Judicial Losses and Women's Political Activism Ahead of the Charter

THREE STRIKES BUT NOT OUT: JUDICIAL LOSSES AND WOMEN'S

POLITICAL ACTIVISM AHEAD OF THE CHARTER

A Thesis

Presented to

The Faculty of Graduate Studies

The University of Guelph

TOM HOOPER

In partial fulfillment of requirements

for the degree of

Master of Arts

April, 2008

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While these forms may be included Bien que ces formulaires in the document page count, aient inclus dans la pagination, their removal does not represent il n'y aura aucun contenu manquant. any loss of content from the thesis. Canada ABSTRACT

THREE STRIKES BUT NOT OUT: JUDICIAL LOSSES AND WOMEN'S POLITICAL ACTIVISM AHEAD OF THE CHARTER

Tom Hooper Advisor: University of Guelph, 2008 Professor Alan Gordon

This thesis examines how the Canadian women's movement utilized judicial losses to achieve long-term political and social gain. The Lavell, Murdoch and Bliss

Supreme Court cases of the 1970s were pivotal in galvanizing the women's movement ahead of the Charter of Rights and Freedoms. Each case demonstrated the movement's growing frustration with the limited interpretation of the Canadian Bill of Rights, which was seen as inadequate in protecting the rights of women. These cases also helped to demonstrate the movement's discomfort with the perceptions, expectations and attitudes toward women, and challenged traditional gender roles both in the family and in the broader society. When the Supreme Court decided against the women involved in each case, the movement's strategy went from legal to political, and thus helped to reshape

Canada's constitution. As a result, the women's immediate losses at the Supreme Court aided in achieving the movement's longer-term policy objectives. Acknowledgements

First and foremost, I would like to extend my deepest and most sincere appreciation toward my advisor, Dr. Alan Gordon. It was not only his advice and support that got me through this project, but also got me thinking of grad school in the first place.

I would also like to thank the other members of my committee: to Dr. James W. St. G.

Walker, for giving me a valuable appreciation for the history of Canadian human rights; and to Dr. Matthew Hayday for his academic and professional advice. Dr. William

Cormack and Dr. Stuart McCook greatly aided in keeping my sanity throughout this program with their incredibly insightful advice and support. Also I wish to send my thanks to Dr. Stephanie Bangarth for giving me motivation and support, especially through the more arduous periods of my program. This work was a product of archival research that required the support and cooperation of many individuals both at the

Supreme Court Records Office and the Canadian Women's Movement Archives at the

University of Ottawa. My research trips were also helped by my friend and gracious host, Tisha Ashton. This intensive program could not have been completed if it were not for the support of many individuals in my personal life, who sacrificed their time and energy as I worked through this. To Matt Demers and the Demers family, thank you so much for your love, patience and support. Also, thank you to Annette Demers, BA LLB

MLIS, of the Paul Martin Law Library at the University of Windsor, for taking the time to introduce me to legal research. Thank you to my friends, particularly David Pearce, for providing me with much needed love and stress relief. This would not have been possible without the support of my loving family: especially Mom and Dad, for always believing in me.

i Table of Contents

Introduction

Chapter 1 21 Indian Status and the Indian Act: The case of Jeanette Lavell

Chapter 2 63 Matrimonial Property: The case of Irene Murdoch

Chapter 3 83 Maternity Leave Benefits and the Unemployment Insurance Act: The case of Stella Bliss

Conclusion 101

Bibliography 108

n Introduction

The Canadian women's movement was emerging on the political scene as a powerful force in the early 1970s. With hundreds of women's organizations formed in the 1960s, the 1970s was a period where women were able to galvanize, strengthen and coordinate in order to become politically active. While traditional activism forced the government to move on certain issues relating to women's equality, in the 1970s, women's groups attempted to bring equality issues to the public's attention via a different forum. This forum was that of the Supreme Court. When equality cases were brought to the Supreme Court, challenged under the 1960 Canadian Bill of Rights, it did not necessarily matter whether women won or lost. This is because the women's political campaign did not end with their losses at the Supreme Court, it was only just beginning.

In 1985, just prior to the Charter's equality clauses coming into force, section

12(l)(b) of the Indian Act was repealed by Parliament. The system by which Indian status was granted and removed was changed so that the Indian Act did not discriminate based on sex. For Jeanette Lavell, this change represented her moral victory from a case that she took to the Supreme Court in 1973 that challenged the Indian Act's provisions against the Canadian Bill of Rights.

By 1 January 1981, each province had implemented legislation that protected matrimonial property for women in the event of divorce. For Irene Murdoch, who lost her case in Murdoch v. Murdoch at the Supreme Court in 1973, the implementation of these measures ensured that no other woman would be faced with the same challenges that she endured. She was left with $200 per month in maintenance and no claim to her half of her and her husband's ranch.

1 In the 1989 case of Brooks v. Safeway Canada, the Canadian Supreme Court declared that the 1978 decision of Bliss v. Canada (Attorney General) "was wrongly decided."1 For Stella Bliss, this decision represented a vindication that she was wrongfully discriminated against under the Unemployment Insurance Act's maternity leave provisions. Those provisions made it more onerous to claim maternity benefits than that of benefits for work shortage, or other reasons as covered in the Act.

None of these three women had any idea that well after the fact scholars would be discussing their cases. In fact, the Women's Legal Education and Action Fund (LEAF) states that it was these three cases that led to the formation of a new Charter of Rights and Freedoms that would ensure "that women be treated the same before the law."

While scholars have used the example of these three cases to highlight the many facets of the Canadian women's movement in the 1970s, little has been written which would provide a historical basis to explain how three major losses at the Supreme Court could assist the women's movement, and lead to the drafting of strong rights protections for

Canadian women under the Charter.

These cases highlighted to the women's movement many of the areas of Canadian law that required fundamental change. These three losses galvanized the women's movement, and in the 1980s Canadians saw legislative and legal change that reversed their negative outcomes. As a result, despite their losses at the Supreme Court in the

1970s, the Lavell, Murdoch and Bliss cases offered an opportunity for the women's

1 Chief Justice Brian Dickson's judgment states, "With the benefit of a decade of hindsight and ten years of experience with claims of human rights discrimination and jurisprudence arising therefrom, I am prepared to say that Bliss was wrongly decided or, in any event, that Bliss would not be decided now as it was decided then." Brooks v. Safeway Canada [1989] 1 S.C.R. 1219. 2 "LEAF history," Women's Legal Education and Action Fund, http://www.leaf.ca/about/history.html [Accessed: January 30, 2008]

2 movement to change the minds of judges, lawmakers, and the Canadian public. But their goal was not simply legislative and legal change; it was also to seek broader social change. Each case goes well beyond the simple sections and subsections of federal and provincial legislation; they reveal deeply-rooted patriarchal values within Canadian society. These three cases demonstrated a society in which women were to accept the culture of their husbands upon marriage, the work they put into a marriage was

'expected' and thus not valued, and finally, their participation in the workforce was to be a temporary phenomenon, making them mere "secondary earners" to their male counterparts. These three cases did not simply reveal the need to change Canadian law; they revealed a need to change Canadian society.

There is a vast literature on Canadian feminism in the 1970s. The difficulty is in narrowing these numerous pieces from the body of literature to provide an appropriate context for the following case studies. Four main themes (with various sub-themes), then, have been narrowed to find a representative sample of this literature, particularly of the themes that will be explored in later chapters. The first task is to demonstrate the viability of utilizing case studies in the examination of social, political and legal history.

The second task is to demonstrate the context of feminist thought, and then to focus on that thought as it applies to the Canadian experience in the 1970s. The third task is to look at the Charter and the feminist experience both in the lead up to the Charter, as well as in the years following its inception. And finally, it is imperative to understand the

Supreme Court's role in determining the policy outcomes of these three case studies.

While the scholarship on these issues is vast, not one historical account of these three widely sourced and widely referenced cases has been completed. It is the goal of this

3 paper to add to our understanding of the Canadian Women's Movement by providing the historical account behind the Lavell, Murdoch, and Bliss cases.

This project uses case studies to explore a broader theme or message of a social movement's history. Case studies, despite their apparently narrow focus, open a window into broader themes. The use of judicial case studies, particularly when aimed at traditionally marginalized groups, is a well established approach to historical study.

Historian James W. St. G. Walker's book, Race, Rights and the Law of the Supreme

Court of Canada, uses four Supreme Court cases to examine trends in Canadian social and legal history. For Walker "judicial decisions can provide a fruitful research resource for the social history of Canada, especially for those groups or issues which are underrepresented in the more standard sources."3

The basic premise behind the Canadian women's movement in the 1970s was that there existed a pronounced societal inequality between men and women. Moreover, this inequality places women at a significant disadvantage in all aspects of society. Many feminist scholars have argued that the Supreme Court's decisions in Lavell, Murdoch and

Bliss have further solidified women's subordination to men in society. Although these cases show that in the 1970s Indian status, matrimonial property, and maternity leave were applied in a way that was discriminatory toward women, they also show how the legal system itself was a significant institutional and political actor that placed women at a disadvantage to men.

Feminist scholars have attributed the legal failures of women at the Supreme

Court to an institutional inequality within the broader justice system. Lise Gotell has

James W. St. G. Walker, "Race," rights and the law in the Supreme Court of Canada: historical case studies, (Waterloo, ON: Wilfrid Laurier University Press, 1997), 7.

4 argued that "until recently, women were viewed within a legal paradigm that stressed their uniqueness, their need for protection and their incompleteness as citizens."4 In other words, Gotell argues that a large part of the inequality rested with the state's paternal desire to protect women from participating in a system designed only for men. Other scholars have been more direct: Kathleen A. Lahey has broadened the outlook on patriarchy in law to include all Western legal systems in her article "Celebration and

Struggle: Feminism and Law." She also includes the exclusion of women from "method, content, theory, personnel, process, and outcome." Moreover, Lahey adds that women were not active participants in law, but rather appeared within the justice system as

"subject matter."5

The 1970s women's movement sought long term and institutional change to rectify this inequality, both in law and in broader society. As such, it is important to draw the distinction between a specific feminist interest group and the broader women's movement. In analyzing the Lavell, Murdoch, and Bliss cases, it is important to understand that while specific individual groups responded to the decisions in these cases, these groups comprise a larger movement. Alexandra Dobrowolsky argues that interest groups typically have a singular aim, whereas social movements "are more concerned about destabilizing the status quo."6 The current scholarship on the women's movement draws a specific distinction between individual interest groups versus the broader movement in general. This distinction can better be understood by recognizing

4 Lise Gotell, "The Canadian Women's Movement, Equality Rights and the Charter," Feminist Perspectives, No. 16 (1990): 5. 5 Kathleen A. Lahey, "Celebration and Struggle: Feminism and Law," in Feminism: From Pressure to Politics, ed. Angela Miles and Geraldine Finn (Montreal: Black Rose Books, 1989): 100-101; Lahey is also the founding editor of the Canadian Journal of Women and the Law. Alexandra Z. Dobrowolsky, The Politics of Pragmatism: Women, Representation, and Constitutionalism in Canada, (Don Mills, ON: Oxford University Press, 2000): 5.

5 that, while both feminist organizations, the Alberta Status of Women Action Committee has specific and localized goals, which differ (although there is some overlap) from that of the Women's Legal Education and Action Fund. Both groups, however, are part of a broader Canadian Women's movement that coalesced under the National Action

Committee on the Status of Women (NAC). In Murdoch v. Murdoch, this idea became quite apparent. Matrimonial property fell under provincial jurisdiction, so each province had a unique experience with changing matrimonial property laws. As such, the movement's campaign to change matrimonial property law was done through the use of local and provincial organizations, while the national organizations' role was necessarily limited.

The reason why this distinction is important in feminist scholarship is due to the various opinions and approaches represented within the movement. Nancy Adamson's introductory chapter of Feminist Organizing for Change: The Contemporary Women's

Movement in Canada has argued that within the women's movement there exists

"extensive differences: in political strategy, in vision about what constitutes women's liberation, in attitudes to men, in understanding the roots of women's oppression, in setting priorities, in identifying constituencies and allies." Beyond differences between liberal, socialist and radical feminism, there are also those women who reject the label of

"feminist." There are two main reasons why many women are reluctant to label themselves as feminists. The first is that the media has distorted the images and issues of feminists. The second is, according to Adamson, caused by a sense of powerlessness of women to change the way in which they are afforded equality in society. This means

Nancy Adamson, Feminist Organizing for Change: The Contemporary Women's Movement in Canada, (Toronto: Oxford University Press, 1998): 9, 12-13.

6 that interest groups which advance the cause of women but who do not specifically identify as feminists can still be considered part of the broader women's movement.

Much of the scholarship on feminism uses language to categorize the movement both in terms of approaches to advancing the status of women and in terms of the temporal setting which describe the movement's change over time. Adamson argues that radical feminists during the second wave outlined the differences between men and women and therefore "made women's oppression visible." However, more recent feminism has been largely influenced by grass-roots and socialist-feminism.8 The wide use of these terms makes it necessary for any scholar to clearly outline the way in which these terms will be applied to new research.

For the purposes of this study on Lavell, Murdoch, and Bliss, it is important to situate these cases within contemporary feminist terminology. The first wave of feminism traces its origins to the late 19th and early 20th centuries. The major issues facing the emerging first wave women's movement dealt with suffrage, contract rights, the rights of children and temperance, to name a few. The first wave feminist movement argued that there was a place for women to participate in society, breaking away from the private realm of the family home. The second wave continued what the first wave had begun. Starting in the early 1960s, the second wave is characterized by the broader sentiment that in order to change society, women had to increase their participation in political life. As such, politically active women engaged themselves in substantial political movements, such as the peace movement and the movement for an entrenched

Charter of Rights.

