CITATION: Gehl v. Attorney-General of Canada, 2015 ONSC 3481

COURT FILE NO.: 02-CV-237750CM3

DATE: 20150602

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LYNN GEHL

Plaintiff

• and -

ATTORNEY-GENERAL OF CANADA

Defendant

Christa Big Canoe and C. Kasper,

for the Plaintiff

Gail Sinclair and Jodi McFetridge, for the Defendant

HEARD: October 20, 21, and 22, 2014

STEWART, j.

Nature of the Motion

1Lynn Gehl (“Gehl”) claims that she has been and is continuing to be unlawfully discriminated against, contrary to enumerated and analogous grounds pursuant to s. 15 of the Canadian Charter of Rights and Freedoms (the “Charter”) and seeks declaratory relief pursuant to s. 52(1) thereof.

2Gehl asserts that the denial of her registration as an Indian is a direct result of the gender of her Indian ancestors. Therefore, she argues that she is being denied benefits she would otherwise be entitled to and discriminated against based on race, gender and on the analogous grounds of family or marital status.

3The Attorney-General for Canada (the “Crown”) denies that Gehl has sustained any discrimination as alleged.

4The parties have agreed that this action and all assertions made by the parties are capable of being determined by way of a motion for summary judgment. The relevant facts are not in any serious dispute and neither party claims there is a genuine issue requiring a trial.

Facts

5Gehl’s ancestry has been set out in detail in her sworn affidavit and in the factum submitted on her behalf.

6In addition, Gehl’s known ancestral history is set out in “family tree” documents attached as Schedules “A” and “B” to these reasons. These documents detail her family history.

7This ancestral information is unchallenged by the Crown.

8On July 13, 1871, Gehl’s ancestor, Mary Ann Bannerman was born. On October 3, 1893, she married Frank Meness who was born on December 2, 1858. Both Bannerman and Meness were Indians as defined by the then-governing legislation, 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, S.C. 1868, c. 42 (31 Vict.).

9On January 14, 1891, Mary Anne Bannerman and Frank Meness gave birth to a daughter, Annie. At the time of her birth, Annie Meness was defined as an Indian under the then-existing system for such determination.

10On September 12, 1910, Annie Meness married Joseph Gagnon. At the time of the marriage, Joseph Gagnon was considered to be a non-Indian. As a result, Annie Meness became a "white woman" as the law then defined her to be.

11Although he was considered to be a non-Indian in 1910, Joseph Gagnon is now considered to be an Indian under s. 6(2) of the Indian Act, R.S.C., 1985, c. I-5 (the “Act”) because his mother, Angeline Jocko, is deemed to be entitled to registration pursuant to s. 6(1)(c). Annie Meness is likewise deemed to be an Indian pursuant to s. 6(1)(c) of the Act.

12On May 28, 1911, Annie Meness and Joseph Gagnon gave birth to a daughter, Mary Viola Bernadette Gagne. Mary Viola Bernadette Gagne was entitled to be registered as an Indian pursuant to s. 6(1)(f) of the Act.

13On May 31, 1935 Mary Viola Bernadette Gagne had a son, Rodney Gagnon. Mary Viola Bernadette Gagne never revealed the identity of her child’s father to anyone.

14Rodney Gagnon's entitlement to registration was pursuant to s. 6(2) of the Act on the basis that he had only one Indian parent because the identity of his father is unknown or unstated.

15Gehl is the daughter of Rodney Gagnon and Andree Martel, who has no entitlement to be registered.

16In November 1994, Gehl submitted an application for registration as an Indian with the Department of Indian Affairs and Northern Development, now known as Aboriginal Affairs and Northern Development Canada (“AANDC”).

17Because her mother’s lineage does not include any persons entitled to be registered, Gehl’s entitlement to be registered can only flow from the entitlement of her father and paternal grand-mother. Because Gehl’s grand-mother is deceased, never having disclosed the identity of Rodney Gagnon’s father, Gehl is not able to provide any evidence as to the identity of her paternal grandfather. The AANDC Registrar determined that she was not entitled to be registered.

18Gehl protested the denial of her application pursuant to the process available under the Indian Act. In April 1998, the Registrar considered her protest and her further submissions and denied her protest.

