Canada (AG) v Lavell, S.C.R. 1349, was a landmark 5–4 Supreme Court of Canada decision holding that Section 12(1)(b) of the Indian ActR.S.C. 1970, c. I-6. 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,Mrs. Lavell was born Jeannette Vivian Corbiere. 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. S.C.R. 1349 at 1376. 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.RE Lavell v. Attorney General of Canada (1972), 22 D.L.R. (3d) 182 at 187. 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, S.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.RE Lavell and Attorney General of Canada (1971) at 190.
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.Bédard v. Isaac (1971), 25 D.L.R. (3d) 551 (Ont. S.C.) at 552–553. 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.Attorney General of Canada v. Lavell (1974) at 1355 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.Bédard v. Isaac (1971) at 553–554. 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 1377Bédard v. Isaac (1971) at 552.
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.Bédard v. Isaac (1971) at 554. 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".