Native Women's Association of Canada v. Canada
Encyclopedia
| Native Women's Association of Canada v. Canada | ||||||||
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 Supreme Court of Canada |
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| Argued March 4, 1994 Decided October 27, 1994 |
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| Holding | ||||||||
| A claim to a positive obligation on the government under section 2 of the Canadian Charter of Rights and Freedoms is not supported by the evidence that an interest group's freedom of expression was not denied. | ||||||||
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Native Women's Association of Canada v. Canada, [1994] 3 S.C.R. 627, was a decision by the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
on section 2
Section Two of the Canadian Charter of Rights and Freedoms
Section Two of the Canadian Charter of Rights and Freedoms is the section of the Constitution of Canada's Charter of Rights that lists what the Charter calls "fundamental freedoms" theoretically applying to everyone in Canada, regardless of whether they are a Canadian citizen, or an individual or...
, section 15
Section Fifteen of the Canadian Charter of Rights and Freedoms
Section Fifteen of the Canadian Charter of Rights and Freedoms contains guaranteed equality rights. As part of the Constitution, the section prohibits certain forms of discrimination perpetrated by the governments of Canada with the exception of ameliorative programs and rights or privileges...
and section 28
Section Twenty-eight of the Canadian Charter of Rights and Freedoms
Section Twenty-eight of the Canadian Charter of Rights and Freedoms is a part of the Constitution of Canada's Charter of Rights. It does not contain a right so much as it provides a guide as to how to interpret rights in the Charter...
of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
, in which the Court decided against the claim that the government of Canada had an obligation to financially support an interest group in constitutional negotiations, to allow the group to speak for its people. The case resulted from negotiations for the Charlottetown Accord
Charlottetown Accord
The Charlottetown Accord was a package of proposed amendments to the Constitution of Canada, proposed by the Canadian federal and provincial governments in 1992. It was submitted to a public referendum on October 26 of that year, and was defeated.-Background:...
, in which various groups representing Aboriginal peoples in Canada
Aboriginal peoples in Canada
Aboriginal peoples in Canada comprise the First Nations, Inuit and Métis. The descriptors "Indian" and "Eskimo" have fallen into disuse in Canada and are commonly considered pejorative....
were financially supported by the government, but the Native Women's Association of Canada
Native Women's Association of Canada
The Native Women's Association of Canada, or NWAC, is one of Canada's National Aboriginal Organizations, and represents Aboriginal women, particularly First Nations and Métis women. Inuit women are represented by the separate organization, Pauktuutit...
(NWAC) was not. Since NWAC claimed the other Aboriginal groups primarily represented Aboriginal men, it argued that section 28 (sexual equality under the Charter) could be used so that section 2 (freedom of expression) required the government to provide an equal benefit to Aboriginal women, supposedly represented by NWAC.
The case could be seen as unusual, because as the Court noted, "This case does not involve the typical situation of government action restricting or interfering with freedom of expression in the negative sense" and that "the respondents are requesting the Court to consider whether there may be a positive duty on governments to facilitate expression in certain circumstances."
Background
During negotiations for the Charlottetown Accord, there was discussion of enhancing Aboriginal self-government in Canada, and entrenching this new order of government in the Constitution of CanadaConstitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...
. Four Aboriginal interest groups participated in the discussions with financial support from the government, namely the Assembly of First Nations
Assembly of First Nations
The Assembly of First Nations , formerly known as the National Indian Brotherhood, is a body of First Nations leaders in Canada...
(AFN), the Native Council of Canada (NCC), the Métis National Council
Métis National Council
The Métis National Council is the representative of the Northwest Métis people within Canada.-History:The National Council was formed in 1983, following the recognition of the Métis as an aboriginal people in Canada, in Section 35 of the Constitution Act, 1982...
(MNC) and the Inuit Tapirisat of Canada (ITC). NWAC was not an equal partner among these participants, but some of the money trickled down to this group because it was decided that some of the government money should be spent on discussing women's rights in the Aboriginal community. In some cases, NWAC was left out of certain meetings altogether. They claimed that their aim was to make sure the new Aboriginal self-governments would respect women's Charter rights, and that the other Aboriginal groups primarily represented Aboriginal men.
Upon received the case, the Federal Court of Appeal
Federal Court of Appeal (Canada)
The Federal Court of Appeal is a Canadian appellate court that hears cases concerning federal matters arising from certain federal Acts. The court was created on July 2, 2003 by the Courts Administration Service Act when it and the Federal Court were split from its predecessor, the Federal Court of...
ruled that the treatment of NWAC might indeed infringe section 2 of the Canadian Charter.
Decision
The Supreme Court majority, represented by John SopinkaJohn Sopinka
John Sopinka, QC was a Canadian lawyer and puisne justice on the Supreme Court of Canada, the first Ukrainian-Canadian appointed to the high court....
, did not share the view of the Federal Court of Appeal and ruled against the rights claimants. The Court did, however, reject the government's argument that the Charter was not applicable at all. The government had said that if NWAC was excluded from the discussions, it was the fault of the AFN, NCC, ITC and MNC, since they did not share their funds more equally, and the Charter does not apply to these Aboriginal groups but only to the government itself. As the Court noted, it was to whom the government itself gave its money to that was the real issue.
