Tag Archives: Charter of Rights and Freedoms

The Canadian roots of indigenous equality rights declaration

“All the rights and freedoms recognized herein are equally guaranteed to male and female indigenous individuals.”


October, 2016

screen-shot-2016-09-29-at-11-27-20-amI did a double-take recently when I came across Article 44 of the 2001 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The wording closely echoes Section 28 of Canada’s 1982 Charter of Rights and Freedoms: “Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.”   Gender equality is rarely so explicitly promised.  Google searches turn up references to UNDRIP, Section 28, and, interestingly enough, to multiculturalism.

Constitution nerds like me get excited about how equality rights are developing here in Canada. We’re also excited about the way Charter wording is influencing equality guarantees around the world. That wording came from a stunning spontaneous 1981 women’s rebellion.

On February 14, 1981, 1300 women from across Canada showed up at the first public national conference in the House of Commons and passed resolutions . Surprised conference leaders stayed in Ottawa and lobbied until Pierre Trudeau’s Justice officials offered them a gender equality guarantee in the interpretative section – Section 28. Thirty-five years ago this fall, November 16 – 24, women’s groups won fast fierce battles with their premiers in every province to protect Section 28 from potential override.

Even before those public skirmishes, though, the Liberal government had already accepted amendments from organizations like the National Association of Women and the Law that strengthened all equality rights. Section 15, Equality Rights, “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…” [My italics.] The new clause was intended to buck existing case law about the phrase “equal before and under the law.”

Under John Diefenbaker’s Bill of Rights, the Canadian Advisory Council on the Status of Women warned, courts had ruled that equality “before and under” the law meant only that a person could bring a case to court, not that they could obtain any remedy. In Stella Bliss, judges used a “reasonable man” test to rule against maternity leave. In Jeanette Lavell’s attempt to reclaim her Indian status, the courts ruled that all she was entitled to was a hearing, and she had just had it.

Although the new Charter would give judges power to strike down laws on the spot – as the Bill of Rights did not – women wanted to encourage judges to seek remedies as well as legal decisions. Elsewhere, I have argued that LGBTQ folks won equal marriage so quickly (9 years) largely because of  the “equal benefit and protection clause.”

When Justice Minister Jean Chrétien rolled out the revised Charter in early 1981, women were pleased by the enhanced Sec. 15. On the other hand, they were alarmed by a new Section 27: “This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.” They feared the section would encourage cultures where women are considered less than full adults — or even chattel – as they were in Canada as recently as the 1960s (in Quebec).

Women’s groups had lobbied all along for an overarching statement of gender equality. The government balked at putting gender equality into the Constitution’s preamble, but it did offer up an immediate limitation on Section 27, in the form of Section 28,: “Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.”

I tend to think of Section 15 as an engine driving equality, especially because subsection (2) permits affirmative action programs, whereas Section 28 is more like a seat belt, a safety measure. Lately, there has been some scholarly grumbling about Section 28 being “obsolete.”

On the contrary. Apparently it was decades ahead of its time.

Canadians had already contributed significantly to international human rights legislation. Canadian John Peters Humphrey – the first Director of the UN Human Rights Department – usually gets credit for most of the wording in the Universal Declaration of Human Rights.  So the inclusion in UNDRIP is part of a long tradition.

Still, I was thrilled to discover that, 20 years after Canadian women helped write the equivalent of the defeated US ERA (Equal Rights Amendment), the UN found the wording so strong and clear that it used the same language to declare that Indigenous women have the same rights and freedoms as Indigenous men – everywhere in the world.  This form may become the new international template for declaring equality rights. Canadian women should be proud.

