Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
This is the opening of the Equality Rights, Section 15, of the Canadian Charter of Rights and Freedoms. This section codifies the idea that every single person in Canada has the same rights, and is subject to the same laws. Everyone in Canada is, in the most basic terms, “equal”.
The second part of Section 15 of the CCRF goes on to say that:
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.
Section 15(2) basically outlines that the government can make laws to improve the situation of particularly disadvantaged groups. While this may seem like a perfectly reasonable idea, it also has a huge potential for abuse. The ability to make exceptions, and special distinctions for one group means that to make it fair an exemption of some kind needs to be made for every group. This issue would end up causing a logistical and legislative nightmare. A better solution would be to respect every groups equal rights rather than trying to cater to each individual group.
Along with the above exemptions to the Charter, there is a very important there is a very important equality exemption which affects Canadian Indians.
Section 25 makes sure to mention that some people living in Canada are to be considered more equal than others:
The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada.
Section 25 means that even though Section 15(1) clearly sets out that everyone is to be equal, there are to be exceptions to even the most fundamental of the Charters protections.
While the protections outlined in Section 25 can be interpreted to be a well-intended attempt to protect Indian rights, it is hard to believe that they need an exemption to confirm their protection as their equality rights are already so well protected under section 15(1).
The Criminal Code of Canada, the law that outlines actions and punishments for every indictable offence in Canada. Section 718.2 (e) outlines another equality double standard which looks favourably on Indians:
A court that imposes a sentence shall also take into consideration the following principles:
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders [emphasis added].
The idea that the law governing the sentencing of criminals in Canada should include a clause with directs the judge and prosecutor to consider “with particular attention the circumstances of aboriginal offenders” has huge ramifications. The inclusion of such a racist clause in the law which governs the legal detainment of citizens and the denial of their constitutional right to freedom of movement speaks to a much larger issue than just minor exceptions to basic equality rights.
The question is why this section of the Criminal Code of Canada wants the circumstances of Indians to be looked at differently. Is this law trying to say that the only people in Canada that are facing adversity are Indians? Are the rest of Canadians somehow missing some part of Section 15(1) of the CCRF where we are all “equal before and under the law”?
Another issue involving Indians in Canada is the Indian Act. This law is the foundation for nearly every aspect of the Canadian Governments interactions with Indians in Canada. This law has been controversial from its inception, and was even the foundation of the more controversial Apartheid regime in South Africa. There are many issues with the Indian Act which affect the Government of Canada, regular citizens, as well as Indians. There are aspect of the act that are somewhat productive in protecting the rights of Indians in Canada just as much as there are aspect that are derogatory to Indians. Completely repealing the law would be the best way to restore equality and for everyone to move on as a society. Unfortunately, many Indians would prefer if the current law were repealed and replaced with a new one which retains all the exceptional rights and additional benefits, but leaves out any of the current restrictions.
It seems that many people are unaware of the outrageous inequalities in our legal system. Even Canadians who are aware of this disregard towards equal rights are often too apathetic to make any meaningful complaints, too ashamed of their ancestors actions to take a stand for true equality for fear of being labelled a racist, or actually do believe that Indians deserve some form of perpetual reparations for past acts. Regardless of where people stand on the issue the matter remains that while no action is taken towards restoring proper equality rights, our constitution, and the rights it protects, are being eroded by the very existence of these codified inequalities.
