Jeannette Vivian Corbiere Lavell (Applicant)
v.
Attorney General of Canada (Respondent)
Court of Appeal, Jackett C.J., Thurlow and
Pratte JJ.—Ottawa, October 7, 8, 1971.
Female Indian married to non-Indian—Registration as
member of Band revoked by Registrar—Review by county
court judge—Jurisdiction of county court judge conferred by
federal legislation—Judge not exercising function of county
court Review by Federal Court of Appeal—Federal Court
Act, secs. 2(g), 28, Indian Act, R.S.C. 1970, c. I-6, s.
12(1)(b), B.N.A. Act, s. 96.
Male Indians in similar situation remain registered—
Indian Act discriminates as to sex—Female Indians entitled
to equality before law—Infringement of rights contrary to
Canadian Bill of Rights.
The applicant was a registered member of the Wik-
wemikong Band of Indians until her marriage to a non-Indi-
an. The Registrar had her name struck from the Band list by
reason of s. 12(1)(b) of the Indian Act. Her protest to the
Registrar was dismissed and his decision was confirmed by
a county court judge under review procedures provided by
s. 9(3) of the Indian Act.
Held, the judgment of the county court judge is set aside.
1. Although the judge was appointed under s. 96 of the
B.N.A. Act to the county court, he was not exercising a
function or authority of that court so as to bring him within
the excluding provisions in the definition of "federal board,
commission or other tribunal" in s. 2(g) of the Federal Court
Act. Review proceedings from the decisions of federal
boards, etc., are taken under s. 28 of that Act to the Federal
Court of Appeal. Nor was he exercising jurisdiction con
ferred under provincial legislation so as to bring him within
the same excluding provisions of that Act. Rather, he was
acting as a person designated under the Indian Act, which is
federal legislation, to carry out the function of reviewing the
Registrar's decision, and therefore this Court has, under s.
28 of the Federal Court Act, jurisdiction to review his
decision.
2. A male Indian who marries a non-Indian or an Indian
from another Band continues to be a registered member,
and s. 11(f) of the Indian Act even provides for the registry
of his wife as a member. The difference in the conse
quences within a group or class of married persons consti
tutes discrimination by reason of sex. The legislation
infringes the applicant's right to equality before the law and
the Canadian Bill of Rights applies to render the provisions
of s. 12(1)(b) of the Indian Act inoperative just as the
provisions of s. 94(b) of the Indian Act were declared
inoperative because of discrimination by reason of race.
(Drybones case 11970] S.C.R. 282.)
MOTION to review.
C. C. Ruby for applicant.
N. A. Chalmers, Q. C., and James B. Beckett
for respondent.
The judgment of the Court was delivered by
THURLOW J.—Two points arise on this
motion to review under s. 28 of the Federal
Court Act. The first concerns the jurisdiction of
the Court to review the decision of Judge
Grossberg in view of the definition of "federal
board, commission or other tribunal" in s. 2(g)
of the Act. That definition reads as follows:
2(g) "federal board, commission or other tribunal" means
any body or any person or persons having, exercising or
purporting to exercise jurisdiction or powers conferred by
or under an Act of the Parliament of Canada, other than any
such body constituted or established by or under a law of a
province or any such person or persons appointed under or
in accordance with a law of a province or under section 96
of The British North America Act, 1867;
I have no difficulty in concluding that Judge
Grossberg, when reviewing the Registrar's deci
sion, was acting as a person designated to carry
out that function by or under the Indian Act,
R.S.C. 1970, c. I-6, and was not exercising the
authority of the county court of which he was a
judge. He thus constituted a person having and
exercising jurisdiction or powers conferred by a
statute of the Parliament of Canada and not a
court or other body constituted by or under a
law of a province within the definition.
