CITATION: Petitpas v. Attorney General of Canada, 2026 ONSC 4375

COURT FILE Nos.: CV-18-00590222-0000, CV-21-00670390-0000

DATE: 20260728

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: RICHARD PETITPAS, Appellant/Applicant

AND:

THE ATTORNEY GENERAL OF CANADA, Respondent

BEFORE: Schabas J.

COUNSEL: Nicolas M. Rouleau, for the Appellant/Applicant

Nur Muhammed-Ally and Rhiannon McNamara, for the Respondent

HEARD: July 2, 2026

reasons for judgMENT

[1] The Appellant, Richard Petitpas, appeals the decision of the Indian Registrar, dated 19 July 2017, refusing to register him as an “Indian” under the Indian Act, R.S.C. 1985, c 1-5. Mr. Petitpas submits that the Registrar erred in law in refusing his registration and asks this Court to reverse the Registrar's decision and order that he be registered.

[2] In the alternative, Mr. Petitpas has applied to this Court in a separate application heard at the same time as his appeal, to obtain a declaration that s. 6 of the Indian Act breaches s. 15 of the Canadian Charter of Rights and Freedoms, is not saved by s. 1 of the Charter, and therefore is of no force and effect. Mr. Petitpas asks that such a declaration be suspended for six months to permit Parliament to enact a non-discriminatory replacement for s. 6 of the Indian Act.

[3] For the reasons that follow the appeal and the application are dismissed.

Background

The Petitpas family history

[4] Mr. Petitpas is a direct patrilineal descendant and great-great-great-great-great grandson of Barthélemy Petitpas, a Mi'kmaq person born in 1686, who resided at the Sauvages de Mouscoudabouet settlement in what was then Acadia. Barthélemy was counted as a Mi'kmaq in the November 1708 French Indian Census of Acadia. Following the Treaty of Utrecht, Acadia was ceded by France to Great Britain and became Nova Scotia in 1713.

[5] Mr. Petitipas has carefully researched his family history, aided by recent steps taken by the French and Canadian governments to make many historical records available online. For purposes of these court proceedings, the respondent does not contest the family history presented by Mr. Petitpas.[1]

[6] Following the Treaty of Utrecht, Barthélemy and some of his family members were captured, exiled or forced to flee their homes and lands because of their previous alliances with either the French or the British. Barthélemy moved to Île Royale (Cape Breton Island) which remained under French jurisdiction until 1763. He died as a prisoner of war in Boston in 1747 after being captured by the British. Three of Barthélemy’s brothers were exiled to France by the French, apparently to prevent them from having contact with the British.

[7] Barthélemy’s son, Guillaume, was born on Île Royale and later moved to St. Pierre and Miquelon, which remains under French jurisdiction today. Guillaume’s son, Francois, was born on St. Pierre and Miquelon in 1770 but by 1815 had moved to the Îles-de-la-Madeleine which, following the passage of the Quebec Act of 1774, became part of Quebec which by then was under British control.

[8] Francois’ descendants, and Mr. Petitpas’ paternal line thereafter, were all born and resided in the Îles-de-la-Madeleine. Mr. Petitpas’ father, Ulric, at some point moved to Toronto which is where Mr. Petitpas was born in 1949.

[9] According to Mr. Petitpas, his father, who was uneducated and illiterate, “conveyed oral history to his family that our ancestors were discriminated against and persecuted, exiled, and compelled to flee from their tribe and ancestral home.” Ulric “explained to his family that this oral history had been handed down in our family through the generations, and that this discrimination and persecution separated my ancestors from their tribe.”

[10] There is no evidence that any of Mr. Petitpas’ ancestors since Barthélemy were formally registered or identified as “Indians”[2], nor is there evidence that any of them were associated with any Indigenous group or lived on lands reserved for bands. Mr. Petitpas has deposed that, while he has no direct knowledge, he believes that there were three reasons for why his ancestors did not register under the Indian Act: “(1) lack of access, at the relevant points in time, to historical documents proving our family's ancestral lineage; (2) illiteracy and lack of education; and (3) reluctance to draw public attention to their indigenous identity based on historical persecution and contemporary discrimination.”

