister of Industry, 2011); Statistics Canada, 2006 Census of Population, Catalogue No. 97-563-Xcb2006068. (Ottawa: Minister of Industry, 2011); A Eagly and L Carli, Through the Labryinth: The Truth About How Women Become Leaders (Boston: Harvard Business School Press, 2007). 24 Gidengil et al. 25 Ibid. Lawless and Fox. [2013] BARRIERS TO WOMEN’S POLITICAL PARTICIPATION 223 and provincial jurisdictions. This lack of regulation requires potential candidates for office to rely on conventional sources of campaign finance, including personal income.26 This individual-level barrier can be mitigated through campaign finance regulation, as noted below in the “political barriers” section below.
In the absence of systematic socioeconomic barriers, psychological barriers become more important for women’s political participation. Women are less likely than men to be interested in or knowledgeable about politics.27 Women are also less likely than men to be confident in their political abilities.28 Research from the United States shows that women’s lower levels of political self-confidence translates directly into a gender gap in political ambition. This suppresses women’s desire to run for political office at all levels of government. 29 Importantly, levels of socioeconomic resources and family responsibilities do not directly explain why women report lower levels of psychological orientations to politics than do men.30 This suggests that leadership programs that target the development of political interest and political self-confidence may help some women overcome an individual- level barrier to political participation. 2013 CanLIIDocs 114
Though women’s marital and parental status do not have statistically significant direct effects on their likelihood of considering a candidacy, or on their psychological engagement with the political system, most women perceive that family responsibilities pose one of the greatest barriers to their participation in politics.31 This is intuitive: women who work full-time outside the home spend, on !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 26 Cross. 27 Women are as, and sometimes more, likely than men to possess knowledge of government programs and services and benefits. However, the women who are most likely to need government services benefits – poor women, recent immigrants – are the least likely to know about these programs. See Stolle and Gidengil. 28 Linda Bennett and Stephen Earl Bennett, "Enduring Gender Differences in Political Interest: The Impact of Socialization and Political Dispositions" (1989) 17:1 American Politics Quarterly 105; Stephen Earl Bennett, "Knowledge of Politics and Sense of Subjective Political Competence: The Ambiguous Connection” (1997) 25:2 American Politics Research 230; Gidengil et al.; Elisabeth Gidengil, Janine Giles, and Melanee Thomas, “The Gender Gap in Self-Perceived Understanding of Politics in Canada and the United States” (2008) 4:4 Politics & Gender 535; Lawless and Fox; Stolle and Gidengil; Melanee Thomas Gender and Psychological Orientations to Politics (PhD Dissertation, Department of Political Science, McGill University, Proquest UMI Dissertations Publishing 2012) [Thomas “Psychological”]; Thomas, “Feminism”; Thomas, “Complexity”; Jan Van Deth, "Interest in Politics" (1990) in M. Kent Jennings and Jan W. Van Deth, eds, Continuities in Political Action: A Longitudinal Study of Political Orientations in Three Western Democracies (Berlin: Walter de Gruyter & Co); Jan Van Deth, "Political Interest and Apathy: The Decline of the Gender Gap?" (2000) 35:3 Acta Politica 247. 29 Lawless and Fox. 30 See Bennett and Bennett; Burns, Schlozman and Verba; Gidengil, Giles and Thomas; Thomas, “Complexity.” Instead, women in Canada generate less political interest and political self-confidence from higher levels of income. See Thomas, “Complexity”; Thomas” Psychological.” Why this is the case remains unknown. 31 Lawless and Fox at 172-173; see also Alberta Urban Municipalities Association. 224 UNB LJ RD UN-B [VOL/TOME 64] average, almost double the hours engaged in child care than do comparably situated men.32 This pattern holds when women in political careers are examined.33 Thus, the absence of a direct effect of family responsibilities on women’s political participation is perplexing.
Instead of exerting a direct effect on women’s political participation, family responsibilities place women in a “double bind.” They must be successful in their political and civic activities, as well as successful in their private roles as “wife” and “mother.” Stated differently, for women to “be successful public citizens, [they] must also be successful private citizens.”34 These requirements are not the same for male politicians.35 The result is that women who decide to engage in community or political activities do so with considerable supports from their spouses, friends, and extended support networks.36 Interviews show that politically active women report that they “wouldn’t be able to do anything like run [for office] without the backing of my husband and friends.”37 This, when combined with the fact that women are far less likely than men to receive the suggestion that they run for political office from a personal source, highlights the nuanced ways in which family responsibilities act as a 2013 CanLIIDocs 114 barrier to women’s political participation.
Given the complex nature of the double bind, overcoming this barrier may require multiple strategies. This is reflected in some campaign schools, as women are encouraged to be candidates, or to support women who are candidates for public office.38
SOCIAL/COMMUNITY-LEVEL BARRIERS TO WOMEN’S POLITICAL PARTICIPATION
The gendered division of household and private labour noted above help produce the stereotypes and processes that underpin societal and community-level barriers to !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 32 Statistics Canada, “Families, Living Arrangements and Unpaid Work” in Women in Canada: A Gender- Based Statistical Report by Anne Milan, Leslie-Anne Keown, and Covadonga Robles Urquijo (Ottawa: Minister of Industry, 2011). 33 Lawless and Fox. 34 Ibid at 71. 35 A recent example is Illinois Attorney General Lisa Madigan. Reporters specifically highlighted Madigan’s parental status, asking “whether she could serve as governor and still raise her ids the way she wants to,” and asking “whether she could simultaneously hold both jobs – governor and mom.” From Dave McKinney, “Lisa Madigan refuses to tip hand on governor’s race,” Chicago Sun-Times (4 September 2012) online: Chicago Sun-Times
Women’s political and civic activities can be understood through this lens. For example, politics is a masculine-stereotyped field that is, by definition, tied to power and competition.41 Studies indicate that voters tend to prefer masculine to feminine traits when evaluating candidates for high political office.42 Masculine traits are seen as essential for politics, while feminine traits are not. Importantly, women politicians are stereotyped as significantly less feminine than women in general, but as feminine as, and significantly less masculine than male politicians and politicians in general.43 Thus, while women in general remain broadly defined by diffuse gender roles, women in politics are defined by what they lack: femininity and 2013 CanLIIDocs 114 specific masculine traits.
This reflects on the kinds of civic and political activities that women engage in. As noted above, women are significantly less likely than men to participate in unions, business associations, and sport associations. These gender gaps matter: the top occupation for Canadian Parliamentarians in 2011 is “businessman”. This occupation does not appear in the top ten for women Parliamentarians. Instead, the women who enter politics are most likely to be teachers and consultants.44 These !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 39 Amanda Diekman and Monica Schneider, "A Social Role Theory Perspective on Gender Gaps in Political Attitudes" (2010) 34 Psychology of Women Quarterly 486. 40 Lourdes Benería, "Reproduction, Production and the Sexual Division of Labour" (1979) 3:3 Cambridge Journal of Economics 203; Diekman and Schneider; Alice Eagly and Aamanda Diekman, "Examining Gender Gaps in Sociopolitical Attitudes: It's Not Mars and Venus" (2006) 16 Feminism & Psychology 26. 41 Leonie Huddy and Nayda Terkildsen, "The Consequences of Gender Stereotypes for Women Candidates at Different Levels and Types of Office" (1993) 46:3 Political Research Quarterly 503 [Huddy and Terkildsen, “1993a”]; Leonie Huddy and Nayda Terkildsen, "Gender Stereotypes and the Perception of Male and Female Candidates” (1993) 37:1 American Journal of Political Science 119 [Huddy and Terkildsen, “1993b”]; Kira Sanbonmatsu, "Gender Stereotypes and Vote Choice" (2002) 46:1 American Journal of Political Science 20; Kira Sanbonmatsu and Kathleen Dolan, "Do Gender Stereotypes Transcend Party?" (2009) 62:3 Political Research Quarterly 485. 42 Leonie Huddy and Theresa Capelos, "The Impact of Gender Stereotypes on Voters' Assessment of Women Candidates" (2002) in Victor Ottai, ed, Social Psychological Applications to Social Issues: Developments in Political Pscyhology (New York: Kluwer Academic/Plenum); Huddy and Terkildsen, “1993a”; Huddy and Terkildsen, “1993b”; Sanbonmatsu; Sanbonmatsu and Dolan; Monica Schneider and Angela Bos, "Measuring Female Politician Stereotypes" (Paper delivered at Annual Meeting of the American Political Science Association, Seattle, 2011). 43 Schneider and Bos. 44 Parliament of Canada, “Top 10 Occupations in the House of Commons” (20 March 2012), online: Parliament of Canada This trend is reflected in Canadian women’s participation in municipal politics: women are most likely to participate in School Boards. By contrast, men are more likely to participate in Public Utilities Boards and municipal councils.46 As a general rule, even local politics is perceived to be a “male-dominated career.”47 This may contribute to why municipal politics associations have cited a need for mentors and mentoring to recruit women to participate in local politics.48 As a result of gendered perceptions and behavioural expectations, women are disproportionately found in professions outside the political pipeline. 2013 CanLIIDocs 114 These same municipal associations cite discrimination and disrespect as barriers to women’s participation in municipal politics.49 These barriers rest on stereotypical perceptions of “ladylike” behaviour.50 Notably, these behaviours do not include debate and dissent. These stereotypes are reinforced through media coverage of women politicians at all levels of government. Women who violate these stereotypes are trivialized and condemned by the media.51 In politics, female federal party leaders who vigorously participated in debate were characterized as aggressive and attacking, though their behaviour was less hostile and less aggressive than that of male party leaders. Female leaders who took a more conciliatory tone in debate were ignored in the press.52 Women’s personal relationships and physical appearance also receive far more scrutiny from the press and other politicians than do their male colleagues, and the tone of the press coverage women politicians receive is !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! Occ&Section=03d93c58-f843-49b3-9653-84275c23f3fb&Chamber=03d93c58-f843-49b3-965384275c23 f3fb&Parliament=&Name=&Party=&Province=&Gender=F&CurrentParliamentarian=True>. 45 Statistics Canada, “Women and Education” in Women in Canada: A Gender-Based Statistical Report by Martin Turcotte (Ottawa: Minister of Industry, 2011). 46 Kathryn Kopniak, "Women in Canadian Municipal Politics: Two Steps Forward, One Step Back" (1985) 22:3 Canadian Review of Sociology and Anthropology 394. 47 Alberta Urban Municipalities Association. 48 Ibid. Federation of Canadian Municipalities. 49Alberta Urban Municipalities Association. 50 Federation of Canadian Municipalities at 9. 51 Gaye Tuchman, "The Symbolic Annihilation of Women" (1978) in Gaye Tuchman, Arlene Kaplan Daniels and James Benet, eds, Hearth and Home: Images of Women in the Mass Media (New York: Oxford University Press). 52 Joanna Everitt and Elisabeth Gidengil, "Tough Talk: How Television News Covers Male and Female Leaders of Canadian Political Parties" in Trimble and Tremblay. [2013] BARRIERS TO WOMEN’S POLITICAL PARTICIPATION 227 disproportionately negative. Research demonstrates that these trends are international phenomena.53 Thus, though political marketing in Canada is already sophisticated,54 media training may be a particularly important part of recruiting and retaining women in political and civic affairs. Many Canadian universities offer comparable training for women faculty designed to help them establish their authority with the media quickly and efficiently.55 POLITICAL BARRIERS TO WOMEN’S POLITICAL PARTICIPATION Women who overcome individual and social/community level barriers to political participation then face uniquely political hurdles. These political barriers are tied to political parties and legislatures. 2013 CanLIIDocs 114 First, once a woman decides to seek elected office, they need to be nominated to stand on a ballot. This process has been described by former parliamentarians as a confusing “black box.”56 Municipal associations echo this concern, describing the process of seeking local election as a process that needs to be demystified.57 This is one area where campaign schools help women by informing them about the steps required to get their name on a ballot.58 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 53 Lisbet van Zoonen, ""Finally, I Have My Mother Back" Politicians and Their Families in Popular Culture" (1998) 3:1 The International Journal of Press/Politics 48; Lisbet van Zoonen, "The Personal, the Political and the Popular: A Woman's Guide to Celebrity Politics" (2006) 9:3 European Journal of Cultural Studies 287; Caroline Heldman, Susan Carroll, and Stephanie Olson, "She Brought Only a Skirt: Print Media Coverage of Elizabeth Dole's Bid for the Republican Presidential Nomination" (2005) 22:3 Political Communication 315; Melissa Miller, Jeffrey PEake, and Brittany Anne Boulton, "Testing the Saturday Night Live Hypothesis: Fairness and Bias in Newspaper Coverage of Hillary Clinton's Presidential Campaign" (2010) 6:2 Politics & Gender 169; Trimble and Arscott. 54 Alex Marland, Jennifer Lees-Marshment, and Thierry Giasson, Political Marketing in Canada (Vancouver: UBC Press, 2012). 55 “Informed Opinions” (26 March 2012), online: Informed Opinions Canadian political parties vary in their nomination procedures. Some, such as the Conservative Party of Canada, have very few formal nomination rules, while others, such as the New Democratic Party, have a formal nomination process that must be followed by every local association.59 The more formal processes are seen to promote women candidacies, as candidate search committees are encouraged to seek out qualified candidates from historically underrepresented groups. 60 Not surprisingly, the sociodemographic make-up of search committees also affects women’s political nominations, as women riding association presidents are more likely than male presidents to recruit women candidates.61 Parties also vary in their commitment to nominating women candidates. For example, in the lead up to the 2011 federal election, most, but not all, federal parties pledged to Equal Voice that a certain portion of their candidate slate would be comprised of women.62 Nomination contests and electoral campaigns at all levels of government are 2013 CanLIIDocs 114 also expensive. Though election receipts indicate women candidates are as good as their male counterparts at securing campaign funds,63 the perception that women have difficulties raising campaign funds persists. Thus, women active in municipal politics in Canada argue that increasing resource supports would help increase the number of women in local politics.64 At the federal level in Canada, regulating nomination and electoral campaign financing and spending limits through Elections Canada has mitigated this issue. 65 Despite this, women and visible minority candidates have noted that in hotly contested nomination contests, “they have difficulty raising sufficient funds to be competitive.”66 This reflects the fact that, as noted above, women do not have comparable access to income as do men. These issues persist all the more in jurisdictions with lax or no campaign finance regulations, such as some provinces and municipalities. That said, it is worth noting that very few electoral nominations are actually contested in Canada. Elections Canada reports show that the overwhelming majority !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 59 Cross. 60 Ibid. 61 Christine Cheng and Margit Tavits, "Informal Influences in Selecting Female Political Candidates" (2011) 64:2 Political Research Quarterly 460. 62 Equal Voice, Canada Challenge 2009: Building the Momentum to Elect More Women in Canada, online: Equal Voice Women candidates are also more likely to be nominated in districts where their party stands a poor chance of winning compared to men. Nearly 60% of women candidates for federal office in 2008 and 2011 ran in a district that was another party’s stronghold; 47% of candidates who are men were comparably situated. By contrast, 25% of male candidates ran in their own party’s stronghold, while only 17% of women candidates were found in these safe seats.69 2013 CanLIIDocs 114 Similarly, 80% of incumbent candidates in 2008 and 2011 were men. As a result, far fewer female candidates enjoy the benefits of the incumbency effect.70 This is a key barrier to women’s political participation. However, even when women are incumbent candidates their seats are not nearly as safe as their male counterparts. Only 19% of women incumbents ran in their own party’s strongholds in 2008 and 2011; the remainder of women incumbents ran in hostile electoral environments.71 The re-election challenges faced by women incumbents hampers their retention in the political process, and represents another political barrier to women’s participation. Finally, it is worth noting what does not constitute a political barrier to women’s political participation. There is no evidence of a gender bias in the Canadian electorate: voters are equally likely to support women and men !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 67 Elections Canada, Financial Reports: Contestants' Nomination Campaign Returns (Ottawa: Elections Canada, 2011b). 68 Melanee Thomas and Marc André Bodet, “Sacrificial lambs, women canddiates, and district competitiveness in Canada.” Electoral Studies (2012) DOI DO CAMPAIGN SCHOOLS HELP WOMEN OVERCOME THESE BARRIERS? Campaign schools are widely seen as an asset for women’s political participation. Surveys of women in local politics show that campaign schools and educational materials have wide appeal.73 Canadian organizations such as Equal Voice, the Canadian Women Voters Congress, and the College of Continuing Education at Dalhousie University organize campaign schools for women on a regular basis. These schools mirror well-established campaign schools for women in the United States. Notable examples include the Ready to Run program organized by the Center for American Women and Politics, the Women’s Campaign School at Yale University, and the Campaign College organized by the Women and Politics Institute at American University. 2013 CanLIIDocs 114 Each organization monitors the success of these schools in a different manner. Local chapters implement many schools, such as those organized by Equal Voice and the Canadian Women Voters Congress. Equal Voice also offers an online campaign course.74 As such, monitoring the effectiveness of the schools is, at best, ad hoc. Other schools monitor the political participation of their graduates more closely. The Women’s Campaign School at Yale highlights on their website when its graduates win their elections.75 Notable graduates from this school include Kirsten Gillibrand, a current member of the United States Senate. The Campaign College at American University is designed to spark women’s participation in campus politics, as research shows that running for student office is a strong, positive predictor of political participation in later life.76 This school is remarkably effective: after its first !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 72 Sylvia Bashevkin, "Women's Representation in the House of Commons: A Stalemate?" (2011) Spring Canadian Parliamentary Review 17; Jerome Black and Linda Erickson, "Women Candidates and Voter Bias: Do Women Politicians Need to Be Better" (2003) 22 Electoral Studies 81, Blais et al.; Elizabeth Goodyear-Grant, Who Votes for Women Candidates and Why? Evidence from the 2004 Canadian Election Study?" (2010) in Cameron D. Anderson and Laura B. Stephenson, eds, Perspectives on the Canadian Voter: Puzzles of Influence and Choice (Vancouver: UBC Press); Elizabeth Goodyear-Grant and Julie Croskill, "Gender Affinity Effects in Vote Choice in Westminster Systems: Assessing "Flexible" Voters in Canada" (2011) 7 Politics & Gender 223. 73 Alberta Urban Municipalities Association; Federation of Canadian Municipalities. 74 Equal Voice, “Be Her”. 75 “The Women's Campaign School at Yale University” (2009-2013), online: Women’s Campaign School at Yale University The Ready to Run program is one of the most impressive campaign schools. It has been offered by the Center for American Women and Politics for over a decade, and has over 1500 graduates. Of these, more than 25 percent have run for public office; 70 per cent have won their races.78 Ready to Run targets state politics in New Jersey; though the school cannot be credited for the entirety of the change, it is worth noting that before the school started, New Jersey was rated 39th for women’s representation at the state level in the United States. By 2011, their rank increased to 12th.79 As a result of this success, the Ready to Run program has established partnerships in a number of other states. Their structure appears to be similar to that employed by Equal Voice vis-à-vis their local chapters. The Nova Scotia Advisory Council on The Status of Women organizes one 80 of the most active campaign schools in Canada. These campaign schools were first 2013 CanLIIDocs 114 organized in the early 1990s, and their programming was developed in consultation with academics, civil servants, and elected officials.81 Importantly, this development included attending the campaign school organized by the Canadian Women Voters Congress, suggesting that that school has more of a national impact than first thought. Overall, the effects of campaign schools are suggestive. More systematic evaluation of Canadian campaign schools, particularly those that are multi-partisan and regularly offered by organizations such as Equal Voice, may identify uniquely Canadian success stories, as well as highlight ways that campaign schools help women overcome barriers to participation that are unanticipated by the academic literature. To date, a systematic study of the full effects of these campaign schools has not been undertaken in Canada. Future research could probe the short and longer- term effects of these schools on the political engagement and participation of the women who attend them. Particular focus could be paid to the aspects of each curriculum that address the different types of barriers outlined above. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 77 “Campaign College”, online: Women and Politics Institute CONCLUDING COMMENTS The legitimacy of Canadian democracy depends on integrating more women into the political process. Achieving this goal requires that several barriers be removed. This report identifies several of these barriers at the individual, social/community, and political levels. Many of these barriers will only be removed fully when the broad social attitudes about gender and women’s ‘appropriate’ behaviour, particularly as they relates to politics and civic activity, change. It is important to note that removing barriers at one level may go a long way to removing barriers at another. Research shows that electing more women to national public office can spark women’s interest in politics.82 Women’s lower level of political interest is a key individual level barrier; the presence of more political role models for women may lift many women over this barrier. In identifying the barriers to women’s political participation in Canada, this 2013 CanLIIDocs 114 report also highlights a number of opportunities and remedies that can be applied to these barriers. The challenge is to continue with existing opportunities that appear to work – including campaign schools, limits on campaign spending, and mentorship – and to raise awareness about the barriers women face in politics. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 82 Pippa Norris and Mona Lena Krook, One of Us: Multilevel Models Examining the Impact of Descriptive Representation on Civic Engagement" (Paper delivered at the annual meeting of the American Political Science Association, Toronto, 2009), [unpublished]; Thomas, “Psychological”; Thomas, “Feminism”. [2013] BARRIERS TO WOMEN’S POLITICAL PARTICIPATION 233 APPENDIX A Proportion of Women Elected to the Canadian House of Commons: 1974-2011 30%! 25%! 20%! 15%! 10%! the(House(of(Commons( 5%! 2013 CanLIIDocs 114 Proportion(of(Women(Elected(to( 0%! 1974! 1979! 1980! 1984! 1988! 1993! 1997! 2000! 2004! 2006! 2008! 2011! Election(Year( Source: Parliament of Canada, “Members of the House of Commons,” (20 February 2012), online: Marjorie Griffin Cohen* 1. INTRODUCTION Neo-liberalism has had a profound impact on social reproduction in Canada. I will make three main points in this paper. First, periodic economic crises accelerate the marketization of social reproduction and the withdrawal of the state from social security supports. The marketization of social reproduction did not originate in the economic climate of crisis, but rather has been a long-term project of neo-liberalism that proceeds even in times of prosperity. Second, the shift in the relative contributions by the state to social reproduction in turn has a negative implication for 2013 CanLIIDocs 114 the ability of the state to manage crises. There is an architecture of inequality that has become exaggerated with neo-liberal policy and this affects the recovery of economic cycles. And third, the management of crises by the state has gender implications that are often masked by the focus on short-term effects of the crises. The gender bias in both crisis management and long-term neo-liberal economic policy contributes to the increasing instability of economic activity. 2. SOCIAL REPRODUCTION Governments normally treat issues of social reproduction fairly narrowly and as an aside to economic performance.1 Its usual association is in reference to policies and actions related to the household. This, then, tends to relegate its discussion by governments to ‘social policy,’ since it is not seen as integral to economic performance. Any gender discussions associated with social reproduction by both governments and the business sectors also tend to get marginalized as being significant, but only to women. My intent is to show that the undermining of state support for social reproduction and the disregard of social reproduction’s role in the economy contributes to increased instability in the capitalist system. * Marjorie Griffin Cohen, BA (Iowa Wesleyan College), MA (New York), PhD (York), is Professor Simon Fraser University, Department of Political Science. 