Catholic Children’s Aid Society of Hamilton v. G.H., T.V. and Eastern Woodlands Métis of Nova Scotia, 2016 ONSC 6287

CITATION: Catholic Children’s Aid Society of Hamilton v. G.H., T.V. and Eastern Woodlands Métis of Nova Scotia, 2016 ONSC 6287

COURT FILE NO.: C 1167/12

DATE: 2016/10/12

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

45.-(8) 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.

85.-(3) A person who contravenes subsection 45(8) (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

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Catholic Children’s Aid Society of Hamilton

Applicant

– and –

G.H., T.V. and Eastern Woodlands Métis of Nova Scotia

Respondents

Imran Kamal, counsel for the Applicant

Melinda Graham, counsel for the Respondent G.H.

Norman F. Williams, counsel for the Respondent T.V.

HEARD: June 27, 2016

The Honourable Madam Justice Deborah L. Chappel

reasons for judgment

PART I: INTRODUCTION

[1] This case is about a seventeen month old boy, E.D.V., born […], 2015. E.D.V. was apprehended at birth by the Applicant Catholic Children’s Aid Society of Hamilton (“the Society”) and has remained in foster care on a consistent basis since that time. The Respondents G.H. and T.V. are the mother and father of E.D.V. This case is also about the equality rights of Métis children and their families in the child protection context in Ontario, and whether the provincial government is respecting those rights. It is an important opportunity for this province to demonstrate its commitment to act upon the Calls to Action that the Truth and Reconciliation Commission of Canada issued in 2015.

[2] The Society commenced a Protection Application regarding E.D.V. on May 5, 2015, requesting an order for Crown wardship without access to the Respondents. It decided to pursue a Summary Judgment Motion in relation to that application in February 2016. In the context of the Summary Judgment Motion, the Respondent father T.V. argued that E.D.V. is a Métis child, and that as such, he should be treated in the same manner as children who fall within the definitions of Indian, Native person and Native child under the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended (the “CFSA”). All parties concede that Métis children do not fall within the scope of those definitions as they now stand, and that E.D.V. therefore does not have Indian or Native status within the meaning of the CFSA. However, T.V. alleges that the definitions of Indian, Native person and Native child in the CFSA violate section 15(1) of the Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the “Charter”) on the basis that they do not extend to Métis children. T.V. served and filed a Notice of Constitutional Question outlining the specifics of his constitutional challenge dated May 19, 2016. He later filed an amended Notice of Constitutional Question dated June 6, 2016. He seeks an order pursuant to section 52(1) of the Constitution Act, 1982 declaring the definitions of Indian, Native person and Native child invalid and suspending the declaration of invalidity for a period of time, as well as an individual remedy pursuant to section 24(1) of the Charter directing that E.D.V. be treated as if he were an Indian, Native person or Native child for the purposes of these child protection proceedings.

[3] The Society advised that it was not taking a formal position on whether the definitions of Indian, Native person and Native child violate section 15(1) of the Charter. However, it opposed the relief sought on two grounds. First, it argued that it is unnecessary to deal with the constitutional issues, since the Society has in all material respects treated E.D.V. as if he were Indian or Native. In addition, it submitted that the only two Métis organizations that have had a connection with this family have chosen not to participate in this proceeding and have not advanced an alternative, culturally appropriate plan for E.D.V. Accordingly, the argument is that finding E.D.V. to have Indian or Native status would not have any impact whatsoever on the outcome of the case. The Society’s second argument is that T.V. has not adduced the necessary evidence to support a finding that Métis children are suffering discriminatory disadvantage as a result of the definitions of Indian, Native person and Native child under the CFSA.

[4] Unfortunately, as detailed below, the Summary Judgment Motion had to be adjourned many times in order to deal with various issues. At the court appearance on June 3, 2016, I scheduled a hearing to address the constitutional issues raised in T.V.’s Notice of Constitutional Question, whether E.D.V. is an Indian, Native person or Native child within the meaning of the CFSA, and if so, which organization or person should be served with the documents filed in relation to the Protection Application as the representative of the child’s community.

[5] The issues to be determined in this case are as follows:

1. What are the criteria under the CFSA for finding a child to be an Indian, Native person or Native child, and what are the implications of such a finding?

2. Is it unnecessary to deal with the constitutional issues in this case, on the basis that the Society has in all respects treated E.D.V. as if he were Indian or Native? For the reasons set out below, I have concluded that it is necessary to deal with the constitutional issues that T.V. has raised.

3. Whose equality rights are at stake in this case? As discussed in further detail below, I have concluded that this case involves the equality rights of both T.V. and the child E.D.V.

4. Do the definitions of Indian, Native person and Native child violate section 15(1) of the Charter on the basis that they do not include Métis children? For the reasons set out below, I conclude that the definitions infringe section 15(1).

5. Is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society pursuant to section 1 of the Charter? The onus is on the party seeking to uphold the constitutionality of a law to establish that a violation is saved by section 1. The Attorney Generals of Canada and Ontario chose not to participate in this hearing, and the Society did not address the section 1 issue. Accordingly, I have concluded that the violation is not saved by section 1.

6. What is the appropriate remedy for the Charter breach? As detailed later in these Reasons, I have determined that the most appropriate remedy in this case is to declare the definitions of Indian, Native person and Native child as set out in section 3(1) of the CFSA to be invalid pursuant to section 52(1) of the Constitution Act, 1982 on the basis that they infringe section 15(1) of the Charter. However, I am suspending the declaration of invalidity for a period of 10 months, until August 11, 2017, to allow the Ontario Legislature an opportunity to remedy the constitutional problem. Given that a suspended declaration of invalidity does not assist E.D.V. and T.V., I have also granted T.V. an individual remedy pursuant to section 24(1) of the Charter, in the form of an order that for the purposes of the Protection Application and any subsequent child protection proceedings, E.D.V. shall be treated as if he were an Indian, Native person or Native child.

7. Who is the representative of E.D.V.’s Métis community who should be served with the documents relating to the Protection Application? I have determined that the child’s Métis community is the Eastern Woodlands Métis of Nova Scotia, that an appropriate representative of that community has been served, and that the community has chosen not to participate in this proceeding. Accordingly, I have determined that there are no further service requirements in this case.

PART II: BACKGROUND AND HISTORY OF COURT PROCEEDINGS

[6] I make the findings of fact set out in this Part regarding the background in this matter based on the evidence adduced at the hearing.

[7] As noted above, G.H. is the mother of E.D.V. and T.V. is the child’s father. G.H. has two older children from a previous relationship, I.M., born […], 1998, and P.M., born […], 2001. The Respondents G.H. and T.V. are the biological parents of two other children, namely A.V., born […], 2007, and T.V., born […], 2008. The Society has a longstanding history of involvement with this family dating from 2008. It eventually commenced a Protection Application respecting E.D.V.’s siblings on June 29, 2012. In the context of that application, McLaren, J. made a final order on February 11, 2013 providing for E.D.V.’s four older siblings to remain in care until March 15, 2013, and to then return to the care of G.H. and T.V. subject to Society supervision. On that date, McLaren, J. also made a finding that those four children were not Indian or Native children within the meaning of the CFSA.

[8] The Society has remained involved with this family through court intervention on a consistent basis since June 2012. The four older children were apprehended from the care of G.H. and T.V. in July 2014. I.M. was returned to the care of G.H. and T.V. on a temporary basis on February 2, 2015, and on April 27, 2015, Gordon, J. granted a final order providing for him to remain in their care subject to Society supervision for six months. That order was extended for a further period of six months on March 21, 2016. The other three children, P.M., A.V. and T.V., were made Crown wards by order of Brown, J. dated September 3, 2015. Subsequently, on October 15, 2015, I made a final order addressing the issue of access to those children.

[9] As previously noted, E.D.V. was apprehended on […], 2015 based on the history of concerns respecting the Respondents in relation to their four older children. The Society commenced the Protection Application herein respecting E.D.V. on May 5, 2015, requesting an order for Crown wardship without access. On that date, Brown, J. granted a temporary order providing for the child to remain in care, with access to the parents in the discretion of the Society and supervised in the Society’s discretion.

[10] The Society commenced the Summary Judgment Motion respecting E.D.V. in February, 2016, requesting an order for Crown wardship without access. On February 12, 2016, the motion was scheduled for a hearing on the Long Motions sittings commencing March 21, 2016. Subsequently, on March 11, 2016, T.V.’s counsel obtained an order removing herself as counsel of record for T.V. The Summary Judgment Motion was called in for a hearing before me on March 30, 2016. At that time, T.V. indicated that he was experiencing difficulties retaining counsel. In addition, he argued that the hearing could not proceed because he had received a notice from the Motherisk review committee that the child protection proceedings respecting his children were under review. Finally, T.V. submitted that he was a card holding member of the Eastern Woodlands Métis of Nova Scotia, and that as such, E.D.V. was also Métis. He stated that he had advised the Society of E.D.V.’s Métis status many times, and submitted that in his view, E.D.V. should be treated as an Indian or Native child within the meaning of the CFSA. T.V. requested an adjournment of the Summary Judgment Motion to allow him further time to obtain legal representation and for the Society to address the other issues that he had identified.

[11] The concerns relating to the Motherisk review were resolved at the appearance on March 30, 2016, but I concluded that an adjournment of the Summary Judgment Motion was required to address the other issues that T.V. had raised. Therefore, I adjourned the Motion to April 27 and April 28, 2016. I ordered that the statutory findings, including whether E.D.V. has Indian or Native status, would be addressed on April 27, 2016 and that the issues of placement and access would be addressed on April 28, 2016. Given that one of the issues was whether a Métis child qualified as an Indian or Native child or person within the meaning of the CFSA, I also directed the Society to serve the Métis Nation of Ontario and the Eastern Woodlands Métis of Nova Scotia with a copy of my endorsement and correspondence indicating that the issue of E.D.V.’s status was to be determined on April 27, 2016. The Society subsequently complied with this direction on March 31, 2016. I included the Métis Nation of Ontario in this direction because I was aware from the evidence filed by the Society that this organization had been involved in providing services for the family. At the court appearance on March 30, 2016, I further directed that if either the Métis Nation of Ontario or the Eastern Woodlands Métis of Nova Scotia wished to take a position respecting the Indian or Native status issue, they should send a representative to appear on April 27, 2016 to address the issue of standing and to adduce evidence and make submissions on the subject if appropriate. My order included a direction that if the Métis Nation of Ontario or the Eastern Woodlands Métis of Nova Scotia intended to participate in the hearing, they were to give notice of their intention to the Society by April 13, 2016.

[12] The Society faxed a copy of my endorsement dated March 30, 2016 to the Métis Nation of Ontario’s Hamilton office on March 31, 2016. Ms. Lisa Scott of that office forwarded the endorsement and the Society’s correspondence to the organization’s Toronto office shortly thereafter. On April 10, 2016, Ms. Jean Appel, the Métis Healthy Babies Healthy Children coordinator, sent correspondence to the Society confirming that the Métis Nation of Ontario was aware that T.V. self-identified as a Métis person connected with the Eastern Woodland Métis of Nova Scotia, and confirmed that she was the proper person with whom the Society should correspond in relation to the Métis Nation of Ontario, this family and the court proceedings. Ms. Appel indicated in this correspondence that the Métis Nation of Ontario would not be seeking standing or taking an interest in the proceedings on the issue of E.D.V.’s status as an Indian or Native child or person within the meaning of the CFSA.

[13] When the Summary Judgment Motion returned before me on April 27, 2016, T.V. advised that his appeal to Legal Aid respecting his legal representation in this proceeding was still outstanding. In addition, he raised the argument that the definitions of Indian, Native person and Native child in section 3(1) of the CFSA violate E.D.V.’s equality rights pursuant to section 15(1) of the Charter on the basis that they do not extend to Métis children. He relied on the Supreme Court of Canada decision in Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, 2016 S.C.C. 12 (S.C.C.), which had been released on April 14, 2016, as being relevant to his constitutional challenge. No representatives of the Métis Nation of Ontario or the Eastern Woodlands Métis appeared in court. The Eastern Woodlands Métis of Nova Scotia did not respond to the Society’s correspondence advising it of the issues to be determined at the hearing and inviting them to participate.

[14] At the hearing on April 27, 2016, I concluded that T.V. was actively attempting to address his legal representation dilemma, and that it was important that he have legal representation to advance his constitutional claim and present his defence on the Summary Judgment motion. Furthermore, although the Métis organizations had not up until that point demonstrated an interest in participating in the proceedings, I noted that the deadline of April 13, 2016 that I had previously set for them to give notice of their intention to participate pre-dated the release of the Daniels decision. Given the importance of the constitutional issue that T.V. was raising for Métis children and their families, and in particular members of the Eastern Woodlands Métis of Nova Scotia, I made an order adding that community as a party to the Summary Judgment Motion with respect to the finding of Indian or Native status, and directing the Society to serve the community with all of the materials relating to the Summary Judgment Motion. In addition, I ordered that a representative of the community could participate in the hearing via skype, provided that they advised the Trial Coordinator in writing of their request to do so by May 5, 2016. My hope was that these measures would encourage and facilitate the participation of the Métis community in the hearing. I also directed that the Society send a copy of my endorsement to the Attorney General of Canada and the Attorney General of Ontario, so that they would have advance notice of T.V.’s intention to serve and file a Notice of Constitutional Question and the nature of the issues to be determined. The Society complied with all of the directions that I made on April 27, 2016 regarding service of materials.

[15] On May 5, 2016, counsel for the Society, Mr. Kamal, spoke with Ms. Mary Lou Parker, who identified herself as the Grand Chief of the Eastern Woodlands Métis of Nova Scotia. During that conversation, Ms. Parker indicated that the community would not be seeking to intervene in the hearing, that it did not have any Métis foster homes or placements for E.D.V., and that it was supporting the Society’s plan for adoption for the child. Ms. Parker reiterated these points during a subsequent conversation with Mr. Kamal on June 1, 2016.

[16] This matter returned before me on May 9, 2016 to be spoken to. T.V. had finally been able to secure legal counsel, Mr. Williams, who appeared on May 9, 2016. Mr. Williams had just been retained and had not had an opportunity to prepare materials on behalf of T.V. The Eastern Woodlands Métis of Nova Scotia did not send a representative to participate on that date and did not request the right to participate by skype. Ms. Parker sent correspondence to the court on that date confirming that the Eastern Woodlands Métis of Nova Scotia would not be participating in the hearing. I noted in court on May 9, 2016 that the issue of whether E.D.V. was a Native or Indian child under the CFSA must be determined before proceeding to the disposition issues in the case, given that there are special considerations that apply with respect to disposition in cases involving Indian and Native children. I set a deadline of May 20, 2016 for T.V. to serve and file his Notice of Constitutional Question and his responding materials for the Summary Judgment Motion. The matter was adjourned to June 3, 2016 to allow the Attorney Generals of Canada and Ontario to determine whether they wished to participate. An adjournment was also required because the Society had only served some of the Summary Judgment Motion materials on the Eastern Woodlands Métis of Nova Scotia. On this date, I made a finding on consent of all parties finding that E.D.V. is a Métis child, and I gave written reasons for this finding on May 13, 2016.

[17] When the matter returned before me on June 3, 2016, T.V. had served and filed his Notice of Constitutional Question on all parties, including the Eastern Woodland Métis of Nova Scotia. Again, nobody appeared on behalf of the Eastern Woodlands Métis of Nova Scotia, despite the fact that the community had again been given notice of the return date. Nobody appeared on behalf of the Métis Nation of Ontario, despite the fact that notice had been given to that organization on March 31, 2016 that the issue of E.D.V.’s Native or Indian status under the CFSA was to be determined. Similarly, nobody appeared on behalf of the Attorney Generals of Canada or Ontario. However, I did not have proof of service on the Attorney Generals and I therefore ordered counsel for T.V. to file the relevant affidavits of service. I also granted T.V. leave to serve and file an amended Notice of Constitutional Question, which he subsequently filed on June 6, 2016. I scheduled a hearing for June 27, 2016 to determine the constitutional issues, whether E.D.V. is an Indian, a Native person or a Native child within the meaning of the CFSA, and if so, which organization or person, if any, should be served with the documents relating to the Protection Application. I directed the Society to serve the Eastern Woodlands Métis of Nova Scotia with a copy of my endorsement so that it would be aware of the return date. The Society complied with this direction. Finally, I encouraged counsel for the Respondent T.V. to explore whether there were any other Métis organizations that wished to participate in the hearing of the constitutional issues.

[18] Following the court appearance on June 3, 2016, an articling student with Mr. Williams’ office made numerous efforts to determine whether any Métis organizations or groups would be interested in participating in the hearing of the constitutional issues to be determined in this case or in providing assistance and support to T.V. in addressing the issues. Those efforts are outlined in detail in his affidavit sworn June 13, 2016. The efforts were extensive, and included two emails to the Director of the Métis Nation of Ontario, emailing the President of a Hamilton Métis organization, emailing and calling legal counsel with the Legal Aid Ontario Aboriginal and Legal Services Department, connecting with the Indigenous Bar Association, contacting the Métis National Council, and calling Indian and Northern Affairs Canada to obtain information about potential Métis contacts. On June 8, 2016, Mr. Williams’ articling student provided legal counsel for the Métis Nation of Ontario with materials to review, and on June 13, 2016, he sent correspondence and materials to the newly elected president of the Métis Nation of Ontario so that she could decide if that organization would consider intervening.