[11] Mr. Petitpas states that, “like all indigenous peoples”, he “has been affected by the legacy of stereotyping and prejudice”, and that because of his lack of status he is “less able to participate in and protect my relationship to my ancestral Mi’kmaq roots and homeland.” He has been “assimilated into mainstream, colonized culture” living in French and English communities. However, he states that his daughters have “attempted to reconnect with our ancestry”, including studying and working with Indigenous peoples. Mr. Petitpas’ sister is the Chair and Director of the Mi'kmaw Language and Culture Programs with the Mi'kmaw Heritage Research and Restoration Association (MHRRA), a not-for-profit society based in Nova Scotia, and she has been instrumental in reviving the Mi'kmaw language.

[12] Mr. Petitpas states that registration “represents my right to belong to and be recognized as a member of an Indian community, and to participate in its life and governance.” It would also entitle him to pass on Indian status to his children, “which is of significant spiritual and cultural value.”

Mr. Petitpas’ application to the Registrar

[13] On June 1, 2011, Mr. Petitpas applied for registration as an Indian under s. 6(1)(a) of the Indian Act. He provided the historical documentation showing him to be a direct descendant of Barthélemy.

[14] By letter dated 4 July 2012, the Indian Registrar rejected Mr. Petitpas’ application. The Registrar gave two reasons. First, the Registrar was unable to identify any of Mr. Petitpas’ relatives “were registered as Indians” or were members of a band in accordance with the Indian Act. Second, the Registrar was unable to confirm that any of Mr. Petitpas’ ancestors “were entitled to be registered as Indians.” An earlier letter from the Registrar noted that “the federal government adopted laws governing who is entitled to registration and band membership only since the year 1868. Consequently, it is impossible for me to confirm that your ancestors who were born and died before 1868 were recognized as Indians.”

[15] Mr. Petitpas submitted protests under s. 14.2 of the Indian Act, arguing that the Registrar misapplied s. 6(1) by requiring him to show that his ancestors had been registered or were entitled to be registered, and that the Registrar erred in finding that his ancestors were not entitled to registration when they were direct descendants of Barthélemy.

[16] The protests were dismissed by the Registrar by letter dated July 19, 2017, addressed to Mr. Petitpas’ counsel at Aboriginal Legal Services of Toronto. It reiterated the position taken on the application stating:

I refer to points eight through fifteen of your letter and would like to clarify that the federal government adopted laws governing who is entitled to registration and band membership only since the year 1868. Consequently, it is impossible for me to confirm that your client's ancestors who were born and died before 1868 were recognized as Indians. As I have not confirmed that any of your client’s ancestors were entitled to be registered as Indians, I regret that I am not able to confirm his eligibility for registration under the Indian Act.

[17] Mr. Petitpas appealed that decision to this Court pursuant to s. 14.3 of the Indian Act. In that notice of appeal Mr Petitpas also sought a declaration that s. 6 of the Indian Act breached s. 15 of the Charter. Subsequently, Mr. Petitpas commenced a separate application seeking Charter relief to be heard together with the appeal.[3]

Issues

[18] The appeal and application raise two issues:

(i) whether the Registrar erred in law by failing to grant Mr. Petitpas’ application for Indian status under s. 6(1)(a) of the Indian Act; and

(ii) in the alternative, if the Registrar's interpretation of s. 6(1)(a) of the Indian Act is correct, whether the section is unconstitutional because it discriminates against Indigenous people whose ancestors did not (or could not) register as Indians.

[19] The parties agree that the appellate standard of review applies to the statutory appeal, which is addressed in the first issue. Questions of fact and mixed fact and law are reviewed on the standard of palpable and overriding error, and questions of law, including questions of statutory interpretation, are to be reviewed on the standard of correctness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 37.

Issue 1: Statutory interpretation

The applicable statutes

[20] The path to entitlement for Mr. Petitpas begins with s. 6(1)(a) of the Indian Act, which states:

Persons entitled to be registered

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

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

[21] April 17, 1985 is an important date in Canadian legal history as it is when s. 15 of the Charter came into effect, having been delayed three years from the coming into force of the rest of the Charter in order to provide governments the opportunity to amend legislation that may not have complied with s. 15. This resulted in what have been described as “equality-enhancing” amendments to the Indian Act in 1985: Gehl v. Canada (Attorney General), 2017 ONCA 319, 138 O.R. (3d) 52, at para. 52.