1 Examples of this treatment of issues related to social reproduction are replete in the federal budgets. Since conservative governments have been in power, spending on these issues have been consistently viewed as harmful to economic performance. For a review of social reproduction in budgets see Janine Brodie, Where are the Women? Gender Equity, Budgets and Canadian Public Policy (Ottawa: Canadian Centre for Policy Alternatives, 2008). [2013] NEO-LIBERAL CRISIS 235 Social reproduction needs to be seen as not only the reproduction activities that occur in the household, but all of the myriad ways that some feminist analysis understands social reproduction and how it is accounted for within a specific stage of capitalist development. Social reproduction includes the activities of both males and females, and the ways that the market, the state, the community, the household, and the individual are involved in meeting the direct needs of people. The state’s role includes activities that directly and universally support the household (medical care, education, pensions, labour regulation and support), as well as specific programs that are more targeted to meet the needs of specific populations (social assistance, disability aid, employment insurance, child care). At various capitalistic stages each share undertaken by the actors in this process is different, with the state assuming a larger or smaller influence on the social security to support social reproduction, depending on the time, state of development, and political ideology in ascendance.2 2013 CanLIIDocs 114 As is well known, the neo-liberal approach to social reproduction is to replace as much as possible of the state’s responsibilities with private market or private household activity. In Canada this has been a very successful project, beginning with the Conservative government of Brian Mulroney, greatly accelerated by the Liberal governments of Jean Chretien/Paul Martin, and carried out in varying degrees by provincial governments throughout the country.3 While the privatization and the deconstruction of the social role of government has been the main focus of the neo-liberal approach, economic crises have given governments throughout the country a handy excuse to accentuate the need to undermine their roles in supporting popular features of policies related to social reproduction. Major economic changes are rarely accompanied by appropriate ways to deal with instability in social reproduction. With the rise of the market system, over a very long period of time, the ability to meet the needs of the market with the 2 In the feminist literature this change in the relative contributions to social reproduction is associated with a specific gender order. When the economy was organized so that women’s main role was within the household to care for the family (the male-breadwinner model), the state assumed a smaller share of the contribution to social reproduction. As markets grew and both supplied more in the way of meeting the household needs, the demand for labour also grew. This is referred to as the dual income-earning gender order. See Barbara Cameron, “Social Reproduction and Canadian Federalism,” in Kate Bezanson, ed. Social Reproduction: Feminist Political Economy Challenges Neoliberalism (Montreal and Kingston: McGill-Queen's University Press, 2006) at 43-74. 3 This is a recurrent theme in recent Canadian political economy publications. See for example: Marjorie Griffin Cohen, “From the Welfare State to Vampire Capitalism” in Patrica Evans and Gerda Wekerle eds, Women and the Canadian Welfare State (Toronto: University of Toronto Press, 1997) at 28-70.; Stephen Mcbride and Kathleen Mcnutt, “Devolution and Neoliberalism in the Canadian Welfare State: Ideology, National and International Conditioning Frameworks, and Policy Change in British Columbia” (2007) 7: 2 Global Social Policy 177. 236 UNB LJ RD UN-B [VOL/TOME 64] competing needs of social reproduction found some reconciliation through the mechanisms of the welfare state, in all of its very different forms.4 But the neo- liberal shift associated with the last decades of the 20th century that has undermined the state’s role in maintaining social reproduction is at serious odds with the economic demands on both individuals and families. There is some indication that this shift may be profound, although in Canada there has been a tendency to see the neo-liberalism that arose in consort with the trade liberalizing agreements as a softer neo-liberalism than that experienced in the U.S. This was primarily because at its earliest stages neo-liberalism’s manifestations appeared to be confined to economic neo-liberalism and did not spill over into the social realm to the extent than had occurred in the UK and the US. This changed, however, over a fairly short period of time and largely stems from the move toward a free trade regime with the US. Most significant is that the kinds of arguments that were used in Canada during the free trade debates to show how social reproduction needs could be reconciled with the macro-economic objectives in Canada – i.e., that free trade would bring greater wealth that would allow for expanded social programs – disappeared once the agreements were signed.5 2013 CanLIIDocs 114 The motivation on the part of governments for instituting free trade agreements is very significant in understanding the direction of social provisioning in a regime of trade liberalization and globalization. In Canada free trade agreements represented, to the elite classes, a way to undermine democratic institutions by ensuring that the kinds of programs that people supported would be more easily be undermined by governments that were inclined to do so. That is, it was not always the requirements of the agreements, per se, that undermined social programs in Canada, but that the agreements were able to provide a structure that allowed governments to more easily pursue more restrictive social policies. Governments across the country retreated from social provisioning through arguments related primarily to costs and individual responsibility. Cost became a serious issue mainly because tax cuts dramatically reduced government revenues from taxes on corporations and high-income individuals. The justification for reduced taxes was that it was necessary both to make Canadian business competitive in the new liberalized trade regimes and to encourage investment. At the same time, other neo-liberal tenets became firmly established in public policy and justified government privatization and program cuts. Most notable is the demand that 4 Diane Sainsbury, Gender and Welfare State Regimes (Oxford: Oxford University Press, 1999). 5 The argument that free trade and a greater integrated world economy would ultimately benefit everyone was widely accepted among economists. The Status of Women Canada’s belief in the benefits for women, for example, is an indication of how dominant this idea had become “[o]ne of the very few things that economists agree upon is that free trade improves economic welfare.” (Katie Macmillan, International Trade Policy: A Primer (Ottawa: Status of Women Canada, 2000) at 7. [2013] NEO-LIBERAL CRISIS 237 governments throughout the country institute and maintain balanced budgets.6 Some provincial governments even went so far as to demand this through legislation. But also significant were the ways that responsibility for funding social programs was shifted to the provinces through a series of federal government changes. This, effectively, separated economic from social issues at the federal level while, at the same time, less money came from the federal governments to the provincial governments for social programs. In a very short period of time the federal government’s spending on social programs decreased dramatically. In 1989 the Federal Government spending on social services, including transfer payments to other levels of government, accounted for 59% of total government spending. By 2007 it accounted for only 47% of all spending.7 Similarly, while spending on social services by the Federal Government in Canada accounted for 16% of the GDP in 1991. By 2001 this had been reduced to 11.6%.8 The gendered implications of the impacts of the neo-liberal changes in Canada have received a great deal of attention over time. The usual markers of gendered distinctions associated with the labour market, such as rates of 2013 CanLIIDocs 114 unemployment, gendered wage gap, and labour force participation rate, did not adequately capture the way that women and men were affected and treated differently. Often the traditional markers of comparison masked shifts in structures that were not so easily measured. This led to a wider focus by feminists on both the nature of labour market changes, and the various ways that public policy had shifted from one that actively focused on women’s issues, to one that assumed that policy implementation was gender neutral.9 The analysis deepened to depict the ways that public policy uses the male as the archetype for shaping policy with female characteristics seen as a deviation from what was considered the ‘norm.’ In the shift to a more neo-liberal social policy approach to economic and social issues in Canada all workers have been affected adversely. However, this has had a disproportionate impact on women workers, although it has been masked by the focus on unemployment and labour force participation trends during the last economic recession that began in 2008. 6 The western provinces in Canada pioneered balanced budget legislation, but have frequently circumvented it when it appeared necessary. See Lisa Philipps, “The Rise of Balanced Budget Laws in Canada: Legislating Fiscal (Ir)Responsibility” (1997) 34: 4 Osgoode Hall LJ 681. 7 Statistics Canada, The Daily: Government spending on Social Services, (3 June 2007) at 22. 8 Armine Yalnizyan, Canada's Commitment to Equality: A Gender Analysis of the Last Ten Federal Budgets (1995-2005) (Ottawa: Canadian Feminist Alliance for International Action, 2005) at 7. 9 See Leah Vosko, “Precarious Employment and the Challenges for Employment Policy,” in Marjorie Griffin Cohen and Jane Pulkingham, eds, Public Policy for Women: The State, Income Security, and Labour Market Issues (Toronto: University of Toronto Press, 2009). Also: Janine Brodie and Isabella Bakker, Where are the Women: Gender Equity, Budgets and Canadian Public Policy (Ottawa: Canadian Centre for Policy Alternatives 2008). 238 UNB LJ RD UN-B [VOL/TOME 64] 3. THE HE-SESSION OF 2008 During the economic crisis of 2008 the global analyses about the differences experienced by gender focused almost exclusively on the relative differences that were occurring in developing nations. The intent, in international institutions, was to show that women and men experience the economic crisis differently, and women’s experiences tend to be worse and the recovery harder.10 This type of analysis showed how international institutions focusing on the crisis should use gender impacts as a consideration when policy measures were being constructed. In North America women appeared to fare better than men during this crisis. This was noted in by the popular media, and economic writers of both the left and the right, and was primarily confined to issues related to employment. In Canada for the first time (at one stage during the crisis) there actually were more women employed than men.11 This was the first time that this had happened in Canadian history: even during the World Wars more men than women had been 2013 CanLIIDocs 114 employed in the civilian labour force.12 But the issue that attracted most notice was the differences in unemployment rates: both males and females had increased unemployment, but unlike during other major recessions, unemployment for men was much higher than that for women. [Table 1] A similar pattern was also occurring in the U.S. The Congress Joint Economic Committee had a hearing on the issue in the summer of 2008 with feminists such as Heidi Hartman weighing in on the gendered distinctions that showed men’s jobs being lost in manufacturing and construction industries. The journal Foreign Policy proclaimed (somewhat over- optimistically) “The Death of Macho,” with a subtitle proclaiming “manly men have been running the world forever. But the great Recession is changing all that…” 13 This gendered phenomena of labour changes during the crisis in the US and Canada has been labeled a “He-cession.” In Canada it relates to the disproportionate male job losses that occurred in the manufacturing industries in Ontario and Quebec 10 See Stephanie Seguino, “The Global Economic Crisis, Its Gender Implications, and Policy Responses.” (Paper prepared for Gender Perspectives on the Financial Crisis panel at the Fifty-Third Session of the Commission on the Status of Women, United Nations, 5 March 2009) [unpublished]. See also Shamika Sirimanne, “The gender perspectives of the financial crisis” (Paper presented to Commission on the Status of Women, New York, 2009), online: < http://www.un.org/womenwatch/daw/csw/csw53/panels/financ ial_crisis/Sirimanne.formatted.pdf>. 11 Laurie Monsebraaten, “In a shrinking workforce women outnumber men” The Toronto Star (5 September 2009). 12 Shannon Devine, “Women wage earners now outnumber men for the first time in Canadian history” (4 September 2009), online: CAW [2013] NEO-LIBERAL CRISIS 239 and in resource sectors, such as the forestry industries in BC and in the energy sectors in Alberta.14 Table I shows the significant difference between male and female unemployment when total unemployment was highest, halfway through 2009. Male unemployment was about 2.4% higher than female unemployment, but by the time the economy had returned more or less to normal female unemployment was still 1% less than male unemployment. Women also seemed to fare better with participation rates as well. In general these did not change significantly during the recession, but nevertheless the adult male rate decreased somewhat, while the female rate increased somewhat.15 Table I Labour Market Changes by Gender 2008 – 2011 (Millions) 2013 CanLIIDocs 114 Source: Adapted from Canadian Labour Congress, Recession Watch Bulletin 5 (Spring 2011), based on Labour Force Survey 2008-2011. 14 Trish Hennessy and Armine Yalnizyan, “Canada’s “He-cession”: Men bearing the brunt of rising unemployment” (2009) 10:4 Behind the Numbers, 10: 4. 15 The decline in male and the increase of female participation rates has been a consistent feature of the gendered labour force experience since married women began working in the labour force in large numbers. The decline in male rates related primarily to early ages of retirement and increased numbers of males leaving the labour force for education related reasons. Women have increased their participation rate for a variety of reasons, but largely because two incomes are now required for households to maintain living standards. 240 UNB LJ RD UN-B [VOL/TOME 64] The gendered differences related to economic crises is important because of the way the state understands its duty to do something to stimulate economic activity. There are a number of ways that this can be looked at, because as is often noted, there are complex factors that influence how women and men experience a situation differently, and simply looking at one indicator (unemployment rate) cannot deal with other aspects of social welfare that are affected. These can include incidence of poverty, health, education, housing, credit, and food.16 Two different types of evidence indicate that the notion that the recession has been more kind to women than to men is not an accurate picture of what has happened in Canada. One way to analyze labour force impacts will be to take a wider time period than during the recession period alone, so that the trend of economic cycles and how they affect men and women differently can be understood. The second main approach that is to examine the gendered nature of public policy responses to the crisis that in the most recent recession were highly skewed in ways that focused most on male workers. An examination of this indicates that government programs virtually ignored industries where women were losing jobs 2013 CanLIIDocs 114 and focused almost entirely toward the industries that are either male dominated (such as the auto sector or building industries) or the financial sector. 4. MANUFACTURING JOB LOSSES BY GENDER The basic story here is that an earlier economic crisis associated with the initial Canada US Free Trade Agreement (CUFTA) drastically reduced women’s participation in the manufacturing sector in Canada. This was because women were concentrated in the manufacturing industries that were most affected by free trade. These were textiles, clothing, small electronics, and footwear. The results were immediate both for women’s over-all labour force participation and for their representation in the manufacturing sector. During the crisis of the early 1990s, women’s labour force participation decreased for the first time since the immediate World War II period. A steady increase in the female labour force participation rate characterized women’s employment in the 20th century, and while women exited the labour force after WWII, not since married women began entering the labour force in a permanent way in the 1950s had there been a decrease in women’s labour force participation rate.17 16 Sylvia Walby, “Gender and the Financial Crisis” (Paper prepared for UNESCO Project on ‘Gender and the Financial Crisis’, 9 April 2009), online: [2013] NEO-LIBERAL CRISIS 241 Changes for women in the 1990s were a result of job losses in the manufacturing sector and these occurred almost immediately after the introduction of CUFTA. Since a great deal of restructuring had occurred in anticipation of CUFTA, the changes beginning in 1991 were undoubtedly a result of a longer period of anticipated change18 (Cohen, 1994). As can be seen from Figure 1, there was an almost immediate decline in both the proportion of women in the labour force and this decline continued for five years, only recovering toward the end of the 1990s. Figure 1 Female Participation Rate 1990-1997 58.6 58.4 58.2 58 Female Participation 57.8 Rate 2013 CanLIIDocs 114 57.6 Percentage 57.4 57.2 1990 1991 1992 1993 1994 1995 1996 1997 Year Source: Statistics Canada, Labour Force Survey. The manufacturing sector in Canada was hit very hard in the initial years of CUFTA, with 400,000 jobs disappearing in the first four years of free trade. Only in 2001 did the actual numbers in manufacturing reach the 1989 levels. Both males and females lost jobs. Figure 3 shows that the proportion of both women and men (as a % of both the male and the female labour forces) in manufacturing declined significantly: before CUFTA about 12% of working women had manufacturing jobs. This has dropped to about 6%. Male employment in manufacturing declined from about 22% of all male work before CUFTA to about 12%.19 18 Marjorie Griffin Cohen, "The Implications of Economic Restructuring for Women: The Canadian Situation," in Isabella Bakker, ed, The Strategic Silence: Gender and Economic Policy (London: Zed, 1994) at 103-116. 19 The major change in this industry for women is that most of the jobs they hold within the manufacturing sector are not manufacturing-type jobs, but are associated with serving the actual manufacturing jobs. 242 UNB LJ RD UN-B [VOL/TOME 64] Both male and female job losses in manufacturing continued into the 21st century (until the 2008 crisis), with females experiencing a greater proportional decline. Table II Job Losses by Gender in Manufacturing 2002, 2006 * Annual averages calculated from Statistics Canada, Labour Force Survey Table 282-007, 2013 CanLIIDocs 114 CANSIM. The decline in manufacturing jobs is associated with many issues, including technology changes. But a significant issue for Canada was the increased trade that occurred through CUFTA and NAFTA. The pivotal issue relates not only to the magnitude of the increase in trade, but also to what extent domestic production has been displaced by imports. In Canada the tremendous increase in manufacturing import penetration from the US occurred in a relatively short period of time. However, this is often masked because of the increase in exports, entirely from industries with higher concentrations of male labour: the shift in the economic structure that ensued had decided employment effects. While the pace of non-OECD imports into Canada was greater (a 425% increase over 25 years), this originated from a very small proportion of total consumption: the almost doubling from an already large base of US imports has had the biggest effect on manufacturing. The composition of Canadian exports and its trade surpluses have changed considerably over time.20 Both Mexico and the US have a greater manufacturing content in exports than does Canada, with Canada relying heavily on the export of energy products, industrial materials (metals, ores, chemicals) machinery and equipment (agricultural and aircraft machinery), forestry products, and automotive products. Also, Canada has a larger proportion of exports in resources than other countries, and even manufacturing exports are largely characterized as semi- processed items or vehicles. These are all manufacturing industries with significant concentrations of male workers 20 Philip Cross and Diana Wyman, “The Changing Composition of the Merchandise Trade Surplus” (2006) 19: 11 Canadian Economic Observer at 20-28. [2013] NEO-LIBERAL CRISIS 243 Table III Import penetration for Canadian manufacturing industries, 1970-95 (Imports as a % of domestic consumption) Year World OECD Non-OECD* 1970 24.6 23.7 0.8 1978 30.9 29.7 1.2 1990 37.2 34.9 2.4 1995 49.7 46.3 3.4 * Mexico is included as a non-OECD country in this study Source: OECD STAN Database for Industrial Analysis, 1998a; OECD Bilateral Trade Database, 1998b, cited in David Kucera and William Milberg, “Gender Segregation and Gender Bias in Manufacturing Trade Expansion,” in Diane Elson, ed. The Feminist Economics of Trade (London and New York: Routledge, 2007) at 186. The shifts in the structure of exports have had implications for the immediate effects of the economic crisis beginning in 2008: the problems with 2013 CanLIIDocs 114 forestry and auto industries have meant much higher rates of unemployment for males in Canada than for females. In the first quarter of 2009, the unemployment rate for males over 25 years was 8.3%, compared with women in the same age group at 6.0%. The main point of this section has been to show that the gendered nature of employment in Canada is affected by both the imports and exports of the country and the gendered segregation in the workforce. The initial effect of the free trade agreements was to rapidly and dramatically increase imports in the areas where women worked in manufacturing. This reduced women’s participation in manufacturing, as a proportion of their overall work, to very low levels. At the same time, Canada’s increased exports of resources of semi-processed materials that resulted in both increased activity in sectors of the economy where males dominated, but also exposed these workers to the economic crises that affected exports. The ‘he- session’ of 2008 also reflected a crisis in North America in the vehicle-exporting sector, again, a sector dominated by male workers. As will be shown in the next section of the paper, the public policy responses that focused on providing stimulus for industries where male unemployment occurred, while necessary in the short-term, did not contribute to a change that could mitigate future crises. 5. RESPONSES TO THE RECESSION The focus on male unemployment during the crisis beginning in 2008 reinforced the general tendency for government stimulus spending to target those industries where males predominate. The Federal Government’s message on economic crisis is that Canada did well in the recession beginning in 2008 because it avoided high exposure 244 UNB LJ RD UN-B [VOL/TOME 64] to toxic assets and the housing market nightmares experienced in other countries, and will weather the subsequent downturns well because over the years it did the necessary, but difficult task of cutting spending and reducing taxes. While the Harper Conservative government is taking the credit for fiscal conservatism, Paul Martin regularly points out that his 1995 federal budget under Jean Chrétien was the real source of Canada’s excellent performance.21 Still, despite this public adherence to neo-liberal approaches, Canada has been aggressive in providing money in the name of economic stimulus. According to the Certified General Accountants Association of Canada (CGA) Canada’s initial stimulus spending was high compared with most other countries, with the third highest budgetary costs measured by percent of GDP.22 This is surprising, considering Canada’s conservatism. It’s financing for the financial sector was second only to the UK.23 Figure 4 Estimated"Budgetary"Cost"of"Fiscal"Stimulus"Packages" 2013 CanLIIDocs 114 2.5%& 2.0%& 1.5%& 1.0%& 2009& %"of"GDP" 0.5%& 0.0%& 2010& !0.5%& 21 Paul Martin was the Finance Minister in the Liberal government of the time and later became Prime Minister. 22 Certified General Accountants Association of Canada (CGA), Public Underwriting of Private Debt: The Prospect of Industry Targeting (2009), online: [2013] NEO-LIBERAL CRISIS 245 Figure 5 Estimated"Support"for"the"Financial"Sector" 90%& 80%& 70%& 60%& 50%& 40%& 30%& Total&Support& %"of"GDP" 20%& 10%& 0%& Upfront&Government& 2013 CanLIIDocs 114 Financing& It is difficult to get a clear picture of the total amounts of government spending to stimulate the economy. This is primarily because a great deal of the stimulus spending is not included in budget estimates. The ‘stimulus fund’ most often referred to is the Infrastructure Stimulus Fund, a $4 billion fund initiated by the Federal Government in the 2009 budget. This was to provide money over two years to fund construction-ready infrastructure projects to provincial, territorial and municipal governments.24 In addition to the Infrastructure Stimulus Fund the 2009 budget included other types of spending from tax cuts and tax benefits for individuals estimated to cost $6.9 billion between 2009 and 2011. 24 Parliamentary Budget Officer, Infrastructure Stimulus Fund – Performance Update to March 31, 2010 (August 9, 2010), online: 246 UNB LJ RD UN-B [VOL/TOME 64] Table IV Canada’s Economic Action Plan 2009–10, 2010–11 Source: Canada, Canada’s Economic Action Plan Year 2. A Seventh Report to Canadians 2013 CanLIIDocs 114 Table 1.1 (2011) http://www.actionplan.gc.ca. The government25 also, in its report on the Action Plan, includes $200 Billion in tax reductions on individuals, families and business from 2006 budgets that give tax relief from 2008-2013. All of this brings Federal Government taxes as a percentage of GDP to the lowest level since 1961. Aside from tax reductions, there are three other types of spending that stand out as the most significant. One is the total amount spent for infrastructure ($14.8b), which is primarily for construction of either housing or other types of infrastructure. The other is $13.2B for the ‘support for industries and communities.’ This includes $9.2b for the auto sector, plus other spending that is primarily related to construction projects.26 The third major spending initiative is $8.3b related to improving access to EI. The loans to the auto industry were very unusual in Canada, but particularly because almost 32% of this was provided to US parent companies and would not have a stimulus effect within Canada. Despite government support for this industry job losses were large and it is unlikely to have a lasting impact on auto manufacturing in Canada. 27 What is not included in the budget items is the $200 billion of the “Extraordinary Financing Framework” that was available to financial institutions to 25 Government of Canada, Canada’s Economic Action Plan Year 2: A Seventh Report to Canadians (2011), online: < http://www.actionplan.gc.ca> at 33. 26 Ontario contributed a further $4.9b to the auto sector. 