Ibid, 11,16.

7 There are three main areas of thought in the feminist movement, and each is discussed in feminist scholarship in great detail. Every definition differs slightly from one scholar to the next, but each agrees on the basic principles of three main feminist theories. These are the most discussed forms of feminist thought, but are certainly not the only feminist theories that exist. The liberal feminist is someone who believes that gradual changes within liberal democracy can best facilitate the movement toward equality. The radical feminist perspective is that the only method of achieving full equality is through the elimination of patriarchy, which is inherent in every institution in society. Finally, the socialist feminist theory draws upon radical feminist theory, but also views class conflict as one of the primary sources for women's inequality. Moreover, the socialist feminist believes that women's liberation can only occur once women are equal in terms of their economic and cultural status.

In order to understand feminism, then, it is important to view feminism as both a movement and an ideology. Ruth Roach Pierson and Alison Prentice have noted that "as an ideology, feminism is premised on the belief that women suffer from oppressive inequalities in a number of specific and interrelated areas and puts forward the ideal of a world in which the sexes would be equal."9 It could be said that this is the basic premise of feminism in that regardless of what school of feminist thought one comes from

(socialist, radical, liberal, etc.), each feminist agrees with the idea that they suffer from living in a society with oppressive inequality. Feminism might also be seen as a school of analysis: that gender is a way of understanding particular structures of power.

9 Ruth Pierson and Allison Prentice, "Feminism and the Writing and Teaching of History," in Feminism: From Pressure to Politics, ed. Angela Miles and Geraldine Finn, (Montreal: Black Rose Books, 1989): 104.

8 In order to appropriately study the Canadian women's movement of the 1970s it is important to draw a distinction between the women's movement and feminism. While there were many feminists who played an integral part in the Canadian women's movement, it does not necessarily mean that all participants or activists in the movement considered themselves 'feminists.' The NAC, one of the main actors in this study, was an umbrella organization that encompassed countless women's organizations from a broad range of political and social thought. As such it would be inappropriate and inaccurate to label the entire Canadian women's movement of the 1970s as 'feminists.'

That being said, many leaders within the women's movement did consider themselves feminists, and were quite proud of that fact.10

This study will look at both the women's movement and how feminist ideology was applied to Canadian law in the 1970s. In her examination on the relationship between patriarchal law and women's liberation, Lahey suggests that a theory of feminism and the law is about how the law reflects the ways in which women are subjected to societal inequalities.11 So the two main objectives of women's struggle with the law are the repeal of laws that promote inequality, and the enactment of laws that prevent inequality. Various strategies have been utilized to meet these goals, one of which is direct litigation.12 Lisa Price, writing for the Women's Research Centre, argues that the women's movement is almost always reactive instead of proactive.13 However, in the realm of legal activism, any social movement has no choice but to be reactive, since legal action is almost always a reaction to some form of injustice. This can be the

10 "Feminist, not libber called the proper term," Globe and Mail, September 18, 1975. 12. "Lahey, 102. 12 Ibid, 107 13 Lisa S. Price, In Women's Interests: Feminist Activism and Institutional Change, (Vancouver: Women's Research Centre, 1988): 7-8.

9 case for both protesting existing laws, or for laws that are seen as discriminatory yet passed by lawmakers. The latter is especially true, since lawmaking is seen by many feminists to be designed to inherently repress women within society.

The main component of feminism, especially when dealing with legal strategy, is to achieve equality. Carleton University legal scholar Diana Majury has argued that although each feminist uses the term "equality," it means different things to different people.14 The variety of schools of feminist thought attests to the disagreement over the correct method of attaining equality. But it is also important to recognize that when terms like "equality" are used, they may mean something different to people who are part of the same social movement. For Jeannette Lavell, equality meant her status as a woman and an Indian as defined by the Indian Act; for Irene Murdoch, equality meant gaining her half of the matrimonial property in divorce; and for Stella Bliss, equality meant being subject to the same terms and conditions for unemployment insurance as any other worker, regardless of the fact that her employment ended due to the birth of her child. Although there is certainly overlap in how these three viewed equality, it is important to note the various priorities as exemplified by these three cases.

Feminist ideas are not always accepted in Canadian scholarship. Just as there are opponents of feminism outside the academy, there have been a few strong detractors from the feminist mindset. Robert Ivan Martin, professor of law at the University of Western

Ontario, has argued strongly against what he sees as the "feminist ideology." His book,

The Most Dangerous Branch: How the Supreme Court of Canada Has Undermined Our

Law and Our Democracy, specifically accuses feminism of creating a secular state

14 Diana Majury, "Women's Equality Before and After the Charter," in Women's Legal Strategies in Canada, ed. Radha Jhappan, (Toronto: University of Toronto Press, 2002): 101.

10 religion he identifies as "the orthodoxy." The purpose of his book is to demonstrate that "constitutional supremacy can easily be transformed into one of judicial supremacy," and that this has in fact happened in Canada.16 Martin dedicates much of his study to attack the feminist ideology;17 Martin links the rise of feminism with the demise of constitutional supremacy, as feminism is seen as actively striving to use the courts for feminist's own political gain.

Martin argues that feminism and the feminist "orthodoxy" prevents scholars, such as himself, from conducting research on disadvantaged groups to which they do not belong. The suggestion is that in order to research and write about women, one must be a woman. Ideas of a misleading or misinformed appropriation of voice are rather out of date, and lack recognition of recent scholarship which has many academics studying topics with which they do not have a direct personal connection.19 It is acknowledged that in researching any topic, a scholar's own background will inevitably contribute to the manner, style and method of one's research. But Martin's complaint seems slightly more disingenuous than serious, as non-female genders are often providing scholastic research on women's issues. The imperative behind studying a group that one does not readily belong to is to acknowledge the fact that while the research method meets the standards of comparable scholarship, it will inevitably lack an inherent personal connection to the issues being raised. In some circumstances, this can be utilized as a strength, since the dispassionate study of often highly passionate issues can not only provide a balanced

15 Robert Ivan Martin, The Most Dangerous Branch: How the Supreme Court of Canada has Undermined our Law and our Democracy, (Montreal: McGill-Queen's University Press, 2003): 3. 16 Ibid, 6 17 He also belittles prominent Canadian feminist scholars, such as Constance Backhouse, by misrepresenting their work and oversimplifying the feminist message. See Martin, 15. 18 Martin, 19. 19 A good example of this is legal scholar Christopher Manfredi, who has published many works on women's legal strategies in Canada. Manfredi's work is widely cited in this study.

11 addition to existing scholarship, but can also add a sense of legitimacy to that existing scholarship.

When writing feminist history, it is important to recognize the relative novelty of feminist history. As Pierson and Prentice have acknowledged, the study of history has traditionally been preoccupied with men. This meant that women were left out of historical studies that were primarily aimed at top-down political entities (such as Prime

Ministers), war and the military, macro-economics, and other areas that were typically dominated by men.20 Although this fact is not necessarily true of the twenty-first century, it still needs to be acknowledged that the real explosion of feminist history and scholarship is still relatively new when compared to a more traditional historical focus.

For many scholars the beginning of Canadian women's legal activism began in the 1920s with the Persons Case. Many "first-wave" women continued to work for various "reforms in property, custody, employment, wages, pensions, taxation, and other areas of law throughout the 1940s and 1950s."21 The passage of the Canadian Bill of

Rights in 1960 presented women with the opportunity to challenge sex discrimination inherent in existing laws. The Lavell, Murdoch and Bliss cases made their way to the

Supreme Court as the women's movement began a steady push for further female activism in the legal arena.

The 1970s saw women create various legal organizations to assist and focus the women's movement in the judicial realm of Canadian politics. This included the formation of women-and-law caucuses and a national women-and-law conference.

Lahey has suggested that this "produced a climate in which feminist insight into the ways

20 Pierson and Prentice, 109. 21 Lahey, 108.

12 in which contemporary laws oppress women can be translated rapidly into law reform."

The 70s also saw the increase in the number of women entering law school. By 1985, more than fifty percent of the entering class at the University of Windsor was female.

This vast change occurred in tandem with the widespread development of courses on women and the law, as well as feminist legal theory.

The 1980s saw the further expansion of this network, which coalesced under the

Canadian Women's Legal Education and Action Fund (LEAF) in 1985. The creation of

LEAF was a direct result of the rapid expansion of women actively participating in the judicial system, and it is the contention of this paper that the long-term effects of this helped to turn the Lavell, Murdoch and Bliss losses into powerful legal and political mobilization. A primary example of this is represented by the fact that the Ad Hoc

Committee of Women on the Constitution, which participated in the constitutional discussions of the early 1980s, drew its expertise from female lawyers who gained their experience during the 1970s.24

Although women have had various successes and failures in the 1980s and 1990s, it is important to situate these successes within the broader movement. Radha Jhappan has stated that while litigation has been very important in the broader women's movement, it is necessary to view these legal strategies as only some of the many elements that add to the successes of the women's movement in Canada. In that sense,

"legal strategies are political strategies trained upon particular sites of struggle that may

11 Lahey, 109. Mary Jane Mossman, "Defining Moments for Women as Lawyers: Reflections on Numerical Gender Equality," Canadian Journal of Women and the Law, vol. 17, no. 1 (2005): 19-20. Sherene Razack, Canadian Feminism and the Law: The Women's Legal Education and Action Fund and the Pursuit of Equality, (Toronto: Second Story Press, 1991): 33.

13 require more esoteric methodologies, but they are no less political for it." Despite the fact that this paper focuses on three legal case studies, it is vital to not embellish the importance of these cases in contrast to other aspects of the movement. Rather, this study views litigation as a form of political maneuvering, and this situates these cases within a broader political movement.

Other scholars have noted the women's movement's ability to transform its failures into longer-term successes. Political scientist Christopher Manfredi of McGill

University has published several books examining how interest groups and social movements utilize legal activism as a method of political and societal change. He contends that the "failures in the 1970s might have turned the women's movement away from legal mobilization, they in fact had the opposite effect." LEAF is another example of the way in which women turned legal losses into longer-term victories in the 1980s, such as the cases of Keegstra, Andrews, Taylor and Butler.27 Although scholars normally discuss Lavell, Murdoch and Bliss in the context of the post-Charter era, these cases also had an immediate effect on the women's movement in the 1970s, at a time when women's involvement in Charter discussions shaped the way in which the feminist movement adopted its legal strategies for the 1980s and beyond.

Sherene Razack, professor of sociology at the University of Toronto, has noted that women were left out of the initial Charter discussions in the late 1970s. One draft proposal, to transfer the jurisdiction of family law from the federal government to the provinces, almost went ahead without the consultation of women and women's

5 Radha Jhappan, "Introduction: Feminist Adventures in Law," in Women's Legal Strategies in Canada, ed. Radha Jhappan, (Toronto: University of Toronto Press, 2002): 5. Christopher Manfredi, Feminist Activism in the Supreme Court: Legal Mobilization and the Women's Legal Education and Action Fund, (Vancouver: UBC Press, 2004): xiii. 27 Manfredi, "Feminist Activism in the Supreme Court," 194.

14 organizations. Chaviva Hosek, former president of the National Action Committee on the Status of Women (NAC), argues that it was not until after 1980 that the women's movement participated in the fight for equal rights within the developing Charter of

Rights and Freedoms. A large reason for their active involvement in the Charter negotiations was the perception that the Canadian Bill of Rights "proved to be a deficient legal instrument for women's equality."29 As much as the equality provisions in the adopted Charter were viewed by many women as a political victory, writer and journalist

Penney Kome has noted that the greatest achievement of women in the constitutional process had more to do than just "re-writing of the law," but was vital in strengthening and galvanizing the collective women's movement. By the time the Charter negotiations were coming to a close, the women's movement had become a very powerful political force, coalescing under the umbrella organization of the NAC.

The NAC was founded as an effort to pressure the federal government in implementing the 167 policies recommended by the 1970 Royal Commission on the

Status of Women?1 The NAC was brought together after a period where hundreds of women's organizations were formed across Canada, and thus the formation of the NAC was seen as a means of these organizations consolidating their political power by uniting behind goals and principles that each group believed in. In their detailed history of the

NAC, Jill Vickers, Pauline Rankin and Christine Appelle demonstrate that "in order to be successful in Canada, women's movements can and must develop enduring institutions

28 Razack, 29. 2 Chaviva Hosek, "Women and the Constitutional Process," in And No One Cheered, ed. Keith Banting and Richard Simeon, (Toronto: Methuen, 1983): 280, 283. Penney Kome, The Taking of Twenty-Eight: Women Challenge the Constitution, (Toronto: Women's Press, 1983): 13. 31 Jill Vickers, Pauline Rankin and Christine Appelle, Politics as if Women Mattered: A Political Analysis of the National Action Committee on the Status of Women, (Toronto: University of Toronto Press, 1993): 4. 32 Adamson, 53-54.

15 through which their efforts to gain equality can be organized over the course of several generations."33 Vickers, Rankin and Appelle reject the more radical feminist notion that the Canadian state is nothing more than an agent of patriarchy. They cite the fact that because the NAC has been able to affect real and positive change for women, it could not be the "monolithic and unremittingly patriarchal oppressor" that some of their colleagues have espoused. Although the NAC has represented groups that subscribe to a socialist- feminist or radical-feminist perspective, the very nature of the organization is to work within the liberal democratic framework to provide for a more equitable society.