[19] The hearing finally commenced before me on June 27, 2016. The Attorney Generals of Canada and Ontario chose not to participate in the hearing on the constitutional issues, and nobody appeared on behalf of the Eastern Woodlands Métis of Nova Scotia. Furthermore, no representatives from any Métis group appeared, despite the numerous efforts on the part of counsel for T.V. to seek assistance and support from various Métis groups and representatives. On consent, a letter from legal counsel for the Métis Nation of Ontario, dated June 27, 2016 was marked as an Exhibit for the sole purpose of confirming that that organization had decided not to seek intervenor status at the hearing. In that correspondence, counsel indicated that the Métis Nation of Ontario could change its position regarding intervention if it were in receipt of evidence indicating that T.V. or E.D.V are citizens of either an Ontario Métis community or citizens of the broader Métis Nation. This letter was written and sent on the morning of the actual court hearing. The matter proceeded notwithstanding the Métis Nation of Ontario’s indication of a possible interest in becoming involved, since that organization had been on notice since March 31, 2016 that the issue of E.D.V.’s Native or Indian status was to be addressed in this proceeding. Furthermore, by that point, the Summary Judgment Motion had been on adjournment since February 12, 2016.

[20] At the hearing on June 27, 2016, the Society adduced evidence that it had consulted with both the Eastern Woodlands Métis of Nova Scotia and the Métis Nation of Ontario about whether either was aware of any potential placements for E.D.V. with Métis families. Both organizations advised the Society that they did not have any placements to propose for the child.

PART III: ANALYSIS

ISSUE #1: THE CRITERIA FOR FINDING A CHILD TO BE INDIAN OR NATIVE UNDER THE CFSA, AND THE SIGNIFICANCE OF SUCH A FINDING

[21] The starting point for the analysis in this case is section 3(1) of the CFSA, which sets out the definitions of Indian, Native person and Native child. The definitions of these terms in the CFSA are very restrictive and clearly do not include all individuals with Aboriginal heritage (Children’s Aid Society of Halton v. M.M., 2016 ONCJ 323 (O.C.J.), at para. 48 (“M.M.”); Children’s Aid Society of Ottawa v. F.(K.), 2015 ONSC 7580 (S.C.J.), 2015 CarswellOnt 18678 (S.C.J.) at para. 41 (“F(.K)”). Dealing first with the term Indian, this is defined in section 3(1) as having the same meaning as under the Indian Act, R.S.C. 1970, c. I-5. Section 2(1) of the Indian Act provides that Indian means a person who pursuant to the Act is registered as an Indian or is entitled to be registered as an Indian. Sections 6 and 7 of the Act set out a lengthy and very complicated set of criteria for determining whether an individual is entitled to be registered as an Indian under the Act. Starr, J. described those criteria in detail in M.M. In F.(K.), MacKinnon, J. commented on the criteria for registration under the Indian Act, and noted that eligibility for registration is not necessarily based on ethnicity or ancestry.

[22] The phrase “Native person” is defined in section 3(1) of the CFSA as a person who is a member of a Native community but is not a member of a band. “Native child” is defined as having a corresponding meaning. It is important to note that the various provisions in the CFSA relating to children who qualify as Native under the Act use the phrases “Native child,” “Native children” or a child who is a “Native person.” Section 3(1) further defines “Native community” as meaning a community designated by the Minister of Children and Youth Services (“the Minister”) under section 209 of Part X (Indian and Native Child and Family Services) of the Act. Section 209 stipulates that the Minister may designate a community, with the consent of its representatives, as a Native community for the purposes of the Act.

[23] The definitions of Native person and Native child under the CFSA are very narrow. They do not extend to all individuals who self-identify as being Aboriginal. The Act does not set out any criteria for the Minister to consider in deciding whether to designate an Aboriginal community as a Native community pursuant to section 209 of the Act. However, the inclusion of section 209 in Part X of the Act relating to Indian and Native Child and Family Services indicates that one of the reasons for designating communities as Native under the Act is to allow for the provision of child protection services for those communities by a Native child and family service authority. Section 211(1) of the Act stipulates that a Native community may designate a body as a Native child and family service. In the event that a Native community makes a designation pursuant to section 211(1), the Minister is required, at the Native community’s request, to enter into negotiations for the provision of services by the designated body (section 211(2)). In F.(K.), MacKinnon, J. concluded based on evidence from the Ontario Ministry of Children and Youth Services that the intention of allowing the Minister to designate communities as being Native under section 209 was to allow the Minister to designate First Nations communities that are located in the remote north on Crown lands, and that are operating in a manner similar to Indian bands, but that do not have band status under the Indian Act (at para. 50).

[24] As Starr, J. noted in M.M., the Ministry has not published a list of the Aboriginal communities that have been designated as Native communities pursuant to section 209 of the Act. In that case, the court found based on evidence from the Ministry of Child and Youth Services that to date, only thirteen communities in the Districts of Thunder Bay, Ontario and Algoma, Ontario have been designated as Native communities under the Act. The rationale for making the designations was to allow for the designation of Dilico Ojibway Child and Family Services as a Children’s Aid Society for the purposes of providing child protection services to members of the communities (at para 53). Starr, J. was not able to make a finding regarding the specific communities that have been designated based on the evidence before her. In this proceeding, the Society adduced evidence in the form of an email from Mr. Peter Kiatipis, the Director of the Child Welfare Secretariat for the Ministry of Child and Youth Services, confirming that the thirteen designated communities are:

Michipicoten

Fort Williams

Whitesand

Gull Bay

Red Rock

Rocky Bay

The Lake Nipigon Ojibways

Longlac #54

Ginoogaming,

Pays Plat

The Ojibways of Pic River

Pic Mobert

Sandpoint

[25] The implications of finding a child to be Indian or Native within the meaning of the CFSA are broad and very significant for the child and their family members. Starr, J. sets out an excellent summary of these implications in M.M. As she noted in that case, the CFSA identifies the cultural background and ethnicity of all children as an important factor in child protection proceedings. This is apparent from numerous provisions in the Act, including the following:

1. Section 1(2) of the Act provides that one of the objectives of the Act is to recognize that wherever possible, services to children and their families should be provided in a manner that respects cultural, religious and regional differences.

2. Section 37(3) stipulates that the criteria that the court is required to consider in determining the “best interests of the child” include the child’s cultural background, their relationships and emotional ties to members of the child’s extended family or community.

3. Section 51(3.1), relating to orders for temporary placement, provides that before making a temporary order placing a child in the care of the Society, the court shall consider whether it is in the best interests of the child to make an order placing the child with a relative or a member of the child’s extended family or community. Section 3(3) states that for the purposes of the Act, members of a child’s community include persons who have ethnic, cultural or religious ties in common with the child or with a parent, sibling, or relative of the child.

4. Section 56 provides that the Plan of Care that the Society must file in support of a final order must include a description of the arrangements made or being made to recognize the importance of the child’s culture and to preserve the child’s heritage, traditions and cultural identity.

5. Section 57(4), relating to final disposition orders, provides that there the court decides that it is necessary to remove the child from the care of the person who had charge of them immediately before intervention, the court shall, before making an order for Society or Crown wardship, consider whether it is possible to place the child with a relative, neighbour or other member of the child’s community or extended family.

6. Section 61(2) states that a Society having care of a child shall choose a residential placement for the child that, where possible, respects the child’s linguistic and cultural heritage.

[26] While the provisions listed above reinforce the importance of every child’s cultural background in the provision of child welfare services and in child protection proceedings, there are far more extensive legislative safeguards respecting the cultural heritage and traditions of Aboriginal children who fall within the definitions of Indian, Native person and Native child. The special protections for Indian and Native children are very significant and come into play at every stage of a child protection intervention, from the provision of voluntary services to the process of adoption planning once a child is made a Crown ward. The special benefits and protections that apply to children who are Indian or Native include the following:

1. Section 1 of the Act sets out the purposes of the Act, which inform the courts in interpreting and applying the provisions of the legislation. Section 1(5) of the Act stipulates that one of the purposes of the Act is 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.

2. The phrase “extended family” is defined in section 3(1) to mean persons to whom a child is related by blood, through a spousal relationship or through adoption. However, in the case of a child who is an Indian or Native person, the phrase is more expansive and includes any member of the child’s band or Native community.

3. There are numerous provisions in the Act which require that notice of important matters relating to children who are Indian or Native persons be given to the relevant Indian band or Native community. For example:

i. Section 20(4) provides that notice must be given to the relevant Indian band or Native community where alternative dispute resolution is being proposed for a child who is an Indian or Native person.

ii. Section 36(4) states that if a recommendation of the Residential Placement Advisory Committee is reviewed by the Child and Family Services Review Board, and the child in question is an Indian or Native person, a representative of the child’s band or Native community is entitled to party status.

iii. Section 39(1)(4) provides that in child protection proceedings under Part III of the Act involving a child who is an Indian or Native person, a representative of the child’s band or Native community is a party to the proceedings.

iv. Sections 64(5), 65.1(4) and 65.1(6) provide that an Indian band or Native community representative must be given notice of any Status Review proceedings relating to a child who is an Indian or Native person.

v. Section 58(4)(d) stipulates that notice of any access application respecting a child who is an Indian or Native person must be given to the band or Native community representative.

vi. Pursuant to section 61(7), a proposed removal of a Crown ward who is an Indian or Native person from a foster parent who the child has have lived with for at least two years requires at least 10 days advance written notice to the relevant band or native community representative. Furthermore, pursuant to sections 61(8.1) and (8.4), the band or Native community representative must be given notice of an application for review of a proposed removal of the child’s placement, and is a party to such a hearing.

4. In addition, there are a number of provisions in the CFSA that grant Indian band and Native community representatives the right to initiate court proceedings respecting children who are Indian or Native persons. For example:

i. A representative chosen by an Indian child’s band, or by a member of a child’s Native community, is entitled to make an application for access under section 58 of the Act.

ii. Section 64(4) provides that a representative of an Indian child’s band or a Native child’s community may bring a Status Review application respecting the child.

iii. Section 69(1) stipulates that an appeal from a child protection order respecting a child who is an Indian or Native person may be made by a band representative or member of the Native community.

5. The Act also imposes a duty upon child protection agencies to consult regularly with Indian band and Native community representatives about the needs of Indian and Native children. Section 213 stipulates that a society that provides services or exercises child protection powers with respect to Indian and Native children must regularly consult with the child’s band or Native community about the provision of the services or the exercise of the powers, and about matters affecting the children.

6. The Act includes provisions that require the court to specifically address its attention to a child’s Aboriginal culture and heritage in cases involving Indian and Native children. For instance:

i. Section 34(10) of the Act provides that in reviewing a residential placement of a child, the Residential Placement Advisory Committee must in cases involving children who are Indian or Native persons “consider the importance, in recognition of the uniqueness of Indian and Native culture, heritage and traditions, of preserving the child’s cultural identity.”

ii. Section 37(4) of the Act provides that in a child protection hearing involving a child who is an Indian or Native person, the best interests analysis must include consideration of the importance, in recognition of the uniqueness of Indian and Native culture, heritage and traditions, of preserving the child’s cultural heritage.

7. The Act also includes special protections for Indian and Native children aimed at ensuring that they remain within their community or that they are placed in a culturally appropriate home. For instance:

i. Section 37(5) indicates that in a case involving a child who is an Indian or Native person, a place of safety for the child includes the home of any member of the child’s band or Native community, provided that the Society involved approves it as a safe home environment.

ii. Pursuant to section 51(3.1) relating to temporary orders, the court is required in cases involving Indian or Native children to consider whether it is in the child’s best interests to place the child with “extended family” which, as indicated above, includes members of the child’s band or Native community.

iii. Section 57(5) establishes that in a Protection Application involving a child who is an Indian or Native person, the court shall place the child with a member of the child’s extended family, a member of their band or Native community or another Indian or Native family, “unless there is a substantial reason for placing the child elsewhere.” In Algonquins of Pikwakanagan v. Children’s Aid Society of the Country of Renfrew and B., 2014 ONCA 646 (C.A.), the Ontario Court of Appeal held that this provision and section 37(4) do not require that an Indian or Native child’s culture, heritage and traditions be given “super weighted” consideration in child protection proceedings in comparison to other factors that are relevant to the best interests analysis. However, this decision does not detract from the fact that these matters must be specifically considered by the judge in carrying out the best interests analysis.

iv. Section 61(2), relating to residential placement of children, provides that in cases involving children who are Indian or Native persons, the Society must choose a placement that is with a member of the child’s extended family, band or Native community or another Indian or Native family, if possible.

v. Pursuant to Part X of the CFSA, the band of an Indian child or the Native community of a Native child can place the child with a person who is not the child’s parent, according to the custom of the child’s band or Native community, and declare that the child is “being cared for under customary care” (s. 212). When such a declaration of customary care is made, a Society or agency may grant a subsidy to the person caring for the child.

vi. Section 63.1(3) stipulates that where a child is made a Crown ward, the Society shall make all reasonable efforts to assist the child to develop a positive, secure and enduring relationship within a family through either adoption or a custody order. However, in the case of a child who is an Indian or Native person, this obligation includes a plan for customary care as defined in Part X as one of the permanency options that the Society is specifically required to explore.

[27] The summary outlined above focusses primarily on the special provisions relating to Indian and Native children that are relevant to child protection proceedings. However, there are numerous other provisions in the CFSA that set out special protections for Indian and Native children in the context of applications for openness orders (see sections 136(1) and 153.6(1)) and in adoption planning (see sections 141.2(1)(2) and (3)). Most notably, with respect to adoption planning of a Crown ward who is an Indian or Native person, the Society must give written notice of its intention to place the 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. The Society is required by section 141.2(3) to consider the plan of the band or Native community before placing the child with another person for adoption. In addition, the Regulations under the CFSA include numerous additional safeguards relating to Indian and Native children. Of particular significance for the purposes of child protection proceedings is Section 6 of the Regulation Respecting Procedures, Practices and Standards of Service for Child Protection Cases, O. Reg. 206/00, which provides that the Society must use best efforts to consult with the Indian band or Native community representative before conducting an evaluation regarding a proposed placement of a child who is an Indian or Native person with a relative or member of the child’s extended family or community.

ISSUE #2: IS IT UNNECESSARY TO DEAL WITH THE CONSTITUTIONAL ISSUES RAISED BY T.V.

A. Position of the Society

[28] As noted above, the Society took the position at this hearing that I should not deal with the s. 15(1) Charter issue in this case because it is unnecessary to do so. It submitted that a determination of whether E.D.V. is Indian or Native within the meaning of the CFSA is inconsequential to the outcome of this case, since the Society has serviced E.D.V. and his family in all respects as if E.D.V. were a Native or Indian child and it will continue to do so through the adoption planning process. Furthermore, it emphasized that the two Métis organizations that have been involved with T.V. and have been put on notice of this proceeding have chosen not to participate and are not presenting any culturally appropriate placement alternatives for the child. For the reasons that follow, I do not accept these submissions, and I decline to dismiss the Notice of Constitutional Question on these grounds.

B. Analysis

[29] Counsel for the Society referred me to Phillips v. Nova Scotia (Commission of Inquiry into Westray Mine Tragedy, 1995 CanLII 86 (SCC), [1995] 2 S.C.R. 97 (S.C.C.) in support of the Society’s position that it is unnecessary to deal with the constitutional issues in this case. The issue in that case was whether the Respondents’ section 11 Charter rights would be infringed by allowing an inquiry hearing relating to the mining disaster to proceed prior to the hearing of criminal charges against them relating to the tragedy. The concern that the Respondents raised was that the publicity surrounding the inquiry hearing would interfere with their ability to have a fair criminal trial before a jury. However, by the time the appeal was to be argued, the Respondents had elected to proceed with a criminal trial by judge alone. Accordingly, the factual foundation upon which their Charter claim had been based had disappeared. The Supreme Court of Canada declined to deal with the constitutional issue on two grounds. First, it relied on the principle that the court should not decide issues of law that are not necessary to a resolution of an appeal, and it held that this is particularly true with respect to constitutional issues. It stressed that the policy dictating restraint in constitutional cases is sound, noting that “unnecessary constitutional pronouncements may prejudice future cases, the implications of which have not been foreseen” (at para. 9) (see also John Deere Plow Co. v. Wharton, 1914 CanLII 603 (UK JCPC), [1915] A.C. 330; Winner S.M.T. (Eastern) Ltd., 1951 CanLII 2 (SCC), [1951] S.C.R. 887 (S.C.C.)). The court also declined to deal with the constitutional issue on the basis that the factual foundation upon which the legal proceeding had been launched had ceased to exist. It held that this type of situation engages the doctrine of mootness, which dictates that the court should decline to exercise its discretion to answer moot questions unless “there is a pressing issue which will be evasive of review” (at para. 12). The court noted in this regard that it is inappropriate for the court to opine on a hypothetical situation and not a real controversy.

