People & Culture

40th anniversary: The Canadian Charter of Rights and Freedoms

The Charter goals and Indigenous people living in Canada

  • Oct 11, 2022
  • 1,422 words
  • 6 minutes
[ Disponible en français ]
Queen Elizabeth II signs Canada's constitutional proclamation in Ottawa on April 17, 1982, as then-prime minister Pierre Trudeau looks on. With a stroke of a pen, Canada had its own Constitution. (Photo: The Canadian Press/Ron Poling)
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Proclaimed in 1982 by Her Majesty Queen Elizabeth II of Canada, the Canadian Charter of Rights and Freedoms marks its 40th anniversary this year, intended to ensure that all Canadians can live a life without discrimination of any kind. Mark Bourrie asks whether the goals of the Charter have been met when it comes to Indigenous people living in Canada

This article forms part of Commemorate Canada, a Canadian Heritage program to highlight significant Canadian anniversaries. It gives Canadian Geographic a chance to look at these points of history with a sometimes celebratory, sometimes critical, eye.

On a cold, blustery day in April, 1982, Queen Elizabeth II signed the new Canadian constitution into law in an outdoor ceremony on Parliament Hill. For the first time, this country had a constitution with a Charter of Rights.

Those rights included equality rights for women. A similar amendment to the U.S. Constitution failed to pass the ratification process later that year. And the Constitution enshrined Indigenous rights for the first time.

Douglas Sanderson, a Haudenosaunee scholar who is a professor of law at the University of Toronto, notes that the drafters of the Charter did not put Indigenous rights protection in that section of the Constitution. Instead, Indigenous rights are guaranteed by Sec. 35 of the Constitution.

Understanding Limits to Charter rights

Many Charter rights are limited by Sec. 1, which allows governments to circumvent some rights if the infringement is proportional to the problem faced by a free and democratic society, deals directly with an issue, and is not overbroad. The legality of these infringements is determined using a legal test called the Oakes test, which balances society’s rights against those of the individual.  

Some Charter rights can also be limited by a provincial government’s use of the “notwithstanding clause”, which allows provinces to protect their legislation from Charter challenges for five years, and that term is renewable.

Despite the Constitution drafters’ decision to leave Indigenous rights out of the Charter, Sanderson said “it is clear that the Court took the general framework of s.35 rights to look and feel like Charter rights.”

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Aboriginal and treaty rights

Sec. 35 guarantees the aboriginal and treaty rights of First Nation, Inuit and Metis peoples in Canada. Metis were not covered by previous federal legislation that gave them special status, though courts had recognized some Metis hunting and fishing rights, and the federal government had made agreements with some Metis groups.

Still, Sanderson said, those rights are not absolute. Indigenous land rights are somewhat shaky. First Nations property rights are sometimes limited to the right to be consulted when a government wants to allow exploitation of resources on lands that were traditionally used by First Nations.

“There’s the idea that the Crown can justifiably infringe Aboriginal rights emerges as a rearticulation of the Oakes test, and the perceived need to balance one right against another. In doing so, the Court left Aboriginal rights uniquely vulnerable.  

“Sec. 35 Aboriginal rights are, for example, the only constitutionally-protected rights that can be trenched (encroached upon) by another non-constitutionally protected right.  So, for example, the right to free expression or speech is trumped by the Charter’s guarantee of security of the person. You can’t yell ‘Fire!’ in a theatre. But free speech could never be trumped by ‘economic development’ or ‘environmental protection’ or ‘economic fairness’ the way Sec. 35 rights are,” Sanderson said.

It’s difficult to know what the framers of the Constitution had in mind when they wrote it. In the United States, courts refer to the writings of the drafters of their constitution when they interpret their Constitution and its Bill of Rights. Canadian drafters, aware that Canadian law going back to the 1929 “Persons” case sees the Constitution as a “living tree”, deliberately left the interpretation of the 1982 Constitution and its Charter of Rights to the courts.

