Tag Archives: canadian politics

Dehumanization: Archaic Immigration Policies Against Individuals with Disabilities

by Shiva Ivaturi


Discrimination against individuals with disabilities is one of the most invisible forms of discrimination and takes place across societies, particularly countries that have publicly advocated for how open and transparent their immigration policies are. When learning about cruel injustices where families have been torn apart and individuals that are valuable, contributing members of society have faced the threat of deportation based on health, the same countries that are touted as progressive emblems for healthcare equity have significant room to
improve. I have highlighted cases in Canada, Australia, and New Zealand to outline not only how outdated these immigration policies are, but how they fundamentally digress from the more equitable path that society is emphasizing in healthcare today yet are still being implemented.

New Zealand

Just last year in 2022, in New Zealand, a 12-year-old autistic girl from the Philippines was barred from moving to the country with her parents because of immigration policies that reject people with disabilities or illnesses that may present a high cost to the health system (McClure, 2022). The country sets a limit on an immigrant’s cost to the health system and excludes people with a number of “high-cost” conditions, including physical disability, intellectual disability, autistic spectrum disorders, brain injury, multiple sclerosis, and cancers (McClure, 2022). Arianna’s applications to come to New Zealand have been denied thus far, leaving her in the Philippines for the past six years while her parents have lived in New Zealand (McClure, 2022). The case is one of hundreds rejected under New Zealand’s rules. Juliana Carvalho was initially rejected on similar grounds in New Zealand, citing her lupus and paraplegia as concerns to the health care system (McClure, 2022). Carvalho spent seven years challenging the decision, and while the government granted her an exception to be able to stay in the country, there was no fundamental decision to eradicate the policy that resulted in this discrimination taking place to begin with.


In Canada, a policy known as “medical inadmissibility” due to excessive demand allows the government to deny residency to an entire family if even one person in the group has a disability or medical condition that could place “excessive demand” on Canada’s publicly funded health
and social service systems (Blackwell, 2015). In 2015, Asmeeta Burra, a physician in South Africa, and her architect husband had applied to be permanent residents in Canada, planning to settle in British Columbia. However, her son’s autism triggered a medical assessment that concluded the cost of special education for the boy would total about $16,000 a year, which exceeds the annually adjusted average social and medical cost for Canadians, currently about $6,300 (Blackwell, 2015). Immigration officials rejected Dr. Burra’s submission, which led to the denial of the family’s application (Blackwell, 2015). The Canadian government has since made some changes to its immigration rules in 2018, including amending the definition of social services and increasing the cost threshold at which an application for permanent residency can be denied on medical grounds (Fries, 2019). The Council of Canadians with Disabilities has called for the full repeal of the medical inadmissibility regulations, which it sees as discriminatory (Fries, 2019). Moreover, the revised rules have been labeled as only “timid moves” by some activists, such as James Hicks, the national director of the Council of Canadians with Disabilities (Fries, 2019).

Seongjae was born in Australia and has lived there his whole life, but his family’s application for permanent residency under the Regional Sponsored Migration Scheme was rejected in July 2021 due to Seongjae’s medical issues (Chapman, 2022). He lost his hearing when he was two years
old and was diagnosed with autism at two-and-a-half. Although he regained his hearing after ear surgery at age four, the government still deemed him a burden on taxpayers and a threat to public health and safety (Chapman, 2022). Unfortunately, the case of Seongjae is not unique. In 2015,
Maria Sevilla, a nurse who had lived in Townsville, Queensland for eight years, had her skilled visa rejected because her ten-year-old son Tyrone was diagnosed with autism. The government eventually intervened to grant her son a permanent visa, but the migration regulations remained in place (Chapman, 2022). The National Ethnic Disability Alliance reported in 2018 that it saw 10 to 15 cases of families facing deportation every year due to these health requirements, but there are potentially many more (Chapman, 2022). A 2010 parliamentary inquiry that found the health requirement discriminatory to people with disabilities and in need of urgent reform (Truu, 2019). Dr Abdi, an officer at the Ethnic Disability Advocacy Centre in Western Australia, believes the health requirement is a “punishment for a person with a disability” and their family. The health requirement does not consider an applicant’s potential contributions to society (Truu, 2019).


These cases demonstrate the discriminatory policies and practices of countries that prioritize cost savings over the lives and wellbeing of people with disabilities and medical conditions. The United Nations Convention on the Rights of Persons with Disabilities (CRPD) recognizes the inherent dignity of all persons with disabilities and promotes their full and equal participation in society. It also emphasizes that persons with disabilities should not be discriminated against based on their disability, including in the provision of healthcare and social services. Countries like New Zealand, Canada, and Australia are obligated to uphold the principles of the CRPD and ensure that individuals with disabilities and medical conditions are not discriminated against in the immigration process. The policies and practices of these countries must be reformed to remove the discriminatory barriers that prevent individuals with disabilities and medical conditions from accessing care as well as the right to work and live in a place.