[30] The circumstances in this case are distinguishable from those in Phillips. The factual foundation upon which the claim is based has not become moot, as occurred in Phillips, and I am satisfied that it is absolutely necessary to address the constitutional issue that has been raised for a number of reasons. First, section 47(2) of the CFSA requires that as soon as practicable after a Protection Application is commenced, and in any event before determining whether a child is in need of protection, the court shall (italics added) determine, inter alia, whether the child is an Indian or Native person, and if so, the child’s band or Native community. The direction to make this finding is not optional; it is mandatory, and a failure to make the finding prior to making a protection finding constitutes a significant error of law. The Respondent T.V. has challenged the constitutionality of the definitions of Indian child, Native person and Native child on the basis that they are under-inclusive and should encompass Métis children. The mandatory nature of section 47(2), coupled with the nature of this constitutional challenge, render a determination of the constitutional issue unavoidable. The court cannot casually ignore the directive set out in section 47(2) on the basis of the Society’s assurances that it has in all respects treated the child and his family as if they were Indian or Native.

[31] There are additional reasons supporting the need to deal with the constitutional issue in this case. This hearing was scheduled to address the constitutional issues, whether E.D.V. is Indian or Native, and if so, what band or Native community should be served. The actual hearing of the Summary Judgment Motion to address the protection finding and disposition issues is yet to be scheduled. As outlined above, the issue of whether a child is Indian or Native within the meaning of the CFSA is a significant factor in carrying out the disposition analysis in a child protection proceeding. The remedies that are available to the court in this constitutional challenge include “reading in”, which would result in Métis children being included in the definition of Indian child or Native person or child, or declaring that E.D.V. should in all respects be treated as if he is Native or Indian. A finding of Indian or Native status must be specifically considered by the court in the determination of the child’s best interests. This is of particular significance in situations like in this case, where a parent of an Aboriginal child is seeking to have the child placed with them. The fact that the parent and the child share the same Aboriginal heritage may be an important consideration in assessing the merits of the parent’s plan. A finding of Native or Indian status also calls into play the special disposition considerations set out in sections 37(4) and 57(5) of the Act. Accordingly, the court cannot carry out the best interests and placement analysis without determining whether the child is Indian or Native or should be treated as such. Counsel for the Society appeared to appreciate this fact when I pointedly asked if the Society was consenting for the purposes of the disposition hearing on the Summary Judgment Motion respecting E.D.V. that the court should apply the best interests and disposition criteria relating specifically to Indian and Native children to E.D.V. He clearly stated that there was no such consent.

[32] The Society’s position that the section 15(1) claim need not be addressed was based on the argument that the Society has in all respects treated E.D.V. as if he were Indian or Native, and that the outcome of the case would therefore be the same even if the special criteria relating to Indian and Native children were applied. Essentially, counsel invited me to determine on a summary judgment basis in the context of this hearing that all of the disposition criteria and considerations relevant to Indian and Native children have been addressed to the court’s satisfaction, and that the application of those considerations and criteria would not result in any different disposition outcome. I decline to do so for two reasons. First, as I have already noted, I clearly defined the scope of this hearing at the court appearance on June 3, 2016. The issues that were to be addressed did not include a determination of whether the disposition considerations relevant to Indian and Native children had been adequately addressed in the evidence, and if so, whether the application of those considerations would result in any different disposition in this case. The Society did not at that time request that the scope of the hearing be expanded to include those issues. To expand the scope of the hearing in the guise of a defence to the constitutional question, as the Society seeks to do, is in my view highly prejudicial and unfair to the Respondents. In any event, I reject the Society’s argument on this point for a second reason. The evidence before me does not in fact support the Society’s position that it has in all respects treated E.D.V. as if he were Indian or Native, or that a finding of Native or Indian status would not alter the outcome of the case. In support of its argument, the Society relied on evidence of the following:

1. Its efforts to engage the family in Aboriginal services since before the birth of E.D.V.;

2. The Society’s regular communication with Aboriginal service providers involved with the family;

3. The efforts that the Society has made to provide services in a manner that is respectful of the family’s culture and heritage;

4. The fact that the parents have not advanced any alternative placements for E.D.V. with families who have Aboriginal ancestry;

5. The Society’s attempts to connect with the Métis Nation of Ontario and the Eastern Woodlands Métis of Nova Scotia, and the fact that neither organization has advanced alternative culturally appropriate caregivers for the child; and

6. Efforts that the Society intends to make to find culturally appropriate adoption placement for E.D.V. in the event that he is made a Crown ward without access.

[33] While all of this evidence will be relevant to the disposition analysis, there is important evidence missing with respect to the criteria set out in section 57(5) of the CFSA. As previously noted, that section directs that where a child is Indian or Native, 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 their band or community or another Indian or Native family. In Children’s Aid Society of the Districts of Sudbury and Manitoulin v. H. (J.), 2003 CanLII 52698 (ON CJ), [2003] O.J. No. 6192 (O.C.J.), the court highlighted the different onus on the court pursuant to section 57(5) as opposed to section 57(4). Pursuant to section 57(4), the court is directed to consider several options, and is not required to prioritize one option among several feasible choices. By contrast, section 57(5) places a mandatory obligation on the court to prefer placement options that are most likely to safeguard a Native or Indian child’s Aboriginal heritage. In order to meet this obligation, the court requires evidence about efforts that have been made to locate placements for the child with extended family, members of the child’s band or Native community or another Indian or native family. Both the Society and the Respondents should proactively take reasonable efforts to locate those types of culturally appropriate placement alternatives and adduce evidence relating to those efforts. In this case, there is evidence in the Summary Judgment Motion materials of efforts made to find a culturally appropriate placement through the Eastern Woodlands Métis of Nova Scotia and the Métis Nation of Ontario. However, there is no evidence regarding broader efforts made to find placements with families that are Indian or Native. Again, these are issues that would need to be explored further at the protection and disposition hearing.

ISSUE #3: WHOSE CHARTER RIGHTS ARE ENGAGED IN THIS CASE?

[34] In his Notice of Constitutional Question and Factum, T.V. has framed the constitutional challenge as involving a breach of the child E.D.V.’s rights. It is important to address at the outset of the Charter analysis whose Charter rights are at stake for two reasons. First, an attempt to challenge a law on the basis that it violates another person’s Charter rights raises issues regarding standing. Second, the issue of whose rights are involved is relevant to the type of remedy that may be available to the claimant. As discussed in further depth in these Reasons, section 24(1) of the Charter, which is the remedy provision, can only be invoked by a claimant to enforce their own Charter rights. For the reasons that follow, I conclude that although counsel for T.V. referred to E.D.V.’s section 15 equality rights in his materials and submissions, this case also involves T.V.’s own equality rights.

[35] I have already discussed in these Reasons how the definitions of Indian child, Native person and Native child impact both children and their parents in numerous significant ways during the course of a child protection proceeding. For instance, the provisions requiring that a representative of the child’s band or Native community be given notice and the right to participate in the proceedings increase the opportunities that considerations relating to the family’s Aboriginal heritage will be brought to the forefront in the litigation. They support the interest of both the child and the parents in having their cultural heritage protected and given the appropriate weight in the child protection proceeding. The involvement of a band or community representative also allows for the possibility of another party supporting the parents’ plan and position in the litigation. By way of further example, section 57(5) relating to the test for disposition in cases involving children who are Indian or Native is a means of ensuring that if at all possible, children who cannot remain with their parents are placed with another Indian or Native family. Again, these provisions protect both the child’s and the parents’ interests in protecting their Aboriginal heritage and familial and extended community ties. Furthermore, by creating a presumption in favour of family or community placements, the section also increases the chances of a parent being able to retain some form of contact with the child. This result flows from the differences in the test for access set out in section 59 of the CFSA in cases involving family and community placements as compared to situations where a child is made a Crown ward. These examples highlight how this case actually involves the interests and equality rights of both E.D.V. and the father T.V.

[36] The Supreme Court of Canada’s reasoning in Benner v. Canada, 1997 CanLII 376 (SCC), [1997] 1 S.C.R. 358 (S.C.C.) supports my conclusion that this case engages T.V.’s own rights under section 15(1). The claimant in that case challenged a provision of the federal Citizenship Act which provided that a child born outside of Canada before 1977 to a Canadian mother had to make an application to become a citizen, which involved undergoing a security check. He argued that this section violated section 15(1), since a child born outside of Canada to a Canadian father was automatically entitled to Canadian citizenship. An issue arose respecting the claimant’s standing, since the impugned distinction created by the legislation applied to the parents of those applying for citizenship, and not to the applicants themselves. The court took a broader approach to the issue of whose rights were at stake, and concluded that the claimant’s own rights were engaged since the provision in question directly burdened him and impacted his interests in a significant way. The court found the provision invalid on the basis that it breached the claimant’s equality rights pursuant to section 15(1). As in Benner, the impugned definitions in this case impact the claimant’s own rights and interests in a significant way.

ISSUE #4: DO THE DEFINITIONS OF INDIAN, NATIVE PERSON AND NATIVE CHILD UNDER THE CFSA INFRINGE S. 15(1) OF THE CHARTER?

A. Overview of the Parties’ Positions

[37] As noted previously in these Reasons, T.V. acknowledges that E.D.V. does not qualify as an Indian or Native person or child as those terms are currently defined in the CFSA. However, he argues that those definitions violate section 15(1) of the Charter on the basis that they do not extend to Métis children. Counsel for T.V. submitted that the definitions of Indian child, Native person and Native child create distinctions that discriminate against Métis children based on Aboriginal cultural background, and that such distinctions fall within the enumerated grounds of “race” and “ethnic origin” in section 15(1) of the Charter. In support of this position, he relies on the Supreme Court of Canada’s decision in Daniels, where the court referred to the Métis as a “distinct people” (at para. 42) and reiterated its earlier comments in Peavine Métis Settlement v. Alberta (Minister of Aboriginal Affairs and Northern Development), 2011 SCC 37, [2011] 2 S.C.R. 670 (S.C.C.) that the Métis are “widely recognized as a culturally distinct Aboriginal people living in culturally distinct communities” (at para. 7). Alternatively, T.V. argues that the definitions discriminate against Métis children on analogous grounds. In this regard, he relies on F.(K.), where MacKinnon, J. concluded that that the definitions of Indian child and Native child create distinctions based on grounds analogous to those listed in section 15(1).

[38] T.V. submits that the distinctions created by the definitions of Indian child, Native person and Native child are discriminatory. He referenced the CFSA provisions that grant unique rights and protections to children who are Indian or Native and their families, which were specifically implemented to ensure that the Aboriginal heritage of these children is accorded special consideration in the context of child protection proceedings. His position is that the legislative provisions in the CFSA relating to Indian and Native children create a clear disadvantage on the face of the legislation for other Aboriginal children, including Métis children such as E.D.V.

[39] The Respondent mother G.H. supported the arguments of T.V. and did not take an independent position on any of the issues.

[40] Counsel for the Society relayed at the outset of the hearing that the Society is not taking a position on whether the definitions of Indian, Native person and Native child under the CFSA violate section 15(1) of the Charter. The Society takes the position that it has complied with the law as it currently stands, and that it will comply with whatever decision this court makes regarding the constitutional issue that T.V. has raised. However, the Society opposed the relief sought on the basis that T.V. did not adduce the necessary evidentiary foundation upon which to found a breach of section 15(1) of the Charter. Counsel for the Society submitted that the Supreme Court of Canada has been vigilant about requiring that a factual foundation be presented to support a Charter challenge. With respect to a section 15(1) claim, he argued that a claimant must adduce factual evidence that they or the group with whom they associate has suffered disadvantage as a result of the distinction created. He submitted that T.V. has not proven that the distinctions created by the definitions of Indian, Native person and Native child cause any deleterious effects for Métis children.

[41] The Society also argued that the Legislature is entitled to enact remedial legislation in appropriate circumstances without running afoul of section 15(1) of the Charter. Citing the Supreme Court of Canada decision in Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497 (S.C.C.), counsel for the Society argued that an important consideration in determining whether remedial legislation that confers benefits on a specified group crosses the line into unconstitutional territory is whether the distinctions result in an affront to the dignity of other groups or promote the notion that the other groups are less deserving of consideration. He submitted that there are numerous provisions in the CFSA that require service providers and the courts to consider the cultural background and community ties of all children, and that the existence of those safeguards closes the gap in differential treatment between children who are Indian or Native and other Aboriginal children so as to safeguard the definitions of Indian, Native person and Native child from Charter scrutiny.

B. The Law Respecting Section 15(1) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

1. General Principles

[42] 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.

[43] Section 15(1) guarantees the equal treatment of individuals by the state without discrimination. It sets out four basic equality rights, namely: (1) the right to equality before the law; (2) the right to equality under the law; (3) the right to equal protection of the law; and (4) the right to the equal benefit of the law (Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143 (S.C.C.), at para. 15). The reason for establishing these four formulations of the concept of equality was to embody a fulsome equality guarantee that would not be susceptible to the types of restrictive interpretations that were given to the equality right under section 1 of the Canadian Bill of Rights, S.C. 1960, c. 44. (Peter W. Hogg, Constitutional Law of Canada, 5^th ed. (Toronto: Carswell, 2007) at para. 55-13). The Supreme Court of Canada established in Andrews that the inclusion of the phrase “in particular” before the listed grounds of discrimination makes clear that the list is not exhaustive, and that the protection against discriminatory treatment extends also to discrimination based on personal characteristics that are analogous to the listed ones.

[44] The analysis of a section 15(1) claim involves two general stages. First, the claimant must establish that the law violates the equality guarantee embodied in the section. If the claimant proves an infringement of section 15(1), the onus shifts to the state to establish on a balance of probabilities that the limit is demonstrably justifiable in a free and democratic society pursuant to section 1 of the Charter (Andrews, at para. 22; Droit de la famille- 091768, 2013 SCC 5, [2013] 1 S.C.R. 61 (S.C.C.)).

[45] The equality guarantee that section 15(1) embodies reflects Canada’s recognition of the equal worth of all human beings in Canadian society (Andrews, at para. 16; R. v. Kapp, 2008 SCC 41, 2008 CarswellBC 1312 (S.C.C.) at para. 15; Law, at para. 51; Droit de famille, at para 136.) As McIntryre, J. stated in Andrews, at para. 16:

It is clear that the purpose of s. 15 is to ensure the equality in the formulation and application of the law. The promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration.

[46] Section 15(1) seeks to remedy the imposition of unfair limitations upon opportunities and benefits, “particularly for those persons or groups who have been subject to historical disadvantage, prejudice and stereotyping” (Law, at para. 42). It also reflects our country’s recognition of the fundamental importance of safeguarding and promoting human dignity and freedom (Law, at para. 51; Miron v. Trudel, 1995 CanLII 97 (SCC), [1995] 2 S.C.R. 418 (S.C.C.), at paras. 145-146; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 (S.C.C.), at para. 77; Gosselin c. Québec (Procureur general), 2002 SCC 84, [2002] 4 S.C.R. 429 (S.C.C.), at para. 20; Kapp, at para 21; Droit de la famille, at para 138).

[47] The equality guarantee in section 15(1) does not require that all individuals be treated equally in a general or abstract sense by all members of society (Andrews, at paras. 7 and 13; Ermineskin Indian Band & Nation v. Canada, 2009 SCC 9, [2009] 1 S.C.R. 222 (S.C.C.), at para. 188; Withler v. Canada (Attorney General), 211 SCC 12 (S.C.C.), at para. 31). Rather, section 15(1) “protects every person’s equal right to be free from discrimination” (Withler, at para. 31). As McIntyre, J. clarified in the early case of Andrews, the phrase “without discrimination” in section 15(1) is an important qualifier which clarifies that the section is intended to protect against distinctions that involve prejudice or disadvantage. (Andrews, at para. 28; Kapp, at para. 17 ; Ermineskin Indian Band & Nation, at para. 188; Droit de famille, at para. 180; Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548 (S.C.C.), at para. 17). The concept of “equality without discrimination” embodied in section 15(1) guarantees what is referred to in the case-law as “substantive equality.” This formulation of equality captures legislation that is directly discriminatory on its face as well as laws that have the indirect effect of discriminating against individuals or groups on the listed or analogous grounds. The concept of substantive equality also recognizes that not every difference in treatment will necessarily engender inequality, and that identical treatment may in fact frequently have a disproportionate effect on a particular group, thereby resulting in serious inequality (Andrews, at para. 8; Withler, at para. 2). It takes into account the fact that true equality sometimes requires variations in treatment so as to accommodate differences between people and the effects of state action on them (Andrews, at para. 8; Law, at para. 25; Withler, at para. 31; Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624 (S.C.C.) at para. 78).

