CCF Intervening today in Supreme Court case on whether Indigenous governments are subject to Charter scrutiny

OTTAWA: On February 7 the Supreme Court of Canada is hearing the case of Cindy Dickson v Vuntut Gwitchin First Nation (Yukon Territory). This landmark case will address the scope of section 25 of the Canadian Charter of Rights and Freedoms, and how this provision’s guarantee of rights for Indigenous people interacts with the Charter.

The Canadian Constitution Foundation (CCF) has been granted leave to intervene on the question of the scope of section 25 and how it interacts with the Charter, and will argue for a broad application of the Charter.

“This case is a unique opportunity for the court to clarify the scope of the Indigenous rights guarantees in section 25 of the Charter and how they interact with the other rights guaranteed by the Charter,” said CCF Litigation Director, Christine Van Geyn. “In our intervention we will argue for the Charter to be applied broadly.”

The case involves an appeal of a Yukon Court of Appeal decision in a case brought by an Indigenous woman, Ms. Cindy Dickson. Ms. Dickson is a member of Vuntut Gwitchin (VGFN), a small First Nation located on territory in the far north of the Yukon. Ms. Dickson had sought to stand for election to the Council of VGFN. The Council rejected her candidacy on the basis that she would not relocate to the Settlement Land, a fly-in community called Old Crow approximately 800 km to the North of Whitehorse, if she were elected.

Like many members of VGFN, Ms. Dickson lives in Whitehorse. She has a job in Whitehorse, and her son is hypoglycemic and needs to be near a full-service hospital. Old Crow does not have a full-service hospital.

For these reasons, as well as other socio-economic reasons, Ms. Dickson is not willing to relocate to Old Crow. However, the VGFN Constitution contains a requirement that any member of the VGFN’s Council must reside on the “Settlement Land” – effectively, in Old Crow. An individual who does not already reside on Settlement Land must relocate within 14 days of election day.

The Council rejected her candidacy on the basis that she would not relocate, and she brought a section 15 Charter claim for discrimination.

The Supreme Court held in Corbiere that “Aboriginality residence” as it pertained to whether an Aboriginal band member lives on or off reserve is an “analogous ground” for purposes of section 15 of the Charter.

The Yukon Court of Appeal found that the residency requirement was a section 15 Charter violation, but that it could not be remedied because of section 25 of the Charter.

In other words, this self-governing First Nation was shielded from Charter scrutiny.

“In this intervention we will argue that the purpose of section 25, when read in context, is to ensure the Charter is not used as a sword by non-Indigenous peoples to deny the special status of or a benefit for Indigenous peoples. It is primarily concerned with precluding s. 15 claims by non-Indigenous peoples. Its purpose is not to shield all Indigenous government conduct from Charter scrutiny. We will argue that the purpose of section 25 is to recognize that, beyond the Charter, Indigenous peoples have additional rights. In that sense, it is akin to section 26 of the Charter, which recognizes the possibility of other rights beyond those entrenched in the Charter. We will argue that section 25 does not deprive an Indigenous person, like Ms. Dickson, from making a Charter claim against an Indigenous government, or indeed any other level of government,” continued Van Geyn. “We look forward to providing perspective on the development of the law on section 25, and advocating for the broad application of Charter guaranteed rights and freedoms,” concluded Van Geyn.

The CCF is represented in this intervention by Bryn Gray, Jesse Hartery and Sherry Ghaly of McCarthy Tétrault.

The Canadian Constitution Foundation (CCF) is a registered charity, independent and non-partisan. We defend the constitutional rights and freedoms of Canadians in the courts of law and public opinion.

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