Attorney General of Canada v. Lavell

''Canada (AG) v Lavell'', 974S.C.R. 1349, was a landmark 5–4 Supreme Court of Canada decision holding that Section 12(1)(b) of the '' Indian Act'' did not violate the respondents' right to "equality before the law" under Section 1 (b) of the '' Canadian Bill of Rights''. The two respondents, Lavell and Bédard, had alleged that the impugned section was discriminatory under the ''Canadian Bill of Rights'' by virtue of the fact that it deprived Indian women of their status for marrying a non-Indian, but not Indian men.

The Supreme Court's decision proved very controversial, later influencing the wording of Section 15 of the Canadian Charter of Rights and Freedoms during the drafting process.

Background to Mrs. Lavell

Mrs. Lavell, a member of Wiikwemkoong First Nation, married David Lavell, a journalism student at Ryerson Polytechnical Institute in Toronto, on April 11, 1970. She was promptly delivered a notice from the Department of Indian Affairs and Northern Development indicating that due to her marriage to a person not registered as Indian, she would no longer be considered an Indian by law. On December 7, 1970, the Indian Registrar deleted her name from the Registry in accordance with Section 12(1)(b) of the ''Indian Act''. Mrs. Lavell disputed her loss of status to the registrar, but without success.

At Mrs. Lavell's request for judicial review of the Registrar's decision, Mrs. Lavell's case was referred to Judge B.W. Grossberg of the York County Court as per section 9(3) of the ''Indian Act''. Mrs. Lavell argued that Section 12(1)(b) of the ''Indian Act'' was inoperative due to an irreconcilable abridgement of her right to equality before the law, guaranteed by the ''Canadian Bill of Rights''. In particular, Mrs. Lavell asserted that the ''Indian Act'' discriminated against Indian women since only they lost their status as an Indian under the ''Act'', whereas Indian men could marry whomever they so desired without adverse legal consequence. The decision of registrar, she argued, must therefore be reversed.

In the case's proceedings, counsel for the Attorney General of Canada presented evidence to the court demonstrating that Mrs. Lavell had not lived on a single reserve for a period of nine years before her marriage and that she had only made a few "sporadic" visits to her family. Furthermore, counsel argued that as far as the law was concerned, the ''Indian Act'' did not discriminate against Indian women. In defence of this proposition, counsel noted that the Supreme Court has rejected the 'similarly situated doctrine' as the appropriate measure of a party's equality before the law.'' The Queen v. Drybones'', 970S.C.R. 282, overruling ''R. v. Gonzales'' (1962), 32 D.L.R. (2d) 290, 132 C.C.C. 237, 37 C.R. 56 (B.C.C.A.). In ''Drybones'' discrimination was ruled to have occurred between Indians and Canadians (i.e. Indians were prohibited from becoming intoxicated off a reserve, whereas Canadians were free to become intoxicated without penalty) and not between fellow Indians (e.g. the law prohibited all Indians from becoming intoxicated off a reserve). The appellant, Mrs. Lavell, therefore, counsel for the Attorney General argued, must be compared not to married Indian men, but to all married Canadian women in order to establish whether or not discrimination has in fact occurred by reason of sex.

Judgement of Judge B. W. Grossberg as ''persona designata'' (York County Court)

Grossberg affirmed and upheld the Registrar's decision, holding that the impugned Section of the ''Indian Act'' did not discriminate against the appellant on the basis of sex. Judge Grossberg noted that the ''Indian Act'' treated all married women equally, Indian or not:

::The appellant entered into a voluntary marriage which gave her the status and all the rights enjoyed by all other Canadian married females. Her marriage also imposed on her the same obligations imposed on all other Canadian married females ...''RE Lavell v. Attorney General of Canada'', at 186.

Judge Grossberg also dismissed the appellant's arguments regarding the different distinctions between male and female Indians, stating that he had difficulty fathoming how such alleged inequalities within different groups of Canadian society are necessarily offensive to the ''Canadian Bill of Rights''. As a matter of fact, Judge Grossberg suggests that it is a laudable point in Canadian history that the appellant is no longer an Indian, since she now she enjoys the same rights and freedoms of all Canadians; a feat which he construes as consistent to the recommendations of the "Report of the Royal Commission on the Status of Women in Canada".

To that end Section 12(1)(b) of the ''Indian Act'', the Judge concludes, is not inoperative in the face of the ''Canadian Bill of Rights''.