2. The Test for Establishing Discrimination under section 15(1)

[48] The Supreme Court of Canada has described the framework for establishing discrimination within the meaning of section 15(1) of the Charter in various ways over the past two decades. Peter Hogg has described the history of the court’s analysis of section 15(1) as “a winding course of judicial interpretation.” (P.W. Hogg, “What is Equality? The Winding Course of Judicial Interpretation,” (2005) 29 Supreme Court L.R. (2d) 39). The evolving nature of the law respecting section 15 over the years is in part attributable to the principle which the Supreme Court of Canada established early on in the history of section 15 jurisprudence that the section 15(1) analysis should not be conducted according to a fixed and limited formula (Andrews, at para. 12; Law, at para. 3; R. v. Turpin, 1989 CanLII 98 (SCC), [1989] 1 S.C.R. 1296 (S.C.C.); R. v. Swain, 1991 CanLII 104 (SCC), [1991] 1 S.C.R. 933; Withler, at para. 51). Rather, a consistent theme that has emerged from the case-law is that the court must adopt a contextual and purposive approach to the discrimination analysis, so as to allow for an “evolution and adaptation of the equality analysis over time in order to accommodate new or different understandings of equality as well as new issues raised by varying the fact situation” (Law, at para. 3; Andrews, at para. 20). The Supreme Court of Canada has emphasized that this approach accords with the strong remedial purpose of the equality guarantee, and avoids “the pitfalls of a formalistic and mechanical approach” (Law, at paras. 3 and 88; see also Ardoch Algonguin First Nation & Allies v. Ontario, 2000 SCC 37, 2000 CarswellOnt 2460 (S.C.C.), sub nom Lovelace v Ontario, at para. 54 (hereinafter referred to as “Lovelace”)). While general guidelines can be articulated, those principles should not be interpreted as a rigid test and at best should be understood as points of reference for a court carrying out the section 15(1) analysis (Law, at paras. 6 and 88; Lovelace, at para. 54).

[49] In Droit de famille, Abella, J. addressed the difficulties that have arisen respecting the Supreme Court of Canada’s past articulations of the test for establishing discrimination within the meaning of section 15(1) of the Charter. She synthesized the principles that have emerged over the years into a general framework that addresses those challenges. Abella, J. subsequently wrote for a unanimous court in dealing with a section 15(1) challenge in the 2015 decision of Kahkewistahaw. The general framework that she articulated in these two cases requires the claimant in a section 15(1) challenge to establish the following:

1. The law, either on its face, in its purpose, or in its impact, draws a distinction between the claimant and others based on an enumerated or analogous ground; and

2. The distinction arbitrarily creates, perpetuates, or exacerbates disadvantage for the claimant (Droit de famille, at paras 185-198; Kahkewistahaw, at paras. 16, 20.).

The question of whether these elements have been proven must be considered from the perspective of ‘the reasonable person, dispassionate and fully apprised of the circumstances, possessed of similar attributes to, and under similar circumstances as, the claimant” (Law, at para 60; Lovelace, at para. 55; Droit de famille, at paras. 154 and 419).

3. Enumerated or Analogous Grounds

[50] With respect to the first branch of the test, the issue of whether an impugned scheme makes a distinction based on an enumerated or analogous ground may be straightforward if the law clearly makes such a distinction on its face. This type of distinction is often referred to as “direct discrimination” (Withler, at para. 64). However, as previously indicated, the equality guarantee in section 15(1) also encompasses indirect discrimination. Accordingly, the first part of the test may also be met if the effect of the challenged measure is to create a distinction based on a listed or analogous ground. Indirect discrimination may occur if a law on its face purports to treat everyone in the same manner, but it has a disproportionately negative impact on a claimant or group that can be identified based on enumerated or analogous grounds (Withler, at para. 64).

[51] In analyzing the first part of the test for identifying discrimination, the specifically enumerated grounds and other possible analogous grounds of discrimination must be interpreted in a broad and generous manner, having regard for the constitutional status of section 15 and the need for a long-lasting and adaptable framework for assessing whether the exercise of government power satisfies the equality guarantee (Andrews, at para. 20). McLachlin, J. commented on the issue of analogous grounds in Corbiere v. Canada (Minister of Indian & Northern Affairs), 1999 CanLII 687 (SCC), [1999] S.C.J. No. 24, [1999] 2 S.C.R. 203 (S.C.C.). She clarified that both the listed and analogous grounds which section 15(1) is concerned with “stand as constant markers of suspect decision making or potential discrimination” (at para. 8). She addressed how analogous grounds may be identified, and concluded that analogous grounds are “personal characteristic[s] that [are] immutable or changeable only at unacceptable cost to personal identity” (Corbière, at para. 13; see also Droit de famille, at para. 335). In other words, a ground of distinction may be analogous if it is based on a characteristic that cannot be changed or that is essential to the claimant’s personal identity, or “that the government has no legitimate interest in expecting us to change to receive equal treatment under the law” (Corbière, at paras. 13 and 14). The court noted in Corbière that one factor to consider in answering this question is whether the complainant is a member of a discrete and insular minority that is vulnerable to suffering disadvantage, like some of the groups encompassed by the grounds enumerated in section 15(1) (see also Andrews, at paras. 12-13; Droit de famille, at para. 144). As Wilson, J. explained in Andrews, a characteristic may qualify as an analogous ground under section 15(1) if the individuals characterized by the trait are “lacking in political power,” “vulnerable to having their interests overlooked and their rights to equal concern and respect violated” and vulnerable to becoming a disadvantaged group (at para. 51).

4. Creation or Perpetuation of Disadvantage

[52] With respect to the second branch of the framework, the determination of whether a distinction creates or perpetuates a discriminatory disadvantage for an individual or group characterized by enumerated or analogous grounds involves an inquiry into whether it “has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed on others,” or if it “withholds or limits access to opportunities, benefits and advantages available to other members of society” (Andrews, at para. 19; Egan v. Canada, 1995 CanLII 98 (SCC), [1995] 2 S.C.R. 513 (S.C.C.), at para. 584). In carrying out the second stage of the section 15(1) analysis, it is important to keep in mind that not every disadvantage will be found to be discriminatory. As Lebel, J. emphasized in Droit de famille, “substantive equality is not denied solely because a disadvantage is imposed. Rather, it is denied by the imposition of a disadvantage that is unfair or objectionable…” (at para. 180). The existence of discrimination is the central concern of section 15, and thus the overall focus of the inquiry should be “on the nature of the scheme and the appropriateness of the impugned distinctions having regard to the purpose of the scheme and the situation of the claimant” (Withler, at para 45). A distinction can be discriminatory either in purpose or effect. However, since the state rarely seeks to discriminate intentionally, the discrimination analysis invariably focusses on the effect of the law or government action on the individual or group claimant, and not the motive or intent of the government in formulating or applying the law (Andrews; Kapp; Withler; Droit de famille.). While assessment of legislative purpose and intent are important components of the Charter discussion, this exercise is typically undertaken as part of the section 1 analysis once the burden has shifted to the state to justify the reasonableness of the infringement (Andrews; Droit de famille, at para. 333).

[53] The determination at the second stage of the discrimination analysis of whether a distinction creates or perpetuates an unfair or objectionable disadvantage involves a “flexible and contextual inquiry” that takes into account all factors that are relevant to the particular case under consideration. There is no rigid template for determining this issue (Withler; Kapp; Droit de famille; Turpin.). The court must take into consideration the purposes and objectives of the impugned scheme, the actual needs, interests and circumstances of the people impacted by it, and all relevant social, political, economic and historical factors concerning the claimant or group in question (Law, at para. 30; Andrews, at paras 12 and 13; Withler, at paras. 39, 67; Droit de famille; Kahkewistahaw, at para. 20).

[54] In Droit de famille, Abella, J. referred to the court’s previous decisions in Kapp and Withler, in which the court described the second part of the test for establishing discrimination as requiring the claimant to prove that the distinction creates a disadvantage by “perpetuating prejudice or stereotyping.” Abella, J. clarified that Kapp and Withler did not establish an additional requirement on section 15 claimants to prove that a distinction perpetuates prejudicial or stereotypical attitudes towards them. Rather, the court’s intention in those cases was to highlight that the creation or perpetuation of prejudice or stereotyping are two possible indicia that may support a finding that a claimant has been arbitrarily disadvantaged by a distinction. The court described these two indicia as follows:

a) “Prejudice is the holding of pejorative attitudes based on strongly held views about the appropriate capacities or limits of individuals or the groups of which they are a member.”

b) “Stereotyping, like prejudice, is a disadvantaging attitude, but one that attributes characteristics to members of a group regardless of their actual capacities.” (Droit de famille, at para 326).

[55] In Droit de famille, Abella, J. also referred to the court’s previous decision in Law, in which the court held that the second prong of the section 15(1) test requires proof that the impugned law has the effect of “perpetuating or promoting the view that the individual is less capable, or less worthy of recognition or value as a human being or as a member of Canadian society” (at para 51). This principle has been referred to in the case-law as “the dignity test.” Abella, J. clarified in Droit de famille that the protection of human dignity is an underlying objective of the Charter as a whole, but that the section 15(1) test does not require the claimant to prove that the distinction results in an affront to their dignity. However, evidence of this type of effect may also be one of several relevant factors in determining whether the distinction has created or perpetuated disadvantage.

[56] The contextual factors relevant to the second stage of the discrimination analysis will vary from case to case. The Supreme Court of Canada has emphasized that creating a rigid template of factors that the court must consider is not appropriate, as it may result in the court giving consideration to irrelevant matters or overlooking important factors (Withler, at para. 66). However, some of the contextual factors that may be relevant in assessing whether a distinction is discriminatory are as follows:

1. Pre-existing disadvantage experienced by the claimant or group of which the claimant is a member:

The existence of historic disadvantage on the part of a claimant or group is not a precondition to success in a section 15(1) claim (Law, at para. 65; Withler, at para 36). As McLachlin, J. highlighted in Withler, “it is conceivable that a group that has not historically experienced disadvantage may find itself the subject of conduct that, if permitted to continue, would create a discriminatory impact on members of the group” (at para 36). However, historical disadvantage is a factor to consider in the section 15(1) analysis, since one of the main purposes of section 15 is to ensure fairness and equality for claimants or groups that are “disadvantaged in the larger social and economic context” (Corbière, at para. 8; Kahkewistahaw, at para. 19; Withler, at para. 35; Law, at paras. 40-51.)). As Abella, J. stated in Kahkewistahaw, the substantive equality guarantee “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” (at para. 17). Accordingly, evidence that the impugned measure “treats a historically disadvantaged group in a way that exacerbates the situation of the group” will be accorded significant weight in determining whether there has been a perpetuation of disadvantage at the second stage of the test (Withler, at para. 35). As Iacobucci, J. stated in Law, where there is evidence of pre-existing disadvantage, “it is logical to conclude that, in most cases, further differential treatment will contribute to the perpetuation or promotion of their unfair social characterization, and will have a more severe impact upon [these individuals], since they are already vulnerable” (at para. 63; see also Kapp; Droit de famille). In Lovelace, Iacobucci, J. clarified that the inquiry respecting pre-existing disadvantage does not require that the claimants embark upon a “race to the bottom” in terms of their historical disadvantage as compared to that of others (at para. 69).

2. The correspondence, or lack thereof, between the differential treatment and the actual needs, capacity or circumstances of the claimant or group:

McLachlin, J. and Abella, J. emphasized in Withler and Kahkewistahaw respectively that the second part of the discrimination analysis focusses on the impact of the impugned law on particular individuals or groups, and targets disadvantage that is arbitrary in nature. Accordingly, the contextual analysis at the second stage of the section 15(1) test should include an assessment of whether the differential treatment appears arbitrary taking into consideration the actual needs, capacity and circumstances of the claimant or group. As Iacobucci, J. explained in Law, “it will be easier to establish discrimination to the extent that impugned legislation fails to take into account a claimant's actual situation, and more difficult to establish discrimination to the extent that legislation properly accommodates the claimant's needs, capacities, and circumstances” (at para. 70). More recently, in Kahkewistahaw, Abella, J., explained that this inquiry should focus on “whether the impugned law fails to respond to the actual capacities and needs of the members of the group and instead imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating their disadvantage” (at para. 20). McLachlin, J. discussed these considerations in detail in the case of Withler, in addressing whether federal supplementary death benefits schemes for survivor spouses which used the age of the plan member at the age of their death as a factor in determining the value of the benefits payable to a dependant contravened section 15(1) on the basis of age discrimination. Although her comments were directed to pension programs, they provide useful guidance for courts dealing with other types of legislative schemes that confer benefits on some individuals and not on others. McLachlin, J. noted that in the area of pension benefits, the determination of whether a scheme violates section 15(1) must “take into account the fact that such programs are designed to benefit a number of different groups”, and that lines must be drawn in terms of the scope of the programs (at para. 67). She held that in these types of cases, the contextual inquiry at the second stage of the section 15(1) analysis should involve consideration of “whether the lines drawn are generally appropriate, having regard to the circumstances of the persons impacted and the objects of the scheme” (at para 67). She added that “perfect correspondence between a benefit program and the actual needs and circumstances of the claimant group is not required,” and that “[a]llocation of resources and particular policy goals that the legislature may be seeking to achieve may also be considered” (at para 67).

3. Whether the impugned legislation has an ameliorative purpose or effect for other members of society:

A law that creates a distinction in order to alleviate inequalities affecting other disadvantaged groups will be assessed against the backdrop of its overall ameliorative effects and the multiplicity of interests that it attempts to balance, and is less likely to be considered discriminatory (Law; Kapp; Withler; Droit de famille).

4. The nature and scope of the benefit or interest which the claimant claims they have been denied:

Another important contextual factor in carrying out the section 15(1) analysis is the nature and scope of the benefit or interest in question. As Iacobucci, J. stated in Law, at para. 88(9)(d), “the more severe and localized the consequences of the legislation for the affected group, the more likely that the differential treatment responsible for these consequences is discriminatory within the meaning of section 15(1).” In discussing this factor in Corbiere, L’Heureux-Dube, J. explained that “the more important and significant the interest affected, the more likely it will be that differential treatment affecting this interest will amount to a discriminatory distinction within the meaning of s. 15(1)” (at para. 79).

5. Comparative considerations:

The Supreme Court of Canada has clarified that the discrimination analysis under section 15(1) does not involve a rigid comparative analysis of the impact of the impugned legislation on identified comparator or “similarly situated” groups (Andrews; Withler, at para. 40). As Iacobucci, J. stated in Lovelace, “[t]he broad and fully contextual s. 15(1) analysis transcends the superficiality of a simple balancing of relative disadvantage” (at para. 58). In Andrews, McIntyre, J. rejected the “similarly situated test” that the court had applied in equality jurisprudence in the past, which involved a stringent analysis of whether the law treated the complainant in a worse way than other similarly situated individuals or groups. He concluded that the similarly situated test should no longer be applied as a fixed rule or formula for the determination of equality questions. However, the Supreme Court of Canada has since clarified that although the section 15(1) test does not involve a rigid, comparative “similarly situated” analysis, a comparison of the effect of the legislation on the claimant as opposed to various other groups is one of the various contextual factors that the court may consider in determining whether the law is discriminatory (Withler; Droit de famille). To use the words of McLachlin, J. in Withler, “comparison may bolster the contextual understanding of a claimant's place within a legislative scheme and society at large” (at para. 65). With respect to the weight that should be given to comparative considerations, McLachlin, J. added that “[t]he probative value of comparative evidence, viewed in this contextual sense, will depend on the circumstances” (at para. 65; see also Moore v. British Columbia (Education), 2012 SCC 61 (S.C.C.); Quebec (Attorney General) v. A., 2013 SCC 5 (S.C.C.)).

[57] As discussed above, the essence of T.V.’s position is that the definitions of Indian, Native person and Native child, violate section 15(1) because they are under-inclusive. The substantive equality analysis pursuant to section 15(1) in cases involving ameliorative laws or programs requires a careful balancing of the two purposes of section 15(1), namely the prevention of discrimination and the amelioration of the conditions of disadvantaged persons (Eaton v. Brant County Board of Education, 1997 CanLII 366 (SCC), [1997] 1 S.C.R. 241 (S.C.C.), at para. 66; Lovelace, at para. 60). The Supreme Court of Canada has recognized on many occasions that an under-inclusive ameliorative law, program or activity may violate section 15(1) (Lovelace, at paras. 60 and 61; Brooks v. Canada Safeway Ltd., 1989 CanLII 96 (SCC), [1989] 1 S.C.R. 1219 (S.C.C.); Granovsky v. Canada (Minister of Employment and Immigration), 2000 SCC 28, [2000] 1 S.C.R. 703 (S.C.C.)). The process of determining whether an ameliorative program crosses the line into discrimination involves a delicate balancing of the two purposes of the equality guarantee and the totality of the contextual framework within which the equality claim has evolved.

C. Analysis of the Section 15(1) Claim

1. The Contextual Framework Surrounding the Section 15(1) Claim

[58] As the foregoing discussion of the law highlights, the analysis of an equality claim pursuant to section 15(1) of the Charter involves careful consideration of the larger social, economic, political and legal landscape within which the claim has evolved and advanced to litigation. A purposive and contextual approach is required in carrying out the legal analysis, so as to ensure that the equality jurisprudence adapts and evolves in an appropriate manner having regard for changes in this overall landscape. This approach ensures that the remedial purpose of section 15(1) is fully realized in a manner that is reflective of changing values and realities of our society.

