Executive Summary: Key Legal and Evidentiary Issues

• Scope of the federal Crown’s restricted legislative immunity when Parliament enacts a law later declared unconstitutional, and the high threshold to pierce that immunity under section 24(1) of the Charter.
• Assessment of whether the 1985 amendments to the Indian Act, particularly section 6 and the “second-generation cut-off” rule, were “clearly unconstitutional” at the time of their adoption.
• Examination of alleged bad faith or abuse of power by Parliament in maintaining vested rights and structuring status rules that produced residual sex-based discrimination against descendants of Indigenous women.
• Admissibility and use of parliamentary debates and committee evidence in light of parliamentary privilege when evaluating legislative intent, knowledge of discriminatory effects, and the “clearly unconstitutional” standard.
• Interaction between section 24(1) Charter damages and section 52(1) constitutional invalidity, including whether a declaration of invalidity of the Indian Act provisions automatically supports a monetary remedy.
• Effect and reach of the 2010 remedial statute and its immunity clause, particularly in relation to claimants who only obtained Indian status after 2010 but allege historic loss of benefits between 1985 and 2010.

Factual background

The case arises from a long history of sex-based discrimination in the federal Indian Act’s rules on who qualifies as an “Indian” and who can transmit that status to descendants. Historically, an Indigenous man who married a non-Indigenous woman kept his status and transmitted it to his wife and children, while an Indigenous woman who married a non-Indigenous man lost her status and could not transmit it to her spouse or children. These provisions, combined with rules such as the “double mother rule,” had devastating multi-generational effects on Indigenous women and their families. The 1985 amendments to the Indian Act (often referred to as the “Loi de 1985”) were enacted when section 15 of the Canadian Charter of Rights and Freedoms (equality rights) was coming into force. The amendments aimed to end historic discrimination while preserving vested rights of those who already held status. They created new categories of registration in section 6(1) and section 6(2). A key feature was the “second-generation cut-off”: someone with only one status parent registered under section 6(2) could not transmit status to their own children with a non-status partner. This structure, combined with preservation of pre-1985 vested rights, produced a residual inequality between descendants of status-holding men and women. If a grandmother had lost status by marrying a non-Indigenous man before 1985, her grandchildren were disadvantaged compared to the grandchildren of a status man who had married a non-Indigenous woman.

The plaintiff and the class action structure

The representative plaintiff, Denis Sarrazin, belongs to the group of people whose grandmothers were Indigenous women who lost status upon marrying non-Indigenous men, then regained status under the 1985 amendments via section 6(1)(c). Sarrazin’s grandmother lost her status through marriage to a non-Indigenous man, then became entitled again to Indian status under section 6(1)(c) after 17 April 1985. His mother then acquired status under section 6(2) by virtue of her mother’s reinstated status. Because his mother held only section 6(2) status, she could not transmit status to him while he was a child and young adult; he was refused status until after the 2010 amendments, ultimately obtaining registration only in 2012. Sarrazin alleged that during the period when he was wrongly excluded from status he lost access to educational, employment and other advantages generally associated with being a registered Indian. He filed a Quebec class action on behalf of a precisely defined group: people whose grandmothers lost status by marrying out, later regained status under section 6(1)(c) of the 1985 Act, whose sole Indian parent is entitled under new section 6(1)(c.1) after the 2010 legislation, and who themselves are only eligible for status under section 6(2). The first phase of the class action was limited, by an earlier authorization judgment, to the preliminary issues of Crown immunity and the effect of the 2010 statute’s immunity clause, leaving quantum and individual damage issues to a later phase if liability could be established.

