McIvor et al. v. Registrar of Indian and Northern Affairs Canada et al.

• Jurisdiction: British Columbia
• Court: Court of Appeal (British Columbia)
• Judge: Newbury, Tysoe and Groberman, JJ.A.
• Citation: (2009), 269 B.C.A.C. 129 (CA),2009 BCCA 153
• Date: 06 April 2009

McIvor v. Indian Affairs (2009), 269 B.C.A.C. 129 (CA);

    453 W.A.C. 129

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. AP.027

Sharon Donna McIvor and Charles Jacob Grismer (respondents/plaintiffs) v. The Registrar, Indian and Northern Affairs Canada and The Attorney General of Canada (appellants/defendants) and Native Women's Association of Canada, Congress of Aboriginal Peoples, First Nations Leadership Council, West Moberly First Nations, T'Sou-ke Nation, Grand Council of the Waban-Aki Nation, the Band Council of the Abenakis of Odanak and the Band Council of the Abenakis of Wôlinak and Aboriginal Legal Services of Toronto (intervenors)

(CA035223; 2009 BCCA 153)

Indexed As: McIvor et al. v. Registrar of Indian and Northern Affairs Canada et al.

British Columbia Court of Appeal

Newbury, Tysoe and Groberman, JJ.A.

April 6, 2009.

Summary:

Under the post-1985 Indian Act (s. 6), the child of an Indian parent and non-Indian parent had Indian status as long as both grandparents had Indian status. At issue was the constitutionality of s. 6 of the Indian Act, which established the entitlement of a person to be registered as an Indian. Particularly, Grismer sought to transmit Indian status to his children, despite the fact that his father was non-Indian and his wife was non-Indian, thus precluding status. Grismer submitted that s. 6 discriminated on the basis of sex contrary to s. 15 of the Charter of Rights and Freedoms. It was argued that although the post-1985 s. 6 did not discriminate on the basis of sex, s. 15 of the Charter was infringed to the extent that it effectively continued the pre-1985 discriminatory regime for determining status. If Grismer's father was Indian and his mother non-Indian, his children would have Indian status because of the preservation of Indian status to his grandmother, who had lost it due to the pre-1985 Double Mother Rule.

The British Columbia Supreme Court, in a judgment reported [2007] B.C.T.C. Uned. D34; 2007 BCSC 827, with supplemental reasons provided at [2007] B.C.T.C. Uned. 960; 2007 BCSC 1732, held that s. 6 violated s. 15 of the Charter and was not saved as a reasonable limit prescribed by law. The Crown appealed.

The British Columbia Court of Appeal dismissed the appeal, but found a violation of s. 15 on narrower grounds and held that the remedy granted by the trial judge was too broad. Section 6 violated s. 15 because the 1985 amendments gave advantageous treatment to those to whom the Double Mother Rule applied under the pre-1985 regime. But for that differential treatment, s. 6 would not have violated s. 15. The violation was not a reasonable limit prescribed by law under s. 1 of the Charter, as it failed to pass the minimal impairment test. The court declared ss. 6(1)(a) and (c) of the Indian Act to be of no force and effect, but suspended the declaration for one year to permit Parliament to amend the legislation to make it constitutional.

Civil Rights - Topic 5646

Equality and protection of the law - Particular cases - Indians and Métis - Under the post-1985 Indian Act (s. 6), the child of an Indian father and non-Indian mother had Indian status only if both grandparents were Indian - Grismer sought to transmit Indian status to his children, despite the fact that his father was non-Indian (mother had Indian status) and his wife was non-Indian - Grismer submitted that s. 6 discriminated on the basis of sex contrary to s. 15 of the Charter of Rights and Freedoms - It was argued that although the post-1985 s. 6 did not discriminate on the basis of sex per se (all children now denied status unless both grandparents were Indian), s. 15 of the Charter was infringed to the extent that it effectively continued the pre-1985 discriminatory regime for determining status - If Grismer's father had been Indian and his mother non-Indian, his children would have had Indian status because of the reinstatement of Indian status to his mother, who had previously lost it due to the Double Mother Rule (status preserved by 1984 amendments) - The British Columbia Court of Appeal held that s. 6 violated s. 15, because the 1985 amendments gave advantageous treatment to those to whom the Double Mother Rule applied under the pre-1985 regime - But for that differential treatment, s. 6 would not have violated s. 15 - Had Grismer's father been Indian (as opposed to his mother), the reinstatement of status previously lost due to the Double Mother Rule would have entitled his children to Indian status - The violation was not a reasonable limit prescribed by law under s. 1 of the Charter, as it failed to pass the minimal impairment test - The discrimination resulted from under-inclusive legislation - Grismer was unable to transmit Indian status to his children only because his mother, not his father, was entitled to Indian status - The discrimination applied only to those caught in the transition between the pre-1985 and post-1985 regimes - The court declared ss. 6(1)(a) and (c) of the Indian Act to be of no force and effect, but suspended the declaration of invalidity for one year to permit Parliament to amend the legislation to make it constitutional.