The interpretation and application of the
remaining portion of the definition, that is to
say, the wording "or any such person or per
sons appointed under or in accordance with a
law of a province or under section 96 of The
British North America Act, 1867," are not as
easy to resolve in view of the fact that, as a
judge of the county court, Judge Grossberg is a
person appointed under section 96 of the Brit-
ish North America Act, but it appears to me
that since the judge, when exercising his powers
and authority under the Indian Act, did not
exercise a function or an authority of the court
of which he is a judge the fact that he, was
appointed to that court under section 96 of the
British North America Act will not serve to
bring him for this purpose within the exclusion
which I have just cited from the definition. It
follows that this Court has jurisdiction under s.
28 of the Federal Court Act to review his
decision.
The other question for determination is
whether s. 12(1)(b) or any other provision of
the Indian Act operates to deprive the applicant
of the right she would otherwise have to be and
remain registered as a member of the Wik-
wemikong Band of Indians. The applicant is a
woman of Indian ancestry and was a registered
member of that Band from her birth until
December 7, 1970 when the Registrar under the
Indian Act struck her name from the Band list.
The Registrar took this action because on April
11, 1970 the applicant had married a person
who is not an Indian. Her protest to the Regis
trar was dismissed and this decision was con
firmed by Judge Grossberg on a review con
ducted at her request under the review
procedure provided by the statute [s. 9].
On the face of it s. 12(1)(b) appears to justify
the Registrar's action for the section provides:
12. (1) The following persons are not entitled to be regis
tered, namely
(b) a woman who married a person who is not an Indian,
unless that woman is subsequently the wife or widow of a
person described in section 11.
Under the Act, however, a male Indian who
marries a woman who is not an Indian does not
lose his right to be and remain registered on the
Band list. Indeed s. 11W even provides for the
registry of his wife as a member of the Band.
Other provisions of the Act from s. 4 to s. 17
inclusive throw somewhat more light on the
system of Indian registry but the foregoing fea
tures of the system appear to me to be ample to
point up the problem.
The applicant contends that this legislation is
rendered inoperative by the Canadian Bill of
Rights since it discriminates against her on the
basis of sex in depriving her of her right to the
status of an Indian and to continue to be regis
tered as a member of the Wikwemikong Band.
Judge Grossberg in a carefully considered
opinion expressed the view that the applicant's
marriage gave her the status of a married
woman with the same capacities and incapacit-
ies as all other Canadian married females and
that this is the equality to be assured to her
under the Canadian Bill of Rights and not
necessarily equality within a group or class of
married persons to whom a particular law of
Canada applies. He therefore confirmed the
Registrar's decision.
As will presently appear I take a somewhat
different view of the problem which the
Canadian Bill of Rights raises. It is clear that
both male Indians and female Indians have
capacity to marry and that each has the capaci
ty 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.
This difference in the consequences of such a
marriage plainly arises under a law of Canada,
i.e., the Indian Act, and in my opinion it consti
tutes ,discrimination by reason of sex within the
meaning of the Canadian Bill of Rights just as
the effect of the statute invoked in the Dry-
bones case 11970] S.C.R. 282, was to discrimi
nate against Drybones on the basis of his race.
It is of course clear that the discrimination in
that case was between the rights of Drybones,
as an Indian to whom the Indian Act applied,
and those of other Canadians not subject to the
particular provision but nevertheless subject
only to the laws of Canada as distinguished
from laws of particular provinces of Canada,
but that this sort of discrimination is not the
only kind within the precept of the Canadian
Bill of Rights and does not represent its full
scope is emphatically stated in the judgment of
Hall J. in the Drybones case. The learned judge
said at page 300:
The social situations in Brown v. Board of Education and
in the instant case are, of course, very different, but the
basic philosophic concept is the same. The Canadian Bill of
Rights is not fulfilled if it merely equates Indians with
Indians in terms of equality before the law, but can have
validity and meaning only when subject to the single excep
tion set out in s. 2 it is seen to repudiate discrimination in
every law of Canada by reason of race, national origin,
colour, religion or sex in respect of the human rights and
fundamental freedoms set out in s. 1 in whatever way that
discrimination may manifest itself not only as between
Indian and Indian but as between all Canadians whether
Indian or non-Indian.
