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The Court was unanimous in its Reasons for Judgement which were read by Mr. Justice Thurlow. After first giving reasons why it was a proper case to be heard by the Federal Court of Appeal, Mr. Justice Thurlow went on to give reasons for declaring the Indian Act section which led the Registrar to strike Mrs. Lavell's name inoperative.
He said: "The other question for determination is whether section 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 Wikwemikong 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 Registrar was dismissed and this decision was confirmed by Judge Grossberg on a review conducted at her request under the review procedure provided by the statute.
On the face of it section 12(1)(b) appears to justify the Registrar's action for the section provides: 12(1) The following persons are not entitled to be registered. namely b) a woman who married 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 section 11(f) even provides for the registry of his wife as a member of the Band. Other provision of the Act from section 4 to section 17 inclusive throw somewhat more light on the system of Indian registry but the foregoing features 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 registered 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 incapacities 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 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 consequence of such a marriage plainly arises under a law of Canada, i.e., the Indian Act, and in my opinion it constitutes discrimination by reason of sex within the meaning of the Canadian Bill of Rights just as the effect of the statute invoked in the Drybones case was to discriminate 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 situation 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 exception 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 Wikwemikong Band of Indians. In either view the apparent effect of the legislation is, in my opinion, 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 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 on 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 rade, 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 position and in doing so he said at page 298: "In my view under the provisions of s. 1 or the Bill of Rights "the right of the individual to equality before the law" "without discrimination by reason of race" is recognized 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 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
The present case discloses laws of Canada which abrogate, 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 5. 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 disadvantage 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.
The provisions are thus laws which abrogate, 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 consequences 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 opinion 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 Grossberg 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."