WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) Order excluding media representatives or prohibiting publication.

The court may make an order:

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

45.— (8) Prohibition: identifying child.

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

45.— (9) Idem: order re adult.

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Ontario Court of Justice

Date: June 28, 2017

Court File No.: Toronto CFO-13361/15

Between:

Native Child and Family Services of Toronto, Applicant,

— AND —

C.R. Respondent

— AND —

S.E. Respondent

— AND —

Qalipu Mi'kmak First Nations Band – St. George Indian Band Respondent

Before: Justice M.L. Cohen

Reasons for Judgment released on: June 28, 2017

Counsel:

• Rebecca Kingdon – counsel for the applicant society
• Sarah Clarke – counsel for the Office of the Children's Lawyer, Legal representative for the child S.E.

Judgment

COHEN, M.L. J.:

Introduction

[1] This is a ruling on whether the definitions of "Indian" and "Native" person in the Child and Family Services Act violate the equality rights guaranteed under section 15(1) of the Charter.

[2] The Charter claim arises in a motion by Native Child and Family Services of Toronto ("NCFST") for summary judgment in a child protection application. In its summary judgment motion the society seeks a finding that S.E., born […], 2015, is in need of protection under section 37(2) (a), (b), (e), and (g), of the Child and Family Services Act, and an order for crown wardship without access to the child for the purposes of adoption.

[3] S.E. is an Indigenous child. His mother is Indigenous and his father is not. His maternal grandmother is a registered member of the Qalipu Mi'kmak First Nations Band – St. George Indian Band (Newfoundland), and is a Status Indian under the Indian Act.

[4] Section 47(2) (c) of the Act requires the court to make a determination whether a child is an Indian or Native person and, if so, the child's Band or Native community, before determining whether a child is in need of protection. The society asks the court to find that S.E. is neither an Indian or Native person as defined by the Act.

Statutory Definitions

[5] The Child and Family Services Act defines who will be considered an "Indian" or "Native child" for purposes of the Act. Section 3 (1) provides that:

• "Indian" has the same meaning as in the Indian Act (Canada).
• "Native person" is defined as a person who is a member of a native community but is not a member of a band.
• "Native child" has a corresponding meaning.
• "Native community" is defined as a community designated by the Minister under section 209 of Part X (Indian and Native Child and Family Services) of the Act.
• "Band" has the same meaning as in the Indian Act (Canada)
• "Extended family" means persons to whom a child is related, including through a spousal relationship or adoption and, in the case of a child who is an Indian or native person, includes any member of the child's band or native community.

[6] S.E. does not fall within any of these definitions. He may qualify for status under the Indian Act if his mother applies for and is granted membership in the Qalipu Mi'kmak First Nations Band – St. George Indian Band (Newfoundland). However, there is no evidence she has made such an application. S.E. himself cannot make the application. As a result, S.E. does not have Indian status and is not as an "Indian person" under the CFSA.

[7] S.E. is also not a "Native child" under the Act. His grandmother's Band, Qalipu Mi'kmak First Nations Band – St. George Indian Band (Newfoundland), is not a "Native community" under the CFSA.

[8] The CFSA contains many distinct provisions which are relevant to, and beneficial for, Indian and Native children as defined in the Act. Although S.E. has been treated as an Indian child by the NCFST, since he does not fall into the definitions I have set out, he has no statutory right to those benefits.

Prior Case Law

[9] In the case of Catholic Children's Aid Society of Hamilton v. G.H., [2016] O.J. No. 5233 (hereinafter referred to as "G.H."), Chappel, J. of the Superior Court of Justice declared the definitions of "Indian" "Native person" and "Native child" in section 3(1) of the CFSA to be invalid on the basis that they infringe section 15(1) of the Charter. She then suspended the declaration of invalidity for a period of ten months, to permit the Ontario government to take steps to resolve the constitutional issue. To forestall prejudice to the child by the delay this would entail, she granted the child in that case an individual remedy under section 24(1) of the Charter. The remedy was that:

The child E.D.V. shall for all purposes relating to the Protection Application herein and any subsequent child protection proceedings be treated as if he were an Indian, Native person or Native child within the meaning of section 3(1) of the Child and Family Services Act. (par.114)

[10] Counsel for the child in the case before me asks the Court to follow G.H, that is to find that in distinguishing only some Indigenous persons who will benefit from the CFSA, the definitions create analogous grounds of discrimination, and perpetuate the disadvantage of Indigenous peoples, thereby violating section 15(1) of the Charter. She asks that S.E. be granted the same remedy as was granted in G.H.

Position of the Parties

[11] The Society takes no position on the child's Charter application.

[12] The mother filed an Answer in the protection application, but has otherwise not participated in the proceedings. As the mother did not respond to the summary judgment motion, I have noted her in default on the motion.

[13] The father has not filed an Answer, and he has been noted in default.

