Jul 26, 2017

ONCA divided on use of Charter values in judicial review

Gehl v. Canada (Attorney General), 2017 ONCA 319 (CanLII)

Facts: In 1985, amendments were made to the Indian Act to repeal discriminatory provisions that had deprived G’s ancestors of their Indian status. The amendments retroactively restored their status. G’s paternal grandmother became a status Indian as a result of the amendments. The identity of G’s paternal grandfather is unknown.

G brought an application to register as an Indian. Under the Act, the Registrar for Aboriginal Affairs and Northern Development Canada determines eligibility for registration. Under the “two-parent rule”, G had to prove that both her paternal grandmother and her paternal grandfather had status (i.e. that her father had full rather than partial status). The Registrar had developed a policy which set out five types of evidence of paternity that the Registrar would accept for such determinations. The policy was an internal departmental guideline; it is not expressly contemplated by the Act and it is not a regulation. Applying the policy, the Registrar determined that G had not proved that her paternal grandfather had status. The version of the policy considered in this case was marked as a “draft” and was not published or made available to the public at the time.

G protested the Registrar’s decision and then appealed to the Superior Court. She later started an application for Charter relief. G did not pursue her initial challenge to the constitutional validity of the relevant provision of the Act, but she challenged the reasonableness and adequacy of the policy and argued that, on the evidence she presented and a proper application of the Act, it was unreasonable to deny her status. Thus, the issue that ultimately came before the Court of Appeal was whether the Registrar should have accepted the kind of evidence submitted by G as to the paternity of her grandfather as sufficient to establish status.

Decision: Appeal allowed. Declaration granted that G is entitled to be registered (per Miller and Lauwers JJA; Sharpe JA concurring).

Justice Sharpe followed a “Charter values” approach to analysing the issues in the appeal. He held that the policy is properly characterised as an exercise of administrative discretion (at least at the time the Registrar dealt with G’s protest). It was adopted by the Registrar to assist departmental officials and was administrative rather than legislative in nature. Relying on Doré v Barreau du Québec, it is a basic proposition that in their exercise of their discretion, administrative decision-makers must act consistently with the values underlying the discretion granted to them, including Charter values. Provided the decision-maker has properly balanced the Charter rights at issue with the statutory objectives, the decision will be found to be reasonable.

For Sharpe JA, the relevant Charter value in this case was equality. The denial of Indian status constitutes denial of the benefit of the law. The determination of entitlement to registration on the basis of the entitlement of both parents is, on its face, a gender-neutral rule. However, the Registrar was required to guard against an exercise of discretion that results in substantive inequality. While there can hardly ever be doubt about maternity, there may be considerable doubt about paternity. A mother may have good reason for her reluctance or inability to disclose the identity of her child’s father. By imposing a relatively strict burden of proof as to paternal identify based upon documentary evidence, the policy falls short of what is required to address the circumstances that make proof of paternity problematic for many women. This failure perpetuates the long history of disadvantage suffered by Indigenous women, which is inconsistent with the Charter’s promise of equality.

While the identity of G’s paternal grandfather is unknown, there is some evidence to support an inference that he had Indian status and there is no evidence that he did not have status. The evidence is capable of supporting an inference that G’s father had full status. For the policy to impose a strict burden of proving paternity fails to take into account and reflect the equality-enhancing and remedial purposes of the 1985 amendments. Those purposes would be frustrated if some allowance were not given for the difficulty in establishing the identify of G’s grandfather, born over 80 years ago on a reserve to an Indigenous woman who herself had been wrongly deprived of status through a discriminatory regime.

