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ABORIGINAL STATUS AND RIGHTS - Aboriginal status - Aboriginal persons - Indians - Registration - Entitlement to status - Aboriginal descent or ancestry - Practice and procedure - Appeals

Monday, May 01, 2017 @ 7:18 AM  


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Appeal by the plaintiff, Gehl, from dismissal of her action against the federal Crown. The plaintiff's paternal grandmother became a status Indian following 1985 amendments repealing discriminatory provisions of the Indian Act. Thereafter, the plaintiff applied to register as an Indian. The plaintiff alleged she was denied Indian status as a direct result of the gender of her Indian ancestors. Her mother's lineage did not include any persons entitled to be registered and she was unable to provide evidence as to the identity of her paternal grandfather. The plaintiff submitted she was denied benefits and discriminated against based on race, gender and the analogous grounds of family or marital status. The plaintiff submitted that s. 6 of the Indian Act and the Registrar's proof of paternity policy breached her s. 15 Charter rights by drawing a distinction between offspring of illegitimate children who did not know the identity of their paternal grandfathers and the offspring of legitimate Indians. The trial judge found that the denial of Indian status did not turn on race, gender, family or marital status or illegitimacy. Rather, it was the unknowable identity of the plaintiff's paternal grandfather that prevented her from proving his entitlement to status. Unknowable paternity was not an analogous ground of discrimination and did not engage Charter considerations. The proof of identity policy did not differentiate between legitimate and illegitimate individuals. No differential treatment contrary to s. 15 of the Charter was established and the plaintiff's action was dismissed. The plaintiff appealed.

HELD: Appeal allowed. A majority of the Court determined the appeal could be resolved solely on the basis of administrative law principles without resort to the Charter. The proof of identity policy, when applied to the plaintiff, unreasonably failed to take into account the evidence she submitted. The plaintiff's application was denied due to the precondition requiring identification of an ancestor by name. However, the plaintiff's circumstantial evidence supported an inference her paternal grandfather was, more likely than not, entitled to registration as an Indian. Such evidence included the grandfather's baptismal certificate, the birth and residence of her father on reserve, and his involvement in the community. The Registrar's decision to refuse the plaintiff's registration was unreasonable and at odds with the purpose of s. 6 of the Indian Act. The demand for evidence of a specific identity was unreasonable, as it potentially denied registration due to an inability to meet an evidential demand not mandated by the Act. Such demand was unreasonable, as it related to evidence that was not only superfluous, but, as in this case, unobtainable due to the passage of time. It was sufficient to adduce evidence supporting an inference an unknown father may have had status, which constituted sufficient proof of paternity. There was no evidence to the contrary. The plaintiff was granted a declaration of entitlement to registration under s. 6(2) of the Indian Act as the child of one parent with full status.

Gehl v. Canada (Attorney General), [2017] O.J. No. 1943, Ontario Court of Appeal, R.J. Sharpe, P.D. Lauwers and B. Miller JJ.A., April 20, 2017. Digest No. TLD-May12017003