Supreme Court of Canada
Martin v. Chapman, 1983 CanLII 123 (SCC), [1983] 1 SCR 365
Date: 1983-03-24
John Martin Appellant;
and
H.H. Chapman Respondent;
and
Deputy Attorney General of Canada and Band Council of the Indian reserve of Maria Mis en cause.
File No.: 16449.
1982: May 20; 1983: March 24.
Present: Ritchie, Dickson, Beetz, Estey, McIntyre, Lamer and Wilson JJ.
ON APPEAL FROM THE FEDERAL COURT OF APPEAL
Indians—Person entitled to be entered in Indian Register—Whether s. 11(1)(c) of the Indian Act excludes illegitimate children—Indian Act, R.S.C. 1970, c. I-6, s. 11(1)(c),(d),(e), 12(1)(a)(iv), 12(2).
Statutes—Interpretation—Whether the word “descendant” in s. 11(1)(c) of the Indian Act excludes illegitimate children—Indian Act, R.S.C. 1970, c. I-6, s.11(1)(c).
Appellant, the illegitimate child of an Indian father—a member of a band—and of a non‑Indian mother was denied by the Band Registrar the right to be entered in the Indian Register and on the Band List on the ground that s. 11(1)(c) of the Indian Act applies only to legitimate descendants. Appellant applied to the Federal Court for a writ of mandamus ordering the Registrar to enter his name in the Register. The Trial Division dismissed his motion and the Court of Appeal affirmed the judgment.
Held (Estey, McIntyre and Lamer JJ. dissenting): The appeal should be allowed.
Per Ritchie, Dickson, Beetz and Wilson JJ.: Appellant was entitled to be entered in the Indian Register under s. 11(1)(c) of the Indian Act because he met the criteria of that paragraph. He is a male person who is a direct descendant in the male line of a male person described in para. (a) or (b). Paragraph (c) is clearly worded and there is no reason to limit its scope by introducing a qualification which is not there, particularly the qualification “legitimate”.
[Page 366]
Per Estey, McIntyre and Lamer JJ., dissenting: The Registrar was correct in refusing to enter Martin on the ground that s. 11(1)(c) of the Act applies only to legitimate descendants. This interpretation, which limits the ordinary meaning of the word “descendant”, is the most in keeping with the aims of the Act, that is descent in the male line, and since 1951, purity of blood. It is also most in harmony with the context of the Act, since it avoids redundancy and even, in respect of s. 12(1)(a)(iv), absurdity.
[Brule v. Plummer, 1979 CanLII 40 (SCC), [1979] 2 S.C.R. 343, referred to]
APPEAL from a judgment of the Federal Court of Appeal, which affirmed a judgment of the Trial Division, 1979 CanLII 4224 (FC), [1980] 1 F.C. 72, (1979) 1979 CanLII 2511 (FC), 107 D.L.R. (3d) 698. Appeal allowed, Estey, McIntyre and Lamer JJ. dissenting.
Raoul Poirier, for the appellant.
Jean-Marc Aubry, for the respondent.
The judgment of Ritchie, Dickson, Beetz and Wilson JJ. was delivered by
WILSON J.—I have had the benefit of the reasons for judgment of my colleague, Mr. Justice Lamer, but I am not persuaded that this Court should read into s. 11(1)(c) of the Indian Act, R.S.C. 1970, c. I-6, a qualification which is not there, particularly the qualification “legitimate”.
The appellant is the illegitimate son of Robert Martin, a member of the Micmac of Maria Band of Indians and May Richards, a non-Indian who has never been a Band member. The appellant, who is now 28 years of age, applied to be registered as a Band member but his application was denied by the respondent who is the Band Registrar. The reason given for the denial of membership was that s. 11(1)(c) of the Act applied only to legitimate children.
