In the thesis I’m in the midst of writing, about burdens of proof in litigation between First Nations and the Crown pursuant to s.35(1) of the Constitution Act, 1982, I argue that the Crown invariably takes a position that denies any meaning to the guarantees of Aboriginal and treaty rights in that section, contrary to numerous Supreme Court decisions.
I’ve just come across a statutory example of the same sort of conduct in the Proceedings of the Senate Committee on Aboriginal Peoples, from May 31, 2010, almost two years ago.
In 2088, Parliament amended the Canadian Human Rights Act (CHRA) by repealing s.67, the section that exempted the Indian Act and its administration from the CHRA. The amendment took effect more or less immediately as regards the Indian Affairs Department and other federal agencies and three years later to First Nations or band council administrations. (The proceedings were actually about another recent bill that provides for division of matrimonial property on reserve, a matter not covered by provincial legislation.) When the bill was before Parliament a number of my colleagues observed that the bill would affect the federal government far more than band councils.
The witness before the Aboriginal Peoples Committee was the Deputy Chief Commissioner, Canadian Human Rights Commission, David Langtry and Valerie Phillips, Counsel, Legal Advisory Services, Canadian Human Rights Commission.
Senator Baker (Lib, NFLD) read a short quotation from the then recent report of the Canadian Human Rights Commissioner, “Since the repeal of section 67 of the CHRA, all complaints the commission has received have been challenged by the Attorney General on several issues including what constitutes a "service". Sen. Baker asked Mr. Langtry and Ms. Phillips to elaborate.
Mr. Langtry replied that the Commission had received a number of complaints since the Act came into force as regards the federal Government,
whether that be in the funding of services on reserves or the lack of funding for services …, as well as registration of Indians or what have you. … [I]n each and every case, the response from the federal government as respondent has been to say that it does not constitute a service under section 5 of our Act.
Section 5 of the CHRA (R.S.C., 1985, c. H-6 states:
5. It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public
(a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or
(b) to differentiate adversely in relation to any individual,
on a prohibited ground of discrimination.
Ms. Phillips, Counsel to the Commission, elaborated further. The Commission has:
a mandate to deal with complaints unless it is plain and obvious that we lack jurisdiction. On our initial screening of a complaint we can reject a complaint only it is plan and obvious we lack jurisdiction. In the cases that we have received since the repeal of section 67, there is no case law preceding this situation, so it is not plain and obvious.
This effort to circumvent the plain meaning of a statute is all the more interesting because the CHRA amendment repealing s.67 was brought to Parliament by the same Government as has chosen to contest the authority of the CHRA, and to challenge it not where there is a real question as to its mandate, but where the limitation imputed by the Government “is not plain and obvious.”
Given that this pattern has recurred quite often it would be most interesting to see this question put as a Reference case to the Supreme Court: (1) Does the registration of persons under the Indian Act constitute a service? (2) Does the provision of funds by Canada to First Nations governments or band administrations constitute a service within the meaning of s.5 of the CHRA?
There are, of course, legal academics who may choose to say that there is no such thing as “plain meaning” and, hence, a limitation cannot be “plain and obvious.” I’m not entirely convinced this kind of argument deserves a reply. The reply I will nonetheless offer, begins with Supreme Court decisions in which other Government departments, CRA for example (or Revenue Canada) as it then was, relied on the treatment of the invoking of relatively esoteric (my word) definitions. (Will-Kare Paving & Contracting Ltd. v. Canada, 2000 SCC 36.)
In contrast, the Court favoured what Justice Major described as “the plain meaning” in its modern sense. (I’m not sure what is meant by “the modern sense, since the term goes back at least to 214 C.E. Perhaps some SLAW reader might help me out on that point?) Bryan Garner, in his discussion of “Plain Language” (A Dictionary of Modern English Usage, 2d ed.) begins with a quotation from Albert Einstein, who said that “his goal in sating an idea was to make it as simple as possible but no simpler.”
Plain language may not be identical in meaning with plain meaning, but I suggest that they have a significant overlap in this context. In Will-Kare, the Revenue Dept. produced a notion of “sales” that seemed to the Court to be quite out of line with the plain meaning. Major J. looked to two sources for the plain meaning of “sale” or “to sell”: (1) the parliamentary debates on the section in dispute; and, (2) the use of these terms by people in one or another market place.
To come back to the interpretation of the word “service” (which, like “sale” has both a verb form and a noun form each widely used) I wonder whether the plain meaning of service would be much harder to establish than the meaning of “sale” or “to sell”?
The repeal of s.67 was intended to give greater parity of services to people in First Nations (“living on reserve”) and those living elsewhere. The complaints against the Government will be more numerous than those against First Nations Governments because most of the administrative work done by First Nations is done under contracts, in which the band administration serves as the local agent of Indian Affairs.
If words such as “service” are to be defined in terms no one outside the Indian Affairs Branch and the Justice Department recognize what was the purpose of going to the trouble, over several sessions, of getting a bill through Parliament that would bring Government under the terms of the CHRA? If it is a policy goal of this government to eliminate excess fat from the public service, why are they keeping lawyers on staff with directions to produce these kinds of gratuitous arguments, contrary to the express will of Parliament.