In conclusion, the cases of Arianna, Juliana, Asmeeta, Seongjae, and others highlight the urgent need for reform in immigration policies that discriminate against individuals with disabilities and medical conditions. These policies and practices violate the principles of the CRPD and
perpetuate systemic discrimination against people with disabilities. It is imperative that governments take action to reform their immigration policies and ensure that all individuals are treated with the dignity and respect they deserve.

Works Cited

Blackwell, T. (2015, January 12). South African doctor’s immigration bid rejected because her autistic … National Post. Retrieved April 1, 2023, from

Chapman, E. (2022, December 29). Australia: Korean family threatened with deportation because son has autism. World Socialist Web Site. Retrieved April 1, 2023, from https://www.wsws.org/en/articles/2022/12/30/azkd-d30.html

Fries, K. (2019, April 19). How we can make the world a better place for immigrants with disabilities. Quartz. Retrieved April 1, 2023, from https://qz.com/1600200/why-disabled-

McClure, T. (2022, April 26). New Zealand denies entry to autistic daughter of immigrant couple. The Guardian. Retrieved April 1, 2023, from

Truu, M. (2019, May 16). More than 15 families a year face deportation because of one relative’s disabilities. SBS News. Retrieved April 1, 2023, from

“Humanitarian Exceptionalism” and the Failure of Imagination in the Progress of Human Rights in Canada

by Hero Aiken

In their book, Refugee States: Critical Refugee Studies in Canada, Vinh Nguyen and Thy Phu describe the concept of Canadian “humanitarian exceptionalism” in some detail. They describe it as “a belief that what sets Canada apart from the US and other nation-states is its distinct benevolence and commitment to human rights” (Nguyen and Phu, 3). As a result of this belief, Canadians may think themselves morally superior to inhabitants of other nations, especially the United States. In fact, a 2016 survey from the Angus Reid institute found that only 15% of Canadians considered the United States to be a “caring society” (Canada Guide). In other words, it seems clear that Canadian society both prides itself on its perceived humanitarian excellence, while also defining itself through its ethical superiority in comparison to other nations. This means that Canadian society, as well as individual Canadians, may feel less pressure or duty to investigate the human rights conditions in our own country and brought about by our government’s policies. “As long as we aren’t as ‘bad’ as the United States”, we reason, “can we really be all that ‘bad’”?

I would argue that this is not only lazy but an irresponsible and dangerous view to take on the protection of human rights in Canada. Why, if we view the United States to be so thoroughly disrespectful of human rights, can we not imagine an instance in which we might surpass their moral standards, but still fail to demonstrate humanitarian efforts of which we can be proud? Surely, if Canadians can so unanimously condemn the human rights violations which we have recently witnessed in the United States, we can muster a more rigorous and objective scale with which to measure our own actions. Unfortunately, the abdication of moral appraisal in favour of an assumed humanitarian supremacy over a handful of conveniently placed international rivals cannot be seen as anything other than a failure in the advancement of universal human rights.

Last year, while writing for Amnesty International U of T’s Candlelight blog, I submitted a piece highlighting the discrepancies between Canada’s benevolent image on the international scene and the difficult realities faced by its unhoused population. This year, I’d like to elaborate on this same theme while turning my attention towards the plight of refugees seeking asylum in Canada. This in the context of the trap set by the idea of “humanitarian exceptionalism”.

In the wake of Donald Trump’s infamous policies regarding the treatment of refugees or migrants seeking entrance into the United States, it perhaps became easier in recent years for Canadians to ignore the mistreatment of refugees by our own government. In a joint report released on World Refugee Day in 2021, Amnesty International and Human Rights Watch declared that “Canada incarcerates thousands of people, including those with disabilities, on immigration-related ground every year in often abusive conditions” (Human Rights Watch). However, when
compared to the more conspicuous abuses carried out by United States Immigration and Customs Enforcement (I.C.E.) agents during President Trump’s tenure, Canada’s mistreatment of immigrants and refugees has tended to fade into the background of our national consciousness. In 2017, Reuters reported that the Trump administration was considering the separation of Mexican children from their mothers upon “illegally” crossing the border into the United States (Reuters). The following year, the United States Department of Homeland Security (D.H.S.) publicly admitted for the first time to having separated 2 000 children from their parents as they
crossed the border into the United States from Mexico (CNN). Faced with this abhorrent example of human rights abuse, it became easy for Canadians to cease the examination of our own systemic mistreatment of immigrants and refugees. I would argue that much of the energy which would have previously been spent on the promotion of the amelioration of Canada’s humanitarian measures in these areas instead became focused on the derision of the United States’ methods. This is clearly detrimental to the progress of human rights in Canada, and is also only one example among many. As long as Canada continues to measure the morality of our humanitarian efforts in relation to the often gross human rights abuses levied by American institutions, we will be wasting energy and resources which could be better spent on the questioning and bettering of our own systems.