19In 2002, Gehl commenced this action against the Crown. She seeks a declaration that s. 6 of the Act which she argues precludes her registration, is contrary to s. 15 of the Charter because:

(a) Section 6 discriminates against applicants for registration who were born out of wedlock or whose ancestors were born out of wedlock;

(b) Section 6 discriminates against applicants for registration who do not know their paternity or the paternity of their ancestors;

(c) Section 6 discriminates against applicants for registration whose ancestors were never registered or recognized as Indians prior to 1985.

20The proceedings have been outstanding for some considerable time. As mentioned, the parties have elected to submit the issue for determination summarily on this motion and on this paper record.

Legislative History

21In order to provide some background and context for the nature of this issue, the legislative history of eligibility for registration as an Indian is of significance. As a general observation, this history discloses a developing political concern for those affected by such eligibility and some attempt to balance the several conflicting interests involved.

22The first legislation that defined who was an "Indian" was 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, S.C. 1868, c. 42 (31 Vict.), s. 15.

23Under that Act, “Indians” were defined as:

• all persons of Indian blood, reputed to belong to the particular tribe, band or body of Indians and the descendants;

• all persons residing among such Indians, whose parents were descended on either side from Indians or an Indian reputed to belong to the particular tribe, band or body of Indians, and the descendants; and

• all women lawfully married to the aforementioned, the children issue of such marriage, and their descendants.

24The Indian Act, S.C. 1876, c. 18 (39 Vict.), s. 3, modified the definition of an “Indian” to include:

• any male person of Indian blood reputed to belong to a particular band;

• any child of such person; and

• any woman who was lawfully married to such person.

25The 1876 Act also provided that:

Any illegitimate child, unless having shared with the consent of the band in the distribution moneys of such band for a period exceeding two years, may, at any time, be excluded from the membership thereof by the band, if such proceeding be sanctioned by the Superintendent-General.

26This provision allowing for the exclusion of illegitimate children from band membership was altered in the Indian Act, R.S. 1880, c. 28 (43 Vict.). Section 10 of the 1880 Act stated that:

Any illegitimate child, unless having shared with the consent of the band whereof the father or mother of such child is a member in the distribution moneys of such band for a period exceeding two years, may, at any time, be excluded from the membership thereof by the Superintendent General.

27The definition of an Indian then remained unchanged from 1880 until the passage of the Indian Act, R.S.C. 1951 c. 29. “Indian” is defined under the 1951 Act somewhat tautologically as a person who is registered as an Indian or is entitled to be registered as an Indian.

28Registration of an Indian pursuant to the 1951 Act was set out as follows:

11. Subject to section twelve, a person is entitled to be registered if that person

(a) on the twenty-sixth day of May, eighteen hundred and seventy-four, 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, chapter forty-two of the statutes of 1868, as amended by section six of chapter six of the statutes of 1869, and section eight of chapter twenty-one of the statutes of 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 twenty-sixth day of May, eighteen hundred and seventy four 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), unless the registrar is satisfied that the father of the child was not an Indian and the registrar has declared that the child is not entitled to be registered, or

(f) is the wife or widow or a person who is entitled to be registered by virtue of paragraph (a), (b) (c), (d) or (e).

12. (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 descendent of a person described in sub-paragraph (i),

(iii) is enfranchised, or

(iv) is a person born of a marriage entered into after the coming into force of this Act and has attained the age of twenty-one years, whose mother and whose father's mother are not persons described in paragraph (a), (b), (d), or entitled to be registered by virtue of paragraph (e) of section eleven, unless, being a woman, that person is the wife or widow of person described in section eleven, and

(b) a woman who is married to a person who is not an Indian.

12. (2) The Minister may issue to any Indian to whom this Act ceases to apply, a certificate to that effect.

29The Indian Act, R.S.C. 1970 c. I-6 amended s. 12 with respect to illegitimate children with the following addition:

[t]he 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 12 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.

30Section 12(3) of the 1970 Act allowed the Minister to issue a certificate enfranchising any Indian to whom the Indian Act ceased to apply.

31Reference to illegitimate children and these processes for determining their eligibility for registration remained in the Act until 1985. These references and processes appear to reflect a presumption of Indian paternity which is subject to challenge upon proof to the contrary.

32The 1951 Indian Act established a central Indian Register. Sections 11 and 12 of that Act set out who was entitled to be registered and who was not. Section 12(1)(b) provided that an Indian woman who married a non-Indian man was not entitled to be registered. In contrast, an Indian man who married a non-Indian woman was not only still entitled to be registered, but his non-Indian wife and their children were entitled to be registered as well. Bill C-31 was enacted in 1985 in part to end this discrimination.