Nevertheless, Vickers, Rankin and Appelle acknowledge that the radical feminist element in the earlier years of the NAC's formation greatly aided in the NAC's ability to build coalitions and reach out to many women's organizations across Canada.34 Leslie A. Pal has noted the NAC's ability "to distil the different priorities of the contemporary women's movement into a single feminist agenda."35

The NAC was formed as an umbrella organization intent on representing women's interests to the state. Pal's book, Interests of State, examines the various social movements who shared this unique relationship with the Canadian government. Pal's main argument is that the "emphasis on 'identity' and 'collective rights' in Canadian political discourse.. .is not merely natural but has been amplified" as a result of a comprehensive and historical funding program run by the Secretary of State." Pal notes that the NAC was a modest beneficiary of such funding; for example, the NAC received

" Vickers et ai, 3. 34 Ibid., 30. Leslie A. Pal, Interests of State: The Politics of Language, Multiculturalism, and Feminism in Canada, (Montreal & Kingston: McGill-Queen's University Press, 1993): 247. 36 Ibid, 15.

16 $37,000 in federal funding in 1978. While it is important to note the formal relationship between the NAC and the state, it should also not be overstated in regards to this study. The funding that the NAC received was necessary for its day-to-day operations, but there is no evidence to suggest that those funds directly influenced the

NAC's participation in political activism relating to these cases. Moreover, this study is not limited to the NAC, but to many other organizations that existed both locally and nationally.

Since the adoption of the Charter of Rights and Freedoms, scholars have studied the judicial system as a tool for political change. Many scholars have called this the

"judicialization of politics,"38 or the use of the judiciary as a political tool, both in terms of pressuring politicians and in bringing public attention to inequalities that exist both in law and in the system. Christopher Manfredi's work in this area stands out among the scholarship. He argues that at the beginning of the 1970s "legal mobilization was an effective instrument for social and political reform by disadvantaged groups."39 He also separates litigants into two types: repeat and one-shot players. The women's movement could be considered repeat players, since they strive to achieve long-term successes in constitutional litigation, particularly when analyzing Lavell, Murdoch and Bliss.

Political Scientist Ian Brodie argues that since the 1970s, various groups and movements, such as the women's movement, have used "systemic, planned litigation campaigns to wage long-term battles in court."41 As a result, although the women's movement lost the

37 Ibid., 228. 38 Gotell, 2. 39 Manfredi, "Feminist Activism in the Supreme Court," 11. 40 Ibid. Ian Brodie, "Lobbying the Supreme Court," in Political Dispute and Judicial Review: Assessing the Work of the Supreme Court of Canada, ed. Hugh Mellon and M.W. Westmacott, (Scarborough, ON: Nelson/Thomson Learning, 2000): 196.

17 Lavell, Murdoch and Bliss cases, these losses were utilized to some advantage. In fact, all three of these cases have been used to bring judgments in favour of women in the post-Charter years. So, then, these three cases can be situated in a longer-term,

"litigation campaign" waged by feminists.

A similar campaign has been waged by queer activists since the 1970s, and that social movement, too, has utilized its legal losses as justification for a broader political campaign. Miriam Smith's Lesbian and Gay Rights in Canada provides an examination of how gay rights organizations lost cases which challenged the state in the legal arena, but then utilized those losses for justifying a political campaign that went beyond the courtroom. Through an examination of three prominent gay rights cases in the 1970s,

Smith contends that these cases demonstrated deeply-rooted discrimination against homosexuality within Canadian society. The cases also were utilized "in the gay and lesbian communities as levers for political action. They served as a rallying cry and as an assertion of the entitlement to equality."42 The difference, however, between the gay rights movement and the women's movement was extensive, since none of the existing human rights protections in the 1970s, such as the Bill of Rights, included sexual

43 orientation.

Manfredi argues that constitutional politics provides social movements the opportunity to effect change that is not subject to the same dynamic as non-constitutional politics. 4 Constitutional change happens more slowly and with more permanence than parliamentary politics, where change can sometimes take place in the wake of a general

Miriam Smith, Lesbian and Gay Rights in Canada, (Toronto: University of Toronto Press, 1999): 50. 43 Ibid., 42. Christopher Manfredi, The Canadian Feminist Movement, Constitutional Politics, and the Strategic Use of Legal Resources, (Vancouver: SFU-UBC Centre for the Study of Government and Business, 2000): 5.

18 election. In several of his works, Manfredi has argued that constitutional change takes place on two levels: on a macro level of amending the constitution in a formal process, and on a micro level of changes in judicial interpretation. For the purposes of this study, the women's movement's failure at micro level changes in the 1970s provided the impetus for macro level changes in the early 1980s.

Changes to judicial interpretation occur in tandem with changes to the makeup of the court. Peter McCormick's history of the makeup of the Supreme Court shows that the judges on the court are indeed political actors whose judicial interpretations form a large portion of Canadian law. McCormick divides the Court into "before Laskin" and "after

Laskin," referring to Justice (and eventually Chief Justice) Bora Laskin, whose viewpoint on matters such as the Bill of Rights was seen by many to be a more progressive form of judicial interpretation than the more interpretist Taschereau/Cartright/Fauteux Courts of the pre-1970s.46 Robert Ivan Martin claims that there is a consistent trend in the Court toward judges who desire more power for a stronger and centralized Supreme Court.47

However, it would be unfair to assume that Bora Laskin and those who followed in his footsteps have had an agenda of granting the Court more power, since that power was granted to them by changes made to the constitution in 1982.

The justices of the Supreme Court have been the subject of much criticism by feminist scholars who utilize the Lavell, Murdoch and Bliss cases as background for their contemporary arguments. Law scholar Beverley Baines argues that Lavell and Bliss

45 Christopher Manfredi, Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism, (Don Mills, ON: Oxford University Press, 2001): 115; This same concept is also in Manfredi, "Feminist Activism in the Supreme Court," xviii. Peter J. McCormick, Supreme at Last: The Evolution of the Supreme Court of Canada, (Toronto: J. Lorimer, 2000): 69 & 82. 47 Martin, 13.

19 should have been decided in favour of women "on the basis of their own arguments," and that the judges handed their decisions based on a subscription to "Aristotle's defense of male supremacy."48 Baines' argument was that there was a gender-bias in the way in which the Supreme Court made decisions on matters of equality.49 Baines' argument suggests a pervasive institutional attitude that diminished women's equality rights, which is certainly demonstrated in these three cases. However, as much as these cases were decided in a way that was not favourable for women's equality, it is important to note that the Supreme Court judges' ability to decide the case fairly was not a deliberate attempt at protecting the will of Canadian patriarchy. While the argument could easily be made that the Court decided wrongly in these cases (and the following pages will examine those issues), there is no evidence to suggest that the Court willfully decided these cases on the basis of a specifically anti-feminist agenda.

These three cases are widely cited in recent scholarship, but there is no in-depth study on how these cases provided the impetus for women's constitutional activism in the

1980s; the Lavell, Murdoch and Bliss cases are only mentioned in passing. The following pages are divided into three chapters, each dedicated to an analysis of one of the three cases. Each chapter begins with a brief background to the case, the main arguments contained in the case files, the public and political reaction of the women's movement after the case decision was handed down, and finally, a commentary on the end result of such a campaign. Each case will demonstrate that their loss at the Supreme Court provided a necessary public forum that allowed for legal, legislative, and ultimately, constitutional change.

48 Beverly Baines, "Women and the law," in Changing Patterns: Women in Canada, (Toronto: McClelland and Stewart, 1993): 173-174. 49 Ibid., 158.

20 Chapter 1 - Indian Status and the Indian Act: The case of Jeanette Lavell

Although the Lavell, Murdoch and Bliss cases all dealt with women's equality issues within Canadian law, only two of these (Lavell and Bliss) were argued directly using the equality provisions as set out in the Canadian Bill of Rights (1960). The Bill of

Rights represented a moral victory for egalitarian and libertarian human rights activists who sought a more formalized version of human rights protections than that of those offered by the British common law system; it was the first time the legal conceptualization of human rights in Canada was placed into federal legislation. While historians utilize the Bill of Rights as a bookend for studying the early Canadian human rights movement, scholars looking at rights from a more contemporary perspective have been harshly critical of the Bill as an ineffective means of protecting human rights in

Canada.

The Bill of Rights is often viewed as the precursor to the Canadian Charter of

Rights and Freedoms. It was passed in 1960 as a result of a lengthy process started by

Prime Minister John G. Diefenbaker, who wanted to break with the tradition of relying solely on British Common Law for establishing human rights. As a result, the Bill of

Rights was the first instance in Canadian history where the government specifically stated what was considered to be a Canadian human right. The Bill of Rights was established in the wake of widely publicized human rights infringements in the early twentieth century

(of which Diefenbaker was an outspoken opponent), such as the arrest of union leaders who were suspected of being communists in the early 1930s, or more famously, the

See Ross Lambertson, Repression and Resistance: Canadian Human Rights Activists, 1930-1960, (Toronto: University of Toronto Press, 2005); Christopher MacLennen, Toward the Charter: Canadians and the Demand for a National Bill of Rights, 1929-1960, (Montreal: McGill-Queen's University Press, 2003).

21 internment and proposed deportation of Japanese Canadians during World War II.

Although the Charter has rendered the Bill of Rights obsolete, it still remains part of

Canadian law.

The major issue that scholars have with the Bill of Rights is that it was enacted in a way that made it highly ineffective. While historians have noted the symbolic victory that the Bill of Rights represented for a rapidly maturing post-war Canadian human rights movement, legal scholars view the Bill of Rights as nothing more than part of a

"worldwide post-World War II movement to declare the existence of fundamental rights and freedoms."51 Another post World War II document, the United Nations Declaration of Human Rights (UNDHR) of 1948, also represented a non-binding, symbolic proclamation of post-war 'rights.' Similar to the non-binding status of the UNDHR, the

Bill of Rights was worded in a way that made it seem constitutional, but it in fact did not

CO have constitutional "status." Without constitutional power, the Bill of Rights was placed at par with other pieces of federal legislation. Thus, the Bill of Rights could not simply override Canadian laws that contravened it. As an ordinary statute, it had to be interpreted alongside, not over, other legislation. Beyond this, the Bill of Rights only applies to federal, and not provincial, legislation. As a result, matters of provincial jurisdiction are not subjected to the potential scrutiny of the rights contained within the

Bill. Scholars have pointed to this fact as a major reason why constitutional entrenchment "was the immovable objective of the federal government."53

51 Manfredi, "Judicial Power and the Charter," 15. 52 Ibid, 16 53 Roy Romanow, Canada - Notwithstanding: The Making of the Constitution, 1976-1982, (Toronto: Methuen, 1984): 77.

22 Most of this criticism is aimed at the wording of section 1(b) of the Bill which states that individuals would be guaranteed "equality before the law." Both the Lavell and Bliss judgments cited this phrase in determining that in neither case was the law in contravention of the Bill of Rights. Law professors and human rights activists Anne

Bayefsky and Mary Eberts argue that the wording and interpreted meaning of "equality before the law" represents a "highly individualistic conception of democratic society."

'Equality before the law' has been interpreted to mean that the application of law must be done without discrimination; however, the laws themselves may be discriminatory.54 So while a law can have inherent inequalities, as long as the law is applied to everyone equally it is acceptable under the Bill of Rights. The Supreme Court thus had to contend with the issue of drawing a line between justifiable and unjustifiable distinctions between certain groups in both law and legal application.55 Such distinctions, as Queen's

University legal scholar Beverley Baines has argued, allowed for the legal discrimination against Lavell and Bliss. Moreover, it made feminists aware of the dangers behind the

"separate-but-equal" supposition behind "equality before the law" as found in the Bill of

Rights. This awareness allowed feminists to ensure a strengthened version of equality rights under section 15 of the Charter of Rights and Freedoms. Carleton law professor

Diana Majury has argued that such an interpretation of the Bill of Rights was both racist and sexist, and showed a "lack of even the most basic understanding of discrimination and inequality that, even in its time, seemed incomprehensible."57

Anne Bayefsky & Mary Eberts, Equality Rights and the Canadian Charter of Rights and Freedoms, (Toronto: Carswell, 1985): 4. 55 Ibid, 61. 5 Beverley Baines, "Section 28 of the Canadian Charter of Rights and Freedoms: A Purposive Interpretation," Canadian Journal of Women and the Law, vol. 17, (2005): 49. 57 Majury, 109.

23 Throughout the 1970s the Supreme Court demonstrated in various cases that it did not interpret the Bill of Rights as containing the powers that many activists had hoped for.

In fact, the number of cases that involved claims under the Bill of Rights that reached the

Supreme Court was small.58 Scholars have cited the Lavell and Bliss cases as being the proof that the Bill of Rights was an inadequate "legal instrument for women's equality."59

Christopher Manfredi used the example of Lavell and Bliss to demonstrate that the Court was uncertain about where to place the Bill of Rights within federal jurisprudence, and thus took a cautious approach to applying it against other federal legislation. ° Scholars have examined the usefulness of the Bill of Rights by applying these cases only in passing, and usually use them to justify, or at least, explain the entrenchment of the

Charter. However, one case which preceded Lavell and Bliss represents the "highpoint of the Court's Bill of Rights jurisprudence": R. v. Drybones.61

Drybones represents the one and only time when the Supreme Court held that a piece of federal legislation was in contravention of the Canadian Bill of Rights. Joseph

Drybones, a status Indian, was found intoxicated at a hotel in the Northwest Territories on 8 April 1967. As a result of a provision that existed in the Indian Act, Joseph

Drybones was charged with an offense. Section 94 of the Act made it illegal for any status Indian to be intoxicated outside the confines of an established Indian reserve. After initially pleading guilty without fully understanding English (and thus not fully understanding his plea), Drybones' case went before the Northwest Territories Territorial

Manfredi, "Judicial Power and the Charter," 17. Hosek, 283. Manfredi, "Judicial Power and the Charter," 16 & 111. McCormick, 74.

