How measures to contain COVID-19 may clash with Canadians’ Charter rights

With Canada facing a pandemic that puts the health of millions potentially at risk, and governments imposing stringent measures, questions are being raised about what role constitutional rights play in times of crisis, and whether governments have the manoeuvring room to protect society. Sean Fine looks at the Charter of Rights and Freedoms in dangerous times.

Q: What powers do governments have for this crisis?

A: Widespread quarantine powers, the ability to close borders, restrict the movement of goods and people, close buildings and even order individuals to seek treatment. New powers were developed after the SARS crisis of 2003 left provinces realizing they lacked the legal authority for health emergencies.

Q: Does Canada need the Charter at a time of such peril?

A: More than ever, constitutional scholars say, to ensure the country does not abandon its principles such as protection of the vulnerable. “The Charter is there to stop decisions that are entirely fear-based and speculative,” says Michael Bryant, chief executive officer of the Canadian Civil Liberties Association, and a former Ontario attorney-general. For instance, if a province attempted to quarantine Asian-Canadians or Asian visitors in the beginning stages, the move would have been vulnerable to a constitutional challenge, he said.

Q: How flexible is the Charter in taking a health emergency into account?

A: Section 1 can impose reasonable limits on fundamental freedoms. But it needs to justify those limits on the basis of evidence, if challenged in court. What’s reasonable depends on the context and situation, says University of Ottawa law professor Carissima Mathen. Also, Section 33, the notwithstanding clause, allows the government to opt out of fundamental freedoms. But the federal government has never invoked it.

Q: In what specific situations does the question of reasonable limits arise in the current emergency?

A: Bail hearings may be unavailable to accused persons, as most courts have closed many of their operations down, Mr. Bryant says. The Charter contains a right to timely bail, and federal law spells out how quickly such hearings need to be held. “In those circumstances I think they have to be released. They haven’t been convicted of a crime – there’s no legal authority to detain them.” He said he has been visiting jails and speaking to corrections officials and criminal defence lawyers to get a sense of what is happening to bail rights.

Q: What about Canadians who are symptomatic, and are now barred from entering Canada on an airplane, a decision of the federal government?

A: Section 6 of the Charter says, “Every citizen of Canada has the right to enter, remain in and leave Canada.” The notwithstanding clause doesn’t apply to this section, underlining the importance of the right. The Immigration and Refugee Protection Act also guarantees that same right not only to citizens but to permanent residents. The federal Quarantine Act contains measures that, on their face, are in conflict with the Charter and the IRPA, Mr. Bryant says. Thus, the CCLA has put the message out on social media for Canadians in this situation, or those trying to visit symptomatic Canadian relatives abroad, to contact them. “Right now it seems to be the area of constitutional vulnerability,” Mr. Bryant said. However, Prof. Mathen said, “there is at least an argument that if you’re actively showing symptoms of a highly contagious condition, any government probably has a reasonable basis for saying, ‘We cannot permit you to board an aircraft.’ ”

Q: What constitutional issues would there be with the emergency powers declared by Ontario Premier Doug Ford on Tuesday, such as limiting places of worship to gatherings of 50 people, or ordering restaurants closed?

A: If the worship limit were challenged in court, the government would likely have to show it’s a minimal intrusion on freedom of religion in the circumstances, Mr. Bryant said. On the closing of restaurants, Prof. Mathen said there is no right to earn money in the Charter, and no property rights, unlike in the U.S. Constitution. Only if the limits had the effect of starving people, she said, would they have a constitutional case under Section 7, the right to life, liberty and personal security.

Q: Can governments actually limit the right to life, liberty and security?

A: Only in accordance with the principles of fundamental justice, as Section 7 puts it. But no more than that, at least so far. Nothing the Supreme Court has ever found fundamentally unjust under Section 7 (such as a ban on medical assistance in dying) has ever been ruled a “reasonable” limit under Section 1. But the court has said that war, insurrection or disease could allow for such a possibility.

