Gehl v Canada : ONCA Grapples with Role of Charter Values

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The Supreme Court of Canada (the SCC) has long recognized the utility of aspirational values in better understanding the substantive rights guaranteed by the Charter of Rights and Freedoms. However, since the Supreme Court’s 2012 ruling in Doré v Barreau du Québec, 2012 SCC 12 [Doré] the role that Charter values play in legal reasoning has become much more substantial. In this landmark decision, the SCC established a proportionality test similar to the one from R v Oakes, [1986] 1 SCR 103 [Oakes], but with the goal of affording administrative decision-makers greater flexibility vis-à-vis their Charter obligations. Rather than requiring the administrative state to precisely conform to the strictures of an Oakes analysis, Justice Abella laid out a more deferential test in which decision-makers must merely demonstrate that they have “properly balanced … relevant Charter value[s] with [their] statutory objectives” (Doré, para 58).

However, Justice Abella’s test from Doré has come under increasing scrutiny for its seeming emphasis on abstract and undefined Charter values, as opposed to enumerated and entrenched Charter rights. In a 2014 article for the Supreme Court Law Review, for example, constitutional lawyer Matthew Horner observed that

… the amorphous character of Charter values is in fact more likely to result in policy decisions that reflect the subjective values of decision-makers, whatever those values may be. To the extent that one looks to the Charter to protect vulnerable groups in administrative decision-making, a Charter doctrine that moves the legal analysis away from the specific guarantees enshrined in the Charter to the subjective discretion of an administrative decision-maker does little to advance that goal. (“Charter Values: The Uncanny Valley of Canadian Constitutionalism” (2014) 67: SCLR 361 at 386).

More recently, the reasons delivered by the majority of a panel of the Ontario Court of Appeal (the ONCA) in Gehl v Canada (Attorney General), 2017 ONCA 319 [Gehl] have further contributed to this ongoing dialogue over the role that Charter values play in judicial reasoning.

Case Background

At its core, the appeal in Gehl concerned whether Dr. Lynn Gehl is entitled to Indian status under the terms of the Indian Act (RSC 1985, c I-5) [the Act].[1] Dr. Gehl applied to be registered as a status Indian in 1994 following amendments to the Act in 1985 that aimed to bring it more in line with the equality protections offered by the Charter (Gehl, para 3). Under the revised provisions of the Act, Indian status no longer passes exclusively through the male bloodline, nor do Aboriginal women lose their status when they marry a non-Aboriginal man. Section 6(1)(f) also introduces a “two-tier” system for establishing Indian status, whereby children with two Indian parents receive full status, but those with only one Indian parent receive partial status (Gehl, paras 12-13). Thus, someone who does not currently have status will be granted partial status if they are able to prove that either of their material or paternal grandparents were full status Indians.

The Act additionally stipulates, under section 14.2, that the Registrar for Aboriginal Affairs and Norther Development Canada (the Registrar) is responsible for determining eligibility for status registration. In the aftermath of the 1985 amendments to the Act, the Registrar developed a Proof of Paternity Policy (the Policy) to help determine whether an applicant has met the criteria with regard to paternal lineage. Should registration be refused, the applicant may formally the Registrar’s decision. If the protest is refused by the Registrar, the applicant may appeal to a provincial superior court pursuant to section 14.3 of the Act (Gehl, paras 16-17).

Because Dr. Gehl was unable to prove the Indian status of her paternal grandfather in accordance with the terms of the Policy (since the identity of her paternal grandfather was unknown) the Registrar denied her application to receive status. When the Registrar further refused her protest, Dr. Gehl launched a Charter challenge at the Superior Court of Ontario, arguing that the Policy and section 6(1)(f) of the Act violated her section 15 Charter rights on the enumerated grounds of race and sex and the analogous grounds of “family or marital status” (Gehl, paras 21, 24).

Although Dr. Gehl’s claim was originally for damages, it was later amended to a claim for declaratory relief. The action subsequently remained dormant for almost two decades. Since the facts of Dr. Gehl’s claim were not in dispute, the Registrar agreed in 2014 to have the matter dealt with through a motion for summary judgement (Gehl, para 23). Justice Stewart, the motions judge who heard the case, concluded that the Policy and section 6(1)(f) of the Act did not differentiate between applicants, agreeing with the Crown that Dr. Gehl had been denied status due to her “unknowable paternity” and not because of discrimination on the basis of an analogous ground under section 15 of the Charter (Gehl, para 36 citing 2015 ONSC 3481, para 74).

Challenging the Reasonableness of the Policy  

The reasons for the Ontario Court of Appeal were delivered by Justice Sharpe, with Justices Lauwers and Miller offering a joint concurring opinion. Justice Sharpe found that Dr. Gehl’s litigation, despite being framed as a Charter action, did not challenge the constitutionality of section 6(1)(f). Rather, what Dr. Gehl was actually challenging was the reasonableness of the Proof of Paternity Policy. “Her central submission,” Justice Sharpe explained, “is that, on the evidence she has presented and on a proper application of s. 6(1)(f), it is unreasonable to deny her status” (Gehl, para 36).Since the Policy had not been published at the time of the Registrar’s decision concerning Dr. Gehl’s status, Justice Sharpe further found that it was for all intents an informal and internal document. Thus, in his view, the Policy was best described as an exercise of administrative discretion (Gehl, para 37).

Justice Sharpe proceeded to lay out the SCC’s proportionality test from Doré, citing Justice Abella’s “basic proposition” that “administrative decision-makers must act consistently with the values underlying [their] grant of discretion, including Charter values” (Gehl, para 38; see also Doré, para 24). In Dr. Gehl’s case, Justice Sharpe found that the applicable Charter rights and values were the equality provisions contained in section 15. While he conceded that the Policy was prima facie gender-neutral, he found that “as a matter of biology and common experience” it is often more difficult for a child to verify the identity of their father rather than their mother (Gehl, paras 40-44). Ultimately, “[t]he child may be the product of a relationship the mother is reluctant or unable to disclose”, especially when the pregnancy in question was “the product of abuse, rape or incest” (Gehl, para 45).

