The Legal Environment
By: Lynn Gehl, March 2011

Canada

The Canadian Charter of Rights and Freedoms:

Section 7: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Section 15(1): Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

International

The Universal Declaration of Human Rights:

Article 2 provides for freedom from discrimination on the basis of numerous characteristics, including sex and birth.

Article 7 states that all are equal before the law and are entitled without discrimination to equal protection of the law.

Article 25 might provide fodder for an international challenge to the unknown/unstated paternity policy, given the implications for the mother and child’s standard of living where there is a denial of registration.

(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

(2) Motherhood and childhood are entitled to special care and assistance.  All children, whether born in or out of wedlock, shall enjoy the same social protection.

Convention on the Rights of the Child:

Article 2 provides that state parties shall respect and ensure the rights within, without discrimination of any kind, irrespective of the child’s or the parent’s sex, or birth.

Article 8 protects a child’s right to preserve her/his identity, including nationality, name and family relations as recognized by law and without unlawful interference.

Article 30 provides that children of indigenous origin “shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture.”

The International Covenant on Civil and Political Rights:

Article 2 provides protection from discrimination on the grounds of sex and birth.

Article 17 on individual privacy rights.

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation; and

2. Everyone has the right to the protection of the law against such interference or attacks.

Article 26 provides the standard equality and equal protection of law provisions.

Article 27 guarantees that persons belonging to ethnic minorities may enjoy their own culture, in community with the other members of their group.

(Interestingly, Article 27 was the basis for the success of Sandra Lovelace at the United Nations Human Rights Committee in 1981, where she challenged the now infamous Indian Act provisions wherein a woman lost Indian registration upon “marrying out.” In 1985, the government responded to this international criticism with Bill C-31, restoring registration to these women.)

Source: Mann, Michelle.  Indian Registration: Unrecognized and Unstated Paternity.  June 2005. 7 Sept. 2010 <http://dsp-psd.pwgsc.gc.ca/Collection/SW21-120-2005E.pdf>.