Sections 11 and 12 of the Act, which deal with entitlement to registration, provide as follows:
- (1) Subject to section 12, a person is entitled to be registered if that person
(a) on the 26th day of May 1874 was, for the purposes of An Act providing for the organization of the Department of the Secretary of State of Canada,
[Page 367]
and for the management of Indian and Ordnance Lands, being chapter 42 of the Statutes of Canada, 1868, as amended by section 6 of chapter 6 of the Statutes of Canada, 1869, and section 8 of chapter 21 of the Statutes of Canada, 1874, considered to be entitled to hold, use or enjoy the lands and other immovable property belonging to or appropriated to the use of the various tribes, bands or bodies of Indians in Canada;
(b) is a member of a band
(i) for whose use and benefit, in common, lands have been set apart or since the 26th day of May 1874, have been agreed by treaty to be set apart, or
(ii) that has been declared by the Governor in Council to be a band for the purposes of this Act;
(c) is a male person who is a direct descendant in the male line of a male person described in paragraph (a) or (b);
(d) is the legitimate child of
(i) a male person described in paragraph (a) or (b), or
(ii) a person described in paragraph (c);
(e) is the illegitimate child of a female person described in paragraph (a), (b) or (d); or
(f) is the wife or widow of a person who is entitled to be registered by virtue of paragraph (a), (b), (c), (d) or (e).
(2) Paragraph (1)(e) applies only to persons born after the 13th day of August, 1956.
- (1) The following persons are not entitled to be registered, namely,
(a) a person who
(i) has received or has been alloted half-breed lands or money scrip,
(ii) is a descendant of a person described in subparagraph (i),
(iii) is enfranchised, or
(iv) is a person born of a marriage entered into after the 4th day of September 1951 and has attained the age of twenty-one years, whose mother and whose father’s mother are not persons described in paragraph 11(1)(a), (b) or (d) or entitled to be registered by virtue of paragraph 11(1)(e),
unless, being a woman, that person is the wife or widow of a person described in section 11, and
(b) a woman who married a person who is not an Indian, unless that woman is subsequently the wife or widow of a person described in section 11.
[Page 368]
(2) The addition to a Band List of the name of an illegitimate child described in paragraph 11(1)(e) may be protested at any time within twelve months after the addition, and if upon the protest it is decided that the father of the child was not an Indian, the child is not entitled to be registered under that paragraph.
(3) The Minister may issue to any Indian to whom this Act ceases to apply, a certificate to that effect.
(4) Subparagraphs 1(a)(i) and (ii) do not apply to a person who
(a) pursuant to this Act is registered as an Indian on the 13th day of August 1958, or
(b) is a descendant of a person described in paragraph (a) of this subsection.
(5) Subsection (2) applies only to persons born after the 13th day of August 1956.
The appellant brought an application before the Federal Court Trial Division for an order in the nature of mandamus to require the Registrar to register him. Marceau J. refused the application for two reasons. Firstly, he rejected the appellant’s submission that the reasoning in Brule v. Plummer, 1979 CanLII 40 (SCC), [1979] 2 S.C.R. 343, should be applied in this case. In Brule this Court held that, in the absence of any contra-indications in the statute, both legitimate and illegitimate children were “children” within the meaning of the Ontario Insurance Act, R.S.O. 1960, c. 190. Marceau J. rejected this submission on the basis that there were contra‑indications in the Indian Act. He referred to paras. (d) and (e) of the same s. 11 which make reference to legitimate and illegitimate children, also to s. 48(13) which specifically confers rights on illegitimate children in the context of intestate succession, and to s. 68 which makes specific provision for the payment of support to illegitimate children.
Marceau J.’s second reason for rejecting the appellant’s mandamus application was that the appellant’s interpretation of s. 11(1)(c) resulted in an absurdity when read in context with paras. (d) and (e). Paragraph (c), he concluded, must be aimed at descendants other than those of first degree. He reasoned as follows. Parliament must have started out with the idea that Indian status should be reserved for those of Indian blood. Proof
[Page 369]
of the existence of Indian blood was possible, in reality, only vis-à-vis the mother. But proof was possible, in law, because of the presumption pater is est with respect to legitimate fathers. By specifically referring to legitimate children of males in s. 11(1)(d) and illegitimate children of females in s. 11(1)(e) Parliament had covered all children legitimate and illegitimate who were intended to have Indian status. In this context s. 11(1)(c) could only be understood as referring to male children other than first degree.
The appellant’s appeal to the Court of Appeal was dismissed without reasons and the applicant was granted leave to come to this Court.