Copyright Penney Kome 2016

Contact:  komeca AT yahoo.com   Read more F&O columns by Penney Kome here

Penney Kome’s 1983 book, The Taking of Twenty-Eight: Women Challenge the Constitution, is a comprehensive account of the 1981 women’s constitution conference and campaigns. A scanned copy is available for $3.45 US here, from Lulu.com: http://www.lulu.com/shop/penney-kome/the-taking-of-twenty-eight-women-challenge-the-constitution/ebook/product-259196.html


United Nations Declaration on the Rights of Indigenous Peoples, full text

Wikipedia page, The United Nations Declaration on the Rights of Indigenous Peoples

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Penney KomePenney Kome is co-editor of Peace: A Dream Unfolding (Sierra Club Books 1986), with a foreward by the Nobel-winning presidents of International Physicians for Prevention of Nuclear War.

Read her bio on Facts and Opinions.

Contact:  komeca AT yahoo.com




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Fracking: Canada’s top court to review Alberta’s duty to citizens

Gas flare from drill rig near a home in Hythe, Alberta, Photo by Greg Locke © 2009

Gas flare from drill rig near a home in Hythe, Alberta. Photo by Greg Locke © 2009

By Chris Wood

Does a Canadian provincial government have any responsibility to protect your natural security? Nope. Nada. Rien. It can pretty much do as it likes, wrecking your water and any other part of the environment that it likes in the process. And you can just go pound sand.

That, in non-legal language, was pretty much what an Alberta Court ruled in the case of Jessica Ernst, a former oilfield biologist who lost the use of the water wells on her small ranch east of Calgary after a gas company hydro-fracked several drill-holes nearby. Ernst had appealed for help to the Alberta public agency that supposedly oversees its oil and gas industry, and was not only turned away but vilified for her efforts. The provincial court upheld the agency’s dismissal of Ernst’s complaint.

It was an astonishing ruling, but it’s about to get a second look. The Supreme Court of Canada has now agreed to hear Ernst’s appeal of the Alberta ruling. Its verdict, of course, is months away and impossible to predict. But the high court has already overturned a series of attempts by the federal government to illegally circumvent Canadians’ Charter-guaranteed Rights and Freedoms. It now has a chance to re-affirm that provinces also have an obligation to protect their citizens, and cannot simply set that duty aside in order to provide carte blanche to corporations.

To meet Jessica Ernst and learn more about her case and the risks and alleged benefits of hydro-fracking, read my article Risky Business: The facts behind fracking,  on Facts and Opinions. (subscription required)


Risky Business: The facts behind fracking,  by Chris Wood, Facts and Opinions (paywall)

Search for “Ernst” for background and links to previous judgements in the Bulletin of Proceedings, Supreme Court of Canada, May 1, 2015

Landmark Fracking Case Gets a Supreme Court Hearing, The Tyee : http://thetyee.ca/News/2015/04/30/Ernst-Heads-to-Supreme-Court/


Facts and Opinions is an online journal of select and first-rate reporting and analysis, in words and images: a boutique for slow journalism, without borders. Independent, non-partisan and employee-owned, F&O performs journalism for citizens, funded entirely by readers. We do not carry advertising or solicit donations from foundations or causes.

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On Canada’s Charter, and reading for the weekend

Today is the anniversary of Canada’s Charter of Rights and Freedoms. 

When I was a young teen I was enthralled with flying, so enthralled that I worked late nights as a convenience store cashier to pay for ground school and flying lessons. I was pretty good at them; I finished ground school at age 15. But calamity struck the only flight school in my small town before I was old enough to finish – you had to be 16 to fly solo. So, at the next career fair at my high school, I approached the Air Force and asked about enlisting. “We don’t take women,” they said.

No Amelia Earhart, I grudgingly accepted my curt dismissal — as most of us accepted a lot of things back then. I turned my attention elsewhere. Eventually, the end of my teenage flight of fancy was OK — except that, a lifetime later, the reason rankles a little.

My experience is one of the many reasons, from the small and personal to the global and sublime, that I cheer every Charter birthday.

