How the Dissent in Sharma Opens the Door to Indigenize the Section 15(1) Charter Analysis
Bibliographic record
Abstract
This paper explores how the dissenting opinion in R. v. Sharma opens the door for Indigenizing the analysis under section 15(1) of the Canadian Charter of Rights and Freedoms. It considers how the dissenting opinion creates a pathway for strengthening Indigenous women’s rights under section 15(1) by expanding the range of impacts considered when assessing disadvantage in the equality analysis. It argues that in a case alleging a violation of Indigenous people’s section 15(1) rights, the courts can consider the impugned law’s impacts on Indigenous laws, including Indigenous people’s roles under those laws. Any interference with these roles should be recognized as a harm that reinforces, perpetuates and exacerbates the disadvantage of Indigenous peoples at the second stage of the section 15(1) Charter analysis. This paper (1) reviews the importance of recognizing Indigenous laws relating to Indigenous women when adjudicating Charter rights; (2) considers how the dissenting opinion facilitates recognition of Indigenous laws in the equality analysis; and (3) explores how the “constitutional imperative of reconciliation” can form a paramount consideration in future determinations of equality rights. The explicit recognition of the importance of reconciliation and the implicit acknowledgement of Indigenous laws by the dissenting judges form part of a developing trend of judicial engagement with these principles, and signals a potentially transformative development in equality rights jurisprudence. The distinct constitutional status of Indigenous peoples in Canada can be reflected through the meaningful consideration of Indigenous laws in the adjudication of section 15(1) Charter rights. In the case of Sharma where Indigenous women faced incarceration, Indigenous laws on the roles and responsibilities held by Indigenous women tell a different part of the story on how Canadian laws reinforce, perpetuate or exacerbate disadvantage – not only to the woman confronting removal from her family and community, but also to those around her. Engaging with these broader considerations allow for a more holistic analysis under section 15(1) of the Charter.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.025 | 0.032 |
| Meta-epidemiology (narrow) | 0.001 | 0.000 |
| Meta-epidemiology (broad) | 0.000 | 0.001 |
| Bibliometrics | 0.001 | 0.001 |
| Science and technology studies | 0.017 | 0.028 |
| Scholarly communication | 0.011 | 0.006 |
| Open science | 0.003 | 0.005 |
| Research integrity | 0.011 | 0.020 |
| Insufficient payload (model declined to judge) | 0.003 | 0.001 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".