Finally, I would indicate that this is not an outright condemnation of Canada’s efforts in the realm of human rights. According to the Fraser Institute’s 2022 Human Rights Index, Canada ranks 13th highest among the nations of the world (Fraser Institute). This is above the United States, and other wealthy nations such as the United Kingdom and France. Instead, this article is meant to denounce the idea that human rights efforts can be reduced to the ways in which they compare to each other. Human rights efforts, whether they concern the treatment of vulnerable populations such as the unhoused and those seeking asylum as refugees, or whether they concern the status of marginalized populations such as racial or sexual
minorities, are inherently indicative of the ways in which we value the lives of our fellow humans. Is this pursuit not worthy of being measured in ways which transcend the petty temptation to comparison? If Canada wants to build a nation truly worthy of being deemed “exceptional” for its humanitarian pursuits, we ought to create an independent standard by which to measure our human rights efforts. If we seek “humanitarian exceptionalism” in the truest sense of the word, why do we lower ourselves to the standards of those nations we so readily condemn? The myth of “humanitarian exceptionalism” in Canada not only spells disaster for the progress of human rights in Canada, it also demonstrates a lack of imagination and belief in the true humanitarian potential of our nation.

Works Cited

Ainsley, Julia Edwards. “Exclusive: Trump Administration Considering
Separating Women, Children at Mexico Border.” Reuters, Thomson
Reuters, 3 Mar. 2017, https://www.reuters.com/article/us-usa-immigration-children-idUSKBN16A2ES.

“Anti-Americanism.” The Canada Guide, 17 Nov. 2020, https://thecanadaguide.com/culture/anti-americanism/.

“Canada: Abuse, Discrimination in Immigration Detention.” Human Rights
, 20 July 2021, https://www.hrw.org/news/2021/06/17/canada-abuse-

“Family Separation – a Timeline.” Southern Poverty Law Center, 23 Mar. 2022, https://www.splcenter.org/news/2022/03/23/family-separation-timeline#2017.

“Human Freedom Index 2022.” Fraser Institute, 26 Jan. 2023,

Kopan, Tal. “DHS: 2,000 Children Separated from Parents at Border | CNN
Politics.” CNN, Cable News Network, 16 June 2018,

Nguyen, Vinh and Thy Phu. Refugee States: Critical Refugee Studies in
. University of Toronto Press, 2021.

The Crisis of MAID and the Argument for Social Reform

by Shivahn Garvie

In early February, the Canadian government deferred the expansion of medical assistance in dying (MAID) to individuals suffering solely from mental illness by one year (Zimonjic 2023). Justice Minister David Lametti requested a delay for Bill C-39 to further investigate the potential risks of this new legislation (Zimonjic 2023). An interim report released in June 2022 concluded that “more remains to be done to ensure the necessary steps have been taken” before the March 2023 deadline (Zimonjic 2023).

According to the new bill, “mental illness” encompasses psychiatric conditions like depression and personality disorders, and excludes neurodevelopmental or neurocognitive disorders (Zimonjic 2023). Euthanasia was introduced to Canada in 2015 when the Canadian Supreme Court ruled that prohibiting assisted death stripped citizens of dignity and autonomy (Cheng 2022). Assisted suicide was approved in Canada for individuals 18 and older with terminal illness in 2016, and was extended to those with non-threatening severe and chronic physical conditions in 2021 (Honderich 2023). Since 2016, the number of people receiving medical assistance in dying has increased each year, constituting 3.3% of all deaths in Canada in 2021 (Honderich 2023). The planned expansion to those suffering solely from mental illness has raised concerns about the MAID program as a whole.

Recent reports have indicated that vulnerable individuals are requesting and receiving assisted death due to poverty, loneliness, or lack of housing rather than failing health (Honderich 2023). Some argue that this indicates a crisis of Canada’s social safety net. In May 2022, Marie-Claud Landry, chief commissioner of the Canadian Human Rights Commission, stated that giving people the option of assisted death because the government is, “failing to fulfill their fundamental human rights is unacceptable.” (Honderich 2023).

Bill C-39 attracted further criticism from three United Nations human rights experts in 2021 who warned that the expanded law will denigrate Canada’s disabled community, sending a message that serious disability is worse than death (Cheng 2022). Critics point to the story of Alan Nichols as evidence that MAID lacks sufficient safeguards. Nichols was a 61-year-old Canadian with a history of depression and concurrent mental health issues who was hospitalized in June 2019 following concerns that he was suicidal (Cheng 2022). The next month, Nichols requested euthanasia through MAID and was killed despite objections from his family and nurse practitioner (Cheng 2022). After his death, it was revealed that Nichols’ MAID application listed hearing loss as the reason for his request to die (Cheng 2022). Nichols’ family brought this case to the police, claiming that he had not been suffering unbearably, but was confused as he had been refusing to take necessary medication and wear a cochlear implant that helped him hear (Cheng 2022).

Most of the controversy surrounding this expansion is centered on assessing the “irremediability” of mental illness (Honderich 2023). Individuals only qualify for MAID in Canada if their

condition is considered incurable (Honderich 2023). However, the Canadian Mental Health Association cautions that it is “not possible” to classify any mental illness as irremediable, and thus disapproves of the upcoming expansion (Honderich 2023).