[59] There have been 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. It is important to recognize that this constitutional challenge has arisen in the context of a broad, nation-wide discussion about a multitude of issues regarding the historical mistreatment of the country’s Aboriginal peoples, their current well-being, the need for greater inclusion and the need for increased respect and support of Aboriginal cultures and traditions. By way of overview, there has been an increased awareness of and concern for the social, economic and political challenges that Aboriginal peoples have historically faced and continue to experience in this country. The increased focus on these issues has extended to the Métis peoples of Canada. In tandem with this development, Canada has come to appreciate that many of the challenges which its indigenous peoples have grappled with have been attributable to misguided policies that severely weakened Aboriginal families and cultures by encouraging the removal of children from their families and communities and severing their connections with their cultural traditions and heritage. As a result of these developments, Canada has made a commitment to work on reconciliation between its Aboriginal and non-Aboriginal peoples, with one of the main goals of this commitment being to support and help strengthen Canada’s Aboriginal communities and foster the survival of their traditions. This commitment has been made to all Aboriginal peoples of Canada, including the Métis. I turn now to a discussion of each of these important contextual developments.

[60] The Supreme Court of Canada has played a significant role in recent years in heightening the country’s awareness of the many challenges that our Aboriginal peoples have faced. The court commented on these difficulties in R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688 (S.C.C.) in the context of an appeal involving the interpretation of s. 718.2(e) of the Criminal Code, which requires sentencing judges in criminal cases to give particular attention to the circumstances of Aboriginal offenders. The court highlighted concerns about the over-representation of Aboriginal peoples within the Canadian prison population and the criminal justice system generally, and noted that these problems flowed from “a number of sources, including poverty, substance abuse, lack of education, and the lack of employment opportunities for Aboriginal people,” as well as bias against Aboriginal peoples within the criminal system (at para. 65). In Corbière, the court found that all Aboriginal peoples have been affected “by the legacy of stereotyping and prejudice against Aboriginal peoples” (at para. 66), and subsequently in Lovelace, it noted that Aboriginal peoples generally experience higher rates of unemployment and poverty, and also face serious disadvantages in the areas of education, health and housing (at para. 69).

[61] Of particular importance to this case is the fact that the Supreme Court’s commentary regarding the challenging conditions of Canada’s Aboriginal peoples has included the Métis peoples. The Métis have been legally recognized as Aboriginal peoples of Canada, with their own distinctive characteristics and cultural traditions. This was apparent from the enactment of section 35 of the Constitution Act, 1982, which affirmed the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada, and defined “Aboriginal peoples of Canada” as including the Métis. In R. v. Powley, 2003 SCC 43, [2003] 2 S.C.R. 207 (S.C.C.), the Supreme Court of Canada described the Métis of Canada as sharing “the common experience of having forged a new culture and a distinctive group identity from their Indian or Inuit and European roots” (at para. 11), and emphasized that in enacting s. 35, Canada made a commitment to recognizing the Métis and enhancing the survival of their culture and traditions. More recently, the Supreme Court described the Métis as “a culturally distinct Aboriginal people living in culturally distinct communities” (Peavine Métis Settlement, at para. 7; Daniels, at para. 42). The court has recognized that in addition to the general challenges faced by all Aboriginal peoples, the Métis peoples have grappled with a unique set of disadvantages that can be traced in part from their historical exclusion from the Indian Act. In Lovelace, the court accepted the findings of the Royal Commission on Aboriginal Peoples that Métis and non-status First Nations peoples have suffered additional disadvantages, including vulnerability to cultural assimilation, compromised ability to protect their relationship with traditional homelands, lack of access to culturally specific health, educational and social services programs, and a chronic pattern of being ignored by both federal and provincial governments due to jurisdictional disputes (Canada. Royal Commission on Aboriginal Peoples. Report of the Royal Commission on Aboriginal Peoples, Vol. 3 (Gathering Strength), p. 204. Ottawa: The Commission, 1996). The court also accepted that these two groups have historically suffered from stereotyping as being “less Aboriginal” and accordingly less worthy of recognition by policy-makers than Indians living on reserve (at para. 72). The Supreme Court again commented on the historical disadvantages that Métis peoples have faced in Peavine Métis Settlement, and more recently in Daniels, in which it was called upon to determine whether Métis and non-status First Nations peoples fall within the term “Indians” for the purposes of section 91(24) of the Constitution Act, 1867. The court noted that non-status Indians and Métis have historically suffered the misfortune of being in a “jurisdictional wasteland with significant and obvious disadvantaging consequences” due to both the federal and provincial governments denying having legislative authority over them (at para. 14). It recognized that the disadvantages that these two indigenous groups have faced have included lack of funding for their affairs and deprivation of programs and services due to a jurisdictional tug-of-war between the provinces and the federal government. Furthermore, the court also highlighted that the Métis have historically suffered due to inconsistencies in the federal government’s treatment of them. Specifically, it concluded that the federal Crown has recognized Métis as falling within the purview of its jurisdiction whenever it has been convenient to the Crown to do so, and that this has at times been to the detriment of the Métis.

[62] The recognition of the Métis as Aboriginal peoples of Canada and the increased awareness of the unique burdens which they have faced have resulted in advances in their legal position over the past several years. For instance, in Powley, the Supreme Court of Canada recognized the right of the Respondent Métis to hunt for food pursuant to s. 35(1) of the Constitution Act. More recently, in Manitoba Métis Federation of Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623 (S.C.C.), the Supreme Court held that Canada has a fiduciary relationship with the descendants of Manitoba’s Red River Métis Settlement, and that the Crown’s promise to make a land grant to the children of the Métis in question engaged the honour of the Crown. The court’s recent landmark decision in Daniels represents another step forward in the protection and advancement of the interests of Canada’s Métis peoples. In that case, the court commented on the unacceptable position that the federal/provincial jurisdictional tug-of-war has created for the Métis, and concluded that a resolution of the jurisdictional issue was critical to the protection of Métis interests. It held that the Métis fall within federal jurisdiction pursuant to section 91(24) of the Constitution Act, 1867. These and other significant legal developments with respect to the Métis peoples are relevant to the section 15(1) contextual analysis in that they reflect the Supreme Court of Canada’s commitment to ensuring that the Métis are accorded the full rights and protections that are owed to them as indigenous peoples of this country.

[63] As our awareness of the challenges which our Aboriginal peoples face has increased, so too has our understanding of the connection between those difficulties and misguided policies and programs that have had the effect of removing Aboriginal children from their immediate and extended families and their communities. This development has in turn focussed attention on the importance of providing culturally appropriate services to support and strengthen Aboriginal families, keeping Aboriginal children within their communities or with other Aboriginal families when they cannot remain in the family home, and ensuring that children with Aboriginal ancestry retain a strong connection with their cultural heritage. Again, it is important to emphasize for the purposes of this case that the dialogue about these issues has included the Métis. On a provincial level, a starting point for the discussion of these contextual considerations is the Canada-Ontario Child Welfare Services Agreement that the Ontario and federal governments executed in 1965 (“the 1965 Agreement”). Pursuant to the 1965 Agreement, the federal government entered into a funding arrangement that allowed Ontario to extend the delivery of its existing child welfare system and services to Indians living on reserves. Although the Agreement required consultation by either Canada, Ontario, or both with Indian bands before provincial child welfare services were extended, such consultation did not occur (Brown v. Canada (Attorney General), 2014 C.N.L.R. 1 (S.C.J.), at para. 5). From the time that the agreement became effective in 1965 until the proclamation of the CFSA in January 1985, thousands of Indian children were apprehended from their families, removed from their communities and placed in non-Aboriginal foster homes (Brown, at para. 6). This widespread removal of Aboriginal children from their communities, which has been referred to as “the Sixties Scoop,” resulted in these children suffering from loss of their culture, language and identity, and long-lasting psychological and emotional damage due in part to a sense of “non-belonging” to either their communities of origin or the families of their non-Aboriginal care-givers (Brown, at paras. 11 to 15; First Nations Child and Family Caring Society of Canada and Assembly of First Nations et. al., 2016 CHRT 2 (CHRT), at para. 218).

[64] The enactment of the numerous provisions of the CFSA aimed at protecting the culture and heritage of Aboriginal children, and in particular the provisions relating to Indian and Native children, represented an acknowledgement of the long-term negative repercussions of removing Indian children from their families and culture, and a commitment to making aboriginality a significant factor in child protection and placement practices so that history did not repeat itself (Algonquins of Pikwakanagan v. Children’s Aid Society of the County of Renfrew, [2014] ONCA 646 (C.A.), at paras. 55-57). As Belobaba, J. stated in Brown, at para. 8:

The CFSA provisions did not just list “aboriginality” as another factor for judicial consideration. They inscribed in law for the first time a legislative recognition that the Aboriginal culture had a very different understanding of community, family and children in need of protection and that these differences had to be respected. With the enactment of the CFSA provisions, the chances of the Indian or Native children being adopted-out to a non-Aboriginal family and losing their culture and identity were reduced dramatically.

[65] As discussed previously in these Reasons, the special provisions in the CFSA relating to Indian and Native children apply to only a small cross-section of the Aboriginal child population in Ontario. However, since the enactment of the CFSA, it has become increasingly apparent that the widespread removal of Aboriginal children from their families, communities and cultural traditions, with resulting long-term negative repercussions for the children, has been a national phenomenon and tragedy. The country’s increased awareness of this problem has been attributable in large part to the commencement of litigation by Aboriginal peoples across the country relating to the abuse and cultural loss that they suffered while attending Indian Residential Schools run by Canada and various religious institutions throughout Canada. As the Supreme Court of Canada pointed out in Daniels, many Métis children were enrolled in these schools. The central purpose of the Indian Residential School system was to “christianize and civilize” Aboriginal children. The government of the time stated that this goal involved ensuring that Aboriginal children acquired “the habits and modes of thought of white men.” (Canada. Truth and Reconciliation Commission, Honouring the Truth and Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. Winnipeg: The Commission, 2015, at p. 2 (hereinafter referred to as “Honouring the Truth”)). The realization of these goals involved removing the children from their families and communities, forbidding them to speak their language or practice their cultural traditions, and actively attempting to eradicate their connections to their Aboriginal heritage and assimilate them into the dominant Euro-Canadian culture (Daniels, at para. 30; Honouring the Truth, at p. 2; First Nations Child and Family Caring Society of Canada, at para. 407). The removal of these Aboriginal children from their families and their culture, the abuse that the children suffered at the schools and the destruction of the children’s ties to their cultural heritage created longstanding social, psychological and economic problems amongst Aboriginal peoples and posed a serious threat to the sustainability of indigenous cultures and traditions across Canada. (Honouring the Truth, pp. 136-37; First Nations Child and Family Caring Society of Canada, at paras. 408-418).

[66] In 2008, the federal government issued a formal apology on behalf of all Canadians for the Indian Residential School system and its effects on Canada’s Aboriginal children, their families, their communities and their cultural traditions. The government formally acknowledged that this school system had a lasting and damaging impact on Aboriginal culture, heritage and language, and that “the legacy of Indian Residential Schools has contributed to social problems that continue to exist in many communities today.” In its apology, the Crown acknowledged that Métis children were among those who attended the schools, and that those children were also removed from their families and forbidden to speak their language and practice their cultures. The Crown also highlighted that a cornerstone of its commitment to achieving reconciliation between Aboriginal and non-Aboriginal Canadians was the establishment of the Indian Residential Schools Truth and Reconciliation Commission. In 2010, the federal government took another important step in implementing the promise to pursue reconciliation by signing the United Nations Declaration on the Rights of Indigenous Peoples. In May 2016, the government announced that Canada is now a full supporter, without qualification, of this international Declaration.

[67] The Truth and Reconciliation Commission released its report in 2015. Of particular relevance for the purposes of the contextual analysis in this case is Volume 3 of the Report, which is devoted to the Métis experience in federal and provincial Indian Residential Schools (Canada. Truth and Reconciliation Commission. The Final Report of the Truth and Reconciliation Commission of Canada, Vol. 3, Canada’s Residential Schools: the Métis Experience. Montreal: McGill-Queen’s University Press, 2015 (hereinafter referred to as “Volume 3”)). In Volume 3, the Commission discussed how Métis children experienced unique challenges in attempting to secure an education due to the jurisdictional disputes between the federal, provincial and territorial governments about constitutional responsibility for the Métis and non-status First Nations children (Volume 3, pp. 3-5). However, it concluded that numerous Métis children attended the Indian Residential schools across the country, and that many more attended similar Residential Schools operated or funded by the province. It concluded that the provincial and federal Residential Schools experiences caused significant harm to the Métis children who attended, their families, their communities and their culture (Volume 3, p. 70). The message that clearly emerges from the Commission’s discussion of the Métis experiences is that the Indian Residential Schools system was just as damaging to the Métis children who attended and their culture as it was to other Aboriginal children and cultures, and that the need for repair within Canada’s Métis population is therefore just as compelling.

[68] Another contextual factor that is relevant in this case is the growing body of evidence indicating that the negative effects of the Residential Schools experience and the Sixties Scoop, coupled with prejudicial attitudes towards Aboriginal peoples and their parenting, have led to an ongoing over-representation of Aboriginal children in foster care, mostly in non-Aboriginal foster homes. In its Final Report, the Truth and Reconciliation Commission noted that a 2011 Statistics Canada study had found that 3.6% of all First Nations children aged fourteen and under were in foster care, compared to .3% of non-Aboriginal children. The Commission concluded that “Canada’s child welfare system has simply continued the assimilation that the residential school system started,” and called upon the government to address the problem of over-representation of Aboriginal children in foster care (Honouring the Truth, p. 138). The Canadian Human Rights Tribunal reiterated this point in its recent decision in First Nations Child and Family Caring Society of Canada. In that case, the Tribunal found that a prima facie case had been made out that First Nations children and families living on reserve and in the Yukon were being denied equality and were differentiated adversely in the provision of child and family services by Aboriginal Affairs and Northern Development Canada. In reaching its decision, the Tribunal emphasized that the inter-generational trauma that the Residential Schools system caused to Aboriginal peoples and their communities is one of many reasons underlying the need to provide First Nations children with adequate, least intrusive and culturally appropriate child and family services (at para. 151).

[69] The increasing awareness of the challenges that Aboriginal peoples have grappled with and which they continue to face has over the past several years led to a general call for reconciliation between non-Aboriginal Canadians and all Aboriginal peoples of Canada. Again, of significance to this case is that this call for reconciliation has clearly included the Métis peoples. Section 35 of the Constitution Act, 1982 has been an important tool in this reconciliation process. The Supreme Court of Canada has described the “grand purpose” of section 35 as being “the reconciliation of Aboriginal and non-Aboriginal Canadians in a mutually respectful long-term relationship” (Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103 (S.C.C.); Daniels, at para 35). As the court noted in Daniels, the Report of the Royal Commission on Aboriginal Peoples, released in 1996, emphasized the need to rebuild the Crown’s relationship with Canada’s Aboriginal peoples, including the Métis. The Truth and Reconciliation Commission described the Royal Commission Report as a call for Canadians to begin “a national process of reconciliation that would have set the country on a bold new path, fundamentally changing the very foundations of Canada’s relationship with Aboriginal peoples” (Honouring the Truth, at p. 7). The Commission noted that most of the recommendations that the Royal Commission made in relation to reconciliation were unfortunately never implemented. The work of the Truth and Reconciliation Commission and the release of its report represent a renewed call for reconciliation, which the Commission has described as being “about establishing and maintaining a mutually respectful relationship between Aboriginal and non-Aboriginal peoples in this country” (Honouring the Truth, p. 6). It emphasized that this country now has “a rare second chance to seize a lost opportunity for reconciliation” (Honouring the Truth, p. 7). A careful review of the Commission’s discussion of this need for reconciliation indicates that it clearly embraces the Métis.

[70] The Truth and Reconciliation Commission’s call for reconciliation was particularly pronounced in the area of child welfare. The Commission’s Final Report included numerous calls for action in the child protection context. These included providing sufficient resources to enable Aboriginal communities and child welfare organizations to keep Aboriginal families together where appropriate, establishing as an important priority that placements of all Aboriginal children in foster care be culturally appropriate, and developing culturally appropriate parenting programs for Aboriginal families (Truth and Reconciliation Commission: Calls to Action: Winnipeg: The Commission, 2015, at p. 1). The Commission specifically highlighted the shortcomings of the child welfare system with respect to the Métis peoples. It noted that Métis communities are not well served due to historical and ongoing jurisdictional disputes between the federal and provincial governments, and emphasized the need for adequately funded, Métis-specific child and family services for Métis children and their families (Honouring the Truth, p. 141).