33As mentioned above, the legislative history features outlined above suggest a progressive movement toward determining eligibility for Indian status with reference to an awareness of competing interests and societal change.

34As counsel for the Crown demonstrated in argument, there were many competing pressures at play when amendments to the Indian Act were being considered starting in 1982. First, s. 15 of the Canadian Charter of Rights and Freedoms was to come into force on April 17, 1985. The obviously discriminatory provisions of the Indian Act had to be amended by that date. Second, considerable difficulty in devising a new registration scheme to replace the one that had been in effect since 1951 was experienced because there was little consensus among the Aboriginal groups affected as to how this should be achieved.

35A number of Aboriginal groups had concerns about the numbers of persons that might become newly entitled to Indian registration and the impact this would have on their communities and resources. Third, there was a strong movement among First Nations for greater autonomy and control over band membership generally. This pressure was often at odds with the proposed imposition by Parliament of an amended statutory registration regime.

36Bill C-31 was enacted as a complex and carefully wrought compromise between a number of competing objectives. Among these objectives are:

(a) to end the discrimination against women created by their loss of entitlement to registration through marriage to non-Indians;

(b) to restore entitlement to registration to those who had lost it due to this discrimination;

(c) to ensure that no one should gain or lose entitlement to registration due to marriage;

(d) to ensure that anyone who had acquired rights under the registration scheme to date should not lose them - for example, to ensure that non-Indian women who had married Indian men should not lose their registration by virtue of the amendments;

(e) to provide First Nations the ability to determine their own band membership, with a statutory mechanism to do so.

37Bill C-31 (or An Act to amend the Indian Act, R.S.C. 1985, c. 32 (1st. Supp.)) received Royal Assent on June 28, 1985. It was made effective retroactively to April 17, 1985.

38Pursuant to s. 6 of the Indian Act, R.S.C. 1985, c. I-5, s. 6, a person is entitled to be registered if:

(a) that person was registered or entitled to be registered immediately prior to April 17, 1985;

(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;

(c) the name of that person was omitted or deleted from the Indian register, or from the Band List prior to September 4, 1951, under subparagraph 12(1)(a)(iv), paragraph 12(1)(b) or subsection 12(2) or under subparagraph 12(1)(a)(iii) pursuant to an order made under subsection 109(2), as each provision read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as any of those provisions;

(d) the name of that person was omitted or deleted from the Indian Register, or from a Band list prior to September 4, 1951, under subparagraph 12(1)(a)(iii) pursuant to an order made under subsection 109(1), as each provision read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as any of those provisions;

(e) the name of that person was omitted or deleted from the Indian register, or from a Band list prior to September 4, 1951,

(i) under section 13, as it read immediately prior to September 4, 1951, or under any former provision of this Act relating to the same subject matter as that section, or

(ii) under section 111, as it read immediately prior to July 1, 1920, or under any former provision of this Act relating to the same subject-matter as that section; or

(f) that person is a person both of whose parents are, or if no longer living, were at the time of their death entitled to be registered under this section.

Idem

(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).

Deeming provision

(3) For the purposes of paragraph (1)(f) and subsection (2),

(a) a person who was no longer living immediately prior to April 17, 1985 but who was at the time of death entitled to be registered shall be deemed to be entitled to be registered under paragraph (1)(a);

(b) a person described in paragraph (1)(c), (d), (e) or (f) or subsection (2) and who was no longer living on April 17, 1985 shall be deemed to be entitled to be registered under that provision; and

(c) a person described in paragraph (1)(c.1) and who was no longer living on the day on which that paragraph comes into force is deemed to be entitled to be registered under that paragraph.

39These registration provisions as amended by Bill C-31 have remained essentially unchanged for almost 30 years.

40One set of amendments was enacted as a result of the decision of the B.C. Court of Appeal in McIvor v. Canada (Registrar of Indian and Northern Affairs), 2009 BCCA 153. As a result, Parliament enacted Bill C-3 reflecting such amendments to correct a set of discriminatory effects resulting from one aspect of the earlier amendments in 1985.

