Revisiting Lavell and Bedard

Friday, December 18, 2015

Revisiting Lavell and Bedard


In June of 1971 Jeannette Lavell, Anishinaabe from Manitoulin Island in Ontario, took her complaint regarding the sex-discrimination in section 12(1)b of the Indian Act, that removed Indian status from Indian women when they married non-Indian men as defined by the Indian Act (the same did not apply to Indian men when they married non-Indian women), to the Ontario County Court.  Unfortunately, Lavell lost as the judge determined that she “had equal rights with all other married Canadian women” and as such there was no sex-discrimination.  Race was not factored into the court’s decision.

In the fall of 1971, Lavell appealed to the Federal Court of Appeal.  At this stage of the process the three judges determined that Indian women had fewer rights than status Indian men when they became non-status through marriage.  The judges concluded this to be a violation of the guarantee of non-discrimination within The Canadian Bill of Rights.  In this decision both gender and race were factored into the decision.

The Crown, with their goal of getting rid of Indians, was not happy with this higher court decision and appealed to the Supreme Court of Canada (SCC).

In 1971, Yvonne Bedard, Onondaga from Six Nations in Ontario, also filed a complaint in the Ontario High Court regarding the sex-discrimination in 12(1)b of the Indian Act.  Since the Lavell case had already been heard at the Federal Court of Appeal the two cases were joined together when the Crown filed their appeal to the SCC.

The SCC ruled that Lavell and Bedard had not been discriminated against as Indian women because The Canadian Bill of Rights only guaranteed equality BEFORE the law, not equality UNDER the law.  Equality before the law was interpreted by the court as meaning equality in the administration or application of the law. Another way of understanding this is a rationalization that since all Indian women are equally discriminated against it was not considered discrimination. 

In sum, Indigenous women lost, then won, then lost again because the highest court in the land defined equality in terms of the administration of law rather than the discrimination inherent in the law.  This of course is a pitifully narrow understanding of what equality in law means.  A person does not have to be a shamanic intellectual or a rocket scientist to understand this.

Four Equality Rights Established

In 1982, Canada’s Constitution was repatriated.  A part of the Constitution consists of the Canadian Charter of Rights and Freedoms which assures four equality protections:

Equality before the law;
Equality under the law;
Equal protection of the law; and
Equal benefit under the law.
      
Their Work Served All Women

It is said that the Lavell and Bedard cases informed this broader four part codification of what equality in Canadian law means.  In this way Lavell and Bedard served all Canadian women, not just Indigenous women.  We need to celebrate these women and also assure that Canada lives up to what equality means.  All Canadians, men and women, Indigenous and non-Indigenous need to continually ask ourselves, “Is this broader definition of equality rights afforded to all people?”

See Monture-Angus, P. (1995). Thunder in my Soul.  Halifax: Fernwood Publishing, 135-6.

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Designed by Rachel Gold.