The primary mission of the state is the protection of the individual citizen. – Tony Judt[i]
The well-being of an individual is the ultimate object of all law. – Hersch Lauterpacht[ii]
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In their book, Reason in Law, American political science professors Lief Carter and Thomas Burke, in elaborating on the obvious proposition that appellate court judgments must appear to be impartial, set out the criteria they believe the typical “legal audience” uses to assess the impartiality of an appeal court’s decision. They write:
“When judges justify the result they reach in a case, they must attempt to convince readers that the result does not depend on inaccurate characterizations of the facts in the case, does not depend on false assumptions about social conditions, does not depend on a tortured reading of a rule, and does not depend on a value judgment that the community of readers would reject…This is the test of judicial impartiality, and hence of reason in law…
Judges convince us of their impartiality as long as they have convinced us that they have attempted to describe these four elements accurately. We expect law judges, unlike umpires, to engage in reasoned judgments when they do so.”
The Supreme Court of Canada’s decision, Reference re An Act respecting First Nations, Inuit and Metis children, youth and families, (the Reference decision”), dated February 9, 2024 fails to meet three of these criteria. It mischaracterizes the facts underlying the case. It is based on false assumptions about social conditions, and it makes value judgments that the majority of ordinary Canadians reject. Thus, the decision appears unreasonable and lacking impartiality. And given, as the writers state, that “the law gains its authority through impartiality”, the decision undermines the moral authority of the Supreme Court and causes a loss of social trust in it.
The Act respecting First Nations, Inuit and Metis children, youth and families (“the Act”), was passed by the federal Parliament (“Parliament”) to give to “Indigenous peoples” legal, “culturally appropriate” control over their children. It states that child welfare laws created by “Indigenous groups, communities and peoples” have the force of federal law and take priority over any conflicting provincial law.
Quebec objected to the Act, saying that it was an unconstitutional attack on their jurisdiction over all Quebec children, including Indigenous children. After losing on some key points in the Quebec Court of Appeal, the federal government appealed to the Supreme Court of Canada. The Supreme Court ruled that the entire Act was constitutionally valid, falling “squarely within Parliament’s legislative jurisdiction over “Indians, and Lands reserved for the Indians under s. 91(24) of the Constitution Act, 1867.”
The conclusion of the decision is correct. If Parliament chooses to create and finance a separate child welfare system for Indigenous children, duplicating every province’s already-existing child welfare system, that is a political decision, going to the heart of what the Court called “Indianness”, that is constitutionally valid for it to make, however unjustified, harmful, foolish and wasteful the Act creating this system in fact is.
Courts depart from their proper adjudicative role when they criticize or endorse constitutionally valid legislation based on their view of its political or social merit. Their duty of impartiality prohibits them from expressing or appearing to be influenced by such views. As stated by this writer elsewhere, issues of broad political and economic policy are “unsuited to judicial review” and are not “justiciable”.
Even more so, in their reasons for adjudicating the constitutional validity of legislation, courts must avoid stating their own views of the merits or demerits of the political or social reasons given by the legislators for the passage of it. They may state the legislators’ political or social views, as part of the process of determining or explaining the intention- the “pith and substance”- of the legislation, but they must decline from stating their own views of those views. When they do, their judgements become stained with the appearance of partiality.
This writer has also stated elsewhere his view that the lower courts of Canada are not being seen as independent and impartial in Indigenous cases that come before them. In Indigenous cases they have essentially abandoned the Ethical Principles for Judges that they are bound by and have become partisan advocates for various governments’ pursuits of a non-legal, political, “separate but equal” form of so-called “reconciliation” with Indigenous peoples.
The Supreme Court of Canada’s Reference decision, instead of placing a needed check on these dangerous, partisan tendencies of Canada’s lower courts, has in effect embraced and endorsed them.
In the Reference decision the Supreme Court approved and adopted as its own many of Parliament’s highly debatable political and social reasons for passing the Act. In doing so the Justices have strayed out of their constitutional lane into the partisan lane of elected legislatures. By doing this they have made their Court into just another divisive, political voice in a highly contentious political, social and historical debate that is taking place about a near-existential national issue: the past and present legal, social and political situation of Indigenous peoples in Canada.
In its Reference decision the Supreme Court has gravely harmed its function of being an impartial, credible arbiter of disputes over Canada’s laws relating to this issue, and in so doing has harmed itself, the rule of law and the national interest generally.