Judgement of the Federal Court of Appeal

Mrs. Lavell appealed Judge Grossberg's decision to the Federal Court of Appeal, arguing that Judge Grossberg erred in his determination that the impugned Section of the ''Indian Act'' was not in violation of the appellant's right to equality before the law.

Mr. Justice Thurlow, writing for a unanimous court, agreed, declaring the impugned section discriminatory on the basis of sex. Citing the Supreme Court of Canada's decision in '' Drybones'', Justice Thurlow rejected the reasoning of Judge Grossberg that since all women, Canadian and Indian, were being treated the same under the ''Act'' that there was no deprivation of the appellant's equality before the law. Rather, Justice Thurlow determines that in order for the ''Indian Act'' to respect the equality of the appellants, the law must treat Indian women by the same fashion as it treats Indian men: as equals. Section 12(1)(b) of the ''Indian Act'', Justice Thurlow reasons, does not treat Indian women in such a manner:

::It is clear that both male Indians and female Indians have capacity to marry and that each has the capacity and the right to contract a marriage either with another Indian or with a person who is not an Indian. The ''Indian Act'', however, which is a law made by the Parliament of Canada for Indians, prescribes a different result with respect to the rights of an Indian woman who marries a person other than an Indian, or an Indian of another band, from that which is to obtain when a male Indian marries a person other than an Indian, or an Indian who is a member of another band.''RE Lavell and Attorney General of Canada'' (1971), 22 D.L.R. (3d) 188 at 191.

Justice Thurlow also noted that should a male Indian marry a non-Indian, not only will his legal status as an Indian remain unchanged, the ''Indian Act'' also provides that his wife may also be registered as an Indian.

Being of the opinion that the Court could not apply the ''Indian Act'' in the case at bar without infringing the appellant's rights under the ''Canadian Bill of Rights'', Justice Thurlow declared the impugned provision inoperative.

Background to Mrs. Bédard

Yvonne Bédard was born in the Six Nations Indian Reserve in Brantford as a member of the Iroquois Nation. In May 1964, Mrs. Bédard married a non-Indian, begetting two children with him. Mrs. Bédard and her spouse lived together off the Reserve until June 23, 1970, when they separated. Mrs. Bédard returned with her two children to the Reserve to live in a house bequeathed to her by her mother, Carrie Williams. Since Mrs Bédard had married a non-Indian, she was no longer listed in the Registry as an Indian. When she began to occupy the house on the reserve, the Six Nations Band Council passed a resolution ordering Mrs. Bédard to dispose of the property within the next six months, during which time she could live there. The Council later adopted two additional resolutions allowing Mrs. Bédard to live in the house for another six months, and then another two months, but no longer than that. In order to act in accordance with the council's resolutions, Mrs. Bédard eventually transferred ownership of the property to her brother (a registered member of the Band) who was granted a Certificate of Possession of the property on March 15, 1971, by the Minister of Indian Affairs as required by the ''Indian Act''. Mrs. Bédard and her children, with her brother's consent, remained to occupy the premises without rent. On September 15, 1971, the Six Nations Band Council passed Resolution 15, requesting the Brantford District Supervisor to serve notice to Mrs. Bédard that she shall quit the Reserve. Mrs. Bédard would later lose her status as an Indian shortly after taking the Six Nations Band Council to Court, slightly before she could deliver her statement of claim against the council.

After the Six Nations Band Council passed Resolution 15, Mrs. Bédard immediately sought an injunction in court to enjoin her expulsion from the Reserve as well as an order setting aside Resolution 15, passed by the Band Council. The motion for an injunction was later withdrawn in court, with Mrs. Bédard's counsel agreeing that only a declaratory relief against the Six Nations Band Council would be sought.''Attorney General of Canada v. Lavell'' (1974) at 1377

Mrs. Bédard argued that the Band Council's resolution, authorizing that a request be made to the District Supervisor to expel her from the Reserve, and any action taken in accordance with such a request by the District Supervisor, as well as the removal of her name from the Band Registry because of her marriage to a non-Indian constituted discrimination on the basis of sex and race viz-à-viz her right to the "enjoyment of property, and the right not to be deprived thereof except by due process of law", guaranteed by Section 1(a) of the ''Canadian Bill of Rights''. Therefore, she asserted, it follows that the Band Council's actions are without force or effect.

The Band Council, the defendants in the case, argued, by contrary, that not every distinction is necessarily discriminatory. Only those distinctions which are adverse to the group with which they are being made can be categorized as discrimination as used in the ''Canadian Bill of Rights''. To that end, the defendant is given "some advantages elsewhere in the Act" with which do not apply to male Indians, and thus compensates for certain disadvantages she may experience.''Bédard v. Isaac'', (1971) at 556.

