Well before the addition of
the Charter to the Canadian constitutional landscape, the great Canadian
constitutional scholar F. R. Scott, in an essay reprinted in his 1977 book, Essays on the Constitution, said the following of the project of
constitutionalism in Canada:
[A] constitution confronts a society with the most important
choices, for in the constitution will be found the philosophical principles and
rules which largely determine the relations of the individual and of cultural
groups to one another and to the state, if human rights and harmonious
relations between cultures are forms of the beautiful, then the state is a work
of art that is never finished. Law thus takes its place, in its theory and
practice, among man's [sic!] highest and most creative activities. (cited in Benjamin
L. Berger, 2013, “Children of Two Logics: A Way into Canadian Constitutional
Culture,” International Journal of
Constitutional Law, vol. 11, p. 318).
I intend
to show that (former) Justice Giesbrecht’s comments against the extension
of full Indian status to women and the concept of Indian status more broadly,
make an aesthetic and moral monstrosity out of the artful enterprise of
constitutionalism, which is most unbecoming to his (former) office
It is truly
a rare thing that an aspiring law student can critique a member of the bench
safely. Yet, since this Justice is retired, and since he takes such a caustic tone,
I will, thankfully, take that liberty. hopefully with an equal amount of sardonic
vitriol. This article its intellectual prostitution. And though my use of the
word prostitution may seem inflammatory, the use of prostitution is entirely
apt: to prostitute oneself is to commercialize one’s honour (or the honour of
one’s former office) in service of shameful purposes
As a
preliminary matter, those to the right of the political spectrum often suppose
that those to the left of it are enemies of free expression because the latter
often questions the ethics and presumption, not to mention sheer irrationality,
of the former. This could not be further from the truth. Strenuous criticism
does not corrode democracy; instead, it is our strongest bulwark against every
form of tyranny. There ought to be no exception for those offering inflammatory
alternative conservative perspectives.
His
(former) Lordship makes two fatal logical errors. First, he conflates the issue
of Indian status (and who ought to have it), which is a political question for
Parliament, with gender discrimination, which is most properly a constitutional
issue. Second, by cavalierly employing the word Métis, the (former) Justice
ignores culture and history’s crucial role in forming identity, and is guilty
of a performative contradiction: he engages in biological reductionism, which
is one of the things he finds most egregious about the Indian Act. As a private citizen, the (former) Justice is, of
course, entitled to advocate for whatever radical political change he wishes,
but the question of Indian status has been dramatically settled by resistance
to Pierre Elliott Trudeau’s White paper and the subsequent constitutional
entrenchment of aboriginal rights. They were entrenched precisely so they would
not be vulnerable to the venomous vicissitudes of right wing populist
pandering.
It’s a good
thing that His (former) Lordship has retired from the bench; for he seems not
to understand the basics of Canadian constitutional law, apparent to me, not
even yet if first year law student.
Gender
equality (section 28) is not subject to the notwithstanding clause of the
Canadian Charter of Rights and Freedoms (section 33). This means in principle
that any legislation found to violate gender equality can be saved by section 1)
the reasonable limits clause); but less flexibility ought to be accorded to
Parliament when it decides to abrogate gender equality than with the
restriction of other rights. And, in any case, any limitation of a right must
pass the stringent requirements of the Oakes framework. The Indian Act is a federal statute. Like all other federal
statutes, it is subject to The Charter.
There is an obvious case of discrimination, which would likely not pass any of
the branches of the Oakes test (valid purpose of legislation, rational
connection between the legislation and impugned objective; least drastic means
chosen for impairment of the right, and proportionate balance between the
deleterious effects on the claimant and benefit to society as a whole: R. v. Oakes, [1986] 1 SCR 103).
The
court has said repeatedly that monetary concerns can only override the
operation of the charter in the most extreme cases. If this were not the case,
virtually any form of government malfeasance could be justified under
utilitarian grounds. Rights do very little if they are subject to (overly
simplistic) economic analysis. And I stand by the statement issued in Summers (the
case which ended slavery in most of the British Empire) – “let justice be done,
though the heavens may fall”.