In paragraphs 10 and 11 of its decision the Court declared as a fact that:
“For most of Canada’s history, lawmakers have wrongly employed a policy of assimilation aimed at “lifting (Indigenous peoples) out of (their) condition of tutelage and dependence…and preparing them for a higher civilization”…This history, which includes the residential schools policy, the “Sixties Scoop” and the harm and intergenerational trauma that resulted therefrom, is detailed in several reports published in recent decades…The effects of these government policies are still being felt today. “In tandem with the residential school system, the child welfare system…became a site of assimilation and colonization by forcibly removing children from their homes and placing them with non-Indigenous families.” (emphases added)
In paragraph 113 the Court shockingly misstated as a conclusive historical fact that:
“It is no coincidence that the Crown targeted Indigenous children when, at the height of its imperialism, it was seeking to destroy Indigenous cultures.” (emphases added)
It’s not the business of the Supreme Court to sweepingly (and so erroneously) opine on the morality or rightness of “most of Canada’s history” or on something so historically complex and nuanced as “imperialism”. Its role is solely to adjudicate the legal matters and disputes that come before it. its role is decidedly not to adjudicate Canadian history, as it has most improperly done in this Reference decision, as only partially shown in the above quotes.
For 150 years the lawmakers in the various elected legislatures of the Canadian federation, in dealing with Canada’s Indigenous situation, have reasonably considered that assimilation-through-education was one of the primary ways by which Indigenous people could make a successful transformation from their collapsed pre-literate, hunting and gathering culture into the new, industrialism-based world they found themselves in. The Indian Act and reserves were thought to be only temporary. The worthy goal for this entire period was eventual legal, social and economic equality between Indigenous and non-Indigenous peoples.
Assimilation is a primal force for human progress. It fosters cultural vitality. We are all the product of it. Canada’s assimilation policy regarding Indigenous people was deeply and realistically considered. It was and remains fundamentally liberal and enlightened. The alternative- leaving Indigenous peoples uneducated and left to their own devices on or off reserves- was rightly considered to be unconscionable. In treaty deliberations wise Indigenous leaders asked for schooling.
The Supreme Court of Canada here, and throughout the Reference decision, engages in “simplified, cartoonish history” (see Mark Milke below). With zero properly adduced, cogent evidence in support, it mischaracterizes facts, makes false assumptions about past and present social conditions and, in supporting the “separate but equal” race-based idea of how Indigenous and non-Indigenous Canadians should live together today and in future, it makes a value judgment that the majority of Canadians reject.
By describing as “wrong” Canada’s good faith historical attempts to bring Indigenous peoples into a state of full equality with non-Indigenous peoples, the Supreme Court demonstrates its totally irresponsible and misplaced institutional gall. It’s political/historical judgment that Canada’s 150-year behaviour in this regard was “wrong” is now a legal conclusion that is binding on and will be taken judicial notice of by all the lower courts of Canada. Thus, the damage to reasoned discourse on this profound issue and to the appearance of the impartiality of Canada’s entire judicial system will spread and worsen.
The Court makes other inappropriate and ill-informed political/historical statements, with similar damaging effects.
The Court asserts (para. 19) that theAct “will be an important step on the path to reconciliation.”
Neither theAct nor the Court defines “reconciliation”.
An appeal court fails to do its duty and just creates uncertainty when it doesn’t define key terms it uses in its judgements.
The legal audience is left to conclude by this “path to reconciliation” statement, and by having regard to the Court’s later approval (para.86) of some “scholars” statement that “the UNDRIP speaks to the connection between child and family services and Indigenous peoples’ rights”, that the Court is politically endorsing and improperly allying itself with the Trudeau government’s political, non-legal, state-fracturing and racially divisive, UNDRIP-based form of so-called “reconciliation”, whereby “Indigenous peoples” are, through the magic of federal legislation, bureaucratic fiat and massive, permanent, Canadian taxpayer subsidization, elevated to the status of a de facto third order of government, virtually co-equal with the federal government and the provinces. If this is the “path” the Court is referring to, it’s not a path to reconciliation. It’s a path to continued civic infantilization and social failure of Indigenous peoples.
The Court asserts (para. 19) that:
“Parliament places the child at the centre of this idea of cultural continuity for obvious reasons: ensuring that Indigenous peoples themselves exercise control over child services will help to avoid the intergenerational trauma and assimilation policies of the past (see the preamble). The fact that a child resides with members of his or her family and community strengthens the transmission of Indigenous culture and often promotes the child’s best interests.”
Here the Court very improperly politically endorses and allies itself with the Act’s illiberal premise that an at-risk Indigenous child’s perilous, domestic situation is somehow relevant to the “cultural continuity” of his or her Indigenous community. This benignly racist, “cultural purity” notion robs the child of his or her individual agency and makes him or her, instead of being the sole focus of what is in his or her best interests, a cog in his or her racial community’s political agenda. It makes the child mere fodder in the child’s community elites’ power and money seeking ventures, wherein the child’s best interests are, as the Court said, only “often” (!) promoted.