41The 1985 amendments generally operated such that, under the gender-neutral second generation cut-off for entitlement to registration, all persons descended from two consecutive generations of mixed parentage are treated the same with respect to Indian registration. Where there were any distinctions between those descended from female and male Indian ancestors in such circumstances, in McIvor these were justified based on the objectives of Bill C-31, which included the preservation of acquired rights and heeding band concerns as to the pressure created by an influx of newly entitled individuals.

42There was one distinction, however, which could not be attributed to these objectives. Descendants in the male line had their entitlement not only preserved but enhanced by the amendments. This was the small group of persons who were subject to the so-called "Double Mother Rule".

43The Double Mother Rule had applied from 1951 until the Bill C-31 amendments to those whose mother and paternal grand-mother were entitled to registration only by virtue of their marriages to Indian men. Prior to 1985, the Indian Act had provided that persons to whom the Double Mother Rule applied could only be registered up to the age of 21. Bill C-31 reinstated all those who had lost registration by that age, and those who were not yet 21 became entitled for life.

44Bill C-3 corrected this inequity by providing this same enhanced entitlement to those whose grandmothers had married out before 1985 and had so lost their entitlement to registration. Because the discrimination was limited to the period in which the Double Mother Rule was in effect (1951 to 1985), only a specific group of individuals were assisted by Bill C-3. The children of such women who had been entitled under s. 6(2) became entitled under the new 6(1)(c.1) if they had or adopted children on or after September 4, 1951, with the effect that their children became newly entitled to registration on January 31, 2011 under s. 6(2).

45As noted above, prior to the 1985 amendments the Act made it clear that an illegitimate child of an Indian woman was considered an Indian unless the Registrar was satisfied that the father of the child was not an Indian. If the Registrar was satisfied that the father was non-Indian, the Minister could issue a certificate indicating that the Indian Act ceased to apply to the illegitimate child, but was not required to do so. No presumption that a child's father was non-Indian unless proven to be so was part of this process.

46Illegitimate children who had certificates issued against them pursuant to section 12(2) of the 1951 Act or 12(3) of the 1970 Act were made eligible for registration pursuant to s. 6(1)(c) of the 1985 legislation.

47The changes to the Act in 1985 which eliminated reference to "illegitimacy" and which re-instated those illegitimate children that had certificates issued against them by the Minister indicate that their purpose to remove the earlier distinction between children born in wedlock and those born out of wedlock.

48In a review of such complex legislative history, an effort to correct historical injustices may be discerned, even if such effort may not always have been successful.

Proof of Paternity Policy

49The Registrar who denied Gehl’s application is responsible for applying the registration provisions of the Indian Act and making decisions on the entitlement of applicants to be registered. The Registrar is supported by a staff working across the country at regional, tribal council and band office levels, as well as Entitlement and Adoption Officers, and Protest and Appeal Officers.

50The Registrar develops policies in an effort to ensure a uniform interpretation and application of the registration provisions of the Indian Act. One such policy is the "Proof of Paternity Policy".

51The Crown submits that the need for this Policy arose in response to a growing number of mothers seeking to register their children without identifying the names of their children's fathers.

52For registration purposes, it is important to identify the child's father. If the mother is registered or entitled to be registered under s. 6 of the Act, her child can be registered under s. 6(1)(f) only if the father is identified and entitled to be registered under s. 6. If the father is not identified, her child can only be registered under s. 6(2) if she herself is entitled to be registered under s. 6(1). If, on the other hand, the mother is entitled to be registered under s. 6(2) of the Act, and the father is not identified, her child cannot be registered at all. The child cannot be registered unless evidence of paternity can be established, and determination of whether the father is entitled to be registered.

53The Policy is applied to all applicants seeking registration under the Indian Act when it is necessary for applicants to establish entitlement to registration of their ancestors. Although ostensibly recorded in draft form, the Policy is implemented by the Registrar as though it is final.

54The Policy is said by the Crown to have been developed to guide the Registrar on how best to proceed in these circumstances to implement the registration provisions of the Act, while also ensuring that the statutory requirements are met with the same standards of evidence across the country, but allowing for a certain degree of flexibility. The Policy requires applicants to provide the best available supporting evidence.