[22] Pursuant to s. 6(1)(a) of the Indian Act, a person was “registered or entitled to be registered immediately before April 17, 1985” if that person satisfied one of the criteria in s. 11(1) of the Indian Act, RSC 1970, c I-5 (“1970 Indian Act”). The relevant provisions of s. 11(1) of the 1970 Indian Act state:

11(1) ... a person is entitled to be registered if that person

(a) on the 26th day of May 1874 was, for the purposes of An Act providing for the organization of the Department of the Secretary of State of Canada, and for the management of Indian and Ordinance Lands, being chapter 42 of the Statutes of Canada, 1868, as amended by section 6 of chapter 6 of the Statutes of Canada, 1869, and section 8 of chapter 21 of the Statutes of Canada, 1874, considered to be entitled to hold, use or enjoy the lands and other immoveable property belonging to or appropriated to the use of the various tribes, bands or bodies of Indians in Canada;

(c) is a male person who is a direct descendant in the male line of a male person described in paragraph (a) ...

[23] The effect of s. 11(1)(a) and (c) is that Mr. Petitpas must be found to be a direct descendant in the male line of a male ancestor who was entitled to registration under subsection 11(a). To be entitled under subsection 11(1)(a), one must look to the law in effect as of May 26, 1874. For Mr. Petitpas’ circumstances, the relevant provision is s. 15 of the 1868 Act cited in s. 11(1)(a): An Act providing for the organization of the Department of the Secretary of State of Canada, S.C. 1868, c. 42 (the “1868 Indian Act”). This Act was passed shortly after Confederation and took a broad view of who was an “Indian”: Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, [2016] 1 S.C.R. 99, at paras. 20-24. Section 15 stated:

15. For the purpose of determining what persons are entitled to hold, use or enjoy the lands and other immoveable property belonging to or appropriated to the use of the various tribes, bands or bodies of Indians in Canada, the following persons and classes of persons, and none other, shall be considered as Indians belonging to the tribe, band or body of Indians interested in any such lands or immoveable property:

Firstly. All persons of Indian blood, reputed to belong to the particular tribe, band or body of Indians interested in such lands or immoveable property, and their descendants;

Secondly. All persons residing among such Indians, whose parents were or are, or either of them was or is, descended on either side from Indians or an Indian reputed to belong to the particular tribe, band or body of Indians interested in such lands or immoveable property, and the descendants of all such persons; And

Thirdly. All women lawfully married to any of the persons included in the several classes hereinbefore designated; the children issue of such marriages, and their descendants.

[24] Only the first category is relevant to this case. This is where the disagreement lies between the parties.

The positions of the parties

[25] Mr. Petitpas submits that his ancestors alive in 1874 – his great-great grandfather Jean-Baptiste (1813-1895), his great-grandfather Valentin (1841-1894) and his grandfather Hyppolite (1872-1946) were all entitled to be registered in 1874 as they were persons of “Indian blood, reputed to belong” to a particular tribe, directly descended from Barthélemy Petitpas who was registered as a Mi’kmaq in the Acadian census of 1708.

[26] The government, on the other hand, submits that s. 15 of the 1868 Indian Act does not apply retroactively, and that the reference to “descendants” is to the descendants of individuals alive in 1874. While Mr. Petitpas’ ancestors alive in 1874 may have been of “Indian blood”, they were not “reputed to belong” to a “particular tribe, band or body of Indians interested in such lands or immoveable property.”

The 1868 Indian Act is not retroactive

[27] The Registrar’s decisions effectively treated s. 15 of the 1868 Indian Act to apply only to those who were alive in 1874, and their descendants, and not retroactively. Counsel for Mr. Petitpas submits that this is incorrect as the 1868 Indian Act does not say “if alive at the time” and therefore must include anyone who has met the criteria in the past. In effect, he argues that as Barthélemy was of “Indian blood” and was recognized in the 1708 census as an Indian, and therefore was “reputed to belong” to a particular body of Indians, it follows that his descendants, under the 1868 Indian Act, were entitled to be registered as Indians.

[28] I do not accept this argument. In my view, the Registrar’s interpretation is correct. Statutes speak in the present tense. They do not need to say “if alive at the time” to avoid being applied retroactively; if that were the case, a great many statutes would contain that phrase.