27 The outlook for the auto sector is dim because of changes in the auto pact, and a shift in the global composition of the industry away from industrialized countries. [2013] NEO-LIBERAL CRISIS 247 guarantee their returns on any loan defaults.28 This included $12.6 billion to secure vehicle and equipment loans and leases, credit card debt, and floor plan financing, and $9.5b under the Business Credit Availability Program for private sector lenders. The biggest bailout for the banks was the government buying or mortgages from the banks, through CMHC, amounting to $69 Billion. By March 2009 direct support for Canadian banks had reached $114 billion.29 Altogether it is difficult to get a full picture of either the totals spent, or how effective was the stimulus in creating jobs. However, the government’s report on the Action Plan does give a sense of the effectiveness of the multipliers for each type of expenditure. These are instructive, because they ultimately give a sense of how, even within the limited spending program types used, there are significant differences between money that is foregone because of tax cuts, and money spent on the unemployed. As can be seen in Table (IX) the actions having the least impact as stimulus measures are tax reductions for business, reductions in EI premiums, and personal income tax cuts. The government explains the very low impact of business tax cuts by saying that while they had little impact on demand over the period under 2013 CanLIIDocs 114 review, over the long-run it would have the highest multiplier effects because they would increase the incentive to invest and accumulate capital, which would lead to greater capacity in the ability to produce goods and services.30 28 The CGA is critical of this ‘credit easing’ because there is no transparency on these expenditures. This is because there is no budget planning for it and, therefore, no debate on influence of these measures. See: Certified General Accountants Association of Canada (CGA), Public Underwriting of Private Debt: The Prospect of Industry Targeting, online: 29 David Macdonald, The Big Banks’ Big Secret: Estimating government support for Canadian banks during the financial crisis (Ottawa: CCPA, 2012) at 6. 30 Government of Canada, Canada’s Economic Action Plan Year 2: A Seventh Report to Canadians (2011), online: < http://www.actionplan.gc.ca> at 147. 248 UNB LJ RD UN-B [VOL/TOME 64] Table V Expenditure and Tax Multipliers Source: Ibid. Table A.1, at 147. The government objective in its stimulus spending was to avoid instituting anything that would require long-term government support. The time-line for various 2013 CanLIIDocs 114 infrastructure programs was fairly short, with everything related to infrastructure to be completed (after extensions) by October 2011. What the government clearly did not do was to add to any ‘infrastructure’ programs that might act as a counter- cyclical balance that could mitigate economic crises in the future. The Federal Government’s actions indicate that it is strongly relying on tax measures for automatic stabilization. Tax reductions are the most consistent government budget action: with only one exception in every year since 1999 there have been tax reductions, and they are the only permanent measures in the stimulus packages. Even the stimulus through increased EI payments, while normally a stabilizing initiative, was instituted on a temporary basis in the stimulus plans. The ability of EI to serve as a stabilizing program had been seriously undermined during the past twenty years, with the greatest negative effect occurring for women. EI is now a program whose criteria for eligibility are based on levels of deviation from what is considered standard employment – that is, that most representing male employment. Over the post-NAFTA period, all unemployed became increasingly ineligible for receiving benefits from the insurance scheme when they become employed, but women were disproportionately affected. The reforms of 1993 and 1994 changed the rules dramatically so that it became much more difficult to qualify for benefits when one became unemployed. [2013] NEO-LIBERAL CRISIS 249 Figure 6 Employment Insurance Eligible Recipients as a Percent of Unemployed 1976-2012 1.2& 1& 0.8& 0.6& 0.4& 0.2& 2013 CanLIIDocs 114 Series3& Poly.&(Series3)& 30.5%& 0& Jul!81& Jul!92& Jul!03& Jan!87& Jan!09& Jan!76& Jan!98& Sep!79& Sep!90& Sep!01& Sep!12& Nov!77& Nov!99& Nov!10& Mar!85& Mar!07& Nov!88& Mar!96& May!83& May!94& May!05& Note: Unadjusted for Seasonality31 Source: Statistics Canada, Cansim. Prepared by Paul Tulloch for Living Work.ca. At http://www.progressive-economics.ca/2012/12/19/new-historical-lows-in-ei-coverage As can be seen in Figure 6, by 2012 the proportion of unemployed covered by EI was the lowest in 31 years, at 30.5%. The increase in the proportion of both male and female unemployed who were eligible for benefits increased in the 2008 - 2010 reporting period because of the special, temporary Employment Insurance measures put into place to deal with the extraordinary rise in unemployment during the economic beginning in 2008. But even in this case, the difference between males and females receiving EI was large. The major changes that occurred in the 1990s particularly affected women because it shifted the basis of eligibility from weeks to hours of work, with a dramatic increase in the hours demanded. Since women predominated among part-time workers, many were no longer eligible for EI benefits. Figure 7 shows the intense and consistent gender differences in the ability to receive EI benefits when unemployed. The top jagged line represents the variations 31 The jagged line represents the actual figures, which fluctuate with seasonal activity; the smooth line shows the long-term trend. 250 UNB LJ RD UN-B [VOL/TOME 64] in males, the bottom of females. The corresponding smooth lines represent the long- term trends, which are low for both, but lowest for women. Figure 7 Ratio of Employment Insurance Receipts to Unemployment by Gender 1997 – 2012, Canada 0.8000& Male&EI&Coverage& 0.7000& Female&EI&Coverage& 0.6000& 0.5000& 2013 CanLIIDocs 114 0.4000& 0.3000& 0.2000& & & 0.1000& Jan!97& Jan!99& Jan!01& Jan!03& Jan!05& Jan!07& Jan!09& Jan!11& Sep!97& Sep!99& Sep!01& Sep!03& Sep!05& Sep!07& Sep!09& Sep!11& May!98& May!00& May!02& May!06& May!08& May!10& May!12& May!04& Source: Graph constructed by Paul Tulloch of LivingWork.ca using Cansim real seasonally unadjusted data to calculate the ratio. Recent analysis of OECD countries indicates that the single-minded focus on taxation and unemployment compensation as the primary automatic stabilizers is misplaced. Although usually dismissed as part of automatic stabilization, other kinds of government spending often responds to business cycles and move together with employment insurance when there is an economic downturn. The most often discussed expenditures that operate in this way appear to be pension benefits (people tend to retire early during economic downturns), health benefits (sick benefits may be used rather than unemployment benefits), and payments for disability (which [2013] NEO-LIBERAL CRISIS 251 tends to increase during economic downturns).32 Similarly, government funding for education could also track economic downturns if, as is true in Canada, more people tend to pursue post-secondary education during an economic crisis. In Canada, while there has been some funding for education in the stimulus packages, this is primarily in the form of construction projects in that sector. The effectiveness of the stimulus measures in Canada are uncertain, although a ‘side effect,’ could well be further cuts to social services as the Federal Government maintains its determination around achieving balanced budgets. This could mean even further destabilization in the economy at precisely the time when stabilizing influences are needed. ‘Stimulus spending,’ on its own, is not necessarily positive. It does matter where the money goes, and what the recipients do with the money. The focus on traditional areas of tax reductions and stimulus spending in industries where male unemployment is high is a temporary short-term measure that brings temporary 2013 CanLIIDocs 114 results. 6. CONCLUSIONS Examining one economic crisis in isolation from the context of economic trends does not give a full picture of the gendered nature of economic volatility. The employment effects of the 2008 crisis appeared to have a greater negative impact on males than on females. This paper has shown that while this was true, it was primarily because the major restructuring for female jobs occurred in an earlier time period associated with the initial impacts of free trade, when women were almost eliminated from manufacturing jobs. A complex array of factors has shaped changes in the gendered composition of the labour force, but among most significant were those triggered by the free trade agreements that Canada entered in the late 1980s and early 1990s. These favoured specific industries that were heavily weighted toward male employment, while those in the manufacturing sector where females worked, experienced serious declines. These structural changes, in addition to the budgetary influences that reduced the 32 J Darby and J Melitz, “Labour market adjustment, social spending and the automatic stabilizers in the OECD” (Paper presented at the 47th Panel Meeting of Economic Policy, Ljubljana, 18-19 April 2007) [unpublished], online: 252 UNB LJ RD UN-B [VOL/TOME 64] significance of government employment and social services in the economy, had subsequent implications for the gendered structure of the labour force. The economic crisis beginning in 2008 was not as dramatic in Canada as it was elsewhere. This crisis was billed as a “he-session” in both Canada and the US because the industries that experienced high unemployment were primarily those where men were unemployed. While unemployment rates were high for women as well, those for men were higher, and occurred in industries that are traditionally seen as drivers in the economy, such as the auto sector and the resource sectors. Women also lost jobs and income as government downsized their labour forces, or shifted toward contract work, but the crisis was billed as a male unemployment problem induced by external economic factors. Despite Canada’s relatively better position than that experienced by other countries, considerable public funding was used to support employment in manufacturing and resource sectors. The banking system also was a major 2013 CanLIIDocs 114 beneficiary of government funding, although this was not targeted toward bank employment issues, but to ensure banking stability, particularly to its exposure in the housing industry. The bulk of the funding for employment stimulation went to industries where males were experiencing unemployment, as did most of the EI temporary funding for the unemployed. This paper has attempted to show that both the temporary nature of the government stimulus plans and the focus of the plans on male employment did nothing to provide permanent counter-cyclical programs that could temper the periodic economic crises the country experiences. By including female workers in both the design of economic programs and considering social services as important economic leverage instruments, a healthier economy could be constructed. One that could be much more stable and more resilient to economic crises. Equal Parents, Equal Children: Reforming Canada’s Parentage Laws to Recognize the Completeness of Women-led Families Fiona Kelly* Abstract: Lesbian couples and single women are choosing to become parents, typically via some form of assisted conception, at ever increasing rates. These two groups make up approximately thirty per cent of all clients of fertility clinics in Canada, and many more conceive at home using the sperm of known donors. Yet, when lesbian mothers and single mothers by choice (SMCs) are challenged in the courts- usually by a known donor asserting legal parentage and the rights associated with it- judges, who often have little statutory guidance, routinely undermine the stability and integrity of these women-led families in ways heterosexual couples are 2013 CanLIIDocs 114 protected against. In this article, I argue that equality for lesbian and SMC families is best achieved via legislative reform that prioritizes intention over biology in the assisted reproduction context, akin to the recently introduced legal parentage provisions in British Columbia’s Family Law Act. The introduction of legislation of this type reduces judicial discretion and provides women-led families with the same level of pre-conception certainty heterosexual families have enjoyed for decades. In addition, I argue that in circumstances where legislative presumptions are not available, or where they fail to resolve the conflict, the best interests of the child test should be interpreted in a manner that is consistent with children’s section 15 Charter equality rights. This will ensure that all children enjoy the same level of family stability and security, independent of the composition of their family or their method of conception. INTRODUCTION Lesbian parents and single mothers by choice (SMCs) have become a permanent, and growing, component of Canada’s family mosaic. Yet, the law has been slow to respond to these new forms of non-normative family. While women-led families have available to them an increasing array of legal mechanisms designed to assist in establishing parental ties,1 substantial gaps remain. The most glaring is the absence * Assistant Professor, University of British Columbia; B.A (Melbourne), LL.B (Hons) (Melbourne), LL.M (UBC), Ph.D. (UBC) 1 The two most common mechanisms for establishing legal ties between a non-biological lesbian mother and her child are second parent adoption and a gender-neutral birth certificate. Second parent adoptions permit the non-biological mother to adopt the child without the biological mother losing her parental rights. However, the adoption cannot be completed until the child is 6 months old, requires the consent of the biological mother (and biological father, if he is known), and requires legal counsel and several thousand dollars to complete. Gender-neutral birth certificates permit a non-biological mother to register 254 UNB LJ RD UN-B [VOL/TOME 64] of comprehensive provincial parentage laws – presumptive laws, typically legislative in form, that establish the child’s parentage at birth. Unlike custody or access orders, which require an application to the court after the child is born, can be varied by subsequent application, and have no force after the child reaches the age of majority, legal parentage operates presumptively at birth, does not require a court application, cannot be varied, and survives the child reaching the age of majority, thus enabling inheritance. Legal parentage therefore provides significantly more long-term stability and security than an order for custody or access. Legal parentage also carries significant symbolic weight, particularly for non-biological lesbian mothers who have historically been denied the status of “parent”, despite actively parenting their children from birth.2 Only five Canadian provinces – Quebec, Alberta, British Columbia, Prince Edward Island and Manitoba – have legal parentage laws applicable in situations of assisted conception that include lesbian couples.3 Quebec is the only province that explicitly addresses parentage where the sperm donor is known,4 or expressly envisages a single woman being a child’s sole legal parent. Several provinces have 2013 CanLIIDocs 114 no legislation at all, leaving even heterosexual couples with little legal guidance. as the child’s “co-parent”. However, the co-parent option is not available when the child was conceived with the sperm of a known donor. In addition, birth certificates are only presumptive proof of parentage and can be rebutted by someone with a “better” claim (eg, a biological parent). Second parent adoptions are available in all Canadian provinces and territories except Prince Edward Island and Nunavut. Re K (1995), 15 RFL (4th) 129, (ONCJ); Re A (1999), 181 DLR (4th) 300, (ABQB); Re Nova Scotia (Birth Registration No. 1999-02-00420) (2001) ,194 NSR (2d) 362, (NSSC); Adoption Act, CCSM 1997, c. A2, s.10; Adoption Act, SNL 1998, c. A-2.1, s.20; Adoption Act, SS 1998, c. A-5.2, s.23; Adoption Act, RSBC 1996, c. 5 ss.5, 29; Adoption Act, SNWT 1998, c.9, s. 5. Gender neutral birth certificates are available in six Canadian provinces and were typically secured via litigation brought by lesbian couples. Gill v Murray, 2001 BCHRT 34; A.A. v New Brunswick (Department of Family and Community Services), [2004] NBHRBID No. 4; M.D.R v Ontario (Deputy Registrar General), [2006] RFL 6th (25) (ONSC) [M.D.R]; Fraess v Alberta (Minister of Justice and Attorney General), 2005 ABQB 889; Vital Statistics Act, RSM 1997, c. V60, s. 3(6). 2 For an overview of the many recent cases, both in Canada and internationally, in which non-biological lesbian mothers have been denied legal parentage see Jenni Millbank, “The Limits of Functional Family: Lesbian Mother Litigation in the Era of the Eternal Biological Family” (2008) 22 International Journal of Law, Policy and the Family 149. For an overview of older decisions see Nancy Polikoff, “The Deliberate Construction of Families Without Fathers: Is It an Option for Lesbian and Heterosexual Mothers?”(1996) 36 Santa Clara Law Review 375 (1996). 3 Vital Statistics Act, CCSM c V60, s. 3(6); Civil Code of Quebec, SQ 1992, c. 64, arts. 538-42; Family Law Act, SA 2003, c F-4.5, s 5.1(1)(a); Family Law Act, SBC 2011, c 25, s 30 (B.C.’s Family Law Act comes into force on 18 March, 2013); Child Status Act, RSPEI 1988, c C-6, ss. 9(5) & 9(6). While Nova Scotia’s Vital Statistics Act, RSNS 1989, c 494, makes no mention of same-sex couples or assisted reproduction in its birth registration provisions, regulations under the Act permit the mother’s spouse, male or female, to register as a legal parent where a child is conceived via “assisted conception”, defined as “conception that occurs as a result of artificial reproductive technology, using an anonymous sperm donor.” See Birth Registration Regulations, NS Reg 390/2007. 4 It is estimated that approximately one third of lesbian women and twenty per cent of SMCs conceive using the sperm of a known donor. For statistics on lesbian mothers see: Fiona Kelly, Transforming Law’s Family: The Legal Recognition of Planned Lesbian Motherhood (Vancouver: UBC Pr, 2011). For statistics on SMCs see: http://www.singlemothersbychoice.org/about/faq/ [2013] EQUAL PARENTS, EQUAL CHILDREN 255 However, the scarcity of legislation in this area poses few issues for opposite-sex couples, as they are typically able to rely on traditional presumptions of paternity to establish the legal parentage of the mother’s male partner, to the extent his parentage is even questioned.5 Lesbian couples and single women have no such luxury. In the absence of legislative guidance judges typically resort to biology, rather than the parties’ pre-conception intentions, as the determining factor in parentage disputes between lesbian couples or single women and their donors. Drawing on traditional family law principles designed for separated opposite-sex couples engaged in custody and access disputes, most judges presume that because the donor is the child’s biological father he must be a legal parent. Known donors are equated with divorcing fathers and, applying the maximum contact rule, which has come to dominate Canadian custody and access decision-making,6 the best interests of the child is assumed to be met via a relationship with the “other parent” – the biological “father” – rather than through the preservation of the existing parental and family relationships. Lesbian couples and SMCs are even accused of acting “selfishly” for wanting to protect the boundaries of their family and, in the case of a 2013 CanLIIDocs 114 lesbian couple, the integrity of the non-biological mother’s role as a parent. As a result of the judicial preference for biology over pre-conception intention, known donors who have sought legal parentage and access rights to children being raised by lesbian couples or SMCs are frequently successful, with judges concluding the donor is a legal father and the child’s best interests are served via regular access. 7 5 Presumptions of paternity are included in all provincial family law statutes. Family Relations Act, RSBC 1996, c 128, s 95; Children’s Law Reform Act, RSO, 1990, c 12, s 8; Child, Youth and Family Enhancement Act, RSA, 2000, c C-12, s 1(1)(a); Family Law Act, SA, 2003, c F-45, s 1(f), s 8(1); Family Maintenance Act, CCSM, c F20, s 23; Family Services Act, SNB, 1980, c F2.2, s 103; Children’s Law Act, RSNL, 1990, c C-13, ss 7 & 10; Children’s Law Act, SNWT, 1997, c14, s 8; Maintenance and Custody Act, RSNS 1989, c 160, s 2(j); Child and Family Services Act, RSNS, 1990 c 5, s 3(1)(r)(vii); Custody Jurisdiction and Enforcement Act, RSPEI 1988, c C-33, s 3(1); Child Status Act, RSPEI 1988, c C-6, s 9(1); Civil Code of Quebec, SQ 1991, c 64, art 525; Children’s Law Act, SS 2002, c C-8.1, s 45; Children’s Act, RSYT, 2002, c 31, s 12. 6 In the absence of any other guiding criteria in the Divorce Act, the “maximum contact rule” (s 16(10)) plays an extremely influential role in custody and access decision-making. Though the rule is tempered by the child’s best interests – that is, maximum contact is the goal, but only when consistent with a child’s best interests – in practice, the child’s best interests have become so intertwined with maintaining a relationship with both parents that the section is often interpreted as indicating that maximum contact is always in a child’s best interests. Indeed, trial judges frequently state that there is a “presumption” that “regular access” is in a child’s best interests and that access can only be denied in the event of proof of harm. Young v Young, [1993] 4 SCR 3 at para 204; V.S.J. v L.J.G. (2004), 5 RFL (6th) 319 (ONSC) at para 128; Elwan v Al-Taher (2009), 69 RFL (6th) 199 (ONSC) at para 76; M.I. v M.W., [2011] OJ No 1685 (QL) (ONSC) at para 102; Norman v Penney (2010), 305 Nfl d & PEIR 241 (NLSCTD) at para 22; Matos v Driesman (2009), 86 WCB (2d) 27 (ONSC) at para 39.! 7 Most of the cases discussed below reflect this general trend. For a discussion of such cases from a variety of common law jurisdiction see Millbank, supra note 2. 256 UNB LJ RD UN-B [VOL/TOME 64] As Angela Campbell has argued, judicial prioritization of biology over pre- conception intention is odd given that assisted conception necessarily de-centres biological connection: In circumstances involving assisted reproduction, identifying biology as a basis for [parentage] seems perplexing, given that the point of using reproductive materials or services from third parties is to acquire parental status even where one cannot rely (or chooses not to rely) on biological/‘natural’ methods of procreation. Thus, locating parenthood should command more than tracing a child’s genetic heritage.8 What is perhaps at the heart of the judicial inclination to turn to biology, despite the use of assisted conception, is the perception that a woman-led family is incomplete. Thus, rather than focusing on the fact that children of lesbian couples and SMCs are being raised in stable, intact, (sometimes married) families, judges reconfigure lesbian and SMC families into heterosexual ones in which the biological parents have separated. The result is that lesbian and SMC families are denied the legal security typically afforded to intact heterosexual families who use assisted 2013 CanLIIDocs 114 reproduction. Third parties, in the guise of “parents,” are inserted into women-led families, diminishing the relationship between the child and his or her non-biological mother, and often providing the non-biological mother with no legal status at all. In this article, I argue that lesbians and single women should be able to create families of their choice and, in the event of legal challenge, have a reasonable expectation that the courts will preserve the integrity of their family unit. To enable this, legislative reform prioritizing intention over biology in the assisted reproduction context, as it already does when the couple conceiving is heterosexual, is needed in every Canadian province. In addition to legislative reform, and especially in its absence, the article also argues that children’s best interests are served by ensuring that all children enjoy the same level of family stability and security, independent of their family structure and/or method of conception. Many legal battles between lesbian couples and their donors involve not only parentage claims, but also disputes over access which turn on what is in the best interests of child. In order to prevent discrimination on the basis of method of conception and/or the structure of the family into which the child is born, the best interests test must be interpreted in a manner consistent with children’s section 15 equality rights under the Canadian Charter of Rights and Freedoms.9 Most importantly, a child conceived via assisted conception and born into a woman-led family should have no less a right to a secure and stable family life than a child similarly conceived and born to heterosexual parents. 8 Angela Campbell, “Conceiving Parents Through Law” (2007) 21(2) International Journal of Law, Policy and the Family 242 at 259. 9 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 15. [2013] EQUAL PARENTS, EQUAL CHILDREN 257 The article begins with an overview and critique of Canadian legal parentage disputes between lesbian or single women and their known sperm donors. It highlights the ways in which the current legal framework, which in most provinces includes an absence of modern parentage laws, results in judges applying a traditional and outdated mode of analysis in a manner that undermines the autonomy and integrity of women-led families. Recognizing that law reform in this area must be multi-pronged, the remainder of the article considers provincial statutory reform, as well as recommendations as to how judges might interpret the best interests of the child test in a manner that protects the stability and security of all Canadian children, not just those born into traditional heterosexual families. 1. THE EXISTING CASE LAW: A TRIUMPH OF BIOLOGY Like most jurisdictions, Canada now has a small number of cases involving lesbian couples and SMCs that expressly address parentage in situations of assisted 2013 CanLIIDocs 114 conception where the sperm provider is known. Despite the low numbers, clear trends have emerged. Known donors have been declared parents in all but two applications, and judges have uniformly expressed the belief that it is in a child’s best interest to have access with his or her biological father, independent of the circumstances of conception or structure of the child’s family. Judges have been dismissive of any suggestion that the imposition of a donor on an intact family may be damaging to the parent(s) or child. Scholars from other common law jurisdictions have demonstrated that these trends are by no means unique to Canada.10 Nor should they be understood as separate from Canadian family law trends more generally. Finding fathers for children raised by lesbian couples or SMCs is part of a much larger trend towards prioritizing and maximizing father/child contact, even in circumstances where the father has a limited, or even quite negative,11 relationship with the child.12 10 Millbank, supra note 2; Therese Callus, “A New Parenthood Paradigm for Twenty-First Century Family Law in England and Wales?” (2012) 32 Legal Studies 347. 11 Fiona Kelly, “Enforcing a Parent/Child Relationship At All Cost? Supervised Access Orders in the Canadian Courts” (2011) 49 Osgoode Hall Law Journal 6. 12 Susan Boyd, “Gendering Legal Parenthood: Bio-Genetic Ties, Intentionality and Responsibility" (2007) 25 Windsor Yearbook of Access to Justice 55; Fiona Kelly, “Producing Paternity: The Role of Legal Fatherhood in Maintaining the Traditional Family” (2009) 21 Canadian Journal of Women and the Law 315. 