Despite fears from the public and professionals, Mr. Lametti assures that this legislation is not being taken lightly, claiming, “We are listening to what we are hearing and being responsive” (Honderich 2023). The federal government promises that Bill-C-39 will respect individuals’ autonomy but prioritize their safety (Honderich 2023). While the expansion of MAID may intimidate many Canadians, this delay should bolster their faith in the governments’ commitment and responsiveness to its people’s concerns.

Works Cited

Cheng, Maria. “‘Disturbing’: Experts troubled by Canada’s euthanasia laws.” AP International News, Associated Press, 11 August 2022, https://apnews.com/article/covid-science-heaalth-toronto-7c631558a457188d2bd2b5cfd360a867.

France-Presse, Agence. “Canada seeks to delay euthanasia for mentally ill.” SCMP, South China Morning Post, 3 February 2023, https://www.scmp.com/news/world/united-states-canada/article/3208926/canada-seeks-delay-euthanasia-mentally-ill.

Honderich, Holly. “Who can die? Canada wrestles with euthanasia for the mentally ill.” BBC News, British Broadcasting Corporation, 14 January 2023. https://www.bbc.com/news/world-us-canada-64004329.

Zimonjic, Peter. “Federal government moves to delay MAID for people suffering solely from mental illness.” CBC, Canadian Broadcasting Corporation, 2 February 2023. https://www.cbc.ca/news/politics/maid-delay-solely-mental-illness-1.6734686.

Canada’s Feminist Foreign Policy

By Laura Moldoveanu

Canada has had a nearly six-year commitment to feminist foreign policy, with the Feminist International Assistance Policy (FAIP) announced on June 9th, 2017 as a means of rendering Canada into a global leader in women’s empowerment. Though it is a somewhat overlooked and forgotten development, the FAIP substantiates the importance of women’s rights in the international system, thus warranting this article’s assessment of the policy’s context, intent, implementation, success, and issues.

In Canadian society, women face unique adversities to equality, including forced marriage, gender-based violence, fewer education opportunities, legal barriers to work, more familial responsibilities than men, and limited control over reproductive health (Global Affairs Canada, 2021). Essential to Canada’s FAIP is the belief that, by promoting gender equality, the nation may effectively decrease poverty rates. In theory, allowing women greater participation in the economy would increase economic growth in the targeted nation(s), thus concerning Canada as such an investment in assistance would enhance national prosperity. The FAIP was announced after a year of consultation with over fifteen thousand people in sixty-five countries, including several women’s rights groups (Lamensch, 2020). Furthermore, the policy referenced a 2015 plan to reduce poverty and build peace, entitled the “2030 Agenda for Sustainable Development.”

Six key areas of the policy include gender equality, human dignity, inclusive governance, climate action, peace and security, and “growth that works for everyone” (Global Affairs Canada, 2021). Gender equality involves a sexual violence initiative and engages with differing levels of government to deliver programs supporting women’s rights; human dignity pertains to health and education; governance stresses the importance of political participation; climate action covers loss of resources, such as clean drinking water and renewable energy; peace and security involves women in post-conflict nation-building and peace negotiations; lastly, growth engages with economic and ownership rights. Overall, it is clear that the policy covers a huge range of issues. In one sense, this is beneficial because the policy is not limited, however, it also indicates that the policy lacks a cohesive vision.

Implementation involves investment, innovation, and partnerships. Canada vowed to put fifteen percent of its bilateral international development assistance investments towards gender equality. The policy abandons Canada’s previous “countries-of-focus” approach that concentrated assistance on a small list of countries and, instead, involves a broader range of countries, with a focus on Sub-Saharan Africa. Involvement with multilateral groups such as the UN, G7, and G20—as well as the private sector, for financial assistance—is also a key part of the policy. Finally, civil society organizations such as women’s rights groups are expected to receive one hundred and fifty million dollars to develop programs to help promote gender equality (Global Affairs Canada, 2021).

Turning to real-world results, the official policy website boasts a list of success stories under the subheading “our policy in action.” From setting up community centres in Iraq refugee camps to clearing landmines out of Colombia, the policy seems to live up to its many goals in terms of both mission diversity and cross-global span.

With that being said, however, the policy must also be looked at through a more critical lens. There are contradictions and issues associated with Canadian foreign policy, and feminist foreign policy in particular. Scholars and policy analysts argue that the policy does not include definitions of gender or feminism, leaving out marginalized groups such as intersex or transgender persons (Tiessen, 2019), while also lacking inclusion of LGBTQ+ individuals who may face added discrimination beyond gender. Furthermore, the efficacy of the policy is inhibited by other Canadian foreign policy objectives; for example, while the FAIP promotes the empowerment of female peacekeepers, the Canadian government nonetheless continues in concurrently selling weapons to Saudi Arabia (Bouka, 2021). As for more technical problems, the policy has no clear measures of success or ways to monitor long-term impact.

So, is the policy just performative activism? Canada has made it clear that the government views women’s empowerment as an important area to focus on, with a long-term goal of reducing poverty around the world. With that being said, the current impact and efficacy of the FAIP is a mixed bag. In the coming years, perhaps a revaluation will be needed to judge whether the policy is making any substantial long-term impact on gender equality.