Q: What might the Charter (and the courts, if a challenge arrived) have to say about a citywide or even countrywide quarantine?

A: It would be seen as a sweeping move, and require a justification based on evidence of peril, perhaps including evidence that many people were not obeying social-distancing directives. “I’m not saying it would be impossible,” Prof. Mathen said. “I think the courts generally permit the government a fair bit of latitude to say, ‘In our judgment, this is the risk, and we need to be able to manage the risk.’ ” But it would be tricky. SOURCE

Trans Mountain pipeline costs skyrocket

Pipe for the Trans Mountain pipeline is unloaded in Edson, Alta. on Tuesday, June 18, 2019. File photo by The Canadian Press/Jason Franson

President and CEO Ian Anderson says the company owned by the federal government has spent $2.5 billion to date, including the impact of delays and additional regulatory processes, leaving an additional $8.4 billion needed to complete the project, plus $1.7 billion of financial carrying costs.

He says the project is now expected to be in service by December 2022.

The estimate of $7.4 billion was made in 2017 by the previous owner, Houston-based Kinder Morgan, Inc., which sold the expansion project and the existing pipeline to the federal government in 2018 for $4.5 billion.

Opponents have attacked the greenhouse gas emission and oil spill risks of the pipeline project but they’ve also charged it will be a money-loser with unproved markets in Asia that will fail financially and leave the public holding the bag.

Anderson says the company is recommending that Ottawa, as owner and lender, set aside a further $600 million reserve for cost impacts beyond the control of Trans Mountain.

Opponents of the pipeline expansion have vowed to do whatever it takes to stop the project despite losing a legal challenge before the Federal Court of Appeal earlier this week.

The four First Nations who lost the court challenge on Tuesday have 60 days to seek leave to appeal to the Supreme Court of Canada.

The expansion project would triple the capacity of the existing pipeline between Edmonton and a shipping terminal in Burnaby, B.C.


John Ivison: Pipeline dispute raises important question — who speaks for First Nations?

Reconciliation means making one system compatible with another, not Indigenous law trumping Canadian law at the behest of some self-anointed aristocrats

Wet’suwet’en hereditary chiefs opposed to the Coastal GasLink pipeline hold a press conference in Smithers, B.C., on Jan. 7, 2020.Amy Smart/The Canadian Press/File

The “territorial re-occupation” of land along the proposed Coastal GasLink pipeline in B.C. by hereditary chiefs of the Wet’suwet’en people has raised some thorny constitutional questions and some surprising interventions.

The $6.2 billion, 670 km pipeline route runs from Dawson Creek, near the Alberta border, to Kitimat in B.C.’s north coast region, crossing through traditional Wet’suwet’en territory.

The pipeline is supported by the five Wet’suwet’en bands, and their elected chiefs and councils. They point out the advantages for local communities – financial benefit agreements worth $338 million for the 20 bands along the route and contract work for indigenous businesses estimated at $620 million. Reginald Ogen, president of a company that has won a $75 million contract to provide camp facilities, has noted that the jobs may be short and medium term but the training “lasts a lifetime and provides future opportunities”.

The project is opposed by the hereditary chiefs who represent the 13 Wet’suwet’en houses (12 are represented by the Office of the Wet’suwet’en, while the Dark House operates independently). Small groups of “land defenders” have blocked a bridge crucial to future development.

The project hit the headlines earlier this month when the United Nations Committee for the Elimination of Racial Discrimination called for an immediate stop to construction, only to be given pause for thought when it was pointed out to the committee chair that most communities along the route support the pipeline.

B.C. Supreme Court justice, Marguerite Church, extended an injunction late last year that found in favour of the pipeline proponent and against the hereditary chiefs blocking construction.

This has sparked a debate about who speaks for the Wet’suwet’en. Former justice minister Jody Wilson-Raybould weighed in with an opinion piece in the Globe and Mail last week that raised eyebrows.

The independent MP for Vancouver Granville argued that Indigenous reconciliation requires moving beyond the Indian Act to systems of Indigenous governance that are created on the ground and recognized by others.