24 Court. In his decision, Justice Morrow acknowledged two issues that had to be resolved in determining Drybones' verdict. Morrow found that Drybones was in fact intoxicated off of an Indian reserve, which contravened section 94 of the Indian Act. The first issue with Drybones' case was that, since the crime was committed in the Northwest

Territories, where no reserve existed, could section 94 apply? Justice Morrow decided against Drybones in this first account, since the Indian Act was federal legislation, it should not be applied differently in the Northwest Territories than anywhere else in

Canada. So therefore, just because no reserve existed in the Northwest Territories did not mean someone could not be found guilty of being intoxicated off of a reserve. The second issue, which pertains to the subsequent cases against Lavell and Bliss, was that section 94 of the Indian Act contravened the Bill of Rights.

Morrow found that despite other cases being similar to Drybones, section 94 of the Indian Act did indeed contravene the Canadian Bill of Rights; in his decision, he acknowledged the likelihood of an appeal. At the Northwest Territories Court of Appeal,

Justice Johnson, writing for a unanimous court, agreed with Morrow on the application of the Bill of Rights to section 94 of the Indian Act.63 The Crown again appealed the case to the Supreme Court, which agreed with the Northwest Territories Court of Appeal.

Justice Ritchie wrote the majority decision:

I think that sec. 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.64

R v. Drybones [1967] 60 W.W.R. 321. R v. Drybones, [1967] 61 W.W.R. 370. R v. Drybones [1970] 1 S.C.R. 282.

25 The decision in Drybones gave hope to members of the women's movement, which saw

Drybones as a means to strengthen arguments both for legitimate claims based on the Bill of Rights, as well as issues that the women's movement had with the Indian Act. In fact, issues within the Indian Act had been part of the 1970 Royal Commission on the Status of

Women Report.

One of the major concerns of Canadian feminists about the Indian Act was how

Indian status was maintained and transferred between the sexes at marriage. The Indian

Act, prior to 1985, treated native men differently from native women upon marriage.

When a status woman married a non-status man, she lost her status. But when a status man married a non-status woman, not only did he keep his status, but his non-status wife obtained it. Much of the credit for bringing this to the attention of the Commission has been granted to Mary Two-Axe Earley,65 a non-status Mohawk woman. Two-Axe Earley felt that the impact of the Indian Act on denying native women their status was quite detrimental, not only to the women who lost their status but also to their children (who, under the Indian Act, would not have received their status). As a result of Two-Axe

Earley's work, "aboriginal women's activism became interwoven with the larger women's movement." With the optimism of the Drybones case, and the unwillingness

(or inability) of the federal government to implement the 167 recommendations contained in the Royal Commissions report, Canadian women brought their grievance with the

Indian Act to the Supreme Court in the case of Attorney General of Canada v. Lavell;

Isaac v. Bedard.

65 There seems to be a discrepancy with the spelling of Mary Two-Axe Earley's last name. Some have used the spelling "Early," however, in original documents signed by her, she clearly spells her last name "Earley." 66 Dobrowolsky, 40-41.

26 Legal cases place two or more different interests in direct competition; being that this is a case involving the definition of status and non-status women, this is the first natural competing interest. Although revising the Indian Act was a priority for non-status women, Caroline Lachapelle has demonstrated that status women were more concerned with a variety of other issues such as health care, unemployment, living conditions, and a host of other perils that faced native women. As a result, while non-status women had a shared priority, status women were more concerned with other issues depending on their own situation. Moreover, status women were reluctant to become active within the women's movement due to four factors: "class differences, lack of awareness or knowledge about the women's movement, white racism and fear of dividing the native community." 7 Status and non-status women were thus divided by the fight against discrimination within the Indian Act.

The Lavell case also created direct conflict between the native community (as a whole) and the women's movement. While Canadian women deplored the government sanctioned discrimination within the Indian Act, native leaders (such as the National

Indian Brotherhood) felt that the removal of the Indian Act, in part or in whole, would represent a move to implement the principles behind the "government's 1969 White

Paper plan of doing away with special Indian status and assimilating Indians into mainstream Canada."68 Native groups had a vested interest in maintaining some control over their status and land rights, and the idea that their customs and governance were subject to the Bill of Rights represented a significant encroachment on native sovereignty.

67 Caroline Lachapelle, "Beyond Barriers: Native Women and the Women's Movement," in Maureen Fitzgerald, Connie Buberman & Margie Wolfe, ed., Still Ain't Satisfied: Canadian Feminism Today, (Toronto: The Women's Educational Press, 1982): 260-261. Shirley Bear, "You Can't Change the Indian Act?" in Jeri Dawn Wine & Janice L Ristock, ed., Women and Social Change: Feminist Activism in Canada, (Toronto: James Lorimer & Company, 1991): 206.

27 At the heart of this issue lay the notion of individual versus communitarian rights.

Political scientist Andrew M. Robinson has posited that there are two main issues with granting communitarian rights. The first is that when certain powers are granted to a community, it usually leads to a few members speaking for the whole and enforcing its rules. The second issue is that "if communities are given the power to control their membership...they may use it to marginalize or exclude legitimate members."69

Although Robinson's argument is in relation to post-Charter Canadian politics, it nonetheless applies to the case of Jeanette Lavell. In this instance, seemingly legitimate members of a community that has been given special status are being excluded, and the leaders of that group are opposed to court action to rectify that exclusion.

Some have been retrospectively critical of the women's movement, and in particular the NAC, for being somewhat shortsighted on the issue of women's rights versus the collective rights of native Canadians. Vickers, Rankin and Appelle have argued that despite an impressive resume of standing up for the rights of native

Canadians, the NAC did not recognize the commonalities between the women's movement and the fight for collective rights for native Canadians. In their view, "the rights of individual native women could not be secured unless the collective rights of the

First Nations were secured." This is due to the fact that native Canadian women face two types of discrimination: one being racism faced by all native Canadians, and the other being sexism perpetuated by "the patriarchy of Canadian society."71 Scholars have

69 Andrew M. Robinson, "The Supreme Court and Collective Rights: Taking Community Seriously?" in Hugh Mellon & M. W. Westmacott, ed., Political Dispute and Judicial Review: Assessing the Work of the Supreme Court of Canada, (Scarborough, ON: Nelson/Thomson Learning, 2000): 185. 70 Vickers et ai, 9. 71 Anita Olsen Harper, "Is Canada Peaceful and Safe for Aboriginal Women?" Canadian Woman Studies, vol. 25, no. 2 (2006): 34.

28 noted that while the NAC was quick to come to the aid of Jeanette Lavell, the women's movement struggled with the conflicting issues of women's rights versus the collective rights of native Canadians.

Another theme that has been discussed by scholars is the effectiveness of obtaining intervener status at the Supreme Court. Interveners are parties to a case that are neither appellant nor respondent, but are individuals or groups that have a vested interest in the outcome of the case. In the Lavell case, interveners were heard on both sides of the issue. Ian Brodie has demonstrated that the Supreme Court increasingly utilized interveners beginning in the early 1970s "as the court moved towards a policy-making role."72 The use of interveners recognizes that a Supreme Court decision's repercussions are rarely, if ever, confined to the specific appellant or respondent of a case. Supreme

Court decisions affect broader Canadian society in two ways: the first is that Supreme

Court decisions are binding, and are thus used by lower courts to justify future decisions, and secondly, and in particular to the cases of Lavell and Bliss, Supreme Court decisions can place entire pieces of federal legislation (or parts thereof) up for review. Both of these instances affect Canadian society beyond the scope of a two party case.

Not all legal scholars agree with the notion that interveners at the Supreme Court are a positive influence on the Canadian judicial system. Robert Ivan Martin argues that

"tightening the rules on standing and limiting interveners would have a significant effect in depoliticizing the work of the Supreme Court."73 Although Martin's aim is to overhaul the Canadian political system to rid it of an allegedly ultra-politically correct, feminist orthodoxy, his argument in this instance does have some logical merit. If it is true that

72 Brodie, 201. 73 Martin, 193.

29 the Supreme Court's role is to merely apply and interpret existing pieces of legislation and common law, then why would such an emotionless impartial court require the assistance of interested individuals or groups? While Martin's opinions on the Court and on Canadian political society in general, may have some validity, the fact remains that throughout the 1970s the Supreme Court made decisions that extended beyond the scope of any one individual case. The Court increasingly heard from interveners, which while supporting Martin's argument that the Court became a political and policymaking body, nonetheless provides historians with valuable insight into the differing opinions of the many social groups who had a vested interest in the case at hand.

The case of Attorney General of Canada v. Lavell; Isaac v. Bedard is the first case brought by women to the Supreme Court of Canada as a challenge under the Bill of

Rights. The Lavell case specifically challenged section 12(l)(b) of the Indian Act which stipulated that a status woman who married a non-status man by default lost her status, and consequently, her specific status rights granted to her by the federal government.

This included the right to own property and reside on the premises of a reserve. It also meant that her children would be excluded from such rights.

Although the case was decided in 1973, the repercussions of the decision changed the way in which many different groups approached the federal government in terms of rights discourse and constitutional reform. Native groups vehemently opposed Lavell throughout the case, and many of these groups gained intervener status at the Supreme

Court. However, this opposition was later dropped when groups such as the National

Indian Brotherhood came to understand the commonalities that they had with the women's movement in opposition to a government that refused to guarantee both the

30 rights of natives and the rights of women. Thus, the political climate in Ottawa was changed as a result of the Lavell case. Politicians on both sides of the issue were polarized in order to capitalize on the widespread publicity of the case.

But the group that was greatly mobilized as a result of this case was the women's movement. The Lavell case set the stage for the Murdoch and Bliss cases whereby the women's movement came to accept the fact that although it was the highest court in the land, a loss at the Supreme Court was not cause to give up. A massive publicity campaign was launched in the months following the Court's decision. After the issue became public knowledge, women's organizations took their battle to politicians in

Ottawa; they brought their arguments before various committees in Parliament. Women also broadened their coalition by reaching out to other organizations in order to gain support, including, ultimately, the National Indian Brotherhood. Women also went beyond the borders of Canada in the widely publicized Sandra Lovelace case at the

United Nations.

Perhaps the most important revelation that women's organizations had was the complete and total ineffectiveness of the Bill of Rights. The Lavell case not only set the stage for further attempts at constitutional litigation in the 1970s, it also provided the impetus for a focus on ensuring that the new Charter would contain sections that would prevent women being excluded from equality. The results of such a campaign ultimately led to the revision of the Indian Act (in 1985, just prior to when equality rights in the

Charter were to come into force), as Jeanette Lavell advocated in 1973, to a system based on native blood, and not based on marriage. While a blood-based system of determining

Indian status does not discriminate based on sex, it does have its own major ethical

31 issues. The idea of determining "racial purity" for the purpose of establishing special rights for a group of people demonstrates a different form of discrimination, even though it is not based on sex.

More important, however, is the aftermath of the decision handed down by the

Supreme Court. Women reacted very strongly against the choice made by the Court justices, and brought forward a massive publicity campaign which aided in various attempts at presenting arguments before Parliament. The legislative change that occurred in 1985 went well beyond a simple elimination of section 12(l)(b), and thus it was not the de facto result that would have occurred had the Supreme Court sided with Lavell in

1973. In fact, there is much evidence to support the notion that the broader women's movement, and indeed Jeanette Lavell herself, did not simply want to remove one section of the Indian Act, but rather, to reinvent the manner in which status was granted and removed. Moreover, it was their loss in the Lavell case that really brought forth the movement to change the nature of human rights protections in Canadian law. It is the main contention of this paper that Jeanette Lavell's loss at the Supreme Court aided the women's movement in achieving their longer-term policy objectives on equality.

Until 1970, Jeanette Lavell (born Jeanette Vivian Corbiere) was a member of the

Wikwemikong Band on Manitoulin Island in northern Ontario. On 11 April 1970, she married David Mills Lavell, who was not a member of any Band and did not have ancestry that would make him a status Indian. On 7 December, Lavell's name was removed from the Wikwemikong Band list. Ten days later, she protested her removal

32 from the list, and on 15 January 1971 Lavell requested the decision be reviewed by a judge.74

In his judgment, Judge B.W. Grossberg of York County Court decided that the main issue was whether or not Lavell had a case with the Bill of Rights against the Indian

Act similar to the case presented in Drybones. Judge Grossberg found that the discrimination contained in defining status did not equate to the ability of Joseph

Drybones to legally be drunk off of a reserve. In Drybones, there was equality within a class (being status Indians), "but inequality with 'fellow Canadians.'"75 However,

Grossberg denied that women were being treated unequally because the Indian Act treated all members of a specific class (being married women) the same. There was equality within a class (Status women were all treated the same), but, unlike in Drybones, there was not inequality with broader Canadian society because non-status women also did not have Indian status upon marriage to a non-status man. His logic is somewhat confusing, but the basic premise is that since all Canadian women who married non status men would not have status, and all Canadian women who married status men would have status, there was no discrimination. He also contended in his judgment that the group of people most suited to determine Band membership is the Band themselves through lobbying Parliament, and not by using the courts in an attempt to go beyond

Parliamentary supremacy.

Lavell appealed Grossberg's decision to the Federal Court of Appeal and in a unanimous decision Lavell won her case. In writing the decision for the court, Judge

74 All facts are contained in the "Agreement as to Facts" section of various court factums. Supreme Court Records, Attorney General (Canada) v. Lavell; Isaac et al. v. Bedard, Docket #12535. "Reasons for Judgment of His Honour Judge B.W. Grossberg," Attorney General (Canada) v. Lavell; Isaac et al. v. Bedard, Supreme Court Records, Docket #12535, June 21 1971.