For Lauwers and Miller JJA, the appeal could be resolved on straightforward administrative law grounds on the basis that the Registrar’s decision is simply unreasonable. There is no need to resort to Charter rights or Charter values. For the majority, the wrong in the Registrar’s decision is caused by the application of a categorical evidentiary rule that denies registration and status to an individual who cannot identify a relevant ancestor by name. In some cases only circumstantial evidence of Indian status of an ancestor will be available – his or her actual identity will be unknown and unknowable. The application of the rule requiring proof of identify is unreasonable because denies the benefit of registration to some persons whom the Act entitles to registration solely because they cannot prove identity – which is not mandated by the Act. In a historical claim such as this one, it is sufficient for the claimant to provide some evidence capable of giving rise to the inference that an unknown father may have had status. That is sufficient proof of paternity for the purposes of the legislation, in the absence of any evidence to the contrary.

That analysis is sufficient to decide the appeal. A Charter values analysis would unnecessarily inject subjectivity and uncertainty into the legal analysis, without adding anything to the substantive analysis. The role Charter values can play in judicial reasoning has been carefully circumscribed – and for good reason. An appeal to Charter values risks pre-empting a Charter rights analysis and risk subordinating Charter rights. Further, Charter values lend themselves to subjective application because there is no doctrinal structure to guide their identification or application. They are not a discrete set, like Charter rights. The identification of Charter values has been ad hoc, sometimes tracking the language of an enumerated right and sometimes formulated at a much higher level of abstraction. Numerous problems can arise with respect to the operation of Charter values in judicial reasoning, including a lack of clarity about the relationship of Charter values to rights, and their uncertain relationship to each other and other constitutional and common law principles. Absent ambiguity, Charter values have no role to play in statutory interpretation.

The Registrar is owed no deference because he was not exercising discretionary power in refusing G’s registration request. The Registrar’s obligation is to administer legislation that determines the question of G’s entitlement. The Registrar must get it right in accordance with the statutory criteria and is subject to an appeal to the Superior Court on a standard of correctness. The Registrar (or officials working under the Registrar) might develop some “field sensitivity” and facility in researching historical records, but the Registrar does not exercise discretionary power or any special expertise in determining entitlement. The court does not owe deference to the Registrar and does not need to invoke Charter values to overcome deference.

Commentary: The disagreement between the majority and Sharpe JA as to the role of Charter values in what is substantively a judicial review exercise is perhaps the most interesting aspect of this case. Justice Sharpe’s reasons make an effort to be faithful to the prevailing approach to review of administrative decisions that implicate Charter rights and values, as set out by the Supreme Court and in the Court of Appeal’s own recent decisions. That approach has been harshly criticised in academic circles as confusing, unhelpful and unworkable, and there are hints that some judges of the Supreme Court may themselves be uncomfortable with the approach. However, the reasons of Lauwers and Miller JJA are the first we are aware of in which judges of an appellate court so strongly question the utility of a Charter values approach. Their criticisms reflect some of the problems with “Charter values” expressed by both practising lawyers and academics. The fact that two appellate judges have now entered the debate indicates that the law is still some way away from being settled on the role of Charter values in court review of administrative decisions.

The decision is noteworthy in other aspects as well. While purporting to decide the appeal on “straightforward administrative law grounds”, the majority’s reasons seem to run contrary to many of the fundamental principles of administrative law regarding substantive review of decisions.

First, it is unorthodox for the majority to have found that the Registrar was owed no deference without conducting the usual standard of review analysis and without being entirely clear on what standard of review applies. To find no deference owed suggests a correctness standard, yet the majority concludes that the Registrar’s decision was unreasonable – suggesting an application of the deferential reasonableness review standard – rather than incorrect.

In addition, the majority recognised no expertise on the part of the Registrar in making eligibility determinations, yet courts almost always assume some degree of expertise on the part of decision-makers that administer discrete statutory regimes, particularly when interpreting their home statutes.

Finally, the majority’s finding that the Registrar did not exercise a discretionary power when deciding whether G was entitled to status under the Act is at odds with deep-seated understandings about how administrative decision-makers carry out their mandates and potentially opens up much more space for judicial interference in administrative decisions.

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