Sanderson says the courts went off track when they started interpreting Sec. 35 rights as rights held by individuals living in Canadian provinces and inside the country of Canada, rather than as First Nations rights.

“Those provinces and that country have laws, and if those law interfere with Sec. 35 rights, and if infringement of those rights can be justified in a Canadian court, then those Sec. 35 rights are pushed aside.   

“A more appropriate way to think about Sec. 35 would be to conceive the rights as held by Indigenous orders of government, and the question is not whether these rights can be justifiably infringed, but rather, which order of government has appropriate jurisdiction to the exclusion of other orders of government. The feds, for example, could never ‘justifiably infringe’ provincial regulation of property and civil rights — those just are provincial powers,” he said.

“The right track would be to see the Sec. 35 rights as recognizing a distinct Indigenous order of government,” Sanderson added.

Goals and reality 

But even when the Charter is applied to Indigenous people, it often fails to protect their rights. All Canadians are entitled to consult counsel, but most provinces have slashed legal aid to the bone for criminal cases and effectively eliminated it for civil cases, including family law. These cuts have disproportionately harmed Indigenous people, including women, legal scholars say. 

 Kerri Anne Froc, a law professor at the University of New Brunswick, says basic legal aid in criminal cases get some protection from Sec. 11 of the Charter. That has mainly helped men, who are more likely to be charged with a criminal offence. “Civil legal aid for family law cases, women seeking spousal and child support, is practically non-existent,” she said. Disadvantaged women, many of whom are Indigenous, have found themselves unable to make claims for spousal support and to protect their rights to custody or of access to their children.

Senator Kim Pate, former executive director of the Canadian Association of Elizabeth Fry Societies, has spent most of her adult life advocating for the most disadvantaged, those who are marginalized, victimized, criminalized and institutionalized, particularly women. Many of these women are Indigenous or otherwise racialized. 

“We are in a historic moment with a new Indigenous Supreme Court of Canada justice, especially concerning how the government deals with MMIWG, the mass incarceration of Indigenous women and girls and land rights,” Pate said. 

“Indigenous land rights have largely been framed as land claims, seemingly absent the very real linkages and context of environmental issues: the protection of land and water and the linkages between land theft and cultural and community identity. The role of women in Indigenous culture and land protection is virtually non-existent in legal constructs. Court efforts to interpret the Charter so as to require judges to consider the disadvantages faced by many Indigenous defendants, including intergenerational trauma, have failed to stem the residential school/child welfare to prison pipeline. In fact, it seems to have the opposite effect, as the percentage of Indigenous women in federal prisons continues to skyrocket. Half of the women serving sentences of two years or more are Indigenous. In the Prairie provinces, more than 75 per cent of the women in provincial jails are Indigenous. In parts of Canada, nearly all the girls and young women held under the Youth Criminal Justice Act are Indigenous.

“When the equality provisions of the Charter came into effect — delayed by three years as a nod at the time to the blatant inequities, we started to see some efforts to deal with these issues of inequality. Demands of justice and fair treatment for Indigenous women have paradoxically not alleviated the issues, but seem to have resulted in some Indigenizing of the criminal legal and penal systems that have apparently made it easier to justify and accept the mass incarceration of women.  

“This Indigenization of the system is now accepted by judges, lawyers and the police,” Pate said. As the MMIWG brought into stark view, the same issues of racism, misogyny and poverty that result in Indigenous women being disappeared and murdered are the same issues that render them more likely to be homeless and imprisoned. 

Pate said the Charter has given us a lens to look at rights issues, but until those economic, health and social inequities are addressed, equality rights are just words on paper.  

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Mark Bourrie is a Canadian lawyer, journalist and author. His biography of Pierre-Esprit Radisson, Bushrunner: The Adventures of Pierre Radisson, won the RBC Taylor Prize for literary non-fiction. His latest biography revives the life of George McCullagh, a charismatic high-school dropout and self-made millionaire who founded the Globe and Mail.

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