Civil Rights - Topic 8304

Canadian Charter of Rights and Freedoms - General - Application of - General (incl. retrospectivity and retroactivity) - The British Columbia Court of Appeal held that "it is now well-settled that the Charter applies only prospectively from the date it was brought into effect. Section 15, therefore, cannot be used to question the validity of governmental action that pre-dated its coming into force. On the other hand, continuing governmental action may violate the Charter even if it began prior to the coming into force of the Charter. Violations of s. 15 cannot be countenanced simply because discrimination began before April 17, 1985" - The application of the Charter depended upon differentiating between ongoing discrimination (Charter applies) and the mere effects of concluded pre-Charter discrimination (Charter does not apply) - See paragraphs 47 to 49.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 5646 ].

Civil Rights - Topic 8380.2

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of statute invalidity - [See Civil Rights - Topic 5646 ].

Civil Rights - Topic 8490

Canadian Charter of Rights and Freedoms - Interpretation - Particular subjects - Charter rights guaranteed equally to both sexes (s. 28) - Section 28 of the Charter provided that "notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons" - The British Columbia Court of Appeal stated that "section 28 is a provision dealing with the interpretation of the Charter. It does not, by itself, purport to confer rights, and therefore cannot be 'contravened'. Further, the equality rights set out in s. 15 explicitly encompass discrimination on the basis of sex; they are incapable of being interpreted in any manner which would be contrary to s. 28." - See paragraphs 63 to 64.

Indians, Inuit and Métis - Topic 164

General - Registration - Entitlement (incl. persons entitled) - [See Civil Rights - Topic 5646 ].

Cases Noticed:

Canada (Attorney General) v. Lavell, [1974] S.C.R. 1349, refd to. [para. 25].

Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358; 208 N.R. 81, refd to. [para. 48].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 68].

Hodge v. Canada (Minister of Human Resources Development), [2004] 3 S.C.R. 357; 326 N.R. 201; 2004 SCC 65, refd to. [para. 78].

Hislop et al. v. Canada (Attorney General), [2007] 1 S.C.R. 429; 358 N.R. 197; 222 O.A.C. 324; 2007 SCC 10, refd to. [para. 81].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, refd to. [para. 89].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 103].

Canadian National Railway Co. v. Canadian Human Rights Commission - see Action Travail des Femmes v. Canadian National Railway Co. et al.

Action Travail des Femmes v. Canadian National Railway Co. et al., [1987] 1 S.C.R. 1114; 76 N.R. 161, refd to. [para. 103].

R. v. Kapp (J.M.) et al., [2008] 2 S.C.R. 483; 376 N.R. 1; 256 B.C.A.C. 75; 431 W.A.C. 75; 2008 SCC 41, refd to. [para. 107].

Withler v. Canada (Attorney General) (2008), 263 B.C.A.C. 257; 443 W.A.C. 257; 2008 BCCA 539, refd to. [para. 108].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 119].

McKinney v. University of Guelph et al., [1990] 3 S.C.R. 229; 118 N.R. 1; 45 O.A.C. 1, refd to. [para. 136].

Guinn v. United States of America (1915), 238 U.S. 347, dist. [para. 146].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1, refd to. [para. 159].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 28 [para. 63].

Constitution Act, 1982, sect. 35(1), sect. 35(4) [para. 65].

Indian Act, R.S.C. 1985, c. I-5, sect. 6 [para. 32].

Counsel:

Mitchell R. Taylor, Q.C., Glynis Hart, Brett C. Marleau and Sean Stynes, for the appellants;

Robert Grant, Gwen Brodsky and Susan Horne, for the respondents;

Mary Eberts, for Native Women's Association of Canada;

Joseph E. Magnet and Janet L. Hutchison, for Congress of Aboriginal Peoples;

Anja P. Brown, for First Nations Leadership Council;

Christopher G. Devlin, for West Moberly First Nations;

Robert Janes, for T'Sou-ke Nation;

Peter R. Grant and David Schulze, for Grand Council of Waban-Aki Nation, Band Council of the Abenakis of Odanak and Band Council of the Abenakis of Wôlinak;

Kasari Govender, for Aboriginal Legal Services of Toronto.

This appeal was heard on October 14-17, 2008, at Vancouver, B.C., before Newbury, Tysoe and Groberman, JJ.A., of the British Columbia Court of Appeal.

On April 6, 2009, Groberman, J.A., delivered the following judgment for the Court of Appeal.