258 UNB LJ RD UN-B [VOL/TOME 64] LESBIAN MOTHERS AND KNOWN DONORS: THE CASE LAW Three of the Canadian cases between lesbian couples and their donors originate from Quebec, one of the few Canadian provinces in which the relationship between assisted reproduction and “filiation”, the civil law equivalent of legal parentage,13 is directly addressed by legislation which includes lesbian couples within its parameters.14 The decisions may therefore not be particularly representative of how disputes would be resolved in provinces where no such legislation exists. However, the partial successes found in the Quebec cases demonstrate the potential importance of legislative reform. By explicitly defining the rules of parentage in cases of assisted reproduction, the Quebec Civil Code limits the discretion available to judges to reformulate a lesbian family into one in which a father exists. The first of the Quebec the cases, S.G. v. L.C., dealt with the status of a known sperm donor to a lesbian couple via an interim access application filed by the donor.15 The decision was based largely on information contained within the donor’s unopposed affidavit and was never appealed. The child in S.G. was conceived via 2013 CanLIIDocs 114 donor insemination and was raised by her lesbian mothers. The two women, who had undergone a civil union ceremony a month before the child was born, were listed on the child’s birth certificate as her parents. While the mothers initially allowed some contact between the donor (S.G.) and the child, when they began to limit contact, S.G. sought an order of filiation (parentage). He argued a “parental project,” as defined by article 538 of Quebec’s Civil Code, existed between himself and the biological mother (L.C.). He also argued it had always been his and the biological mother’s intention that the two of them raise the child as mother and father. S.G. supported his claim with an affidavit in which he asserted that the non-biological mother had initially opposed the biological mother’s decision to have a child and had suggested that she might end the relationship if the biological mother went ahead 13 While the civil law concept of “filiation” and the common law concept of “legal parentage” are often equated, they are not identical. As Leckey explains, in relation to the Quebec provisions, filiation is a much more expansive notion than legal parentage: “Filiation is said to be the fundamental element of family belonging, a foundation of the social order. The common law tradition, while ascribing rights and duties to parentage, has not theorized the parent-child relationship comparably.” Filiation is also characterized as “an institution” and thus less open than legal parentage to amendment. As Leckey explains, “An institution is said not to be founded by contract, and its members precluded from altering its essential terms. The legislature is said to recognize institutions, not to create them.” Filiation might therefore be understood as more resistant to change than legal parentage. Thus while Quebec is one of the few provinces that provides legislative recognition of women-led families, the nature of filiation has created interpretive nuances that are perhaps unique to a civil law system. As Leckey concludes, “The notion of filiation as institution, which connotes some immunity or at least resistance to change, jostles uneasily with the extent to which the legislature has, in recent decades, changed its recognition of that institution.” Robert Leckey, “‘Where the Parents are of the Same-Sex’: Quebec’s Reforms to Filiation” (2009) 23 International Journal of Law, Policy and the Family 62 at 64. 14 Civil Code of Quebec, SQ 1991, c 64, arts 538-42. For an overview of the Quebec provisions, see Leckey, ibid. 15 S.G. v L.C, [2004] RJQ 1685 (QCCS) [SG]. Unfortunately, a media publication ban was put on the case, making it difficult to know much about the dispute other than what is included in the interim judgment: S.G. c. L.C., [2005] JQ No 7407 (QL). [2013] EQUAL PARENTS, EQUAL CHILDREN 259 with the plan.16 Though the non-biological mother did not end the relationship, and in fact went on to co-parent the child and enter into a civil union with the biological mother, the court relied on S.G.’s assertions to suggest the non-biological mother was not a party to the parental project. As noted above, Quebec has some of the most inclusive laws in Canada available to lesbian parents. Under the filiation provisions in the Civil Code, if a child is born of a “parental project” involving assisted conception, it is presumed the spouse, whether male or female, of the woman who gave birth to the child is the child’s other parent.17 A “parental project” exists “from the moment a person alone decides, or spouses by mutual consent decide, in order to have a child, to resort to the genetic material of a person who is not party to the parental project.”18 In the case of lesbian mothers, the parental project is typically between the members of the lesbian couple and not between the birth mother and the donor. To give effect to this reality, article 538.2 states that the contribution of genetic material does not create any automatic bond of filiation between the contributor and the child.19 Rather, a sperm donor can only have a bond of filiation if he is a party to the parental project. 2013 CanLIIDocs 114 In making her decision in S.G., Courteau J relied heavily on the donor’s version of events, concluding that the parental project was between S.G. and L.C., not between L.C. and her spouse.20 Unfortunately, the evidence around the parties’ decision-making process was not particularly clear and, given the absence of an affidavit from S.G. and L.C., the judge had little alternative but to accept the donor’s version of events. However, in the course of her judgment, Courteau J unnecessarily attacked the mothers’ desire to create a women-led family. She held that the mothers’ attitude to access was “totally destructive” and that they were denying their child her “rights to her father.”21 Viewing the lesbian family as inherently incomplete, Courteau J treated the imposition of a third party on the lesbian family as positive rather than destructive, ignoring the challenge it posed to the integrity of the unit the two women had created. Justice Courteau also accused the non-biological mother of having created her parental relationship with the child “artificially,” particularly with regard to her appearing on the child’s birth certificate.22 It is difficult to know exactly what Courteau J is asserting with this statement, given that the non-biological mother 16 The two mothers did not file affidavits, so their version of events is unknown. 17 Civil Code of Quebec, SQ 1991, c 64, art 538.3. 18 Ibid art 538. 19 Ibid art 538.2. 20 SG, supra note 15 at para 34. 21 Ibid at para 54. 22 Ibid at para 50. 260 UNB LJ RD UN-B [VOL/TOME 64] parented the child from birth, the donor never indicated a desire to be on the birth certificate, and the Civil Code expressly permits the creation of filiation by such “artificial” means. The second Quebec case was L.O. v. S.J.23 Due to the clarity of the factual evidence in L.O., the court had little choice but to follow the clear instruction of the filiation provisions in the Civil Code. The parties had a donor agreement specifying that the donor agreed to relinquish all rights he may have as a legal parent. The court relied on the agreement as written confirmation of the intention of the parties with regard to the “parental project.” In addition, the court relied on the fact the women already had two children conceived using the sperm of a different donor to support the assertion that the donor was not intended to be part of the family. Based on these facts, the court held that the parties to the parental project were the two women and that the donor was a third-party gamete provider. The donor asserted that the parental project involved three individuals – he and the two mothers – but the court rejected the claim on the basis that Quebec law did not permit three legal parents. The donor was thus excluded from the status of father. The unusual result in L.O. – a victory for 2013 CanLIIDocs 114 the lesbian couple – points to the potential advantage of statutory rules, at least where the facts indicate a clear intention on the part of the two women to form a parental project. The third decision from Quebec is A v. B, C and X. Like L.O., it demonstrates the potentially positive impact of the Quebec legislation where the intentions are fairly clear.24 As with the other Quebec cases, the lesbian couple in A v. B, C and X conceived using the sperm of a known donor. Following the birth, the non-biological mother began the process of adopting the child. That process was stalled when the donor sought a declaration of filiation, increased access, and access alone with his other family members. The Quebec Court of Appeal refused to recognize the filiation of the donor on the basis that conception occurred via donor insemination and the donor had signed an agreement, explicitly relinquishing any rights or responsibilities he might have in relation to a child conceived via his donation.25 While the donor had enjoyed some access with the child, it was insufficient to override the very clear agreement between the parties. The Court of Appeal also noted that while Ontario recognizes the possibility of a child having three parents, such a finding was not available under Quebec law, and the court therefore was not in a position to add the donor as a third parent.26 23 L.O. v S.J., 2006 QCSC 302. 24 A v B, C and X, 2007 QCCA 361. 25 Ibid at paras 51- 55 26 Ibid at para 55. [2013] EQUAL PARENTS, EQUAL CHILDREN 261 Outside of Quebec there have been only two cases addressing the legal status of known donors. The first, M.A.C. v. M.K., arose in Ontario where there is no legislative regime addressing parentage in such situations.27 Unlike any of the previous decisions, the parties in M.A.C. had a three-way co-parenting agreement entered into prior to the child’s conception. During the early years of the child’s life the donor played a fairly active role, both in terms of caregiving and decision- making. However, when the parties had a falling out, the mothers asserted that their nuclear family should be protected against the now unwanted intrusion of their known donor. They applied for a second-parent adoption and requested the court dispense with the donor’s consent.28 Their application was rejected on the basis that the parties had agreed the donor would be involved in the child’s life and that he had in fact been involved. Given his active role in the family, the court was unwilling to dispense with the donor’s consent. While the court upheld the original intention of the parties to include the donor in the child’s life, the effect of the decision was the relegation of the non-biological mother (who had parented the child from birth) to the status of legal stranger, while the biologically related donor (who played a significantly smaller role in the child’s life) was elevated to the status of parent. Thus, while the intentions of the parties were given weight, the law’s prioritization of 2013 CanLIIDocs 114 biology over social relationships meant that the decision’s effect on the two mothers, particularly the non-biological mother, was devastating. While the result in M.A.C. is likely to be understood as a defeat for lesbian parenthood, it is possible that in situations where the child and donor have a relationship and it was the pre-conception intention that they do, it might be in the child’s best interest to maintain that relationship, albeit in a way that does not undermine the primary parents. However, the law treats the issue as an either/or determination: the donor is either a parent or he is not, leaving no room for the avuncular role that some sperm donors to lesbian families play.29 While providing some legal recognition for “involved known donors”30 should be considered cautiously, in light of what appears to be a strong desire on the part of many judges to “find fathers” for the children of lesbian mothers, having the middle-ground option available may defuse situations that give rise to cases such as M.A.C. 27 M.A.C. v M.K., 2009 ONCJ 18. 28 The donor had already successfully applied for access: K.(M.) v. C.(M.) and D.(C.), 2007 ONCJ 456. 29 In empirical research with lesbian mothers living in British Columbia and Alberta, I have found that in approximately half of the families interviewed who conceived using the sperm of known donors included the donor in the child’s life. Amongst the women interviewed, whether they conceived with a known donor or not, I identified fairly strong support for a legal category designed to capture the relationship of an “involved known donor”. I referred to the relationship as that of a “non-parental adult caregiver” and argued that it captured the role of an involved known donor, while clarifying that such an individual is not a legal parent. Kelly, supra note 4 at 155 30 Such a proposal was first suggested by Fred Bernstein, “This Child Does Have Two Mothers…And an Involved Known Donor” (1996) 22 New York University Review of Law and Social Change 1. 262 UNB LJ RD UN-B [VOL/TOME 64] Extending some form of legal recognition to involved donors protects the donor’s interest in maintaining an access relationship with the child, while also protecting the lesbian family, particularly the non-biological mother. When the “involved known donor” and non-biological mother need no longer compete for the status of second legal parent the likelihood, as well as the intensity, of a dispute may be lessened. The only jurisdiction to have adopted such an approach is New Zealand. Section 41 of New Zealand’s Care of Children Act31 acknowledges that in some families known donors play a significant, albeit non-parental, role in their child’s life. It thus allows for a known donor, in a discrete set of circumstances, to opt into the family as a non-parental figure with the consent of the child’s presumptive parents. It does so through the recognition of written parenting agreements. Section 41 expressly sanctions pre-conception agreements addressing the role of a known donor in a child’s life, including the amount of contact the donor will have with the child.32 The agreement itself cannot be enforced under the Act, but a court may, with the agreement of the parties, make a consent order that embodies some or all of the 33 terms of the agreement. That order, insofar as it relates to contact with the child, 2013 CanLIIDocs 114 can be enforced under the Act as if it were a parenting order for contact.34 Importantly, neither an agreement nor an order affects the donor’s legal status with respect to the child. Neither enables him to become a legal parent or guardian. Although the terms of the agreement can be varied and the best interests of the child will always prevail, section 41 permits lesbian women and their donors to carve out a non-parental role for the donor prior to conception that will, in most cases, be respected by the courts. Another Ontario case addressing lesbian mothering in the context of known donors is A.A. v B.B., a Court of Appeal decision in which it was held that a child could have three legal parents – his two mothers and his donor father.35 The parties in A.A. v B.B. were not in conflict. All agreed the child had three parents, yet only the biological mother and the donor were listed on the child’s birth certificate. The parties challenged the assumption that a child can only have two legal parents and requested that the non-biological mother be added to the birth certificate without having to remove the donor. The application was ultimately successful, with the court using its parens patriae power to declare that the child had three legal parents. While A.A. v B.B. is the only decision of its kind and is heavily dependent on the individual facts of the case, it does suggest that in families in which three adults agree they are all parents, the courts may be willing to give legal recognition to the 31 Care of Children Act (NZ). 32 Ibid, s. 41(2). 33 Ibid s 41(3). 34 Ibid s 41(4) 35 A.A. v B.B, 2007 ONCA 2 [A.A.]. [2013] EQUAL PARENTS, EQUAL CHILDREN 263 arrangement. Interestingly, British Columbia’s new Family Law Act provides a legislative mechanism by which to achieve this same result.36 While A.A. is in some ways a groundbreaking decision, the manner in which the parties had to construct their case demonstrates the ongoing prioritization of biology. In A.A. it was the non-biological mother and not the donor, who had to apply to be added as the child’s third parent, the donor having been listed on the child’s birth certificate. The choice to include the donor on the birth certificate may seem odd given the child was being raised primarily by his two mothers, with the donor having fairly limited contact and not taking part in any of the day-to-day decision-making. However, the parties had no other option. While two women were permitted to appear on a child’s birth certificate in Ontario at the time of the child’s birth, the case granting that right, M.D.R. v Ontario, limited the new birth certificate’s availability to women who conceived with the sperm of an anonymous donor.37 The limiting of M.D.R. to situations of anonymous sperm donors appears to suggest that when a biological father is known and available, courts are reluctant to sever his rights. The impact of the M.D.R. decision on the parties in A.A. was that the 2013 CanLIIDocs 114 non-biological mother – one of the child’s two primary caregivers – was placed in the situation of having to assert her parental status, while the donor, who played only a limited role in the child life, was deemed a legal parent at birth. The final Canadian case involving a dispute between a lesbian couple and a known donor is still unfolding, with a trial expected in mid 2013.38 The dispute is between a married lesbian couple, X.X. and Y.Y., who have been together for over 15 years, and W.W., their sperm donor. X.X., the biological mother, had attended elementary school with W.W. When she and Y.Y. decided to have a baby, she approached W.W., the only gay man in town, to ask whether he would be their sperm donor. X.X. offered to pay W.W. for his services, but he declined. W.W. requested his name be put on the birth certificate, but X.X. explained that her wife Y.Y. would be named as the child’s second parent. A week after the initial conversation, they signed an agreement. It stated: I, W.W., hereby sign over any and all parental rights to any children created by using my donated semen. I understand that by signing my rights over I will have absolutely no rights, from this day forward, to see, visit, claim, or request custody of any children resulting from use of my sperm. By signing this agreement I understand that my semen will be used to inseminate X.X., which will potentially result in children being conceived. As well as not having any rights to any children born of my donated 36 Family Law Act, SBC 2011, c 25, s 30. 37 M.D.R., supra note 1. 38 DeBlois v Lavigne, 2012 ONSC 3949. 264 UNB LJ RD UN-B [VOL/TOME 64] semen, I will not be responsible at any time to pay support of any kind of all children conceived by using my semen. I further agree that at no time will I interact with the children without the consent of the mother. Also I will not tell any children, that I believe to be conceived with my semen, that I am their biological father. I agree that I will not interfere with the raising of children. This agreement is a legally binding contract and cannot be changed or revoked without the consent and agreement of the mother as well as the adoptive parent, if any. Over the next 16 months W.W. provided semen samples 1-5 times a month. X.X. conceived in January 2010. After X.X. informed W.W. that she was pregnant they had no further contact. A boy (Z.Z.) was born in October 2010, and has been raised solely by his two mothers. He has never met W.W. In January 2011, W.W. served X.X. with an application seeking a declaration of parentage, to have his name added to the birth certificate, access to Z.Z., and a restraining/non-harassment order against X.X. The access schedule proposed by W.W. began with two hour access visits every second weekend in April 2011 and rapidly proceeded to entire weekends of access by December 2011. In addition, W.W. requested rotating holiday access, 2013 CanLIIDocs 114 and half of school holidays once Z.Z. began school. W.W. conceded he had signed the agreement, but argued he did so under duress. He claimed that when he and X.X. attended school together she bullied him, and that this past bullying intimidated him and placed him in a disadvantaged bargaining position. W.W. argued the agreement should therefore be declared void. X.X. denied W.W.’s allegations and noted he had had ample time to withdraw from the arrangement prior to Z.Z.’s conception. In April 2012, the parties participated in a settlement conference, presided over by Cornell J. The result of the conference was a consent order,39 endorsed by Cornell J, setting aside the donor agreement for lack of consideration40 and permitting access. The only remaining issue for trial, according to Cornell J, was what was in the best interest of Z.Z. Following the consent order W.W. brought an application for interim access. In June 2012, X.X. and Y.Y. obtained new counsel and successfully sought to have the interim access order set aside. Karam J, the presiding judge, held that 39 This consent order is not available. However, details of the order are included in a subsequent challenge to it: W.W. v X.X. and Y.Y., 2013 ONSC 879. 40 While this might appear to be a logical conclusion under contract law, in the family law context it is rather unusual. First, historically courts have refused to recognize the validity of contracts related to children on the basis that they are contrary to public policy. The fear is that a contract will usurp the child’s best interests, the sole criterion upon which parenting decisions should be based. Thus, to suggest that the agreement is invalid on the basis of a lack of consideration is an unusual choice given the existing jurisprudence. Second, if consideration had taken the form of financial compensation, which is what Cornell J. seems to imply, the parties would have been engaging in illegal activity, given that section 7(1) of the Assisted Human Reproduction Act, S.C. 2004, c. 2, prohibits the buying and selling of human gametes. [2013] EQUAL PARENTS, EQUAL CHILDREN 265 making an order for access in the particular circumstances of the case was problematic. First, he was concerned that with the trial just months away, an order for access would inevitably influence the outcome of the proceedings. Second, he was concerned about the negative implications for Z.Z. As he explained “despite the child’s young age, it is impossible to know what disclosure of the applicant’s status as his parent might mean. All circumstances considered, the risk of there being an adverse affect to the child is too great to ignore.”41 This statement is one of the few in cases such as this where a child’s interest in maintaining a stable family life is given some weight. At the same time, Karam J referred throughout the judgment to W.W. as Z.Z.’s “father” and “parent”, most notably while discussing what he understood to be a presumption in favour of contact with “both parents”.42 The disagreement between X.X., Y.Y. and W.W. is emblematic of the types of disputes that occur between lesbian couples and their donors, but in no other Canadian case have the intentions of the parties been so clearly articulated in writing.43 There is no evidence whatsoever that X.X. and Y.Y. intended to share parenting with W.W., and no evidence that W.W. wanted to be a parent beyond an 2013 CanLIIDocs 114 initial request to appear on the birth certificate. What happens in X.X. & Y.Y. v W.W. will, in many ways, test the willingness of judges to permit women to create families of their own. SINGLE MOTHERS BY CHOICE AND KNOWN DONORS On the whole, SMCs fare worse than lesbian mothers when challenged by known donors, in large part because they have no second parent to fill the “gap” created by not having a father. While all of the cases have complex facts, many of which are in dispute, the judges deciding them have demonstrated little tolerance for the kind of autonomous motherhood SMCs envisage. The first Canadian case that might be described as involving an SMC was Johnson-Steeves v Lee,44 an access dispute between the mother and the man she characterized as a sperm donor. Caroline Johnson-Steeves asked King Tak Lee, an old friend, whether he would be a sperm donor. She alleged that the parties made an oral agreement that Lee would either donate sperm or father the child via intercourse and provide some financial support, but that he would not interfere with decision-making around the health and welfare of the child. 41 DeBlois v Lavigne, 2012 ONSC 3949 at para 12. 42 Ibid at paras 8-9. 43 In most of the cases to date, parties have not entered into written agreements or have prepared agreements that do not clearly state their intentions with regard to donor access. 44 Johnson-Steeves v Lee [1997] 6 WWR 608 (ABQB) [Lee]; Johnson-Steeves v Lee (1997), 209 AR 202 (ABCA) [Lee appeal]. 266 UNB LJ RD UN-B [VOL/TOME 64] Lee did not contest that he had agreed to provide financial support or that he would not play a decision-making role in the child’s life. However, he submitted the parties specifically discussed his desire to see the child and Johnson-Steeves had stated “of course he could see the child and that she would never deny kids the right to see their dad.”45 It was Johnson-Steeves’ assertion, however, that the parties did not discuss access, but that she had told Lee he could see the child whenever he passed through town. The child (Nigel) was conceived via intercourse. Lee was not listed on the birth certificate, but was acknowledged as Nigel’s father for the purpose of providing maintenance. Lee visited with Nigel several times over the first ten months of life. However, following a series of disagreements, Johnson-Steeves prevented Lee from exercising access. The case was initiated by Lee seeking an access order. At the time of trial, Nigel was four and half years old. In support of her request that access be denied, Johnson-Steeves argued the court must distinguish between a biological father who is not entitled to access as of 2013 CanLIIDocs 114 right and a social father who has access rights.46 She submitted that Lee had agreed he would not be a social father and was thus not entitled to access. Johnson-Steeves also submitted that Nigel’s family was complete without a father and to suggest otherwise would “violate Nigel’s understanding of his family unit”47 and force “on her a family structure that she did not choose.”48 From the outset the trial judge and the Court of Appeal rejected Johnson- Steeves’ construction of her family. Kenny J began by stating Nigel was “conceived under circumstances that many would consider unusual and perhaps distasteful”,49 suggesting that she was somewhat uncomfortable with the idea of deliberately creating a single mother family. Kenny J then disputed Johnson-Steeves’ suggestion Lee was a “sperm donor” and thus “just a biological father.” Accusing her of thinking only of herself and mirroring comments made by judges in cases involving lesbian mothers, Kenny J stated that she found this construction of Lee’s identity “totally selfish”.50 45 Lee, supra note 44 at para 21. 46 Ibid at para 46. Johnson-Steeves’ assertion, which the court accepted, was that genetic parents do not have automatic access rights to their children. Rather, access decisions must be made in the best interests of the child. The court did not accept the mother’s argument that a social parent has a right of access. Rather, the court concluded that social parents, like biological parents, are entitled to access only if it is in the child’s best interests. 47 Ibid at para 52. 48 Ibid at para 48. 49 Ibid at para. 52. 50 Ibid at para. 49. [2013] EQUAL PARENTS, EQUAL CHILDREN 267 After concluding Lee was not a sperm donor, Kenny J addressed Johnson- Steeves’ assertion that Nigel’s family was complete without a father. Kenny J’s conclusions with regard to this issue, cited with approval by the Court of Appeal,51 drew heavily on the evidence of Dr. Kneier, a child psychologist who had not met either of the parties or Nigel. Kenny J cited with approval Dr. Kneier’s assertion “that fathers are good for children” and that “although children can, and often do, achieve a healthy development without a father…it is better to have a relationship with their father than not to have one.”52 She also relied on Dr. Kneier’s assertion that a “good relationship by a boy with his father helps develop intelligence and drive, improves academic achievement and helps introduce independence, empathy and social adequacy with peers.”53 In light of Dr. Kneier’s evidence, Kenny J concluded that Nigel, no matter what the circumstances of his conception, had a right of access to his father54 and that Lee would contribute to Nigel’s life as “only a father could do”.55 While the factual circumstances in Johnson-Steeves do not lend themselves 2013 CanLIIDocs 114 to drawing clear conclusions as to the law’s treatment of SMCs a number of insights can be gleaned. First, Johnson-Steeves supports – as other more traditional custody and access decisions have – a renewed emphasis on biological fatherhood as an essentialized identity, assumed to provide several defined benefits to children, particularly boys. 56 These benefits are perceived as outweighing the integrity of the SMC-created family and the child’s need for a stable family life. A second point to be taken from Johnson-Steeves is that the circumstances of conception appear irrelevant to a determination of parentage. Though Nigel was conceived via intercourse, Kenny J states that it did not matter whether the child was conceived by artificial insemination, a one night stand, or during a long term relationship, he had a mother and a father.57 This is a troubling conclusion given that the use of assisted conception is, in the context of heterosexual couples, presumed to sever any legal link between the child and the gamete provider. 