R v Sharma and Contextual Blindness

par Caitlin Wardrop

(disponible uniquement en anglais)

The Supreme Court of Canada (SCC)’s decision in R v Sharma¹ brings renewed questions about the future of s. 15(1) jurisprudence and the understanding of equality at Canada’s highest court. The decision highlights a concerning trend of the SCC ignoring contextual factors that call for changes in the equality analysis. In particular, the SCC has thus far failed to sufficiently engage with the unique considerations that arise from discrimination claims on the basis of Indigeneity. Using R v Sharma as a case study, this paper proposes that reconciliation and colonialism demand deliberate consideration when applying the established equality rights doctrine. I propose primarily that the honour of the Crown has application to s. 15(1) of the Charter of Rights and Freedoms² (hereafter “the Charter”) and should inform the analysis. This paper will proceed in three parts: first, it will explain why these claims should be treated differently; second, it will lay out three ways in which the s. 15(1) should be altered in this context; and third, it will address some counterarguments.

I. Why should we treat s. 15 claims on the basis of Indigeneity differently?

Contextual Inquiry

Equality is an inherently contextual concept. As put by Joshua Sealy-Harrington, “a clear legal test for equality is impossible, as it should be”.³ Oppression takes on new meanings and new forms in different contexts; it is a “fluid mischief predicated on social context and hierarchy”.⁴ It is imperative that our equality analysis under s. 15 of the Charter be sufficiently flexible and adaptable to respond to the reality of how discrimination operates. Whether a particular factual scenario is unequal under s. 15 will always be a contextual inquiry, with consideration for the particular facet of systemic discrimination that has reared its head in the circumstance at hand.

The SCC is no stranger to the amorphous nature of equality. In the very first s. 15 equality case, Andrews v Law Society of British Columbia, the Court recognized that equality is “an elusive concept” that “lacks precise definition”.⁵ The SCC has also recognized that certain Charter-recognized grounds of discrimination must be treated differently than others, with regard to their own unique considerations. For example, the SCC has described the unique context in which discrimination based on disability operates. The Court acknowledged the fact that discrimination based on disability often occurs in effect, by virtue of “forc[ing] the individual to sink or swim within the mainstream environment”.⁶ Thus, in Eaton v Brant County Board of Education, the Court found that assessing the presence of stereotyping – at that point a central component of the s. 15(1) analysis – was “simply inappropriate” in the context of adverse-effects discrimination based on disability, given that it is identical treatment, not the attribution of untrue and stereotypical characteristics, that creates discrimination based on disability.⁷ A vision of s. 15(1) that reflects the lived experiences of those facing discrimination is one that does not shy away from the complexity and uncertainty of equality; it embraces it. This is in line with the vision of substantive equality that has been championed by the SCC,⁸ which recognizes that different treatment is often required to achieve true equality.

This contextual approach to equality rights indicates a need to consider the unique aspects of discrimination claims based on Indigeneity. As was recognized by Justice L’Heureux-Dubé in her minority opinion in Corbière v Canada (Minister of Indian and Northern Affairs), “the contextual approach to section 15 requires that the equality analysis of provisions relating to Aboriginal people must always proceed with consideration of and respect for Aboriginal heritage and distinctiveness”.⁹ It has been widely recognized in Canadian law that the nature of the relationship between Indigenous Peoples and the Canadian Government is sui generis.¹⁰ This relationship is characterized by the history of colonialism in Canada, whereby the Canadian Government systematically and violently dispossessed Indigenous Peoples of their lands, forced them to assimilate to European culture by outlawing Indigenous traditions and practices, stripped them of legal rights, and stole Indigenous children and put them in residential schools where they suffered extreme abuse, amongst other atrocities.¹¹ Colonialism continues to impact Indigenous Peoples today, who face disproportionately high levels of poverty, suicide, substance abuse, incarceration, victimization, and children in foster care.¹² This history of colonialism and its modern-day manifestations give rise to unique legal considerations and duties.¹³