Nevertheless, in its discussion of sections 2 and 28, the Court found in favour of the government. The Court followed its precedent in Irwin Toy Ltd. v. Quebec (Attorney General)
Irwin Toy Ltd. v. Quebec (Attorney General)
Irwin Toy Ltd. v. Quebec , [1989] 1 S.C.R. 927 is a landmark Supreme Court of Canada decision on freedom of expression in section 2 of the Canadian Charter of Rights and Freedoms...
to find that discussing constitutional issues with the government is "unquestionably" a form of expression, of the kind referred to in section 2. However, the government did not seem to be guilty of suppressing this expression, which Irwin Toy also requires for the section 2 claim to succeed. The question, then, was whether the consequence of the government's actions was to limit Aboriginal women's free speech, even though the government had seemed to want a discussion, and whether section 28 was infringed when the groups claimed to primarily represent Aboriginal men were given more opportunity to expression than NWAC. In making this claim, NWAC acknowledged that the government was not required by section 2 to provide this type of financial support in ordinary circumstances, but since the government had agreed to support the other groups, the support for interest groups should be fair and equal.
The Court considered the case Haig v. Canada
Haig v. Canada
Haig v. Canada [1993] 2 S.C.R. 995 is a leading Supreme Court of Canada decision on the protection of the right to vote under section 3 of the Canadian Charter of Rights and Freedoms.-Background:...
, which had also seen some positive claims under section 2 in relation to the Charlottetown Accord. NWAC believed Haig dictated that if expression were to be supported by the government, it should be fair and the Charter should apply, and that section 28 reinforced NWAC's claim. The Court, however, argued that firstly, funding for diverse groups could not be the rule with every governmental study, or "the ramifications on government spending would be far reaching indeed." They also quoted a United States Supreme Court free speech case, in which it was noted that the government is engaged in many studies and does much, and if the Constitution was applied to make sure everyone is represented in the process, the process would be slow. If positive obligations under section 2 are rare, then, the Court noted that it was never actually proven that the AFN, NCC, ITC and MNC represent Aboriginal men over Aboriginal women, or that these groups were pushing for self-governments that would favour Aboriginal men. The ITC, for example, not only denied that the ITC represented Inuit
Inuit
The Inuit are a group of culturally similar indigenous peoples inhabiting the Arctic regions of Canada , Denmark , Russia and the United States . Inuit means “the people” in the Inuktitut language...
men above women, but that NWAC itself did not represent Inuit women, as this was the role of the group Pauktuutit
Pauktuutit
Pauktuutit is an organization in Canada that represents Inuit women. It was officially started in 1984 and is headquartered in Ottawa for easier access to the Parliament of Canada. Every Canadian Inuit woman is considered to be a member of Pauktuutit...
. The Court also believed that the AFN, NCC, ITC and MNC could carry NWAC's concerns to the discussions.
The Court briefly dismissed challenges under section 15, as these were closely related to those under section 2. Indeed, the Court wrote that NWAC's "contentions regarding ss. 2(b) and 28 of the Charter are better characterized as a s. 15 Charter argument." The Court also briefly dismissed claims under section 35
Section Thirty-five of the Constitution Act, 1982
Section thirty-five of the Constitution Act, 1982 provides constitutional protection to the aboriginal and treaty rights of Aboriginal peoples in Canada. The section, while within the Constitution Act, 1982 and thus the Constitution of Canada, falls outside the Canadian Charter of Rights and Freedoms...
of the Constitution Act, 1982
Constitution Act, 1982
The Constitution Act, 1982 is a part of the Constitution of Canada. The Act was introduced as part of Canada's process of "patriating" the constitution, introducing several amendments to the British North America Act, 1867, and changing the latter's name in Canada to the Constitution Act, 1867...
, which entrenches Aboriginal rights equally for men and women. As the Court noted, there is no Aboriginal right or treaty right to debate constitutional reform.
Concurrence by L'Heureux-Dube
A separate concurrence was written by Justice Claire L'Heureux-DubeClaire L'Heureux-Dubé
Claire L'Heureux-Dubé, served as a justice on the Supreme Court of Canada from 1987 to 2002. She was the first woman from Quebec and the second woman appointed to this position.- Personal history :...
, who disagreed on how the case Haig v. Canada was interpreted. As she specified, the Haig decision established there is no right to vote in a referendum
Referendums in Canada
National referendums are seldom used in Canada. The first two referendums saw voters in Québec and the rest of Canada take dramatically opposing stands, the third saw most of the voters take a stand dramatically opposed to that of the politicians in power....
under the Charter; this does not mean, however, that it will be unusual that the government be bound by the Charter when it supports expression in other circumstances. The reason why L'Heureux-Dube otherwise supported Sopinka's decision was that she agreed that in this case, NWAC's expression was not suppressed, although NWAC did not receive the treatment it would have preferred.
Concurrence by McLachlin
Justice Beverley McLachlinBeverley McLachlin
Beverley McLachlin, PC is the Chief Justice of Canada, the first woman to hold this position. She also serves as a Deputy of the Governor General of Canada.-Early life:...
also gave a separate concurrence, in which she wrote that "the freedom of governments to choose and fund their advisors on matters of policy is not constrained by the Canadian Charter of Rights and Freedoms" and that these "policy consultations" are different from voting, which Haig was concerned with.