[14] The Qalipu Mi'kmak First Nations Band- St. George Indian Band has been served, and a Band representative, the Indian Registration Administrator, is in communication with the society. The Band has not formally responded to the application or the motion.

[15] Neither the Attorney General of Ontario nor the Attorney General of Canada responded to, or appeared on, the Charter motion, although duly served.

Background

[16] E.S. was apprehended by Native Child and Family Services of Toronto shortly after his birth. He was placed in the society's temporary care on October 15, 2015. Although both parents exercised access on a few occasions, they have not seen E.S. in over a year. The Society's plan is to place E.S. with his paternal aunt and uncle for purposes of adoption. E.S. has been in their temporary care and custody since April 20, 2016, and they wish to adopt him. The child is doing well in the care of the aunt and uncle.

[17] The society states that the non-Indigenous kinship/proposed adoptive parents have been proactive in connecting with the child's First Nation, and that they are open to ensuring his cultural and spiritual needs are met.

[18] There is no other plan before the Court.

Evidence Regarding the Parents

[19] According to the materials filed, the mother has four children, all of whom were removed from her care. Two of her children were placed in the custody of their father, (not the father in this case), and one has been made a crown ward. The fourth is the child before this Court.

[20] The mother suffers from chronic substance abuse, mental health issues, transience and domestic violence. Her problems are longstanding. The father has similar difficulties, and has not engaged with the society.

Evidence Regarding the Child's Eligibility for Indian or Native Status

[21] Section 3 of the CFSA defines "Indian" as having the same meaning as in the Indian Act (Canada).

[22] The Indian Act provides for an Indian Register in which are recorded all persons entitled to be registered as Indians under the Indian Act (s.5). Categories of persons entitled to be registered are set out in Paragraph 6 of the Act. I reproduce here the provisions referred to by the Qalipu Mi'kmak First Nations Band in their communications with the society:

Persons entitled to be registered

6 (1) Subject to section 7, a person is entitled to be registered if

(b) that person is a member of a body of persons that has been declared by the Governor in Council on or after April 17, 1985 to be a band for the purposes of this Act;

[23] Section 6(2) provides that:

(2) Subject to section 7, a person is entitled to be registered if that person is a person one of whose parents is or, if no longer living, was at the time of death entitled to be registered under subsection (1).

The Government of Canada's recognition of Mi'kmak eligibility for registration under the Indian Act did not occur until 2011. The Qalipu First Nation Indian Registration Administrator has advised the society of the following:

• There is an enrollment process ongoing between Indigenous and Northern Affairs Canada and the Federation of NL Indians (the group that ultimately created the Qalipu Mi'kmak First Nation). In this enrollment process individuals had the option to submit an enrolment application that could potentially end with their receiving their registration number, if INAC and the Enrolment Committee found their application to be eligible.

• The maternal grandmother "was grandfathered" into her 6(1) (b) status, and all persons who applied between 2008 and 2012 were also put into that category.

• In order for recognition to be passed on to a child, "…it has to be the direct parent (mother, father or both)… that currently have to be a member of an Indian Act band either being a 6(1) (b) Persons who are members of groups declared to be new bands by the Governor in Council, or a 6 (2) –Persons with one Indian parent registered or entitled under a 6(1) provision. If the parents do not have this classification then the child cannot receive their registration number."

• If [the mother] did not apply during that time then she would be 6 (2), making her child ineligible for status…"

• The mother is not currently a member of the Band.

• The only way the child would be able to qualify would be if his biological mother had applied for membership.

• If she applied and is found to be ineligible the child cannot qualify to be a member.

[24] To summarize: by virtue of the maternal grandmother's status, the mother is eligible for membership in the Band. To become a member she must make an enrolment application. It appears she has not done so. Even If the mother does apply for membership, it is not clear she would be successful. If she is successful, the child could be eligible for membership in the Band. If the child has membership in the band, he would become an Indian child under the definition in the Child and Family Services Act. But because his mother has failed to make the application, and has not been registered, and because his eligibility depends on his mother's status, he is not an Indian child under the CFSA.

[25] As I have already pointed out, S.E. is also not a Native child under the Act. According to section 3 of the Act, S.E. will only be a Native child if he is a member of a Native community and not a Band. The CFSA defines a "native community" as a community designated by the Minister under section 209 of Part X (Indian and Native Child and Family Services) of the Act.

[26] There are few designated Native communities in Ontario. In Children's Aid Society of Halton Region v. M.M., 2016 ONCJ 323, Starr, J. received evidence from the Ministry of Children and Youth Services that:

The only time that the Minister has designated native communities to date was in 1995. Thirteen First Nation communities in the District of Thunder Bay and the District of Algoma were designated as native communities for purposes of designating Dilico Ojibway Child and Family Services as a children's aid society. (par. 33)

[27] Even if the Minister designated other Native communities, the Qalipu First Nation could not be a Native Community because it is located in Newfoundland and therefore outside the Minister's jurisdiction.