The Honour of the Crown

From this sui generis relationship between the Crown and Indigenous Peoples arises the principle of the honour of the Crown.¹⁴ This unwritten principle is based on British notions of noblesse and recognizes that the imbalanced nature of the relationship between the Crown and Indigenous Peoples gives rise to an obligation to treat Indigenous Peoples fairly and honourably.¹⁵ Thus far, the honour of the Crown has been generally understood as applying to the Aboriginal and treaty rights enshrined in s. 35 of the Constitution Act 1982, which are held collectively, rather than to individual rights that are typically protected under the Charter. Nevertheless, a wider application of the honour of the Crown has the potential to realize its latent instrumental value. Indeed, the SCC has articulated the honour of the Crown as a broad duty; it is “always at stake in [the government’s] dealings with Indigenous Peoples, whether through the exercise of legislative power or executive authority”.¹⁶

The honour of the Crown has been said to be an “important anchor” for constitutional rights broadly,¹⁷ not simply those protected under s. 35 of the Charter. While the vast majority of the invocations of the honour of the Crown have occurred in the context of s. 35, its use has not been strictly limited to this constitutional provision. In Manitoba Métis Federation, the Court applied the principle of the honour of the Crown in adjudicating a claim based on the delay to apply promises set out in the Manitoba Act, 1870, a separate constitutional document.¹⁸ The SCC has also made clear that the honour of the Crown does not find its source in s. 35 of the Constitution Act, 1982.¹⁹ Rather, this principle is a pre-existing duty that preceded the Constitution itself, which gives life to constitutional obligations adopted thereafter.²⁰ If the honour of the Crown is a constitutional principle and is always at stake in dealings with Indigenous Peoples,²¹ why should the government be permitted to shirk this duty when it engages with the individual rights of Indigenous Peoples under the Charter?

Applying the honour of the Crown to the government’s dealings with individuals under s. 15 would give effect to the very purpose of the duty. The honour of the Crown is understood as arising from the assertion of Crown sovereignty over the land we now call Canada.²² This principle “recognizes the impact of the superimposition of European laws and customs on pre-existing Aboriginal societies” and that “Aboriginal peoples were here first, and they were never conquered […] yet, they became subject to a legal system that they did not share.”²³ The source of this duty indicates a broader application of the honour of the Crown. The imposition of a colonial system of power, governance, and law did not only impact the collective Aboriginal rights of Indigenous groups, but also the individual lives and rights of Indigenous persons. In the present day, colonialism continues to create impacts that are felt not only on a collective level, but at the individual level too. If “the ultimate purpose of the honour of the Crown is the reconciliation of pre-existing Aboriginal societies with the assertion of Canadian sovereignty”²⁴, then it must also be concerned with individual equality.

The honour of the Crown has been said to “giv[e] rise to different duties in different circumstances”.²⁵ This paper argues that it gives rise to particular duties in the sphere of equality rights. Acting honourably must mean treating Indigenous Peoples equally to others, on both a group and an individual level. Because the honour of the Crown generally does not give rise to an independent cause for action,²⁶ it may instead inform and shape the application of existing s. 15(1) rights. Doing so ensures that the honour of the Crown “is not a mere incantation, but rather a core precept that finds its application in concrete practices”.²⁷

II. How should the s. 15(1) analysis be altered in this context?

This paper proposes three alterations to the s. 15(1) analysis to give effect to the contextual factors outlined above, and, principally, to the honour of the Crown. Specifically, changes are required to the evidentiary burden, the treatment of ameliorative programs, and the application of deference.²⁸

In illustrating the need for these changes, R v Sharma is used as a case study. This caseinvolved a Charter challenge to 2012 amendments to the Criminal Code, which removed the ability of a judge to grant a conditional sentence for select “serious” offences, as laid out in the then-new s. 742.1 of the Code.²⁹ The claimant, an Indigenous woman, had been convicted of importing a Schedule I substance contrary to s. 6(1) of the Controlled Drugs and Substances Act, an offence that fell within the list of offences exempted from conditional sentences.³⁰ Ms. Sharma challenged the limits placed on these sentences under s. 7 and s. 15(1) of the Charter, claiming that they had a disproportionate impact on Indigenous offenders.

i. The Evidentiary Burden

At the first stage of the s. 15(1) test, the claimant must demonstrate that the law, on its face or in its impact, creates a distinction on an enumerated or analogous ground. To take into account the particular situation of Indigenous claimants, the evidentiary burden placed on s. 15(1) claimants at this first stage must recognize the systemic nature of colonialism.