33 Thurlow concluded that although Parliament created the Indian Act with a specific legislative purpose, it prescribed "a different result with respect to the rights of an Indian woman who marries a person other than an Indian... from that which is to obtain when a male Indian marries a person other than an Indian."76 Thurlow and the other members of the Court of Appeal (Chief Justice Jackett, and Justice Pratte) concluded that the loss of

Indian status could be considered a penalty. In this sense they did not concur with

Grossberg's analysis that Lavell was being treated like all married Canadian women, and thus did not concur with Grossberg's distinction of this case from Drybones. In

Drybones, a penalty was applied to Joseph Drybones that was not applied to other

Canadian men, and so he faced discrimination based on race. Thurlow concluded in his ruling that since Jeanette Lavell faced a penalty that men did not face, she was discriminated against based on sex. The Canadian government appealed this decision to the Supreme Court.

At the Supreme Court, Jeanette Lavell's case was joined with another woman who found herself in a similar situation. Yvonne Bedard (born Yvonne Williams, 17

April 1938) was a member of the Six Nations Band in the County of Brant and lost her status after she married Howard Bedard on 30 May 1964. The Bedard family moved to

Grimsby, Ontario and raised two children. On 23 June 1970, Yvonne Bedard separated from her husband and moved, with her two children, to the Six Nations Reserve to live in a house that was willed to her by her late mother. On the 28th of July the Six Nations

Band Council passed a resolution requiring Bedard to move off of the reserve and to dispose of her stake in the house. Bedard transferred the property into her brother's name

(who was still a member of the Band) and he allowed Bedard to reside at the house rent-

16 Attorney General (Canada) v. Lavell, [1971] 22 D.L.R. (3d) 188.

34 free. However, on 15 June 1971 the Band Council again demanded that Bedard move off of the reserve.

Bedard's case was brought before Justice Osier of the Supreme Court of Ontario in November 1971. Her arguments before the court mirrored those of Lavell; that only women were subject to the provisions of losing status under the Indian Act as a result of marriage whereas men were not. Her case also added the element of race in addition to sex, in that her status under the Indian Act is determined by the race of her husband, and since her husband was not a status Indian she faced discrimination. The other element added by Bedard's case was the inclusion of an argument that supported the necessity and encouragement of marriage as an institution. Bedard's lawyers point out that had she simply lived in common law with her husband, she would have been able to retain her status.77 While the two cases are similar, Bedard's issues differ from Lavell's because of the added dimension of property. As Bedard's lawyer argued during her cross- examination, if section 12(l)(b) were to be declared inoperative, she would not have necessarily been required to transfer her mother's home to her brother in order to avoid selling it.78 Justice Osier's decision cited the decision found in Lavell at the Federal

Court of Appeal:

It was argued that the matter before me has been decided by a Court whose judgments and decisions are binding upon me. In a judgment which is as yet unreported, but which was filed on October 13, 1971, sub nom Jeannette Vivian Corbiere Lavell v. The Attorney General of Canada, the Appeal Division of the Federal Court decided that Section 12(l)(b) of the Indian Act was rendered inoperative by virtue of the Canadian Bill of Rights.19

All facts and arguments appear in the "Statement of Claim," Richard Isaac et al v. Yvonne Bedard, Supreme Court of Canada Records, Docket #12548. September 14, 1971. 78 "Cross examination of the respondent," Richard Isaac et al v. Yvonne Bedard, Supreme Court of Canada Records, Docket #12548, September 22, 1971. 79 Bedard v. Isaac [1971] 25 D.L.R. (3d) 551.

35 Given the similarities between the two cases, and given that both the Supreme

Court of Ontario and the Federal Court of Appeal came to the same conclusion regarding the Bill of Rights' application to Section 12(l)(b), the Supreme Court of Canada heard both cases together. Beyond the judgment of the case, court records provide the factums of the many interveners who felt they had a stake in the outcome of the case. Although these interveners aligned themselves on one or the other side of the issue, through their inconsistencies it is easy to see that many of these groups were inexperienced in dealing with both the Bill of Rights and rights discourse in general. Moreover, while some groups and individuals chose to submit their legal opinions jointly, some of these factums reveal disorganization between those who were on similar sides of this case. Of the twenty-two interveners, nine sided with Lavell and thirteen sided with the Attorney

General.

All of the thirteen interveners that wanted the Supreme Court to uphold section

12(l)(b) of the Indian Act were groups that represented native Canadians. Eleven of these thirteen groups were associated with the National Indian Brotherhood and they were permitted by the Court to submit a joint factum.80 The other two groups, the Six

Nations Indians of the County of Brant, and the Treaty Voice of Alberta Association, submitted separate factums. However, their arguments were very similar.

The primary argument contained in the joint factum from the National Indian

Brotherhood was that the Bill of Rights, or any other Canadian law for that matter, should

80 The eleven groups were: The Indian Association of Alberta, the Union of British Columbia Indian Chiefs, the Manitoba Indian Brotherhood, the Union of New Brunswick Indians, the Indian Brotherhood of the Northwest Territories, the Union of Nova Scotia Indians, the Union of Ontario Indians, the Federation of Saskatchewan Indians, the Indians of Quebec Association, the Yukon Native Brotherhood, the National Indian Brotherhood. "Factum of the Intervenants," Attorney General (Canada) v. Lavell; Isaac v. Bedard, Supreme Court of Canada Records, Docket #12535. Undated; "Indians will argue woman's status case," Toronto Star, January 20, 1973. 109.

36 have no effect on the sovereign nations that comprise native peoples. These organizations believed that the special status granted to native Canadians under the

British North America Act meant that no simple statute, such as the Bill of Rights, could legally infringe upon Parliament's ability to protect that status as mandated under

Canada's constitution. Moreover, these groups believed that their sovereignty depended on their ability to determine, like any nation, the requirements and definitions of citizenship. These arguments do not necessarily pertain directly to the sections of the

Indian Act that discriminate against women, but rather, raise the issue of amending legislation with respect to Canadian natives without their consent or input. Native groups were particularly sensitive to this fact as the Lavell case came only four years after the release of the Government's ill-advised White Paper on Indian Affairs.

In addition to arguments on native sovereignty, the Indian Brotherhood and its co- interveners also urged the court to consider the place of women in the family and in native culture. Their biggest issue with blood-determined status was that it does not rectify the issue of allowing non-status Canadians to live on reserves. The Indian Act prior to 1985 created a system whereby entire families were considered to be status

Indians, as opposed to individuals within each family. Therefore, status families could exist as a unit on a reserve. Classifying status based on one's bloodline would create situations where status natives could marry non-status individuals; one spouse would have the right to live on a reserve, the other would not. The result meant one of two things: either the Indian Act would come to promote native peoples to live off reserve, or, the Indian Act would necessarily need to be changed to allow non-status individuals to live on a reserve. Their conclusion was that the court should not change the Indian Act,

37 as such changes would have dramatically affected the balance achieved by the Act in terms of the number of people living on reserves. This issue was obviously beyond the scope of the Lavell case. As a result of this conflict within the Indian Act, the National

Indian Brotherhood and its co-interveners stated at the beginning of their factum their objection to judicial review of the Indian Act:

The Indian organizations have not intervened in the Lavell and Bedard cases to support the details of the present status system in the Indian Act. There is a widespread feeling among the Indian organizations that the Indian Act must be substantially revised. The Indian organizations submit that any such revision is properly the task of Parliament.. .81

Despite this attitude, these groups did defend the rationale and purpose of section

12(l)(b) of the Indian Act on the grounds that it was merely representative of aboriginal, and indeed Canadian, culture and tradition of determining the fate of the family unit based on the male spouse. There were four main reasons why the National Indian

Brotherhood and their associated organizations believed in section 12(l)(b) of the Indian

Act. The first was that it was customary for women to move in with their husbands, and not the other way around. Since most women moved to live with their husbands upon marriage, it seemed practical for a status woman to lose her status upon marrying a non status male, because chances were she would move off of a reserve to live with him. If this logic were accepted, then it would be true that non-status women who married status men would likely move in with their husbands onto the reserve. The second reason was that they believed that women were commonly economically dependent upon their husbands. The third was that the social and economic roles assigned to men and women in Canadian society meant that having non-status women living on a reserve would have less of an impact than having non-status men living on a reserve. And finally, they cite

81 Ibid.

38 that it was a "long standing legislative policy in Canada" to view the man as the "head of the family."82

The Treaty Voice of Alberta Association echoed many of the key points made by the National Indian Brotherhood et al. This is particularly true in their view of the family, stating that "it is respectfully submitted that there are sound social reasons for the different treatment of female from male Indians.. ."83 Where they differ, however, was in their attitudes toward the Indian Act itself. The National Indian Brotherhood suggested room for improvement within the Act, the Treaty Voice of Alberta Association believed that "the customs of the Indian people are exactly the provisions set out in the Indian

Act."84 This disagreement aside, the groups who represented native associations were firmly of the opinion that the Canadian Bill of Rights should have no authority over the special provisions granted to Canadian natives in the Indian Act and in the British North

America Act. And secondly, that there was sound justification for discriminating against women in section 12(l)(b), and that such discrimination was necessary for achieving certain and specific goals. In a Toronto Star article, the Indian Federal of Alberta echoed the arguments of the Treaty Voice of Alberta, stating that it was "necessary to understand

Indian culture and traditions before yet another part of the white culture is imposed on

Indians." There was a distinct fear that native culture would have been destroyed had the Indian Act been subjected to the Bill of Rights.

82 Ibid. 3 "Factum of the Treaty Voice of Alberta Association," Attorney General (Canada) v. Lavell; Isaac v. Bedard, Supreme Court of Canada Records, Docket #12535. Undated. 84 Ibid. 85 "Indians call on government to halt women's rights case," Toronto Star, February 21, 1973. 16. "Indians pour into Ottawa for vital appeal case," Toronto Star, February 22, 1973. 10.

39 The economic effect of the Supreme Court decision was not addressed by these native organizations. A native man from the Mohawk band of Caughnawaga, Frank

Taiotekane Horn, made this argument in a letter he wrote to the Court. Although he was not an official intervener, his letter was placed with the rest of the case files. His unconfirmed and unfounded math suggested that "if Mrs. Lavell wins, and with the promotion of 600,000 more phony Indians - Negros, Chinese, Half Breeds, Metis, all of them will be able to live on an Indian Reserve without any municipal taxes or income tax."87 According to Horn's figures, the increase in cost as a result of a retroactive decision to return status to those women who had lost it, plus their families, would have amounted to nearly nine hundred million dollars per year. Horn's arguments, and even the tone of his letter, suggest that his letter was more rhetorical than factual. However, it is important to note the potential economic cost of the decision in the Lavell case. These concerns, as well as the other issues raised by the interveners, demonstrated a firmly held view that Jeanette Lavell and Yvonne Bedard should not be granted their Indian status.

Although there were thirteen interveners opposed to these women, nine were in favour.

In Lavell's factum to the Supreme Court, she incorporated some of Bedard's arguments in addition to the arguments she had presented before the York County court and the Federal Court of Appeal. One instance of this is her inclusion of the argument that it was "the public policy of Canada to encourage the institution of marriage, and that the right to marry should not be infringed upon by any restriction whatsoever unrelated to

"Letter from Frank Taiotekane Horn to the Supreme Court," Attorney General (Canada) v. Lavell; Isaac v. Bedard, Supreme Court of Canada Records, Docket #12535, February 26, 1973; Horn's wife, Kaha Tineta Horn, accused the federal government of purposefully undermining the Indian Act, "Indian women at odds," Toronto Star, March 12, 1973. 62.

40 the responsibilities of marriage itself." Lavell was very cautious about repudiating the entire Indian Act, and in her argument she specifically discussed the importance of such legislation to protect the rights of native Canadians. At the same time, however, she argued that these protections should not place "sanction upon inter-racial marriage."

One of her more far ranging arguments was that she believed that women should not necessarily take on the status of their husband upon marriage. This argument necessarily extends beyond the confines of this one case. In both the Murdoch and Bliss cases, it is easy to see how women were challenging the concept of traditional matrimonial duties. Also, given the viewpoints of the unsupportive interveners, the role that women play in the family became a central theme in the Lavell case. Lavell argued that just because a woman marries someone of a different race, it did not necessarily mean that the family would follow the husband's racial culture. This also shows the beginnings of Lavell's blood-based argument, whereby status should not be determined by husband or wife, but rather, by blood. If the Court were to accept Lavell's arguments about gender roles, then one possible option to correct that is to ensure that every status

Indian who marries a non-status person loses their status under the Indian Act. The problem with this alternative would be the gradual decline of native populations across

Canada, and certainly could be seen as a threat to native culture. As a result, Lavell argued, "the Court might well have to adopt some standard similar to that used in the

U.S." But, as Lavell points out, "this question does not...fall to be decided in this case."

There were a number of individuals and organizations that submitted arguments siding with Jeanette Lavell in her case against section 12(l)(b) of the Indian Act. Four

"Respondent's factum," Attorney General (Canada) v. Lavell; Isaac v. Bedard, Supreme Court of Canada Records, Docket #12535. Undated.

41 prominent organizations with a mandate to establish women's rights in Canada, and three individuals, submitted a joint factum to argue in favour of removing discrimination from the Indian Act. The Alberta Committee of Indian Rights for Indian Women, the

University Women's Club of Toronto, the University Women Graduates Limited, and the

North Toronto Business and Professional Women's Club, along with Viola Shannacappo,

Monica Agnis Turner, and Rose Wilhelm argued that the Bill of Rights was capable of striking down section 12(l)(b).

They also submitted other arguments that go beyond the simple facts of the case.