Significance of Indian or Native Status Under the CFSA

[28] The CFSA contains numerous provisions relating to Indian and Native children. These provisions form a distinct component of the structure of the CFSA, and create specific obligations binding the society and the Court. The following are some salient examples. The CFSA:

• Recognizes that Indian and Native people should be entitled to provide, wherever possible, their own child and family services, and that all services to Indian and Native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family;

• Makes the Band a party in any proceeding, and requires the society to give written notice of its intention to place a child for adoption to the band or Native community representative, and the band or community is then entitled to prepare and submit its own plan for the care of the child to the Society;

• Requires that a court making a best interest determination for an Indian or Native child take into consideration "the importance, in recognition of the uniqueness of Indian and Native culture, heritage and traditions, of preserving the child's cultural identity";

• Requires that unless there is a substantial reason for placing the child elsewhere, the court shall place the child with, a member of the child's extended family, a member of the child's band or native community or another Indian or Native family;

• Requires the society to place Indian or Native children made society or crown wards with a member of the child's extended family, a member of the child's band or Native community or another Indian or Native family, if possible;

• Requires the society where an Indian or Native child is made a Crown ward, to make all reasonable efforts to assist the child to develop a positive, secure and enduring relationship within a family through a plan for customary care;

• Requires the society to regularly consult with their Bands or Native communities about the provision of the services or the exercise of the powers and about matters affecting the children…

[29] It is manifest in these and other provisions that the CFSA presumes that an Indigenous child's best interests lie within Indigenous families and communities, and that Indigenous families and communities should be considered the primary source of care for Indigenous children.

[30] Understood purposively (and historically), compliance with the legislative requirements is necessary to protect Indigenous children and families. These sections may be understood as a bulwark against a repetition of the notorious child removal and adoption practices affecting Indigenous families known as the "sixties scoop."

[31] The sixties scoop was described by Belobaba, J. in Brown v. Canada (Attorney General), 2017 ONSC 251 at Paragraphs. 5-7:

There is no dispute about the fact that thousands of Aboriginal children living on reserves in Ontario were apprehended and removed from their families by provincial child welfare authorities over the course of the class period – from 1965 to 1984 – and were placed in non-Aboriginal foster homes or adopted by non-Aboriginal parents.

There is also no dispute about the fact that great harm was done. The "scooped" children lost contact with their families. They lost their Aboriginal language, culture and identity. Neither the children nor their foster or adoptive parents were given information about the children's Aboriginal heritage or about the various educational and other benefits that they were entitled to receive. The removed children vanished "with scarcely a trace." As a former Chief of the Chippewas Nawash put it: "[i]t was a tragedy. They just disappeared."

The impact on the removed Aboriginal children has been described as "horrendous, destructive, devastating and tragic." The uncontroverted evidence of the plaintiff's experts is that the loss of their Aboriginal identity left the children fundamentally disoriented, with a reduced ability to lead healthy and fulfilling lives. The loss of aboriginal identity resulted in psychiatric disorders, substance abuse, unemployment, violence and numerous suicides…

[32] Determining whether a child is "Indian" or "Native" is therefore a matter of profound significance in Ontario's child protection statute. If an Indigenous child is not so found, what would otherwise be the child's right to the multiple protections under the Act is reduced to a privilege to be exercised at the discretion of a society.

Contextual History

[33] With this understanding in mind, and before I approach the Charter issues, I turn to a contextual issue: How has Native status been addressed in the mother's child protection proceedings? Here I acknowledge that I am limited to the pleadings and affidavits that are before me. I do not have a complete record.

[34] As I have already noted, the mother has a lengthy history of chronic substance abuse, mental health issues, transience and domestic violence. Prior to her involvement with Native Child and Family Services, she was involved with the Catholic Children's Aid Society of Toronto (CCAST).

[35] The mother has three previous children, two of whom are the children of a different father, C.V. Those children, now ages 11 and 5, were placed with C.V. under a section 57.1 custody order in February, 2014. They are now before another court in separate child protection proceedings. The father of the third child, age 3, is the father of the child before this court. That child was made a Crown ward without access on September 22, 2015.

[36] Notwithstanding their Indigenous heritage, there is no evidence that any of these children were found to be "Indian" or "Native" under the Act.

[37] As I have indicated, I do not have the complete record of all the proceedings involving the mother's other children. However the evidence I do have is instructive:

• There is a letter in evidence from the CCAST worker to the mother dated November 25, 2013, indicating she had called Native Child and Family Services because the mother was requesting a file transfer. The worker states that "they will not accept the file when there is an active court case." The mother was also advised that:

I want you to know that transferring a file from one agency to another is a process, and when court is involved it can be complicated and the timing has to be appropriate.