51 Lee appeal, supra note 44 at paras. 17-18. 52 Lee, supra note 44 at para 40. 53 Ibid at para 41. 54 Ibid at para 54. 55 Ibid at para 56. 56 For a discussion of the increasing judicial emphasis on essentialized biological fatherhood see Kelly, supra note 12 at 329-40. 57 Lee, supra note 44 at para 54. 268 UNB LJ RD UN-B [VOL/TOME 64] A 2007 decision of the Alberta Court of Queen’s Bench, Caufield v Wong, further demonstrates the judicial reluctance to validate a woman’s decision to actively choose to become a single mother.58 Catherine Caufield and Allan Wong had a short non-cohabiting intimate relationship. When it ended, Wong agreed “as an act of friendship” to provide sperm to allow Caufield to attempt in vitro fertilization (IVF). 59 Caufield conceived a set of twins. Wong immediately sought to be involved in the children’s lives, even following Caufield when she moved to Edmonton soon after the children’s birth. Caufield was willing to accept some access – the 2007 application by Caufield was to reduce Wong’s access granted by Trussler J in 2003– but insisted that she never intended him to be a parent and that her children did not need a father. By contrast, Wong asserted he was a legal parent and entitled to equal parenting time. Despite the extremely high level of conflict between the parties, the Court ultimately made an order for shared parenting.60 As in Johnson-Steeves, Sanderman J refused to entertain the idea that Wong was anything but a parent. Unlike Johnson-Steeves, conception in Caufield was achieved via IVF, a highly technical process involving significant medical 2013 CanLIIDocs 114 intervention. At the time of the initial trial, Alberta lacked any legislative guidance with regard to parentage where assisted conception is used. However, in her 2007 application to reduce Wong’s access, Caufield directed the court to section 13(3) of Alberta’s Family Law Act, introduced just months after the 2003 decision, which states: [A] male person whose sperm is used in an assisted conception involving an egg of a female person who is neither his spouse nor a person with whom he is a relationship of interdependence of some permanence is not the father of the resulting child and acquires no parental or guardianship rights or responsibilities of any kind as a result of the use of his sperm.61 Caufield argued section 13(3) supported her assertion that Wong did not acquire parental rights or responsibilities by virtue of his donation. As Sanderman J himself notes, Wong had never been the spouse of Caufield, they had never lived in a relationship of interdependence of some permanence, and the children were born via assisted conception. However, the judge declared Wong was “still the father of these children.”62 Justice Sanderman’s reasoning was that because the 2003 interim order established Wong was a father and granted him joint custody of the children, and since all of this preceded the legislative amendment, section 13(3) was not applicable 58 Caufield v Wong, 2007 ABQB 732 [Caufield]. The 2007 judgment is not the first with regard to the parties. By 2007, they had appeared before Alberta courts three times to resolve their access issues, as well as to determine the fate of four fertilized embryos that remained in storage. 59 C.C. v A.W, 2005 ABQB 290 at para. 2 [CC]. 60 Wong was granted 11 days in a row of parenting time per month. For each of July and August, the children were with him for two uninterrupted weeks. 61 Family Law Act, RSA 2003, Ch F-4.5, s 13(3). 62 Caufield, supra note 58 at para 33. [2013] EQUAL PARENTS, EQUAL CHILDREN 269 and the matter was closed. Sanderman J’s decision was not altogether surprising. The children had, by 2007, established a relationship with Wong and it was unlikely in their best interests to sever it. The appropriateness of Trussler J’s initial decision is, however, worthy of discussion. A second attack on single mothering by choice in Caufield is found in Sanderman J’s extensive analysis, in both decisions, of Caufield’s approach to parenting. It is difficult to read Sanderson J.’s commentary as anything other than a warning that if mothers are left to parent alone they will ‘smother’ their children.63 As Sanderman J argues, while Caufield’s efforts may be “well-intentioned,” her attachment style of parenting has deteriorated into a form of “smothering care” characterized by “over protective controlling behavior that is not in [the children’s] best interests.”64 She is criticized for “wanting to be the central figure in all aspects of [her children’s] lives”65 and for “needing to maintain close contact with the children even when they are in the care of their father.”66 These attacks on Caufield draw on the trope of the ‘smothering mother:’ over-protective, controlling and ultimately damaging, especially to boys. The involvement of the children’s father, 2013 CanLIIDocs 114 described in this case as ‘traditional’ and ‘rigid’, is therefore needed to balance the effects of the mother’s over-nurturing of her children.67 While Caufield’s attachment parenting style made it somewhat easier for Sanderman J to depict her as a ‘smothering mother,’ underlying his critique is a suggestion that over-protected and controlled children may be a possible by-product of permitting women to parent without male interference. The final case involving an SMC is the Quebec Court of Appeal decision of L.B. & E.B. c. G.N.68 N, a single woman, decided to have a child on her own. N and G were engaged in a regular sexual relationship, but were not a couple and never resided together. N asked G if he would help her conceive a child. G already had two children and stated he did not want any additional financial responsibility. N told him she did not expect any financial support. G agreed to assist and N conceived. N and G continued their sexual relationship up until the child’s birth in 2003. It was G’s assertion that N had said she would put him on the birth certificate. After the birth of the child (L) he asked to see the birth certificate. N eventually showed him one which included his name, but G later learned it was a fake. As part of the 63 C.C, supra note 59 at para 9. 64 Caufield, supra note 58 at para 19. 65 Ibid at para 17. 66 Ibid at para 7. 67 Ibid at paras 7 & 9. 68 L.B. & E.B. c G.N., 2011 QCCS 348 [L.B]. 270 UNB LJ RD UN-B [VOL/TOME 64] arrangement, N gave G several financial installments totaling $1400. G testified at various times that the payments constituted a loan, a gift, and compensation for the first pregnancy (a miscarriage), but not the second.69 After L’s birth, G visited sporadically, spending time with the little girl only in her mother’s presence. N looked after all of L’s needs and G knew little of her daily activities. He admitted at trial that he played no role in guiding or supervising her education, could not identify any of the daycares or schools she had attended, and that he had played no role in and knew nothing of L’s considerable medical care while she was an infant. L called G by his first name, until he started insisting she address him as “daddy.” When L was two, N was diagnosed with cancer. N underwent a year of treatment, but eventually passed away. G only became aware of N’s illness when he was notified of her death by N’s parents. In her will, N named her mother (E.B.) as L’s tutor.70 L was three and a half years old and in the care of her grandparents when G made an application for filiation, as well as a modification of L’s surname to include his own. The Quebec Supreme Court granted the action in filiation and denied the name change. The decision was upheld by the Quebec Court 2013 CanLIIDocs 114 of Appeal,71 and leave to the Supreme Court of Canada was denied.72 Quebec’s filiation legislation is unique in that it permits the transfer of genetic material for the purpose of a third-party parental project to take place by way of sexual intercourse. Article 538.2, which establishes that a contribution of genetic material for the purpose of a parental project does not create a bond of filiation between the contributor and the child born of the parental project, goes on to state that: [I]f the genetic material is provided by way of sexual intercourse, a bond of filiation may be established, in the year following the birth, between the contributor and the child.73 Thus, article 538.2 establishes that a parental project can exist even where conception occurs via sexual intercourse. When that is the case, the donor has the opportunity to establish filiation within the first year of a child’s life, which the donor in L.B. failed to do. However, if the court concludes that there is no parental project, article 538.2 become irrelevant and the situation falls under the rules governing filiation by blood. 69 Ibid at para 14. 70 A “tutor” is the equivalent of a common law guardian. 71 L.B, supra note 68. 72 L.B. & E.B. c G.N., 2011 QCCA 1180 [L.B appeal]. 73 Civil Code of Quebec, SQ 1992, c 64, art 538.2. [2013] EQUAL PARENTS, EQUAL CHILDREN 271 The trial judge in L.B. held that for a parental project to exist, it is necessary for the person who provides the genetic material to voluntarily agree to limit his or her role and to avoid the legal consequences of filiation that would normally follow. It was concluded at trial that the grandparents failed to demonstrate that G had agreed to limit his role in this way. On appeal, the grandparents’ challenged this factual finding, arguing that the trial judge made overriding errors in retaining G’s contradictory testimony, made undue inferences from the relationship N allowed G and L to have, and failed to take into account the fact G never agreed to assume financial care of L. While the Court of Appeal accepted it would be erroneous to assume there was no parental project involving assisted reproduction simply because the donor had a certain relationship with the child, it concluded there was not sufficient evidence to support the assertion that G had intended to just be a donor. Relying almost entirely on G’s testimony, much of which the court stated “was neutral, not favouring one story or the other,” it concluded there was no evidence that N told G his role would be limited to that of a sperm donor. The facts that were said to support 2013 CanLIIDocs 114 this conclusion were that G attended N’s first ultrasound, asked to appear on L’s birth certificate, announced to his family that he was going to become a father, and visited somewhat regularly. In addition, N invited G to meet the baby two days after the birth and N and G continued to have sexual relations until the birth of the child. The court acknowledged that the payment by N of $1400 to G was “troublesome” and that his evidence with regard to the payment was “contradictory,” but ultimately chose to overlook it. The Court of Appeal also refused to draw any adverse conclusion based on G’s lack of financial contribution, stating filiation is established by law and does not follow the desire of a parent to assume the consequences that follow upon such filiation, such as the obligation to provide financial support. There are, however, a number of factual issues that the court chose to simply ignore. For example, G knew little of L’s life and exaggerated his involvement in it,74 and failed to call a single witness, friend or family, to substantiate his evidence. The grandparents argued this last factor – G’s failure to call any witnesses after initially indicating that he would – created a situation where he was the sole provider of evidence with regard to his relationship with L and N, and justified an inference that either he never represented himself to his family and friends as L’s father or that their testimony would have been detrimental to his position. The grandparents also relied on the fact that G knew almost nothing of L’s life as evidence of his peripheral role. He never spent any time alone with L, never attended any of her medical appointments or functions at daycare, and was not surprised or concerned that N never included him in decisions involving L’s care and 74 For example, he originally testified that he assembled L’s crib, but when another witness testified that she had built the crib he later admitted he merely adjusted a leg. 272 UNB LJ RD UN-B [VOL/TOME 64] education. He did not know that L was a difficult, colicky baby, when she began daycare or which daycare she attended, and remained unaware of the fact that L’s mother had become seriously ill over a year prior to her death, had a mastectomy, and had undergone aggressive chemotherapy and radiation treatment. Thus, while the court stated that it should not presume the lack of a parental project simply because G had contact with L, it ignored the fact that the relationship which did exist was minimal and certainly not one characterized by the closeness of a parent. While some kind of “involved known donor” status may have assisted in this case, the donor’s involvement was so minimal that it is hard to know whether he would have even met such a standard. The existing case law suggests that when judges have some discretion, they prefer to protect biological relationships over pre-conception intention and existing family relationships. This conclusion is perplexing for a number of reasons. First, as Campbell has argued, third party gametes are used because the couple or individual cannot conceive a child without assistance and not because of any intention on the 75 part of the couple or individual to co-parent with the gamete provider. In fact, the 2013 CanLIIDocs 114 intention of the parties is usually the complete opposite. Even when a known donor is used and some involvement is envisaged, there is rarely an intention to parent with the donor.76 Thus, to identify biology as the basis for parentage seems to ignore the foundational purpose of assisted conception: to create a child for the intended parent(s) with the assistance of a third party gamete provider. The emphasis on biology in this context is particularly damaging to lesbian couples who must always rely on third party gametes for reproduction. Second, the favouring of biology over pre-conception intention and the integrity of women-led families is contrary to legislative trends both in Canada and elsewhere.77 The five provinces that have legislation addressing parentage in situations of assisted conception establish from the outset that donors are not, by virtue of their donations, legal parents. A typical example is section 24 of British Columbia’s new Family Law Act provides that if a child is born as a result of assisted reproduction (defined as “a method of conceiving a child other than by sexual intercourse”), a donor is not, by reason only of the donation, the child’s parent, and may not be declared by a court, by reason only of the donation, to be the child’s parent. Rather, he can only be declared a parent if it is determined under the Family 75 Campbell, supra note 8 at 259. 76 Kelly, supra note 4 at 101-108. 77 For an excellent international example, see the Assisted Reproductive Treatment Act 2008 (Vic) from Victoria, Australia, which expressly protects the parentage of both lesbian couples and SMCs. The U.K.’s Human Fertilisation and Embryology Act 2008, c 22, is a second, albeit flawed, example of the international trend towards recognizing women-led families. [2013] EQUAL PARENTS, EQUAL CHILDREN 273 Law Act that he is one. A donor who wants to be a legal parent therefore must make more than a purely biological argument to support a parentage application. Provincial legislation also includes parenting presumptions that operate at the time of a child’s birth to protect the pre-conception intention of a couple to extend legal parentage to the birth mother’s partner, whether male or female. For example, section 27 of B.C.’s Family Law Act states that when a child is conceived using assisted reproduction, the parents of the child are the child’s birth mother, and the person married to, or in a marriage-like relationship with the birth mother (whether male or female), unless there is proof that that person, before conception, either did not consent to be the child’s parent or withdrew consent. Quebec, Alberta, Manitoba and P.E.I. have provisions similar to those in the Family Law Act, pointing to a clear statutory trend in favour of intention-based parentage rules amongst the provinces that have legislated in this area. Finally, decisions as to custody and access in these cases suggest an interpretation of the best interests of the child test that ignores the child’s interest in family stability and security, typically key considerations when courts are making 2013 CanLIIDocs 114 access determinations. Yet, the judges in the cases described above prefer to prioritize the hypothetical benefit a child might gain from having a relationship with his or her biological father over the existing benefit of a stable and secure family. The effect of such a preference is that the child goes from living in a stable intact family, to moving between two homes, often with accompanying antagonism. At the same time, the child’s legal relationship with his or her non-biological parent virtually vanishes, replaced by the parentage of the donor. 2. REFORMING PROVINCIAL PARENTAGE LAWS While the cases discussed above demonstrate that judicial interpretation of seemingly progressive statutory provisions can undermine their benefits for women-led families, statutory presumptions designed to curtail judicial discretion are nonetheless an appropriate starting point. In circumstances where the pre-conception intention is clear, statutory presumptions make it more difficult for judges to exercise discretion in a way that favours biological relationships over other types of relationships. As noted above, five provinces already have legislation addressing parentage in instances of assisted reproduction. British Columbia’s new Family Law Act, which came into force in March 2013 and expressly recognizes women-led families, serves as a high water mark in the field. The key feature of each of the provincial statutes is an intention-based system of assigning legal parentage that diminishes the significance of biological connection. This is typically achieved via two statutory presumptions. First, individuals who donate gametes for the purpose of assisted reproduction are not legal 274 UNB LJ RD UN-B [VOL/TOME 64] parents by virtue of the donation.78 Such a provision prevents a judge from declaring a donor a parent solely on the basis that the donor is the child’s biological father and, in the event that a donor is declared a father, requires the judge to provide some justification, beyond biology, for the decision. The second key feature present in all of the statutes is the inclusion of a parentage presumption that locates parenthood with the birth mother and her partner, whether male or female, provided that the partner has consented to the conception.79 These provisions reinforce that, in the context of assisted conception, parentage is grounded in pre-conception intention, not biology. Any reform in this area must include these two elements as a matter of basic protection for women-led families. Beyond these basics, however, there are a number of other provisions found within the existing legislation that would greatly assist lesbian and SMC families. The Quebec and B.C. legislation include a number of provisions that set them apart from other statutes in this area, providing better protection to women-led families. The first is that each appears to – at least implicitly – envisage a single parent family created via assisted reproduction. As noted above, the Quebec law 2013 CanLIIDocs 114 assigns “filiation” to individuals engaged in a “parental project”. A parental project involving assisted procreation “exists from the moment a person alone decides or spouses by mutual consent decide” to have a child using third party gametes.80 Thus, a parental project can be a project of a sole individual, such as an SMC. When read alongside article 538.2 – “the contribution of genetic material for the purposes of a third-party parental project does not create any bond of filiation between the contributor and the child born of the parental project” – the Quebec legislation seems to suggest that a woman can become a child’s sole legal parent. British Columbia’s new legislation also appears to recognize the possibility of a single mother family, though it is less clear than the Quebec legislation. The B.C. Act refers on a number of occasions, including within the definitions section, to “intended parents” as well as an “intended parent,” suggesting that there can be a single intended parent. Additional references to an “intended parent” occur in the surrogacy provisions, suggesting surrogacy is the area where a single intended parent is anticipated (eg, a single gay man). However, there is no reason to presume that a sole intended parent could not also be a single woman who conceives via donor insemination. In fact, it would be an odd conclusion if the prospect of a single intended parent was imagined only in the case of surrogacy. As noted earlier, a second element of the Quebec legislation that sets it apart from other statutes in this field is that the transfer of genetic material for the purpose 78 Civil Code of Quebec, SQ 1991, c 64, art 538.2; Family Law Act, SBC 2011, c 25, s 24(1). Alberta’s legislation does not have an explicit statement that the donor is not a legal parent, though it is implied in other provisions that positively identify the legal parents of a child conceived via assisted reproduction. 79 Family Law Act, SBC 2011, c 25, s 27; Family Law Act, SA 2003, c F-4.5, s 8.1(5); Civil Code of Quebec, SQ 1991, c. 64, art 538.3. 80 Civil Code of Quebec, SQ 1991, c 64, art 538. [2013] EQUAL PARENTS, EQUAL CHILDREN 275 of a parental project may take place by way of sexual intercourse.81 Such an approach is expressly rejected in the B.C., P.E.I., Manitoba, and Alberta statutes. It should be noted, however, that even in Quebec a parental project that involves the transfer of gametes via intercourse is not treated identically to conception via assisted reproduction. In the case of the former, the donor has the opportunity to establish filiation within the first year of a child’s life, while the latter bars a claim of filiation entirely. Given that conception via intercourse is a reasonably common feature of SMC cases, and occasionally present in lesbian couple cases, defining “assisted conception” to include conception via intercourse seems essential. As with conception via donor insemination or IVF, the main issue for the court should be to determine the parties’ pre-conception intention. It would therefore be beneficial for legislation to encourage pre-conception written agreements, as the B.C. statute does in relation to “multiple parent” families, discussed below. British Columbia’s statute also includes a significant feature that sets it apart from other legislation in this area: it permits a child to have three legal parents, 82 provided that there is a pre-conception written agreement to that effect. This option 2013 CanLIIDocs 114 is only available when conception occurs via assisted reproduction and was clearly designed to meet the needs of lesbian couples who wish to co-parent with a donor, or couples (same-sex or opposite-sex) who want to include a surrogate or egg donor within their legal family. For a child to have three legal parents, a number of requirements must be fulfilled. Section 30 states that a child can have three legal parents if a written agreement is made, prior to conception, between (i) an intended parent or the intended parents and a potential birth mother who agrees to be a parent together with the intended or intended parents (a surrogacy arrangement); or (ii) the potential birth mother, a person who is married to or in a marriage-like relationship with the potential birth mother, and a donor who agrees to be a parent together with the potential birth mother and her partner (a known donor scenario). Section 30 therefore has the potential to meet the needs of families in circumstances similar to the parties in A.A. v B.B.83 It may also help bolster the presumption that a donor is not a legal parent. If a donor wishes to assert parentage, he needs to meet the requirements stipulated under section 30. Failing to do so, he must accept that a donor is not a legal parent simply by virtue of donating. The existing provincial laws provide an excellent starting point for future legislation designed to protect the autonomy and stability of women-led families. Three essential elements can be drawn from them. First, any legislation in this area must protect both lesbian couples and single women, by locating parentage within 81 Ibid. at art. 538.2. 82 Family Law Act, SBC 2011, c. 25, s. 30. 83 A.A, supra note 1. 276 UNB LJ RD UN-B [VOL/TOME 64] the intended family and by severing any legal link between the gamete donor and child. Single women are often ignored when reform in this area occurs, so particular attention must be paid to expressly including them within the legislative framework. Given the frequency with which prospective SMCs (and sometimes lesbian women) conceive via intercourse, though they do not intend to co-parent with the donor, legislation should also clarify that, in situations where a pre-conception agreement exists, conception via intercourse does not negate the intention of the lesbian couple or single woman to parent independently of the donor. Finally, in the small number of instances where women intend to co-parent with donors, legislation should permit a child to have more than two legal parents. Making this option available provides sufficient flexibility to meet the needs of the variety of lesbian family configurations that exist. However, by requiring a written agreement to this affect, it reinforces that such an arrangement is an exception to the general rule that a donor is not a legal parent. What is not included in any of the existing statutory regimes is a legal identity designed to respond to the circumstances of the “involved known donor.” While I 2013 CanLIIDocs 114 have expressed caution above in relation to such a category, at least some of the concerns expressed by lesbian parents may be overcome by creating a legal status that recognizes the role some known donors play in children’s lives, without interfering with the parentage of the non-biological mother. Whether referred to as a “non-parental adult caregiver” as Kelly suggests,84 or simply as “an involved known donor,” the existence of such a category may assist lesbian women and SMCs who consider donor involvement to be beneficial to their child, but do not intend to co- parent with the donor. LAW REFORM IN THE SHADOW OF THE CHARTER While legislation similar to that which exists in B.C., Alberta, Quebec, Manitoba and P.E.I. is likely to rectify many of the existing concerns, given the slow pace of statutory change and the possibility legislation will not always be interpreted in the best light for women-led families, it is also important to consider how to shift judicial thinking in these cases. Though judges sometimes refer to the best interests of the child, decision-making with regard to legal parentage is not subject to a best interests analysis. If a donor is declared a legal parent then the judge must determine whether custody or access is in the child’s best interests. Judges have universally found in favour of the donor at this point. It is my recommendation that, in addition to the introduction of statutory provisions addressing parentage in the context of assisted reproduction, judges should be encouraged to interpret the best interests of the child test in a manner that is consistent with children’s section 15 equality rights under Canada’s Charter of Rights and Freedoms.85 84 Kelly, supra note 2 at 155. 