While Charter equality jurisprudence has emphasized the nature of discrimination as systemic “from the outset”, most Charter litigation has presented isolated concerns of direct discrimination, allowing the Court to resolve claims without considering the more complex and systemic aspects of inequality.³¹ As has been stated by critics, “the Court struggles to shed formal equality as the paradigmatic case which in turn impairs the Court’s ability to grapple with systemic discrimination.”³² A rare positive example of the Court’s engagement with systemic discrimination can be found in Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux (“Alliance”), where the majority accepted that systemic sex discrimination³³ was real and could continue to operate – and even be exacerbated – in a workplace without male comparators.³⁴ This treatment of systemic discrimination as real is similarly reflected in the evidentiary burden outlined in Fraser v Canada (Attorney General) (“Fraser”). Under the Fraser formulation, a flexible approach is taken to the evidence required.³⁵ Two types of evidence are characterized as being helpful: evidence of the situation of the claimant group and evidence of the outcomes that the impugned law or policy has produced in practice.³⁶ However, notably, both are not strictly required.³⁷ In contrast, the application of the evidentiary burden on Indigenous claimants has thus far failed to engage critically with the ways in which colonialism may manifest in the evidentiary record.

The Court in Sharma takes a decisive step away from the approach in Alliance and Fraser to apply a demanding and formalistic evidentiary standard. The evidentiary record in Sharma included strong evidence of the vast over-incarceration of Indigenous women.³⁸ It also included evidence of the particular circumstances of Ms. Sharma: she had become a single mother at the age of 17, she had few supports, she was in poverty, she was the descendant of a residential school survivor, her mother had spent time in foster care, and she had been sexually assaulted.³⁹ Despite this evidence, the majority of the SCC found that she had not met the evidentiary standard required to meet the first step of the s. 15(1) test. The majority concluded that there was insufficient evidence that the removal of conditional sentences resulted in a disproportionate impact on Indigenous Peoples convicted of the particular offences at issue.⁴⁰ What can be made of this? Rather than recognizing the ways in which a systemic form of oppression (colonialism) manifests in a particular context (prisons) and is being experienced by a particular individual (the claimant), the majority calls for minute levels of statistical disparity. By requiring proof of a disproportionate number of Indigenous offenders being convicted of these specific offences, the majority overlooks the reality of how colonialism operates.

A scientific analysis of a particular marker of disadvantage in every narrow context may not find a statistical disparity, just as it may not be present for every individual. It is imperative that we acknowledge and address the multifaceted nature of systemic oppression, which can manifest in different ways and intensities for different individuals and communities. As observed by Sealy-Harrington, “no matter the specific site of subordination, addressing inequality is first of all a naming process – a process of ‘seeing’ that is as textured as our society”.⁴¹ A microscopic analysis provides an incomplete picture.

Even if Indigenous individuals are incarcerated less frequently for offences listed in s. 742.1 rather than other offences, this cannot negate the structural factors that lead to the phenomenon of over-incarceration more broadly. Indigenous Peoples are not overrepresented in the criminal justice system due to chance. The Royal Commission on Aboriginal Peoples identifies the main causes of the overrepresentation of Indigenous People sin the criminal justice system as the intergenerational impacts of the residential school experience and continued impacts of colonialism, as well as socio-economic marginalization and discrimination.⁴² These causes correspond with the very structural factors that were present in Ms. Sharma’s life. Thus, the majority’s opinion ignores the qualitative aspects of colonialism, focusing narrowly on quantitative data. It fails to recognize prisons as arenas of subordination, where the requirement at this first stage of the test, a “disproportionate impact”,⁴³ will necessarily be felt by Indigenous offenders. Indeed, as was recognized by the BC Civil Liberties Association in their intervener’s factum, “[g]iven the disproportionate number of Indigenous people affected by a criminal justice system that was imposed upon them without any consideration or accommodation of their particular circumstances, there is no reason to shy away from the proposition that a law relating to the operation of this system will meet the first prong of the s 15 analysis.”⁴⁴ It is impossible, though the majority opinion endeavours, to divorce the conditional sentencing regime and Indigenous individuals convicted of the s. 742.1 crimes from the broader systems at play.