Works Cited

Bouka, Yolande, et al. “Is Canada’s Foreign Policy Really Feminist?” Network for Strategic Analysis , Network for Strategic Analysis , 7 Oct. 2021, https://ras-nsa.ca/publication/is-canadas-foreign-policy-really-feminist-analysis-and-recommend ations/.

“Canada’s Feminist International Assistance Policy.” Global Affairs Canada. Government of Canada, August 24, 2021. https://www.international.gc.ca/world-monde/issues_development-enjeux_developpement/priorit ies-priorites/policy-politique.aspx?lang=eng.

Lamensch, Marie. “Canada’s Feminist Foreign Policy.” The Canadian Encyclopedia. Historica Canada, July 31, 2020. https://www.thecanadianencyclopedia.ca/en/article/canada-s-feminist-foreign-policy.

Tiessen, Rebecca. “What’s New About Canada’s Feminist International Assistance Policy.” Canadian Global Affairs Institute, Canadian Global Affairs Institute , Dec. 2019, https://www.cgai.ca/whats_new_about_canadas_feminist_international_assistance_policy_the_ problem_and_possibilities_of_more_of_the_same.

The Wet’suwet’en Pipeline & Canadian-Indigenous Legal Conflict

by Juliano Gaglione

Courtesy of CBrentPatterson via Twitter

           Three weeks ago, Amnesty International issued a press release regarding LNG Canada’s Coastal GasLink pipeline, criticizing the Canadian government and Coastal GasLink (CGL) for their continued policing and criminalizing of Indigenous “land defenders”, who protect their territory from pipeline development. A call-to-action pressuring the Canadian government and CGL to allow the “Wet’suwet’en people [to] exercise their rights over their traditional territories” (Amnesty International, 2023) was released, the article addresses a conflict prompting questions of whether the Wet’suwet’en community possesses legal rights to unceded land, whether such rights are acknowledged by the Canadian government, and, more importantly, whether such conflict constitutes a threat towards Canadian-Indigenous legal relations. Through investigation, we’ll find that the Wet’suwet’en do, indeed, possess legitimate claim to unceded territories and that the Canadian government’s infringement of Wet’suwet’en title proves unjustified. Furthermore, the Wet’suwet’en pipeline conflict illustrates an existing incompatibility between Indigenous and Canadian sovereignty, resulting from the Canadian government’s unsurprising exploitation of fiduciary privileges to substantiate their own economic priorities.

A brief overview of the conflict and opposing interests at hand

          The Coastal GasLink is a natural gas pipeline being developed in northern British Columbia, which partially traverses territory belonging to the Wet’suwet’en First Nation community. While all five relevant Wet’suwet’en Nation’s band councils have signed benefit agreements with CGL consenting to the use of their land for pipeline development, the nation chiefs, possessing power within a “hereditary clan system,” refuse to offer such consent. An important distinction is to be made here between an “elected band council,” the form of political leadership endowed upon First Nations communities by Canadian settlers via the Indian Act; and a “hereditary clan system,” the traditional form of political leadership within First Nations communities prior to colonial contact. Claiming to have been granted Aboriginal title (unceded land rights) in the 1997 trial, Delgamuukw v. British Columbia (Hernandez, 2020), the hereditary chiefs argue that the unconsensual yet unremitting development of the CGL pipeline is an unjustified land rights violation. As such, many Indigenous land defenders throughout the province have been protesting these proposed injustices by undermining the pipeline’s construction, and establishing roadblocks to prevent project development officials from reaching their sites (Baker, 2022). Meanwhile, standing to earn an estimated twenty-three billion CDN over the span of forty years following the pipeline’s construction, the federal government has largely endorsed the CGL pipeline ever since first commissioning the project in 2018 (Simmons, 2022)—this financial interest at least partially explains the government’s policing contributions towards the project, with RCMP officers consistently tasked with enforcing the law over supposedly criminally-behaved Indigenous protesters (Amnesty International, 2023). With that said, the pipeline is currently—as of the CGL’s latest briefing—beyond 80% complete, and will likely see full completion in the near future regardless of opposition efforts (CGL, 2023).

          Upon inspection of Delgamuukw v. British Columbia (3 SCR 1010, 1997)—a supreme court case resulting from Delgamuukw’s appeal of a previously failed trial—it’s clear that the hereditary chiefs of the Wet’suwet’en First Nations were granted Aboriginal title over their territory in 1997, resulting mainly from the chief justice’s reconsideration of the Wet’suwet’en oral tradition, “kungax,” as valid historical evidence of pre-colonial territorial occupation. In remarking upon the original trial, Chief Justice Lamer stated that “the trial judge expected too much of the oral history of the appellants,” and that “if oral history cannot conclusively establish pre-sovereignty occupation of land, it may still be relevant to demonstrate that current occupation has its origins prior to sovereignty” (3 SCR 1010, 1997). Indeed, in the following trial, such oral history would be found sufficient in illustrating a pre-sovereign origin of occupation, granting Aboriginal title to the hereditary chiefs who brought the case to the supreme court. As a result, the Wet’suwet’en chiefs, by possessing Aboriginal title, possess land rights since 1997 characterized as (1) inalienable; (2) recognized by the Royal Proclamation of 1763; (3) communally held; (4) limited in use to actions which are “reconcilable with the nature of the claimants’ attachment to those lands” (i.e., forbidding ecologically negligent land use); and (5) protected by section 35 the Constitution Act of 1982 (3 SCR 1010, 1997). Clearly, then, Wet’suwet’en protestors are correct in their assertion that hereditary chiefs are owed unceded land rights as per the result of Delgamuukw v. British Columbia.