[29] A retroactive statute “is one that operates as of a time prior to its enactment”: Benner v. Canada (Secretary of State), 1997 CanLII 376 (SCC), [1997] 1 S.C.R. 358 (S.C.C.), at para. 39.

[30] Parliament does not intend to legislate retroactively “unless such a construction is expressly, or by necessary implication, required by the language of the legislation”: St. Jean v. Cheung, 2008 ONCA 815, 94 O.R. (3d) 359, at para. 41. A relevant example of such legislation is found in the 1985 amendments to the Indian Act, which received royal assent on June 28, 1985, but some provisions, including s. 4(2.1) and s. 6(1)(a), were effectively backdated to April 17, 1985.

[31] In my view, it follows that “all persons” in the opening words of the first point in s. 15 of the 1868 Indian Act refers to persons alive at the time, and not ancestors of those people. The reference to “descendants” in the closing words refers to the descendants of those persons alive when the 1868 Indian Act applied. The effect of ss. 11(1)(a) and (c) of the 1970 Indian Act is to provide that male descendants of persons alive and eligible to register in 1874, in accordance with the 1868 Indian Act, are eligible for registration.

Mr. Petitpas’ ancestors alive in 1874 were not entitled to be registered

[32] For purposes of this proceeding, the respondent does not contest the evidence that Mr. Petitpas’ ancestors alive in 1874 – his great-great grandfather Jean-Baptiste, his great-grandfather Valentin, and his grandfather Hyppolite, were directly descended from Barthélemy and therefore were persons of “Indian blood.” Nor does the respondent contest that Mr. Petitpas is a direct male descendant of them.

[33] However, the 1868 Indian Act also requires that those ancestors were, in 1874, “reputed to belong to the particular tribe, band or body of Indians interested in such lands or immoveable property”: see, e.g., Rex v. Martin, 1917 CanLII 1093 (Ont. S.C.) at p. 341, aff’d, 1917 CanLII 1094 (Ont. S.C.A.D.); Lecaine v. Registrar of Indian Affairs, 2013 SKQB 254, 424 Sask. R. 306, at para. 22 (aff'd on appeal 2015 SKCA 42); Johnson v. Canada (Aboriginal Affairs and Northern Development), 2014 BCSC 352, [2014] B.C.W.L.D. 2313, at para. 13; D.V. v. Canada (Attorney General), 2026 ONSC 3316, at para. 83-87; Bay v Registrar of Indians (1976), 1976 CanLII 2640 (FCTTD), 9 C.N.L.C. 36 (F.C.) at p. 39.

[34] Courts have considered a number of factors in deciding whether a person was “reputed to belong” to a particular “tribe, band or body of Indians.” These factors include:

• Whether or not the person’s parents were recognized as members of the band: Lecaine v. Registrar of Indian Affairs, at para. 52; Johnson v. Canada (Aboriginal Affairs and Northern Development), at para. 21; D.V. v. Canada (Attorney General), at para. 83-87; Mathias v. Canada, 2000 CanLII 16282, at paras. 272-324; Regina v. Howson, 1894 CanLII 242; Rex v. Tronson, 1931 CanLII 839 (B.C. C.O.C.T.).

• Whether or not the person resided on the reserve: Johnson, at para. 21; D.V. v. Canada, at para. 83, Mathias v. Canada, at paras. 272-324; Regina v. Howson.

• The person’s association/membership with and/or recognition/acceptance by a band: D.V. v. Canada (Attorney General), at para. 83-87; Mathias v. Canada, at paras. 272-324; Regina v. Howson; Rex v. Tronson.

• The person’s connection to a band through baptismal, burial and marriage records: Mathias v. Canada, at paras. 272-324.

• Whether the census identifies the person as a band member: Mathias v. Canada, at paras. 272-324; Rex v. Tronson, 1931 CanLII 839 (B.C. C.O.C.T.).

• Whether or not the person signed petitions or voted on Band Council Resolutions presented by the Band: Mathias v. Canada, at paras. 272-324.

• Whether government officials identify the person as a band member: Rex v. Tronson.

• Whether or not the person received treaty money: Regina v. Howson.

• Whether or not the person followed an “Indian” mode of life: Regina v. Howson.

