Grismer et al. v. Squamish Indian Band, 2006 FC 1088

• Judge: Martineau, J.
• Court: Federal Court (Canada)
• Case Date: September 12, 2006
• Jurisdiction: Canada (Federal)
• Citations: 2006 FC 1088;(2006), 299 F.T.R. 268 (FC)

Grismer v. Squamish Indian Band (2006), 299 F.T.R. 268 (FC)

MLB headnote and full text

Temp. Cite: [2006] F.T.R. TBEd. SE.042

Alice Maxine Jaime Grismer and Alexis Jordana McIvor-Grismer (applicants) v. Squamish Indian Band a.k.a. Squamish Nation Council (respondent)

(T-1509-04; 2006 FC 1088)

Indexed As: Grismer et al. v. Squamish Indian Band

Federal Court

Martineau, J.

September 12, 2006.

Summary:

The Squamish Nation Membership Committee determined that the applicants were not entitled to obtain membership in the Squamish Nation. The Squamish Nation Membership Appeals Committee dismissed the applicants' appeals. The applicants applied for judicial review of the decisions of the Appeals Committee, arguing that ss. 7 and 9 of the Squamish Nation Membership Code discriminated against them in violation of s. 15 of the Charter based on their status as adopted children.

The Federal Court dismissed the application. The court held that while the impugned provisions of the Membership Code were discriminatory in violation of s. 15 of the Charter, they were saved under s. 1 of the Charter.

Civil Rights - Topic 918.2

Discrimination - Family status - Adopted children - The applicants' biological mother was a member of the Lower Nicola Indian Band - The applicants' biological mother and Ms. Nahanee applied to legally adopt the applicants and an adoption order was issued - Nahanee was a member of the Squamish Nation - The applicants unsuccessfully sought membership to the Squamish Nation based on their link to Nahanee as their adoptive mother - Section 7(b)(i) of the Squamish Nation Membership Code provided individuals with entitlement to membership if they had one biological parent that was entered on, or entitled to be entered on, the Membership List - Since Nahanee was not the applicants' biological parent, they were not entitled to membership - Section 9(a) of the Membership Code also provided that a person could apply for membership if they were an Indian child under the age of 18 who had been adopted by parents, both of whom were members of the Squamish Nation - The Federal Court held that ss. 7(b)(i) and 9(a) of the Membership Code violated s. 15 of the Charter where they made a formal distinction on an analogous ground (the applicants' status as adopted children) - However, the impugned provisions were justified under s. 1 of the Charter where they had a pressing and substantial objective (to preserve the collective Squamish culture and identity), restricting membership to persons who had a bloodline connection to the Squamish Nation was a rational way  to meet that objective, the impugned provisions minimally impaired the applicants' rights and there was proportionality between the effects of the impugned provisions and their objective.

Civil Rights - Topic 5659

Equality and protection of the law - Particular cases - Adoption - [See Civil Rights - Topic 918.2 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 918.2 ].

Indians, Inuit and Métis - Topic 2107

Nations, tribes and bands - Bands - Membership - [See Civil Rights - Topic 918.2 ].

Cases Noticed:

Wahta Mohawk Women's Group v. Wahta Mohawks (2000), 189 F.T.R. 218 (T.D.), refd to. [para. 24].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81; 137 D.L.R.(4th) 289, refd to. [para. 26].

Corbiere et al. v. Canada (Minister of Indian and Northern Affairs) et al., [1999] 2 S.C.R. 203; 239 N.R. 1; 173 D.L.R.(4th) 1, refd to. [para. 27].

R. v. Kapp (J.M.) et al., [2004] B.C.T.C. 958; 31 B.C.L.R.(4th) 258; 2004 BCSC 958, affd. (2006), 227 B.C.A.C. 248; 374 W.A.C. 248; 69 W.C.B.(2d) 667; 2006 BCCA 277, refd to. [para. 27].

Campbell et al. v. British Columbia (Attorney General) et al., [2000] B.C.T.C. 528; 189 D.L.R.(4th) 333; 2000 BCSC 1123, refd to. [para. 28].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1; 170 D.L.R.(4th) 1, refd to. [para. 33].

Hodge v. Canada (Minister of Human Resources Development), [2004] 3 S.C.R. 357; 326 N.R. 201; 2004 SCC 65, refd to. [para. 34].

Granovsky v. Minister of Employment and Immigration, [2000] 1 S.C.R. 703; 253 N.R. 329; 2000 SCC 28, refd to. [para. 35].

Egan and Nesbit v. Canada, [1995] 2 S.C.R. 513; 182 N.R. 161, refd to. [para. 52].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200; 50 C.R.(3d) 1; 24 C.C.C.(3d) 321; 19 C.R.R. 308, refd to. [para. 60].

R. v. Powley (S.) et al., [2003] 2 S.C.R. 207; 308 N.R. 201; 177 O.A.C. 201; 2003 SCC 43, refd to. [para. 66].

Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569; 218 N.R. 241; 151 D.L.R.(4th) 385, refd to. [para. 70].

Twinn et al. v. Canada, [1996] 1 F.C. 3; 97 F.T.R. 161 (T.D.), revd., [1997] 3 F.C. 580; 215 N.R. 133 (F.C.A.), refd to. [para. 84].

Sawridge Indian Band v. Canada - see Twinn et al. v. Canada.

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 59]; sect. 15(1) [para. 31].

Counsel:

Sharon McIvor, for the applicants;

John Rich and Matthew Kirchner, for the respondent.

Solicitors of Record:

Sharon McIvor, Merritt, British Columbia, for the applicants;

Ratcliff and Company, Vancouver, British Columbia, for the respondent.

This application was heard on June 6 and 7, 2006, at Vancouver, British Columbia, before Martineau, J., of the Federal Court, who delivered the following decision on September 12, 2006.