55The Policy provides that the following evidence of paternity will be accepted by the Registrar in the following order of preference:

(1) Birth certificates of provincial, territorial or state Vital Statistics authorities naming the father;

(2) Court orders declaring paternity;

(3) Statutory declarations, preferably by the mother and father, but by two close relatives will suffice if they can identify the father from their own personal knowledge;

(4) If the father denies paternity, it is preferable if the mother works with Vital Statistics Authorities to find out if there are other types of acceptable evidence to have the father's name added to the birth certificate; and

(5) In cases where confidentiality or personal safety is a concern (such as in cases of sexual assault, incest or domestic violence), and none of the above is available, the Registrar may consider other evidence or suggest other means of obtaining proof of paternity such as offering a hearing or suggesting the possibility of DNA paternity testing as a last resort.

Gehl’s Inability to Determine the Identity of her Paternal Grandfather

56Gehl’s paternal grandmother, Mary Viola Bernadette Gagne was entitled to be registered by operation of the 1985 amendments to the Indian Act enacted by Bill C-31. This is because the 1985 amendments also affected three notional reinstatements in Gehl’s family tree:

(1) her paternal great grandmother, Annie Meness, was notionally reinstated, having lost her entitlement to be registered by marrying a non-Indian in 1910;

(2) her paternal great-great grandmother, Angeline Jocko, was notionally reinstated under s. 6(1)(c), having lost her own entitlement to be registered by marrying a non-Indian in 1884; and

(3) her paternal great grandfather, Joseph Gagnon was notionally reinstated under s. 6(2) by virtue of the reinstatement of his mother, Angeline Jocko. Joseph Gagnon is Mary Viola Bernadette Gagne's father and the plaintiff's paternal great grandfather.

57Gehl was also able to provide evidence that Mary Viola Bernadette Gagne gave birth to a son, Rodney Gagnon, on May 31, 1935, and that this son, now deceased, is her father. It follows that her father was entitled to be registered under s. 6(2) of the Indian Act.

58Gehl, however, was not able to provide possible evidence as to the identity of her paternal grandfather, as her paternal grandmother never disclosed his identity and she never asked her that question. For this reason, she failed to meet the Policy requirements established by the Registrar purportedly to comply with the statutory requirements of the Indian Act for the purposes of establishing her own entitlement to be registered.

Impact of Denial of Entitlement to Register

59For people who are denied benefits and rights conferred through the Act, entitlement to registration is not simply written law or the administration of the Indian Register. The entitlement is the gateway to accessing benefits and rights that allow registered Indians access to the reserve and community.

60Among these many benefits are the entitlement to non-insured health care benefits and the right to apply for funding for post-secondary education.

61In addition, Gehl submits that denial of registration to her has a negative impact on her human dignity, her feelings of self-worth, her cultural identity, and her ability to be accepted as a member of a band and by her people more generally. Indeed, her counsel put that consideration at the forefront of Gehl’s motivation to pursue her claim and argued that these severe consequences increase the likelihood that the impugned provisions will be held to be discriminatory.

62The features and significance of this impact on Gehl are not disputed by the Crown.

Demographic evidence

63Each party provided evidence by a demographer on this motion for summary judgment. The Crown provided a report by Stewart Clatworthy. Gehl provided a report by James Frideres, responding to and critiquing the report of Clatworthy.

64The purpose of these reports was to provide this Court with expert evidence on the implications of the introduction of a presumption of Indian paternity to the Indian Act in cases of unstated paternity. These implications relate to both a potential increase in the number of registered Indians, and in the cost to the Crown of the financial benefits that registered Indians are entitled to, which include non-insured health care benefits, and a right to apply for funding for post-secondary education, among various other benefits.

65In the interests of efficiency, the experts agreed to confer with each other and provided a Joint Statement to this Court to identify what they agreed upon and what they disagreed about.

66The experts agreed that the introduction of a presumption of Indian paternity into the legislative frame-work and policies thereunder would increase the population of those entitled to be registered as Indians. They also agreed that this increase would, in turn, increase the total cost of the financial benefits that the increased registered population could apply for. They disagreed as to the range of the potential increases in both the numbers and costs.

67The Crown submits that the expert evidence supports its argument that, because of the resource and financial implications of the remedies sought in this motion, Parliament is the institution best positioned to fashion the appropriate remedy. Gehl argues that these considerations should not undermine the availability of Charter rights to her or others in her position.

Issues: Do s. 6 of the Indian Act and/or the Office of the Indian Registrar’s Proof of Paternity Policy infringe Gehl’s rights under s. 15 of the Charter?