• The letter is evidence that at least as of November 25, 2013, the CCAST was aware that there was a possibility that the child (and mother's other children) might be Indian.

• Two Statements of Agreed Facts from status review proceedings involving the two oldest children dated August 27, 2013, and February 19, 2014, have been filed in this proceeding. In neither Statement of Agreed Facts is there any statement regarding the Indian or Native status of those children as required by the prescribed form 33D. The form is truncated and the information is absent.

• There is an affidavit authored by a social worker from the CCAST, sworn September 17, 2014, indicating that she met the maternal grandmother on two occasions, and discussed whether the maternal grandmother might be a possible placement for the mother's third child. The maternal grandmother has Indian Status. There is no evidence the social worker had any discussion with the maternal grandmother about the mother's or the child's possible Indian status.

• The mother's third child was made a crown ward on February 11, 2015. That decision was appealed on the basis that the CCAST had failed to serve the Band. This means that no Band was served even though the CCAST was aware since 2013 of the child's possible Native status. The appeal proceeded on consent and the matter was sent back to the Ontario Court of Justice.

• On April 17, 2015, the maternal grandmother attended at the CCAST office and photocopied her registration for review by the worker. On April 22, 2015, the worker contacted Charmaine Bath, Indian Registration Administrator for the Band. Ms. Bath advised "that she would accept service of the court papers, but she made it clear to me that the Band does not have the social services to provide any assistance and that the Band would not be involved in the court proceedings."

• In May, 2015, by the Catholic Children's Aid Society contacted Native Child and Family Services to request that NCFST provide services to the mother as she was "identifying as Native."

• On June 2, 2015, the mother, who was 12 weeks pregnant with the child before this court, "requested to work with Native Child and Family Services around her pregnancy. Ms. [R] felt that this agency would be more sensitive to her heritage." The worker advised that she had already made the referral and set up a transfer meeting for June 10, 2015.

• The file was transferred to NCFST in June, 2015.

• The Mother filed an Answer in the proceedings before this court. In her Answer she describes the child as "Native".

• The child has been placed with his non-Indigenous paternal family members who wish to adopt him. The Band indicated it was fully supportive of this plan.

• It is not disputed that the NCFST has treated E.S. as if he were defined as an Indian or Native Child, throughout these proceedings.

[38] Although the history is incomplete, what is available is sufficient, in my view, to illustrate what can only be described as a careless attitude to the question of the children's Indian or Native status. This is disturbing for at least two reasons. Firstly, considering the requirements in section 47(2) (c), the obligation is on all children's aid societies, not only Native societies, to ascertain whether a child is an Indian or Native person, to seek to identify the child's Band or native Community, and to provide evidence to the court which would enable it to make the required determination. This inquiry is the gateway to all the protections for Indigenous children and families under the Act.

[39] I am prepared to assume the CCAST did make the inquiry at the outset of their involvement, but, irrespective of whatever response they received, once the mother identified as an Indigenous person, the onus was on the CCAST to make further inquiries, and, if a related Band was identified, as is the case here, to serve the Band. There is no evidence this was done until after the proceeding regarding the mother's third child was sent back by the appeal court for failure to serve the Band.

[40] Secondly, again considering the unique protections for Indian and Native children and families under the Act, once the CCAST was aware the mother was Indigenous, it was obliged, as a service to the children and the family, to inquire into the possibility that the children might have, or be eligible for, status under the Indian Act. The CCAST worked with the mother for many years. The Family Service Worker could have encouraged and assisted the mother to make an application for the benefit of all her children. Indeed, that is a service which would reasonably fall within the CCAST's responsibilities under Section 1(2) 5. of the Act which sets out the purposes of the Act:

(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well-being of children, are:

5. To recognize that Indian and native people should be entitled to provide, wherever possible, their own child and family services, and that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family.

[41] Why is this history I have set out relevant to the Charter application? In my view the relevance is this: It exemplifies the problems which can flow from an under-inclusive definition of Indigenous identity. A child welfare system which is purportedly designed to protect Indigenous children, families, and their culture identity can easily become inattentive to the issue of Indigenous identity once it is determined the family does not fit within the formal definitions in the Act. As a result the children and the parents may be denied their rights under the Act.

[42] This problem was identified in Corbiere v. Canada (Minister of Indian and Northern Affairs), in the discussion of immutable characteristics which may constitute analogous grounds of discrimination, a matter I will address shortly:

It is also central to the analysis if those defined by the characteristic are lacking in political power, disadvantaged, or vulnerable to becoming disadvantaged or having their interests overlooked: Andrews, supra, at p. 152; Law, supra, at para. 29. (par. 60)

[43] I now turn to the Section 15 analysis.