          With this being said, there are additional details within Delgamuukw v. British Columbia, stipulating the circumstances in which Crown infringements of Aboriginal title may be justified (“constitutionally recognized aboriginal rights are not absolute and may be infringed by the federal and provincial governments…”). As such, we should consider whether the Canadian government could find justifications for the infringed use of Wet’suwet’en territory In constructing the CGL pipeline. In the document, the two tests of potential justification include: (1) furthering a compelling and substantive legislative objective; and (2) acting as is consistent with “the special fiduciary relationship” between the Crown and Indigenous peoples (e.g., “the development of agriculture, forestry, mining, and hydroelectric power,” “general economic development,” “protection of the environment,” and the “building of infrastructure and settlement of foreign populations”) (3 SCR 1010, 1997). First then, the CGL project does not stand to contribute towards any immediately notable legislative objective, and so cannot be warranted under the first test of justification. Second, while an argument might be made for the infrastructure, employment, and “economic development” produced within Indigenous communities by the CGL pipeline, the project also contributes towards ecological destruction and population displacement while providing the Indigenous communities with only a fraction of the total economic value estimated of the project (Simmons, 2022)—thus rendering any claims of the pipeline’s contributions towards a productive fiduciary relationship as tenuous and one-sided, and illustrating that the CGL pipeline is proven unjustifiable by both tests. As such, the use of the Wet’suwet’en land by federally— commissioned enterprises would rely upon the full and lawful consent of Aboriginal title holders— in this case, the hereditary chiefs.

            With the Canadian government’s infringement of Wet’suwet’en land rights thus proven unjustified, their use of police action to enforce lawful compliance within Wet’suwet’en communities while refusing to hold themselves accountable to their own legal abidance of Aboriginal title demonstrates a self-contradictory logic, which effectively undermines the legal precedent meant to support Canadian-Indigenous relations in a broader sense. The federal government’s policing, surveilling, and criminalization of the Wet’suwet’en community via RCMP police action throughout the pipeline’s construction, negligent of the community’s title rights, is indicative of whose interests are most readily maintained and whose most undermined within Canadian-Indigenous legal confrontations. In criminalizing land defence and mobilizing police action against Indigenous protestors, and thus in transgressing the principles of Aboriginal title belonging to the Wet’suwet’en as is clarified within Delgamuukw v. British Columbia, the federal government implicitly retracts the legitimacy of legal frameworks developed to render Canadian-Indigenous relations sustainable and equitable. As Queen’s University professor Michael Luoma remarks on the federal government’s legal maltreatment of Indigenous communities in “Collective Self-Determination, Territory, and the Wet’suwet’en,” “if we cannot provide a consistent [note—consistent] answer to questions, then from a moral and legal perspective, the future relationships between Canada and many other Indigenous nations are in danger of being carried out in an ad hoc or arbitrary manner” (2022). Indeed, the negligent treatment of the Wet’suwet’en community and their legal history, if persisted upon with distinct nations, could further obfuscate Indigenous relations throughout the country. As such, steps should be taken towards the increased acknowledgement of Indigenous communities and the legal rights they are owed, although doing so may, at times, be of great expense to the Canadian government.

Works Cited

Amnesty International (2023, January 6). Canada: Indigenous land defenders criminalized, surveilled and harassed as pipeline construction continues on Wet’suwet’en territory. Amnesty International. Retrieved January 20, 2023, from https://amnesty.ca/news/joint-press-release/canada-indigenous-land-defenders-criminalized/.

Baker, Rafferty (2022, February 26). A who’s who of the Wet’suwet’en pipeline conflict. CBC. Retrieved January 20, 2023, from https://www.cbc.ca/news/canada/british-columbia/wetsuweten-whos-who-guide-1.5471898.

Coastal GasLink (2023, January 12). Coastal GasLink working with Indigenous communities and regulators to cross waterways safely. Coastal GasLink. Retrieved January 20, 2023 from https://www.coastalgaslink.com/whats-new/news-stories/2023/2023-01-12-coastal-gaslink-working-with-Indigenous-communities-and-regulators-to-cross-waterways-safely/.

Delgamuukw v. British Columbia, 3 SCR 1010 (1997). https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1569/index.do

Hernandez, Jon (2020, February 13). ‘We still have title’: How a landmark B.C. court case set the stage for Wet’suwet’en protests. CBC. Retrieved January 20, 2023, from https://www.cbc.ca/news/canada/british-columbia/delgamuukw-court-ruling-significance-1.5461763.