A child’s best interests should always be the sole and only focusand concern. The Act sacrifices the child’s best interests on the alter of Indigenous politics. It’s totally wrong for the Supreme Court to endorse this.
The Act improperly twins the welfare of an at-risk Indigenous child with his or her larger group or community’s goal of promoting a specific collective for the sake of the collective. As articulated by Mark Milke, in The Victim Cult, (from whom this insight is derived), that position, “a problem when the collective is based on racial lineage, presumes that race should trump the right of every child to be treated as belonging to themselves and no one else.” (emphasis added)
The Act assumes an at-risk Indigenous child to be, rather than an individual; “the ultimate unit of all law”[iii], a mere part of a greater blood collective.
It’s a fundamental tenet of our Western Enlightenment heritage that no property rights in any individual man, woman or child can created in or possessed by any individual or group. “There is no property in man.”
The Act wrongly grants quasi-property rights in their children to Indigenous collectives. By doing so it violates fundamental Canadian values and fails to perform the Canadian State’s primary mission: protecting to the fullest extent possible the rights and best interests of individual, underage, Indigenous citizens.
Canada’s Supreme Court, a foundational Western Enlightenment institution, embarrasses and damages itself by so enthusiastically endorsing this fundamentally anti-Enlightenment, illiberal law.
There are many other flaws with the reasons of the Supreme Court in the Reference decision.
Residential schools were necessary and generally positive. Indigenous parents had to apply for their children to attend one. Less than one-third of Indigenous children ever attended one, and usually only for a short time. It’s ridiculous for the Supreme Court to endorse the Act’s false notion that they are the cause of today’s Indigenous social/reserve, tragic dysfunction. The existence of the reserves themselves is the cause of this, which both the Act and the Supreme Court completely sidestep.
The Court endorses (Para. 7) the romantic but judicially dangerous concept of “braiding”, where Canadian “state law and Indigenous law” are “interwoven, with guidance from international law, to form a single strong rope.”
Only states can make and enforce juridical laws. “Indigenous law” is mainly mythical. It is wrong to equate it with state law, or to delegate to tiny, partisan Indigenous groups the power to make law equivalent to and even paramount to state law. Suggesting that “international law” should give “guidance” to Canadian courts in carrying out their duty to adjudicate Canada’s domestic positive law introduces confusion and uncertainty to the rule of law in Canada.
The Supreme Court improperly refers to “Indigenous culture” as if it’s a distinct, self-sustaining, self-evident, healthy reality, when in fact it’s nothing of the kind. Epitomized by the mentally and physically isolating reserve, with all its dangerous and dysfunctional pathologies, Indigenous reserve or “community” culture, as we read in the paper every week, is usually more of a threat to Indigenous children than a source of their well-being. The Actcan’t change that. Indigenous “culture” rejects the Canadian Charter of Rights and Freedoms. Past Indigenous cultures were as “imperialistic”, “colonialist” and violent as all human cultures. The Supreme Court’s Reference decision- a fruitless attempt to make sheer abstractions become truth- gives not a hint of this cold, tragic reality, thus giving an all-pervasive air of unreality to it.
The Court’s improper embrace and endorsement of the evidence-free, seriously deficient concept of “intergenerational trauma” further damages it’s appearance of impartiality.
The Court states (Para. 41) as a bald, conclusory fact:
“In our view the Act protects the well-being of Indigenous children, youth and families by promoting the delivery of culturally appropriate child and family services and, in so doing, advances the process of reconciliation with Indigenous peoples.”
The Court reasonably cannot make such a statement. It could have properly said that the Act aims to do achieve those goals. But to say that it actually achieves them is to engage in soothsaying. The Court has pronounced now on a profound matter in relation to which only time tell will tell, and if past is prologue, time will tell of only more tragedy from destructive social pathologies arising from reserve culture, the root of all the evils besetting Indigenous peoples, which the Act, and this wilfully blind Supreme Court decision do or say nothing to address.
The Supreme Court declared unequivocally (para. 15) that UNDRIP “is incorporated into the country’s domestic positive law.” This means all the country’s federal laws. This will have an inevitable spillover effect on the operation of all of Canada’s provincial laws. Further legal uncertainty and economic harm, which always follows legal uncertainty as the night does the day, will ensue. The Court takes no note of this, despite it being their duty to show understanding of and impart clarity to the law.
The Court expressly declined to rule on the issue of whether Indigenous peoples, as a matter of constitutional law, have the inherent right of self-government, saying that “this remains an open question.” (Para. 127) Rather, the Court merely confirmed that the federal government was within its rights to legislatively affirm that in its (the federal government’s) opinion, Indigenous peoples have the “inherent right to self-government, which includes jurisdiction in relation to child and family services.” It is unlikely that this affirmation binds provincial governments. It is regrettable that the Court lacked the courage to grapple with this fundamental question when the occasion here for it to do so was so ripe.
