Lynn Gehl, left, and her lawyer Christa Big Canoe are seen outside Ontario's Court of Appeal in Toronto on Dec. 20, 2016.Colin Perkel/The Canadian Press
A woman denied Indian status despite being able to trace her indigenous heritage for at least five generations is the victim of gender discrimination, Ontario's top court heard Tuesday.
Changes to the law in 1985 designed to address such discrimination only created new problems for women such as Lynn Gehl, her lawyer told the Court of Appeal.
Gehl, 54, of Peterborough, Ont., has been unable to register as an Indian because she does not know who her grandfather was. By post-1985 policy, the government assumes he was non-Indian, which ultimately deprived Gehl of her status.
Tens of thousands of women are estimated to be in Gehl's situation — denied Indian status because a father is listed as unknown or unstated on a birth certificate, commonly the result of rape, incest or abuse, or because he simply disavows his child.
Gehl has faced real consequences, including loss of treaty rights and "growing up in a cultural void and shame," said her lawyer, Christa Big Canoe.
Gehl's co-counsel, Mary Eberts, said the government's interpretation of the Indian Act puts women at a disadvantage because it is generally far more difficult to identify a father than a mother.
As a result, the government's policy on unknown or unstated paternity — or the underlying provisions of the Indian Act — are unconstitutional, court heard.
"Women still carry the disadvantages from the pre-1985 regime," Eberts said. "Males and females under the Indian Act are not the same. The male still benefits from some historical privileges."
Indian status used to be passed on through the father's lineage — something the 1985 law attempted to address in light of the recently adopted charter, court heard. While thousands of people were retroactively granted status under the new legislation, Gehl was not one of them.
Government lawyer Christine Mohr said the legislation was never intended to restore status to every person who lost it over the years. The "limited objective" doesn't give rise to unconstitutionality and Gehl's denial of status was not because she's a woman, Mohr said.
The Appeal Court justices clearly had difficulty with differences in how the 1985 law has been applied, granting Indian status to some who lost it decades ago, but not to others, such as Gehl's grandfather.
"There's a package here that Parliament enacted and I'm trying to understand why it only gets applied sometimes," Justice Robert Sharpe said.
Another government lawyer, Andrea Bourke, said the legislation was a political choice that aimed to end, but couldn't undo, 100 years of inequity by restoring status to those who directly lost it due to discrimination.
"The rules are applied uniformly to everyone," Bourke insisted.
Gehl, who identifies as an Algonquin Anishinaabe, has been trying since 1994 to get registered as a status Indian. Among the benefits she would have would be the ability to participate fully in the affairs of her First Nation, including in negotiations with the federal government.
In June last year, Ontario Superior Court Justice Elizabeth Stewart sided with the government, even though she was sympathetic to Gehl's plight.
"Gehl's predicament ... arises from the unique circumstances of her life, particularly the unknowable identity of her paternal grandfather," Stewart said in her ruling.
The Appeal Court justices reserved their decision.