Luoma, Michael (2022, February 23). “Collective Self-Determination, Territory and the Wet’suwet’en: What Justifies the Political Authority of Historic Indigenous Governments over Land and People” in Canadian Journal of Political Science, 55(1), 19-39. Retrieved January 20, 2023. https://doi.org/10.1017/S0008423921000913.

Simmons, Matt (2022, November 24). Is B.C.’s $6 billion commitment to Coastal GasLink and LNG Canada still economically viable?. The Narwhal. Retrieved January 20, 2023, from https://thenarwhal.ca/bc-lng-canada-cgl-economics/.

Democracy Notwithstanding: Canada’s History of the Notwithstanding Clause and its Role in Human Rights

by Emma Celeste Thornley

Free Justice Statue photo and picture
Courtesy of William Cho via Pixabay

The Canadian Charter of Rights and Freedoms enshrines a number of individual rights considered to be essential to the preservation of human rights. Among these are freedom of religion, expression, and association; the right to life, liberty and security of the person; and freedom from unreasonable search, seizure and arbitrary detention. It is a common assumption that these rights and freedoms are absolutely inalienable and immutable. That assumption is wrong.

The notwithstanding clause, otherwise known as Section 33, was introduced to the Canadian Charter by Pierre Trudeau’s office; it was a concession to satisfy concerns that the Charter of Rights, as Trudeau’s office had initially drafted it, was “too powerful” (Zimonjic, 2022). The language of Section 33 holds that parliament, or the legislature of any given province, could temporarily disregard a provision of the Charter outlined in sections 2, or 7-15 (Government of Canada, 2022). There are, of course, limitations; any declaration made via the notwithstanding clause shall cease to be of effect five years after its implementation, though it can be renewed at the end of that 5-year term. At the time of the Charter’s drafting, Section 33 was intended as an escape-hatch (Zimonjic, 2022), evocative of the American “state’s-rights” model. The general understanding was that the notwithstanding clause ought to be a last resort, utilized only in the most unusual of circumstances. By its definition, the notwithstanding clause had the power to disrupt the execution of a number of fundamental Charter principles.

While this power may seem overwhelming on its face, the ability to disregard or supersede an established Charter right is not an unprecedented one. There is a process, called the Oakes Test, by which laws that limit a Charter right can be evaluated as justifiable or an overreach of power. It is a litigious procedure, arising from the Supreme Court of Canada’s ruling in R v Oakes.

This 1986 case saw the accused, Oakes, charged with possession for the purposes of trafficking after police caught Oakes with hashish oil and cash on his person. Oakes held that the drugs were his own and that he had no intent of selling them; yet, at the time, Section 8 of the Narcotics Control Act, under which he had been charged, held that anyone found with illegal drugs on them was presumed guilty of trafficking. This established a “reverse onus” in Oakes’ criminal trial. Rather than the burden being upon the state to prove his guilt beyond a reasonable doubt, Oakes had to prove his innocence (Centre for Constitutional Studies, 2019). Oakes and his lawyers challenged the constitutionality of this onus, claiming it violated his Section 11(d) Charter Right to the presumption of innocence until proven guilty. The Supreme Court agreed this right had been violated. The ultimate question, however, was whether the violation of this right was justifiable under Section 1 of the Charter: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

The SCC ultimately ruled that to determine if a law’s imposition on an established Charter right was justifiable, the imposition had to pass a series of tests: first, that the law under review has a goal which is both “pressing and substantial”. Second, that the law limits the right in question only in such a way as is rationally connected to the law’s purpose. Third, the law must minimally impair the right. Fourth, the imposition upon the right is proportional to the effect of the law (Centre for Constitutional Studies, 2019). The Oakes Test is consequentially an effective, consistent measure by which to test whether a law has justifiably infringed upon a Charter right.

The notwithstanding clause’s metric of measurement is nowhere near as comprehensive nor consistent. It is typically invoked when there is a controversial court ruling (McKenzie-Sutter, 2022) and it can, in theory, provide a sanctified avenue by which provincial governments can override federal authority should a federal government overstep their jurisdictional reach (Callaghan, 2021). Supporters of the notwithstanding clause have opined that “It’s entirely possible that a judicial body will make a judgment on rights that many find abhorrent. Under a system where they wield ultimate authority over the matter, there is little recourse to challenge that judgment. The recent decision by the United States Supreme Court to overturn Roe v. Wade is a stark example of this reality” (Callaghan 2021). While the notwithstanding clause is undoubtably conceptually admirable, its application has been controversial and, at times, in contradiction of Canadian citizens’ rights. Section 33 has been invoked some 26 times since its implementation. The majority of those invocations were tabled by Quebec. Most make it past initial invocation and into enactment. Some instances of particularly controversial uses of the notwithstanding clause in recent memory are Alberta’s 2000 case, Quebec’s 2019 case, and Ontario’s 2018, 2021 and 2022 cases.

In the first instance, Alberta invoked the notwithstanding clause in response to the federal government’s passing of Bill C-23 (CBC, 2012). Bill C-23 guaranteed same-sex couples the same benefits as heterosexual couples after a year of cohabitation. Alberta responded by passing Bill 202, which threatened to invoke the notwithstanding clause should Canada ever redefine marriage to anything other than a man and woman (CBC, 2012). The misuse of the notwithstanding clause is self-evident; the Supreme Court of Canada agreed, declaring Bill 202 and its threatened use of the notwithstanding clause ultra vires, or beyond legal authority, as of 2004 (S.C.R. 698, 2004).