His (former)
Lordship would likely point out to me, in a tone sanctimoniously decrying “judicial
activism”, with famed piety for the maintenance of democratic institutions
(read, systems of white, male, heterosexual, upper-class privilege), that The Charter is not an instrument of
“social reform”. Instead, it is a document meant to constrain government
action. This is correct. The government is under no obligation to provide those
specific benefits under the
Constitution. Nevertheless, once it has done so, it must administer government
ameliorative programs in a manner consistent with The Charter. underinclusive (that is, sexist by omission) legislation
violates the Constitution, per the Supreme Court’s ruling in Vriend v Alberta [1998] 1 S.C.R. 493.
More
disquieting, were he still on the bench, is his refusal to take the ethical
advice of the Canadian judicial Council, which states the following in its
ethical guidelines: “Judges should strive to be aware of and understand
differences arising from, for example, gender, race, religious conviction,
culture, ethnic background, sexual orientation or disability” (Canadian
judicial Council, 5.2, 2004, Ottawa Ontario,). I do not believe the level of
disdain and envy demonstrated in this article, not to mention and apparent
wilful obliviousness to the actual
circumstances of the vast majority of status Indians, is indicative of the kind
of cognitive empathy required of an impartial spectator that the Judicial
Council imagines in the above quotation.
In
commentary to this section, the Canadian Judicial Council goes on to cite, Eldridge v British Columbia (AG) [1997]
3 S.C.R. 624 for the proposition that equality does not entail equal treatment
in a formal sense. Rather, it entails equal respect and concern, following
Ronald Dworkin’s constitutional principle (defended forcefully in his 1977
classic, Taking Right Seriously), in
a substantive sense. This requires considering the actual circumstances of the
majority of status Indians, and the intersecting challenges that they face. Only
a man with little conception of marginalization and dispossession could envy
the vast majority of status Indians their position within Canadian society. The
purpose of section 15(2), confirmed by the Supreme Court in R. v.
Kapp, [2008] 2 S.C.R. 483, 2008 SCC 41, is to protect government assistance
programs from conservative attack predicated on formalistic equality arguments.
Only a
man with colonial presumption could actively undermine the goals of
reconciliation, especially as they are in a critical and fragile state presently.
The preponderance of sociological, historical, legal, nutritional,
epidemiological, educational, and criminological evidence punctures innumerable
holes in his contrived fantasy of the entitled Indian, who lives in grandeur, at
the price of hard-working taxpayers.
A
diatribe like this, yes, even (or especially) from a retired Justice, brings
the honour, neutrality, cognitive empathy, and constitutional stewardship that ought
to be exemplified by members of the bench into the most ignominious disrepute.
It is natural to question the kind of reasoning and (lack of) contextual
sensitivity he offered while on the bench. His retirement did not entirely relinquish his
sacred duty to defend and propagate a just and equitable interpretation of the
rule of law.
In the
interest of greater empathy and understanding, I would commend to all the
following words of Chief Justice MacLachlan, which she rendered in Mitchell v. Canada
(Minister of National Revenue.), [2001] S.C.J. No. 33, [2001] 1 S.C.R. 911 (at para 9, citations
omitted):
Long before
Europeans explored and settled North America, aboriginal peoples were occupying
and using most of this vast expanse of land in organized, distinctive societies
with their own social and political structures. The part of North America we
now call Canada was first settled by the French and the British who, from the
first days of exploration, claimed sovereignty over the land on behalf of their
nations. English law, which ultimately came to govern aboriginal rights,
accepted that aboriginal peoples possessed pre-existing laws and interests, and
recognized their continuance in the absence of extinguishment, by cession,
conquest, or legislation. At the same time, however, the Crown asserted that
sovereignty over the land, and ownership of its underlying title, vested in the
Crown…. With this assertion arose an obligation to treat aboriginal peoples
fairly and honourably”.
How does this factually inaccurate and legally
naïve article, from a former member of the bench no less, further these laudable
aims or acknowledge the truly tragic and appalling historical fact of
colonialism? I want to be a judge as a lifetime vocation. I’m glad he retired
before I had the chance at one of society’s most esteemed privileges — that is,
to be called to serve on the bench. Otherwise, I would be most ashamed of the
office, just as he ought to be of this article.
He
ought to go back to law school, and he needs to see conditions on multiple reserves. Because he is a
former Justice, a position of considerable education, wealth, and distinction,
I think I can be forgiven for my lack of sympathy, should he be, in fact,
missing out on a “gravy train”.