Why Doesn’t the Charter Apply to All Canadians?

The following carefully documented and elegantly written essay was written by Peter Best, a lawyer based in Sudbury, Ontario, and author of the 2018 book There Is No Difference: An Argument for the Abolition of the Indian Reserve System and Special Race-based Laws and Entitlements for Canada’s Indians.

Most discussions of the differential constitutional treatment of indigenous people based on the affirmative action provisions of the Canadian Charter of Rights (Section 15.2) and Freedoms and Section 25 and 35 of our 1982 Constitution focus on the preferential rights granted to aboriginals.

Lost in this discussion is the way recent court rulings have undermined the bedrock concept that all Canadians share the same basic rights as guaranteed by the Charter.

As Best carefully shows on the other side of the pay wall, in place of this fundamental doctrine of equality for all, Canada’s court system seems bent on installing a doctrine of race-based laws, adversely affecting many indigenous people in the process.

In this case, it involves denying indigenous Canadians on reserves rights that the rest of us take for granted. It is now up to the Supreme Court of Canada to decide on a case-by-case basis if such a legal caste system is compatible with a modern, liberal Canada.