If one approaches the various paragraphs of s. 11(1) in their natural order in the statute, then the first question posed on the facts of this case is: does the appellant fall within para. (c) of s. 11(1)? The answer to this seems to be clearly yes. He is a male person who is a direct descendant in the male line of a male person described in para. (a) or (b). There appears to be no ambiguity in para. (c) and its plain meaning would entitle the appellant to be registered. It is submitted, however, on behalf of the Registrar that this result is called in question by the following paragraphs which, so it is alleged, require some qualification to be put upon the plain words of para. (c). Paragraph (d) provides that legitimate children of male persons described in para (a) or (b) or persons described in para. (c) are entitled to be registered. Why, it is asked, would the legislature have made specific reference to legitimate children in para. (d) if all children were already covered by para. (c)?
The first thing I note about para. (d) is that it is not confined to males. A legitimate daughter would be included in para. (d) whether or not her Indian father was married to an Indian. She could not, of course, qualify under para. (c). Paragraph (e) entitles illegitimate children of Indian mothers to be registered subject to subsequent disqualification under s. 12(2) if it is established that the father of the child was not an Indian. Paragraph
[Page 370]
(e), like para. (d), is not confined to males. It too covers persons who could not qualify under para. (c).
It seems to me that what paras. (d) and (e) are intended to do is not limit the scope of para. (c) but open up entitlement to other persons on a carefully restricted basis. For example, legitimate female children are covered by para. (d) provided they are children tracing their ancestry through the Indian male line. Illegitimate female children are covered by para. (e) if they can trace their ancestry through the Indian male line or if their mother can. It is my conclusion, therefore, that paras, (d) and (e) have a sphere of operation distinct and independent from para. (c). Paragraph (c) is confined to males. Paragraphs (d) and (e) open up registration to females in certain circumstances.
It is submitted, however, by counsel for the Registrar that the word “child” in paras. (d) and (e) encompasses males also and, to the extent that para, (d) encompasses male children, it casts doubt on the proper interpretation of para. (c). Why, he asks, would the legislature specify legitimate children only in para. (d) if para. (c) permitted all children, legitimate and illegitimate, to be registered? Paragraph (c), it is said, must be read, if not subject to para. (d), at least in light of para. (d).
It seems to me that the one thing which clearly emerges from ss. 11 and 12 of the Act is that Indian status depends on proof of descent through the Indian male line. Paragraph (c) makes this eminently clear. The primary group entitled to claim the status is described in paras. (a), (b) and (c). In my view paras, (d) and (e) deal with something else. They address the question: who among the children of the primary group can claim Indian status? These paragraphs define the secondary group entitled to claim the status. At this stage the issue of legitimacy is injected for the first time but even here it is clear from s. 12(2) that the applicant’s illegitimacy can be redeemed if his or her father was an Indian. It is not
[Page 371]
legitimacy or illegitimacy as such which is the issue: it is descent through the Indian male line. Legitimacy or illegitimacy is relevant only to the extent it has a bearing on descent through the Indian male line. In my view the purpose of paras. (d) and (e) is not to take away status from a member of the primary group covered by para. (c) who unquestionably is descended through the Indian male line but to confer it on specific members of the secondary group who can meet the same test. These paragraphs are clearly intended by the legislature to confer rights and not to take away rights which have already been granted. It is for this reason that I cannot accept the submission of counsel for the Registrar that para. (c) must be read subject to para. (d).
Turning now to s. 12, concern has been expressed that if illegitimate children are included in para. (c) they are not subject to exclusion under s. 12(1)(a)(iv) although legitimate children in the same circumstances are. It is suggested that this is an absurd result which could not have been intended and that the appropriate way to avoid it is to read the qualification “legitimate” into para. (c). Thus, since illegitimate children were not included in the first instance it is unnecessary to exclude them. There is then no legislative “gap” to be filled. It is suggested that this qualification may be read into para. (c) because s. 11 opens with the words “Subject to section 12, a person is entitled to be registered if… ”, making it clear that s. 12 was to be the overriding section.