This logic does not entirely originate in the Sharma decision. The Court’s approach in Kahkewistahaw First Nation v. Taypotat,⁴⁵ seven years before Sharma, mirrors aspects of this approach. In Taypotat, pursuant to s. 15(1) of the Charter, the claimant challenged the education requirements in the Kahkewistahaw Election Code for candidates who wished to be Chief or a Band Councillor. The SCC found no evidence that the education requirement in the Election Act drew a distinction based on age, residence on reserve, or both.⁴⁶ In making this finding, Justice Abella pointed to the lack of statistical evidence specifically tailored to the Kahkewistahaw First Nation, rejecting provincial and national-wide age and educational statistics.⁴⁷

While this particularized approach may make more sense in the context of a specific First Nation’s Election Code, the principle is again troubling. Even if the necessary data were available for this specific First Nation (which it very well may not be), a requirement for statistical disparity in a population of approximately 2,000 people⁴⁸ ignores the fact that individual members of that First Nation may suffer from certain harms while others do not. Indeed, the Court declined to consider the full context, including the fact that lower educational success is tied to residential school survivors or descendants of residential school survivors, despite this evidence being raised by the claimant.⁴⁹ In other words, individuals in a disadvantaged group may still suffer challenges that stem from their group’s disadvantage, even if other group members immediately surrounding them do not. In some ways, this simply calls out for an intersectional approach, as some critics of Taypotat have identified.⁵⁰ But even in the absence of an intersecting identity marker such as a family history with residential schools, an Indigenous person’s oppression in a colonial system does not disappear simply because those in their immediate vicinity are achieving positive outcomes despite adversity.

Viewed through the honour of the Crown, this narrow interpretation of the evidentiary burden in both Sharma and Taypotat falls short of the duties and standards required. The honour of the Crown recognizes that rights must be interpreted in a generous manner and that constitutional obligations to Indigenous Peoples must be given a broad, purposive interpretation.⁵¹ A narrow application of equality rights is at odds with the honour of the Crown, and ignores the purpose of the first step of the s. 15(1) test, which was never intended to be an onerous evidentiary requirement.⁵² While “Charter decisions cannot be based upon the unsupported hypotheses of enthusiastic counsel”,⁵³ surely broad statistics that demonstrate structural harm, supplemented by individual evidence that makes a connection to this structural harm, must be sufficient to satisfy this requirement. To hold otherwise would be contrary to the spirit of the honour of the Crown, which requires broad and purposive interpretation of government promises.⁵⁴

ii. Ameliorative Programs

A second area of s. 15(1) that requires rethinking for claims based on Indigeneity is the treatment of ameliorative programs. The issue of ameliorative programs featured heavily in the Sharma decision.⁵⁵ Justices Brown and Rowe emphatically affirmed that it is insufficient, for the purposes of the first step of s. 15, to demonstrate that a law restricts an ameliorative program.⁵⁶

Implicit within the framing of s. 15(1) is the idea that the legislature is not directly responsible for social inequalities; it can merely “reinforce, perpetuate, or exacerbate” them.⁵⁷ The Court has stated clearly that “we must take care to distinguish between effects which are wholly caused, or are contributed to, by an impugned provision, and those social circumstances which exist independently of such a provision”.⁵⁸ Thus, in cases such as Symes v Canada (“Symes”), the Court has concluded that social phenomena that exist outside of state action – such as the fact that women disproportionately incur the social costs of child care – is not an issue in the ambit of s. 15(1).⁵⁹ It is this framing that underlies the SCC’s treatment of ameliorative programs and requires reconsideration for claims based on Indigeneity.

While Justice Abella’s views differ from Justices Brown and Rowe on the extent to which the courts may analyze the discriminatory impactof the removal or restriction of an ameliorative program, the general principle that the very act of removing or restricting an ameliorative program does not violate s. 15(1) is present in both Alliance and Centrale des syndicats du Québec v. Quebec (Attorney General) (“Centrale”), as well as in Sharma. In Alliance, Justice Abella concluded that s. 15(1) does not bind the legislature to its current policies.⁶⁰ Once Québec passed pay equality provisions, it was not “constitutionally required to keep them on the books”.⁶¹ Rather, assessed on their own and regardless of the prior legislative scheme, the provisions replacing the previous pay equity scheme “perpetuate[d] the pre-existing disadvantage of women”.⁶² The underlying logic to this principle is that the government was not responsible for “creating” certain social phenomena, such as gender inequality (though it may have certainly played a key role in its “perpetuation”). It was therefore not a constitutional imperative for the legislature to undertake such a program to remedy pay discrimination in the first place.⁶³ It is, as was said in Symes, a “social cost” that exists “outside” of the legislation.⁶⁴ Therefore, in making the legislative – not constitutional – choice to take steps to remedy gender inequality, which is an external social evil, the legislature cannot be constitutionally bound by its policies to do so. It can freely repeal or amend ameliorative policies, provided that this does not perpetuate, reinforce, or exacerbate disadvantage. As the logic goes, the legislature has voluntarily made the political choice to take steps to address a widespread global issue that it is not responsible for creating. The judiciary has no role in holding the legislature to this.

