The Ontario Court of Appeal has released its decision in Gehl v Canada, 2017 ONCA 319, finding that the Indian Registrar’s Proof of Paternity Policy was applied unreasonably. This case is a positive development for those making applications for Indian registration based on historical information where paternity of an ancestor is unknown and, more broadly, may encourage the Indian Registrar to revise its Unstated Paternity Policy.
Lynn Gehl had applied for registration as an Indian under s. 6 of the Indian Act (“status”) and been denied by the Indian Registrar on the basis that she had not provided sufficient evidence to prove that her grandfather was an Indian, which along with the entitlement of her grandmother and father, would entitle her to status.
Dr. Gehl sought declarations from the Court, among others, that she was entitled to Indian Status under s. 6(1)(a) of the Indian Act and that section 6 of the Indian Act, the Indian Registrar’s Proof of Paternity Policy (“the Policy”), which requires certain kinds of proof of a person’s ancestry in an application for Indian registration, and the Registrar’s decision in her case, were contrary to the guarantee of equality in s. 15(1) of the Charter because they discriminate against descendants of illegitimate children of Indian women on the basis of sex.
There are numerous reasons why it might be difficult to establish paternity that is unstated on a birth certificate. These might include: difficulty identifying the father or any witnesses or documentation to attest to his identity, particularly in historical cases; circumstances in which the mother does not want to identify or have any contact with the father such as sexual assault, incest or domestic abuse; denial of paternity by the father; death of the father and simple lack of knowledge of the father’s identity. This acts as a barrier to the registration of children of single women with Indian status that works in unfair ways to exclude individuals based on the circumstances or decisions of their parents. As a result, children of single women with status are disproportionately denied the benefits of status relative to single Indian men, even where their children have the same level of status Indian ancestry. This Policy is one of many examples of how Canada’s legal and policy approach to status continues to discriminate against women.
On a motion for summary judgment at the Superior Court of Justice, Stewart J. found that s. 6 of the Indian Act and the Policy treated all applicants the same by requiring that they establish the Indian status of their parents. She found that “unknowable paternity” was what was preventing Dr. Gehl from registration as an Indian, and this was not a ground of discrimination under s. 15 of the Charter.
Dr. Gehl appealed to the Ontario Court of Appeal. On appeal Dr. Gehl abandoned her challenge to s. 6 of the Indian Act and focused her challenge on the Policy and the Registrar’s decision.
The Court characterized central issue in this case as whether the Registrar should accept evidence of the kind submitted by Dr. Gehl as to the paternity of her grandfather as sufficient to establish entitlement to status. Both the majority (Lauwers J.A. and Miller JJ.A.) and minority (Sharpe J.A.) decisions agreed that the Registrar’s decision to deny Dr. Gehl status was unreasonable and declared her entitled to status under s. 6(2) of the Indian Act. However, they differed in how they arrived at this result. Sharpe J.A. took a Charter values approach and found that the Registrar’s application of the Policy to Dr. Gehl was unreasonable because it failed to take into account the equality-enhancing values and remedial objectives of the 1985 amendments to the Indian Act.
Lauwers J.A. and Miller JJ.A. disagreed with Sharpe J.A.’s use of a Charter values analysis. They held that a Charter values analysis should be used sparingly because it risks pre-empting a Charter rights analysis, it can be too subjective, and there is a lack of clarity in the relationship between Charter values and between Charter values and Charter rights, among other problems, in addition, it was unnecessary to decide the issues in this case.
Instead, the majority held that the Registrar’s decision could be overturned on administrative law principles. The majority ruled that the Registrar’s decision was not owed any deference and determined that the Registrar acted unreasonably in denying Dr. Gehl’s application. They held that the Policy failed to take into account what was sufficient circumstantial evidence that her grandfather was, more likely than not, entitled to registration such as:
- that her father was born on reserve;
- her father’s godparents were members of the community;
- her father resided on reserve during his childhood; and
- there was no record of him being denied participation in community events.
The majority found that the Registrar’s demand for further evidence was an unreasonable one. In the context of a historical claim for status, the Court said, it is sufficient for the claimant to provide some evidence giving rise to the inference that the unknown father has status, as long as there is no evidence to the contrary.
Impact of the Case
While Sharpe J.A. noted that where the circumstances of paternity arise after 1985, it still may be reasonable to hold people to a relatively strict burden of proving paternity, this case should encourage the Indian Registrar to, at a minimum, adopt a more flexible policy about the kinds of evidence that may establish paternity in historical cases. Importantly, the majority also noted that it is not the exact identity of a father that must be established, but only that, more likely than not, he was entitled to Indian registration. Currently, the Registrar requires evidence such as multiple sworn statements attesting to the identity, and not merely the entitlement to Indian status, of unstated fathers. Ideally (although not required by this judgment), barring a change to the law itself, the Registrar would reverse its policy to return to the pre-1985 approach that Indian paternity is presumed unless evidence to the contrary is provided. Such an approach would be more consistent with Charter values of equality by providing children of single women with Indian status a chance at establishing Indian registration that is more comparable to that of the children of single Indian men, recognizing the effects of historical and contemporary discrimination that Indigenous women continue to face.