CANADA (CANADIAN HUMAN RIGHTS COMMISSION) v CANADA (ATTORNEY GENERAL)
Amnesty International was represented in this case by Justin Safayeni, Stephen Aylward and Maxine Vincelette
WHAT IS THIS CASE ABOUT?
This case involved two groups of people - One group had status under the Indian Act which they could not pass on to their children. The second group were not eligible for status at all. This situation resulted from provisions in the Indian Act that imposed rules on acquisition and conferral of status that were discriminatory.
The first group is the Matson siblings, whose grandmother lost her status when she married a non-status man. While legislation later gave them section 6(2) status, they are currently unable to pass status on to children they have with a non-status person. Had their grandmother never lost her status through the discriminatory policy based on sex, they would have had section 6(1) status. That type of status could be passed on to their children without restriction.
The second group is the Andrews family. Mr. Andrews’ father was voluntarily enfranchised before Mr. Andrews was born which meant Mr. Andrews was born without status. Although legislation introduced later tried to fix that problem, the changes left Mr. Andrews with section 6(2) status and his daughter without any status at all. Had Mr. Andrews’ father never lost status, Mr. Andrews would have been eligible for section 6(1) status and his daughter for section 6(2) status.
The Canadian Human Rights Commission brought a challenge to the legislation to the Canadian Human Rights Tribunal on the Matsons’ and the Andrews’ behalf. The Commission argued that the law was discriminatory. The Tribunal ruled that it did not have the power to decide whether a law itself was discriminatory, but rather only whether a service was delivered in a discriminatory manner. The Commission applied for judicial review of the Tribunal’s decision. The Tribunal's decision was upheld by both, the Federal Court and the Federal Court of Appeal.
On appeal at the Supreme Court of Canada, the decision was once again upheld. The Court agreed with the Tribunal that they were not empowered to adjudicate challenges to the validity of legislation, only claims of human rights-impairing service provision. The act of creating legislation, the Supreme Court held, is not a "service" within the meaning of section 5(a) of the Canadian Human Rights Act.
AMNESTY INTERNATIONAL’S LEGAL CHALLENGE
In its factum, Amnesty International submitted that Canada’s international obligations must be respected in the interpretation and application of section 5(a) of the Canadian Human Rights Act (the “CHRA”). A broad interpretation of the jurisdiction of human rights tribunals is essential to upholding Canada’s international obligations to provide effective remedies for human rights violations. In other words, Amnesty argued that the Tribunal should be found to have the jurisdiction to consider the validity of the legislation itself. Amnesty also submitted that the proper interpretation of s. 5(a) must respect the seriousness of the prohibition against both formal and substantive discrimination on the basis of sex or marital status, and the need for effective remedies where such discrimination occurs. In addition, Amnesty International submitted that discrimination on the basis of sex and marital status in registration under the Indian Act violates Canada’s international human rights obligations.
STATUS OF THE CASE
The Supreme Court found that the Tribunal’s decisions to dismiss the challenges were reasonable. The Court deferred to the Tribunal's expertise over its home statute, the Canadian Human Rights Act, determining whether the decisions made by the Tribunal were reasonable. The Tribunal had interpreted its power as being limited to decide if a “service” was being delivered in an unequal way, not whether the law itself was discriminatory. The applicants had brought a challenge to the Indian Act itself, charging that it was discriminatory. The Supreme Court found the Tribunal's interpretation reasonable, and agreed that the applicants could still challenge the Indian Act under the Canadian Charter of Rights and Freedoms.
FACTUM OF THE INTERVENER, INCOME SECURITY ADVOCACY CENTRE, SUDBURY COMMUNITY LEGAL CLINIC, CHINESE AND SOUTHEAST ASIAN LEGAL CLINIC, COMMUNITY LEGAL ASSISTANCE SOCIETY, and
HIV & AIDS LEGAL CLINIC ONTARIO