Accordingly, even if we take the findings by the majority in Sharma as being consonant with the principles in Alliance and Centrale, the Court failed to consider its incongruence with the context of colonial harm in Canada. This same logic is simply inapplicable to the context of colonialism and harm to Indigenous Peoples. Unlike a phenomenon like gender inequality, or even racism more broadly, the systemic oppression of Indigenous Peoples in Canada finds its source unequivocally in the actions of the Crown. This harm can be directly attributed to colonialism undertaken by the Canadian state.⁶⁵

The same rationale for allowing the legislature to freely repeal ameliorative policies thus fails for claims tied to Indigeneity. Justices Brown and Rowe characterize the position that repealing or amending conditional sentences would contravene s. 15(1) as “novel”.⁶⁶ However, the particular context at issue is similarly novel. It cannot be treated the same way as other social inequalities that exist outside the sphere of state action. Removing ameliorative benefits that were provided to directly address the harm “for which the state is directly responsible” cannot be in line with the high duty placed on the Crown towards Indigenous Peoples. The honour of the Crown, as a principle, is grounded in the very notion that historic harm can give rise to modern duties. Thus, the responsibility for this historic harm calls for a critical look at the modern treatment of ameliorative programs directed towards Indigenous Peoples. In this unique and novel context, limiting or removing such an ameliorative program may very well be sufficient, in itself, to contravene at least the first step of s. 15(1).

iii. Deference and the Oakes Test

A final re-consideration must occur in the assessment of proportionality under s. 1 of the Charter. It is well-recognized that different contextual factors may come into play in determining whether an infringement can be “demonstrably justified in a free and democratic society”.⁶⁷ Several contextual factors for deference have been recognized at this stage, including the presence of competing rights, conflicting social science evidence, and social groups vying for scarce resources.⁶⁸ While the majority in Sharma did not resort to s. 1, the dissenting opinion briefly assessed the justifiability of the removal of conditional sentences under s. 1. In doing so, the dissenting justices did not identify any contextual factors that impacted their application of s. 1.⁶⁹

How should the contextual factors be assessed for claims related to Indigeneity at the s. 1 stage? The honour of the Crown again may have a role to play at this step of the analysis. There is a jurisprudential basis for the position that constitutional principles may impact the application of deference applied in the s. 1 analysis. For example, the unwritten constitutional principle of democracy, recognized in the Reference re Secession of Quebec (“Secession Reference”),⁷⁰ has played a role in the application of deference in a s. 2(b) freedom of expression context. In conducting the s. 1 analysis in Harper v Canada (AG), both the majority and minority opinions recognized political speech as being of high value for its connection to the principle of democracy.⁷¹ The role of political speech in furthering of the principle of democracy thus warrants less deference to be given to the government in its restriction of it.⁷² Similarly, speech which undermines democratic values, such as hate speech, calls for higher levels of deference to be according to the government in its restriction of such speech.⁷³

Like democracy, the honour of the Crown is characterized as an unwritten constitutional principle.⁷⁴ In fact, in a minority decision in Beckman v. Little Salmon/Carmacks First Nation, Justice Deschamps described the honour of the Crown as the fifth core principle underlying the constitution, in addition to the four recognized in the Secession Reference.⁷⁵ The honour of the Crown therefore can, and should, play a role in interpreting the level of deference owed to the government when assessing proportionality in the context of rights infringements, in a similar fashion as the principle of democracy in the s. 2(b) context. For example, if the rights infringement reflected a complete absence of any attempt by the legislature to uphold the honour of the Crown, the government should not be afforded deference at the s. 1 stage, just as a limit to political speech is not given deference. A similar consideration already finds support in a similar justification assessment in the context of s. 35 aboriginal rights. When determining whether a limit on s. 35 aboriginal rights is justified, the Court must consider whether the means chosen respect the honour of the Crown.⁷⁶ If we are to accept, as this paper proposes, that the honour of the Crown is just as much at stake in the context of individual rights, a similar consideration is needed for the s. 1 analysis.

