Constitutional Law – Canadian Charter of Rights
and Freedoms – Discrimination
The Respondents, Métis who also identify as status
Indians, brought an application alleging that provisions of
Alberta's Métis Settlements Act
("MSA") that prohibit status Indians
from being members of a Métis settlement violated ss. 15,
2(d) and 7 of the Canadian Charter of Rights and Freedoms
("Charter"). The Chambers Judge
dismissed the application.
The Alberta Court of Appeal concluded that the provisions
breached s. 15 of the Charter. The Supreme Court
overturned the Court of Appeal's decision. Most of its analysis
focused on the application of s. 15(2) of the Charter to
The court emphasized that s. 15(2) permits governments to
improve the situation of members of disadvantaged groups by
permitting the establishment of ameliorative programs aimed at a
particular group. These programs necessarily confer benefits on
certain groups and not others. Section 15(2) permits governments to
"set priorities" and does not oblige governments to
assist all disadvantaged groups at the same time. To be protected
by s. 15(2) the distinction does not need to be essential to
realizing the object of the ameliorative program. An impugned
distinction simply must advance, in a general sense, the object of
The court concluded that s. 15(2) protected the MSA provisions.
The provisions constituted a program designed to establish a
Métis land base in order to enhance and preserve the
identity of Métis. In light of the relevant historical and
constitutional recognition of Métis, the court found that
this program should be considered to be an ameliorative
The court also concluded that the distinction drawn between
Métis and Métis who are status Indians served and
advanced the objects of the program. The court held that in order
for the program to be caught by s. 15(2) the government simply had
to show that it was rational to conclude that the distinction
contributed to the ameliorative purpose. Following a consideration
of the Métis history and the constitutional context the
court concluded this test was met.
The court also held that eliminating the distinction would risk
undermining the program. It noted that its conclusions were
strengthened by the fact the distinction at issue was the product
of consultation with the Métis community. The court
acknowledged that individuals may assert multiple identities but it
held that s. 15(2) permits a line to be drawn between groups in
order to fulfill a valid ameliorative purpose.
The court rejected the s. 2(d) claim on evidentiary grounds. In
addition, the court concluded that even if "place of
residence" is a protected interest covered by s. 7 the
Respondents had failed to demonstrate a breach of this section.
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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