85 Charter, supra note 9. [2013] EQUAL PARENTS, EQUAL CHILDREN 277 While the judges making the decisions discussed above presumably based their conclusions on what they believed was in the best interests of the children involved, their preference for maximizing the relationship between children and their biological fathers over the preservation of the existing relationships between non- biological mothers and their children and the stability of the intact family, suggests they view women-led families as incomplete. The children in each of the cases discussed above lived in stable, healthy homes with loving parents, and there was no indication that their well-being was in any way compromised by not having access to their biological father. Yet, each of the judges concluded that the status quo did not meet the child’s best interests, that there was something deficient about these families that meant an additional figure – a “father” – needed to be involved. This conclusion is difficult to justify for three reasons. As noted above, family security and stability is in a child’s best interests, and while this needs to be balanced with other aspects of the best interests test, these cases appear to completely ignore it as an element of the analysis.86 Second, research indicates that children raised by two lesbian mothers have psychological and educational outcomes equal to, if not better 2013 CanLIIDocs 114 than, children raised by heterosexual parents.87 In other words, being raised only by a lesbian couple does not appear to compromise in any way the best interests of children. There is thus no evidence-based reason to insert fathers into lesbian families. Finally, the insistence that children’s best interests require that they have an involved “father” is a particularly ironic conclusion in a country where lesbian couples can marry. While I do not believe that married couples are any more committed to their children than unmarried couples, it is odd that in a country where stability for children was used to justify the extension of marriage rights to same-sex couples,88 two women who have a child within a marriage cannot rely on the state to recognize them as the legal parents of that child. The best interests of the child test – the sole consideration for judges making custody and access determinations – typically involves a balancing of a variety of statutory factors and a consideration of the particular circumstances of the child in question. It is necessarily subjective, as it is designed to respond to the needs 86 An extremely poignant article written by an American adult who was a child-participant in a dispute between her lesbian mothers and her sister’s donor, highlights exactly how upsetting a donor’s attack on the child’s sense of family can be. See Cade Russo-Young, “My House on Stilts” in Susan Goldberg & Chloe Brushwood Rose (eds.), And Baby Makes More: Known Donors, Queer Parents, and Our Unexpected Families (London, ON: Insomniac Press, 2009) 208. 87 Loes van Gelderen, Henny Bos, Nanette Gartrell, Jo Hermanns, Ellen Perrin, “Quality of Life of Adolescents Raised from Birth by Lesbian Mothers: The US National Longitudinal Family Study” (2012) 33(1) Journal of Developmental & Behavioral Pediatrics 1. 88 For a discussion of the way in which rhetoric around the importance of marriage to children played an important role in the same-sex marriage debate in Canada see Kelly, supra note 12 at 54-56. 278 UNB LJ RD UN-B [VOL/TOME 64] of the individual child.89 This subjectivity can pose significant problems for women- led families. The existing case law suggests that when judges are faced with an access dispute involving a lesbian or SMC family, they rarely apply the best interests test in a manner that acknowledges or respects the completeness of the child’s functional family.90 Rather, judges tend to fall back on hetero-normativity, refashioning the existing family in a manner which undermines the integrity of the relationships within it and imposes new relationships based on the desire for an opposite-sex parental structure. The effect of this on children is unequal treatment: children conceived via assisted reproduction and raised within women-led families do not enjoy the same level of family security and stability as children similarly conceived and raised within heterosexual families. One way in which to address the inequality experienced by children raised in women-led families is to argue that the best interests of the child test should be interpreted in a manner that is consistent with children’s section 15 equality rights. In particular, children conceived via assisted reproduction and raised within women-led families should not be discriminated against on the basis of their mode of conception 2013 CanLIIDocs 114 and/or the family structure into which they are born. In practice, this would mean that the rules of legal parentage for children born into lesbian and SMC families be clearly established (preferably by way of legislative presumption, as discussed above) and, in the absence of such legislation, the importance of the child’s family integrity be acknowledged when making custody and access determinations under the best interests test. While family law is private litigation and thus not subject to direct Charter scrutiny,91 the Charter has nonetheless had significant impact on family law. First, the introduction of the Charter forced governments to review and amend legislation to ensure existing statutory provisions complied.92 Second, direct constitutional 89 While necessarily subjective, the best interests test has also been criticized for its indeterminacy. The first critique was mounted in 1975 by Robert Mnookin and many others have followed. Robert M. Mnookin, “Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy” (1975) 39 Law & Contemporary Problems 226; Katherine Bartlett, “Preference, Presumption, Predisposition, and Common Sense: From Traditional Custody Doctrines to the American Law Institute's Family Dissolution Project” (2002) 36(1) Family Law Quarterly 11 at 13-17; Martha Fineman, “Dominant Discourse, Professional Language, and Legal Change in Child Custody Decisionmaking” (1988) 101 Harvard Law Review 727. 90 As Jenni Millbank explains, functional family claims “rest on a performative aspect, that is, the parties are granted rights because of what they do in relation to one another, not because of the status of who they are or what manner of legal formality they have undertaken.” Millbank has argued that while functional family claims have been a successful tool for gaining rights from the State for lesbian and gay families, the model has faltered in the context of lesbian and gay intra-family disputes. The cases discussed above support this thesis. Millbank, supra note 2 at 150. 91 Dolphin Delivery v R.W.D.S.U., [1986] 2 SCR 573. 92 The most obvious effect of this first round of review was the introduction of gender-neutral language into family law legislation, enabling both men and women to apply for child support and spousal support. [2013] EQUAL PARENTS, EQUAL CHILDREN 279 challenges to statutory provisions have been brought in the courts on the basis that the laws violate Charter guarantees such as sex equality (section 15) or the right to “life, liberty and security of the person” (section 7).93 As a result, family law statutes are now gender neutral, treating female and male spouses identically in relation to spousal support, child support, matrimonial property division, and child custody. The third way in which the Charter has influenced family law is the most controversial. The Charter has been invoked both by scholars and litigants to argue that, even in the absence of state action, judges must take into account the fundamental values enshrined in the Charter.94 For family law, and the best interest of the child test in particular, this third application of the Charter has significant transformative potential. As Boyd explains, [The application of Charter values to family law] is important because many areas of family law involve the exercise of judicial discretion regarding concepts that originated in common law. Indeed, family law is a field that arguably involves more indeterminative normative concepts and standards than many areas of law that are embodied in statutes.95 In no area of family law is Boyd’s argument better demonstrated than in regard to the 2013 CanLIIDocs 114 best interests of the child test. Due to its inherent indeterminacy, the best interests test is particularly vulnerable to judicial biases associated with gender, race, class, sexual orientation, and disability.96 However, if tempered by Charter values, particularly the constitutional commitment to equality, assessments of the best interests of the child are less likely to incorporate normative assumptions which are damaging to children raised in women-led families. References to Charter values by the Supreme Court of Canada are now common in family law disputes, particularly with regard to economic matters. In the spousal support area, for example, the Supreme Court in Moge v Moge97 relied on the Charter’s guarantee of substantive equality to shift the analysis from a simplistic 93 These court challenges produced changes in the areas of adoption (eg, Re K (1995), 15 RFL (4th) 129 (ONSC)), spousal support for members of same-sex couples (M v H [1996] 132 DLR (4th) 538 (ONSC)), birth registration (see, Gill v Murray, supra note 1; M.D.R. v Ontario (Deputy Registrar General), supra note 1) and civil marriage (eg, EGALE Canada Inc. v. A-G of Canada, 2001 BCSC 1365; Halpern v Canada (A-G) (2002), 60 OR (3d) 321). 94 Nicholas Bala, The Charter of Rights and Family Law in Canada: A New Era (2000) 18 Canadian Family Law Quarterly 373 at 423; Susan B Boyd, “The Impact of the Charter of Rights and Freedoms on Canadian Family Law (2000) 17 Canadian Journal of Family Law 293 at 295. 95 Boyd, ibid. at 295. 96 Marlee Kline, “Child Welfare Law, ‘Best Interests of the Child’ Ideology, and First Nations” (1992) 30 Osgoode Hall Law Journal 375; I. Thery, “‘The Interest of the Child’ and the Regulation of the Post- Divorce Family” (1986) 14 International Journal of Society and the Law 341 at 345. 97 Moge v Moge, [1992] 3 SCR 813. 280 UNB LJ RD UN-B [VOL/TOME 64] approach to spousal support that treated spouses as equals at marriage breakdown, regardless of whether they were actually equally positioned, to a more nuanced approach that acknowledged the reality of women’s economic inequality when relationships break down. Following Moge, judges have continued to rely on substantive equality to introduce social context evidence that addresses the feminization of poverty and the unequal economic effects for men and women arising out of marriage or marriage-like relationships. For example, in Willick v Willick, another spousal support decision, L’Heureux-Dube J (McLachlin and Gonthier JJ concurring) stated that: Given the profound economic impact on the parties that may follow from differing interpretations of the Divorce Act’s support provisions, it follows that in the present case, as it did in Moge, this Court should seek to assure itself that its preferred interpretation is consistent with Charter values of substantive equality rather than with the values of formal equality.98 Given the decisions in Moge, Willick, and other similar cases, it can be concluded that the guarantee of substantive equality found in section 15 of the Charter, while not applying directly to private family law matters, has facilitated the introduction of 2013 CanLIIDocs 114 social context analysis in family law determinations, particularly in relation to economic issues. The desirability of incorporating Charter values into child custody law nonetheless remains controversial. As Boyd argues, because of the primacy of the best interests of the child test in custody and access law, rights discourse is rendered problematic.99 However, the judicial focus thus far has been on the problematic nature of incorporating the equality rights of parents into custody and access decision-making, something that courts have quite firmly rejected.100 By contrast, it is my argument that the best interests of the child test should incorporate the substantial equality rights of children. The relationship between the Charter and the best interests of the child test was first addressed in 1993 in the Supreme Court of Canada decision of Young v Young.101 Young involved the religious freedom of a non-custodial father who, when exercising access with his children, participated in religious practices the custodial parent opposed. One of the issues to be determined by the Supreme Court was 98 Willick v Willick, [1994] 3 SCR 670 at para 52. 99 Boyd, supra note 94 at 305. 100 The refusal of judges to consider the rights of parents in custody and access decision-making is based on the primacy of the best of the child test. The best interests test requires that the sole focus be on the child and not on what might be the competing interests of a parent. It would therefore be difficult to sustain an argument that the best interests test should be interpreted in light of women’s substantive equality rights. 101 Young v Young (1993) 108 DLR (4th) 193 (SCC) [Young]. [2013] EQUAL PARENTS, EQUAL CHILDREN 281 whether the Charter applied to child custody law and, in particular, to the best interests of the child test. While all of the judges in Young agreed that the legislative test for determining the best interests of the child was subject to Charter scrutiny, they did not conclude on the issue of whether the Charter applied to court orders made under the best interests test. Three members of the Court declined to specifically rule on the application of the Charter, arguing that if the best interests of the child test was interpreted properly orders arising out of the interpretation could not violate the Charter.102 The remaining four judges found that once the best interests test had been found to accord with Charter values, the Charter has no direct application to private disputes between parents, or to court orders regarding custody and access matters.103 The judges differed, however, on the manner and extent to which the Charter should affect the interpretation of the test. Of the various judges who favoured the incorporation of Charter values, Sopinka J stated it most succinctly: “while the ultimate determination in deciding issues of custody and access is ‘the best interests of the child test,’ it must be reconciled with the Canadian Charter of Rights and Freedoms.”104 2013 CanLIIDocs 114 There is thus some significant precedent for interpreting the best interests test in a manner that is consistent with Charter values. Though concern about using Charter values to promote parental rights is likely to continue, incorporating within the best interests test the substantive equality rights of children appears far less controversial. In fact, provincial governments introducing legislation establishing parentage within women-led families in the context of assisted reproduction have stated that the very purpose of the new provisions is to protect the equality rights of children. For example, the explanatory materials produced by the B.C. Ministry of Justice for the new Family Law Act stated that the new legislative regime, which recognizes the parentage of both lesbian couples and SMCs, “treats children equally, regardless of the circumstances surrounding their birth, protects children’s best interests and promotes stable family relationships.”105 Material accompanying Canada’s Uniform Child Status Act, model legislation drafted by the Uniform Law Conference of Canada in 2010 which includes presumptions of parentage based on pre-conception intention, similarly states “[the presumptions] provide stability for the child and equal treatment for children regardless of the method of their conception.”106 Given the stated desire amongst some provincial legislators to redress inequality between children based on mode of conception and/or family type, 102 Justices McLachlin, Cory and Iacobucci. 103 Justices L’Heureux-Dube, La Forest, Gonthier and Sopinka. 104 Young, supra note 101 at para 263. 105 B.C. Ministry of Justice, “The Family Law Act Explained” (2012). Available at: 282 UNB LJ RD UN-B [VOL/TOME 64] it should not be particularly controversial to address these same inequalities via judicial decision-making. Consideration of the equality interests of children in parentage and access disputes between lesbian couples or SMCs and their donors will likely expose, and hopefully rectify, the differential treatment currently occurring in the courts. The tendency of judges to award donors access or even joint custody, whatever the cost to the child’s stability within his or her established family, will become difficult to sustain when viewed through the lens of children’s equality. Courts will be forced to explicitly justify a disruption to the child’s identity and security, indicating why such children should be treated differently from those conceived via donor insemination and raised in heterosexual families. While courts may still come to the conclusion that a donor is entitled to custody or access, it will hopefully become more difficult to minimize a child’s interest in family stability. CONCLUSION 2013 CanLIIDocs 114 Lesbian couples, single women, and the children they raise, are entitled to the same level of family security and autonomy as two-parent heterosexual families. This means lesbian mothers and SMCs should be able to parent independently from a male donor, if that is their pre-conception intention. However, due to the lack of legislative protection in most Canadian provinces, as well as judicial reluctance to acknowledge the completeness of a family without a father, women-led families with known donors exist in a state of legal insecurity. Legislative reform which assigns parentage on the basis of pre-conception intention, and is available to both lesbian couples and single women, will hopefully provide a base level of security for women-led families. In addition, a revisiting of the best interests of the child test in light of Charter values will go some way towards recognizing the equality rights of children born into women-led families. While judicial discretion will always remain a key component of family law, it is hoped that these reforms will go some way towards achieving equality for women-led families and the children raised within them. Commentaire d’arrêt – Girouard c Druet – Peut-on Acheter un Condominium par Courriel? Andréa Ouellet* Dans le jugement majoritaire rendu dans l’affaire Girouard c Druet, les juges de la Cour d’appel ont indiqué que la question qui retiendrait l’attention dans cette affaire serait celle de savoir si l’on peut ou non conclure un contrat valable pour la vente d’un bien réel par le moyen de correspondance électronique (en l’espèce, par courriel)1. Cependant, comme il est souvent le cas en common law, l’affaire est un peu plus complexe et soulève plus d’une question. Les faits de l’affaire 2013 CanLIIDocs 114 Le demandeur, M. Girouard, voulait acheter une unité condominiale à la défenderesse, Mme Druet. Après une conversation initiale au téléphone, les parties ont convenu de communiquer par courriel. Selon le demandeur, les parties en seraient venues à une entente par courriels; selon la défenderesse, les parties n’avaient pas conclu de contrat valide. La Cour doit donc déterminer s’il existe un contrat d’achat-vente valide entre le demandeur, M. Girouard, et Mme Druet. La décision de première instance Le juge Rideout, de la Cour de Banc de la Reine, a décidé que les parties avaient conclu un contrat d’achat vente valide pour la vente de l’unité condominiale appartenant à Mme Druet2. Il a donné raison à M. Girouard, le demandeur. Le juge Rideout a énuméré les éléments jugés « essentiels » pour la formation d’un contrat valide en matière de transactions immobilières et il a déterminé la présence de chacun de ces éléments. Il a par la suite discuté de la question qui semble plus problématique, ou du moins plus novatrice, soit celle de savoir si le moyen utilisé, c’est-à-dire la correspondance électronique, pouvait empêcher de qualifier le contrat * Professeure, Faculté de droit, Université de Moncton. 1 2012 NBCA 40 au para 2, [2012] ANB no 136 (QL). Voir Kendyll Sebaska, « You Can Sell Property Via E-mail, N.B. Court Rules » (27 avril 2012), en ligne: Canadian Lawyer, www.canadianlawyermag.com. 2 2011 NBBR 204 au para 26, [2011] ANB no 260 (QL), 379 NBR (2d) 1. 284 UNB LJ RD UN-B [VOL/TOME 64] d’«écrit» tel que l’exige la Loi relative aux preuves littérales3. Le juge Rideout a aussi examiné la question de la validité de la signature « électronique » pour déterminer si le contrat en l’espèce comportait une signature valide sous le régime de cette Loi. Pour répondre à ces deux questions, le juge de première instance a tenu compte de la Loi sur les opérations électroniques4 et de l’article 38 de la Loi d’interprétation5 de la province, qu’il a appliquée. Les éléments essentiels d’un contrat d’achat-vente d’un bien réel sont bien connus. À première vue, le juge de première instance ne semble avoir fait aucune erreur lorsqu’il a décidé que les éléments étaient présents en l’espèce. On avait argumenté que les parties n’avaient pas convenu de la date précise de la clôture. Règle générale, cependant, la date n’est pas qualifiée d’élément « essentiel » d’un contrat d’achat-vente, à moins que les parties ne le précisent clairement dans leur contrat. Si la date de clôture n’est pas expressément qualifiée de condition essentielle dans le contrat, les tribunaux exigeront que la clôture ait lieu dans un délai raisonnable6. Pour ce qui est de l’absence d’un dépôt, comme l’a fait remarquer le juge Rideout, le versement d’un dépôt n’est qu’une coutume et non un élément 2013 CanLIIDocs 114 essentiel du contrat d’achat-vente. Finalement, le juge de première instance a expressément rejeté l’argument de la défenderesse voulant que l’offre de faire rédiger un document plus formel de la part de M. Girouard constitue une preuve que les parties n’avaient pas encore atteint le consensus requis pour conclure un contrat valide7. En se fondant sur la preuve qui lui avait été présentée, le juge Rideout a conclu que les négociations avaient pris fin et que les parties avaient conclu un contrat valide avec l’acceptation de Mme Druet dans un de ses derniers courriels, dans lequel elle a écrit : « Excusez-moi d’avoir mis du temps à vous répondre. J’y ai pensé et je vais accepter votre offre. Comment voulez-vous procéder? » 8 Selon le juge de première instance, « l’acceptation était claire »9. Il ne tient pas compte d’un prochain courriel envoyé par la défenderesse, daté du même jour, qui indique qu’elle est revenue sur sa décision après une discussion avec un tiers (son compagnon) qui se disait insatisfait du prix. Le juge ne s’arrête pas sur ce 3 LRNB 1973, c S-14, art 1(d). 4 LNB 2001, c E-5.5, aujourd’hui LRNB 2011, c 145. 5 LRNB 1973, c I-13. 6 J Victor Di Castri, Law of Vendor and Purchaser: The Law and Practice Relating to Contracts for Sale of Land in the Common Law Provinces of Canada, 3e éd, Toronto, Carswell, 1988 à la p 1-8. 7 Supra note 2 au para 16. Le juge cite un long passage de l’ouvrage de Di Castri, ibid. 8 Ibid Il s’agit du courriel identifié comme suit : « le 25 octobre 2010 14:57:01 », para 3 de la décision de première instance. 9 Ibid au para 17. [2013] COMMENTAIRE D’ARRET – GIROURARD c DRUET 285 dernier courriel, étant d’avis que les parties se sont déjà engagées par un contrat valide d’achat-vente. Le juge Rideout avait-t-il raison de trancher en faveur de la validité du contrat entre les parties dans cette affaire? La réponse n’est pas évidente; plusieurs questions demeurent, et celles qui nous intéressent et qui touchent davantage les transactions immobilières sont celles de savoir si un ou plusieurs courriels peuvent servir de preuve écrite sous le régime de la Loi relative aux preuves littérales et si la cour doit tenir compte du media dans son analyse et son application des critères relatifs à la validité d’un contrat. Faut-il tenir compte du moyen de communication utilisé par les parties et se montrer plus exigeants lorsque les parties utilisent des moyens de communication nouveaux et avec lesquels elles ont peu d’expérience? La décision de la Cour d’appel Dans un jugement rédigé conjointement, les juges Robertson et Richard ont infirmé 2013 CanLIIDocs 114 la décision de première instance en se fondant sur une analyse quelque peu différente de celle du juge de première instance. Ils ont conclu qu’il n’existait aucun contrat valide entre les parties à l’instance. Les juges qui ont signé ce jugement ont eux- mêmes souligné l’importance de la décision en tant que précédent sur la question de la rédaction de contrats de vente de biens réels par courriel : Du point de vue de l’avocat, la valeur de précédent de la présente instance pourrait être considérable. Les interactions entre les contrats, les courriels, les obligations de mise par écrit et les signatures électroniques ne relèvent plus uniquement de la simple curiosité lorsque la Loi relative aux preuves littérales est placée en regard de la Loi sur les opérations électroniques […]10. La décision est détaillée et les juges se sont penchés sur le fond de l’affaire après que la défenderesse, qui n’avait pas eu gain de cause en première instance, ait obtenu le droit d’interjeter appel de la décision interlocutoire en vertu de la règle 62.21(1) des Règles de procédure du Nouveau-Brunswick. L’aspect procédural pourrait sans doute faire l’objet d’un commentaire distinct. Relativement à la question qui nous intéresse, il suffit de faire remarquer que l’absence de preuve détaillée peut avoir eu des conséquences sur la conclusion de l’affaire11. 10 Supra note 1 au para 2. 11 Ibid au para 22. Les juges sont d’avis que « [l]es faits essentiels ne sont pas contestés ». 286 UNB LJ RD UN-B [VOL/TOME 64] Les circonstances de l’espèce Selon les juges de la Cour d’appel, il y a lieu d’examiner les circonstances spéciales des négociations des parties en faisant une analogie entre la communication par courriel et la communication par téléphone : L’autre façon d’aborder la question consiste à considérer les courriels comme étant l’équivalent de conversations téléphoniques enregistrées qui révèlent la mesure dans laquelle les parties avaient entrepris des discussions officieuses susceptibles de donner lieu à un contrat solennel et obligatoire. À notre avis, ce dernier point de vue correspond davantage aux attentes raisonnables du consommateur d’aujourd’hui […]12. Certains pourraient voir dans cette comparaison une perception quelque peu négative de la part de la Cour d’appel relativement à la correspondance par courriel et autres moyens électroniques. Si la Cour d’appel semble reconnaître la possibilité de conclure des contrats par le moyen de courriels, il ne fait aucun doute qu’elle ne cherche pas à encourager la pratique. On peut mettre en doute le bien-fondé de 2013 CanLIIDocs 114 l’analogie entre la correspondance par moyen électronique et la conversation téléphonique et se demander si cette analogie doit servir dans l’analyse des questions juridiques qui nous intéressent ici. Premièrement, si l’objectif est de démontrer le manque de formalisme et de réflexion de la part des parties, on devrait sans doute prendre comme référence le message texte sous toutes ses formes, qui s’apparente davantage aux conversations téléphoniques informelles et spontanées entre amis ou entre connaissances. Le courriel, pour sa part, est plus souvent utilisé en milieu de travail et, de façon générale, dans des circonstances où l’on veut documenter la communication, c’est-à-dire dans le domaine des affaires. Dans certains milieux, le courriel semble en voie de remplacer la lettre, et il semble être perçu comme un moyen de communication plus « formel » que la conversation par téléphone ou par texte. Le courriel est utilisé de façon générale pour des communications en affaires, y compris celles entre un avocat et son client, et il existe des moyens pour en assurer la confidentialité; son utilisation est devenue courante comme moyen de communication acceptable pour transiger des affaires13. Deuxièmement, il existe d’autres caractéristiques qui peuvent servir à distinguer entre les courriels et les 12 Ibid au para 41. 