Section 15(1) Analysis

[44] Section 15(1) of the Charter provides as follows:

15(1) Every individual is equal before and under the law and has the right to the equal protection and benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[45] "Equality" is understood in section 15 jurisprudence as substantive equality. In Kahkewistahaw v. Taypotat, 2015 SCC 30, Abella J. states:

This Court has repeatedly confirmed that s. 15 protects substantive equality: Quebec v. A, at para. 325; Withler v. Canada (Attorney General), 2011 SCC 12, at para. 2; R v. Kapp, 2008 SCC 41, at para. 16; Andrews v. Law Society of British Columbia. It is an approach which recognizes that persistent systemic disadvantages have operated to limit the opportunities available to members of certain groups in society and seeks to prevent conduct that perpetuates those disadvantages. As McIntyre J. observed in Andrews, such an approach rests on the idea that not every difference in treatment will necessarily result in inequality and that identical treatment may frequently produce serious inequality: p. 164. (par. 7)

[46] "Discrimination" was defined in Law Society British Columbia v. Andrews as involving a distinction, whether intentional or not,

based on grounds relating to personal characteristics of an individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. (par. 37)

[47] In R. v. Withler, 2011 SCC 12, (par. 30), the Court articulated the two-part test for assessing a section 15(1) claim this way: (1) Does the law create a distinction that is based on an enumerated or analogous ground? and (2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?

Does the Law Create a Distinction Based on an Enumerated or Analogous Ground?

[48] Section 3(1) of the CFSA creates a distinction between Indian and Native persons as defined in the Act and all other Indigenous persons.

[49] Not all distinctions contravene section 15 of the Charter. Section 15(1) protects only against distinctions made on the basis of the enumerated grounds or grounds analogous to them. An analogous ground is one based on "a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity": Corbiere v. Canada (Minister of Indian and Northern Affairs), at para. 13; Withler, at par.33

[50] Three recent Ontario judgments have held that the definitions of "Indian", "Native person" and "Native child" in the CFSA breach the first branch of the section 15(1) test on the basis that they create a distinction based on an analogous ground.

[51] In Children's Aid Society of Ottawa v. F. (K.), 2015 ONSC 7580 (hereinafter referred to as F.(K.)), MacKinnon, J. ruled on a section 15 claim regarding two children who had Indigenous (Algonquin) heritage, but, as in the case at bar, did not have status under the Indian Act (and hence were not "Indian children" under the CFSA). She concluded that there was clearly a distinction between the Act's treatment of "Indian[s]" and "Native person[s]", and the Act's treatment of other individuals, including other individuals with Aboriginal heritage. (par. 41)

[52] Having found a distinction, Justice MacKinnon examined whether the distinction related to an enumerated or analogous ground. She rejected the argument that the distinction was based on the enumerated grounds of national or ethnic origin. Relying on Corbiere, she concluded that the differential treatment of individuals with Indigenous ancestry who are not "Indians" or "Native persons" under the CFSA is based on an immutable personal characteristic – the fact that some Indigenous persons do not have Indian status or membership in a Native community.

[53] Justice MacKinnon reasoned that the "personal characteristic" of children with Indigenous (Algonquin) heritage, but without status under the Indian Act, existed for these children as a result of decisions made by or imposed upon their ancestors. "…it is immutable; they cannot change their position as Aboriginal people without status." The differential treatment in the CFSA of persons with Indigenous heritage, but without status under the Indian Act, is thus based on an analogous ground of discrimination.

[54] In considering the CFSA definitions of Native person and Native community, in the context of "Aboriginality-residence" described in Corbiere, Justice MacKinnon observes that:

There is no principled reason to distinguish between the choice of a band member to live on- or off-reserve and the choice of a non-status Indian to live as a member or not of a community that meets the Ministry's criteria for designation as a native community and has been designated as such. (par.56)

[55] Thus she concludes that differential treatment of persons with Indigenous heritage who are not members of Native communities under the CFSA is also based on an analogous ground: "Aboriginality-residence".

[56] The decision in F. (K.) was upheld by the Divisional Court in Children's Aid Society of Ottawa v. L.F., 2016 ONSC 6750.

[57] In Catholic Children's Aid Society of Hamilton v. G.H., [2016] O.J. No. 5233, Chappel, J. ruled on a section 15(1) Charter claim regarding a seventeen month old Metis child. Justice Chappel agreed with Justice McKinnon that the definitions in the Act, "clearly create a distinction between children with Aboriginal ancestry who qualify as Indian or Native on the one hand and all other Aboriginal children in Ontario with Aboriginal ancestry."

... Children who qualify as Indian or Native under the Act and their families enjoy all of the special statutory protections discussed in detail above which are aimed at maintaining their connections to their culture and communities, involving their band and communities in decision-making and fostering the strength of their Aboriginal culture. As MacKinnon, J. stated in F. (K.), at para. 41), other children with Aboriginal heritage are not entitled to the mandatory application of the special provisions relating to Indian and Native children, and in fact do not have the ability to access them at all.(par. 74)

[58] She also agreed with the reasoning in F. (K.) that the differential treatment resulting from the terms Indian and Native child are based on immutable aspects of personal and cultural identity, and are analogous grounds under section 15 of the Charter.