[71] The Truth and Reconciliation Commission’s emphasis on the need for greater sensitivity to and respect for all Aboriginal cultures and traditions in the child protection context echoes similar calls made by various Aboriginal organizations in Ontario over the past several decades. Of significant importance to the contextual analysis required in this case is the fact that the definitions of Indian, Native person and Native child in the CFSA have been a pivotal focus point for the discussions in this area. The Ministry of Children and Youth Services is required to engage in consultations regarding the CFSA every five years for the purposes of undertaking a review of the legislation. As MacKinnon, J. noted in F.(K.), in the Ministry’s Report on the 2015 review of the Act, the Ministry noted that the participants in the review were virtually unanimous in calling for revisions of the terms Indian, Native person, Native child and Native community. In particular, they sought expanded definitions that incorporate the definition of Aboriginal peoples in section 35(2) of the Constitution Act, 1982, while retaining flexibility for those who self-identify as Aboriginal (F.(K.), at para 38). What was not discussed in F.(K.) is the fact that this issue was also a major focus of discussion during the 2010 CFSA review. In its report respecting the 2010 review, the Ministry wrote as follows with respect to this issue:

One of the most frequently identified topics throughout the review was the definition of Indian/Native person in the CFSA. All stakeholder groups suggested that the definition should be amended to include all children of Aboriginal descent, consistent with the definition of “Aboriginal” in section 35 of the Constitution Act… In addition, it was noted that the CFSA obligation for regular consultation should be expanded to include all Aboriginal families rather than for status/eligible for status children only (Ministry of Children and Youth Services, Report on the 2010 Review of the Child and Family Services Act, para. 3.4).

[72] The Supreme Court of Canada wove the Truth and Reconciliation Commission’s call for reconciliation into its decision in Daniels as a significant factor in its analysis of the constitutional issues respecting Métis peoples. It described its decision regarding federal/provincial constitutional jurisdiction respecting the Métis as another chapter in the pursuit of reconciliation and redress in Canada’s relationship with its indigenous peoples. It clearly accepted the Métis as coming within the fold of Aboriginal peoples who have suffered significant inequities and whose cultural traditions and heritage the court must safeguard and foster. In this regard, the court stated as follows:

The constitutional changes, the apologies for historic wrongs, a growing appreciation that Aboriginal and non-Aboriginal people are partners in Confederation, the Report of the Royal Commission on Aboriginal Peoples, and the Final Report of the Truth and Reconciliation Commission of Canada all indicate that reconciliation with all of Canada’s Aboriginal peoples is Parliament’s goal (at paras 36 to 37).

[73] All of the above-mentioned developments form an important contextual backdrop for the analysis of whether the definitions of Indian, Native person and Native child under the CFSA are consistent with the equality guarantee in section 15(1) of the Charter. The analysis must be carried out with an eye to the historical and ongoing wrongs that Aboriginal peoples, including the Métis, have been subjected to, our growing appreciation of the effects of Canada’s wrongdoing on the strength and sustainability of Canada’s Aboriginal communities and cultures, and the country’s clear promises to its Aboriginal peoples, including the Métis, to actively redress those wrongs in a spirit of meaningful reconciliation.

2. Do the Definitions of Indian, Native Person and Native Child Create Distinctions Based on Enumerated or Analogous Grounds?

[74] I turn now to the elements of the test for establishing a claim of discrimination. The first element of the test for determining whether the definitions of Indian, Native person and Native child infringe section 15(1) is whether they create a distinction based on an enumerated or analogous ground. MacKinnon, J. considered this issue in F.(K). I agree with the conclusion that she reached in that case that the definitions of these terms, when considered in conjunction with the numerous provisions in the CFSA that incorporate them, 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. The real question with respect to the first branch of the discrimination analysis is whether the definitions have the effect of creating distinctions based on enumerated or analogous grounds. T.V. submits that the distinctions drawn by these terms are based on race or ethnic origin.

[75] The word “ethnic” is defined in the Oxford English Dictionary as “relating to a population subgroup (within a larger or dominant national or cultural group) with a common national or cultural tradition.” The term “race” is defined as “a group of people sharing the same culture, history, language etc.; an ethnic group.” Dealing first with the definition of Indian, I agree with the reasoning of MacKinnon, J. in F.(K.) that the differential treatment resulting from the term is not based on ethnicity. The court’s reasoning in F.(K.) also supports the conclusion that the distinction is not based on race. Rather, the differential treatment that arises from the definition is based on registration or eligibility for registration as a status Indian under the Indian Act. As the court highlighted in F.(K.), the grounds upon which a child may have or be entitled to status under the Indian Act, and the reasons for lack of entitlement, are complex and not necessarily based on the child’s cultural background. By way of illustration of this point, the court noted that some Aboriginal peoples who would have been entitled to registration were erroneously excluded due to problems recording names during the treaty process, and that many women who were registered as Indians under the Act lost their status when they married non-Aboriginal men (at paras. 48 and 49). The court also referred to the Federal Court of Appeal decision in Daniels v. Canada (Minister of Indian Affairs and Northern Development, [2014] FCA 101 (F.C.A), where the court noted that the grounds for registration under the Indian Act, and for excluding people from Indian status, are “complex, far-ranging and often unrelated to one another” (at para. 77).

[76] In F.(K), the court went on to consider whether the distinction arising from the definition of Indian, based on registration or eligibility for registration as a status Indian, is an analogous ground within the meaning of section 15(1), and determined that it is. I agree with this conclusion. I note that registration or eligibility for registration as a status Indian under the Indian Act had prior to the decision in F.(K.) been accepted by the Alberta Court of Queen’s Bench as being an analogous ground within the meaning of section 15(1) of the Charter in Peavine Métis Settlement v. Alberta (Minister of Aboriginal Affairs & Northern Development), 2007 ABQB 517, 2007 CarswellAlta (Q.B). The issue in that case was whether the Métis Settlement Act, R.S.A. 2000, c. M-14 violated section 15(1) of the Charter on the basis that it precluded Métis peoples who were also registered as status Indians under the Indian Act from membership in the Peavine Métis Settlement. The court applied the principles which the Supreme Court of Canada established in Corbière, and concluded that registration as a status Indian under the Indian Act was an analogous ground. It referred to the decision of Ross, J. in McIvor v. Canada (Registrar of Indian and Northern Affairs), 2007 BCSC 827 (S.C.) that status or non-eligibility for status under the Indian Act is an aspect of personal and cultural identity, and not simply a statutory definition relating to eligibility for a program or benefit. The court in Peavine noted that “[w]hile the government created and imposed this identity on First Nations peoples, it has become a central aspect of identity” (at para. 167). In support of its conclusion that registration or entitlement to registration as a status Indian under the Indian Act is an analogous ground, the court noted that a lack of eligibility for status is immutable, and that Aboriginal peoples who are not eligible for status under the Act “have not been given equal consideration or respect by the government or by others in Canadian or Aboriginal society” (at para. 169). The court added that decision-makers have not always considered the perspectives and needs of Aboriginal people who have not been registered as Indians under the Indian Act (at para 169). It further noted that conversely, those who have registered as Indians under the Act have also suffered disadvantage, stereotyping and prejudice (at para. 169). On appeal from the trial judge’s decision in Peavine Métis Settlement, the Alberta Court of Appeal and Supreme Court of Canada noted that the parties had accepted that Indian status or eligibility for status was an analogous ground, and the appeal courts accordingly declined to address the issue (see Peavine Métis Settlement v. Alberta (Minister of Aboriginal Affairs and Northern Development, sub nom. Cunningham v. Alberta (Minister of Aboriginal Affairs and Northern Development), 2009 ABCA 239; 2009 CarswellAlta 952 (C.A.); 2011 SCC 37 (S.C.C.)).

[77] In F.(K.), MacKinnon, J. echoed the conclusion reached by the trial judge in Peavine that the existence of Aboriginal heritage without status or eligibility for status under the Indian Act is a personal characteristic arising as a result of decisions made by or imposed on Aboriginal peoples by their ancestors and others. As such, she concluded that this characteristic is immutable and qualifies as an analogous ground. I agree fully with this reasoning. I add that one of the important considerations that the Supreme Court of Canada highlighted in Corbière as being relevant to the identification of analogous grounds is whether the individuals characterized by the trait are vulnerable to having their interests overlooked and their rights to equal respect violated. My discussion regarding the relevant contextual factors in this case highlights the unique challenges that Métis peoples have faced throughout history due to various factors, including their exclusion from the Indian Act and major disputes about government responsibility that often left them in a jurisdictional “no-man’s land.” Although the Supreme Court of Canada did not undertake an analysis of the analogous ground issue in its decision in Peavine, it did elaborate upon the historical disadvantages that the Métis peoples of Canada have faced. It noted that unlike status Indians, the Métis were not given a collective land base and did not enjoy the benefits of the Indian Act or any equivalent benefits. The court concluded that although the Métis are widely recognized as a culturally distinct Aboriginal people living in culturally distinct communities, “the law remained blind to the unique history of the Métis and their unique needs” (at para. 7).

[78] I turn now to whether the definitions of Native person and Native child have the effect of creating a distinction based on an enumerated or analogous ground. MacKinnon, J. addressed this issue as well in F.(K.), and concluded that the distinction drawn by the CFSA definitions of Native person, Native child and Native community are not rooted in ethnicity or national origin. She concluded that the designation of Native communities is based on remote geographical location of First Nations communities and the operation of the communities in a manner similar to Indian bands. I agree with the conclusion reached in F.(K.) that the distinction drawn by the definitions of Native person and Native community, and by extension Native child, is not based on ethnicity or national origin. Furthermore, in my view, the same reasoning leads me to conclude that the distinction is not based on race. There is no evidence before me regarding the specifics of the membership in the 13 communities that have been designated as Native under the Act, or whether there are even any clear criteria for establishing membership in those communities. For example, it is not clear whether each of the designated communities consists only of Aboriginal peoples, or whether they each include individuals from one distinct indigenous group or various different indigenous groups. Furthermore, neither the CFSA nor the Regulations thereunder set out any specific criteria which communities must meet in order to be designated as Native. As previously discussed, the communities that have been designated as Native to date are those which are receiving child protection services from Dilico Ojibway Child and Family Services, which the Minister designated as a Children’s Aid Society pursuant to section 211(2) (c) of the CFSA. Based on the evidence before me and the findings of MacKinnon, J. in K.(F.) and Starr, J. in M.M., the designation of communities as Native pursuant to section 209 of the CFSA appears to be largely a matter of Ministerial discretion, based not on the specific cultural backgrounds of the members of the communities but rather on the remote location of Aboriginal communities and whether the communities have proposed and designated a body as a Native child and family services authority.

[79] As MacKinnon, J. noted in F.(K.), the distinction which the definitions of Native community, Native person, and Native child create is based on Aboriginal ancestry without membership in a community designated to be Native pursuant to section 209 of the CFSA. The issue is whether this ground is analogous to those listed in section 15(1). MacKinnon, J. also addressed this issue in F.(K.) and concluded that this is an analogous ground. Again, I agree with this conclusion and the reasoning upon which it was based. In Corbière, the Supreme Court of Canada held that Aboriginality-residence as it pertains to whether an Aboriginal band member lives on or off the reserve is an analogous ground. The decision turned largely on the fact that the decision of a band member to live on or off the band’s reserve, if the decision is available to them at all, is an important one to their identity and personhood, and is therefore fundamental (at para. 62). In accepting Aboriginality-residence as an analogous ground, McLachlin, J. noted that residence on or off the reserve goes to a personal characteristic essential to a band member’s identity, and that this characteristic is immutable in that band members are either unable to change their status to on-reserve for personal reasons or are only able to do so at great cost. In the case at hand, the circumstances are somewhat distinguishable from those in Corbière in that T.V. has never had any type of connection to the Aboriginal communities that have been designated as Native under the CFSA. However, based on the evidence regarding designation of Native communities, it is apparent that one of the criteria is that the community operates like a band, but does not have band status under the Indian Act. Taking this into consideration, this case raises very similar considerations to those that arose in Corbière. The decision of Métis and non-status First Nations peoples to live within or become a member of an Aboriginal community designated by the Ministry that operates in a similar fashion to a band or to live elsewhere is just as important to their identity and personhood as the decision of a band member to live off their band’s reserve. Furthermore, residence outside of the band-like communities that have been designated as Native under the Act is a characteristic that is just as immutable as that of band members who live off their band’s reserve. The fact that Métis and non-status First Nations peoples do not live in the designated communities is a characteristic that derives from decisions made by their ancestors that they cannot change, and is one which in my view the government has no legitimate interest in expecting them to change in order to receive equal treatment under the law. I agree with the conclusion reached by MacKinnon, J in F.(K.) that “[t]here 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” (at para. 56). I also concur in her determination that distinctions made on the ground of Aboriginality without membership in a community designated as “Native” under the CFSA are analogous to those made on the ground of “Aboriginality-residence” identified in Corbière.

3. Do the Distinctions Arising from the Definitions of Indian, Native Person and Native Child Create or Perpetuate Disadvantage for Métis Peoples?

[80] The second stage of the discrimination analysis pursuant to section 15(1) involves a determination of whether the distinctions in question create or perpetuate disadvantage for the claimant of the group of which they are a member. As previously noted, T.V. argues that the exclusion of Métis peoples from the operation of the CFSA provisions relating to children with Indian or Native status creates disadvantage for Métis children and their families which satisfies the second branch of the discrimination test. The Society’s position is based primarily on the argument that the Respondent has not proven on a balance of probabilities that the definitions of Indian, Native person and Native child create or perpetuate disadvantage for Métis families. For the reasons that follow, I conclude that the distinctions created by the definitions of these terms create or perpetuate disadvantage for Métis children and their families, and that the second branch of the test has therefore been satisfied.

[81] The Society referred me to the case of MacKay v. Manitoba, 1989 CanLII 26 (SCC), [1989] 2 S.C.R. 357 (S.C.C.) in support of its argument that the Respondent had not adduced the necessary evidence in support of his section 15(1) claim. In that case, the Supreme Court of Canada articulated the following general principles regarding the nature of the evidentiary foundation required when challenging the constitutional validity of legislation on the basis of the Charter:

Charter decisions should not and must not be made in a factual vacuum. To attempt to do so would trivialize the Charter and inevitably result in ill-considered opinions. The presentation of facts is not, as stated by the respondent, a mere technicality; rather it is essential to a proper consideration of Charter issues. A respondent cannot, by simply consenting to dispense with the factual background, require or expect a court to deal with an issue such as this in a factual void. Charter decisions cannot be based upon the unsupported hypotheses of enthusiastic counsel (at para. 361-362).

[82] The Society also relies on the cases of Moysa v. Alberta (Labour Relations Board), 1989 CanLII 55 (SCC), [1989] 1 S.C.R. 1572 (S.C.C.), and the reasoning of MacKinnon, J. in F.(K). in support of its position regarding the alleged evidentiary shortcomings in this case. In Moysa, the issue was the right of the appellant, a journalist, to refuse to answer questions in a proceeding before the Alberta Labour Relations Board. The journalist refused to testify on the basis that he had a right to protect his sources of information pursuant to s. 2(b) of the Charter, which guarantees freedom of thought, belief, opinion and expression, including freedom of the press and other media communication. The appellant raised the concern that if journalists are compelled to disclose sources of their information, this would have a chilling effect on potential informants and the press would lose access to information as news sources. The court declined to deal with the constitutional issues raised on the ground that the appellant did not lead any evidence establishing a link between compelling journalists to testify before bodies such as the Labour Relations Board and a decrease in information sources for journalists. It emphasized that “the mere existence of constitutional questions does not obligate a response on behalf of this court,” and held that “if the facts of the case do not require that constitutional questions be answered, the Court will ordinarily not do so. This policy of the Court not to deal with abstract questions is of particular importance in constitutional matters” (at paras. 15 and 16). In F.(K.), the court relied on similar reasoning to dismiss a claim by the maternal grandparents and the mother of the children in question that the definitions of Indian child and Native child violate section 15(1) of the Charter on the basis that they do not include non-status Aboriginal children. MacKinnon, J. based her decision on the fact that there was no evidence before the court indicating that the disposition outcomes for Indian and Native children were more favourable than those of other Aboriginal children in terms of preserving the children’s ties with their community and Aboriginal heritage. She found that such evidence was required in order to determine whether the definitions create a discriminatory disadvantage for Aboriginal children who fall outside the scope of the definitions of Indian child and Native child (at para. 58).

[83] Although the F.(K.) case involved the equality rights of non-status First Nations children rather than Métis children, the reasoning of MacKinnon, J. with respect to the disadvantage analysis would have applied equally to Métis children. However, I have reached a different conclusion respecting the existence of disadvantage to Métis children who do not fall within the definitions of Indian, Native person or Native child, and I agree with T.V. that the second branch of the discrimination test has been satisfied. 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.