In my view this is not a proper approach to statutory interpretation. It seems to lose sight of the fact that it is the intention of Parliament vis-à-vis the appellant that is our primary concern. Section 12(1)(a)(iv) is designed to impose a restriction on the dilution of Indian blood by excluding from Indian status the offspring of two generations of mixed parentage in the male line. It may be a fair inference that Parliament did not intend legitimate children in this situation to be worse off than illegitimate children. It cannot be inferred, however, that Parliament wished to exclude from Indian status the male offspring of
[Page 372]
only one generation of mixed parentage in the male line merely because they are illegitimate. The words of s. 11(1)(c) clearly forbid such an inference. Moreover, the fact that a distinction based on legitimacy or illegitimacy is invoked by the legislature in the very next paragraph makes the absence of such a distinction in para. (c) all the more telling.
The obligation of the Court is to deal with the facts which are before it. A review of the legislative scheme discloses an anomaly in that the exclusionary impact of s. 12(1)(a)(iv) is confined to legitimate children. I do not believe, however, that in order to prevent the “reverse discrimination” impact of s. 12(1)(a)(iv) the Court is free to insert the word “legitimate” into s. 11(1)(c). It may be a commendable objective to attempt to repair a defective legislative framework but not at the expense of the real issue which confronts the Court, namely whether the legislature intended to confer Indian status on the appellant. I find from the plain meaning of the words in the statute that the legislature did so intend.
If the legislative draftsman has produced unintended consequences by his failure to appreciate the way in which the provisions of the statute interact, is it for the Court to rationalize them by offsetting one form of discrimination against another, by replacing discrimination against legitimate children with discrimination against illegitimate children on the basis presumably that the legislature would prefer the latter to the former? And are we to do this at the expense of persons like the appellant whose exclusion is not required in order to resolve the problem created by s. 12(1)(a)(iv)? I do not think so.
I would allow the appeal, set aside the judgments of the Federal Court Trial Division and the Federal Court of Appeal and direct the Registrar to register the appellant as an Indian. I would award him his costs throughout.
[Page 373]
English version of the reasons of Estey, McIntyre and Lamer JJ. delivered by
LAMER J. (dissenting)—This appeal is from a judgment of the Federal Court, which affirmed a decision of the Registrar of the Indian Register refusing to register appellant John Martin as an Indian.
FACTS
The facts are straightforward and not in dispute. Appellant John Martin was born in Quebec on October 27, 1953 and is the son of Robert Martin and May Richards.
Until his death on August 20, 1975, appellant’s father Robert Martin was an Indian as defined by the Indian Act, R.S.C. 1970, c. I-6, a member of the Band known as the “Micmacs of Maria”, whose name was entered in the Indian Register and who held certificate No. 80 to this effect.
Appellant’s mother May Richards is not and was not an Indian as defined by the Indian Act, and her name was accordingly not entered in the Indian Register.
Appellant’s parents Robert Martin and May Richards were never married, so that appellant John Martin is an illegitimate child.
Personally and through his counsel, appellant asked the Registrar to enter his name in the Indian Register and in the Band List of the “Micmacs of Maria”.
By a letter dated January 23, 1979, the Registrar denied appellant’s request as follows:
It is my position that Section 11(1)(c) applies only to persons descended in the legitimate male line. This is understood notwithstanding the fact that the word legitimate does not appear in that Section of the Act. Since he is not descended in the legitimate male line from an Indian John Martin is not entitled to be registered as an Indian pursuant to Section 11(1)(c) of the Indian Act.
[Page 374]
Sections 11 and 12 of the Indian Act determine who the Registrar may enter in the Register as an Indian:
- (1) Subject to section 12, a person is entitled to be registered if that person
(a) on the 26th day of May 1874 was, for the purposes of An Act providing for the organization of the Department of the Secretary of State of Canada, and for the management of Indian and Ordnance Lands, being chapter 42 of the Statutes of Canada, 1868, as amended by section 6 of chapter 6 of the Statutes of Canada, 1869, and section 8 of chapter 21 of the Statutes of Canada, 1874, considered to be entitled to hold, use or enjoy the lands and other immovable property belonging to or appropriated to the use of the various tribes, bands or bodies of Indians in Canada;
(b) is a member of a band
(i) for whose use and benefit, in common, lands have been set apart or since the 26th day of May 1874, have been agreed by treaty to be set apart, or
(ii) that has been declared by the Governor in Council to be a band for the purposes of this Act;
(c) is a male person who is a direct descendant in the male line of a male person described in paragraph (a) or (b);
(d) is the legitimate child of
(i) a male person described in paragraph (a) or (b), or
(ii) a person described in paragraph (c);
(e) is the illegitimate child of a female person described in paragraph (a), (b), or (d) or
(f) is the wife or widow of a person who is entitled to be registered by virtue of paragraph (a), (b), (c), (d) or (e).