[59] The decisions I have referred to, G.H., K.F., (and L.F. which upheld K.F.) are in agreement that the definitions of Indian, Native person and Native community in the CFSA create a distinction based on an analogous ground. I make a similar finding in the case before me, and I now turn to the second branch of the section 15(1) test, where the Judges in these cases do not agree.

Does the Distinction Create a Disadvantage by Perpetuating Prejudice or Stereotyping?

[60] Where G.H. and F (K), (upheld in L.F.) diverge is on the question of the type of evidence required to answer this question.

[61] In F.(K.), Justice MacKinnon, using comparator reasoning, found that:

No evidence was led that tended to show outcomes for "Indian[s]" or "native child[ren]" placed in accordance with s. 57(5) were different or better than outcomes for children with Aboriginal heritage but no status or native community membership who were placed in accordance with s. 57(4). Without knowing how those provisions impact the children to whom they are applied, it is unclear whether the definitions excluding non-status Aboriginals from their application create a disadvantage and therefore are discriminatory under s. 15(1).

[62] In her view, the absence of such evidence left her with an "abstract question" that was "too theoretical" in the context of a constitutional question, citing Moysa v. Alberta (Labour Relations Board), at p. 1580. Unable to determine whether the distinction created a disadvantage, she dismissed the Charter application.

[63] On appeal, the Divisional Court found no error in her reasoning.

[64] Justice Chappel in Catholic Children's Aid Society of Hamilton v. G.H., [2016] O.J. No. 5233, took a different view:

My differing view is based on important case-law regarding the nature of the factual foundation required in Charter claims and the numerous important contextual factors and developments discussed above that must inform the equality analysis in this case. (Par.83)

[65] In particular she adopted the approach approved in Withler v. Canada (Attorney General), 2011 SCC 12, an approach which is:

...contextual, not formalistic, grounded in the actual situation of the group and the potential of the impugned law to worsen their situation. (par. 37)

[66] In Withler, the court reasoned that a formal analysis based on comparison between the claimant group and a "similarly situated" group, (the approach taken in F. (K.)), may fail to capture the wrong to which s. 15(1) is directed – the elimination from the law of measures that impose or perpetuate substantial inequality.

[67] What is required, as stated in Withler, is not formal comparison with a selected comparator group, but an approach that looks at the full context, including the situation of the claimant group and whether the impact of the impugned law is to perpetuate disadvantage or negative stereotypes about that group. (par. 40)

[68] Comparison has a role to play in the first step by assisting in establishing a distinction, since the claimant is treated differently than others. In accordance with Withler:

Provided that the claimant establishes a distinction based on one or more enumerated or analogous grounds, the claim should proceed to the second step of the analysis. (par. 63)

[69] The second step is, "… an inquiry into whether the law works substantive inequality, by perpetuating disadvantage or prejudice, or by stereotyping in a way that does not correspond to actual characteristics or circumstances" (Withler, par. 65). In this inquiry, the value of comparative evidence will vary with the circumstances. There is no "rigid template" (Kapp, Withler)

[70] The second step requires "a flexible and contextual inquiry into whether a distinction has the effect of perpetuating arbitrary disadvantage on the claimant because of his or her membership in an enumerated or analogous group." (Kahkewistahaw, par.16). At the end of the day, all factors that are relevant to the analysis should be considered. As Wilson J. said in R. v.Turpin:

In determining whether there is discrimination on grounds relating to the personal characteristics of the individual or group, it is important to look not only at the impugned legislation which has created a distinction that violates the right to equality but also to the larger social, political and legal context. [p. 1331] (cited at par 66 of Withler)

[71] It was this approach that was followed by Chappel, J. In G.H. (see par. 53).

[72] Importantly, Chappel, J., following Law v. Canada (Minister of Employment and Immigration), at par. 77, found that it was open to the court, where appropriate, to determine discriminatory disadvantage "on the basis of judicial notice and logical reasoning alone." Thus she held that:

Métis children are not afforded the benefits and advantages of the very significant protections summarized above, despite their status as Aboriginal peoples of Canada. The disadvantage to them as a result of their exclusion from these provisions is clear and can be discerned through logical reasoning alone. To require a Métis claimant to obtain social science evidence and empirical data to provide evidence about actual outcomes of child protection services and court proceedings for Indian and Native children as compared to other Aboriginal children would effectively preclude them from obtaining a remedy for being denied equal protection of the law in the child protection context. (par. 90).

[73] This reasoning is entirely apposite to the situation of the child in the case at bar.

[74] In addition, Chappel, J., in accordance with the approach in Withler and other section 15 jurisprudence, considered the contextual factors set out in Law (pars. 69-74): Pre-existing disadvantage experienced by the claimant or group of which the claimant is a member, the correspondence, or lack thereof, between the differential treatment and the actual needs, capacity or circumstances of the claimant or group, whether the impugned legislation has an ameliorative purpose or effect for other members of society, and the nature of the interest affected.