[84] Dealing first with the factual evidence required to prove disadvantage, the Supreme Court of Canada has held that disadvantage can be established not only if facially neutral legislation has a disproportionately disadvantageous outcome for the claimant as compared to others, but also if the legislation clearly on its face imposes burdens, obligations or disadvantages on the claimant group not imposed on others, or withholds or limits access to opportunities, benefits and advantages available to other members of society (Andrews, at para. 19; Egan, at para. 584; Miron, at para. 14). These different manifestations of disadvantage correspond with the fact that the equality guarantee in section 15(1) embodies not only the right to the equal benefit of the law, but also the right to equal protection of the law. It does not appear that counsel in F.(K.) referred the court to case-law that clarifies that the nature and extent of the factual foundation required to establish disadvantage may vary, depending on whether the claim is based on facially neutral legislation that indirectly creates disadvantage, or whether it is based on legislation that clearly on its face creates disadvantages for the claimant. The requirement of a strong factual foundation is much more imperative in the former situation. In addition, the case-law has established that even in cases of alleged indirect discrimination, the extent of the factual foundation required will depend on the particular circumstances of each case. I turn now to a review of the case-law that establishes these points.

[85] The Society referred me to the case of Danson v. Ontario (Attorney General), 1990 CanLII 93 (SCC), [1990] 2 S.C.R. 1086 (S.C.C.) in support of its argument that the Respondent had not laid the necessary factual foundation for his section 15(1) claim. In that case, the court again stressed the importance of establishing a proper factual foundation before measuring legislation against the provisions of the Charter. However, the primary focus of the court’s discussion of this issue appears to have been situations of indirect discrimination rather than cases where the impugned legislation is discriminatory on its face. In this regard, the court noted at paragraph 26 that the need for a strong factual foundation arises “particularly where the effects of impugned legislation are the subject of the attack” (emphasis added). Furthermore, counsel for the Society neglected to reference all relevant portions of the Supreme Court’s decision in Danson relating to the factual foundation required in Charter challenges. The court elaborated upon this issue later in its Reasons by stating as follows:

This is not to say that such facts must be established in all Charter challenges. Each case must be considered on its own facts (or lack thereof). As Beetz, J. pointed out in Manitoba (Attorney General) v. Metropolitan Stores Ltd., 1987 CanLII 79 (SCC), [1987] 1 S.C.R. 110, at p. 133:

There may be rare cases where the question of constitutionality will present itself as a simple question of law alone which can be finally settled by a motion judge. A theoretical example which comes to mind is one where Parliament or a legislature would purport to pass a law imposing the beliefs of a state religion. Such a law would violate s. 2(a) of the Canadian Charter of Rights and Freedoms, could not possibly be saved under s. 1 of the Charter, and might perhaps be struck down right away.

[86] The Supreme Court of Canada has since the Danson decision elaborated further upon the nature of the factual foundation required in advancing a section 15(1) equality challenge. In Droit de famille, the court clarified that the extent of the evidentiary burden on a section 15(1) claimant will depend on whether the claim involves direct discrimination or indirect discrimination. In a case of direct discrimination, disadvantage may be established if the legislative scheme clearly on its face denies the claimant group protections available to others on the basis of enumerated or analogous grounds. (Droit de famille, at paras. 244-245). By contrast, as McLachlin, J. emphasized in Withler, a section 15 claimant will have a much heavier evidentiary burden in cases involving indirect discrimination, since proof may be required to establish that the facially neutral measure has the effect of creating distinction and a disproportionately disadvantageous outcome for a claimant or group characterized by an enumerated or analogous ground (at para. 64).

[87] The Supreme Court of Canada has established that even in cases involving claims of indirect discrimination, the nature and extent of the factual foundation required to succeed on a Charter challenge will vary depending on the unique circumstances of every case. Iacobucci, J. clearly made this point in Law. He held that although the claimant in a section 15(1) case has the onus of proving an infringement of their equality right through reference to one or more contextual factors, they do not necessarily have to adduce factual evidence to show disadvantage at the second stage of the analysis. He clarified that “[f]requently, where differential treatment is based on one or more enumerated or analogous grounds, this will be sufficient to found an infringement of s. 15(1) in the sense that it will be evident on the basis of judicial notice and logical reasoning that the distinction is discriminatory within the meaning of the provision” (at para. 88). He added that “the requirement that a claimant establish a s. 15(1) infringement in this purposive sense does not entail a requirement that the claimant prove any matters which cannot reasonably be expected to be within his or her knowledge” (at para. 80). He explained that in some cases, such as situations where the impugned distinction does not correspond with the needs, capacity or merit of the claimant group, it will be relatively easy to establish discrimination. In those circumstances, he noted that “[i]t may be sufficient for the court simply to take judicial notice of pre-existing disadvantage experienced by the claimant or by the group of which the claimant is a member in order for such a s. 15(1) claim to be made out” (at para. 83). In other cases, evidence may be required in order to properly address one or more other contextual factors (at para. 83).

[88] Abella, J. also commented on the nature and extent of the evidentiary onus on a section 15 complainant in Kahkewistahaw. She reiterated that in determining whether an impugned distinction is discriminatory, the specific evidence required will vary depending on the context of the claim (at para. 21). That case involved a claim of indirect discrimination. The Applicant was a former chief of a First Nation who alleged that election provisions which established a requirement that a candidate for the position of chief have at minimum a grade 12 education was discriminatory on the basis of age and on the basis of residence on reserve. The impugned provisions were neutral on their face, but the Applicant claimed that they resulted in indirect discrimination in that they had a disproportionately negative impact on older members of the band who lived on reserve. The court dismissed the claim on the basis that there was insufficient evidence to establish that the facially neutral requirement disproportionately disadvantaged older band members or members who lived on reserve. However, in reaching this conclusion, Abella, J. emphasized that even in cases involving indirect discrimination, where a law is neutral on its face, statistical evidence regarding disadvantage is not invariably required in order to sustain a s. 15 claim. She noted in some such cases of alleged indirect discrimination, “the disparate impact on an enumerated or analogous ground will be apparent and immediate” (at para. 33).

[89] I turn now to the particular circumstances of this claim. This is not a case where it is alleged that a facially neutral legislative scheme has had the indirect effect of creating disproportionate disadvantage to the claimant as compared to other individuals or groups. If that were the case, there would be a compelling need for a strong factual foundation establishing a link between the legislative scheme and the disadvantage alleged to have flowed to the Métis as compared to children who are Indian and Native. Rather, in my view, the various special provisions in the CFSA underpinning the legislative scheme relating to Indian and Native children clearly on their face create unfair and objectionable disadvantages for Métis children and their families by denying them access to numerous protections, advantages and benefits that are available to children who fall within the definitions of Indian, Native person and Native child under the Act. The legislative framework respecting children who have Indian or Native status was specifically formulated and implemented in response to the Sixties Scoop, as part of a deliberate plan to reduce the number of Indian and Native children in foster care and to increase their chances of remaining connected with their Aboriginal heritage and traditions. As the court emphasized in Brown, the enactment of the special provisions relating to Indian and Native status in and of itself had the immediate effect of dramatically reducing the chances of Indian or Native children being adopted out to a non-Aboriginal family and losing their culture and identity (at para. 8). As discussed in detail earlier in these Reasons, the implications of finding a child to be Indian or Native within the meaning of the CFSA are broad and very significant for the child and their family members. All of the special provisions in the CFSA relating to Indian and Native children have the effect of providing added protection to ensure that Indian and Native children receive culturally appropriate services and placements, that representatives of their communities can provide fulsome and meaningful input regarding cultural considerations and matters relating to the children’s best interests, and that all feasible options for placement within the child’s community or with other Aboriginal families are explored. The existence of Indian or Native status within the meaning of the Act impacts every aspect of child protection intervention in Ontario. One of the most significant examples of the manner in which Indian and Native status encourages the preservation of community ties is through the availability of subsidies for members of the Aboriginal community who care for an Indian or Native child under a designated customary care arrangement. Furthermore, the advantage of having an Indian band or native community representative involved at all stages of child welfare intervention and the requirement of consultation with these representatives is enormous. These representatives play a vital role in ensuring that child welfare staff and the courts have a full appreciation of the child’s cultural heritage, traditions and needs before making decisions about the child. They work to ensure that the child receives culturally appropriate services and placements. Furthermore, they often support the plan advanced by a parent and assist that parent in advancing the plan by highlighting how it will foster the child’s ties to their Aboriginal community (First Nations Child and Family Caring Society, para. 229).

[90] 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.

[91] In determining whether the distinctions in this case create or perpetuate disadvantage for Métis children and their families, I have carefully considered all of the relevant contextual factors and developments summarized earlier in these Reasons. These contextual considerations have led me to conclude that the distinctions arising from the definitions of Indian child and Native child create and perpetuate disadvantages to Métis children and their families that are unfair and objectionable. The history of disadvantage that the Métis have suffered has been an important consideration that has guided my decision in this matter. Their exclusion from the special protections afforded to Indian and Native children in the child welfare context continues that history of disadvantage in the most damaging way possible, since the strength and sustainability of Aboriginal communities, cultures and traditions is dependent on Aboriginal children being able to preserve and embrace them and carry them into the future. The exclusion of the Métis from the Indian and Native child provisions also improperly perpetuates the historical problem of Métis peoples being stereotyped as somehow being “less Aboriginal” and therefore less worthy of special protection than other indigenous peoples of Canada. I have considered the needs, capacities and circumstances of the Métis, and whether there is a correlation between the differential treatment and those needs. I conclude that the differential treatment that arises from the operation of the Indian and Native child provisions of the CFSA does not correspond with the actual needs and circumstances of the Métis peoples. I have discussed in detail the wrongs that the Métis experienced in the past that have had the effect of eroding their families and communities and undermining their cultural traditions. In Powley, the Supreme Court of Canada clearly stated that this country has made a commitment to not only recognizing the Métis as Aboriginal peoples of this country, but to “enhancing their survival as distinctive communities” (at para. 13). This commitment cannot amount to an empty shell. Métis children and their families require the protections afforded by the Indian and Native provisions of the CFSA just as much as Indian and Native children and families require them in order to protect and foster their communities, cultures and traditions. Finally, I have considered the nature and scope of the benefits which the Métis peoples are being denied in this case. The protections in question are geared at maintaining Indian and Native children’s connections to their families, communities and culture, and giving their communities a voice in all major matters affecting the children in the child protection arena. It is difficult to imagine any other benefits that would be more important to the Métis and critical to their ongoing survival as distinct communities.

[92] I have considered this section 15(1) challenge against the backdrop of all of the contextual considerations outlined earlier in these Reasons. This country is currently riding a wave of change with respect to our understanding of historical wrongs committed against all Aboriginal peoples and their cultures, the longstanding damage created by those wrongs, the necessity of repairing their cultural and familial fabrics, and the urgent need for reconciliation as an essential foundation for future healing. The wave must continue and become stronger. There is much work still to be done by all stakeholders. The most critical place for the continuation of this work is in the area of child welfare. The discrimination analysis in this case must be informed by the contextual factors that set the wave into motion and be responsive to the country’s call for reconciliation and repair. The Aboriginal peoples of Canada require reassurance that this court has clearly heard and understood the Truth and Reconciliation Commission’s Calls to Action. Legal roadblocks should not be placed in the way of efforts on the part of Canada’s indigenous peoples to foster the strength of their communities and cultural traditions. Reconciliation requires Parliament and the provincial Legislatures to pro-actively identify and dismantle all such obstacles and pave a clear legal path for such efforts to succeed, so that all future generations of Aboriginal peoples will be able to embrace their traditions and thrive in a country that acknowledges every step of the way the incredible contributions that they have made to the creation of this country.

[93] T.V. has satisfied the onus of establishing that the definitions of Indian, Native person and Native child violate section 15(1) of the Charter. The onus of establishing that this infringement is saved by section 1 of the Charter lies on the Crown or the party seeking to uphold the provisions in question. The Society did not advance a section 1 argument, and as noted previously, neither the provincial nor federal government participated in this constitutional hearing. In the absence of any section 1 argument or evidence, I conclude that the infringement is not saved by section 1.

ISSUE #5: WHAT IS THE APPROPRIATE REMEDY?

A. Positions of the Parties

[94] The final issue to determine with respect to the constitutional issue is the appropriate remedy for the breach of section 15(1) of the Charter. Counsel for T.V. submitted that the definitions of Indian, Native person and Native child should be declared invalid pursuant to section 52 of the Constitution Act, 1982 on the basis that they violate section 15(1) of the Charter, but that the declaration of invalidity should be suspended for an appropriate period of time to allow the Ontario Legislature to formulate a constitutional solution. In addition, he argued that the court should grant an individual remedy pursuant to section 24(1) of the Charter by directing that the provisions of the CFSA relating children who are Indian or Native should extend to E.D.V. for the purposes of this and any subsequent child protection proceedings under the CFSA.

[95] The Society agrees with the position taken by T.V. respecting the appropriate remedy. It submits that a suspended declaration of invalidity, coupled with an individual remedy directing that the child E.D.V. be treated as Indian or Native for the purposes of these proceedings, is the remedy that is most consistent with the best interests of the child. The Society’s position is that the remedy of reading in would not be appropriate in the circumstances of this case, since it would require the court to make ad hoc choices regarding an appropriate alternative legislative scheme from a variety of options, none of which is clearly the most appropriate having regard for the requirements of section 15(1). The Society argued that the task of formulating and implementing an appropriate constitutional alternative is more appropriate for the Legislature than this court.

[96] For the reasons that follow, I conclude that the remedial response that the Society and T.V. have requested is the appropriate one in this case.

B. Relevant Legal Principles Regarding Constitutional Remedies

[97] A finding that a legislative provision or scheme is inconsistent with the Charter brings into play section 52(1) of the Constitution Act, 1982, which is often referred to as “the supremacy clause.” That section provides as follows:

Primacy of Constitution of Canada

52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

[98] Section 52(2) of the Constitution Act, 1982 defines “Constitution of Canada,” and includes the Constitution Act, 1982. The Charter is Part I of that Act. Accordingly, any law that is inconsistent with the Charter is of no force and effect to the extent of the inconsistency.

[99] In addition to the remedies available pursuant to section 52(1) of the Constitution Act, 1982, section 24(1) of the Charter is a separate remedies provision available to claimants who have specifically established a Charter breach. That section provides as follows:

Enforcement of guaranteed rights and freedoms

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

[100] Section 24(1) is only available to a person whose own Charter rights have been infringed. Unlike section 52(1) of the Constitution Act, 1982, it confers discretion on the court as to whether or not any remedy should be granted.

[101] A court has a wide discretion in determining the appropriate remedy once a Charter breach has been proven and has been found not to survive the scrutiny of section 1. In deciding upon the appropriate disposition, the court must consider the nature of the violation and the context of the legislation under consideration (Schachter v. Canada, 1992 CanLII 74 (SCC), [1992] 2 S.C.R. 679 (S.C.C.), at para. 25).

[102] Section 52(1) is engaged when a law or portion thereof is found to be unconstitutional, rather than simply an action taken under the law (Schachter, at para. 85). The language of section 52(1) is mandatory, and requires the court to declare unconstitutional legislative provisions to be invalid. The effect of such an outcome is that the litigation and any subsequent litigation that would have involved the provisions in question must be determined as if the unconstitutional law does not exist. However, in practice, the courts have developed a number of variations upon a simple declaration of invalidity in order to achieve as optimal an outcome as possible for all individuals who may be affected by the decision (Schachter). Peter Hogg summarizes the range of remedies that the courts have adopted pursuant to section 52(1) as including the following six options:

1. Nullification: This remedy involves a declaration that a statute in its entirety is inconsistent with the Constitution and is therefore of no force and effect.

2. Severance: This involves a declaration that only part of the legislation is inconsistent with the Constitution and of no force and effect, and severing that portion from the valid remainder of the legislation.

3. Temporary Suspension of the Declaration of Invalidity: Where either of the first two options are invoked, the court may include as part of the remedy an order suspending the coming into force of the declaration of invalidity for a specified period of time.

4. Reading in, which involves the court adding words to a statute that is inconsistent with the Constitution so as to make the statue constitutionally valid.

5. Reading down, which involves the court interpreting the statute in such a way that it is consistent with the Constitution.

6. Constitutional exemption: this remedy involves creating an exemption from a statute that is partly inconsistent with the Constitution so as to exclude from the scope of the statute the application that would be unconstitutional.

(Peter Hogg, Constitutional Law of Canada, 5^th edition, Supra., at p. 40-4).

[103] The court has a broad discretion as to which of these options to adopt pursuant to section 52(1). In deciding upon the appropriate remedy, the court should seek to avoid undue intrusion upon the legislative sphere, while at the same time crafting a remedy that promotes the purposes of the Charter as much as possible (Osborne v. Canada, (Treasury Board), 1991 CanLII 60 (SCC), [1991] 2 S.C.R. 69, at para. 104; Schachter, at para. 43). With respect to the options of complete nullification of the legislation in its entirety as opposed to severance, Lamer, J. emphasized in Schachter that severance is the preferred approach where possible, so that “as much of the legislative purpose as possible may be realized” (at para. 29). He emphasized that the first step in choosing a particular remedial course where only portions of the legislation are found to be unconstitutional is to define with precision the extent of the inconsistency with the requirements of the Constitution, and to then declare invalid (a) the inconsistent portion; and (b) such portions of the remainder of the legislation of which it cannot safely be assumed that the Legislature would have enacted without the inconsistent portion” (at para. 31).

