Ontario Court of Appeal Justices Miller and Lauwers recently critiqued the nebulous concept of “Charter values” in a written judgement and urged judges to avoid invoking Charter values as much as possible. The case, in Gehl v Canada (AG), 2017 ONCA 319, is worth reading, but I’ll summarize it for you here.
The issue in Gehl was whether the appellant, Dr. Gehl, was entitled to register as an “Indian” under the Indian Act. The Act distinguishes between full and partial Indian status for the purposes of passing on one’s status to one’s children. A person with full status can pass it on to their child regardless of the other parent’s status, but those with partial status can pass on status only if the other parent also has partial status.
Dr. Gehl’s mother had no status, so her application hinged on whether her father would have been entitled to full status, which depended in turn on whether her father’s father had status. But Dr. Gehl’s paternal grandfather’s identity was unknown. The Registrar denied Dr. Gehl’s application on the basis that Dr. Gehl had failed to prove that her paternal grandfather had status. Dr. Gehl applied for judicial review, lost, and appealed to the Ontario Court of Appeal.[i]
The Indian Act provides that the Registrar is entitled to determine eligibility by investigating the applicant’s ancestry. To that end, the Registrar developed “the Policy”, an internal departmental guide for applying the Act. The Policy set out types of evidence of paternity that the Registrar would accept: birth certificates or Vital Statistics authorities; court orders declaring paternity; statutory declarations, preferably by the mother and father or two close relatives with personal knowledge of the father’s identity; or “other evidence, such as a hearing or DNA testing.”
Dr. Gehl had challenged the Policy and section 6 of the Indian Act for violating section 15 of the Charter. That challenge failed in Superior Court (2015 ONSC 3481).
Before the Court of Appeal, Dr. Gehl abandoned her challenge to the constitutional validity of the Indian Act’s “two-parent” rule, challenging instead the adequacy and reasonableness of the Policy. She argued that on the evidence she had presented, and a proper application of the Indian Act, she was entitled to register. The Court of Appeal agreed. However, Justices Lauwers and Miller wrote a separate opinion from Justice Sharpe, concurring in the result, but rejecting Justice Sharpe’s Charter values approach as unnecessary and unclear.
Justice Sharpe, like Lauwers and Miller, found that while the paternal grandfather’s identity was unknown, there was no evidence that he did not have status. In fact, it seemed likely that he would have been entitled to status, given that Dr. Gehl’s father was born and lived as a young child on the reserve. Justices Lauwers and Miller summarize: “The circumstantial evidence […] is capable of supporting an inference that her paternal grandfather was of aboriginal ancestry: his baptismal certificate indicates her father was born on the reserve; his godparents were members of the reserve community; he resided on the reserve during his childhood; there is no record of his being denied participation in the activities of the community.”
Justice Sharpe also rightly perceived that “stripped to its essentials, Dr. Gehl’s argument is that, on the basis of the evidence she presented, she is entitled to status.” He too found the evidence sufficient. Yet Justice Sharpe also conducted a Charter values analysis of the Policy and the Registrar’s decision. Why?
Justice Sharpe does not explicitly overturn the Superior Court, which rejected the Charter section 15 challenge to the Indian Act and the Policy. Notably, Superior Court Justice Stewart’s judgement never mentions Charter values. Rather, Justice Stewart did a proper Charter analysis and concluded that “unknowable paternity” was not an analogous ground under section 15.
Though the Charter challenge had failed, and though the evidence was sufficient resolve the case, Justice Sharpe returned to the Charter by invoking Charter values. His first step was to characterize the Registrar’s decision as discretionary. The Policy, Justice Sharpe reasoned, was administrative in nature, designed to assist with discretionary decision making – registering or not registering a person as Indian. The rest was easy. “It is a basic proposition,” Justice Sharpe writes, “that ‘administrative decision-makers must act consistently with the values underlying the grant of discretion, including Charter values’: Doré v. Barreau du Québec, 2012 SCC 12.” The Registrar did not adequately account for Charter values, making her decision unreasonable.
