JFK Court Report: Recent Cases from Ontario

Charter Challenge to the Indian Registrar’s Unstated Paternity Policy

Gehl v Attorney-General of Canada, 2015 ONSC 3481

Lynn Gehl was denied registration of her Indian status under the Indian Act. Ms. Gehl is of indigenous (Algonquin Anishinaabe-kwe) and non-indigenous heritage. Her grandmother had Indian status but her grandfather is unnamed on her father’s birth certificate and her grandmother never revealed his identity. Where a father’s name is unstated on a birth certificate, the Indian Registrar assumes he is non-Indian. As a result, Ms. Gehl’s father, Rodney Gagnon, was deemed entitled to section 6(2) Indian status as the child of one parent with Indian status under section 6(1) of the Indian Act. Ms. Gehl’s mother was a non-Indian. When a person has one parent with section 6(2) status and one parent without status they are not entitled to status under the Indian Act, and as a result, Ms. Gehl’s application for status was denied. She protested this decision to the Indian Registrar but was again denied.

Ms. Gehl brought an action against Canada alleging this denial was discriminatory on the basis of race, gender, and family or marital status in violation of s. 15 of the Charter. The court found that the legislative history of the Indian Act suggested an effort to “correct historical injustices…even if such effort may not always have been successful”. The court upheld the Registrar’s decision, finding that there was no discrimination under s. 15 of the Charter. The court held that there was no distinction between different groups of people that could be found to be discriminatory. The Indian Act treats all applicants the same by placing an onus on the applicant to prove her entitlement to Indian status. The court further found that if there was any distinction, “unknowable paternity” is not a ground of discrimination under the Charter.

Interestingly, the court did question whether the application of AANDC’s policy requiring proof of paternity was consistent with the provisions and legislative objectives of the Indian Act in this case. The court stated that in its view, in the circumstances of Ms. Gehl’s case, her sworn statement about her belief in her grandfather’s entitlement to registration might be sufficient evidence of her entitlement. This is an important statement by the court, as it is contrary to AANDC’s current policy which is to require at a minimum, sworn statements from the mother and father of the child with unstated paternity or the mother and two close relatives of the father. These comments support the view that there are circumstances where requiring this level of proof may be unfair.

For further discussion of the unstated paternity policy and other problems with the Indian Act status regime, see our recent blog post here.