Independent MP Jody Wilson-Raybould. Mike Bell/Postmedia/File

So far, so good. But deconstructing the colonial reality, in Wilson-Raybould’s eyes, means blowing up the band councils.

“The legal reality is that band councils are a creature of the colonial Indian Act and have limited delegated authority tied to reserves,” she said. “They do not have inherent authority, nor are they self-governing or an expression of self-determination. They cannot simply represent the proper rights holder – the broader group that shares a common language, culture and tradition – and typically there is more than one band within a given territory of an Indigenous people.”

Nowhere in her article does it stress the imperative point – they are elected and those claiming to speak for the broader First Nation are not.

She doesn’t explicitly come out in favour of the hereditary chiefs over the elected band chiefs but she comes close – an extraordinary inclination from a democratically elected MP.

In the case in question, all the band chiefs in the given territory are in favour of the pipeline proceeding.

Most people would probably agree that it should be up to Indigenous people to decide on how they are governed. The government has suggested moving from 670 small bands to larger First Nations more capable of delivering services.

There are no simple answers to these tough questions

But one would hope that whatever structure evolves is based on universal suffrage and democratic principles, rather than on some form of feudal genealogy.

The hereditary chiefs contend that the Wet’suwet’en are represented by traditional governance structures and that, since the pipeline’s proponents were not given permission to enter unceded territory, they are in violation of Wet’suwet’en law.

The elected chiefs beg to differ, resulting in considerable tension between the two groups. Reginald Ogen, who is a member of the Wet’suwet’en First Nation, contends his section 35 rights are being infringed by the blockade.

Further confusion has emanated from an internal debate about who qualifies as a hereditary house chief. The lead defendants in the B.C. Supreme Court case claim to represent the Unist’ot’en people, which is not a governing body of the Wet’suwet’en.

Madam Justice Church resolved that Indigenous customary laws are not an “effectual” part of Canadian law until they are somehow recognized in treaties or court declarations. As such, she said the idea that Indigenous laws supersede Canadian law and the B.C. government’s approval of the Coastal GasLink pipeline does not stand up to scrutiny. Her ruling gives RCMP the right to arrest people and remove camps designed to block pipeline construction.

Supporters of the Wet’suwet’en hereditary chiefs and who oppose the Costal Gaslink pipeline take part in a rally in Smithers B.C., on Jan. 10, 2020. Jason Franson/The Canadian Press/File

However, she did acknowledge that the question is complex and raises “significant constitutional questions.” Wilson-Raybould covered some of this terrain in her article, which called for a “foundational legislative shift through the development of a recognition and implementation of Indigenous rights framework”.

What does foundational shift look like? In her last act as justice minister, Wilson-Raybould issued a directive on civil litigation involving Indigenous people that promoted negotiation and settlement, instead of drawn out court battles. Critics in the justice department felt the effect was to instruct government lawyers to litigate badly.

Dwight Newman, the Canadian research chair in Indigenous Rights at the University of Saskatchewan, said the task of reconciling how Indigenous law intersects with Canadian law will be problematic.

“There are no simple answers to these tough questions,” he said.

But reconciliation means making one system compatible with another. As the B.C. Supreme Court rightly concluded, it does not mean Indigenous law trumping Canadian law at the behest of some self-anointed Indigenous aristocrats. SOURCE

Toronto asks Supreme Court of Canada to overturn Doug Ford government’s council cut

The Supreme Court of Canada hears a select number of cases each year, typically of significant public importance.

The city is asking the country’s top court to overturn a decision that Premier Doug Ford’s mid-election council cut was constitutional.

In applying to the Supreme Court of Canada — which chooses to hear a select number of cases each year, typically of significant public and usually national importance — the city says the issues raised by the provincial government’s meddling in the election “transcend the specific election in this case and can affect any election in the country.”

“This appeal raises three issues of national and public importance relating to local democracy as well as broad, important constitutional interpretation issues that require further jurisprudential guidance from this Court,” the city’s application, filed Friday, says.