In 2019, Quebec introduced the controversial Act Respecting the Laicity of the State, otherwise known as Bill 21. You may recall the furor that arose in the media after Quebec declared their intention to invoke the notwithstanding clause to support this act, which prohibited civil service employees and public teachers from wearing religious symbols, like kippahs, crosses and hijabs while working (Souissi, 2021). Quebec was successful in implementing the notwithstanding clause. Given the notwithstanding clause’s mandatory five year renewal, it may be overturned in the future; it will, regardlessly, impact the religious liberties of Quebec citizens in the meanwhile.

Ontario’s history with the notwithstanding clause is recent, and resultantly unique. In the province’s history, the notwithstanding clause has been utilized three times. First, in 2018, when the Ontario provincial government utilized Section 33 to reduce the number of wards in Toronto from 47 to 25. This reduction occurred alongside a municipal election, raising concerns that the Ford administration was severely infringing upon the democratic rights of voters (Ahmed, 2022). The second invocation occurred in 2021, when the Ford administration passed the Protecting Elections and Defending Democracy Act. In sum, the act prohibited third-party election advertising and advocacy during the election period, such as labour unions. The legislation was found to override the Charter, and was consequently struck down by Ontario Courts (Kelly, 2022). In response, Ford’s administration overrode the Court using the notwithstanding clause. More recently, Ford’s administration tabled the Keeping Students in Class Act, which utilized the notwithstanding clause to mandate striking teachers back to work. It was lambasted as an “unprecedented attack on workers’ rights” (Koskie Minsky LLP, 2022), and consequently revoked and deemed “never in force” (Legislative Assembly of Ontario, 2022).

In sum, the Charter of Rights and Freedoms is not the inflexible pillar it is sometimes perceived to be. In some instances, its “bending” is to the benefit of the citizenry. Section 33 could permit provincial governments to reject federal overreach, an insulation against oversteps by any prime minister’s administration. Yet like so many things, the notwithstanding clause can be invoked in ways that hinder, rather than uphold, basic rights. The “legalese” used to describe related governmental acts and resultant action can alienate most of us from the realities of what is being passed as law. That alienation may prevent us from realizing how, and when, Charter Rights and Freedoms are eroded without reasonable cause.

There is no question that we are privileged to live in a country like Canada. It is imperfect, and has a longstanding history of colonial violence, but it also has an established constitutional rights framework by which to challenge our own persisting human rights issues. Other nation-states do not necessarily have the same constitutional protections. Given our comparative privilege, it can be easy to forget that human rights are hard-won and, in some instances, easily lost. It is our civic duty to vigilantly monitor the ways in which our rights and freedoms as Canadians are in flux, to prevent government overreach at all levels. If the history of the notwithstanding clause can offer us any insights, it is that human rights are a constant practice, and not a milestone of democracy. We must constantly be mindful of how our rights adjust and flux, decade to decade, administration to administration.

Work Cited

Ahmed, H. (2022, August 8) Toronto v Ontario: Municipal Elections, Freedom of Expression, and Provincial Authority. Centre for Constitutional Studies. https://www.constitutionalstudies.ca/2022/08/toronto-v-ontario-municipal-elections-freedom-of-expression-and-provincialauthority/

Callaghan, G. (2022, July 6) In defence of the notwithstanding clause: Why Canada should hold onto it. The Conversation. https://theconversation.com/in-defence-of-the-notwithstandingclause-why-canada-should-hold-onto-it-186375

CBC (2012, January 12) TIMELINE: Same-sex rights in Canada. https://www.cbc.ca/news/canada/timeline-same-sex-rights-in-canada-1.1147516

Kelly, Y. (2022, March 21) Ontario’s Bill 307 does more to restrict democracy than protect it. York Region News. https://www.yorkregion.com/opinion-story/10591141-ontario-s-bill-307-does-more-to-restrict-democracy-than-protect-it/

Koskie Minksky LLP (2022) The Keeping Students in Class Act. https://www.lexology.com/library/detail.aspx?g=e7137110-7583-4533-9f18-468074bd55c1

Legislative Assembly of Ontario (2022) Bill 35, Keeping Students in Class Repeal Act, 2022. https://www.ola.org/en/legislative-business/bills/parliament-43/session-1/bill-35

McKenzie-Sutter, H. (2022, Oct 31) What is the notwithstanding clause? An explainer on the rarely used provision. CTV News. https://toronto.ctvnews.ca/what-is-the-notwithstandingclause-an-explainer-on-the-rarely-used-provision-1.613270

Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698, 2004 SCC 79. https://scccsc.lexum.com/scc-csc/scc-csc/en/item/2196/index.do

Souissi, T. (2021, December 17) Bill 21 (An Act Respecting the Laicity of the State) The
Canadian Encyclopedia. https://www.thecanadianencyclopedia.ca/en/article/bill-21