(2) Paragraph (1)(e) applies only to persons born after the 13th day of August 1956.
- (1) The following persons are not entitled to be registered, namely,
(a) a person who
(i) has received or has been allotted half-breed lands or money scrip,
(ii) is a descendant of a person described in subparagraph (i),
(iii) is enfranchised, or
(iv) is a person born of a marriage entered into after the 4th day of September 1951 and has attained the age of twenty-one years, whose mother and whose father’s mother are not persons
[Page 375]
described in paragraph 11 (1)(a), (b) or (d) or entitled to be registered by virtue of paragraph 11(1)(e),
unless, being a woman, that person is the wife or widow of a person described in section 11, and
(b) a woman who married a person who is not an Indian, unless that woman is subsequently the wife or widow of a person described in section 11.
(2) The addition to a Band List of the name of an illegitimate child described in paragraph 11(1)(e) may be protested at any time within twelve months after the addition, and if upon the protest it is decided that the father of the child was not an Indian, the child is not entitled to be registered under that paragraph.
(3) The Minister may issue to any Indian to whom this Act ceases to apply, a certificate to that effect.
(4) Subparagraphs (1)(a)(i) and (ii) do not apply to a person who
(a) pursuant to this Act is registered as an Indian on the 13th day of August 1958, or
(b) is a descendant of a person described in paragraph (a) of this subsection.
(5) Subsection (2) applies only to persons born after the 13th day of August 1956.
Appellant, being illegitimate and having a non-Indian mother, could not take advantage of s. 11(1)(e) of the Act. He accordingly sought to be entered in the Register by virtue of the provisions of s. 11(1)(c) of the Act. He contended that, having an Indian father, he was a direct descendant in the male line of a male person described in para. (a) or (b), in the case at bar of a band mentioned in para. (b). As the Registrar denied his request on the ground that s. 11(1)(c) applied only to legitimate descendants, Martin applied to the Federal Court of Canada, and filed a motion for a writ of mandamus ordering the Registrar to enter his name in the Register.
Marceau J. of the Federal Court of Canada dismissed the motion.
In his judgment, Marceau J. said that in his opinion “the legislative context of section 11(1)(d) of the Indian Act makes it apparent that the rule which it enacts can only relate to legitimate descendants”. He further stated that “paragraph (c) can only be understood as applying to filiation
[Page 376]
other than in the first degree, that is a descendant beyond a son”.
The Federal Court of Appeal dismissed Martin’s appeal.
Appellant’s argument is a simple one. The word “descendant” in s. 11(1)(c) must be given its ordinary meaning and the Registrar was not justified in limiting that section to legitimate descendants only. Further, he stated in his submission, [TRANSLATION] “the history of the Indian Act and its legislative context do not in any way justify interpreting the word ‘descendant’ in the limited and restricted sense of ‘legitimate descendant’.”
Only in exceptional cases is a court justified in limiting the ordinary and usual meaning of the words used by the legislator.
The point has been dealt with many times, and I shall therefore simply repeat the rule by citing here a passage from Halsbury, one which is in fact cited by appellant in his submission, and which gives the rule as follows (Halsbury’s Laws, vol. 36, 3rd ed., 1961, at p. 392):
Words are primarily to be construed in their ordinary meaning or common or popular sense, and as they would have been generally understood the day after the statute was passed, unless such a construction would lead to manifest and gross absurdity, or unless the context requires some special or particular meaning to be given to the words.
In my view the Registrar was correct and appellant’s appeal should be dismissed.