III. Addressing some counterarguments

The “Floodgates” Argument

A first counterargument to a broader interpretation of Indigenous rights under s. 15(1) is the concern with “floodgates”. This concern arose in Sharma, in particular with reference to restricting or removing ameliorative programs in the criminal justice sphere. As put by Justices Brown and Rowe, “Parliament would be prevented from repealing or amending existing ameliorative policies in many cases, unless courts are persuaded that such changes are justified under s. 1.”⁷⁷ This expansion is framed as a cause for concern. But must it be so? If undertaking the s. 15(1) analysis with respect for the contextual nature of systemic oppression means uncovering more instances of discrimination, that is the sign of a functioning equality doctrine, not a failing one. As was put by the BC Civil Liberties Association in their intervener’s factum, “any system which affects a protected group as disproportionately as the criminal justice system affects Indigenous people is at the very least constitutionally suspect and warrants scrutiny under s 15 of the Charter.”⁷⁸ Certainly, there are practical concerns relating to access to justice whenever new avenues for litigation are opened. However, the recognition of Constitutional rights cannot be dependent on an operational cost/benefit analysis.

Moreover, this re-framing of s. 15(1) does not guarantee “automatic” infringements of the Charter. Certainly, even in the context of amendments to criminal law, a distinction on an analogous or enumerated ground will not inescapably amount to discrimination. The test prevails as a two-part assessment.⁷⁹ Moreover, there remains the ability of the government to justify infringements under s. 1 of the Charter. Pressing concerns raised in the criminal justice context, such as the need to protect communities and deter harmful behaviour, certainly rise to the level of being “pressing and substantial” purposes, leaving open the possibility that such infringements could be justified under the proportionality assessment. A more robust proportionality analysis with a less stringent assessment for rights-infringement is often the case for other Charter rights.⁸⁰

Separation of powers

A second key concern with this wider view of equality rights is that it constitutes an overstep into the realm of politics. This concern arose in Sharma: “much of the controversy in this case derives from the risk of defining the right too broadly, which, on some views, could undermine the separation of powers”.⁸¹ However, as recognized by Sealy-Harrington, “the adjudicative review of substantive inequality is unavoidably policy-focussed”.⁸² The hunt for an apolitical equality analysis is futile. Simply attempting to ascertain the meaning of “discrimination” or “equality” is inextricably political, despite their presentation as self-evident concepts in Sharma. There is an underlying assumption in this argument that an expansive view of equality rights, through its downstream practical impacts, will dip into the realm of policymaking. Absent in this concern is an appreciation of the equally real practical impacts of a narrow conception of equality rights and the political nature of that choice as well. The idea of a “tidy law/policy dichotomy” remains a myth.⁸³

The calls for doctrinal clarity that underlie the majority argument in Sharma similarly rely on the false prospect of “neutral” standards. This concern arises particularly in relation to the need for the claimant to provide “clear” evidence and for the Court to avoid delving into sociological or philosophical assessments and rely instead on statistical and scientific evidence. Indeed, Justices Brown and Rowe defend their interpretation of the evidentiary burden with the need to “bring clarity and predictability” to the s. 15(1) test.⁸⁴ However, as Sealy-Harrington recognizes, “[s]uch jurists reach vainly for an equality law that will rise above a certain threshold of clarity – or, relatedly, fall below a certain threshold of context – weakening the ability for s. 15 to respond to most experiences of inequality in society.”⁸⁵

The majority’s focus on thiThe majority’s focus on this “numbers game” grants the ability to not confront the uncomfortable truth that the criminal justice system, as a whole, systematically creates distinctions on the basis of race.⁸⁶As stated by Fay Faraday, “[e]quality litigation […] gives rise to feelings of discomfort precisely because it confronts how law operates as the tool that institutionalizes power and privilege in society.”⁸⁷ Opposing a greater interrogation of where power and privilege exist in society for the benefit of greater clarity is itself an ideological position.⁸⁸ As put by Sealy-Harrington, “[v]iewed as such, fixation on methodology is its own ideology, […] through which social dominance – ‘white, male, and economically secure’ – is reified in law.”⁸⁹ The search for equality cannot be dissuaded by the complexity that underlies it.