The advancement and flourishing of Indigenous people in Canada is made near impossible by the victimhood mentality possessed by their elites. Tragically for us all, this is endorsed by our non-Indigenous elites who, with the release of the Reference decision, are now officially joined in this by the Supreme Court of Canada.
In The Victim Cult Mark Milke discusses some of the naïve characteristics of this failure-ensuring mentality:
“Perfectionism and romanticism has led to renewed tribalism spurred by identity politics- let us call them identity isolationists. They retreat to the shell of a mythically pure culture where one’s race or ethnicity or gender is assumed to determine views, opportunities and incomes, especially vis-à-vis other “identities” assumed to have power. Such identity isolationists ensconced in victim cults see human beings not as individuals but as trapped in or benefitting from some category, (such as) Indigenous…The identity isolationist see people and their tribe, in history or now, as conquerors or victims, but never both, which is simplified, cartoonish history.
In addition…is a modern and new third influence. It is the suicidal self-loathing of a mainly Western class of intellectuals and academics (and others who follow them), who breathe in assumptions of Western guilt. This class is, in the best Western tradition, fine with self-criticism of their own civilization but too often negates the unique benefits of the last five Western centuries, faults notwithstanding…Some in the West are self-critical to the point of civilizational suicide.”
Lawyers who practice courtroom law know that at the end of a trial, when the judge is making his decision, the most important person in the courtroom is the losing litigant.
That person doesn’t just have to know that he lost. He has to know, from the judge’s reasons, why he lost. If the judge’s reasons reflect principled impartiality, and if they fully explain why the judge decided against his arguments in favour of the competing arguments that prevailed, then the mental and emotional pain with which he leaves the courtroom is somewhat assuaged by his still-intact- perhaps even greater for the experience- faith in the system.
Win or lose, anyone’s experience with the justice system, when all involved properly perform their functions, is an impressive one- an experience that enhances one’s faith in “the system.”
In Reason in Law Professors Carter and Burke write about former American Supreme Court Justice David Souter who was a leader of his Court because he“acknowledged the weight of opposing arguments and discussed and defended his own choices among competing rationales.” By way of this rational humility, far-seeing empathy for the losing side, and intellectual honesty, he enhanced his Court’s appearance of impartiality, and he increased social trust in it.
The main “losing side” of this Indigenous child welfare decision are at-risk Indigenous children, whose best interests are being placed further at risk by it.
The other “losing side” is the majority of all Canadians, including this writer, who believe that the Canadian state should responsibly stay in charge of Indigenous child welfare, and who believe, more generally, that Martin Luther King’s and Nelson Mandela’s goal and vison of full equality under the law for all Canadians should be a strong, ever-present, presumptive element in all the Supreme Court’s deliberations on Indigenous issues.
As it is now, meaningful consideration of Western Enlightenment values is, inexplicably to Canadians, completely missing from all Supreme Court reasoning in Indigenous law cases, including the Reference decision.
Ordinary Canadians’ realistic view of the facts, our realistic assumptions about Indigenous social conditions, and our liberal, universalist values are all ignored by the Supreme Court of Canada in the Court’s Reference decision. Our inward “opposing arguments and competing rationales” are neither dealt with nor even acknowledged. We are not told why our Western Enlightenment thoughts and feelings are all misplaced.
Not being properly told why we “lost”, we leave the experience of reading the Reference decision with, in relation to this profound area of Canadian life, a lessening of our faith in the impartiality and wisdom of the Court and a sense of hopelessness about Indigenous and non-Indigenous Canadians ever being able to achieve true reconciliation, which can only be achieved where everyone, regardless of his or her race, is equal under the law.
Supreme Court Justice Mary Moreau recently said in a public speech that Canadians must be able to see themselves in the justice system without feeling that they’ve been marginalized or excluded.
Given that the majority of Canadians cannot see themselves or their liberal, universalist values reflected anywhere in the Reference decision or in most other Supreme Court Indigenous law decisions, it’s clear that the Supreme Court has a long way to go on that score.
Peter Best
February 20, 2024
[i] From his essay, The Stateless State: Why Belgium Matters, contained in his book Reappraisals- Reflections on the Twentieth Century, The Penguin Press, New York, 2008
[ii] Originator of the legal idea of “crimes against humanity”, quoted in Phillipe Sands’ East West Street. Vintage Books, New York, 2017
[iii] Hersch Lauterpacht, quoted in East West Street. above