Justice Sharpe affirms that the two-parent rule is “on its face, a gender neutral rule.” However, he also states that, in applying the Act, the Registrar must “guard against an exercise of discretion that results in substantive inequality.” This is where his Charter values reasoning gets murky. He discusses how maternity is easier to establish than paternity – true, of course – and how a mother might have personal reasons for not disclosing the identity of the father – also true. Since the Policy requires a “relatively strict burden of proof essentially based upon documentary evidence”, Justice Sharpe reasons, it makes proof of paternity problematic for many women, thus “perpetuating the long history of disadvantage suffered by Indigenous women.”
As you can see, Justice Sharpe steers away from the issue of whether establishing paternity violates Dr. Gehl’s Charter rights and begins to examine whether the Policy creates other problems. The problem he identifies is that establishing paternity under the Policy could depend on the mother disclosing something she would rather not disclose. He then ties this problem back to Charter values. Now, if that is indeed what the Indian Act required, Justice Sharpe might have a point – though we might still question what appears to be a trail of reasoning leading to a finding of a hypothetical violation of Dr. Gehl’s grandmother’s equality rights, since if she were still alive, she might feel pressured for Dr. Gehl’s sake to disclose who her grandfather was.
However, Justice Sharpe, like Justices Miller and Lauwers, found that the Policy was problematic for another reason: it established a higher evidentiary standard than the Indian Act itself. And this, in the latter judges’ view, was enough. They could and did decide that Dr. Gehl was entitled to register – no deference to the Registrar. Crucially, Justices Lauwers and Miller did not agree that the Registrar is exercising statutory discretion, such that it should or could be infused with Charter values. Deciding one’s Indian status is not a discretionary decision, but a straightforward legal and evidentiary one.
The portion of their judgement critiquing Charter values is excerpted below, slightly abridged and with emphases added. Several points are worth noting. First, be careful trying to achieve “substantive equality” – in this case, there was no need to turn the practical reality that it is typically more difficult to establish paternity than maternity into a Charter issue (para 77). Second, avoid infusing Charter values into statutory interpretation wherever possible, because they are subjective and there is no doctrinal framework for applying them (paras 78). Third, unlike Charter rights, there is no authoritative list of Charter values and some “values” that have been invoked are deeply contested (paras 80-81). Fourth, invoking Charter values risks subordinating actual Charter rights and creating intra-Charter conflicts that would otherwise not exist (paras 78, 82). Fifth, discretionary power is not present and deference not owed unless clearly granted by statute (paras 85-87).
 We make two substantive observations on our colleague’s proposal to resolve the appeal through the application of Charter values. First, where a case can be resolved without reference to Charter values, prudence suggests they should not be invoked. In our view, a Charter values analysis would unnecessarily inject subjectivity and uncertainty into the legal analysis. Second, there is no need to resort to Charter values to displace any deference that an appellate body might owe to the original decision-maker, because in Dr. Gehl’s case no deference is owed to the Registrar.  Dr. Gehl has abandoned her constitutional challenge to the legislation and is now focused on whether the Registrar’s decision, which applied a rule later formalized into a policy, deprives her of rights under the legislation. As we have explained, any child who is unable to identify either her father or mother is denied the benefits of registration because of an evidential rule [in the Policy] that in some circumstances frustrates the purpose of the statute. As our colleague rightly points out, the difficulty faced by a claimant who is unable to identify a parent will almost always be in establishing the identity of a father. But the unreasonableness of the Registrar’s decision does not turn on whether the unknown parent is the mother or father, and is not best described as a matter of discrimination or inequality. The decision would be no less unreasonable if Dr. Gehl had been denied registration because of an inability to identify her biological mother or grandmother. The appeal to Charter values does not add anything to the substantive administrative law analysis […].  