The first, put forward by Viola Shannacappi, a status Indian from Manitoba, argued against the inclusion of the Manitoba Indian Brotherhood on the list of interveners submitting against Lavell. Her issue was that the Manitoba Indian Brotherhood did not necessarily speak for all Manitoba status Indians, and thus their presentation to the

Supreme Court could not be accepted as wholly representative. Other interveners also argued against the notion that native culture necessarily had a tradition of patriarchal lineage; the culture of a family was not always determined by the husband. In fact, as they argued, some Bands, such as the Iroquois and Huron societies, followed the tradition of matriarchal lineage. They also submitted the argument that with relation to Drybones, all that was necessary was to replace "race" with "sex," and the Bill of Rights interpretation of "equality before the law" was clear and simple.

In addition to the Alberta Committee on Indian Rights for Indian Women, two other organizations, the Native Council of Canada and the Anishnawbekwek of Ontario, dedicated to the status rights of non-status Indian women, submitted separate factums that

"Factum of the Intervenants, The Alberta Committee of Indian Rights for Indian Women, et. al." Attorney General (Canada) v. Lavell; Isaac v. Bedard, Supreme Court of Canada Records, Docket #12535. Undated.

42 mirrored the arguments of the other pro-Lavell interveners. One of the Native Council's primary concerns was with regard to the status rights of children. While section 12(l)(b) was seen as an unjust penalty against women, the Council argued that it was also an unjust penalty against the children of such unions, who, in their view, had the same right to native status as their mothers. As a result, the Council put forward arguments in favour of a status system based on blood. They also argued that the Indian Act was

"produced by white men" and had no basis in native culture or tribal custom.90 The

Anishnawbekwek of Ontario focused their arguments on the idea of the importance of the family unit in Canadian society. They challenged "the assumption that the male spouse in marriage is dominant and that the characteristics, qualities, or status of the male spouse characterize the entire family unit." They thus submitted the opinion that Parliament can effectively protect native heritage and culture without necessarily using a sex-based classification.91

The reaction in the public sphere mirrored that of the arguments in Court. Harold

Cardinal, an Albertan native leader, stated in a press release that if Lavell were to win her case, violence would ensue on reserves, claiming: "Our lands and our reserves belong to us...and no institution has the authority to tell us how they can be used." Cardinal was instrumental in the ultimate failure of the Government's 1969 White Paper that advocated a policy of native assimilation, primarily in his publication of The Unjust Society and the

Red Paper (otherwise known as Citizens Plus). On 23 February 1973, in the midst of the

Lavell case, he warned the House of Commons Indian Affairs committee that his group,

90 "Factum of the Native Council of Canada (Intervenant)," Attorney General (Canada) v. Lavell; Isaac v. Bedard, Supreme Court of Canada Records, Docket #12535. Undated. 91 "Factum of Anishnawbekwek of Ontario (Intervenant)," Attorney General (Canada) v. Lavell; Isaac v. Bedard, Supreme Court of Canada Records, Docket #12535. Undated. "Indian leader predicts violence if women push too far," Globe and Mail, February 22, 1973. W7.

43 the Indian Federation of Alberta, would be drafting a new Indian Act that would guarantee the right of native groups to determine how status was gained or lost.93

Cardinal's press release with regard to the Lavell case occurred on the same day that roughly thirty women protested on Parliament Hill against the government's decision to appeal the Federal Court of Appeal's ruling.94 Jeanette Lavell was given a half page section of the Globe and Mail to explain her case to the public. In the synopses of the

Globe's interview with her, she explained many of the issues that were discussed in her factum, including the idea that "everyone should be legally an Indian, if they are an

Indian. If they are white, they should be white."95 Further, she explained the notion that although this was a case about the rights of women under the Indian Act, it was also a question of 'human rights' as it also included issues such as race and the freedom to marry whomever one chooses. She also expressed her desire to see Canada adopt the system utilized in the United States whereby status was determined by having twenty-five percent or more native blood, an ironic proposal given her discussion of human rights with regard to race. Another article stressed the core issue as being between the Bill of

Rights and the Indian Act competing for supremacy and legitimacy. It also expressed the concern that regardless of the outcome of the case, the precedent set would have far reaching implications for many Canadians.96 Various other newspaper articles reflecting both sides of the issue expressed the same concerns as demonstrated in court: the man was the natural and reasonable person to determine the status of a family.97

93 "Indians plan to draft own act, Leader says," Toronto Star, February 23, 1973. 4. 94 "Women oppose act's discrimination," Globe and Mail, February 22, 1973. W7. 95 "To Mrs. Lavell, it's a 'question of human rights,'" Globe and Mail, February 22, 1973. W6. 96 "In one corner, the Bill of Rights, in the other, the Indian Act," Globe and Mail, February 22, 1973. W6. See "20 Lawyers heard as Lavell case opens before overflow crowd: Reasonable that Indian family's status should be decided by male spouse, Supreme Court told," Globe and Mail, February 23, 1973. 13; "Lawyer pleads case on prejudice grounds," Globe and Mail, February 24, 1973. 13; "Indian woman faces

44 There were two issues in the press that were not expressed in court. The first issue was that the Manitoba Indian Brotherhood, represented by a lawyer and part of the joint intervener factum submitted by the various Indian organizations across Canada against Lavell, published a paper suggesting that their organization had come to accept that the Indian Act was discriminatory towards women and that that discrimination needed to be rectified. This discrepancy suggests that the arguments that were made before the Supreme Court were not necessarily a reflection of the true attitudes that native organizations had toward the status of women and section 12(l)(b) of the Indian Act.

The second issue that was not raised in court was the promise made by the

Canadian government to native organizations that they would be consulted prior to any amendments made to the Indian Act if the Supreme Court were to rule in favour of

Lavell." This promise was made by the Minister of Indian Affairs, Jean Chretien, in response to a call from the National Indian Brotherhood to amend the Indian Act to specifically state that it operated notwithstanding the protections specified in the

Canadian Bill of Rights. This promise, however, lacked any consideration for the women involved in the Lavell case. If consultation was promised by the Government to native organizations, why then was the same promise not extended to women's groups? This issue was raised by women's organizations after the Supreme Court decided against

Jeanette Lavell.

bias over sex for marrying white, high court told," Toronto Star, February 24, 1973. 7; "When is an Indian not an Indian?" Toronto Star, July 30, 1973. C4. 98 "Indian Act defended, said discriminatory," Globe and Mail, February 27, 1973. 13. "Indian groups to be consulted before rulings," Globe and Mail, February 28, 1973. 10.

45 In a four-one-four decision, the Supreme Court sided against Jeanette Lavell and Yvonne Bedard, overturning their respective victories at the Federal Court of Appeal and Supreme Court of Ontario. In writing for the majority, Chief Justice Richie determined that the Bill of Rights did not have the power to overturn what he saw as a matter of the "exclusive legislative authority vested in Parliament under section 91(24) of the British North America Act, 1867, to legislate in relation to "Indians, and Lands reserved for Indians."101 The Court was of the opinion that the matter of defining native membership was necessary to the successful administration of section 91(24) as afforded to Parliament under Canada's constitution. Richie took issue with the notion that

"equality before the law" in the Bill of Rights was meant to be egalitarian. Instead, he argued that 'equality before the law' meant the "equal subjection of all classes to the ordinary law of the land as administered by the ordinary Courts," and in his opinion meant "equality in the administration or application of the law by the law enforcement authorities and the ordinary Courts of the land." Richie also discussed at great length the differences between the Lavell case and the Drybones case. Since Drybones was concerned with the actions of a native person off of a reserve, it did not coincide with the conflicting interest of the constitution. As a result, the Bill of Rights was operative.

Justice Pigeon wrote a concurring decision, disagreeing with the Court's decision in Drybones. He thus felt compelled once again to be consistent with his interpretation of the Bill of Rights within Canadian jurisprudence. Pigeon believed that "the enactment of the Canadian Bill of Rights was not intended to effect a virtual suppression of federal

100 Justice Pigeon's concurring judgment was separated from the plurality decision, making the decision a four-one-four judgment, not a five-four judgment. ' Attorney General (Canada) v. Lavell; Isaac v. Bedard, 38 D.L.R. (3d) 481. 102 Ibid, 495. 103 Ibid, 500.

46 legislation over Indians." However, he did feel that those members of the Court who agreed with the majority's decision in Drybones were being inconsistent by denying the same interpretation in the Lavell case. Pigeon felt that "if discrimination by reason of race makes certain statutory provisions inoperative, the same result must follow as to statutory provisions which exhibit discrimination by reason of sex."10 However, since he disagreed with utilizing the Bill of Rights to make provisions inoperative in Drybones, he disagreed with the same issue in Lavell.

For Justice Laskin and the other three members of the Court who dissented from the majority, the Drybones case was at the heart of the issue. Laskin argued that it was

"impossible to distinguish Drybones" from the Lavell and Bedard cases.106 There are a few details of Laskin's argument which made his unique from the majority decision. The first is that he utilized the opinions presented by the interveners in the case, and referenced them in his written judgment.107 This included a reference to the ideas brought before the Court by the Native Council of Canada with respect to the effects of section 12(l)(b) on children of status women who marry non-status men.108 Laskin also disagreed with Richie's interpretation that section 12(l)(b) was somehow protected under

Canada's constitution. He argued that the British North America Act, while specifically granting legislative authority over "Indians, and Lands reserved for Indians," did not allow specifically for the power to discriminate based on race, colour, or sex. He argued that the present law was no more under the authority of Canada's constitution than any

1UILI. Ibid. Ibid, 502. Ibid, 504. Ibid,5\0.

47 other piece of federal legislation, and thus the decision could not be distinguished from

Dry bone s.m

The reaction to the decision outside of Court was expected considering the arguments and language used throughout the case as evidenced by the intervener factums.

Frank Taiotekane Horn was quoted as suggesting that the four-one-four decision was "too close for comfort," and that native leaders needed to renew calls for specific amendments to the Indian Act so that it operated specifically notwithstanding the Canadian Bill of

Rights. Other native leaders suggested that in the wake of the decision, it was back to

"business as usual" for Bands and their councils. One issue that immediately arose in the wake of the 27 August ruling was that women's organizations had no other legal avenue for challenging the Indian Act, and thus the matter had then become, according to

Jeanette Lavell's lawyer Clayton Ruby, "a political issue that Parliament could decide."110

While the Supreme Court cannot be excluded from the realm of popular politics, the wake of the decision certainly transformed the issue from the legal realm to the political, from the Supreme Court to the court of popular opinion. Canadian women's organizations immediately began to call for amendments to the British North America

Act, since it was used by Justice Richie to justify the discrimination in the Indian Act.

The issue also became top priority for many organizations to escalate political mobilization efforts, including the Status of Women Council who promised to discuss the issue at their next meeting in September 1973. The council was later praised by their

Ibid, 511-512. "Indian Act biased but valid, court says," Globe and Mail, August 28, 1973. 11.

48 skeptics for the Council's quick action in the wake of the Lavell decision. Mary Two-

Axe Earley was also prominently featured in the press in the wake of the decision. She declared that "this is supposed to be the most democratic country in the world and yet something like this can happen. We will be told to get off the reserve, but where do we go?"112

Women's organizations coordinated their efforts in order to launch an effective public campaign to raise awareness of the issues presented in the case. On 22 October

1973, the NAC along with several affiliates held a "national day of mourning" for the

Canadian Bill of Rights, claiming that the Bill has been killed by the Supreme Court's decision. In their press release describing their national day of mourning, the NAC called on women to picket federal buildings, and to write letters to the national party leaders to instruct Parliament to amend both the Indian Act as well as the Bill of Rights to rectify the decision made by the Court.113 Many organizations wrote to the Government, such as the

Indian Homemakers Association who claimed that the Court's decision was "totally discriminatory and unjust," and that it was "a violation of the United Nations Declaration of Human Rights."114 Jeanette Lavell was also involved in the mobilization strategy. She claimed that due to the Court's narrow interpretation of the Bill of Rights, her loss at the

Supreme Court was not a loss for just native women, but for all Canadian women who may at one point face discrimination under Canadian law. While it was not immediately

111 "Skeptics being to see progress in advisory council working," Globe and Mail, December 6, 1973. W5; The Council's actions with regard to the Lavell case was also reviewed in: "1973: a year of triumph and tragedy for women," Toronto Star, December 28, 1973. Dl. 112 "Amendment to BNA Act needed to safeguard rights, lawyer says," Globe and Mail, August 29, 1973. 9. 113 "Women plan day of mourning for Canada's Bill of Rights," Globe and Mail, September 10, 1973. 10. 114 "Letter from the Indian Homemakers Association to Jean Chretien," Canadian Women's Movement Archives, University of Ottawa (CWMA), XI0-24, National Action Committee on the Status of Women Fonds (NAC), Box 713, File: Native Indian Women: Government meetings, correspondence, 1970s, October 25, 1973.

49 apparent, it was later demonstrated that she was accurate in her interpretation as the Court used the precedent set in her case to decide against Stella Bliss in her challenge of the maternity leave benefits of the Employment Insurance Act.

While women were mobilizing for a publicity campaign, the issue was also raised in Parliament by various members who sought to weigh in on the decision. For the last few months of 1973, the Lavell case was raised many times. This occurred mainly during question period, the first example of which was when the prominent civil rights lawyer Andrew Brewin115 of the New Democratic Party (NDP) asked:

Will the Minister of Justice give consideration to introducing an amendment to the Canadian Bill of Rights, to make it clear that the provisions of the Bill of Rights dealing with discrimination by reason of race, national origin, colour, religion or sex are to prevail over any other legislation and invalidate any other legislation of Parliament inconsistent with the Bill of Rights!

