Backgrounder - McIvor: an Overview

This Web page has been archived on the Web.

From 1869 to 1985, an Indian woman who married a non-Indian man would lose her status as an Indian under the Indian Act and her children were not entitled to status. However, an Indian man who married a non-Indian woman would retain his status and his wife and children would gain status. Moreover, if a child's mother and paternal grandmother did not have a right to Indian status other than by virtue of having married Indian men, the child had status only up to the age of 21(commonly referred to as the Double Mother Rule).

On April 17, 1985, Parliament adopted Bill C-31, an act to amend the Indian Act. In particular, this Bill ensured that Indian women who married non-Indian men (known as "marrying out") would no longer lose their status as well as to restore status to those who had lost their status prior to 1985. The Indian Act was also amended to give the children and grandchildren of such marriages identical treatment under the legislation. The Double Mother Rule was abolished and replaced by a gender-neutral rule.

While these legislative amendments eliminated the existing distinctions for future marriages and children of those marriages, they did not do so retroactively. Therefore, distinctions between women and their descendants created prior to 1985 continue to this day. It is for this reason that Sharon McIvor brought her case before the British Columbia Supreme Court and the British Columbia Court of Appeal.

Sharon McIvor (an Indian woman who married a non-Indian man prior to April 17, 1985) and her son Jacob Grismer asserted that the Indian Act discriminated against them on the basis of sex, contrary to section 15 of the Canadian Charter of Rights and Freedoms. In particular, they alleged that they were unable to transmit status to Jacob Grismer's sons, born after April 17, 1985, even though his cousins would be entitled if their grandfather was an Indian.

On June 8, 2007, the British Columbia Supreme Court ruled that these distinctions were discriminatory and contrary to the Charter. In particular, the Court ruled that section 6 of the Indian Act is of no force and effect insofar as it authorizes the differential treatment of matrilineal and patrilineal descendants born prior to 1985 in conferring Indian status. The Court issued a very broad remedy that might be interpreted to allow registration of all descendants of women who "married out" as far back as 1869. Canada appealed this judgment.

On April 6, 2009, the British Columbia Court of Appeal agreed with the trial's judge's decision that section 6 of the Indian Act infringes Ms. McIvor and Mr. Grismer's right to equality under section 15 of the Charter and that the infringement is not justified by section 1 of the Charter. The decision, however, was reached on narrower grounds than those found by the trial judge. The Court of Appeal found that the unconstitutionality is not in relation to the descendants of all woman who lost status when "marrying-out" any time since 1869. Instead, the Court of Appeal ruled that the Charter violation was limited to the beneficial treatment of persons in the male line previously subject to the transitional provisions relating to the Double-Mother rule, which was introduced in 1951.

The Court of Appeal suspended the declaration of invalidity for 12 months, giving Canada until April 6, 2010 to amend the Indian Act. The Government of Canada will not appeal the decision.