To my mind it makes no difference in the
present case whether the matter is viewed as
between Indian and Indian or simply as
between member and member of the Wik-
wemikong Band of Indians. In either view the
apparent effect of the legislation is, in my opin
ion, to discriminate by reason of sex. To this
extent therefore the case of the applicant
appears to me to be made out.
There is, however, another and perhaps a
more elusive facet of the problem, that is to
say, whether such discrimination by reason of
sex abrogates, abridges or infringes the human
right of the applicant as an individual, which is
recognized and declared by the statute to have
existed and to continue to exist, to equality
before the law.
The meaning of this expression in the
Canadian Bill of Rights was considered in the
Drybones case where Ritchie J. speaking for the
majority of the Supreme Court said at page
297:
I think that the word "law" as used in s. 1(b) of the Bill of
Rights is to be construed as meaning "the law of Canada"
as defined in s. 5(2) (i.e. Acts of the Parliament of Canada
and any orders, rules or regulations thereunder) and without
attempting any exhaustive definition of "equality before the
law" I think that s. 1(b) means at least that no individual or
group of individuals is to be treated more harshly than
another under that law, and I am therefore of opinion that
an individual is denied equality before the law if it is made
an offence punishable at law, on account of his race, for
him to do something which his fellow Canadians are free to
do without having committed any offence or having been
made subject to any penalty.
Later in his reasons Ritchie J. restated his posi
tion and in doing so he said at page 298:
In my view under the provisions of s. 1 of the Bill of
Rights "the right of the individual to equality before the
law" "without discrimination by reason of race" is recog
nized as a right which exists in Canada, and by ss. 2 and 5
of that Bill it is provided that every law of Canada enacted
before or after the coming into force of the Bill, unless
Parliament makes an express declaration to the contrary, is
to be "so construed and applied as not to abrogate, abridge
or infringe or to authorize the abrogation, abridgement or
infringement" of any of the rights so recognized and
declared.
It may well be that the implementation of the Canadian
Bill of Rights by the courts can give rise to great difficulties,
but in my view full effect must be given to the terms of s. 2
thereof.
The present case discloses laws of Canada which abro
gate, abridge and infringe the right of an individual Indian to
equality before the law and in my opinion if those laws are
to be applied in accordance with the express language used
by Parliament in s. 2 of the Bill of Rights, then s. 94(b) of
the Indian Act must be declared to be inoperative.
It appears to me to be desirable to make it plain that these
reasons for judgment are limited to a situation in which,
under the laws of Canada, it is made an offence punishable
at law on account of race, for a person to do something
which all Canadians who are not members of that race may
do with impunity; in my opinion the same considerations do
not by any means apply to all the provisions of the Indian
Act.
The last paragraph of this quotation appears to
me to show that the Drybones case cannot be
regarded as having determined the particular
problem which must now be decided but it
seems to me that the statutory provisions here
under consideration manifestly work a disad
vantage to an Indian woman who marries a
person who is not an Indian by depriving her of
her right to registration as a member of her
Band or as an Indian and in consequence to the
rights of an Indian under the Indian Act.
These provisions are thus laws which abro
gate, abridge and infringe the right of an
individual Indian woman to equality with other
Indians before the law. Though this is not a
situation in which an act is made punishable at
law on account of race or sex, it is one in which
under the provisions here in question the conse
quences of the marriage of an Indian woman to
a person who is not an Indian are worse for her
than for other Indians who marry non-Indians
and than for other Indians of her Band who
marry persons who are not Indians. In my opin
ion this offends the right of such an Indian
woman as an individual to equality before the
law and the Canadian Bill of Rights therefore
applies to render the provisions in question
inoperative.
I would set aside the decision of Judge Gross-
berg and refer the matter back to him to be
disposed of on the basis that the provisions of
the Indian Act are inoperative to deprive the
applicant of her right to registration as a
member of the Wikwemikong Band of Indians.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.