In a standard response from the government during oral question, the Minister of

Justice Otto Lang stated that Brewin's question was important, and that the government would be "carefully looking at it."11 Members also raised the issue during debates on bills, or during opportunities to make member statements. Brewin, in a debate on the constitution, once again raised the issue that the Bill of Rights needed to be changed and entrenched, since it was obviously seen as inadequate to protect against discrimination

117 due to the Court's interpretation of "equality before the law." He also raised the issue of the Lavell decision during an announcement by the government of the creation of the

Federal Commission for the Protection of Egalitarian Rights, urging the government to

115 Andrew Brewin was retained as counsel for the Cooperative Committee on Japanese Canadians during the deportation issue immediately following World War II. 116 Oral Questions, House of Commons Debates, August 30, 1973, 6066. 1 Statement by Mr. Andrew Brewin (Greenwood), House of Commons Debates, November 8, 1973, 7663.

50 go beyond the creation of the commission and entrench the Bill of Rights into Canada's constitution.118

Other members also raised various issues related to the Lavell case. Progressive

Conservative Gordon Fairweather119 argued that the Lavell case was a paradox because it placed the rights of women on a collision course with the sovereign right of native groups to be consulted prior to any amendments to the Indian Act. In Fairweather's opinion, both concerns were equally legitimate. While entrenchment was seen as the only viable option for protecting women, it could not do so without the consultation of native groups in order to protect their rights afforded to them under the British North America Act.

The author of the Bill of Rights, former Prime Minister John Diefenbaker, also utilized his time in Parliament to add to the discussion. During a debate on a Protection of Privacy Bill, Diefenbaker stated that he was "concerned about the way this government has acted on matters connected with freedom in this land."121 His criticism was that in the cases of Joseph Drybones, Jeanette Lavell, and Yvonne Bedard, it was the Federal

Government that appealed their victories in higher courts to the Supreme Court, thereby being responsible for the narrow interpretation of the Bill of Rights. In response to

Diefenbaker's statement, the Parliamentary Secretary to the Minister of Manpower and

Immigration, Mark McGuigan, argued that the former Prime Minister was being hypocritical for attacking the government on the Bill of Rights. He pointed out that the reason Jeanette Lavell lost her case was because of the "apparent bankruptcy of the Bill

1 Statement by Mr. Andrew Brewin (Greenwood), House of Commons Debates, December 10, 1973, 8548. 119 Gordon Fairweather, the Member of Parliament from Fundy-Royal, later became Canada's first commissioner of the Canadian Human Rights Commission in 1977. 1 Statement by Mr. R. Gordon L. Fairweather (Fundy-Royal), House of Commons Debates, November 8, 1973, 7669-7670. "Statement by the Right Honourable J. G. Diefenbaker (Prince Albert)," House of Commons Debate, November 23, 1973,8090.

51 199 of Rights which [Diefenbaker] passed into law in this House some years ago." In subsequent years, Diefenbaker raised the Lavell case, again placing the blame on the

Government's decision to appeal her victory at the Federal Court of Appeal. Instead of discussing his own Bill of Rights, Diefenbaker urged the Government to amend the

Indian Act. Once again, the Government reminded the former Prime Minister that no 1 9^ amendments would take place until native groups had been consulted.

Editorials and letters to the editor also weighed in on the decision, mainly siding with Lavell. The Globe and Mail editorial called the decision "a sterile view of rights," and said that the decision was a throwback to "judicial hair-splitting" of the 1950s and

60s.124 Another editorial criticized the Supreme Court for not pointing Canadians in

"new directions and horizons in the law, and thus establishing itself nationally and 1 9S internationally as a court to which one looks for guidance." This editorial went on to suggest that a possible remedy for such a failure in leadership would have been legislation to require Supreme Court justices to retire earlier, suggesting that the Court had become out of date and out of touch with Canadians.

Such a notion was evident in the cautious celebration within the women's movement at the appointment of Bora Laskin to Chief Justice on 27 December 1973. In a letter to the editor of the Globe, Joan Wallace, Past President of Vancouver Status of

Women, suggested that "with Mr. Justice Laskin as Chief Justice the women of Canada can hope that decisions such as that in the Lavell-Bedard Case of last August.. .will not

"Statement by Mr. Mark McGuigan," House of Commons Debates, November 23, 1973, 8102. 123 "Oral questions," House of Commons Debates, January 30, 1975, 2746. 124 "A sterile view of rights," Globe and Mail, September 6, 1973. 6; See also the editorial letter "Indian Rights," Globe and Mail, September 12, 1973. 7. 125 "Just what was said: Supreme Court fails in leadership," Globe and Mail, December 21, 1973. 7.

52 be repeated." In another article, it was suggested that with Justice Laskin as Chief

Justice the Court would spend more time "developing the legal and constitutional order

of the future," and less time spent on legal "bricklaying." These opinions, however,

appear to embellish the influence of the role of Chief Justice; the results that women's

organizations were looking for would require changes for beyond that of a change in

leadership at the Supreme Court.128

By June 1975 the issues raised in the Lavell case had extended far beyond the

confines of the method by which status was gained or lost. In a joint press release between Women for Political Action, Indian Rights for Indian Women, Montreal Support

Group for Non-status Women on the Caughnawaga Reserve, and Voice of Women, the issue of mass evictions of former status women was brought to the public's attention.

The Caughnawaga Reserve near Montreal held a referendum that confirmed the policy of

evicting those who were residing on the Reserve but who did not have Indian status.

These groups viewed this issue, as well as the core issue of sex discrimination in the

Indian Act, as another example of "male power" and of politicians and judges who would

"not enforce the Bill of Rights."129 One of the women at the forefront of the

Caughnawaga issue was Mary Two-Axe Earley. In a letter written to the National Action

Committee on the Status of Women (NAC), Earley clearly demonstrated the solid relationship that had been formed between the status, non-status, and other Canadian

women through this issue. In her letter, Earley identified the broad political campaign as

126 "Status of Women rejoices over Laskin becoming Chief Justice," Globe and Mail, January 11, 1974.7. 127 "Supreme Court: architect of the future," Globe and Mail, February 2, 1974. 7. 128 In a full page Globe and Mail analysis of the Justices of the Supreme Court, it was revealed that despite Laskin's appointment to Chief Justice, there still existed a powerful, male, upper class, white dominance over the Court. See "One Supreme Court, nine different men," Globe and Mail, August 7, 1975. 9. 129 "Women for Political Action, et al. Press Release," CWMA XI0-24, NAC, Box 713, File: Native Indian Women, June 20, 1975.

53 being the most valuable contribution made by that of the NAC and other women's

130 groups.

On 23 April 1976 the Advisory Council on the Status ofWomen produced a policy paper on Indian Women and the Indian Act. This paper outlined the key policies that the Advisory Council saw as necessary to ending discrimination within the Indian

Act. The first was that the Council believed that it was necessary for all parties to participate in a complete revision of the Indian Act. This was to include the various

Indian Brotherhoods as well as status and non-status women. The Council also stated firmly that the patrilineal system was based on British law, rather than on Indian custom, but that the issue of keeping non-natives from claiming title to reserve lands was a legitimate concern. They also suggested that the reason why the interveners in favour of

Lavell were not as effective as the Indian Brotherhoods was due to a lack of Government funding, and thus pro-Lavell groups were not as easily mobilized for the legal challenge.

The Council's final word on the matter was that there appeared to be four options for consideration by the Government: first that the status quo be maintained or reversed to dictate a matrilineal system; second that both men and women would lose their status; the third being that the definition be determined by blood; finally, the fourth being that status be determined by the individual band.131

This report was followed by a presentation to the Parliamentary Committee on

Indian Affairs and Northern Development. The presenters (among them Jeanette Lavell) brought two major points to the committee's attention. The first was the fact that many

130 Letter from Mary Two-Axe Earley to NAC," CWMA XI0-24, NAC, Box 713, File: Native Indian Women, July 14, 1976. 131 "Indian Women and the Indian Act: The Advisory Council on the Status of Women," CWMA X10-24, NAC, box 713, file: Native Indian Women 12(l)(b). April 23, 1976.

54 of the interveners who were opposed to Lavell "were not against Indian women's rights.

They were primarily concerned with the effect of the Canadian Bill of Rights on the

Indian Act and the dangerous precedent that would be set by that case."132 Secondly,

Jeanette Lavell specifically spoke to the idea that the real definition of a status Indian was somewhat confusing, since "you could be 100 per cent Indian and have no status and you could be 100 per cent white and be a registered Indian."133

While this presentation represents a growing desire to see reconciliation between women and the established Indian Brotherhoods, it does seem to select some arguments from the Brotherhood interveners and yet ignore others. The first and foremost concern of the Brotherhoods was to maintain the independence of what they viewed was their only bargaining chip with Parliament: the Indian Act. But such an argument, while valid in and of itself, was not the only one being presented by these organizations. A sizeable portion of their arguments dealt with the idea that a patrilineal system made sense, and that section 12(l)(b) should stay in effect. That being said, in the years following the

Lavell case, the National Indian Brotherhood changed the views that they presented to the

Court in 1973.

The women (including Jeanette Lavell) who were concerned with discrimination under the Indian Act also appeared to shift their priorities. While Lavell referred to her loss at the Supreme Court as being necessarily negative, the result that she sought (a change from marriage determining status to blood determining status) was not what would have been the sole result had she won her case. Had she won her case, it would have created further precedent (beyond Dry bones) that the Bill of Rights had effect in

132 "Minutes of Proceedings and Evidence of the Standing Committee on Indian Affairs and Northern Development," House of Commons, No. 53, May 25, 1976. 5 133 Ibid, 13.

55 Canadian law, and would have caused a large problem for the relationship between the

Government and the main groups responsible for representing aboriginal Canadians.

This case, then, contained no winners as neither women nor the native organizations attained their true policy goals as a result of the Supreme Court decision.

In order to work toward their policy goals, the National Indian Brotherhood was guaranteed to be principally consulted prior to any amendments of the Indian Act being put forth by the Government. This promise was reiterated to the NAC in a letter from the

Minister of Indian and Northern Affairs in July 1976.134 Such a limited consultation was seen by women's organizations as being discriminatory in itself, and this issue was raised at the Parliamentary Committee of Justice and Legal Affairs. The Minister of Justice,

Ron Basford, defended the Government's choice in exclusive consultation with the

National Indian Brotherhood by defending the Brotherhood as not being a male- dominated group that was unconcerned with the issue of women's rights. The NAC responded to this issue by stating, in a letter to the Senate Committee examining human rights legislation, that while "the government has a commitment to the Indian

Brotherhood with regard to the Indian Act... no commitment of any kind has been made to Indian women who have not been included in discussions and negotiations."

Basford's rather weak response was that "there are other native groups, including the

Metis, who, of course, have a good deal to say about what the Indian Act should provide.

134 "Letter from the Minister of Indian and Northern Affairs to NAC," CWMA X10-24, NAC Box 713, File: Native Indian Women. July 12, 1976. 135 "Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs," House of Commons, No. 15, May 25, 1977. 43. 136 "Letter from the NAC to the Honourable Carl Goldenberg," CWMA XI0-24, NAC, Box 713, File: Native Indian Women. June 22, 1977.

56 There are a good number of bands who make their representations independent of the

National Indian Brotherhood."137

The problem with the Government's position in this regard was that it ignored two major issues. First, that the evidence showed that the National Indian Brotherhood, its affiliates, and band councils across the country, were mainly comprised of men who either had little regard for the status of women, or were actively opposed to changing section 12(l)(b). The NAC and other women's organizations held little trust that the

National Indian Brotherhood would pressure the government into amending the Indian

Act so as to remove discrimination against women, despite the Brotherhood's softening on the stance that they took at Court in 1973.138 The Canadian Human Rights

Commission was created in 1977, and its first Chief Commissioner, Gordon Fairweather, promised the NAC that the Commission would "continue to request the removal of the discriminatory provisions from the Indian Act."139 Fairweather also made the NAC aware that he was under the impression that Minister Basford had placed the National

Indian Brotherhood "on notice" that Parliament would not tolerate the continued exemption of the Indian Act from the provisions of the Canadian Human Rights Act.

Secondly, the Government's position ignored the fact that there were many parties who held an interest in any amendments to the Indian Act. By limiting its consultation to groups comprised of, and led by men, the Government was not pursuing a comprehensive consultation process.

17 "Minutes of Proceedings and Evidence of the Standing Committee on Legal and Constitutional Affairs," Senate, No. 7, July 5, 1977. 22. 138 In a letter to Minister of Indian and Northern Affairs High Faulkner, the NAC stated that they could not "reconcile the commitment made to the National Indian Brotherhood, with the continued discrimination against Indian women." CWMA X10-24, NAC, Box 713, File: Native Indian Correspondence. September 27, 1977. 139 "Letter from Gordon Fairweather to NAC," CWMA X10-24, NAC, Box 713, File: Native Indian Correspondence. October 18, 1977.

57 In 1985, sex discrimination was removed from the Indian Act. Aboriginal legal scholar John Burrows has noted that there were three reasons why this occurred: the political activism of women's organizations; the prominence of the Sandra Lovelace case at the United Nations; and the enactment of the Charter. While the first point is the thrust of the preceding pages, it is further evidenced by the fact that many politicians paid tribute to the strength and solidarity of the various women's organizations who fought to remove the discriminatory sections of the Indian Act.140 Their press campaign in the months immediately following the Lavell decision made the Canadian public aware of the case, so as to ensure that it would not be ignored like most decisions made by the

Supreme Court.

The Sandra Lovelace case is important as well, as it brought both national and international attention to the discrimination faced by women in Canadian native policy.