IV. Conclusion

The time has come for the SCC to move away from contextual blindness in assessing claims of discrimination and embrace the complexity of substantive equality. In particular, it is imperative that courts consider the specific and unique circumstances of Indigenous claimants. Looking at the established equality rights doctrine through the lens of the honour of the Crown reveals some important alterations that are required to the evidentiary burden, the treatment of ameliorative programs, and the deference accorded to the legislature. While the honour of the Crown is not without its limits and its valid critiques,⁹⁰ its use in the context of s. 15(1) would be a step in the right direction, acknowledging the reality of colonialism and the sui generis nature of the government’s interactions with Indigenous Peoples, in all forms and in all settings.

LEGISLATION

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), 1982, c.11.

Criminal Code, RSC 1985, c C-46

JURISPRUDENCE

Andrews v Law Society (British Columbia), [1989] 1 SCR 143, 34 BCLR (2d) 27

Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53

Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18

Corbiere v Canada (Minister of Indian and Northern Affairs), [1999] 2 SCR 203, 173 D.L.R. (4^th) 1

Dolphin Delivery Ltd v RWDSU Local 580 [1986] 2 SCR 573, 33 DLR (4^th) 174

Eaton v. Brant County Board of Education, [1997] 1 SCR 241, 142 DLR (4^th) 385

Fraser v Canada (Attorney General) 2020 SCC 28

Guerin v The Queen, [1984] 2 SCR 335, 13 DLR (4^th) 321

Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73

Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 SCR 927, 58 DLR (4^th) 577

Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30

MacKay v Manitoba, [1989] 2 SCR 357, 61 DLR (4^th) 385.

Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14

Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40

Mitchell v MNR, 2001 SCC 33

Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17

R v Badger, [1996] 1 SCR 771, 133 DLR (4^th) 324

R v Keegstra, [1990] 3 SCR 697 at 765-766, SCJ No. 131

R v Sharma, 2022 SCC 39

R v Sparrow, [1990] 1 SCR 1075, 70 DLR (4^th) 385

Symes v Canada, [1993] 4 SCR 695, 110 DLR (4^th) 470

Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74

Toronto (City) v Ontario (Attorney General), 2021 SCC 34

SECONDARY MATERIAL

Alhmidi, Maan, “Trudeau’s acknowledgment of Indigenous genocide could have legal impacts: experts”, CTV News (5 June 2021).

Clark, Scott, “Overrepresentation of Indigenous People in the Canadian Criminal Justice System” (Government of Canada, 2019).

Factum of the Intervener, the BC Civil Liberties Association, in R v Sharma 2022 SCC 39, SCC Court File No. 39346.

Factum of the Respondent, Louis Taypotat, in Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, SCC File No. 35518.

Faraday, Fay, “One Step Forward, Two Steps Back? Substantive Equality, Systemic Discrimination and Pay Equity at the Supreme Court of Canada” (2020), Supreme Court Law Review 94.

Government of Canada, “Statement of apology to former students of Indian Residential Schools”, (3 November 2008).

Hamilton, Jonnette Watson & Jennifer Koshan, “Kahkewistahaw First Nation v. Taypotat: An Arbitrary Approach to Discrimination” (2016) 79 Supreme Court Law Rev Osgoode’s Annual Constitutional Cases Conference.

Ling, Justin, “Houses of hate: How Canada’s prison system is broken”, Macleans (28 February 2021).

McMorrow, Thomas, “Upholding the Honour of the Crown” (2018) 35 Windsor YB Access to Justice 311.

Rai Reece, “Carceral Redlining: White Supremacy is a Weapon of Mass Incarceration for Indigenous and Black Peoples in Canada”, Policy Brief 68 (Yellowhead Institute, 2020),

Sealy-Harrington, Joshua, “The Alchemy of Equality Rights Special Issue: Fraser v Canada (AG): Visions on Equality” (2021) 30:2 Const Forum 53–84.

Slattery, Brian, “Aboriginal Rights and the Honour of the Crown” (2005) 29:1 Supreme Court L Rev.

Statistics Canada (2022) “Adult and youth correctional statistics 2020/2021”.

Truth and Reconciliation Commission of Canada, “What We Have Learned: Principles of Truth and Reconciliation” (2015).

Valverde, Mariana, “‘The Honour of the Crown is at Stake’: Aboriginal Land Claims Litigation and the Epistemology of Sovereignty” (2011) 1:3 UC Irvine L Rev 555

Williams, Patricia J, “The Alchemy of Race and Rights” (Cambridge, Mass: Harvard University Press, 1991).

Endnotes