“The intervention of this Court is necessary to bring clarity to these constitutional issues of public importance.”

The application outlines how the province, without notice, passed legislation that cut the number of city wards in Toronto from 47 to 25 during the 2018 election. On the day it became law, the municipal campaign had been running for 105 days with 69 days before the vote.

“The result was widespread disruption and confusion,” the city’s legal team — comprising Diana Dimmer, Glenn Chu, Fred Fischer and Philip Chan — says in its written application.

It goes on to describe the fallout:

“Candidates had campaigned in areas that were no longer part of their ward and had never campaigned in areas that were now part of their ward; ward sizes approximately doubled; electors were no longer sure what ward they were in or who was a candidate in their ward; endorsements that had been provided for candidates were rescinded; people who did not run when it was a 47-ward election decided to enter the race when it became a 25-ward election; the Clerk, who was preparing for months for a 47-ward election, had to suddenly begin preparing for a 25-ward election; candidates spent more time speaking to electors about the reduction in the number of wards than election issues.”

In September 2018, Superior Court Justice Edward Belobaba ruled that Bill 5, the Better Local Government Act, was unconstitutional and struck it down.

The province then appealed. First, the Court of Appeal granted a stay, which effectively put Belobaba’s decision on hold and saw an election proceed in October with the 25-ward structure now in place. A rare five-judge panel at the Court of Appeal then ultimately overturned that lower court decision in favour of the province. But the panel was split on that decision, 3 to 2.

The city’s application to the Supreme Court outlines three central issues: whether the charter protects the expression of people participating in an election from “substantial mid-election changes” to the electoral framework in place; whether what’s called the unwritten constitutional principles of democracy and rule of law can be used to strike down legislation; and whether municipal voters are entitled to effective representation.

On the first issue, the city’s application notes that the Court of Appeal panel was split on mid-election interference as it relates to section 2(b) of the charter, which protects freedom of expression, and that the appeal to the Supreme Court would allow that court to provide guidance for all municipalities going forward. Expressive rights are wielded by many people in an election, the city wrote: candidates seeking support, donors providing financial support, volunteers working on campaigns, and electors casting their ballots.

Court to hear case on whether asylum agreement with U.S. violates charter

OTTAWA — A long-awaited legal look into whether the U.S. remains a safe country for refugees begins today at a Federal Court in Toronto.

At issue is the Safe Third Country Agreement that prohibits people from entering Canada from the U.S. —  and vice versa — at official border crossings and asking for asylum. It was signed by the two countries 17 years ago on the grounds that both are safe places and so those seeking sanctuary should apply in the first country they arrive in.

But as the U.S. has tightened its asylum rules and regulations in recent years, the deal has come under intense scrutiny over concerns that actions taken by the Trump administration no longer make the U.S. a safe harbour for those seeking asylum.

In turn, when Canada rejects people at the border, their charter rights are being violated, advocacy groups and the individual litigant in the case will argue this week as the Federal Court finally hears the challenge begun in 2017.

“Refugee claimants are being detained indefinitely, in conditions that are nothing short of cruel and unusual, simply for seeking protection,” reads one of the memos submitted to the court.

The legal challenge to the agreement was filed after a Salvadoran woman tried to enter Canada at an official border crossing to seek asylum, arguing she was being brutally targeted by gangs at home. She was told she was inadmissible because of the deal. MORE

Victoria takes fight over plastic-bag ban to Supreme Court of Canada

Victoria Mayor Lisa Helps, centre, says the city will see leave to have the Supreme Court of Canada hear an appeal of a B.C. Court ruling that overturned a local bylaw prohibiting the use of single-use plastic bags. She is supported by Tofino Mayor Josie Osborne, left, and Squamish Mayor Karen Elliott at an announcement in Vancouver on Wednesday, Sept. 25, 2019 | Photo: Jeremy Hainsworth, Glacier Media

The fight over Victoria’s ban on single-use plastic bags is going all the way to the Supreme Court of Canada.