Judgement of the Ontario Supreme Court

Judge Osler, in his reasons for judgement, held that Section 12(1)(b) is inoperative by virtue of the ''Canadian Bill of Rights''.
The judge rejected the reasoning of the defendant that such "disadvantages" produced by the ''Indian Act'' can be "compensated" for by other provisions which favour Indian women. The distinction made by the ''Indian Act'', he asserts, whether the said distinction must be adverse or not to constitute discrimination, is clearly adverse toward the plaintiff to constitute discrimination:

:: it is perfectly apparent that the loss of status as an Indian and the loss of the right to be registered and to occupy property upon a reserve is discrimination which is adverse to the interest of Indian women ...

With respect to the Federal Court of Appeal's decision in ''Re Lavell and Attorney General of Canada'', he holds that it is not binding as a matter of ''stare decisis''. Judge Osler, however, held it of persuasive value which, in light of the reasons given by the Supreme Court of Canada in ''Drybones'', he found correct as a matter of law. In particular, he agreed that since Indian women obtain a different result for marrying a non-Indian spouse, it is "plainly discrimination by reason of sex with respect to the rights of an individual to the enjoyment of property".

Therefore, pursuant to the Supreme Court of Canada's decision in ''Drybones'', Osler held that it is "the duty of the Court ... to declare s. 12(1)(b) of the ''Indian Act'' inoperative", which he did, declaring all actions of the Band Council and the District Supervisor in accordance with the impugned provision to be of no effect.''Bédard v. Isaac'', (1971) at 557.

Judgement of the Supreme Court of Canada

The cases of both Mrs. Lavell and Mrs. Bédard's cases were appealed to the Supreme Court of Canada and were heard together.

In a 4–1–4 vote, the Supreme Court of Canada allowed the appeals, setting aside the respective judgements of the Ontario Supreme Court and Federal Court of Appeal.

Plurality opinion

Justice Ritchie, writing for the plurality (Fauteux C.J., Martland, Judson and Ritchie JJ.), held that the enfranchisement of Indian women for marrying a non-Indian, as devised under Section 12(1)(b) of the ''Indian Act'', did not constitute a denial of the respondent's right to equality before the law. Hence, Ritchie did not find that the impugned Section of the ''Indian Act'' is inoperative. In the course of making this decision, Justice Ritchie addressed numerous questions of law as follows.

Firstly, Ritchie held that the ''Canadian Bill of Rights'' did not have the effect of rendering the entirety of the ''Indian Act'' inoperative because it deals solely with Indians (i.e. allegedly discrimination). Such a proposition, he argued, stands in contrast to the Court's jurisprudence and the very tenets of the common law, and dismissed it as a thinly veiled assault on the powers given exclusively to the Federal Parliament by the Constitution:

To suggest that the provisions of the ''Bill of Rights'' have the effect of making the whole ''Indian Act'' inoperative as discriminatory is to assert that the ''Bill'' f Rightshas rendered Parliament powerless to exercise the authority entrusted to it under the constitution of enacting legislation which treats Indians living on Reserves differently from other Canadians in relation to their property and civil rights.''Attorney General of Canada v. Lavell'' (1974) at 1359.

Ritchie argued that Parliament cannot properly exercise the powers vested in it, if it cannot define the qualifications required to be an Indian and to "use and benefit of Crown lands reserved for Indians". Also, citing the preamble to the ''Canadian Bill of Rights'' (which describes Parliament's intention to enact a ''Bill of Rights'' "which shall reflect the respect of Parliament for its constitutional authority"), it would appear, Ritchie asserted, that the ''Bill'' does not purport to "amend or alter the terms of the ''British North America Act''". Moreover, Ritchie also noted that the majority in Drybones clearly disavowed of an approach that would render an entire Act inoperative because of a violation, which held instead that only the offending provision should be construed as inoperative.