• Whether or not the person is included on the provincial voting list: Regina v. Howson.

[35] These factors are all directed towards determining whether a person, with “Indian blood”, is in fact connected and has some sense of belonging to a particular tribe, band or other body of “Indians” who have a link to particular lands. The test is not a high one – merely repute is sufficient - but it requires some tangible evidence of a recognized, ongoing connection to an Indigenous community. Self-identification is insufficient: Rex v. Martin at p. 341.

[36] None of the factors apply to Mr. Petitpas’s ancestors who were alive in 1874. There is no evidence that Jean-Baptiste’s father was recognized as a member of or in any way associated with a band; indeed, the evidence suggests he was not, as he too had been born and lived on Iles-de-la-Madeleine. Nor is there any evidence to support any of the other factors recognized by previous cases.

[37] Counsel for Mr. Petitpas submits, nevertheless, that the section should be given a broad interpretation, consistent with the “equality enhancing and remedial purposes” of the 1985 amendments. He notes, as well, that the 1868 Indian Act provided a broad definition of “Indian”, which included non-status and “half-breeds” such as Metis, and persons who did not necessarily live on reserves. Only in later legislation was a more restrictive definition adopted: see, e.g., An Act to Amend and Consolidate the Laws Respecting Indians, 1876 (U.K.), 39 Vict., Cap. 18, which in s. 3 defined “Indian” to mean simply “any male person of Indian blood reputed to belong to a particular band”, substituting “all persons” with men, eliminating descendants and, in subsection (e), excluding Métis in Manitoba: Stevenson, “Section 91(24) and Canada's Legislative Jurisdiction with Respect to the Métis” (2002) 1-1 Indigenous L.J. 237 at 252.

[38] These points, while interesting, do not support the appellant’s position. In effect, to find that Mr. Petitpas’ ancestors in 1874 were entitled to be registered as Indians would require ignoring the requirement that they be “reputed to belong” to a “particular tribe, band or body of Indians.”

[39] Accordingly, the Registrar was correct in finding that he could not confirm that any of Mr. Petitpas’ ancestors in 1874 were entitled to be registered as Indians. The appeal is dismissed.

Issue 2: The Charter application

[40] Mr. Petitpas argues that s. 6 of the Indian Act discriminates, contrary to s. 15(1) of the Charter, “because it determines the ability of Indigenous people to register as Indians on the arbitrary basis of whether their Indigenous ancestors were recognized as Indians by the government at a specific point in time.”

[41] Section 15 of the Charter states:

15 (1) Every individual is equal before and under the law and has the right to the equal protection and equal 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.

[42] Mr. Petitpas does not claim that he is discriminated against because he is Indigenous, although he quite properly points out that s. 15 of the Charter aims to protect, among others, Indigenous peoples from discrimination. In this case, however, the discrimination asserted by Mr. Petitpas relates to his ancestry. The effect of s. 6 of the Indian Act, which looks back to the 1868 Indian Act and the situation of a person’s ancestors in 1874, Mr. Petitpas submits, creates an “apparent and immediate” distinction under the law based on ancestry.

[43] Not all distinctions give rise to the application of s. 15 of the Charter. To establish a prima facie violation of s. 15, Mr. Petitpas must demonstrate that the legislation creates a distinction based on a ground enumerated in s. 15 itself, or an “analogous ground” derived from a “personal characteristic that is immutable or changeable only at unacceptable cost to personal identity.” This characteristic should also be shown to impact a “discrete and insular minority” and/or be the cause of historic disadvantage and stereotypical decisions: Corbiere v. Canada (Minister of Indian and Northern Affairs), 1999 CanLII 687 (SCC), [1999] 2 S.C.R. 203 (S.C.C.), at para. 13.

[44] Mr. Petitpas seeks to have the court recognize “ancestry status” as an analogous ground.

[45] Examples of recognized analogous grounds include sexual orientation, marital status and citizenship: Withler v. Canada, 2011 SCC 12, [2011] 1 S.C.R. 396, at para. 33. In Corbiere, being a member of an Indian band who lives off-reserve was recognized as an analogous ground. L’Heureux-Dube J. noted, at para. 62, that “band members living off-reserve have generally experienced disadvantage, stereotyping, and prejudice, and form part of a ‘discrete and insular minority’ defined by race and place of residence.”

