Native Women's Association of Canada V. Canada - Decision

Decision

The Supreme Court majority, represented by John Sopinka, did not share the view of the Federal Court of Appeal and ruled against the rights claimants. The Court did, however, reject the government's argument that the Charter was not applicable at all. The government had said that if NWAC was excluded from the discussions, it was the fault of the AFN, NCC, ITC and MNC, since they did not share their funds more equally, and the Charter does not apply to these Aboriginal groups but only to the government itself. As the Court noted, it was to whom the government itself gave its money to that was the real issue.

Nevertheless, in its discussion of sections 2 and 28, the Court found in favour of the government. The Court followed its precedent in Irwin Toy Ltd. v. Quebec (Attorney General) to find that discussing constitutional issues with the government is "unquestionably" a form of expression, of the kind referred to in section 2. However, the government did not seem to be guilty of suppressing this expression, which Irwin Toy also requires for the section 2 claim to succeed. The question, then, was whether the consequence of the government's actions was to limit Aboriginal women's free speech, even though the government had seemed to want a discussion, and whether section 28 was infringed when the groups claimed to primarily represent Aboriginal men were given more opportunity to expression than NWAC. In making this claim, NWAC acknowledged that the government was not required by section 2 to provide this type of financial support in ordinary circumstances, but since the government had agreed to support the other groups, the support for interest groups should be fair and equal.

The Court considered the case Haig v. Canada, which had also seen some positive claims under section 2 in relation to the Charlottetown Accord. NWAC believed Haig dictated that if expression were to be supported by the government, it should be fair and the Charter should apply, and that section 28 reinforced NWAC's claim. The Court, however, argued that firstly, funding for diverse groups could not be the rule with every governmental study, or "the ramifications on government spending would be far reaching indeed." They also quoted a United States Supreme Court free speech case, in which it was noted that the government is engaged in many studies and does much, and if the Constitution was applied to make sure everyone is represented in the process, the process would be slow. If positive obligations under section 2 are rare, then, the Court noted that it was never actually proven that the AFN, NCC, ITC and MNC represent Aboriginal men over Aboriginal women, or that these groups were pushing for self-governments that would favour Aboriginal men. The ITC, for example, not only denied that the ITC represented Inuit men above women, but that NWAC itself did not represent Inuit women, as this was the role of the group Pauktuutit. The Court also believed that the AFN, NCC, ITC and MNC could carry NWAC's concerns to the discussions.

The Court briefly dismissed challenges under section 15, as these were closely related to those under section 2. Indeed, the Court wrote that NWAC's "contentions regarding ss. 2(b) and 28 of the Charter are better characterized as a s. 15 Charter argument." The Court also briefly dismissed claims under section 35 of the Constitution Act, 1982, which entrenches Aboriginal rights equally for men and women. As the Court noted, there is no Aboriginal right or treaty right to debate constitutional reform.