Legislative and policy context before and after 1985

The court recounts the evolution of Indian Act status rules from Confederation onward. From 1869 onward, the law codified a patriarchal approach: Indigenous women marrying non-Indigenous men lost their status, while non-Indigenous women marrying Indigenous men gained it, and children’s status followed the father. Major revisions in 1951 introduced the Indian Register and restated these sex-based rules, adding the “double mother rule,” under which certain children with two successive non-Indigenous grandmothers through the paternal line lost status at 21. These provisions were widely criticized by Indigenous women’s groups and some First Nations as incompatible with both Indigenous traditions of belonging and emerging equality norms. In the late 1960s and 1970s, policy debates intensified. The federal “White Paper” proposed abolishing the Indian Act and special status entirely, provoking Indigenous backlash and the “Red Paper,” which asserted that Indigenous peoples are “citizens plus” with additional rights rooted in treaties and prior occupation. Parallel movements developed: one pushing to eradicate sex discrimination in the Act; another insisting on band and First Nations autonomy over membership and citizenship. The federal government faced intense, often conflicting pressure—from Indigenous women seeking equality and reinstatement, from First Nations leadership concerned about resource capacity and cultural continuity, and from those insisting on self-government and collective rights. In 1985, section 15 of the Charter was about to come into force, with a three-year delay to allow governments to review their laws. The degree to which the Charter’s new equality guarantee would depart from the narrow “equality before the law” approach under the Canadian Bill of Rights was not yet settled, and leading Charter equality cases (such as Andrews and Kapp) had not yet been decided.

The 1985 amendments and the residual discrimination problem

The 1985 Act was adopted after long consultations, multiple committee reports and extensive parliamentary debate. Its stated objectives included: eliminating sex discrimination; restoring status to those who had lost it due to discriminatory provisions (such as women who married out and those affected by the double mother rule); ensuring that people would not gain or lose status by marriage in the future; preserving vested rights of those who already held status; and enabling First Nations that chose to do so to control their own band membership. The resulting regime preserved the status of non-Indigenous women who had gained status through marriage, reinstated Indigenous women who had lost status by marrying non-Indigenous men under section 6(1)(c), and reinstated those who had lost status under the double mother rule, also under section 6(1)(c). It then introduced a two-tier status framework: those with two status parents (or equivalent under the transitional rules) received section 6(1) status, which could be transmitted to children with non-status partners (those children would receive section 6(2)); but those with only one status parent received section 6(2) status and could not transmit status to children of non-status partners, because a second generation of “mixed” parentage without a second status parent caused a cut-off. This structure produced a residual sex-linked inequality rooted in the historic discrimination. Where the original “marrying out” ancestor was a woman, the reinstatement and status transmission often stopped after the second generation: grandchildren of the reinstated woman typically held only section 6(2) status or no status at all. Where the original ancestor was a man who had married a non-Indigenous woman and conferred her status, his descendants were more likely to be treated as having two status parents and thus be in the stronger section 6(1) position, able to transmit status one more generation despite similar patterns of “out-marriage.”

The McIvor decision and the 2010 remedial legislation

In McIvor, the British Columbia Court of Appeal examined this residual inequality. It held that, although the 1985 regime on its face treated men and women equally going forward, the transitional structure that preserved vested rights and abolished the double mother rule in a particular way left some descendants of women worse off than similarly-situated descendants of men. The Court of Appeal found a violation of section 15 of the Charter and concluded that the infringement was not justified under section 1, primarily because the government failed the minimal-impairment branch of the Oakes test. The court accepted that the objectives—eliminating sex discrimination, respecting vested rights, and avoiding an unmanageable influx that might overwhelm band resources and affect cultural integrity—were pressing and substantial. It also found a rational connection and that the beneficial effects of the 1985 regime outweighed its harmful effects in general. However, it held that the specific way in which benefits were preserved for those formerly subject to the double mother rule afforded “an additional advantage to an already advantaged group,” going beyond what was necessary to protect vested rights. The declaration of invalidity was suspended for a year, and the federal government responded by enacting the 2010 legislation, which modified section 6 (notably adding subsection 6(1)(c.1)) to extend status to additional descendants affected by the residual inequality. It was only after the 2010 Act came into force that Sarrazin and other class members obtained Indian status. The 2010 statute also included section 9, an immunity clause purporting to bar claims for compensation or damages against the Crown and band councils for acts or omissions performed in good faith in connection with the previous non-registration of individuals whose parents became entitled under new section 6(1)(c.1). In this case, all parties ultimately accepted that this clause cannot constitutionally provide broader protection than the restricted immunity the Supreme Court of Canada recognized in its jurisprudence; the Superior Court therefore treated the analysis as turning on common-law and Charter-based immunity principles, as clarified in Canada (Attorney General) v. Power, rather than on section 9 itself.