[75] In the course of this analysis, relying, inter alia, on the conclusions of the Truth and Reconciliation Commission, and First Nations Child and Family Caring Society of Canada, at paras. 408-418), she finds "numerous developments in the social, economic, legal and political landscape in the past several decades that are relevant to the section 15(1) analysis in this case".

[76] These developments included: a change in the social context manifesting increasing awareness and concern among non-Indigenous Canadians about Canada's historical mistreatment of Aboriginal peoples, the need for increased respect and support of Aboriginal cultures and traditions, and the social, economic and political challenges that Aboriginal peoples have historically faced and continue to experience in Canada.

[77] Of particular relevance to the definitional issues in the CFSA, she takes note of government policies which severely weakened Indigenous families by encouraging removal of their children through the residential school system and the "sixties scoop" – policies which have been found to have resulted in the abuse of children, loss of language, culture and identity, and which inflicted long-lasting psychological and emotional damage.

[78] In my view it is necessary for a court to confront this history when examining a legislative framework enacted to ensure that Indian and Native children receive culturally appropriate services and placements.

[79] Applying the Law factors to the claim before her, which involved a Metis child, Justice Chappel finds that on its face the legislation creates unfair and objectionable disadvantages for Indigenous children who do not fall within the statutory definitions. She finds that the differential treatment that arises from the operation of the Indian and Native child definitions did not correspond with the actual needs and circumstances of the Métis peoples, and that the nature and scope of the benefits which the Métis peoples were being denied in her case, were intended to maintain Indian and Native children's connections to their families, communities and culture, and to give their communities a voice in all major matters affecting the children in the child protection arena.

[80] Justice Chappel concludes that depriving Indigenous children and families the benefit of the various special provisions in the CFSA designed to protect and foster their well-being based on under-inclusive definitions is invidious, and continues the history of disadvantage to Metis peoples "in the most damaging way possible".

[81] As Justice Iacobucci states in Law par 72:

Underinclusive ameliorative legislation that excludes from its scope the members of a historically disadvantaged group will rarely escape the charge of discrimination: see Vriend, supra, at paras. 94-104, per Cory J.

[82] Throughout her judgment Justice Chappel includes non-status Indians in her discussion of the discriminatory disadvantages Metis children and families experience as a result of the impugned provisions. I can find no principled reason to distinguish her judgment on the basis that G.H. involves a Metis child for the purposes of the case before me.

[83] The judgment in G.H. is applicable to the case at bar, and is compelling. I rely on it in this decision.

[84] For the reasons set out herein, I find S.E. has satisfied the onus of establishing that the definitions of Indian, Native person and Native child in the Child and Family Service Act violate section 15(1) of the Charter.

[85] The onus of establishing that this infringement is saved by section 1 of the Charter falls on the Crown or the party seeking to uphold the provisions in question.

[86] The Society has taken no position on the motion, and neither the provincial nor federal government participated in the hearing. In the absence of any section 1 argument or evidence, I conclude that the infringement is not saved by section 1.

[87] As a final observation, I note that Bill 89, the Supporting Children, Youth and Families Act, 2017, was given Royal Assent on June 1, 2017, although it is not yet proclaimed. This legislation repeals the Child and Family Services Act. The new legislation also contains many provisions regarding Indigenous children and families. Of particular relevance to this ruling is the Interpretation section, section 2(1), which provides that:

… a reference to a child's or young person's bands and First Nations, Inuit or Métis communities includes all of the following:

1. Any band of which the child or young person is a member.
2. Any band with which the child or young person identifies.
3. Any First Nations, Inuit or Métis community of which the child or young person is a member.
4. Any First Nations, Inuit or Métis community with which the child or young person identifies.

[88] Under this legislation, S.E., who identifies with a Band, would receive all the protections and benefits afforded to a First Nations, Inuit or Metis child under the Act.

Effect of Children's Aid Society of Ottawa v. L.F.

[89] As I have indicated, the decision in Children's Aid Society of Ottawa v. K.F. was appealed by the maternal grandparents to the Divisional court and is reported as Children's Aid Society of Ottawa v. L.F., [2016] O.J. No. 5567.

[90] The appeal decision was styled as an "Endorsement," and is brief. Two paragraphs address the section 15(1) ruling.

[91] Only one paragraph (par. 4) addresses the second branch of the section 15(1) test:

We see no error on the part of the trial judge when she concluded that she could not find that the distinction at issue creates a disadvantage based on the evidentiary record before her. We note that the Supreme Court of Canada stated in Withler v. Canada (Attorney General), 2011 SCC 12, at para. 37:

Whether the s. 15 analysis focusses on perpetuating disadvantage or stereotyping, the analysis involves looking at the circumstances of members of the group and the negative impact of the law on them. The analysis is contextual, not formalistic, grounded in the actual situation of the group and the potential of the impugned law to worsen their situation.