Our objection to the use of Charter values in this appeal is not simply because it is unnecessary to the result. There are good reasons why the role that Charter values can play in judicial reasoning has been carefully circumscribed. One reason is the risk that an appeal to Charter values can pre-empt Charter rights analysis, and thus risk subordinating Charter rights. A party bringing a Charter challenge is entitled to a judicial determination of whether the Charter right has been limited, and the government must have the opportunity to argue that such a limit is justified under s. 1 [citations omitted]. Our colleague’s reasons elide the two distinct legal concepts of Charter rights and Charter values.  Furthermore, there is good reason to maintain a modest role for Charter values in judicial reasoning generally and in statutory interpretation specifically. 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.  With respect to the identification and selection of Charter values, it must be noted that they are not a discrete set, like Charter rights, which were the product of a constitutional settlement and are easily ascertained by consulting a constitutional text. The identification of Charter values has been ad hoc. Sometimes (as in our colleague’s reason) they track the language of an enumerated right, in this case, equality.  Other times Charter values have been formulated at a much higher level of abstraction – as concepts such as justice, liberty, autonomy or dignity: Loyola High School v. Quebec (Attorney General), 2015 SCC 12. The meaning of these concepts – and their juridical application – is both contestable and contested. Philosophers have debated the requirements of justice, for example, for thousands of years. The same could be said of many other Charter values.  With respect to their operation in judicial reasoning, problems can arise from a lack of clarity about the subordinate relationship of Charter values to Charter rights, the plurality of Charter values, and their uncertain relationship to each other and to constitutional and common law principles. Unlike Charter rights, which are largely negative and will thus rarely conflict, multiple Charter values can simultaneously apply in a given dispute, and can easily be in conflict. In this case, for example, although equality seems like an apposite value, it is a capacious concept that goes beyond the legal right established in s. 15 of the Charter. Every conception of equality, as the Supreme Court noted in adopting the words of J.H. Schaar in Andrews v. Law Society of British Columbia,  S.C.J. No. 6, “is at once a psychology, an ethic, a theory of social relations, and a vision of the good society” (at para. 26 (QL)). […]  In light of these and other problems, the Supreme Court has limited the role Charter values can play in statutory interpretation. In Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, at paras. 28, 60-66, the Supreme Court held that Charter values have no role in the interpretation of legislation unless the text is ambiguous, in the sense that one or more meanings are available that are equally in accordance with the intentions of the statute: see, most recently, Wilson v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47, at para. 25. Absent such ambiguity, Charter values have no role to play in statutory interpretation. This stance reinforces our view that a Charter values analysis should be avoided where it is not necessary to the outcome sought by the party.  Although we agree with our colleague that deference is not owed to the Registrar, we do not arrive at that conclusion on the basis that the Registrar failed “to balance the Charter rights or values at issue with the statutory objective in a reasonable manner.”  We take a more direct route. The Registrar was not exercising discretionary power in refusing Dr. Gehl’s registration request, and therefore her decision does not attract deference.  Deference is required only if the administrative decision maker is exercising, as Doré prescribes, a relevant “grant of discretion”. But, as Swinton J. observed, no discretionary power is exercised by the Registrar in determining whether Dr. Gehl is entitled to registration under the Indian Act. The concept of discretion is explained in Baker, at para. 52: “The concept of discretion refers to decisions where the law does not dictate a specific outcome, or where the decision-maker is given a choice of options within a statutorily imposed set of boundaries.” No such choice of options is given to the Registrar by s. 6 of the Indian Act.  The Registrar’s obligation is to administer legislation that determines the question of Dr. Gehl’s entitlement. It follows that the Registrar must get it right in accordance with the statutory criteria, and is subject to an appeal to the Superior Court of Justice on the standard of correctness. […]
You can read the entire judgement here.
[i] The procedural history is more complicated and begins in 1994. See paras 21-36 of the Justice Sharpe’s opinion, 2017 ONCA 319.