Charter damages, state immunity and the “clearly unconstitutional” test

The plaintiff did not ask the Superior Court to rule again on the constitutionality of the 1985 provisions; McIvor had already held that certain aspects of the regime violated section 15 of the Charter, and the Attorney General did not seriously dispute that conclusion for the purposes of this phase. The real question was remedial: could a class of affected individuals obtain damages under section 24(1) of the Charter for the period between 1985 and 2010, or was the Crown shielded by legislative immunity? Under section 24(1), courts may grant “such remedy as the court considers appropriate and just in the circumstances” when Charter rights are infringed. However, the Supreme Court has long recognized that the state must enjoy a “restricted” immunity for core legislative functions; otherwise, every subsequently invalidated statute would automatically expose the Crown to massive retroactive damages, chilling the legislative process. In Mackin, the Supreme Court held that Charter damages for unconstitutional legislation are only available where the government has acted in a “clearly wrong” way, in bad faith, or with an abuse of power. In Power, decided while this class action was pending, the Supreme Court reaffirmed restricted immunity but reformulated the standard more precisely: damages may be awarded where a statute was “clearly unconstitutional” at the time of its adoption, or where the state acted in bad faith or abused its power in enacting it. The inquiry is objective and must be conducted as of the time of enactment, taking into account the presumption that legislatures know and respect Charter rights, but also the evolving and often unsettled nature of constitutional doctrine—especially in the early years after the Charter came into force. The Superior Court applied this Power framework to Sarrazin’s claim. It accepted that equality rights are robust and that the 1985 regime, as later interpreted, did perpetuate a residual inequality. But it emphasized that in 1985 section 15 had just come into force, the leading equality cases had not yet been decided, and Parliament was working in a complex, “polycentric” policy environment—balancing removal of sex discrimination, protection of vested rights, First Nations’ concerns about identity and resources, and demands for self-government.

Parliamentary privilege and evidentiary issues

A significant procedural and evidentiary issue concerned the plaintiff’s reliance on parliamentary debates, committee transcripts and internal briefing materials to argue that the government knew, or ought to have known, that its 1985 solution was unconstitutional, and that it acted in bad faith or with abuse of power. The Attorney General objected, invoking parliamentary privilege and arguing that such materials were inadmissible or could not be used to impugn the legislative process. The court reviewed the constitutional principles governing parliamentary privilege, including the Bill of Rights 1689 and Supreme Court authority holding that privilege protects free speech in Parliament and shields proceedings from being “impeached or questioned” in external courts, but must be interpreted strictly and only to the extent necessary for the legislature’s functioning. After considering more recent guidance, including Power, the court held that while certain uses of parliamentary materials (such as calling MPs to testify or directly attacking them personally) are barred, courts may rely on debates and committee evidence as contextual, interpretive and, in some circumstances, evidentiary material. In particular, the court found it permissible to examine such records to understand the legislative objectives, the range of policy options considered, and whether the law was “clearly unconstitutional” or adopted in bad faith. It ultimately rejected the Attorney General’s objections, allowed the plaintiff’s amended pleading, and admitted the contested parliamentary documents, while cautioning that such evidence must be used carefully, recognizing its limits and the risk of cherry-picking statements that do not represent Parliament’s collective intent.

Assessment of whether the 1985 law was “clearly unconstitutional”