I am of the opinion that the intention of the Act was to limit application of s. 11(1)(c) to legitimate descendants only, because of the combined effect of two factors: first, a legislative context which strongly suggests this, and which taken by itself would not necessarily be conclusive, but which becomes so as a result of the absurdities which would undeniably follow from the interpretation proposed by appellant. To this may be added the greater harmony that would exist between this interpretation and the change of direction which was the intent of the 1951 Act.
[Page 377]
LEGISLATIVE CONTEXT
The Act speaks of children, after referring to descendants, and this was done in the knowledge that a man’s children are also as such his descendants. In speaking of children in s. 11(1)(d) and (e), the Act makes no distinction as to the sex of those children, something which, it may be noted in passing, it is capable of doing quite clearly (some would say without justification) when it wants to, as in s. 11(1)(c) inter alia.
Accepting appellant’s argument would have the effect of depriving para. (d) of s. 11(1) of all meaning in respect of male children.
On that basis respondent, through his counsel the Deputy Attorney General of Canada, is now asking this Court to find that the right of children to be registered is determined exclusively by ss. 11(1)(d) and (e) and 12(2); thus, according to this reasoning, the Deputy Attorney General argues that the Registrar was correct in excluding Martin from the Register on account of his illegitimacy, not because s. 11(1)(c) applies only to legitimate descendants, as the Registrar told Martin in his letter, but because children are governed exclusively by ss. 11(1)(d) and (e) and 12(2), and Martin’s illegitimacy excludes him because his mother is not an Indian.
However, this interpretation, which is now suggested to the Court by respondent and which differs from the reason he gave in his letter to Martin, though it has the advantage of avoiding the redundancy in respect of male children in s. 11(1)(c) and (d) that would be created by the interpretation proposed to the Court by appellant, only resolves this problem to create another of the same kind.
There would then be nothing to prevent Martin, or any illegitimate male children of a non‑Indian mother, from relying on s. 11(1)(c) through his grandfather, who of necessity is an Indian; this would have the result that if we simply approved the argument of the Deputy Attorney General of Canada there would be the same effect, in respect of s. 11(1)(e), as would be produced by approving appellant’s argument in respect of s. 11(1)(d), that is, making s. 11(1)(e) completely meaningless with
[Page 378]
regard to the illegitimate male children of an Indian father.
Choosing between two redundancies, it would be better to let the wording of s. 11(1)(c) have its ordinary meaning, were it not for the following two aspects of the matter which were not dealt with by the parties either in this Court or in the Federal Court.
Including illegitimate persons among the descendants referred to by the Act in s. 11(1)(c) would have the effect, in respect of s. 12(1)(a)(iv), of creating an erratic application of the latter, in some cases would even lead to absurd results, and in addition would be completely contrary to one of the aims of the Act.
ABSURD RESULT
It will be seen from reading s. 12(1)(a)(iv) that, although s. 11(1)(f) of the Act allows non‑Indian women to be entered in the Register, it will not permit the blood of their lawful issue to be diluted beyond the stage of a half-breed. As section 12(1)(a)(iv) does not apply to illegitimate children, the issue of male illegitimate children who would be entered through s. 11(1)(c), and whose blood could be as much or more diluted, would not be excluded where legitimate issue would be, as a consequence of s. 12(1)(a)(iv).
The absurdity is most manifest when we consider that a legitimate male who could be excluded as a consequence of s. 12(1)(a)(iv) would only need to make use of his direct descent in the male line from an Indian to retain his Indian status by virtue of s. 11(1)(c).
AIM OF THE ACT
Section 11(1)(a), (b) and (c) sets forth a general rule, that of descent. in the male line, and determines that Indian blood shall be transmitted through the male, which also reflects the standard of eligibility contained in s. 11(1)(d) and which confirms the exclusion of illegitimate issue by s. 12(2).
If the only purpose of the Act was to encourage descent in the male line it could be argued, I agree,
[Page 379]
that since s. 11(1)(c) postulates an Indian father, legitimacy would not then be necessary to ensure it. However, this does not take into account a major change made to the Indian Act in 1951, 1951 (Can.), 15 Geo. VI, c. 29.
A central Register was established for all Indians in 1951. At that time lists provided by the bands were accepted, subject to objections within a certain time. Before the 1951 Act, under s. 2(d) of the Indian Act, R.S.C. 1927, c. 98, “Indian” meant:
(i) any male person of Indian blood reputed to belong to a particular band,
(ii) any child of such person,
(iii) any woman who is or was lawfully married to such person.