Mayor Lisa Helps confirmed Wednesday that Victoria will seek leave to appeal a lower court decision that struck down the city’s bylaw in July.

“The fundamental bottom line is that this is more than about plastic bags,” she said. “The decision, if allowed to stand, could potentially, substantially challenge the authority of local governments to make decisions in line with our communities.”

Under the bylaw, businesses were barred from providing customers with single-use plastic bags and instead had to charge 15 cents for a paper bag or $1 for a reusable bag.

The Canadian Plastic Bag Association, which represents manufacturers and distributors of plastic shopping bags, launched a court challenge before the bylaw took effect in July 2018.

Victoria won in B.C. Supreme Court, but lost at the B.C. Court of Appeal, which found that the primary purpose of Victoria’s bylaw was to protect the natural environment rather than to regulate business. As such, the city should have sought provincial approval for the bylaw, but failed to do so, the court said.

Helps said Victoria fundamentally disagrees with the ruling and will argue that it runs contrary to the principle that “lawmaking and implementation are often best achieved at the level of government that’s closest to the citizens affected.”

Helps said the principle was previously mentioned by the Supreme Court of Canada and will form the basis for the city’s appeal.

She cautioned, however, that the Supreme Court only hears about 10 per cent of cases that seek leave to appeal.

“So it’s a long shot, but we think it’s an important enough issue for municipalities across this country.”

The Canadian Plastic Bag Association said in a statement that it’s considering all options in consultation with legal counsel and will comment in due course.

Helps announced the appeal at the Union of B.C. Municipalities convention in Vancouver. She was accompanied by Tofino Mayor Josie Osborne, Squamish Mayor Karen Elliott and other municipal officials.

Osborne, whose community recently passed its own ban on single-use plastic bags and straws, thanked Helps and Victoria council for their work on the issue.

“I’m really happy to see the kind of leadership from a city like Victoria, because small municipalities like Tofino and others simply don’t have deep pockets to be able to afford legal cases like these,” she said.

Elliott added that the Court of Appeal ruling strikes at the heart of local government’s power to regulate business practices.

“Local governments are part of the solution and we want the ability to reflect our communities’ values and long-term goals in our bylaws and regulations without having to ask permission,” she said.

Victoria is pursuing the appeal even as the federal and provincial governments contemplate their own bans on single-use plastics.

The province is currently getting public feedback on the issue, while the federal government announced in June that it will ban plastic bags and other items as early as 2021.

Helps acknowledged those efforts, but said the city felt the Court of Appeal decision had too many other implications to let it stand.

“So that’s why we’re seeking leave to appeal, but absolutely working with the province at the same time.”

She said the remarkable thing about Victoria is that since the bylaw was struck down, up to 97 per cent of businesses are still operating as if the bylaw was in place. “So there’s clearly social licence and there’s also political will,” she said.

The appeal will be handled by the city’s in-house legal counsel without the need to hire outside lawyers, Helps said. SOURCE

Scheer says he’d fast-track pipeline challenges straight to Supreme Court

Conservative leader proposes circumventing lower court appeals ‘so that we can get certainty’ on projects

Conservative Leader Andrew Scheer listens to questions during a campaign event in Ottawa on Sept. 14. (Justin Tang/The Canadian Press)

A Conservative government would overcome legal objections to building new petroleum pipelines by fast-tracking any cases right to the Supreme Court of Canada, party leader Andrew Scheer says.

Scheer and other Conservatives have for years said Ottawa has to “assert federal jurisdiction” to get important projects built, but he has not until now explained what that would mean in practice.

At a campaign stop Wednesday, Scheer was pushed on comments he made in recent days about asserting jurisdiction in the face of objections from Indigenous communities or provincial governments, including Quebec.

“It’s about fast-tracking some of the questions that have been raised by people who oppose the project,” he said.

“Fast-tracking those cases to the Supreme Court — referring those types of jurisdictional questions to the Supreme Court right away so that we can get certainty, instead of watching these court cases move slowly up and up, being appealed. We would have taken that directly to get finality on those decisions.”