On the merits of immunity, the court focused on two questions: whether the 1985 amendments were “clearly unconstitutional” when adopted, and whether Parliament acted in bad faith or abused its power. The plaintiff and the intervenor, Femmes Autochtones du Québec (FAQ), advanced four main arguments: that Parliament knowingly chose only the constitutional “minimum”; that financial concerns drove the choices; that the government was repeatedly warned of the law’s unconstitutionality; and that the inclusion of an immunity clause in 2010 showed awareness that the 1985 choices had been clearly unconstitutional. The court was not persuaded. It held, first, that the legislative and social context made the 1985 design far from an obvious Charter violation. Parliament was trying to reconcile strongly competing imperatives: remedy historical discrimination against Indigenous women and their descendants; respect vested rights of people who had long held status; preserve band resources and cultural continuity in the face of potentially large influxes of new registrants; and recognize First Nations’ aspirations to control their own membership and citizenship. Against that backdrop, and with equality jurisprudence in its infancy, it could not be said that only one constitutional solution was available or that the chosen compromise was plainly beyond Charter limits. Second, the record showed that while cost projections were prepared and considered, the government in fact chose more expensive options—such as reinstating past status and preserving vested rights—over less costly minimalist approaches. Internal documents expressly advised that financial implications should not be the primary determinant. That evidence undermined any claim that Parliament deliberately sacrificed equality rights for budgetary convenience in a way that would meet the high threshold for “clearly unconstitutional” action. Third, the fact that Indigenous organizations, women’s groups, officials and some parliamentarians criticized draft provisions or warned of possible Charter problems did not, in itself, prove that the law was clearly unconstitutional. Vigorous debate and constitutional warnings are part of normal democratic law-making. Treating every serious objection as converting subsequent judicial invalidation into a “clear” and compensable unconstitutionality would deter open consultation and discourage governments from testing defensible legislative options in unsettled areas of law. The court highlighted that scrutiny must remain objective; it cannot hinge on the most pessimistic views voiced in the record. Finally, the court rejected the reliance on the 2010 immunity clause as retrospective proof of knowledge in 1985. The clause was enacted decades later, after McIvor had clarified the residual discrimination, and it expressly referred to acts done “in good faith” in relation to non-registration. It could not be used to reconstruct the state of constitutional understanding or legislative intent at the time of the 1985 amendments. In light of all these factors—particularly the evolving state of equality jurisprudence, the complexity of the policy environment, and the fact that the McIvor Court of Appeal itself engaged in a lengthy and nuanced section 15 and section 1 analysis—the Superior Court concluded that the 1985 regime could not reasonably be characterized as “clearly unconstitutional” when adopted.

Bad faith and abuse of power

The court also rejected the contention that Parliament acted in bad faith or abused its power. Power leaves open a narrow window for damages where a legislature acts dishonestly, pursues illegitimate motives, or grossly abuses its authority. Sarrazin attempted to place the 1985 process within that window by emphasizing testimony and documents mentioning financial constraints, warnings of discrimination, and political compromises. The court instead found evidence of a transparent, multi-year process that engaged a wide spectrum of Indigenous and non-Indigenous voices, spanning changes of government and multiple ministers. There was no indication that Parliament sought deliberately to entrench discrimination, to target Indigenous women and their descendants for adverse treatment, or to exploit unconstitutional provisions for ulterior ends. Rather, Parliament made a complex policy judgment, later found by the courts to fall short of full equality, but not so obviously or egregiously that it could be said to have been taken in bad faith. The court stressed that restricted immunity is designed precisely to protect such good-faith legislative experimentation in uncertain constitutional terrain.

Outcome and implications

Given its findings, the Superior Court held that the Attorney General of Canada could rely on the Crown’s restricted legislative immunity as clarified in Power and Mackin. Because the plaintiff had not established that the 1985 amendments were clearly unconstitutional at the time of their enactment, and had not shown bad faith or abuse of power, the high threshold to pierce immunity was not met. As a result, Charter damages under section 24(1) were not an “appropriate and just” remedy in these circumstances, despite the earlier declaration of constitutional invalidity in McIvor and the later adoption of remedial amendments in 2010. The court therefore dismissed the Re-Amended Originating Application and allowed the Attorney General’s immunity defence to succeed. It also rejected the Attorney General’s evidentiary objections based on parliamentary privilege but noted that, even considering all of the plaintiff’s proffered material, the conclusion on immunity remained the same. In the formal disposition, the court (1) allowed the plaintiff to file his re-amended originating application; (2) overruled the Attorney General’s objection to the parliamentary documents; (3) upheld the Attorney General’s immunity defence; and (4) dismissed the plaintiff’s class action, “with costs.” However, the judgment does not specify any particular monetary amount for costs; those are left to be determined according to ordinary procedural rules. There is no award of damages or compensation to the class at all. In practical terms, the successful party is the Attorney General of Canada, who obtains dismissal of the action with an entitlement to recover legal costs, but the total amount of any costs or fees in the Attorney General’s favour cannot be determined from this judgment.