13 GRI Simulations Inc c Oceaneering International Inc, [2010] NJ no 155 (QL) aux para 22 et 23. Le courriel semble être un choix plutôt intuitif lorsqu’on veut documenter une entente : Salminen c Garvie, [2011] BCJ no 465 (QL). L’affaire porte sur une entente de séparation, qui n’avait pas à être constatée par écrit. Cependant, les courriels ont permis de démontrer le « consensus » auquel étaient arrivées les parties, et ce malgré l’intention exprimée de transcrire leur entente dans un document plus « formel ». Le demandeur aurait donc pu exiger l’exécution de l’entente, mais il avait accepté la répudiation de l’entente de la part de son ex-conjointe. Voir aussi Leoppky c Meston, [2008] AJ no 55 (QL), où l’entente de séparation visait le partage d’un bien réel, et où la Cour aurait accepté la correspondance par courriel comme une preuve « écrite » suffisante pour satisfaire aux exigences de la loi applicable. [2013] COMMENTAIRE D’ARRET – GIROURARD c DRUET 287 conversations téléphoniques, dont, par exemple, l’instantanéité de la conversation téléphonique. Aussi, en discutant de la question relative au critère de l’acceptation dans une situation de contrat, règle générale, on ne retient pas l’analogie entre le courriel et la communication par téléphone : In some cases, an electronic message can be delayed for hours. Acceptances sent electronically are thus more akin to acceptances by regular mail than to acceptance by means of communication, such as telephone, that are “substantially instantaneous” and “two-way”. Consequently, the mailbox rule should apply, given the nature of electronic communication- fast mail in effect, but not instantaneous mail14. Les juges de la Cour d’appel ont souligné le manque de réflexion et les circonstances particulières qui, selon eux, ont marqué les négociations des parties dans l’espèce 15 : La notion voulant qu’une personne puisse passer au crible une série de courriels, identifier les trois éléments essentiels, trouver une signature qui 2013 CanLIIDocs 114 satisfasse à la Loi sur les opérations électroniques et, corrélativement, à la Loi relative aux preuves littérales, et demander ensuite à la Cour de combler les lacunes en ajoutant les clauses contractuelles nécessaires n’est pas conforme aux attentes raisonnables du consommateur type actuel. Il y a encore des situations où les formalités comptent. L’achat d’une maison en est une […]16. La preuve factuelle est peut-être incomplète. La date du premier contact entre les parties semble être le 22 octobre, soit trois jours avant le courriel de Mme Druet à M. Girouard dans lequel elle dit accepter une offre d’achat pour son condominium17. En se fiant aux dates des courriels qui sont reproduits dans la décision, on pourrait argumenter que les négociations dans cette affaires se sont déroulées sur plus d’une journée. En d’autres mots, il semble que les parties ont eu tout le loisir pour bien réfléchir à leur entente18. Bien des conventions d’achat-vente 14 Valerie Watnick, « The Electronic Formation of Contracts and the Common Law “Mailbox Rule” (2004) 56 Baylor L Rev 175. 15 Il est vrai que l’action de signer un contrat formel de plusieurs pages pourrait assurer une plus grande réflexion, et peut-être davantage de précaution, que le fait de répondre à un simple courriel, et ce surtout si la personne correspond régulièrement à l’aide de courriels : Ryan A Ray, « You’ve Got Mail… But Do You Have a Contract?: Does an E-Mail Satisfy the Arkansas Statute of Frauds? » 60 Ark L Rev 707 aux pp 719-720. 16 Supra note 1 au para 4. 17 Ibid aux para 6 et s. 18 Girouard c Druet, supra note 1 au para 6. En effet, le premier contact a eu lieu le 22 octobre, par téléphone, et la correspondance par courriel a débuté avec un premier courriel de la défenderesse daté du 24 octobre 2010. Il s’en est suivi une série de six courriels au cours de deux journées. 288 UNB LJ RD UN-B [VOL/TOME 64] sont signées dans des conditions plus pressées et avec moins d’occasion de réfléchir. Rare est le vendeur immobilier qui cherche à convaincre l’acheteur éventuel de prendre quelques jours de réflexion avant de faire une offre. Qui plus est, on ne peut pas regrouper en une seule catégorie toutes les situations de négociation en ligne. Il faudrait distinguer les circonstances d’un contrat rédigé sous format électronique et du commerce électronique; les différences entre les faits de l’espèce et des situations de commerce électronique nous paraissent nombreuses et importantes. Dans le cas du commerce électronique, par exemple, le media joue un rôle plus important19 : One feature that distinguishes online methods of communication from traditional media is that software now assumes an instrumental role in constituting agreements. If the buyer intends to make a purchase online, he will need to engage with the code. The software interprets the steps in the negotiations purely on the basis of the clicks made by the buyer. If the buyer does not communicate the range of predicted responses, either the process will cease or a new range of options will be presented for 2013 CanLIIDocs 114 consideration. […] Refusal to assent to the terms will lead to the termination of the transaction20. Le consommateur qui entreprend de faire l’achat d’un produit en ligne et qui se trouve obligé à communiquer, ou « négocier », avec un programme informatique qui le guide vers la conclusion du contrat est sans doute dans une situation qui exige une analyse différente que la situation dans laquelle se trouvaient les parties en l’espèce. Pour ce qui est du véritable « commerce électronique », certains sont d’avis que de telles situations exigeraient que l’on reconsidère en profondeur les règles traditionnelles et fondamentales du contrat21. Mais telle n’est pas la situation en l’espèce. C’est pourquoi il ne paraît pas nécessaire d’assurer une plus grande protection à la personne qui opte pour une correspondance électronique plutôt que celle sur un bout de papier. Dans une négociation entre deux parties de force égale, le media a peu d’influence. Alors pourquoi insister sur un formalisme qui a été abandonné depuis des décennies : Legal writing requirements serve many purposes. Nevertheless, since the basic function of writing is to provide a record of information that may be reproduced and read, an electronic record with the same core functionality should be treated as equivalent. Similarly, since paper documents need not have particular attributes of reliability, authenticity, integrity, security, 19 En anglais, « electronic commerce », ou « e-commerce ». Voir Joseph Savirimuthu, « Online Contract Formation: Taking Technological Infrastructure Seriously » (2005) 2 UOLTJ 105 (QL). 20 Ibid au para 57. 21 Ibid au para 59. [2013] COMMENTAIRE D’ARRET – GIROURARD c DRUET 289 confidentiality or durability to have legal effect, there is no reason in principle to impose stricter requirements on electronic writings22. La forme de correspondance choisie par les parties a influencé la Cour dans cette affaire; il semble évident que les juges y voient une circonstance nouvelle, pour ne pas dire exceptionnelle. Cependant, en bout de ligne, les principaux motifs sur lesquels se sont fondés les juges de la Cour d’appel ne portent pas directement sur la forme du contrat, ou le moyen de communication « électronique » utilisé par les parties. Ils se sont plutôt arrêtés sur les éléments essentiels à la formation d’un contrat, et plus particulièrement sur la question de l’intention des parties. Dans le jugement, les juges reprennent les éléments essentiels d’un contrat, mais en examinant de plus près l’intention et les preuves de l’intention qui sont exigées pour pourvoir conclure à l’existence d’un contrat valide. En première instance, le juge Rideout s’était fondé sur un assez long passage cité de l’ouvrage de Victor Di Castri, sommité en matière de transactions immobilières, ainsi que sur les éléments de preuve à sa disposition; selon lui, l’intention ne faisait pas de doute23. 2013 CanLIIDocs 114 Règle générale, le critère applicable pour déterminer l’intention de conclure un contrat exige qu’une personne raisonnable au courant des mêmes faits que les parties conclurait que les parties ont conclu un contrat valide : [T]he test of whether or not there is a contract does not depend upon the parties’ subjective understanding. Rather, it depends upon what an objective reasonable bystander would conclude based on all of the material facts. If it is shown that the parties reached a meeting of the minds and « that the parties intended to contract and the essential terms of that contract can be determined with a reasonable degree of certainty”, the law will find a contract […]24. Cependant, en se fondant sur ce critère, les juges Richard et Robertson en sont venus à la conclusion que l’intention de conclure un contrat était loin d’être 22 Bradley J. Freedman, « Electronic Contracts Under Canadian Law – A Practical Guide » (2000) 28 Man LJ 1 (QL) au para 86; Shawn Pompian, « Is the Statute of Frauds Ready for Electronic Contracting? » 85 Va L Rev 1447 à la p 1452 et s; et Nathan A Huey, « E-Mail and Iowa’s Statute of Frauds: Do E-Sign and UETA Really Matter? » 88 Iowa L Rev 681 à la p 704. Voir aussi la Loi sur les opérations électroniques, LRNB 2011, c145, art 7. 23 Supra note 2 au para 15, où le juge discute des éléments essentiels d’un contrat de façon plus générale et mentionne l’offre et l’acceptation, sans toutefois s’arrêter à ces principes fondamentaux dont la présence lui semblait peut-être plus évidente. 24 Leoppky c Meston, [2008] AJ no 55 (QL), où l’on semblait disposé à reconnaître l’entente négociée par courriel, dans la mesure où l’on aurait pu faire la preuve du contenu. Voir aussi S M Waddams, The Law of Contracts, 5e éd, Aurora, Canada Law Books, 2005 aux pp 28 et s. 290 UNB LJ RD UN-B [VOL/TOME 64] évidente en l’espèce. C’est là, nous le verrons, que la forme (et le manque de formalités) du contrat semble prendre de l’importance : Il ne d’agit pas ici d’une opération commerciale au titre de laquelle la loi imposerait une présomption réfutable d’intention d’établir des rapports contractuels obligatoires. Il s’agit d’une transaction de consommateur concernant la vente d’un bien à usage d’habitation et au titre de laquelle des négociations ont été tenues dans le cyberespace sans l’intervention ou le concours de professionnels […]25. Et plus loin, on trouve des observations qui vont dans le même sens et qui démontrent bien l’importance que prend le format novateur du contrat dans cette affaire : Et pour en revenir à ce qui a été dit plus tôt, on s’étonne de ce que le contrat type en vue de l’achat et de la vente d’un bien à usage d’habitation puisse compter deux pages ou plus d’un texte à simple interligne et de ce que la common law n’exige pourtant que la seule mention des trois 2013 CanLIIDocs 114 éléments essentiels sur une serviette de table, les tribunaux demeurant quant à eux persuadés de pouvoir combler les lacunes apparentes. Si l’apparence de vraisemblance dans la façon d’aborder la décision judiciaire n’est pas vide de sens, le droit devrait reconnaître une présomption d’absence d’intention de créer un contrat obligatoire dans des circonstances comme celles qui nous occupent en l’espèce26. Les juges de la Cour d’appel se sont aussi arrêtés à la mention qu’a faite l’acheteur à la rédaction future d’un contrat formel : Il faut examiner toutes les circonstances de l’espèce. Cela comprend le courriel de M. Girouard à Mme Druet dans lequel il dit qu’il était disposé à faire rédiger un projet de convention d’achat-vente afin qu’elle l’examine. Pour formuler les choses à l’avantage de Mme Druet, le courriel pertinent pourrait être assimilé à une clause qui serait ainsi rédigée : « [TRADUCTION] « sous réserve de la rédaction d’un contrat solennel pour examen par le vendeur ». Ce genre de clause nous amène à nous demander si la préparation du contrat solennel dénote une intention de différer le caractère exécutoire d’une convention jusqu’à ce que le document officiel soit signé […]. 25 Supra note 1 au para 4. 26 Ibid au para 41. [2013] COMMENTAIRE D’ARRET – GIROURARD c DRUET 291 [L]’insertion de l’expression « sous réserve de contrat » suffit pour soulever la question de savoir s’il y avait une intention immédiate d’établir des rapports contractuels obligatoires […]27. Or, s’il s’agit d’un fait dont il faut tenir compte, on pourrait argumenter qu’il ne devrait pas être déterminant. Le seul fait de s’entendre pour la rédaction éventuelle d’un document formel n’est pas une preuve décisive de l’absence d’un contrat déjà conclu: Where there is a memorandum evidencing a final and complete agreement, the mere fact that the parties have also expressly stipulated for a more formal document being prepared and executed later does not, by itself and in the absence of any uncertainty as to the essential terms of the contract, manifest an intention to continue negotiations28. Il n’est pas facile de déterminer l’intention des parties. Qui plus est, on doit quand même tenir compte de certains faits importants. L’offre de faire rédiger un contrat formel a été faite après la soi-disant « acceptation » déjà communiquée de la part de 2013 CanLIIDocs 114 Mme Druet, la défenderesse, au demandeur, M. Girouard.29 Selon les juges de la Cour d’appel, ce fait n’est pas déterminant, puisque l’on doit tenir compte de toute la correspondance entre les parties : Cette décision est importante pour les fins de la présente instance parce que l’offre de M. Girouard de faire préparer un projet de contrat afin que Mme Druet puisse l’examiner a été faite après que celle-ci lui a fait part de son consentement au prix d’achat. Si nous appliquons l’arrêt Langley Lo- Cost Builders Ltd [2000] BCCA 365], la recherche de l’intention ne doit pas se limiter aux quatre courriels à l’issue desquels Mme Druet se dit disposée à accepter la contre-offre de M. Girouard. Nous devons examiner les sept courriels afin de déterminer, suivant une norme objective, si la mention de la rédaction d’un document en bonne et due forme témoignait de l’intention des parties de ne pas être déjà obligées par contrat l’une envers l’autre30. 27 Ibid aux para 43, 44 et 51. 28 Di Castri, supra note 6 à la p 4-29, qui cite notamment les propos du juge Judson dans l’affaire Calvan Consol Oil & Gas Co c Manning (1959), 17 DLR (2d) 1 (CSC). Supra note 2 au para 16 (le juge Rideout cite ce passage de Di Castri dans son jugement). Voir aussi Mason Homes Ltd c Oshawa Group Ltd., [2003] OJ no 3826 (QL), conf par [2005] OJ no 4344 (QL), et Salminen c Garvie, supra note 13 au para 32. 29 Supra note 1 au para 11 : « Dans la demi-heure qui a suivi l’envoi des courriels susmentionnés, M. Girouard a répondu à Mme Druet. Il a laissé entendre pour la première fois qu’un projet de convention d’achat-vente serait préparé et a proposé une date de clôture possible pour l’opération […] » 30 Ibid. au para 49. 292 UNB LJ RD UN-B [VOL/TOME 64] On remarquera que ce n’est pas Mme Druet qui insistait pour faire préparer un contrat « en bonne et due forme »; l’offre de faire rédiger un contrat formel a été faite par le demandeur, M. Girouard, qui, à cet instant, semblait croire fermement qu’ils avaient conclu un contrat valide31. Selon la décision de la Cour d’appel, il s’agit d’une preuve que l’intention d’être lié par contrat n’était pas mutuelle. Or, si M. Girouard n’avait pas offert de faire rédiger un contrat formel, le contrat par courriel aurait-il été reconnu comme un contrat valide pour autant? On peut aussi se demander quelle aurait été la réaction de Mme Druet si M. Girouard l’avait informée, après son avant-dernier courriel (du 25 octobre, envoyé à 18h37), qu’il ne voulait pas, après tout, acheter le condominium. Aurait-elle cru qu’elle était en mesure de le poursuivre? Certains argumenteraient que oui. Comme l’a fait remarquer la Cour, c’était la première fois qu’un contrat relatif à la vente de biens réels « rédigé » sous forme électronique se retrouvait devant la Cour d’appel de cette province. Comme elle l’a aussi fait remarquer, ce ne sera surement pas la dernière, puisque des transactions de tous genres se font à l’aide 2013 CanLIIDocs 114 d’un moyen électronique ou d’un autre32. Ce n’était donc qu’une question de temps avant que les tribunaux doivent en trancher la validité. Le contrat en ligne et les formalités essentielles Peut-on conclure un contrat d’achat-vente d’un bien réel par courriel? Si oui, quels sont les critères applicables dans de telles circonstances? La décision est intéressante en partie parce qu’elle énumère, et discute, les éléments dont il faut alors tenir compte. Alors que l’on peut négocier et conclure un contrat de vente de biens réels de manière informelle, et verbalement, il est bien établi depuis longue date qu’il faut en avoir conservé une preuve écrite si l’on veut éventuellement poursuivre en se 31 La mention d’un contrat formel futur devient une condition suspensive du contrat dans la mesure où la disposition est insérée dans le contrat lui-même : « the writing must constitute a signed admission that there was a contract and what that contract was. These admissions are not present in a writing which contains the subject to contract”, Di Castri, supra note 6 aux pp 4-1 et 5-51, au para 199. 32 Mark Lewis, « Digital Signatures: Meeting the Traditional Requirements Electronically - A Canadian Perspective » (2002) 2 Asper Rev. of Int’l Bus and Trade Law 63. L’auteur commence son commentaire en faisant remarquer qu’à la date de publication de son article (il y a déjà une décennie), il se faisait approximativement un billion (ou un million de millions) de dollars de vente par commerce électronique, toutes catégories confondues. On ne peut plus parler de tendance, mais bien de coutume établie. Girouard c Druet, supra note 1 au para 26 (on renvoie à cet article dans la discussion sur la question de la signature sous forme électronique). [2013] COMMENTAIRE D’ARRET – GIROURARD c DRUET 293 fondant sur l’entente à laquelle on est arrivé. La Loi relative aux preuves littérales du Nouveau-Brunswick l’exige clairement : 1 Il ne peut être intenté d’action […] d) sur la base d’un contrat, d’une vente de biens-fonds ou de tout droit y afférent, […] que si la convention qui donne lieu à l’action est constatée par un écrit ou que s’il en existe un mémoire ou une note et que si la convention, le mémoire ou la note porte la signature de la partie contre laquelle l’action sera intentée ou de toute autre personne autorisée par elle33. La loi ne précise pas le format de l’écrit; il faut simplement que cet écrit puisse servir de preuve de l’entente. En l’espèce, le média utilisé pour le contrat est nouveau, et il reste à voir quelle importance accorder à ce facteur, et pourquoi. Donc, l’aspect du jugement qui nous intéresse davantage porte sur les propos des juges de la Cour 2013 CanLIIDocs 114 d’appel lorsqu’ils discutent de la nature du courriel, comme par exemple dans le paragraphe suivant : Le tiers raisonnable sait également que l’échange de courriels constitue une esquisse de cadre contractuel conçue sans le secours de conseils professionnels. En résumé, les courriels ne correspondent pas au genre de conventions détaillées qui ont amené certains tribunaux à conclure que la passation d’un document solennel ne remplirait aucun[e] fin valable si ce n’est donner à une des parties une faible excuse, sur le plan juridique, pour renier une entente34. Exige-t-on un contrat d’achat-vente formel pour la conclusion d’un contrat valide relatif à un bien réel? Non, on ne le fait pas dans les circonstances ordinaires, où le contrat n’implique pas l’utilisation de moyens électroniques de communication. Il n’existe pas de forme reconnue pour qu’un contrat d’achat-vente soit valide : [a]s even the oddest document may, it would seem, qualify as an agreement of sale and purchase, and as the character of a contract is determined by its provisions and not its label […]35. 33 Loi relative aux preuves littérales, supra note 3 à l’art 1. 34 Supra note 1 au para 50. 35 Guitard c Poirier (1979), 25 NBR (2d) 697 (QL), CarswellNB 122, et Di Castri, supra note 6 à la p 1-3 : « The court seeks not the intention of the parties, but only evidence under the hand of one of the parties to the contract that he entered into it. » Voir aussi ibid. à la p 5-14 au para 185A; Mason Homes Ltd c Oshawa Group Ltd., [2003] OJ no 3826 (QL), conf par [2005] OJ no 4344 (QL), qui démontre clairement l’importance des faits et de la crédibilité des parties dans une telle cause. 294 UNB LJ RD UN-B [VOL/TOME 64] Et encore : A memorandum sufficient to satisfy the statute may be in any form, informality is immaterial if the essential terms appear expressly or by necessary inference36. L’écrit n’étant que la preuve écrite de l’entente des parties, aucune forme spéciale n’est exigée. Il est bien reconnu que la forme de l’écrit comme telle a peu d’importance. L’essentiel est de déterminer l’intention des parties : [w]here no particular mode of acceptance is expressly required, the offer may be accepted in the manner to be implied from the nature of the offer and the surrounding circumstances. For example, in the case of an offer in writing made through a real estate broker or salesman, the normal and usual mode of acceptance is in writing. When the parties have previously communicated by telephone and correspondence, a telephone message may be a proper method of acceptance. […] 2013 CanLIIDocs 114 It has been held that a purchaser’s cheque in the amount of $600 and made payable to the vendor with the following words written on the back thereof was sufficiently complete to evidence a contract enforceable under the statute: “Down payment on Parcel of Land at end of Minn. St. 165 x 245 Except Part S. East of Small Water-Course- Purchase Pr. $6000”37. En l’espèce, la Cour a consacré beaucoup d’espace à la forme du contrat. Or, y a-t-il lieu d’examiner de plus près le contrat, et la forme de l’écrit, dans ces circonstances ou dans des circonstances semblables, où deux parties choisissent d’utiliser le courriel comme moyen de communication et décident d’y inscrire l’essentiel de leur entente 38 ? Certains répondront par l’affirmative; d’autres argumenteront qu’il faut présumer qu’il appartient aux parties de choisir la forme qui leur convient et, une fois le contrat conclu, on devrait accepter que la forme du contrat en soi ne peut pas servir d’argument pour en contester la validité. Pour ceux- 36 Di Castri, supra note 6 à la p 4-27; voir la jurisprudence citée, dont Fysh c Armstrong (1913), 3 WWR 747 (une affaire qui portait sur une correspondance par télégramme), et ibid à la p 4-28, où l’on cite une décision qui a reconnu comme preuve suffisante du contrat une correspondance qui avait pour objet de le répudier. Aussi, ibid à la p 5-4 au para 176, où l’on reconnaît la possibilité de conclure un contrat par correspondance. 37 Ibid à la p 4-2. 38 N’importe quel type d’ « écrit » peut servir de preuve du contrat, dans la mesure où les éléments essentiels s’y retrouvent; Bryan D. Grayton « Cananadian Legal Issues Arising From Electronic Data Interchange » (1993) 27 UBCL Rev 257 (QL). L’année de publication de cet article et d’autres semblables démontre bien que les questions soulevées dans cet arrêt ont quand même fait l’objet de plusieurs études, et que l’utilisation des moyens de communication électronique date déjà de plusieurs années. À titre d’exemple : Pompian, supra note 22 à la p 1455. [2013] COMMENTAIRE D’ARRET – GIROURARD c DRUET 295 ci, la question ne se pose plus : That the requirements for writing can be satisfied by electronic correspondence is clear, as well, from a number of decisions39. Les législateurs semblent être du même avis. Ayant prévu, dès le début du siècle, les incertitudes qui pourraient survenir devant les nouveaux moyens de communication électronique, et espérant sans doute éviter que les moyens de communication puissent servir à des arguments permettant de réfuter un contrat sur la base de la définition à donner au terme « écrit », la province du Nouveau- Brunswick, comme d’autres, a adopté la Loi sur les opérations électroniques40. Cette loi semble vouloir annuler toute différence entre la preuve écrite sous format électronique et la preuve écrite sur papier. Dans les définitions, la Loi sur les opérations électroniques de 2001 établit la portée générale de ses dispositions : « exigence légale » désigne une exigence imposée par une Loi du Nouveau-Brunswick, un règlement ou autre législation subordonnée établi en vertu d’une Loi du Nouveau-Brunswick, ou une exigence imposée par la common law; 41 2013 CanLIIDocs 114 Pour que la Loi ne s’applique pas à une telle « exigence », il faudrait le prévoir dans les exceptions qui sont énoncées par règlement : 1(2) Les dispositions de la présente loi qui portent sur les exigences légales s’appliquent même si le droit a) crée une obligation, ou b) prévoit des conséquences pour avoir fait ou ne pas avoir fait quelque chose. Et encore, pour que ce soit aussi clair que possible : Effet juridique 6 Sous réserve de l’article 3, une information ne peut être privée d’un effet juridique ou de sa force exécutoire pour l’unique raison qu’elle est sous forme électronique. 39 Leoppky c Meston [2008] AJ no 55 (QL) au para 38 (on cite plusieurs exemples où l’exigence de la preuve écrite d’un contrat a été satisfaite par une correspondance « électronique »). 40 Loi sur les opérations électroniques, supra note 4. La Loi est entrée en vigueur au Nouveau-Brunswick en 2002; on pourrait argumenter que la question avait donc déjà été étudiée il y a plus d’une décennie. La version appliquée dans l’arrêt est bien celle de 2001, malgré le fait que la Loi faisait partie de la révision de 2011. Le juge Rideout, de la Cour du Banc de la Reine, a tenu compte de ceci et a confirmé que la version de 2011 de la Loi n’aurait eu aucune conséquence sur l’affaire. La Cour d’appel a également confirmé ceci; supra note 1 au para 2. 41 Loi sur les opérations électroniques, LNB 2001, c E-5.5, définitions. 296 UNB LJ RD UN-B [VOL/TOME 64] À priori, la forme électronique du contrat ne devrait pas être problématique. La Loi sur les opérations électroniques ne semble pas avoir comme but de modifier l’état du droit, mais semble plutôt vouloir annuler les conséquences qui pourraient découler du fait que les parties choisissent de communiquer leur intention par écrit, mais en utilisant un moyen de communication électronique. Le bien vendu – l’objet du contrat On s’est questionné sur la désignation du bien qui faisait l’objet du contrat allégué; les juges ont fait remarquer que les courriels n’incluaient aucune description de ce bien : En effet, aucun des courriels ne décrit l’unité condominiale qui fait l’objet de la vente (l’unité no 203). Il est simplement question d’un condo […]42. Cependant, tel qu’il a été reconnu dans le jugement, il est bien établi que le 2013 CanLIIDocs 114 contrat d’achat-vente n’a pas à inclure une description détaillée du bien. L’important est de pouvoir en arriver à identifier l’objet du contrat entre les parties : L'intimé prétend en premier lieu que la description du terrain dans la convention rédigée par ses soins n'est pas assez précise pour répondre aux conditions de la Statute of Frauds. Sur la question de la précision d'une description de terrain, c'est à la suite d'une longue évolution que les tribunaux en sont venus à juger qu'une note est suffisante aux fins de la Statute of Frauds. Les juges ont invariablement cherché à déterminer l'intention des parties et à y donner effet, malgré les lacunes du langage utilisé pour l'exprimer43. Il n’est pas interdit d’avoir recours à de la preuve extrinsèque s’il y a lieu de le faire pour bien identifier le bien à vendre : Nevertheless, a sufficient certainty of description to enable the property to be identified may be found in the surrounding facts44. 42 Supra note 1 au para 36. 43 Dynamic Transport Ltd c OK Detailing Ltd, [1978] SCJ no 52 (QL); Di Castri, supra note 6 à la p 4-40, au para 161. 