Canadians raised after the Charter became law, or those who immigrated after the British queen (who doubles as Canada’s queen) signed it on April 17, 1982, can not remember what it was like before then.  Canada was not so very bad, relative to many other places in the world. For many, many Canadians, life was very good indeed. 

But since 1982 it is a far, far better place than most. Since 1982 no Canadian has legally been told “no, you can’t do that just because you’re ____ ” (fill in the blank … female, male, gay, black, disabled, religiously affiliated). And when people have been denied, they’ve had legal recourse, evidenced by daily court decisions peppered with Charter references.

There is still a contingent of Canadians who resent the Charter and how it has changed Canada. But in my books, the Charter is one of the wonders of our human world. 

Reading: Constitution Acts in Canada, Canadian Charter of Rights and Freedoms – Canadian Department of Justice http://laws-lois.justice.gc.ca/eng/Const/
Wikipedia page on the Canadian Charter of Rights and Freedoms: http://en.wikipedia.org/wiki/Canadian_Charter_of_Rights_and_Freedoms

–Deborah Jones          

Check F&O’s Contents page regularly for new material. This week our Fresh Sheet includes:

Greg Locke’s report in GEO, How to make seal flipper pie — it’s a recipe on the surface, but also amid the global controversies over Canada’s seal hunt, a political statement by a proud Newfoundlander. 



In Commentary Jonathan Manthorpe follows up last week’s International Affairs reflection on the drowning Maldives, Fighting for possession of deck chairs on the Titanic, with a piece on Burma which, with fall elections looming — has gone from military dictatorship to kleptocracy without drawing breath.

In his SUMMONING ORENDA column, Tom Regan writes about the unbearable lightness of US presidential campaigns.  

Arts columnist Brian Brennan continues his Brief Encounters series with a piece about John Hirsch, Giving a Canadian Accent to the Stratford Festival.

Some of our other recent work, in case you missed it, includes:

Sheldon Fernandez’s essay The Great Riddle: fostering creativity and tenacity;

On graffiti: art, vandalism, and advertising;

Now for Another Debt Crisis, by THOUGHTLINES columnist Jim McNiven;


Keeping the Good News Down by Natural Security columnist Chris Wood; 

And last but not least, Brian Brennan’s Giving Her Regards to Broadway: Nicola Cavendish.

Recommended elsewhere:

Kenya Mourns Students From Its Generation of Promise, by Jeffrey Gettleman, New York Times

GATUNDU, Kenya — The cars swung out onto Thika Road, one by one.

They moved together, in a line on Friday morning, past miles of apartment buildings, up into the hills, deeper and deeper into rich green farmland. In front, a hearse carried the body of Angela Nyokabi Githakwa, 21, one of the 142 students massacred last week at a Kenyan university.

As one of the first in her family to go to a national university, Ms. Githakwa’s prospects had been swiftly rising — just like Kenya’s.

Her generation witnessed the end of dictatorship, the growth of democracy, an incredible economic expansion, Kenya’s netting gold medals at the Olympics and a recent Oscar. The country even played a hand in producing the first African-American president of the United States.

But her short life also tracked the disaster next door. Just as Ms. Githakwa was taking baby steps, Somalia was imploding. Its government had collapsed. Its economy flatlined. Militant groups flooded the streets.

Then, as Ms. Githakwa was preparing for her high school exams and General Electric and Google were investing millions in operations in Kenya, the Shabab Islamist militant group was bullwhipping women next door, trying to establish a seventh-century caliphate.


Facts and Opinions is an online journal of select and first-rate reporting and analysis, in words and images: a boutique for select journalism, without borders. Independent, non-partisan and employee-owned, F&O performs journalism for citizens, funded entirely by readers. We do not carry advertising or solicit donations from foundations or causes. Help sustain us by telling others about us, and purchasing a $1 day pass or subscription, from $2.95/month to $19.95/year. To receive F&O’s free blog emails fill in the form on the FRONTLINES page.


Posted in Current Affairs, Gyroscope