Secondly, Ritchie also held that Parliament did not intend the ''Canadian Bill of Rights'' to fundamentally change or alter any constitutional scheme such as those contained in the ''Indian Act'' and, in particular, those provisions which constitute a "necessary structure . . . for the internal administration of the life of Indians on Reserves and their entitlement to the use and benefit of Crown lands"?''Attorney General of Canada v. Lavell'' (1974) at 1360. It was a widely accepted convention, he argues, that an Act, in which Parliament exercises its constitutional functions, can only be changed or amended "by plain statutory language expressly enacted for the hatpurpose." With respect to this case, he contended that Parliament did not intend to amend the ''Indian Act'' with the "use of broad general language directed at the statutory proclamation of the fundamental rights and freedoms enjoyed by all Canadians . . . Citing the case of ''Barker'' v. ''Edger'' with approval and applying the Privy Council's reasoning in that case, Ritchie concluded that the ''Canadian Bill of Rights'', likewise, did not and cannot amend the ''Indian Act''. For good measure, Ritchie also noted that Justice Pigeon came to similar conclusion in ''Drybones''.

Thirdly, Justice Ritchie also disagreed with the respondent's interpretation of Justice Laskin's opinion in '' Curr'' that a provision of a statute is inoperative purely on the basis of discrimination and that a violation of one of the rights and freedoms guaranteed by Section 1 of the ''Canadian Bill of Rights'' need not be established. Ritchie contends that Justice Laskin merely stated in his majority opinion that the rights guaranteed in paragraphs (a) to (f) (of Section 1) are guaranteed "irrespective of race, national origin, colour or sex." In other words, Section 1 rights are universal, which he argues is supported by the locution of the French version of the ''Bill of Rights''. Furthermore, Ritchie held that the notion that the ''Bill of Rights'' prohibits discrimination alone does not comport with the purposes of the ''Bill of Rights'', which are to guarantee that the rights and freedoms that are 'recognized and declared.' The right to be free of discrimination, he remarks, is not one of them per se.

Finally, Justice Ritchie held that the question of law that is applicable in the present case should be

... confined to deciding whether the Parliament of Canada in defining the prerequisites of Indian Status so as not to include women of Indian birth who have chosen to marry non-Indians, enacted a law which cannot be sensibly construed and applied without abrogating, abriding or infringing the rights of such women to equality before the law.''Attorney General of Canada v. Lavell'' (1974) at 1365.

To that end, Ritchie held that the meaning of rights and freedoms in the ''Bill of Rights'' is exactly the same meaning "which it bore in Canada at the time when the ''Bill'' was enacted, and it follows that the phrase 'equality before the law' is to be construed in light of the law existing in Canada at that time." In Ritchie's opinion, 'equality before the law' cannot be construed as "the egalitarian concept exemplified by the 14th Amendment of the U.S. Constitution ... " Instead, citing the preamble of the ''Bill of Rights'', Ritchie contended that 'equality before the law' should be construed in the context of the rule of law. Drawing from the writings of Dicey, Ritchie remarked that 'equality before the law' is described as an aspect of the rule of law that "carries the meaning of equal subjection of all classes to the ordinary law of the land as administered by the ordinary courts." Ritchie also extended this interpretation of 'equality before the law' to the "application of the law by law enforcement authorities."

Applying, this interpretation of 'equality before the law', Ritchie noted that the impugned scheme has been in force and effect since 1869, that is for at least a hundred years. Furthermore, Ritchie argued that a "careful reading" of the ''Indian Act'' reveals that the section held inoperative in Drybones was criminal legislation "exclusively concerned with behaviour of Indians ''off'' a Reserve", whereas Section 12(1)(b) is legislation "enacted as a part of the plan devised by Parliament, under s. 91(24) British_North_America_Act_for_the_regulation_of_the_internal_domestic_life_of_Indians_on_Reserves."_''Drybones'',_therefore,_can_be_distinguished_from_this_case,_Ritchie_argued,_because_the_majority_of_the_Court_in_''Drybones''_held_that_the_impugned_section_"could_not_be_enforced_without_bring_about_inequality_between_one_group_of_citizens_and_another_and_that_this_inequality_was_occasioned_by_reason_of_the_race_of_the_accused."_This_case,_Ritchie_noted,_does_not_involve_the_criminal_law;_therefore,_Drybones_"can ..._have_no_application_to_the_present_appeals".

As_such,_Ritchie_concluded_that_there_is_no_denial_of_"equality_before_the_law",_since_"no_such_inequality_is_necessarily_entailed_in_the_construction_and_application_of_s._12(1)(b)".

_Concurring_opinion

Justice_

Justice,_in_its_broadest_sense,_is_the_principle__that_people_receive_that_which_they_deserve,_with_the_interpretation_of_what_then_constitutes_"deserving"_being_impacted_upon_by_numerous_fields,_with_many_differing_viewpoints_and_perspective_...