What Constitutes A Race Law In Canada?

06/30/2017 14:53 EDT | Updated 06/30/2017 14:53 EDT

In his recent Globe and Mail Op/Ed piece Should Indigenous ancestry dictate public policy?, Tom Flanagan posits that assigning benefits to a group of people based on heredity "is not compatible with the ethos of liberal democracy." I agree: all should be equal before and under the law without regard to race, colour, creed, or any of the other commonly held prohibited bases of discrimination.

I take issue, however, with Mr. Flanagan's observation that "Canada has worked hard for decades to expunge ancestry as the basis for public policy; do we really want to bring it back?"

Sadly, we already have.

The Canadian Charter of Rights and Freedoms is not an archaic throw-back to 1867 and the Fathers of Confederation but the relatively recent creation of our Liberal philosopher kings from 1981. Section 23 of the Charter incorporates descent as the constitutional basis for public policy as it pertains to language of education.

Section 23 and the language of education provisions (Chapter VIII) found in Quebec's Charter of the French Language (aka Bill 101) together create two separate and distinct civil rights categories for all residents of Quebec. Membership in one group enables one to do something that those in the other group cannot: attend either French or English publicly funded schools; all others must attend French publicly funded schools. This is a violation of the ethos of liberal democracy, as described by Mr. Flanagan. Certainly, one is free to attend a privately funded school in the language of one's choice. However, the "ethos of liberal democracy" demands that all must be equal when it comes to government funded services, such as public schools.

Let's be clear: "descent" is one of the listed definitions of racial discrimination in article 1 of the United Nations' International Convention on the Elimination of All Forms of Racial Discrimination, of which Canada has been a signatory since 1966. Indian status under Canada's Indian Act is determined by the handing down of this classification from parent to child, through generations. As Justice Francis Muldoon of the Federal Court wrote in 1997's Sawridge Band decision: "The Indian Act is racist. It countenances the segregation of people by race, into racist enclaves according to racially discriminatory laws."

This description of the Indian Act as a race law was confirmed by the Supreme Court of Canada in 2005's Gosselin (Tutor of) decision when it denied Quebec francophones the right to send their children to English schools. The Court ruled that one part of the Charter of Rights –- section 15's equality provisions –- cannot be used to invalidate another part of the constitution, section 23. "Otherwise," read the decision, "any legislation under s. 91(24) of the Constitution Act, 1867 ("Indians, and Lands reserved for the Indians") would be vulnerable to attack as race-based inequality..." "Any legislation" is a reference the Indian Act.

What the Court left out of its decision was a comparison of the wording of both Section 23 and Bill 101 with the Indian Act. Had they done so, we would have discovered that all three laws use descent -- the parent-child discrimination procedure and the handing down through the generations of one's classification -- to determine civil rights status.

The question must therefore be asked: if the procedure of discrimination is the same in section 23, Bill 101 and the Indian Act; if domestic courts have deemed the Indian Act as "racist"; and if international treaties to which Canada is a signatory deem "descent" as racial discrimination, does it follow that the Canadian Charter of Rights and Freedoms' section 23 and Bill 101's language of education provisions constitute race laws?

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