Gehl v Canada

The Ontario Superior Court of Justice released a decision on June 2, 2015 in <a href="" title="Gehl v. Canada"><i>Gehl v. Canada (Attorney General)</i></a>, dismissing an action challenging provisions of the Indian Act and an associated policy under s. 15 of the Canadian Charter of Rights and Freedoms.


The plaintiff, Lynn Gehl, claims she is being unlawfully discriminated against contrary to enumerated and analogous grounds pursuant to s. 15 of the Canadian Charter of Rights and Freedoms and sought declaratory relief on this basis.

In 1994, Gehl applied for registration as an “Indian” with the federal Department of Indian Affairs (now Aboriginal Affairs and Northern Development Canada or AANDC). Gehl’s maternal lineage does not include any persons entitled to registration so her entitlement could only flow from her paternal side. While Gehl’s paternal grandmother was entitled to registration as an “Indian”, Gehl was unable to provide any evidence as to the identity of her paternal grandfather. As a result, the AANDC Registrar presumed that Gehl’s paternal grandfather was not entitled to registration and determined that Gehl was not entitled to registration pursuant to what is commonly known as the second generation cut-off rule. In 1998, Gehl unsuccessfully pursued a statutory “protest” of the denial of her application under the Indian Act.

In 2002, Gehl commenced this action against the Crown seeking a declaration that s. 6 of the Indian Act, which prevents her from registering as an “Indian”, is contrary to the Charter because it discriminates against applicants for registration (a) who were born out of wedlock or whose ancestors were born out of wedlock; (b) who do not know their paternity or the paternity of their ancestors; or (c) whose ancestors were never registered or recognized as “Indians” prior to 1985.

The parties elected to have this matter determined by way of a motion for summary judgment on a paper record rather than proceeding to trial.

Court’s decision

The Court traced the history of federal legislation defining who is an “Indian” since the first such statute was put in place in 1868. This history included amendments to how “illegitimate children” were to be treated under the Act, the empowerment of the Minister to issue certificates “enfranchising” individuals to whom the Act no longer applied, and removal of certain discriminatory provisions in 1985 prior to the coming into effect of the Charter.

The Court found that this legislative history suggested “a progressive movement toward determining eligibility for Indian status with reference to an awareness of competing interests and societal change”.

The Court also accepted the Crown’s submissions that Canada was faced with considerable difficulty when amending the registration process in 1985 because there was little consensus among impacted Aboriginal groups and many Aboriginal groups had concerns about the number of individuals who might become newly entitled to registration and what impact this would have on their communities and resources. There was also a strong movement among First Nations for greater autonomy and control over band membership in general and this pressure “was often at odds with the proposed imposition by Parliament of an amended statutory registration regime”. The Court found that Bill C-31, which amended the Act in 1985, was a “complex and carefully wrought compromise between a number of competing objectives”, such as ending the discrimination against women created by their loss of entitlement through marriage to non-"Indians" while providing First Nations the ability to determine their own band membership, among others.

The Court found that since Bill C-31 came into effect the registration provisions had remained essentially unchanged for almost 30 years. However, one set of amendments had been enacted as a result of the decision of the British Columbia Court of Appeal in McIvor v. Canada, which resulted in new amendments through Bill C-3 to resolve a set of discriminatory effects resulting from one aspect of the earlier amendments in 1985 called the “double mother rule”. Bill C-3 dealt with a discrete issue of Bill C-31 having enhanced the entitlement of a small group of male descendants by ensuring the same enhanced entitlement was available for another small group of individuals impacted by the “double mother rule”.

The Court also found that the 1985 changes to the Act that eliminated reference to “illegitimacy” indicated a “purpose to remove the earlier distinction between children born in wedlock and those born out of wedlock”. The Court stated that one could discern “an effort to correct historical injustices” in this complex legislative history “even if such an effort may not always have been successful”.

The Court accepted that the Registrar’s “Proof of Paternity Policy”, which requires a mother to identify a child’s father in order for that child to obtain full “Indian” status under s. 6(2) of the Act, is applied to all applicants seeking registration under the Act across the country.

The Court accepted that entitlement to registration under the Act “is not simply written law or the administration of the Indian Register”; rather, this entitlement “is the gateway to accessing benefits and rights that allow registered Indians access to the reserve and community”. Gehl’s evidence that denial of registration had a negative impact on her human dignity, feelings of self-worth, cultural identity and ability to be accepted by her people went unchallenged by the Crown. Experts engaged in this litigation had also agreed that the introduction of a presumption of Indian paternity into the legislative framework and policies would increase the population of individuals entitled to registration and the total cost of financial benefits that population could apply for, while disagreeing on the range of potential increases to population and costs.

Gehl had argued that s. 6 of the Act drew a distinction between the offspring of "'legitimate' Indians" and "illegitimate" children or those who, like her, do not know the identity of their paternal grandfathers. She characterized this as the Act imposing a more onerous burden of proof on her on the basis of family status. Gehl further argued that the denial of her registration was the direct result of the gender of her "Indian" ancestors, arguing that had her "Indian" lineage been male then the previous generations would have qualified for status under s. 6(1) of the Act and she would have been entitled to at least registration under s. 6(2) if not s. 6(1) herself.

The Crown, in turn, argued that it was not race, gender, family or marital status or illegitimacy that barred Gehl’s application but rather it was the unknowable paternity of her father that the alleged discrimination flowed from. The Crown argued that unknowable paternity is not an analogous ground and does not engage Charter considerations.

The Court agreed that unknowable paternity was not an analogous ground and held that the impugned provisions of the Act treated all applicants the same in placing an onus on them to establish their entitlement to registration. As a result, the Court held that the first step of the s. 15 Charter analysis was not met as Gehl failed to prove differential treatment based on an enumerated or analogous ground. The Court went further to state that even had it found such a distinction Gehl could not satisfy the second step by convincing the Court that this distinction created a disadvantage by perpetuating a prejudice or stereotype. As a result, the Court found it unnecessary to consider the issue of justification under s. 1 of the Charter or the appropriate remedy.

However, the Court did proceed to consider whether AANDC policy’s application was wholly consistent with the provisions and legislative objectives of the Act in terms of statutory interpretation. The Court opined that “[r]equiring anything more from Gehl than her statutory declaration attesting to her lack of any reasonable basis for belief that the father of her father would not have been entitled to registration may go beyond the requirements of the legislation”. In the Court’s view, such a statement from Gehl could be potentially satisfactory evidence as it was no less probative that other circumstantial details that the Registrar could rely upon under AANDC policy. The Court stated that such an approach “could conceivably prevent injustice or unfairness in dealing with cases such as Gehl’s” and would be consistent with “the history and objectives of the legislation which must include cultural preservation and vitality”.