However, beginning with the 1951 Act, though the rule of descent in the male line was continued through s. 11(1)(a), (b) and (c), the legislator in my opinion, by adding a new measure excluding from Indian status the cases mentioned in s. 12(1)(a)(iv), which had not existed until then, also sought to promote the preservation of purity of Indian blood; this had not previously been a primary concern, for it may be noted in passing that the exclusion of an Indian woman who had married a non-Indian, a provision dating back to 1869 (1869 (Can.), 32-33 Vict., c. 6), was designed not so much to protect blood as to preserve the control of Indian lands by male Indians. This new concern for blood which was added in 1951 to that already existing, of descent in the male line, can be seen especially in the deletion from the Register of children of Indian fathers and grandfathers but of non-Indian mothers and paternal grandmothers. Accordingly, legitimate half-breeds would have to marry Indians or see their issue subject to being deleted under s. 12(1)(a)(iv).
As regards illegitimate half-breeds (necessarily non-Indian through their mothers, since Indian women were subject to being enfranchised upon their marriage to a non-Indian), it would be a clear departure from the aim of the Act to allow illegitimate males to introduce non-Indian blood at
[Page 380]
will by means of s. 11(1)(c), something which is prohibited in the case of legitimate males, as a consequence of s. 12(1)(a)(iv).
In my opinion, the interpretation of s. 11(1)(c) that is most in keeping with the aims of the Act, descent in the male line, and since 1951, purity of blood, and that which is most in harmony, though I agree imperfectly so, with the context of the Act, and which avoids redundancy and even, in respect of s. 12(1)(a)(iv), absurdity, is that which limits the word “descendant” in s. 11(1)(c) of the Act to legitimate descendants only.
In support of his appeal appellant cited Brule v. Plummer, a decision of this Court reported at 1979 CanLII 40 (SCC), [1979] 2 S.C.R. 343. The question was whether the meaning of the word “children” in the list of preferred beneficiaries in s. 164(2) of The Insurance Act of Ontario, R.S.O. 1960, c. 190, was limited to the legitimate children of an insured, or whether it included all children, legitimate and illegitimate. Laskin C.J., speaking for the majority, said there was no reason in the circumstances to limit the meaning of this word to legitimate children only.
In his judgment, the Chief Justice stated the rule as follows (at p. 346):
It seems to me that if there is nothing in the statute, taken as a whole, to require that the reference to children be confined to legitimate children, then we are faced squarely with the problem whether we wish at this time to continue to gloss the word with the limited meaning that some Courts in the past have placed upon it.
In the circumstances, a majority of this Court in Brule v. Plummer found “nothing in the statute, taken as a whole” that required it to place a limitation on the general meaning of the word “children”. As I have just attempted to show, that is not so in the case at bar.
CONCLUSION
Aside from the marriage of a non-Indian woman to an Indian, the Register should include those persons (everyone is a child of someone) who meet the standards of s. 11(1)(d) or (e), and whose father (or presumed father by s. 11(1)(e)) is one of
[Page 381]
the persons described in s. 11(1)(a) or (b), or the legitimate descendant of the latter.
The question of whether the descendants of s. 11(1)(c) include sons in respect of their fathers loses its importance once the descendants are limited to legitimate descendants. To establish a connection with their ancestor, they must go through their father, who must of necessity be an Indian. As I said above, s. 11(1)(c) was necessary in 1951 in order to establish the Register, to create it, and then to state the rule of descent in the male line.
In my opinion the Registrar was correct in refusing to enter Martin in the Indian Register for the reasons he gave in his letter, contained in the passage which I cited at the beginning of these reasons.
I would therefore dismiss this appeal. However, I feel that respondent should be denied the costs he is claiming. In my view, the Act was far from clear and, by his appeal, appellant has given this Court an opportunity to clarify it.
Appeal allowed with costs, ESTEY, MCINTYRE and LAMER JJ. dissenting.
Solicitors for the appellant: Racine, Poirier & Associés, Rimouski.
Solicitor for the respondent: Roger Tassé, Ottawa.