[46] Mr. Petitpas points out that the status of one’s ancestors is not something that can be changed. Mr. Petitpas also submits that Indigenous applicants for registration whose ancestors were not recognized as “Indians” by the government, like him, are historically disadvantaged because that lack of recognition “reduces their sense of belonging and recognition.”

[47] The question of who is an “Indian” is subject to the jurisdiction of the federal government pursuant to s. 91(24) of the Constitution Act, 1867, and has been a matter of debate and has evolved over time: Landry v. Abenakis of Wolinak First Nation, 2021 FCA 197, at para. 84; Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, [2016] 1 S.C.R. 99.

[48] Similarly, who qualifies for registration has been an issue for Parliament since Confederation and has evolved since the 1868 Indian Act. This is seen in the amendments to s. 6 in 1985 and, more recently, amendments passed in 2017: An Act to amend the Indian Act, S.C. 2017, c. 25.

[49] I am not persuaded that “ancestry status” should be recognized as an analogous ground. Although an immutable characteristic, there is no evidence that ancestry status alone, or the kind asserted by Mr. Petitpas, has led, historically, to stereotypical and discriminatory decisions or treatment leading to disadvantage against a “discrete and insular minority” of persons in Mr. Petitpas’ situation. As has been noted elsewhere, “there are countless people who have some Indian ancestry but are not registered under the Indian Act”: LeBouthillier v. Canada (Attorney General), 2010 NBQB 401, 366 N.B.R. (2d) 395, at para. 13.

[50] Since 1868, Parliament has drawn lines as to who is entitled to registration and the benefits and limitations which flow from it. The requirements in s. 6, when amended in 1985, followed extensive consultation with First Nations, Indigenous groups and others. Section 6(1)(a) preserved vested rights and attempted to eliminate sex-based discrimination: McIvor v. Canada (Registrar of Indian and Northern Affairs), 2009 BCCA 153, 91 B.C.L.R. (4^th) 1, at para. 129. The limits on entitlement to registration have always been a concern, because expanding the pool of those eligible might overwhelm resources available to bands and might dilute the cultural integrity of existing First Nations.

[51] In McIvor, the B.C. Court of Appeal dealt with a distinction in status based on matrilineal and patrilineal descent and considered whether the claim was about an ancestor who was the victim of discrimination, or whether the complaint was that the applicant was discriminated against because of their lineage. Groberman J.A. seemed to be skeptical of both approaches. Regarding the retroactive claim he stated at para. 97:

It is not apparent to me that a person who is, for example, the fifth generation descendant of a woman who lost status in the 1870s can make a claim under s. 15 of the Charter. First, the discrimination giving rise to the claim long pre-dates the Charter. Second, such a remote descendant of a person who suffered discrimination would not appear to have standing to raise a claim.

[52] As to whether one’s “matrilineal or patrilineal descent” qualifies as an analogous ground, Groberman J.A. stated at para. 99:

I regard the proposition that s. 15 extends to all discrimination based on pre-Charter matrilineal or patrilineal descent to be a dubious one. All persons are persons of both matrilineal and patrilineal descent, in that we all have an equal number of male and female forebears. The usual indicators of an analogous ground of discrimination – historic disadvantage of a particular group, stereotyping, insularity, etc. – cannot be sensibly applied when everyone partakes of the characteristic allegedly forming the basis of discrimination.

[53] The respondent argues that Mr. Petitpas’ does not have standing to assert a discrimination claim as he is complaining about discrimination against his ancestors. As the Charter is not retroactive, the respondent asserts that s. 15 does not apply to laws in force in 1868 and 1874. I do not agree. Mr. Petitpas’ complaint is with s. 6(1)(a) of the current Indian Act, which requires looking back to prior laws and considering their impact on Mr. Petitpas today, when the Charter is in effect. He is not seeking a different result or remedy for his ancestors, but for himself. It is his claim of being discriminated against based on his lineage.

[54] Mr. Petitpas may have a direct patrilineal connection to Barthélemy who was identified in the Acadian Indian Census of 1714, but Barthélemy’s descendants became removed from that community and lost all connection to it for centuries. To the extent that was due to historic mistreatment of Indigenous peoples, I share Groberman J.A.’s view that such an historic wrong cannot be corrected by the Charter.

