Undemocratic Law and Policy Must Be Challenged ...
Here in Canada the Court Challenges Program (CCP) was instituted by the Trudeau Liberals in 1978 to help language rights cases. In 1985, the CCP was expanded to cover equality rights when the Canadian Charter of Rights and Freedoms became a central part of Canada’s constitution. The idea was that the program was a much needed mechanism that would provide funding to people in need when challenging discriminatory and oppressive laws. It has been stated that through the CCP,
"The provisions of the Charter could only be clarified by the courts if they were challenged by litigants. But the cost of a complex court challenge is out of reach for most individuals, especially people facing discrimination under the law because of poverty, race, disability, gender or sexual orientation." Click here for more.
While the CCP was a much valued and needed democratic institution, in 2006 Prime Minster Steven Harper, and his conservative government, quashed the Charter aspect of the program. Citing “left wing fringe groups” as the reason, Harper argued there was no reason for his government to subsidize lawyers when challenging Canadian laws.
How is this Democratic?
With this decision Harper was of the thought that laws offer an absolute truth that are not constructed through cultural lenses, whereas such law cannot and does not create barriers for many people such as people with disabilities, differently gendered people, and Indigenous people. Indeed in making this decision to cut the Court Challenges Program Harper was, and possibly remains, incredibly ignorant of the limitations of a legal and economic system constructed by and through for the most part privileged able-bodied hetero-sexual White men. His line of reasoning failed to be objective about the limitations of his own paradigm. Clearly Canada is not a democracy.
In 1985 when the Indian Act was amended to bring it in line with the Charter of Rights and Freedoms I thought the discrimination would be removed. I was hopeful that the Charter held real meaning. When I realized that Canada’s law and policy makers continued with the goal of unmaking legally recognized Indians rather than opt to take a genuine effort at eliminating the sex discrimination I was disillusioned to say the least. Eventually I came to understand that often times legislative change is an opportunity to construct laws and policies that continue with the same goals through making the law and policy more complex. I also learned that legislative change sometimes means removing provisions in law and re-constructing them as policy and standard operating practices. I quickly learned that Canada is not a democracy at all.
An Intergenerational Effort to Remove the Sex Discrimination
Most people know that I have been involved in a lifelong effort to gain Indian status registration. While I have been working on this effort for 30 years, this is an effort that has really been an intergenerational effort. It was in the 1920s when my great grandmother, great grandfather, and grandmother where escorted out of their First Nation community of Golden Lake now called Pikwakanagan First Nation. Further, it was in 1945 when my great grandmother sent a letter to Indian Affairs asking if she was considered to be an Indian where shortly after she was told that due to her marriage to a man who was a White man she was now considered to be a White woman.
After the Indian Act was amended to bring it in line with the Charter of Rights and Freedoms I went through the process of learning family oral history as well as a long and difficult archival research process eventually filing my application for Indian status. It was here when I learned that the Indian Act was amended in a way that created new forms of sex discrimination. And I learned that this new discrimination was the reason I was not entitled to Indian status and the treaty rights attached to Indian status. But I was literally stuck. I certainly did not have the money to persue my situation into a long and drawn out legal struggle.
Eventually I was able to obtain legal counsel and funding through the CCP fund. I was grateful. Without this CCP funding I could not challenge the law and policy constructed through Canada’s parliamentarians that were in direct violation of the Charter of Rights and Freedoms. Needless to say I was appalled when Harper quashed the very fund that I was relying on. Clearly Canada was not a democracy. Through my experience I knew this all too well. Slowly I came to despise Canada and all it stood for: the flag, the song, its fictional history, and people who claim to be proud Canadians, the latter I regard as incredibly racist and offensive.
With the recent government change to a new generation of Trudeau liberals, a new Minister of Democratic Institutions, Maryam Monsef, and the Minister of Indigenous and Northern Affairs, Carolyn Bennett, it will be interesting to see if the Court Challenges Program is reinstated to its full capacity. Clearly undemocratic laws and policies need to be challenged.
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Lynn Gehl, Ph.D. is an Algonquin Anishinaabe-kwe from the Ottawa River Valley. She has a section 15 Charter challenge regarding the continued sex discrimination in The Indian Act, and is an outspoken critic of the Ontario Algonquin land claims and self-government process. She has three books: Anishinaabeg Stories: Featuring Petroglyphs, Petrographs, and Wampum Belts, The Truth that Wampum Tells: My Debwewin of the Algonquin Land Claims Process, and Mkadengwe: Sharing Canada's Colonial Process through Black Face Methodology. You can reach her at firstname.lastname@example.org and see more of her work at www.lynngehl.com.