Balancing act

Good morning. Hopefully you had a great long weekend. Although, you probably didn’t have quite as much to celebrate as the man police rescued from a ditch just before the weekend started. He spent two days stuck in the mud, alone with his dog. Then the dog wandered off and bit someone. That’s a raw deal for the bite victim, but it’s what led police in for the rescue.

Happy Easter indeed.

— Dylan Gibbs

• First look: the SCC and section 25 of the Charter

• Declining doughnut sales

• Schools fight back against Big Social

• Quebec’s new family status

SCC

Individual rights square off with Indigenous rights

Dickson v. Vuntut Gwitchin First Nation, 2024 SCC 10

The Supreme Court released a massive decision last week — both in terms of length and significance. Length-wise, you’d have to go back to 2013 to find majority reasons with more paragraphs. As for importance, the Court adopted a groundbreaking framework to resolve conflicts between individual Charter rights and the rights of Indigenous peoples.

What happened? Cindy Dickson is a citizen of the self-governing Vuntut Gwitchin First Nation (VGFN). She wanted to run for government. But VGFN’s constitution requires elected officials to live in the First Nation’s settlement territory. And Ms. Dickson lives in Whitehorse, 800km away. She can’t move, because her child needs specialized medical care.

That left a few questions for the Court to sort out:

• Does the Charter apply to Indigenous governments?

• Is VGFN’s residency requirement discriminatory?

• And do discriminatory laws that protect Indigenous interests get a pass?

The Court split into three camps. Everyone except Justice Rowe agreed the Charter applies to VGFN. The majority (led by Justices Kasirer and Jamal) said the Charter applies to VGFN because it gets at least some of its lawmaking authority from the federal government. Justices Martin and O’Bonsawin disagreed with the majority’s reasoning, saying the Charter should apply to Indigenous governments no matter what.

As for equality, the Court recognized a new protected ground of discrimination: non-resident status in a self-governing Indigenous community. And the Court said the residency requirement infringes Ms. Dickson’s right to equality because it perpetuates her disadvantage as a non-resident.

A non-Indigenous government would need to justify that infringement — but not VGFN.

All thanks to section 25… which says the Charter’s guarantees don’t detract from Indigenous rights and freedoms. The Supreme Court hasn’t given this section much attention. Until now.

The majority’s section 25 framework sorts out situations where Indigenous interests butt up against Charter rights. Here are some of the key points:

• Section 25 isn’t limited to the set of Aboriginal rights the Charter recognizes and affirms. It also protects a broader category of “other” rights and freedoms.

• We know a right fits into the “other” category if “Indigenous difference” is at stake — section 25 covers rights that protect or recognize Indigenous peoples’ cultural differences, prior occupancy, prior sovereignty, or participation in the treaty process.

• And section 25 only shields a law from the Charter if there’s an irreconcilable conflict between an individual Charter right and the conflicting Indigenous right. The first resort is to try and reconcile the competing interests.

That framework leaves Ms. Dickson… out of luck. Under the “other” category, VGFN has the right to set eligibility criteria for its elected leaders, to ensure a connection between leaders and the land. That right protects VGFN’s distinctive culture. And since there’s an irreconcilable conflict with Ms. Dickson’s right to equality, VGFN’s rights take priority.

HEARSAY ROUNDUP

Canadiana

🎧 Interested in the Dickson decision but not the required reading? With dicta, you can listen to an audio version instead. Typically only paying subscribers get access to Supreme Court decisions on dicta, but Dickson is available free of charge — the perfect opportunity to take audio-based law for a test drive.

🍩 Quebec Franchise owners sued Tim Hortons over declining profits. The owners say Timmies’ terms and conditions don’t give them enough room to maneuver in the market.

💳 The Supreme Court is releasing Eurobank v. Bombardier on Friday, dealing with letters of credit. For a primer, see this past edition of Hearsay.

🤝 British Columbia and the Council of the Haida Nation released the draft agreement recognizing Aboriginal title to Haida Gwaii. Under the terms of the agreement, the Haida Nation agreed to honour interests held by private landowners. If those private interests ever escheat to the Crown, the government will transfer full title to the Haida.

🚲 A Saskatoon defence lawyer says police are using a bicycle bylaw as a ruse to stop Indigenous men.

WHAT NOT TO DO AS A LAWYER

→ Don’t suggest that a witness is a “cold bitch” who doesn’t have any friends. That was one of several concerns leading the LSBC to conclude Brett Vining committed misconduct during contentious family law proceedings. Although the witness was the first one to use the offensive words — saying, “[My ex untruthfully said] I’m a cold bitch” — Vining didn’t do himself any favours by responding, “Well, aren’t you?”

BY THE NUMBERS

$4.5 billion: The total compensation four Ontario school boards want to claw back from Big Social. The school boards sued Meta, Snap Inc., and ByteDance (owner of TikTok), alleging that addictive social media has driven up the cost of schooling. Doug Ford isn’t on board.

50/50: The presumptive property split Quebec is introducing for unmarried parents. Right now, the province doesn’t grant cohabitating couples any marriage-like protections. But legislation introduced last week would make at least a modest change to that status quo. If couples who aren’t already in a marriage or civil union have a baby after the law is enacted, they will form a parental union. That status will give them common ownership over the family home, furnishings, and vehicles.

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