[55] Further, as was the case in McIvor, there is no evidence that Mr. Petitpas is part of a “discrete and insular minority”, defined by the common characteristic of not being entitled to register because of ancestry, who have suffered discrimination or disadvantage because of that lack of entitlement. This characteristic could include a great many people with any amount of Indigenous ancestry, and highlights why “ancestry status” alone is problematic as an analogous ground. As Groberman J.A. observed in McIvor, where the claim also arose from alleged discrimination pre-Charter, “[t]he usual indicators of an analogous ground of discrimination – historic disadvantage of a particular group, stereotyping, insularity, etc. – cannot be sensibly applied when everyone partakes of the characteristic allegedly forming the basis of discrimination”: at para. 99.

[56] The Indian Act creates distinctions in entitlement to register, but the distinctions do not impose a burden or deny a benefit “in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage”: R. v. Sharma, 2022 SCC 39, [2022] 3 S.C.R. 147, at para. 28. There is no evidence of historical disadvantage experienced by Mr. Petitpas nor of those similarly situated to Mr. Petitpas, nor is there evidence that his lack of entitlement to registration exacerbates any present-day disadvantage.

[57] When Canada was created it passed a law in 1868 to determine registration for benefits for “Indians” which necessarily drew lines and impacted the descendants of those alive at the time. The 1868 Indian Act, and the current Indian Act, reflect choices by Parliament regarding registration. In fact, the 1868 requirements were seen as being more inclusive than subsequent amendments which narrowed the scope for entitlement to register.

[58] Many people have “Indian blood”, to use the term in the 1868 Indian Act, but Parliament required, and requires, more for registration. The “reputed to belong” requirement ensured, and ensures, that the benefits of registration flow to those who continue to have connections and a sense of belonging to their Indigenous community. That requirement, or distinction, is not arbitrary or discriminatory.

[59] The present case is simply not the type of situation to which s. 15 is meant to apply. As Abella J. stated in Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548, at para. 17:

This Court has repeatedly confirmed that s. 15 protects substantive equality. It is an approach which recognizes that persistent systemic disadvantages have operated to limit the opportunities available to members of certain groups in society and seeks to prevent conduct that perpetuates those disadvantages. [Citations omitted.]

[60] As Mr. Petitpas has failed to establish that s. 6(1)(a) discriminates based on an enumerated or analogous ground, his right under s. 15(1) of the Charter to “the equal protection and equal benefit of the law without discrimination” has not been infringed.

[61] In these circumstances it is unnecessary to consider s. 1 of the Charter. However, had I concluded that s. 6(1)(a) of the Indian Act violated s. 15(1) of the Charter, I would have found it to be a reasonable limit under s. 1. The pressing and substantial objective is to ensure that statutory benefits flow to Indigenous peoples. There is a rational connection between the law and its objectives by defining who is entitled to registration. The law minimally impairs the rights of Indigenous people whose connection to their community was lost centuries ago. Section 6(1)(a) vested existing rights but did not expand them. This ensures that resources and benefits flow to those who are clearly entitled and are not diluted by also being provided to persons with remote Indigenous ancestry and little or no connection to a particular “tribe, band or body.”

[62] Accordingly, the Charter application is dismissed.

Conclusion

[63] The appeal from the decision of the Registrar is dismissed. The Charter application is also dismissed. The respondent does not seek costs, and no costs are ordered.

Paul B. Schabas J.

Date: July 28, 2026

1Had I allowed the appeal, the respondent requested that the matter be returned to the Registrar to make any necessary findings of fact.

2Like the parties, I use the term “Indian” to refer to Indigenous persons who may be entitled to registration under the Indian Act. I recognize that the term is no longer generally used aside from its continued presence in federal legislation such as the Indian Act, which is what this case is about.

3This separate proceeding likely arose due to the holding in Tuplin v. Indian & Northern Affairs Canada, 2001 PESCTD 89, 207 Nfld & PEIR 292 at para. 24, where it was stated that a statutory appeal pursuant to s. 14.3 of the Indian Act is not the appropriate proceeding in which to consider the constitutionality of the enabling legislation. In any event, the respondent did not take issue with Mr. Petitpas raising the Charter when it had not been raised before the Registrar, or with hearing the application together with the appeal.