68Gehl argues that her inability to register for Indian status is evidence that illegal discrimination based on illegitimacy and family status persists in the Indian Act, 1985 despite the removal of earlier offensive provisions. She argues that the post-1985 registration regime is actually less generous to illegitimate offspring of status Indian mothers. As referred to above, under the pre-1985 scheme an illegitimate child of an Indian woman was considered an Indian unless the Registrar was satisfied that the father was not an Indian. A protest provision was in place to allow others to dispute a child’s registration. However, there was no automatic negative presumption of paternity that had to be disproven.

69Gehl was denied registration on the basis that she could not provide sufficient evidence to prove her entitlement to Indian status. Her paternal grandfather is unknown and unknowable. She argues that, while it is on its face neutral as to legitimacy and family status, the registration system’s operation discriminates against those with unknown or unknowable paternity.

70Gehl submits that s. 6 draws a distinction between offspring of illegitimate children or those who do not know the identity of their paternal grandfathers, and the offspring of “legitimate” Indians. She claims that as a result she is barred from registration even though her paternal grandfather may have been an Indian. She compares her situation to those who are registered and able to fully enjoy the rights associated with being a status Indian. She further submits that the effect of the Indian Act is to discriminate based on family status by imposing on her a more onerous burden of proof that cannot be met. She alleges that the different treatment is also based on the enumerated ground of race, in that only aboriginal persons are affected.

71Gehl further states that the denial of her application is a direct result of the gender of her Indian ancestors. She claims that, had her Indian lineage been male, the previous generations would have qualified to register under s. 6(1). Prior to the amendments, her father would have benefited from the previous regime by registering as an “illegitimate” child under s. 6(1)(a). In turn, she would have been entitled to register under ss. 6(1), or under 6(2).

72Gehl states that in the absence of a positive presumption where paternity is unknown, Indian children are disenfranchised and alienated from the community when paternity is unknown, denied, or unstated for safety or personal reasons.

73Gehl argues that her father’s unknowable paternity, as opposed to his illegitimacy, prevents her from obtaining status. Since no one knows the identity of Gehl’s paternal grandfather, she is not able to prove his entitlement to Indian status.

74The Crown takes issue with all of Gehl’s arguments. The Crown asserts the denial of Gehl’s application for Indian status does not ultimately turn on race, gender, family or marital status or illegitimacy. Rather, it is the unknowable identity of Gehl’s paternal grandfather that prevents her from proving his entitlement to status. Unknowable paternity is not an analogous ground and does not engage Charter considerations.

75The Crown denies Gehl’s assertion that either the legislation or the Policy is discriminatory against those born out of wedlock and their descendants. The Crown submits that the Policy treats all applicants equally and provides various mechanisms for proving entitlement to registration. More specifically, the Crown argues that the Policy does not differentiate between legitimate and illegitimate individuals since many applicants born out of wedlock know the identity of their fathers and can prove entitlement to status regardless of their family status.

76Even if personal and safety factors (such as sexual assault and incest) militate in favour of a flexible approach to implementing the legislation, the Crown argues that the Policy does allow for other means of establishing paternity for the purpose of entitlement.

77The Policy does include a number of routes by which an applicant may provide proof of identity and entitlement to status. These range from birth certificates to statutory declarations, oral hearings, and DNA tests. Gehl challenges the conditions for registration, and not their implementation by the Registrar. The Crown points to other kinds of evidence that might substantiate paternal identity, such as area of residence.

78Gehl’s predicament therefore arises from the unique circumstances of her life, particularly the unknowable identity of her paternal grandfather. The Crown submits that the Policy is neutral when it comes to unknown or unknowable ancestors. The Crown argues that the Registrar is afforded no discretion in interpreting the legislation and thus cannot draw negative or positive presumptions. The Crown submits that adopting what it describes as a positive presumption of paternity contradicts the requirement that registration be granted to individuals who have at least two status Indian grandparents and dilutes the many considerations taken into account when the legislation was passed.

79The Crown argues that Gehl’s particular burden cannot be alleviated without the adoption of a positive presumption of paternity in cases of unknown ancestors. This proposed solution has far reaching consequences. It undermines the purpose of the Policy, which is to guide applications under the legislation. It makes unknown paternity or the inability to prove the identity and status of a parent an advantage. Applicants such as Gehl would benefit from a positive presumption and be entitled to status while those with one s. 6(2) status Indian parent and other non-status ancestors would not. Moreover, as the Crown argues, such a presumption would compromise the integrity of the registration system by changing the requirements for registration. Given the benefits received by status Indians, a positive presumption may provide an incentive to individuals not to report the name of non-status father.