Construction at the Trans Mountain tank farm in Burnaby, B.C., in June 2019. (Ben Nelms/CBC)

The inability to get pipelines built has become a major source of frustration and anger in Alberta, where politicians from all parties believe other jurisdictions and communities are deliberately landlocking Alberta oil, harming its economy.

The Trans Mountain pipeline expansion, in particular, has been hit by court challenges from provincial and municipal governments, Indigenous communities and environmental groups.

Indigenous communities and environmental groups challenged federal approval of the expansion and won in a federal Court of Appeal case. After the federal government re-did consultations and approved the project again last spring, the same groups filed new objections. The court has agreed to hear Indigenous complaints, but rejected those brought by others.

Those cases could eventually make their way to the Supreme Court.

Construction at the Trans Mountain tank farm in Burnaby, B.C., in June 2019. (Ben Nelms/CBC)

The Supreme Court is expected to hear an appeal early next year from the British Columbia government of a B.C. Court of Appeal opinion that the province couldn’t restrict what flows through the pipeline, which is considered federal jurisdiction because it crosses provincial borders.

The B.C. case was seen as the final nail in the coffin for former pipeline owner Kinder Morgan’s plans to proceed with the project.  MORE

The justice system still fails to protect Indigenous women and girls

“Even though the SCC made some important findings in this case, their caution that the justice system has a lot more work to do applies equally to them. We need more than the “important step forward” they commended themselves for — we need a wholescale change. ” — Pam Palmater

“Her life mattered. She was valued. She was important. She was loved.”  R. v. Barton [2019] S.C.J. No. 33.

Cindy Gladue was an Indigenous woman originally from Alberta, where she grew up with her four siblings and extended family. She was also the mother to three daughters and her family described her as both a loving mother and caring auntie. She had close friends and always dreamed about being the first in her family to go to university. Cindy Gladue loved and was loved. She did not deserve her violent death in 2011 nor the indignity done to her body after.

She is now one of the many thousands of murdered and missing Indigenous women and girls in Canada — a growing crisis that represents grave human rights violations. The trial of the man who admittedly committed this act of violence against Cindy is an example of how defective Canada’s justice system is when it comes to Indigenous women victims and how negligent Canada has been in ensuring the basic human rights of Indigenous women and girls are met.

In this column, there will be no details about Cindy’s appearance, what she wore the night she was killed, where she was killed, whether she knew her killer, her level of education, her health status, or what she did for a living — because none of the facts is relevant to her death. Cindy is not to blame for her death. Cindy did not kill herself. Cindy did not engage in a dangerous knife fight or try to kill someone.

Regardless of which version of the story is accepted by the next trial judge — that she was killed by a male trucker who violently cut an 11-cm gash in her vagina, or that she died from a tear from his violent, but unarmed interaction with her — she still died as a result. According to the SCC quoting from evidence at trial, the trucker then tried to hide evidence, change the crime scene and lie about his involvement. His name doesn’t deserve to be said aloud, nor does he get to hide behind any of the racist or sexist excuses he used at trial to defend himself. None of the evidence referred to at trial or the SCC indicates that he should be believed. Cindy’s life story does not get to be narrated by the man who admits to committing this violence against her.

Sexualized violence against Indigenous women and girls in Canada has been allowed to continue in plain sight by government officials, police officers, lawyers and judges who have treated Indigenous women and girls as though they are less worthy of life. In fact, were it not for the lengthy and persistent advocacy of Indigenous women and their allies, Canadians would still be unaware of the crisis. MORE


Law groups welcome MMIWG report, pledge to consider and reflect on inquiry’s ‘Calls for Justice’

First Nations and the federal election: An exercise in self-termination

This warning by Russ Diabo posted in Ricochet, July, 2015 is even more timely today.

Image result for Ricochet: First Nations and the federal election: An exercise in self-termination

For the past several weeks, I have observed with increasing frequency a call for First Peoples to get out for the upcoming federal election. The mainstream media and now the national chief of the Assembly of First Nations, Perry Bellegarde, are urging Indigenous people to vote, particularly since it is looking like a three-way race between the federal leaders and their parties (sorry, Elizabeth May).

…I took particular notice of an opinion piece by Tasha Kheiriddin in the National Post. Kheiriddin was responding to Regina Crowchild, a councillor with Alberta’s Tsuu T’ina Nation, who said that she would not want to see “an alien government’s polling station” on her reserve, adding that “if we join Canada in their election system, that’s a part of genocide.”

Here was Kheiriddin’s counterargument:

The reality is that, paradoxically, if First Nations are truly interested in more autonomy, they will never get it without cooperation from the federal government. That means electing a government that is sympathetic to their perspective — and they will never do so unless they go to the polls. Voting is not capitulation, but a recognition that in a democracy, you need to participate if you want your voice to be heard.

Despite the mainstream media’s pleas, we must remember as First Nation individuals we are connected to our families, communities and nations. Therefore we have collective or group rights, which Canadian citizens — whether founding settlers or recent immigrants — cannot claim.

In fact, Canada (including the Supreme Court of Canada) bases its asserted sovereignty and territorial integrity on the racist, colonial Christian doctrine of discovery. Kheiriddin’s argument makes sense only if Indigenous peoples already consider themselves as “Canadians.” MORE

Jody Wilson-Raybould and the paradox of reconciliation in Canada

Image result for hayden king

Hayden King is Anishinaabe from Beausoleil First Nation on Gchi’mnissing in Huronia, Ontario. He is the Executive Director of Yellowhead Institute, based in the Faculty of Arts at Ryerson University.

…At the end of her meticulous recounting of what she called “inappropriate” pressure her colleagues applied in an effort to defer SNC-Lavalin’s prosecution, Ms. Wilson-Raybould linked these two threads: “my understanding of the rule of law has been shaped by my experience as an Indigenous person and leader. The history of Crown-Indigenous relations in this country includes a history of the rule of law not being respected … And I have seen the negative impacts for freedom, equality, and a just society this can have firsthand.”

Knowing these dynamics better than most, and despite any of her efforts, Ms. Wilson-Raybould has been a part of a government responsible for perpetuating lack of respect for the rule of law, in this case in relation to Indigenous issues. How can all of this be reconciled? MORE

Earlier this year, in response to widespread outrage, “rule of law” was official government messaging when the RCMP served a pipeline company’s injunction in Uni’stot’en territory, on lands the clan has not agreed to share in a treaty (what the Supreme Court calls “title” lands). From Oka, through Ipperwash, Caledonia, Elsipogtog, and two dozen other examples of conflict over land, the rule of law is a prime-ministerial invocation that twists the law.

On criminal justice, the Supreme Court has demanded that the over-incarceration of Indigenous peoples be addressed with unique sentencing protocols known as the Gladue Principle. The directive is overwhelmingly ignored by lower courts, provincial and federal officials, and incarceration rates continue to rise.

Law after law dating back to the Gradual Civilization Act in the mid-1850s have discriminated against Indigenous women. Canada has argued in court that the Charter of Rights and Freedoms doesn’t apply to First Nation women. Indeed, there is still gender discrimination in the Indian Act.

Indigenous children are somehow invisible to the rule of law, too. Last week the Canadian Human Rights Tribunal issued its seventh non-compliance order against Canada for failing to fully and completely end discriminatory policies.

Late last year, in a speech to First Nation leaders in B.C., and on the eve of her demotion to Veterans Affairs, Ms. Wilson-Raybould called out those among us who have little faith in Canadian institutions and laws. These individuals, she said, “in the name of upholding Indigenous rights, critically oppose almost any effort to change [within the Canadian constitutional framework].” This is an apt characterization, though to be fair, the heretics have ample evidence of corrupt institutions on their side. MORE


Wilson-Raybould’s place in Liberal party at risk after SNC-Lavalin testimony