The decision of the Supreme Court of Canada in Daniels v. Canada (Indian Affairs and Northern Development), has resolved a longstanding dispute about the scope of section 91(24) of the Constitution Act, 1867. We now know with certainty that both Métis and non-status Indians fall within the constitutional category of “Indians” that is contained in this provision. However, many questions remain about the interpretation and impact of section 91(24). This article will only attempt to address a small sub-set of these questions, focusing primarily on methods of constitutional interpretation. This argument begins by noting that the Supreme Court of Canada in Daniels seems to be using both originalist and progressive techniques of constitutional interpretation. I describe and evaluate the specific evidence raised to support the originalist side of the argument, that is, the claim that the word “Indians” in section 91(24) was always understood as including the Métis. I argue that much of this evidence is not particularly strong, and that some of the arguments developed based on this evidence risk bringing racist and assimilationist beliefs and policies of the time into our contemporary constitutional practice. I then turn to the arguments Abella J. makes for a progressive interpretation of section 91(24) which are much stronger in my view. I conclude by suggesting a variety of ways by which future constitutional interpretation in this field might draw from the stronger progressive side of the Daniels decision, while considering ways to avoid the potential pitfalls of reifying 19th century racial distinctions. Such an approach might provide a stronger foundation for future efforts to achieve reconciliation.
Stevenson, S. Ronald.
"Daniels v. Canada: Reflections on Constitutional Technique."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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