[92] In addressing the precedential weight to be attributed to endorsements, Juriansz, J.A. in R v Singh, 2014 ONCA 293, stated:

While all decisions of this court are binding, care must be taken to avoid reading unwarranted jurisprudential principles into a decision of the court rendered in an endorsement as brief as in Bugler. Such endorsements are intended primarily to simply pronounce a decision for parties who, having been present in court during the argument of the appeal, will understand the thrust of the court's reasoning. When the court intends to articulate jurisprudential principles for the first time, it does so in a written judgment. Vanderbruggen is such a case. This court has expressed this caution before. See the remarks of Osborne J.A. at para. 36 of R. v. Timminco Ltd. /Timminco Ltée (2001):

Reasons of this court given by "endorsement" are mainly directed to the immediate parties. Endorsements, like all judgments of this court, have precedential value but they should not be construed to support broad overarching principles which are not specifically addressed in them. (par.12)

[93] In my respectful view the endorsement of the Divisional Court cannot be "construed to support broad overarching principles which are not specifically addressed" in the endorsement. I would also note that it is apparent the Divisional Court was aware of the decision in G.H. but specifically made "no comment" on it, except to say that the decision is based on the claims of a Métis family.

[94] In the circumstances I do not consider myself bound by the decision of the Divisional Court in L.F.

Remedy

[95] In G.H., Justice Chapell made a declaration of invalidity and suspended its effect for ten months. As a trial judge of the superior court ruling in an area of concurrent jurisdiction, her decision is not binding on me. However, I find her reasoning persuasive, and I am following G.H. in this ruling.

[96] The provincial court does not have jurisdiction to declare legislation invalid, as stated by the Supreme Court of Canada in R. v. Lloyd, 2016 SCC 13, however:

… provincial court judges do have the power to determine the constitutionality of a law where it is properly before them. (par. 89)

[97] I find that the definitions of Indian and Native persons under the Child and Family Services Act infringe S.E.'s right to equality under section 15(1) of the Charter, and that he is entitled to a remedy under section 24 of the Charter.

[98] I am ordering that he be treated as if he were an Indian, Native person or Native child under the Act, for the purposes of this or any related proceedings.

[99] In her factum, counsel for the child set out some potential benefits of this remedy:

• Native Child will be required to notify Qalipu Mi'kmak First Nation once he is placed for adoption;
• Native Child will be required to consult with Qalipu Mi'kmak First Nation regarding the adoption placement;
• Should the adoption breakdown for any reason, Native Child will be required to re-involve Qalipu Mi'kmak First Nation in every step taken;
• S.R.'s prospective adoptive parents can use the Court's order to ensure continued access and openness with other Aboriginal agencies and service providers;
• Maintaining a connection to culture and community is vital to ensuring that Aboriginal children grow up strong, healthy and resilient. An order that S.R. be treated as an Indian, Native person or Native child is an important step towards ensuring that S.R. knows who he is, where he comes from and where he belongs.

[100] My decision on the balance of the summary judgment motion is adjourned to a date to be set by the trial management co-ordinator, to permit the parties or the child to make further submissions in light of my ruling.

Released: June 28, 2017

Signed: Justice M. L. Cohen

Footnotes

[1] In this judgment I will use the term "Indian" or "Native" when I make direct reference to the language of the CFSA. I use "Indigenous" when speaking of Indigenous identity not included in the statutory definitions, as a more contemporary and respectful term.

[2] In Mohawks of the Bay of Quinte v. Brant, 2014 ONCA 565, La Forme, J.A., states:

For over a century, the Indian Act was the single most prominent reflection of the distinctive -- although not privileged -- place of Indian people within the Canadian federation. The Act is widely recognized for controlling virtually everything that touches Indian people: Royal Commission on Aboriginal Peoples, Report of Royal Commission on Aboriginal Peoples, Volume 1: Looking Forward, Looking Back (Ottawa: Canada Communication Group -- Publishing, 1996) ("Report of Royal Commission"), pp. 256-57. The Indian Act has long been universally labeled as paternalistic and a relic of past colonial practices.(par. 43)

Nevertheless, the status of the parties to this appeal is a consequence of Indian Act legislation, as is their dispute. … That being said, this appeal is not about the appropriateness of Indian Act legislation, nor any assertion of its being a mechanism of social control and assimilation of Indians.(par.44)

I find these comments apposite to the case at bar.

[3] In Corbiere, "Aboriginality-residence" was held to be:

"… a personal characteristic essential to a band member's personal identity, which is no less constructively immutable than religion or citizenship. Off-reserve Aboriginal band members can change their status to on-reserve band members only at great cost, if at all" (par. 13).