Larkman v. Canada

Indian Act - Indian status - Enfranchisement - Judicial review of Order in Council - Standard of review

The Federal Court of Appeal released a decision on December 16, 2014 in Larkman v. Canada (Attorney General), dismissing an appeal from a Federal Court decision that dismissed the appellant's judicial review application.

The appellant had applied for judicial review of a 1952 Order in Council that "enfranchised" her grandmother under the Indian Act. "Enfranchisement" under the Indian Act has been described by the Report of the Royal Commission on Aboriginal Peoples as "a euphemism for one of the most oppressive policies adopted by the Canadian government in its history of dealings with Aboriginal peoples" and a policy "aimed at assimilating Aboriginal peoples and eradicating their culture".

The form of enfranchisement at issue in this case was a policy by which Aboriginal peoples received Canadian citizenship and the right to hold land in fee simple in return for renouncing, on their own behalf and on behalf of all their living and future descendants, their legal recognition as an "Indian" under Canadian law, which includes various rights in relation to tax exemptions, membership in their Aboriginal community, their right to reside in that community, and their right to vote for the leaders of their community. The appellant's grandmother had successfully applied for this form of enfranchisement and thereby lost her "Indian" status. However, on April 17, 1985, the appellant's grandmother regained her "Indian" status and her mother obtained the right to registration as an "Indian" as a result of amendments to the Indian Act. These amendments did away with the last vestiges of enfranchisement and permitted those who lost their status through enfranchisement to regain their registration. However, these amendments did not entitle the appellant to be registered as an "Indian". 

The appellant challenged the Governor in Council's jurisdiction to issue the 1952 Order in Council that first "enfranchised" her grandmother on the basis that there was no valid application for enfranchisement. The appellant alleged that her grandmother could neither read nor write anything other than her own name at the time of her application for enfranchisement, and her grandmother did not understand the effect of the documents that were submitted under her name. The central issue on appeal was the question of fact as to whether or not the appellant's grandmother had applied to be enfranchised.

The appellant submitted that the Ontario Superior Court of Justice had already found that her grandmother did not apply to be enfranchised in R. v. Etches. However, the Federal Court of Appeal noted that the Federal Court had explicitly decided not to accept those findings of fact and the appellant failed to identify any errors in this regard. The appellant also relied on three affidavits from her grandmother, who had passed away prior to the Federal Court hearing, in which her grandmother stated that she was unable to read or write at the time of her enfranchisement application and never intended to forfeit her registration under the Indian Act. Yet the Federal Court doubted the truthfulness of the appellant's grandmother's statements in these affidavits and the Court of Appeal could find no palpable and overriding error in this inference. The Federal Court of Appeal found no basis for finding that the appellant's grandmother's enfranchisement application should not be considered her own and dismissed the appeal without costs. 

Stratas J.A. also provided a dissenting decision in this appeal, which would have allowed the appeal and declared that the appellant did not need to apply for judicial review of the 1952 Order in Council before the Federal Court. Stratas J.A.'s dissent focused primarily on the previous proceedings that had occurred in the Ontario courts in relation to this matter. In Stratas J.A.'s view, the Ontario Court of Appeal had wrongly decided that the appellant could not be registered as an "Indian" until the 1952 Order in Council was set aside by the Federal Court based on its interpretation of the 1985 Indian Act amendments that reversed the enfranchisement of the appellant's grandmother. Stratas J.A. also opined that the Federal Court should not have reached different factual and credibility conclusions from those of the Ontario Superior Court of Justice without sufficient reason. Stratas J.A. noted that the appellant had already unsuccessfully sought leave to appeal the Ontario Court of Appeal's decision to the Supreme Court of Canada, but suggested that she might ask the Supreme Court to reconsider that application for leave in conjunction with a fresh application for leave to appeal this decision of the Federal Court of Appeal.