Background and Procedural History

On April 20, 2017, Justice Sharpe of the Ontario Court of Appeal (the “Court”) granted an appeal by Dr. Lynn Gehl relating to the denial of her application to be registered as an Indian under the Indian Act, RSC 1985, c I-5. This appeal followed an earlier application for Indian status in 1994, which was denied, and an unsuccessful “protest” of that denial in 1998.

On April 20, 2017, Justice Sharpe of the Ontario Court of Appeal (the “Court”) granted an appeal by Dr. Lynn Gehl relating to the denial of her application to be registered as an Indian under the Indian Act, RSC 1985, c I-5. This appeal followed an earlier application for Indian status in 1994, which was denied, and an unsuccessful “protest” of that denial in 1998.

Broadly speaking, the Indian Act creates a “two-tiered” system of status: s. 6(1) and s. 6(2) status. An individual with one s. 6(1) status parent can inherit status, regardless of the status of his or her other parent. However, according to the “second generation cutoff rule”, an individual with s. 6(2) status cannot pass his or her Indian status on to any descendants, unless their partner also has status under either s. 6(1) or 6(2). This is commonly referred to as the “two parent rule”. Dr. Gehl’s mother was a non-status woman and thus the two parent rule could potentially exclude Dr. Gehl if her father was not “full status” under s. 6(1).

Central to Dr. Gehl’s difficulty in obtaining status was uncertainty as to whether her father possessed s. 6(1) or 6(2) status or entitlement thereto. This uncertainty arose because Dr. Gehl could not determine the identity of her paternal grandfather, and, consequently, whether he had or was entitled to any form of Indian status. If her paternal grandfather had or was entitled to status, Dr. Gehl’s father’s status would fall under s. 6(1), and he could pass on s. 6(2) status to Dr. Gehl. If not, Dr. Gehl’s father’s marriage to a non-status woman would cause Dr. Gehl to be subject to the “second generation cut-off rule” and thus she would not be entitled to any status at all. Although Dr. Gehl’s paternal grandmother and certain ancestors had their entitlement to status retroactively restored in 1985 by operation of Bill C-31 (a bill adopted to bring s. 6 of the Indian Act into compliance with the right to equality guaranteed under s. 15 of the Charter), Dr. Gehl remained unable to determine her paternal grandfather’s identity and status.

The Indian Registrar had adopted a “Proof of Paternity Policy” (the “Policy”) and applied it to Dr. Gehl’s circumstances. The Policy contemplates what evidence of paternity the Registrar will accept, in the following order of preference:

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

2.Court orders declaring paternity;

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

4.If the father denies paternity, it is preferable if the mother works with the Vital Statistics Authorities to find other types of acceptable evidence to have the father’s name added to the birth certificate;

5.Where confidentiality or personal safety is a concern and none of the above is available, the Registrar may consider other evidence, such as a hearing or DNA testing.

Dr. Gehl had provided the Indian Registrar with circumstantial evidence that strongly suggested that her paternal grandfather had or was, more likely than not, entitled to Indian status. Her application was nonetheless denied by the Indian Registrar on the basis that a claimant must specifically identify an ancestor by name, in all circumstances, as a precondition to registration. The Indian Registrar therefore treated her paternal grandfather as a person without and not entitled to status, and accordingly, regarded her father as being a “s. 6(2)” status Indian. Because her mother had no status, the Indian Registrar found that Dr. Gehl was subject to the “second generation cut-off rule” and was therefore not entitled to any status.

Dr. Gehl commenced this proceeding in 2002, asking for declarations of invalidity relating to s. 6 of the Indian Act and respecting the Policy’s alleged inconsistency with s. 15 of the Charter. In 2015, the Ontario Superior Court dismissed Dr. Gehl’s claim on the basis that she had failed to prove differential treatment based on an enumerated or analogous ground as required by the s. 15 analysis as set out by the Supreme Court of Canada in Quebec (Attorney-General) v. A., 2013 SCC 5.

Decision

Justice Sharpe, writing for the Court, began his analysis by reviewing the procedural history of the matter, the legislative history of the legislative provisions at issue, the Indian Act generally, the Policy, and Dr. Gehl’s family tree specifically. Noting that Dr. Gehl had abandoned her challenge of the constitutional validity of s. 6 of the Indian Act and the “two parent rule” under s. 15, the Court narrowed its focus to a review of the Policy as an exercise of administrative discretion. In this regard, Justice Sharpe noted that the Supreme Court of Canada dictated in Doré v. Barreau du Québec, 2012 SCC 12 that “administrative decision-makers must act consistently with the values underlying the grant of discretion, including Charter values.”

Justice Sharpe observed that while the type of evidence provided by Dr. Gehl respecting her paternal grandfather’s status was circumstantial, it “was capable of supporting an inference that Dr. Gehl’s father’s situation satisfies the two-parent rule, and that he therefore had full status.” Respecting Canada’s counter-argument that the evidence did not suffice and in any event, “the determination of entitlement to registration on the basis of the entitlement of both parents is, on its face, a gender-neutral rule” Justice Sharpe disagreed, stating that “as a matter of biology and common experience, [proof of identity of parentage is] more difficult for a mother to establish than a father” and that for a variety of possible reasons, the mother of a child could be “[reluctant or unable] to disclose the identity of her child’s father.”

Justice Sharpe concluded that although a strict approach as to proof of parentage may be appropriate for circumstances arising after 1985, it was unreasonable to apply such a strict burden of proof to the circumstances of Dr. Gehl’s father, who was born “in an era when illegitimacy carried with it significant social stigma, and when Indigenous women suffered from even greater discrimination and disadvantage than they do today”. The Indian Registrar’s approach in that regard, in Justice Sharpe’s view, “[failed] to take into account and reflect both the equality-enhancing and the remedial purposes of the 1985 amendments.” Accordingly, Justice Sharpe found that remitting the matter back to the Indian Registrar was “pointless” in view of the only possible outcome, and concluded that Dr. Gehl should be granted a declaration stating that she is entitled to be registered pursuant to s. 6(2) of the Indian Act as the child of one parent with full status.

Justices Lauwers and Miller wrote separate reasons, disagreeing only with the appropriateness of the Charter approach applied by Justice Sharpe, and finding instead that it was sufficient that Dr. Gehl had “[provided] some evidence capable of giving rise to the inference that an unknown father may have had status, which constitutes sufficient proof of paternity for the purposes of the legislation, in the absence of any evidence to the contrary.” Citing the principle that cases should be resolved on non-constitutional grounds wherever possible, Justices Lauwers and Miller found the Charter analysis advanced by Justice Sharpe unnecessary in the circumstances. In the result however, Justices Lauwers and Miller agreed with Justice Sharpe: Dr. Gehl should be granted Indian status under s. 6(2) without any requirement that the matter be remitted to the Indian Registrar for redetermination