44 Ibid à la p 4.40.1, au para 161. [2013] COMMENTAIRE D’ARRET – GIROURARD c DRUET 297 En l’espèce, l’objet du contrat est clairement identifié. Pour les parties, comme pour le lecteur, il ne semble y avoir aucune ambiguïté sur le bien à vendre45. Un autre aspect sur lequel la Cour s’est arrêtée est le fait que l’acheteur n’avait pas visité le bien qu’il prévoyait acheter. Le fait a été mentionné à quelques reprises : [n]i [l’acheteur] ni son épouse n’avaient jamais posé le pied dans le condominium et n’avaient donc aucune idée de l’état, bon ou mauvais, dans lequel il se trouvait. […] L’acheteur type n’achète pas un bien existant sans l’avoir vu et le vendeur type ne s’attend pas à ce qu’il le fasse […]46. On revient sur la question vers la fin du jugement en ces termes : Ce qui est plus important encore, ni M. Girouard ni Mme Girouard n’avaient vu l’unité condominiale de Mme Druet. M. Girouard était encore en train d’essayer de prendre des arrangements pour que son épouse visite 2013 CanLIIDocs 114 le condo au moment où Mme Druet s’est retirée de l’opération. Aux yeux de tiers impartial, l’acheteur type n’achète pas un bien existant sans d’abord le voir […]47. Est-il possible d’acheter un bien réel sans l’avoir vu? Certainement, rien n’exige une inspection de la part de l’acheteur, bien que ce soit conseillé, pour protéger les intérêts de l’acheteur. Qui plus est, dans l’affaire qui nous intéresse, vu le peu de preuve factuelle, l’étendue des connaissances qu’avait acquises l’acheteur sur le condo à acheter n’est pas connue. Il avait parlé au locataire, et à la propriétaire lors de conversations téléphoniques. Il avait visité, avec son épouse, une unité située dans le même édifice que l’unité qu’il prévoyait acheter48. Qui plus est, le condo avait été offert en location sur un site Web. Des sites comme le site Kijiji permettent l’affichage de photos, et on y trouve des biens réels à louer et à vendre. Certains sites Web offrent des descriptions très détaillées et de nombreuses photos de l’intérieur des maisons et des autres bâtiments. On peut même inclure une vidéo des pièces qui offrent une visite « virtuelle » des lieux. Il semble que la pratique d’offrir en location des biens réels par ce moyen n’est pas contestée49. En outre, si un acheteur décide 45 Revoir Guitard c Poirier, supra note 35. 46 Supra note 1 au para 5. 47 Ibid au para 51. 48 Supra note 2 au para 4. 49 Richarson c RxHousins Inc, [2010] NSJ no 631 (QL). En l’espèce, il semble que le demandeur ait découvert l’unité condominiale en question sur le site Kijiji, où Mme Druet avait choisi de faire sa publicité dans le but de louer la propriété. 298 UNB LJ RD UN-B [VOL/TOME 64] d’acheter un bien réel sans avoir pris les précautions recommandées, il pourrait être argumenté qu’il lui appartient alors d’en assumer le risque. Cependant, il ne s’agit pas d’un critère relatif à la validité du contrat. Le prix de vente On s’est posé la question de savoir si le prix était fixé de manière suffisamment précise, puisque l’acheteur acceptait d’assumer une hypothèque déjà existante sur le bien : Le tiers raisonnable sait que M. Girouard devait encore prendre connaissance des obligations qui lui incomberaient lorsqu’il [TRADUCTION] « assumer[ait] » l’hypothèque existante. Plus précisément, il ne connaissait pas le montant de l’hypothèque qu’il devrait assumer ni la lourdeur des clauses de l’hypothèque50. Il est vrai qu’il faut un élément de certitude sur le prix du bien et il est aussi 2013 CanLIIDocs 114 bien reconnu qu’il suffit que les moyens de quantifier le coût final aient été convenus par les parties. Donc, dans des cas comme celui en l’espèce, où l’on fait référence à la prise en charge d’une hypothèque existante, on peut présumer que les parties savent qu’un prêt hypothécaire est assujetti à des intérêts, et l’absence de certains détails tels que l’échéancier du prêt hypothécaire ou les modalités des paiements n’est pas nécessairement fatale à la validité du contrat 51 . Si la question est importante, elle n’est pas facile à trancher en l’espèce, peut-être en raison du manque de preuve factuelle. Il n’est pas clair si les parties avaient discuté de l’hypothèque lors d’une conversation téléphonique52. En outre, tout dépend de l’intention des parties. La certitude relative au prix du contrat dépend de l’interprétation que l’on fait de leur intention, et la preuve factuelle peut être importante dans la détermination d’une telle question. 50 Supra note 1 au para 51. 51Di Castri, supra note 6 à la p 4-44, au para 163. Voir aussi Peterson c Bitzer, [1922] 1 WWR 141 et Thomson Groceries c Scott, [1943] OR 290. Aussi, Di Castri, ibid aux pp 5-51 à 5-54, au para 199 (l’auteur donne de nombreux exemples qui témoignent de l’importance d’examiner les faits de chaque cas). 52 Burritt c Stone, [1917] 3 WWR 978. et Skoko c Chychrun Const Ltd (1982), 23 RPR 262. En cas d’ambiguïté, on peut tenir compte des circonstances et de preuves extrinsèques pour mieux interpréter l’intention des parties. [2013] COMMENTAIRE D’ARRET – GIROURARD c DRUET 299 La signature On a remarqué, à la Cour d’appel, que le demandeur n’a pas inclus son nom à la fin de chaque courriel comme l’a fait la défenderesse, et le fait a été discuté dans la décision : M. Girouard n’a jamais mentionné ni son nom de famille ni son prénom à la fin de ses courriels. Par conséquent, s’il avait décidé de se retirer de l’opération, il aurait vraisemblablement pu le faire sans engager sa responsabilité envers Mme Druet en invoquant l’al. 1d) de la Loi relative aux preuves littérales […]53. L’article 1 de la Loi relative aux preuves littérales exige « que la convention, le mémoire ou la note porte la signature de la partie contre laquelle l’action sera intentée […]»54. La signature ne semble pas être exigée en tant que preuve de l’intention des parties, et il n’est pas essentiel que l’écrit porte la signature des deux parties : 2013 CanLIIDocs 114 The court seeks not the intention of the parties, but only evidence under the hand of one of the parties to the contract that he entered into it55. Il semble aussi clair que la signature exigée est celle de la partie qui conteste l’existence d’un contrat valide, en l’espèce, la défenderesse : Where an agreement is so signed, the other party need not also sign it in order to enforce it, providing he is ready, willing and able to complete his part of the agreement56. Alors que la Cour du Banc de la Reine avait expressément reconnu que cet élément était conforme en l’espèce, la Cour d’appel ne tranche pas la question, puisque l’argument n’a pas été soulevé par les parties57. Cependant, elle en discute et, malgré une certaine réticence, reconnaît la possibilité d’accepter comme preuve suffisante la présence d’un prénom, ou d’un nom, à la fin d’un courriel. Mais, encore une fois, la forme prend beaucoup d’importance : 53 Supra note 1 au para 52. 54 Supra note 3. 55 Di Castri, supra note 6 à la p 4-1, et Waddams, supra note 24 à la p 165. 56 Ibid aux pp 4-1 et 4-5. Voir aussi Mills c Marriott (1912), 3 WWR 841, autorisation d’appeler à la CSC refusée, [1912] SCJ no 52 (QL), et Hudon c Cyr, [1973] NBJ no 94 (QL), 6 NBR (2d) 711. 57 La Cour d’appel a déterminé que la « question […] n’est pas en litige », supra note 1 au para 24. 300 UNB LJ RD UN-B [VOL/TOME 64] Dans le cas de la convention type sous forme électronique, le droit considérerait-il comme une signature valide le seul prénom ou nom de famille de la personne concernée? Par contraste, le droit en viendrait-il à la même conclusion s’il s’agissait, dans les faits, d’une série d’échanges de courriels? Les questions posées nous amènent à nous demander si la forme de l’écrit est aussi importante, ou plus importante, que la forme de la signature. Ensuite, nous ne pouvons pas ne pas nous demander s’il y a chevauchement entre l’intention d’authentifier le document et son contenu et l’intention d’établir des rapports juridiques58. Règle générale, les tribunaux se sont montrés très peu exigeants sur la forme de la signature dans le passé, et l’ajout d’un prénom à la fin d’une lettre, par exemple, semble suffire : The signing of the memorandum by the party to be charged or his lawful agent need not be in any particular form, provided the signatory authenticates the whole of the writing and expressly or by necessary intendment recognizes it as a true exposition of his contract59. 2013 CanLIIDocs 114 Cependant, alors que dans les circonstances, la question ne se posait pas directement, les juges Robertson et Richard ont raison de soulever certains problèmes relatifs à la signature qui pourraient se poser dans le cas d’un contrat sous forme électronique.60 Il est vrai que dans certaines situations, la forme électronique du contrat pourrait permettre de mettre en doute la provenance, ou l’authenticité de la « signature » d’une des parties; on peut penser à l’interception d’un courriel ou d’un contrat sous format électronique par un tiers malveillant61 . Il existe des mécanismes pour prévenir ce type d’interférence et pour s’assurer de la provenance de la « signature » électronique d’une partie, dont notamment le chiffrement, qui devrait, de toute manière, être utilisé dans le contexte de communications confidentielles, comme celles entre l’avocat et son client : The answer to this dilemma lies in a « security procedure », defined as a methodology or procedure used for the purpose of (1) verifying that an electronic record is that of a specific person, or (2) detecting error or 58 Ibid au para 30. 59 Di Castri, supra note 6 à la p 4-49, au para 166. 60 Lewis, supra note 32 au para 2. L’auteur fait remarquer que le simple manque d’uniformité dans le pays suffit pour créer de l’incertitude. Aussi, Leoppky c Meston, supra note 39 (une des parties avait utilisé l’adresse courriel d’une tierce partie). 61 Certains analystes accepteraient l’adresse courriel qui paraît dans l’en-tête de la communication comme « signature » car selon leur perception, il s’agit là d’une excellente preuve de la provenance, et de l’authenticité, de la communication : Nathan A Huey, « E-Mail and Iowa’s Stature of Frauds : Do E-Sign and UETA Really Matter? » 88 Iowa L Rev 681, aux pp 704-705. [2013] COMMENTAIRE D’ARRET – GIROURARD c DRUET 301 alteration in the communication, content, or storage of an electronic record since a specific point in time. While there are a number of security procedures available, the most developed and widely used procedure at present is that of the digital signature62. Ce type de précaution est probablement utilisé davantage entre des parties plus averties, qui ont une certaine expérience des moyens techniques modernes. Il ne serait pas impossible d’imposer ce type de précaution aux agents immobiliers, à titre d’exemple. Cependant, pour le vendeur et l’acheteur ordinaire, comme en l’espèce, ce n’est pas ce qu’exige la Loi sur les opérations électroniques63. Et il est peu probable que le consommateur ordinaire, auquel semblent penser les juges, apprenne à maîtriser ces moyens préventifs dans un proche avenir. Il nous faut donc déterminer le minimum qui puisse permettre à la Cour de reconnaître la validité de contrats d’achat-vente rédigés et signés sous forme de courriels, ou autre format électronique. Reste aussi à voir l’interprétation à donner à la disposition de la Loi sur le commerce électronique qui semble avoir comme but d’annuler toute conséquence majeure découlant du seul fait qu’un contrat prend la forme d’un document 2013 CanLIIDocs 114 électronique : Une information électronique satisfait à l’exigence légale portant qu’une information doit être consignée dans ou sur un même formulaire ou un formulaire qui est essentiellement le même64. Devrait-on exiger davantage dans les circonstances comme celles de l’instance devant la Cour? Selon certains auteurs, cela ne serait pas nécessairement souhaitable: Since the basic function of a signature is to link the signatory with a particular document, an electronic signature with the same functionality and created with the requisite intention should be treated as equivalent. Similarly, since a signature on a paper document need not have particular attributes of reliability, authenticity, integrity, or security to have legal 62 Lewis, supra note 32 au para 22. Pour les communications avocat - client, Association du Barreau canadien, Renseignements complémentaires au Code de déontologie professionnelle – « Lignes directrices pour un exercice du droit conforme à la déontologie dans le cadre des nouvelles technologies de l’information », Ottawa, ABC, 2008. 63 Loi sur les opérations électroniques, supra note 4, art 8. Ce qui doit constituer la signature d’une personne semble dépendre de l’intention qu’a la personne de considérer son nom, sous forme électronique, comme sa signature, et ce indépendamment de la méthode utilisée : ibid définition de « signature électronique » et art 11. 64 Ibid art 8. Voir aussi Grayton, supra note 38. 302 UNB LJ RD UN-B [VOL/TOME 64] effect, there is no reason in principle to impose stricter requirements on electronic signatures65. Selon les tribunaux qui ont eu à se pencher sur la question, la tendance semble être de reconnaître la signature d’une partie, indépendamment de la forme du contrat ou du média que les parties ont choisi, dans la mesure où elles ont fait preuve d’un minimum d’effort66. L’alternative serait l’équivalent d’exiger la présence d’une convention d’achat vente formelle, un peu comme on le fait pour l’acte de transfert, ce qui constituerait un recul qui parait peu probable. L’intention – une nouvelle présomption? Comme on l’a vu, l’intention, ou l’absence d’intention d’être lié par contrat, est le motif sur lequel se fondent expressément les juges de la Cour d’appel. Dans leur 2013 CanLIIDocs 114 analyse de la question de savoir si les parties avaient l’intention d’être liées par contrat, les juges discutent d’une présomption qui jouerait à l’encontre de la reconnaissance d’un contrat valide dans les circonstances. Selon eux, lorsque les parties négocient par courriels, ou utilisent des moyens techniques de communication rapides, elles doivent avoir le droit à une certaine protection de la part des tribunaux. Ils font l’analogie avec des circonstances où les parties se trouvent dans des positions de négociation inégales, c’est-à-dire où l’une des parties semble plus vulnérable que l’autre. On discute d’une présomption contre la conclusion d’un contrat valide en ces termes : Cela nous amène néanmoins à nous demander si le droit serait mieux servi si l'on reconnaissait l'existence d'une présomption réfutable d'absence d'intention de cette nature dans des circonstances où il y a échange rapide de courriels entre deux consommateurs agissant seuls. Nous estimons justifié de répondre à cette question par l'affirmative. Une présomption de cette nature s'accorde avec ce que nous estimons être l'opinion populaire qui veut qu'en général, un échange de courriels soit assimilable à des négociations préliminaires qui peuvent mener à la signature d'un contrat solennel et obligatoire […]67. 65 Freedman, supra note 22 au para 91. Voir aussi Grayton, supra note 38 aux para 45 et 46. La revue de cas dans ces textes permet de bien comprendre la distinction entre les faits de l’espèce et des situations plus complexes de commerce électronique. 66 Re Newbridge Networks Corp, [2000] OJ no 1346, 48 OR (3d) 47. 67 Girouard c Druet, supra note 1 au para 41. [2013] COMMENTAIRE D’ARRET – GIROURARD c DRUET 303 Il pourrait être argumenté que la jurisprudence citée à l’appui de cette proposition découle de circonstances qui pourraient être distinguées de celles en l’espèce68. En l’espèce, les circonstances « exceptionnelles » se limitent au fait que les parties ont choisi de correspondre par courriel. Les juges de la Cour d’appel rejettent expressément la comparaison entre la lettre et le courriel et décident que le courriel s’apparente davantage à la conversation téléphonique, ce qui, selon eux, justifierait une plus grande précaution. Il est évident que la Cour n’est pas à l’aise avec la formation d’un contrat d’achat-vente de biens réels sans formalités, et c’est l’argument qui, selon les juges de la Cour d’appel, justifierait l’application d’une présomption contre la validité du contrat dans de telles circonstances : À notre avis, ce dernier point de vue correspond davantage aux attentes raisonnables du consommateur d'aujourd'hui. Et pour en revenir à ce qui a été dit plus tôt, on s'étonne de ce que le contrat type en vue de l'achat et de la vente d'un bien à usage d'habitation puisse compter deux pages ou plus d'un texte à simple interligne et de ce que la common law n'exige pourtant que la seule mention des trois éléments essentiels sur une serviette de table, les tribunaux demeurant quant à eux persuadés de pouvoir combler les lacunes apparentes. Si l'apparence de vraisemblance dans la façon 2013 CanLIIDocs 114 d'aborder la décision judiciaire n'est pas vide de sens, le droit devrait reconnaître une présomption d'absence d'intention de créer un contrat obligatoire dans des circonstances comme celles qui nous occupent en l'espèce69. Pourtant, s’il est vrai que la rédaction d’un contrat d’achat-vente peut s’avérer une tâche relativement compliquée dans certaines circonstances, spécialement pour les personnes qui n’ont aucune formation juridique, il faut reconnaître que le contrat informel, ou rédigé sans l’avantage d’un formulaire spécial, a été reconnu il y a longtemps. Et dans les circonstances où le contrat d’achat-vente est constaté par un écrit informel, tel qu’une série de lettres, par exemple, il n’existe aucune présomption. Règle générale, on se limite à examiner la preuve et les faits pour déterminer, de manière aussi objective que possible, si les parties avaient l’intention de conclure un contrat valide70. 68 On cite l’arrêt Massey Ferguson Ltd c Canada, [1976] ACF no 196, une décision qui devait déterminer la nature véritable d’une entente qualifiée de « prêt » qui avait été conclue entre deux corporations, et ce dans le but d’en décider les conséquences en vertu de la Loi de l’impôt sur le revenu. Voir l’explication dans Wong c Canada, [2011] ACI no 44 (QL), au para 24. Il paraît clair qu’on exige davantage de formalités lorsqu’il s’agit de compagnies, et plus spécialement quand on a à trancher des questions en matière de fiscalité. 69 Girouard c Druet, supra note 1 au para 41. Voir des propos semblables relativement au manque de formalisme, au para 37, ibid. 70 Waddams, supra note 24 à la p 164. 304 UNB LJ RD UN-B [VOL/TOME 64] Il peut y avoir lieu de prendre des précautions spéciales dans certaines circonstances, par exemple dans une situation de commerce électronique où le consommateur doit réagir aux consignes données par un programme informatique dont les différentes étapes dirigent la transaction de manière peu ou non négociable71. Dans de telles circonstances, et selon les critères qui restent à élaborer, il faudra déterminer si le consommateur visé mérite ou non une protection spéciale de la part des tribunaux : [t]he question of binding commitment will boil down to a policy question of whether the law should now use as a benchmark the innocent-but- unsavvy internet surfer or the informed-and-calculating internet surfer intending to benefit at another’s expense72. Il va sans dire que si l’on considère que la personne raisonnable ordinaire est « naïve » devant les programmes informatiques qui jouent un rôle actif lors de certaines transactions, il faut reconnaître qu’elle a alors besoin d’une certaine protection vu l’inégalité des parties. En l’espèce, les juges tiennent compte du moyen de communication utilisé par les parties : 2013 CanLIIDocs 114 Il s’agit d’une transaction de consommateur concernant la vente d’un bien à usage d’habitation et au titre de laquelle des négociation ont été tenues dans le cyberspace sans l’intervention ou le concours de professionnels73. Cependant, dans l’affaire qui nous intéresse, il ne s’agit pas de commerce électronique, mais plutôt d’une situation de fait qui met en cause deux parties de capacité et de pouvoir de négociation apparemment égaux. Le fardeau de preuve applicable devrait donc être celui de la personne raisonnable. On pourrait argumenter qu’aucune circonstance exceptionnelle n’existait pour justifier une protection accrue de la vendeuse dans les circonstances; Mme Druet avait déjà utilisé l’Internet pour tenter de louer son bien sur un site Web. M. Girouard avait pris connaissance de la disponibilité de ce bien en parcourant ce site. On pourrait aussi argumenter que la simple introduction d’un nouveau moyen de communication ne justifie pas l’adoption d’une approche différente lorsque vient le temps de déterminer la question fondamentale de savoir si les parties avaient l’intention d’être liées par un contrat valide74. La personne qui négocie informellement la vente d’un bien réel par 71 On se trouve alors plus près du discours utilisé en droit du consommateur, où l’objectif des interventions est de protéger celui-ci dans des situations où il n’a pas l’occasion de négocier les conditions d‘un contrat d’achat de biens; Freedman, supra note 22 au para 111. 72 Savirimuthu, supra note 19 aux pp 141-142. 73 Girouard c Druet, supra note 1 au para 4. 74 Savirimuthu, supra note 19 à la p 109. Voir aussi l’affaire Salminen c Garvie, supra note 13 (l’affaire mettait en cause une entente de séparation; le fait que le contrat se retrouvait dans des courriels ne semble avoir eu aucune conséquence). [2013] COMMENTAIRE D’ARRET – GIROURARD c DRUET 305 correspondance écrite sur papier ne reçoit aucune protection spéciale du tribunal, et ce malgré le fait qu’elle n’est pas accompagnée de conseillers juridiques ni d’agents immobiliers et que la rédaction finale d’un tel contrat n’est pas nécessairement plus claire que celle que l’on peut trouver dans des courriels. Conclusion Au Nouveau-Brunswick, le courriel peut-t-il être qualifié de document « écrit » aux fins de la Loi relative aux preuves littérales75? La réponse est oui, sans aucun doute. Mais, comme dans le cas de toutes autres formes d’écrits, on examinera les circonstances pour déterminer si les éléments essentiels du contrat s’y trouvent, et on appliquera les critères généraux de la formation d’un contrat valide. Si la Cour d’appel a exprimé certaines réserves devant ce type de contrats, elle a quand même reconnu la possibilité qu’ils soient valides selon les circonstances : Sur le plan des principes généraux, nous reconnaissons qu’un échange de courriels peut satisfaire à l’obligation de mise par écrit énoncée dans la 2013 CanLIIDocs 114 Loi sur les opérations électroniques et, corrélativement, la Loi relative aux preuves littérales […]76. Devrait-on exiger une convention d’achat-vente semblable à celles utilisées par la majorité des agents immobiliers77? Les juges de la Cour d’appel semblent le préférer pour des ventes de biens réels, et ils ont montré une certaine réticence à conclure que des parties puissent s’engager par contrat sans bénéficier d’avis « professionnels indépendants ». L’analyse du contrat fondée sur les éléments essentiels doit-elle être adaptée selon la forme utilisée? Les juges sont d’avis qu’il faut tenir compte des circonstances de la situation, du moins quand vient le moment de déterminer l’intention des parties : Tous ces faits, lorsqu’examinés collectivement, renforcent la présomption selon laquelle il n’y a jamais eu d’intention de créer des rapports obligatoires par Internet […]78. Il est difficile de concilier l’application d’une analyse différente à cause de l’utilisation d’un moyen électronique de correspondance et l’objectif évident des dispositions législatives adoptées, telles que celles de la Loi sur les opérations électroniques, supra note 4. 75 Supra note 3. 76 Girouard c Druet, supra note 1 au para 3. 77 La common law a répondu à cette question par la négative depuis un bon moment : voir Di Castri, supra note 6 à la p 4-27 et s. 78 Girouard c Druet, supra note 1 au para 51. 306 UNB LJ RD UN-B [VOL/TOME 64] L’attention spéciale attachée aux circonstances semble particulièrement importante, et justifiée, lorsqu’un consommateur fait affaire avec un programme informatique auquel il doit réagir lors d’une transaction. Peut-on imaginer le jour où un entrepreneur audacieux mettra en vente sur Internet les unités de son nouveau projet condominial? Après un tour « virtuel », le consommateur pourrait alors se porter acquéreur de sa nouvelle résidence en cliquant sur les bonnes cases, quitte à offrir un dépôt par le biais d’un des mécanismes bien connus et relativement sécuritaires de paiement direct en ligne. À ce jour, rien ne semble l’en empêcher pour ce qui est du contrat d’achat-vente. Il va de soi que le transport du titre comme tel exige toujours la signature du concédant et la conservation d’une copie « écrite » sur papier, du moins au Nouveau-Brunswick79. De manière plus générale, la décision de la Cour d’appel illustre bien la difficulté qu’ont les tribunaux à trancher des questions nouvelles dans des domaines où la législation et la jurisprudence n’arrivent pas à suivre la réalité de tous les 80 jours . Cela étant dit, rien n’empêche le législateur de réviser quelques-uns des 2013 CanLIIDocs 114 articles de la Loi relative aux preuves littérales pour mieux l’adapter aux réalités d’aujourd’hui. Le juge Rideout avait sans doute raison lorsqu’il faisait remarquer : Il va sans dire, selon moi, que l’Internet et les courriels font maintenant partie de la vie de tous les jours des entreprises et particuliers. On fournit presque quotidiennement aux tribunaux des courriels de certains échanges entre les parties comme éléments de preuve […]81. 79 Loi sur l’enregistrement foncier, LNB 1981 c L-1.1, art 17. 80 Cette décision illustre bien les difficultés pour le tribunal de trancher des questions innovatrices et importantes dans une affaire où une des parties ou les deux se représente elle-même, sans l’avantage de conseils et de représentation juridiques. L’avocat ou l’avocate possède les connaissances nécessaires pour présenter les faits et l’état du droit, ainsi que des arguments fondés sur ces éléments essentiels en common law et a l’obligation de le faire. En l’espèce, en partie à cause d’une question de procédure (Règles 23.01 et 23.02 des Règles de procédure), les faits avaient été présentés de façon plutôt sommaire en première instance, supra note 2 au para 2. Et, l’une des parties, Mme Druet, n’avait pas d’avocat ni à la Cour du Banc de la Reine ni à la Cour d’appel. Il s’agit de facteurs dont on pourrait tenir compte dans l’application future de la décision. Voir General Electric Company c CSC Transportation Inc, [2011] OJ no 6225 (QL), au para 24: « Novel, unsettled areas of the law should not be decided on a motion for summary judgment but only after trial on a full record. In cases involving the meaning of statutory provisions, where the ultimate interpretation of those provisions could have a broad impact, before deciding the issue, the Court would also benefit from a fuller argument of the issue on the basis of a complete evidentiary record. » 81 Girouard c Druet, supra note 2 au para 20. Le législateur pourrait revoir le libellé de la Loi sur les opérations électroniques afin d’assurer qu’elle est rédigée dans un langage assez clair pour atteindre son objectif et avoir l’effet désiré, qui est d’annuler toute différence d’analyse résultant du seul fait qu’un contrat soit constaté sous forme électronique plutôt que sur papier. [2013] COMMENTAIRE D’ARRET – GIROURARD c DRUET 307 La décision de la Cour d’appel démontre aussi clairement que les tribunaux ne sont pas prêts à abandonner toutes formalités relatives à la conclusion d’un contrat de vente de biens réels. C’est un rappel que les tribunaux continueront d’exiger un minimum de formalités, et ce dans le but de protéger les parties et de leur permettre de négocier un contrat de façon sereine tout en sachant que n’importe quel « écrit » sous format électronique, ou sous format plus traditionnel, ne sera pas nécessairement qualifié de contrat valide à moins de pouvoir faire la preuve d’intention de la part de chacune des parties. Cette décision peut aussi servir de rappel que l’on continue à se montrer plus prudent dans les circonstances où l’objet d’une transaction est un bien réel. Elle sert également de rappel que les biens réels demeurent une catégorie de biens toujours régis par des règles traditionnelles, certains diraient anciennes, de la Common Law. 2013 CanLIIDocs 114