Subsection 17: Ameliorative Law

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Does subsection 17(5) of the Act constitute an ameliorative law or program within meaning of s. 15(2) of the Charter? No. Subsection 17(5) of the Act does not establish an ameliorative law to make the conditions of Canadian Aboriginals better within the context of s. 15(2) of the Canadian Charter of Rights and Freedoms. It takes away the right of other ethnic groups and races from being able to adopt an aboriginal child and is possibly subject to racial discrimination. If it is meant to improve conditions for aboriginals, it may be doing the opposite for other groups of people that are specifically not of aboriginal descent.

Subsection 17(5) of the Act states that aboriginal adoption consent is not subject to the section 17(1) of the act,
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residential schools for aboriginal children). It may have been established in such a way so that aboriginals may preserve their culture and pass it down through generations. S. 7 of the Canadian Charter of Rights and Freedoms states everyone has the right to life, liberty and justice and may not be deprived thereof except in accordance with the principles of fundamental justice. From my understanding, these rights may be taken away to deliver justice; so in accordance to subsection 17(5) of the Act, the rights stated in s. 7 are taken away by subsection 17(5) of the Act such that aboriginals may not lose their culture and heritage. In the case of Yves De Clerico and Madeline Haque v. Ontario (Children and Youth Services) and Justin Benoit, subsection 17(5) of the act does infringe s. 7 of the charter and cannot be justified because a) all steps have been taken by Yves De Clerico and Madeline Haque to preserve Jeffrey’s culture and heritage, and b) Yves and Madeline are better fit to be parental guardians for Jeffrey than Justin Benoit due to his lack of experience and his history of drug abuse, in addition to not being present in Jeffrey’s life, therefore there is no justice owed to him (Justin) with regards of having the right to take care of his

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