[104] In this case, the Respondent T.V. alleges that the definitions of Indian, Native person and Native child offend section 15(1) of the Charter because they are under-inclusive in that they do not extend to Métis children. In circumstances where legislative provisions are found to violate the Charter on the basis that they are under-inclusive, a simple declaration of partial invalidity (i.e. severance) can have the undesirable ripple effect of denying the benefits of the impugned legislative provisions to the individuals or groups who already fall within the purview of the legislative scheme. In order to avoid draconian outcomes for such other interested stakeholders, the courts have in certain circumstances resorted to the options of “reading in” or temporarily suspending the declaration of invalidity to allow the government to implement corrective constitutional measures. A careful consideration of each of these options is therefore required in this case. The starting point for this analysis is the Supreme Court of Canada decision in Schachter, where the court discussed in detail the options of reading in, declaration of partial invalidity and suspending the declaration of invalidity in the context of a claim that a provision of the federal Unemployment Insurance Act violated section 15 of the Charter by providing certain child care benefits to adoptive parents that were not offered to biological parents. The court concluded that the legislative provision was under-inclusive in a manner that violated the section 15 equality rights of biological parents. In addressing the issue of the appropriate remedy, it outlined several factors for the court to consider in deciding between the options of reading in or a declaration of partial invalidity. Lamer, J. reiterated the importance of respecting the role of the Legislature, and held that reading in may be a preferable alternative to severance where it allows the court to resolve the constitutional problem while at the same time minimizing interference with the parts of the statute that do not violate the Constitution (at para 43). He noted that the purpose of reading in is to be as faithful as possible within the requirements of the Constitution to the scheme which the Legislature has enacted. However, he cautioned that this approach may not always be the least intrusive upon legislative authority, and that a careful analysis of this issue is required in every case in order to craft the optimal remedy. For instance, he noted that in the context of legislative schemes that confer benefits or entitlements on certain specified groups, reading in so as to include additional groups may actually be highly intrusive upon the legislative sphere if there is concern that the Legislature would not have implemented the scheme had it known that it was impermissible to exclude particular individuals or groups (at para 39). Lamer, J. also discussed the need for remedial precision as an important factor in deciding between reading in or severance. He noted that reading in is typically only appropriate in circumstances where the court is able to define with a sufficient degree of precision how the statute ought to be extended in order to be constitutionally valid. He concluded that in some cases, reading in may be too complicated a process due to uncertainty as to what precisely should be read in to remedy the constitutional problems. As Lamer, J. stated, in such circumstances, “to read in would amount to making ad hoc choices from a variety of options, none of which was pointed to with sufficient precision by the interaction between the statute in question and the requirements of the Constitution. This is the task of the Legislature, not the courts” (at para. 57). As Peter Hogg has noted, in making these comments, Lamer, J. was essentially cautioning that in some circumstances, “an unconstitutional statute cannot be salvaged except by changes that are too profound, too policy-laden and too controversial to be carried out by a court” (Peter Hogg, Constitutional Law of Canada, Supra., at p. 40-23). Finally, the court held in Schachter that another factor to consider in deciding whether to resort to reading in is whether the addition of the proposed language would be consistent with the objectives of the legislation.

[105] In Schachter, the court also discussed at length the option of suspending a declaration of invalidity for a period of time to allow the Legislature to correct the constitutional shortcomings of the legislative scheme. The effect of such a disposition is that the legislative provisions remain in effect until the expiry of the period of time specified in the order. The court emphasized that this option should be exercised with caution, and should not be viewed as a panacea for the problem of interference with legislative authority. It described a delayed declaration of invalidity as a very serious matter from the perspective of enforcement of the Charter for two reasons. First, it allows a state of affairs that has been found to violate Charter values to continue for a period of time, notwithstanding the finding of unconstitutionality (at para. 82). Second, a delayed nullification forces the matter onto the Legislature’s agenda at a time that is not chosen by the Legislature, and under forced time limits (at para. 83). For these reasons, Lamer, J. concluded that reading in is generally preferable to a delayed declaration of nullity where it is appropriate (at para. 82). However, the court concluded at para 88 that if reading in is not appropriate, a temporary suspension of the declaration may be warranted in the following circumstances:

1. Where a declaration of invalidity without enacting something in its place would pose a danger to the public;

2. Where a declaration of invalidity without enacting something in its place would threaten the rule of law; and

3. Where the legislation is found to be unconstitutional because it is under-inclusive, and a declaration of invalidity would have the unfortunate effect of depriving benefits to those who fall within the purview of the legislation, while at the same time providing no immediate relief to the claimant whose rights have been violated.

Lamer, J. emphasized that these factors are intended simply as guidelines to assist courts in determining the most appropriate remedial course, and should not be viewed as hard and fast rules (at para. 89).

[106] The Supreme Court of Canada has since Schachter resorted to delayed declarations of nullity in a broader range of circumstances than those referred to in the guidelines which Lamer, J. articulated in Schachter. These include the following:

1. The court has ordered suspended declarations of invalidity in circumstances where the decision would have a significant effect on government resources. In Re Eurig Estate, [1998] 2 S.C.R. 569 (S.C.C.), the court held that provisions in Ontario’s legislation relating to probate fees were constitutionally invalid, but suspended the declaration of invalidity for six months on the basis of the potential loss of revenue to the province as a result of the decision. (see also Confederation des Syndicats Nationaux v. Canada, 2008 SCC 68, [2008] 3 S.C.R. 511 (S.C.C.) at para. 94, where the court found that employment insurance premiums that the government had levied over a three year period were invalid, and the court issued a suspended declaration of invalidity to allow the government to rectify the consequences of the decision.)

2. Delayed nullifications have also been ordered where the unconstitutional provisions were part of a broader legislative scheme, the resolution of the constitutional problems was complex and it was determined that the most prudent course was to allow the Legislature time to carefully consider and craft necessary alterations or adjustments to the scheme as a whole (see for example Trociuk v. British Columbia, 2003 SCC 34, [2003] 1 S.C.R. 835 (S.C.C.), at para. 43; Figueroa v. Canada, 2003 SCC 37, [2003] 1 S.C.R. 912 (S.C.C.), at para. 93; Health Services and Support- Facilities Subsector Bargaining Association v. B.C., 2007 SCC 27, [2007] 2 S.C.R. 391 (S.C.C.), at para. 168; Ha.-N. v. Quebec, 2009 SCC 47, [2009] 3 S.C.R. 208 (S.C.C.)).

3. The court has also suspended declarations of invalidity in circumstances where the finding of invalidity gives rise to numerous practical and procedural difficulties that the government and interested parties will need to work out and address in order to accommodate the changes in an orderly manner. For instance, in Ha.-N. v. Canada, the court declared amendments to Quebec’s Charter of the French Language which restricted access to English-language public schools to be unconstitutional, but suspended the declaration of invalidity for a period of 12 months because of the practical difficulties that the declaration may entail (at para. 46).

4. The Supreme Court of Canada has also opted for suspended declarations of invalidity to allow the Legislature to correct the problem, rather than the reading in remedy, in circumstances where there is genuine uncertainty as to whether the Legislature would have made the change proposed if it had known that the legislative scheme or provisions in question were unconstitutional. In this vein, McLachlin, J. held in Trial Lawyers’ Association of British Columbia v. British Columbia, 2014 SCC 59, [2014] 3 S.C.R. 31 (S.C.C.) that reading in should be “sparingly used,” and “only where it is clear that the Legislature, faced with a ruling of unconstitutionality, would have made the change proposed” (at para. 66). The conclusion that can be drawn from her reasons is that that the court should exercise considerable caution before resorting to the reading in remedy in circumstances where there are several reasonable options for addressing the constitutional wrong, including abandoning the scheme altogether, making substantial changes, or making adjustments to it. In such circumstances, the court should respect the Legislature’s right to make the appropriate choice if this approach is consistent with Charter values. The court relied on similar reasoning to support its decision to issue a suspended declaration of invalidity rather than resorting to the reading in remedy in Canada v. Federation of Law Societies, 2015 SCC 7, [2015] 1 S.C.R. 401 (S.C.C.) at paras. 64-66.

5. In other cases, the court has ordered delayed nullification of legislative provisions on the basis that numerous interests were engaged by the decision, and consultations with affected groups were considered to be critical to fashioning an effective and meaningful solution. For instance, in Canada v. Bedford, [2013] S.C.R. 1101 (S.C.C.), the court found that three prostitution-related offences in the Criminal Code were invalid, but issued a 12 month suspension of its declaration of invalidity based on the numerous interests at stake (at para. 169). In Corbière, the court declared the on-reserve residence requirements in the Indian Act for band elections to be invalid pursuant to section 15, but suspended the declaration for a period of 18 months. L’Heureux-Dube, J. held in her concurring decision that a declaration of invalidity is appropriate in cases where dialogue among important stakeholders is critical to ensuring that meaningful and effective solutions are crafted and implemented. She found that the best solution in that case would be one crafted by Parliament, after consulting with the Aboriginal peoples affected by the case. Her decision established that the principle of democracy should guide the exercise of the court’s remedial discretion in constitutional cases, and that this principle “encourages remedies that allow the democratic process of consultation and dialogue to occur” (at para. 116).

6. Finally, the court has opted for an order suspending a declaration of invalidity, rather than the remedy of reading in, where there are concerns that the legislative provisions in question may be constitutionally vulnerable on grounds other than those specifically addressed in the court’s reasons. (see R v. Tse, 2012 SCC 16, [2012] 1 S.C.R 531 (S.C.C.)).

[107] The formulation of an appropriate remedy in the case of under-inclusive legislation is a challenging task, particularly if the court concludes that reading in is not an appropriate remedial response. The alternatives of a simple declaration of invalidity, or making such a declaration and suspending it for a period of time, represent a pyrrhic victory for the claimant, since they do not actually grant them or others in their situation personal redress for the constitutional violation. In these circumstances, section 24(1) of the Charter may be invoked to ensure that justice is achieved for claimants. The court has a considerable degree of discretion and flexibility in crafting an individual remedy pursuant to section 24(1) that is just to the claimant and appropriate to the constitutional violation in question. The Supreme Court of Canada has held that this remedy provision should be interpreted purposively and in a large and liberal manner that best attains its objectives (R. v. Big M. Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295 (S.C.C.); British Columbia Development Corp. v. British Columbia (Ombudsman), 1984 CanLII 121 (SCC), [1984] 2 S.C.R. 447 (S.C.C)).

[108] A review of the Supreme Court of Canada case-law indicates that the court has crafted individual remedies for claimants in circumstances where suspended declarations of invalidity would have left them with no meaningful relief. For instance, in Rodriguez v. British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 S.C.R. 519, at para. 577, the court suggested that an order suspending a declaration of invalidity could be coupled with an individual Charter remedy for the claimant in the form of a constitutional exemption. McLachlin, J. recognized the challenges of crafting an appropriate remedy for the claimant in cases involving delayed declarations of nullity in Miron, and referred to the court’s support in Rodriguez of crafting of an individual remedy for the claimant pursuant to section 24(1). In Re Eurig Estate, the court suspended its declaration of invalidity respecting Ontario’s probate fee legislation, but nonetheless gave the claimants the immediate benefit of the invalidity. The court also appeared to support the notion of individual remedies for claimants in cases where suspended declarations of invalidity are issued in the case of Ha.-N. v. Quebec. As previously noted, in that case, the court held that amendments to Quebec’s Charter of the French Language which restricted access to English language public schools were unconstitutional, and ordered a declaration of invalidity, to be suspended for a period of one year. With respect to one of the claimants, the court held based on its ruling that the child in question was eligible for instruction in the English language. With respect to another claimant, the court concluded that it did not have sufficient evidence before it to make a decision regarding eligibility. With respect to both of these claimants, the suspended declaration of invalidity did not provide a meaningful remedy for the breach of their Charter right, given the need for immediate relief for the children. The court responded to this problem by crafting individual remedies for each claimant. For the first claimant, it made an order that the claimant’s file be returned to the person designated by the Quebec Minister of Education to immediately issue a certificate of eligibility for instruction in English for the child. In relation to the second claimant, it ordered that the claimant’s file be returned immediately to the Minister of Education for Quebec, and if appropriate, to the Administrative Tribunal of Quebec to be reviewed in light of the court’s decision and the principles established in an earlier decision of the court (see para. 51). While the court did not specifically refer to section 24(1) in making these orders, they were clearly individual remedies crafted for the benefit of the particular claimants before the court as a means of ensuring that they received the benefit of the Charter ruling notwithstanding the suspension of the declaration of invalidity.

B. Analysis

[109] I agree that the remedial framework that T.V. and the Society have proposed is the most appropriate one in this case. I have carefully considered the alternative of reading in, which would involve ordering that the definitions of Indian, Native person and Native child include Métis children, but I have decided that this would not be an appropriate remedial response. As I have discussed in these Reasons, these definitions are the foundation blocks for a comprehensive, detailed framework for the protection of children who have Indian or Native status. These terms are used throughout the CFSA in almost every area of child welfare service covered by the Act. The implications of this decision will therefore be wide-ranging for child welfare practice and litigation. Accordingly, the resolution of the constitutional problem will require careful consideration and consultation amongst legislators, policy-makers, child welfare professionals and Aboriginal groups. There are various possible means of resolving the problem, and in such circumstances, it is most appropriate to allow the Legislature the necessary time to formulate a new framework that will make the legislation compliant with section 15(1). Furthermore, while my decision has focused only on Métis children and their families, it may have broader implications for other Aboriginal children and families who do not fall within the purview of the definitions of Indian, Native person and Native child. That issue was not before me, and therefore I am not specifically deciding that point. However, this is certainly a question that the Legislature may wish to consider in light of my Reasons in this case. The proposed remedial response also has the advantage of allowing the government time to consult and work collaboratively with relevant Aboriginal groups so that they are heard. This approach promotes the goal of reconciliation and provides the best assurance that the interests, needs and wishes of Aboriginal peoples will be considered.

[110] A suspension of the declaration of invalidity is required in this case because children with Indian or Native status would be denied the significant benefits and advantages that they are afforded under the current scheme if the declaration were to take immediate effect. I am suspending the declaration of invalidity for a period of ten months, to allow the Ontario government to craft a solution. I am granting the Crown leave to bring a motion to extend this deadline in the event that more time is required to have fulsome and meaningful discussions and consultations. However, I am not allowing any such motion until June 2017 at the earliest, as I will require comprehensive evidence in support of any such motion regarding the steps that have been taken to formulate a solution. The issues at stake are extremely important to Ontario’s Métis children and families, and therefore time is of the essence. The government identified the issues that are the subject of this decision as being a high priority for Aboriginal peoples during the 2010 CFSA Review. My sincere hope is that significant work has already begun in this area, and that a comprehensive solution will be implemented sooner than August 2017.

[111] A delayed declaration of invalidity with no other remedial response would be of no assistance to E.D.V. and his family in this case, since the Protection Application will be proceeding to a hearing shortly. This is an appropriate case in which to order an individual remedy in favour of T.V., so that this family will have the benefit of the protections that are currently available to Indian and Native children. An order will issue directing that E.D.V. shall for all purposes relating to this and any subsequent child protection proceedings be treated as if he were an Indian, Native person or Native child within the meaning of the CFSA.

[112] Unfortunately, the remedial response that I have adopted does not address the interests of other Métis children who are currently before the courts in child protection proceedings across the province, or who will come before the courts between now and August 2017. However, this difficulty can be addressed by way of an application in the relevant proceeding seeking a personal remedy such as the one granted in this case.

ISSUE #5: IS THERE A REPRESENTATIVE OF THE CHILD’S MĒTIS COMMUNITY WHO SHOULD BE SERVED?

[113] The final issue to be determined in this case is whether there is a representative of E.D.V.’s community who should be served with the documents relating to this proceeding. Since I am ordering that E.D.V. be treated as a Native or Indian child, section 39(1)(4) of the CFSA requires that a member of the child’s community be served. I find based on the evidence before me that the father T.V., and by extension the child, are connected to the Eastern Woodlands Métis of Nova Scotia. In addition, I find that the appropriate representative of that community has been served with the documents relating to this proceeding, and that the community has decided not to participate or present a plan respecting E.D.V. I am also satisfied that extensive efforts have been made to determine if any other Métis organization is able and willing to be involved in this proceeding, without any response to date. Accordingly, I conclude that there are no further service requirements with respect to the child’s community.

PART IV: TERMS OF ORDER TO ISSUE

[114] On the basis of the foregoing, a final order shall issue as follows:

1. The definitions of “Indian” “Native person” and “Native child” in section 3(1) of the Child and Family Services Act are declared invalid on the basis that they infringe section 15(1) of the Charter of Rights and Freedoms.

2. The declaration of invalidity is suspended for a period of ten months, until August 11, 2017. The Attorney General of Ontario may apply by way of motion in this proceeding for an extension of this deadline no earlier than June 15, 2017 on at least