Alberta v. Cunningham: The Substantive Power of Section 15(2)
Earlier this summer, Chief Justice McLachlin, for a unanimous Supreme Court of Canada, rejected a constitutional equality claim brought by a group of claimants from the Peavine Métis Settlement in Alberta. The decision offers a particularly powerful demonstration of how ss. 15(1) and 15(2) of the Canadian Charter of Rights and Freedoms work together to promote substantive equality. Generally speaking, s. 15(1) requires Canadian governments to treat everyone equally, while s. 15(2) allows Canadian governments to combat inequality by helping out a specific disadvantaged group without fear of violating s. 15(1). The unusual twist in this case, however, is that the claimants – the actual individuals who feel discriminated against – are members of the specific disadvantaged group that the Government of Alberta is trying to help.
Section 35 of the Constitution Act, 1982 identifies three distinct Aboriginal groups: Indians, Métis and Inuit. For all intents and purposes, the passage of the Constitution Act, 1982 marked the first time that Canada had officially recognized the Métis as what McLachlin C.J. refers to as a “distinct rights-holding group.” Anticipating the imminent implications of this unprecedented constitutional recognition, Alberta established a Joint Métis-Government Committee to review the province’s current legislative framework with respect to its Métis population. The committee’s report was released in 1984, recommending that legislation be enacted to preserve the distinct Métis culture. More specifically, it recommended that Métis communities be granted the right to self-govern on a “secure land base.”
After five years of negotiations, the government transferred a few segments of land to Métis communities, and passed a series of legislative pieces aimed at protecting the rights of those communities. The piece of legislative at issue in this case is the Métis Settlements Act (MSA), which provides that a person who is registered as a status Indian or Inuit is not – subject to a few exceptions – eligible to apply for membership in a Métis settlement.
The claimants in this case were official members of the Peavine Métis Settlement. However, when they registered as status Indians to obtain medical benefits under the Indian Act, their Métis membership was revoked, pursuant to the MSA. Essentially, Alberta’s legislative regime required them to pick one status or the other, Indian or Métis. They identified, however, as both. As such, they argued that membership denial due to Indian status constitutes discrimination under s. 15 of the Charter.
While the test for discrimination under s. 15 has flip-flopped over the years, the first step has remained fundamentally the same: does the law create an adverse distinction based on an enumerated or analogous ground? The Crown accepts, in this case, that the answer is yes; drawing a line between Métis and status Indians clearly constitutes a distinction on analogous grounds. This case really turns on the second stage of the test, which provides the Crown with an opportunity to invoke s. 15(2):
Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
The leading case on s. 15(2) is R v. Kapp, 2008 SCC 41. McLachlin C.J.’s analysis follows the majority decision in Kapp (she did write the decision, after all), which identifies two requirements necessary for an otherwise discriminatory law to be justified under s. 15(2).
First, the law must be genuinely ameliorative. That is to say, it must actually be aimed at improving the situation of the disadvantaged group. To answer this question, McLachlin C.J. looks to the overall purpose of the law. So, what is the objective of the MSA? The claimants contended that it was, quite broadly, to benefit all Albertan Métis. McLachlin C.J. reaches a much narrower conclusion, however, finding that the law’s true purpose is to establish a “land base to preserve the Métis identity…as distinct from surrounding Indian cultures.” This determination is at the very core of this case; it is not just about improving the lives of Métis, but about preserving their unique identity as descendants of both Europeans and Indians. It is difficult, at this point, to avoid acknowledging a certain irony in excluding one cultural group (i.e. status Indians) for the purpose of preserving a culture that was itself created by a blending of two cultures.
Second, the adverse distinction must advance the law’s ameliorative purpose. Positive proof is not required, says McLachlin C.J.; the government need only show that it has a “rational” reason for believing that the law will serve the intended ameliorative purpose. As such, the question here becomes: is it rational for the Government of Alberta to conclude that denying status Indian membership to Métis settlements will contribute to the preservation of the unique Métis culture? Not surprisingly, McLachlin C.J. answers this question in the affirmative. She points, in particular, to the “historic uniqueness” of the Métis identity. For centuries, the Métis have struggled to preserve this uniqueness against other dominant Aboriginal groups. The fact that a few people identify themselves as both Métis and Indian, McLachlin C.J. writes, does not erase the historic differences between these two groups.
Ultimately, the Court concludes that the s. 15(2) requirements are satisfied, and that the MSA is therefore justified in the name of substantive equality.
Given their explicit constitutional recognition, it is virtually impossible to argue that the Métis people do not boast a distinct culture worthy of preservation. In fact, it even seems reasonable that the exclusion of one culture might, in certain circumstances, be necessary for the preservation of another. On an individual level, however, there is something unsettling about this approach, as it employs one injustice to rectify another.
Take the claimants, for example. They are legitimate members of a disadvantaged community that the government has decided to help. Does their registration under the Indian Act somehow make them any less disadvantaged? Are they not still the same human beings that the MSA was designed to help? This question is answered, in an entirely legal sense, by McLachlin C.J.’s conclusion that the MSA is not aimed broadly at helping the Métis people, but specifically at preserving their culture. The real-life result, however, is that these individuals are compelled to choose between their two cultural identities. If anything, this choice presents a disadvantage in and of itself.
While certain individuals may be put in difficult situations, the reality is, as McLachlin C.J. makes clear, that the Government of Alberta is justified in taking steps to protect Métis culture. Having said that, this case reflects the unique, and potentially expanding power of s. 15(2) to enable governments to override individual instances of discrimination in the name of a broader, more substantive equality.