80The Supreme Court of Canada has provided guidance on considering the application of s. 15(1) of the Charter (see: Quebec (Attorney-General) v. A., 2013 SCC 5, 2013 S.C.C. 5). Such an analysis is to proceed in two stages, by determining (a) Does the law create a distinction based on an enumerated or analogous ground? and (b) Does the distinction create a disadvantage by perpetuating a prejudice or stereotyping?

81For the reasons advanced by the Crown, I find that the impugned provisions of the Indian Act treat all applicants the same. An onus is placed on all applicants to establish entitlement to registration. I agree with the Crown that “unknowable paternity” is not an analogous ground.

[82] Consequently, I agree with the Crown that the first step of the s. 15 Charter analysis, providing differential treatment based on an enumerated or analogous ground, has not been met. Were there a distinction to be found, I would not consider it to create a disadvantage by perpetuating a prejudice or stereotype. The case authorities relied upon by Gehl have no application to the facts of her case.

83Having found that the impugned provisions of the Indian Act or the Policy do not infringe s. 15, it is unnecessary to consider justification under s. 1.

84Similarly, having concluded as above that no infringement arises, the issue of appropriate remedy need not be considered.

85Although I have concluded that neither s. 6 nor the Policy infringe upon Gehl’s Charter rights, I nevertheless query whether the content and application of the Policy in her case is wholly consistent with the provisions and legislative objectives of the Act. This is a consideration of purposive statutory interpretation and not constitutionality or Charter compliance.

86The history of the Act as described above would suggest that the intent of the legislation was not to disentitle or impede the ability of persons born outside marriage to qualify for registration on that ground alone.

87In reasons dated September 5, 2002 dismissing Gehl’s appeal from the decision of Swinton J. striking her claim for damages, the Court of Appeal for Ontario noted that the Registrar had concluded that the information in support of Gehl’s protest that her paternal grandfather was an Indian was insufficient to warrant a finding that she was entitled to registration. In so noting, the Court of Appeal stated that the “correctness of that decision is not in issue in this appeal and we make no comment on it. That decision, however, can be addressed on the statutory review of the Registrar’s decision in the Superior Court”. The case advanced on Gehl’s behalf was focused solely on the Charter issues raised in her action.

88The Crown argues that the Policy as presently articulated and implemented allows for the presentation of evidence that effectively would increase the probabilities that the father was eligible for registration. These would include the area of mother’s residence, factual details of activities and whereabouts at time of conception, and so forth.

89This approach is distinctly problematic in Gehl’s case (and in the circumstances of others like her) where, through no fault of her own, she has been unable to determine the identity of her paternal grandfather and thus is considered to have failed to provide sufficient proof of entitlement to registration.

90Gehl never asked her grandmother to reveal her father’s identity and her grandmother never divulged that information, keeping his identity a secret. Requiring anything more from Gehl than her statutory declaration attesting to her lack of any reasonable basis for belief that the father of her father would not have been entitled to registration may go beyond the requirements of the legislation, in my view. Such a statement is potentially satisfactory evidence, albeit evidence that may be subject to rebuttal. To the extent such evidence might serve to satisfy the Act’s provisions, this would not amount to the establishment of a positive presumption. It is no less probative than the residential and other circumstantial details which the Registrar views as acceptable.

91These comments are made only in passing and with reference to proof that the Registrar permits or requires, a list which is presumably fluid, open-ended and the subject of principled evolution. Such an approach could conceivably prevent injustice or unfairness in dealing with cases such as Gehl’s and would be consistent with the history and objectives of the legislation which must include cultural preservation and vitality.

Conclusion

92For these reasons, Gehl’s claim based upon a Charter challenge to the provisions of the Indian Act and Policy established thereunder must fail.

Costs

93In the event that costs are being sought by any party and the issue cannot be otherwise resolved, written submissions on that subject may be delivered within 60 days of today’s date.

STEWART J.

Released: June 2, 2015

CITATION: Gehl v. Canada (Attorney-General), 2015 ONSC 3481

COURT FILE NO.: 02-CV-237750CM3

DATE: 20150602

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN: