Supreme Court case could have far\u002Dreaching implications
However the most fascinating part of the case has turned not on whether or not Dickson’s Section 15 rights were violated by the residency requirement: the lower court held that the 14-day requirement was discriminatory and the Yukon Court of Appeal held that the entire residency requirement was discriminatory. Instead, the most novel part of Dickson’s case is the question of whether or not Indigenous self governments are subject to charter scrutiny at all.
Both lower courts found that although Dickson’s charter rights were breached, Section 25 of the charter operated as an absolute shield to uphold the residency requirement. In other words, this self-governing First Nation was shielded from charter scrutiny. The central question for the Supreme Court is whether Section 25 should shield the residency requirement in spite of its discriminatory effects.
There have been few cases that have dealt directly with Section 25, and the question of whether or not it operates to shield Indigenous governments from charter scrutiny is an important one. Dickson argues that Section 25 does not operate to shield the residency requirement from charter scrutiny while VGFN argues that it does.There were 10 intervenors at the Supreme Court, including the Canadian Constitution Foundation.
The outcome of this case will be significant. If the interpretation of the Yukon Court of Appeal is accepted, it has the potential to create charter-free zones on reserve, treaty, and Aboriginal title lands throughout Canada. This could deprive Indigenous Canadians of the rights and freedoms constitutionally guaranteed to them under the charter, and would effectively reverse key Supreme Court cases, including Corbiere.
Collective rights and interests, including the Indigenous perspective, can still be accounted for under Section 1. These considerations are relevant in assessing charter compliance, not as a bar to the charter’s application. It is possible to recognize the importance of upholding both the collective and individual interests of Indigenous peoples. They are not mutually exclusive.Christine Van Geyn is Litigation Director of the Canadian Constitution Foundation.
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