On this basis, Justice Sharpe found that the Policy “falls well short of what is required to address the circumstances that … [makes] proof of paternity problematic for many women.” Moreover, he further concluded that the Policy “fails to take into account evidence of the kind” that Dr. Gehl submitted concerning the status of her paternal grandfather, as well as the fact that her father was born several decades before the 1985 amendments that sought to bring the Act more in line with the provisions of the Charter (Gehl, para 45). Accordingly, he found that “the Registrar’s application of the Policy to Dr. Gehl’s circumstances failed to take into account the equality-enhancing values and remedial objectives underlying the 1985 amendments, and was therefore unreasonable” (Gehl, para 53).

Adopting a Strictly Administrative Approach    

While both Justices Lauwers and Miller concurred with the outcome of Justice Sharpe’s decision, their reasons emphasized that they did not believe it was necessary for him to incorporate a Charter analysis into his decision, especially where Charter values are concerned. Rather, they explained, the case could be decided solely on the basis of administrative law principles, mirroring the Supreme Court’s approach in Baker v Canada, [1999] 2 SCR 817, para 11 and Chieu v Canada, 2002 SCC 3, paras 19-20, 24 (Gehl, paras 56, 68)

Despite these differences in their respective approaches to the case, Justices Lauwers and Miller ultimately agreed with Justice Sharpe that the Policy, when applied to Dr. Gehl, unreasonably failed to account for the evidence that she had submitted. In some cases, they explained, it will be impossible for someone applying for status to provide anything more than circumstantial evidence regarding an ancestor’s Indian status (Gehl, para 72). The Registrar’s decision was consequently incompatible with the terms of the Act:

The application of this rule — by which the Registrar refused Dr. Gehl’s application — is unreasonable because it is at odds with the purpose of s. 6 of the Indian Act, which is to provide for the registration of persons who are entitled to registration. It potentially denies the benefit of registration to some persons whom the Act entitles to registration — as the Registrar acknowledged on cross-examination — solely because of their inability to satisfy an unreasonable evidential demand not mandated by the Act. The demand for evidence of a specific identity is unreasonable because it is a demand for evidence which is not only superfluous, but now, through the passage of time, unobtainable in this instance (Gehl, para 73).

Thus, so long as Dr. Gehl could offer some evidence that inferred that her paternal grandfather “may have had status” – which, the Justices concluded, she had –  then she had satisfied the Act’s proof of paternity requirement. In the view of the Justices, this was sufficient for granting the remedy that Dr. Gehl sought (Gehl, para 75).

Circumscribing the Role of Charter Values

Justices Lauwers and Miller used the remainder of their reasons to critique the role of Charter values in Justice Sharpe’s decision. They began by noting that the “equality-enhancing values” identified by their colleague offered little guidance in assessing the reasonableness of the Registrar’s decision. While they agreed that a status applicant will almost always have more difficulty establishing the identity of an unknown father for the reasons identified by Justice Sharpe, they found that this reality was unrelated to the Registrar’s application of the Proof of Paternity Policy. “The decision would be no less unreasonable”, the Justices explained, “if Dr. Gehl had been denied registration because of an inability to identify her biological mother or grandmother” (Gehl, para 77).

More crucially, however, Justices Lauwers and Miller further emphasized that Charter values analyses should be avoided as a general rule and not just where their presence is unnecessary to achieve a specific legal result. In general, they warned, a pre-emptive reliance on Charter values can undermine the exercise of certain Charter rights:

Charter values lend themselves to subjective application because there is no doctrinal structure to guide their identification or application. Their use injects a measure of indeterminacy into judicial reasoning because of the irremediably subjective — and value laden — nature of selecting some Charter values from among others, and of assigning relative priority among Charter values and competing constitutional and common law principles. The problem of subjectivity is particularly acute when Charter values are understood as competing with Charter rights (Gehl, para 79).

The Justices further noted that Charter values, unlike Charter rights, have not been discreetly identified in the constitutional text. Despite that their identification by the courts has sometimes corresponded to an enumerated Charter right, their description more often correlates to highly abstract – and heavily contested – philosophical concepts. In some cases, Charter values can even appear to conflict with one another. Specifically, the Justices emphasized that the value of equality could conceivably run up against other Charter values that have been identified by the SCC, notably “the autonomy and liberty of native bands” (Gehl, para 82).

The Future Role of Charter Values

Gehl v Canada is unlikely to be the end of the debate over Charter values. If anything, the case has the potential to spur greater judicial dialogue over the usefulness of Charter values when assessing the reasonableness of administrative decisions. Although it is not currently known whether the Crown intends to appeal the ONCA’s decision, it is more than likely that Justices Lauwers and Miller’s critique of Justice Sharpe’s reliance on Charter values will be assessed by the SCC at some point in the near future. The upcoming joint-appeal over Trinity Western University’s proposed law school – which concerns what some have described as an apparent conflict of Charter values – has, in particular, presented the SCC with an excellent opportunity to lay out a more purposive vision for how Charter values ought to be applied and reconciled. Given the uncertainty that has defined Charter values analysis in the aftermath of the Doré decision, this would be a welcome development indeed.

[1] The use of the term “Indian” throughout this post reflects its usage in the terms of the Indian Act. The author does not endorse the use of this term outside of its legislative context and wishes to recognize that it is not accepted by most of the communities that it purports to describe.

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