Scholars such as Anne Bayefsky have provided detailed analysis of the case as presented at the United Nations. Lovelace, a woman who found herself in a similar situation as

Jeanette Lavell and Yvonne Bedard (having lost her status after marrying a non-status man in 1970), decided to take her case to the United Nations on 29 December 1977. Her complaint was registered under the International Covenant on Civil and Political Rights, which was ratified by Canada, and came into force on 19 August 1976. On 30 July 1981, the United Nations Human Rights Committee found that Canada was indeed in violation of the terms of the Covenant Bayefsky's study outlined the main arguments as presented

An example of this is Progressive Conservative Member of Parliament Flora MacDonald (Kingston and the Islands), in a statement before the House, gave credit to the fact that both status and non-status women worked together "to resolve their problems as women." CWMA X10-24, NAC, Box 713, File: Indian Correspondence. June 15, 1978.

58 by both Lovelace as well as the government, and the arguments closely mirrored that of the Lavell case.

There are two major points that link the Lovelace and Lavell cases beyond the fact that both were charging a human rights violation in section 12(l)(b) of the Indian Act.

The first was that without the Lavell case, the United Nations would not have accepted

Lovelace's complaint, as a necessary requirement of the Covenant was that individuals had to exhaust all remedies at the domestic level prior to launching a complaint. The

Lavell case, since it was decided by the Supreme Court, was considered to have met that requirement. Bayefsky also noted that the government response to the Lovelace case was embarrassing, inadequate, and showed a disregard for Canada's commitment at the international level to protect human rights.142 The NAC was also critical of the government's lack of movement on the issue. In a policy resolution in March 1978, the

NAC stated that they were "embarrassed that [native women] are forced to appeal to an international tribunal for justice."143 The press also viewed the Lovelace case as an embarrassment for Canada.144

Burrows' final argument was that the implementation of the Charter led to the removal of discrimination in the Indian Act in 1985. However, it is important to not place too much emphasis on the Charter in and of itself, as it was the Lavell case, among others, that demonstrated the inadequacy of the Bill of Rights, and thus galvanized the

141 Anne Bayefsky, "The Human Rights Committee and the Case of Sandra Lovelace," Canadian Yearbook of International Law 29 (1982), 246. 142 Ibid, 263. 143 "Resolutions on Native Women's Rights," CWMA X10-24, NAC, Box 685, Index of Policy Recommendations, March 1978.; This embarrassment was also presented in the media, which was highly critical of the government's lack of response to the United Nations Human Rights Committee. See: "Legal Discrimination," Globe and Mail, August 9, 1980. 5. "Mommy, are you white or Indian?" Toronto Star, October 21, 1982. Bl; "Native women again denied their rights," Toronto Star, July 3, 1984. El.

59 women's movement into ensuring that the Charter be worded in a way so as to not be hindered by language such as "equality before the law." The Lavell case, and others that failed under the Bill of Rights, led to the women's movement adopting measures to ensure stronger rights protections in the Charter. However, wanting to avoid a repeat of the Lavell case as tried under the Bill of Rights, but challenged against the Charter, the

Canadian government amended the Indian Act just prior to the Charter's equality provisions coming into effect in 1985.145

The Lavell case demonstrated a highly skilled ability on the part of the women's movement to implement a public campaign against the discriminatory provisions of the

Indian Act. Despite losing their case at the Supreme Court, Jeanette Lavell, the NAC, and countless other organizations used the press and lobbied the government to make the changes they desired. While it demonstrated the growing maturity of the movement to adapt to changing political situations, the Lavell case also revealed the desire of the NAC to branch out and form coalitions. This not only created a broader coalition of women's groups, but it also helped the movement to realize its broader policy goals. While it is true that some women believed that the Indian Act should have been completely eliminated, the NAC realized that their issues had much in common with the broader issues that Canadian natives faced. This included issues in employment equity, poverty, discrimination, and more pressing, the issue of rights as demonstrated in the Charter.

John Burrows, "Contemporary Traditional Equality: The Effect of the Charter on First Nations Politics," in David Schneiderman & Kate Sutherland, ed., Charting the Consequences: The Impact of the Charter Rights on Canadian Law and Politics, (Toronto: University of Toronto Press, 1997): 175. The press reported that women's groups were planning to utilize section 15 of the Charter to challenge section 12(1 )(b) of the Indian Act, "Challenging equality under the law," Toronto Star, January 29, 1985. Dl. This attitude was presented by Simma Holt, Liberal MP for Vancouver-Kingsway, when she stated in committee "I think that the Indian Act is the most discriminatory and cruel piece of legislation - the fact that it discriminates and gives selectivity and special status to one small group of people in one race. I think they are racist," found in "Minutes and Proceedings of the Standing Committee on Justice and Legal Affairs," House of Commons, 15, May 25, 1977. 42.

60 This realization was demonstrated in spring of 1979, when the National Indian

Brotherhood sent out a fundraising letter that somehow made its way to the NAC mailbox. The letter was addressed "dear sir," and explained that a delegation of Chiefs and other interested parties would be departing for England to meet with Queen Elizabeth

II to express their concern about the looming patriation of Canada's constitution. The

National Indian Brotherhood was seeking funds to support the estimated cost of $1,000 per delegate for the July 1-7 trip.147 Lynn McDonald, president of the NAC, responded to the Brotherhood's letter by first correcting the "dear sir," and then reminding the

Brotherhood of the NAC's opposition to section 12(l)(b) of the Indian Act. The NAC also noted that they were not in a position to support the Brotherhood financially, and requested information on how women were to be represented in their delegation to the

Queen.148 While the Brotherhood's initial letter was obviously an unaddressed fundraising form letter, the NAC was cognizant of the Brotherhood's position throughout the Lavell case. Upon the return of the Brotherhood from their visit to England, they responded to the NAC's concerns.

The first item addressed by the Brotherhood was the "misnomer" in their form letter. They also indicated that "there were several women in the journey," and that their position on section 12(l)(b) had changed since the Lavell case.149 The Brotherhood also

asked for an in-person meeting with the NAC, and they also attached their position paper on the Rights of Indian Women and Children Under the Indian Act. In their position

147 "Fundraising letter from the National Indian Brotherhood to NAC," CWMA XI0-24, NAC, Box 713, File: Native Indian Women. April 30, 1979. 148 "Letter from NAC to the National Indian Brotherhood," CWMA XI0-24, NAC, Box 713, File: Native Indian Women. May 28, 1979. 149 "Letter from the National Indian Brotherhood to the NAC," CWMA X10-24, NAC, Box 713, File: Native Indian Women. July 18, 1979.

61 paper, the Brotherhood stated unequivocally that "the National Indian Brotherhood supports the Indian women's position that women who have lost their status because of section 12(l)(b) of the Indian Act should be allowed to retroactively regain their status."150 In response to this position, the NAC was grateful to the Brotherhood for pushing the government on this issue, and declared that "it would be helpful to meet sometime to talk things over."151

Although one could suggest that the changes made to the Indian Act in 1985 represented the ultimate victory of the Lavell case, it would be erroneous to suppose that this meant the end of a movement. For many scholars, the Lavell case has been used as an example in contemporary political arguments. However, beyond a paragraph description of the case the scholarship is missing some of the broader themes that have been presented in the preceding pages. This case was not simply the women's movement loss at the Supreme Court; it meant the galvanizing of a movement against the Bill of

Rights, the launching of a massive publicity campaign, the lobbying efforts to Parliament, the use of international Covenants to bring attention to an important issue, and finally, the movement's ability to branch out and find common ground with untraditional allies.

These themes continue in other "losses" at the Supreme Court through the 1970s.

"Statement by the President of the National Indian Brotherhood on the Rights of Indian Women and Children Under the Indian Act," CWMA X10-24, NAC, Box 713, File: Native Indian Women. July 18, 1979. 151 "Letter from the NAC to the National Indian Brotherhood," CWMA X10-24, NAC, Box 713, File: Native Indian Women. July 24, 1979.

62 Chapter 2 - Matrimonial Property: The case of Irene Murdoch

While the core issue in the Lavell case was the Indian status of a woman who married a non-status man, the main issue in the case of Murdoch v. Murdoch was the division of matrimonial property upon divorce. Heard only a few months after Lavell,

Murdoch gives a more thorough glimpse of the women's movement on a local level through the mid-1970s, since marriage and property rights fall under provincial jurisdiction. Although the federal government had "widened the grounds for divorce" by amending the Divorce Act in 1969, it left the idea of matrimonial property wide open for the inequalities exposed in the Murdoch case.152 The case was not fought on the grounds of the Bill of Rights because the Bill only applies to federal legislation, but this became another reason to fight for a constitutionally entrenched Charter that would apply to both federal and provincial legislation.

As in Lavell, the women's movement reacted to their loss at the Supreme Court by launching a public campaign aimed at pressuring provincial governments into changing matrimonial property laws. Included in this effort were some rather unconventional political tactics that reveal a certain element of innovation on the part of the women's movement. Many feminist scholars have referenced this case in explaining the importance of Murdoch for developing feminist strategies beyond the 1970s. Despite their loss at the Supreme Court in Murdoch v. Murdoch, the women's movement mobilized a political campaign which both challenged traditional notions of women's work in the home, as well as generated broad governmental policy change in family law.

Sylvia Bashevkin, "Losing Common Ground: Feminists, Conservatives and Public Policy in Canada during the Mulroney Years," Canadian Journal of Political Science, Vol. 29, No. 2 (June, 1996): 226.

63 Robert Ivan Martin argues that the Murdoch case especially, among others,

"galvanized the women's movement in Canada and feminists began to wage war on the

Supreme Court." Martin's polemical argument does not give a full explanation as to why the Murdoch case caused such a mobilization, and his suggestion that it was a war waged on the Supreme Court lacks a firm understanding of what happened in the wake of the decision in 1973. The Supreme Court has the final say on legal matters in Canada, and while it is part of Canada's Parliamentary system, it is not subject to the same type of direct popular or democratic override as are Members of Parliament. The only way to change a Supreme Court decision is to change the law, and that must be done through political mobilization.154 In that sense, the "war" was not waged against the Supreme

Court; it was waged against lawmakers. Nevertheless, as legal scholar Jack L. Knetsch has argued, "while most people might be willing to judge the result of the Murdoch case as unfair, it seems doubtful that there would be as great a unanimity on the equity of some of the rules that have been prompted by such cases."155

Murdoch was the most high profile case dealing with matrimonial property, a concept that has been a difficult one for many feminists. It was difficult because feminists had varying ideas as to how matrimonial property laws should have been created in order to promote equality in distributing post-marital assets. McGill law professor Kim Brooks, in her study of the 1991 case of Fobel v Dean, notes the reasons why the issue of matrimonial property has been difficult for feminists. The first issue is that women do more unpaid work than men do. Secondly, paid work is measurable (by

153 Martin, 181. 154 These comments are directed at the period prior to the Charter, since it is acknowledged that some Supreme Court rulings can be subject to the Charter's Notwithstanding Clause. 155 Jack L. Knetsch, "Some Economic Implications of Matrimonial Property Rules," The University of Toronto Law Journal, Vol. 34, No. 3 (Summer, 1984): 282.

64 income and job promotions), whereas unpaid housework is not as easily measured. As a result, "the unpaid nature of work in the home has historically created excuses for policy makers to ignore the value of work in the home - work that is predominantly undertaken by women."156 While her case study centres on the issue of injury or impairment of women while working in the home, Brooks' argument also applies to the earlier Murdoch case. As will be shown, the women's movement in various provinces across Canada refused to continue to allow policy-makers' willful ignorance of the value that unpaid women's work in the home adds to matrimonial property. Upon marital dissolution, women believed that they should be granted a one-half interest in all assets obtained during the course of the marriage.

Irene Nash and Alex Murdoch were married in 1943 and soon after began to live a life together as ranchers. In 1968, after domestic abuse157 Irene Murdoch left her husband. On 4 December 1968 she sought judicial separation, custody of their infant son, alimony, maintenance for their child, as well as a claim to a portion of the land

(where the house was). After careful consideration, on 25 August 1969 Irene Murdoch sought "an undivided one-half interest" of the assets that were in her husband's name.

For her first claim, Mrs. Murdoch was granted her judicial separation, custody of their child, as well as support payments of $200 per month. Her second action was dismissed by the Alberta Appellate Division, and it was this decision that was being appealed to the

Supreme Court.

The major issue in this case focused on the value of Irene Murdoch's unpaid work on the ranch. In a previous case in Alberta, Trueman v. Trueman,

Kim Brooks, "Valuing Women's Work in the Home: A Defining Moment," Canadian Journal of Women and the Law, vol. 17, (2005): 178. 157 In one instance Irene Murdoch's jaw had been broken.

65 Mrs. Trueman contributed arduous labour to the farm which her husband owned, mainly due to her husband's ill-health. Mrs. Trueman won her case; the judge gave the following reason:

Leaving aside consideration of her work as a farm wife and mother, the share of the work usually done by the husband and his hired hands that was assumed and done by the appellant, has, I think, earned her an equal share in the ownership of the property and there will be a declaration 1 CO

accordingly.

According to Irene Murdoch's factum, she argued that her labour allowed her to claim an interest in the assets of the ranch. The logic behind this argument was that the work that she provided went unpaid, but was essential to the financial success of the ranch. Her financial contribution in labour was necessarily a component to her husband's ranch, and therefore made the ranch a joint venture. Murdoch argued that for the Court to agree with her would have been "a forward-looking, socially desirable decision consonant with contemporary lay and legal thinking yet founded on a sound historically right principle."159

The issue that complicated matters was the fact that in addition to her labour,

Irene Murdoch contributed financially to the ranch. After her father's death in 1952,

Murdoch provided a portion of her inheritance to her husband for an investment in their ranch. As a result of this, along with the labour she put into the ranch, Murdoch claimed an equal partnership existed in the assets that were obtained through the course of their marriage. Irene Murdoch lost her case at the Supreme Court.

Alex Murdoch's two main arguments were that the money that Mrs. Murdoch provided to him was a loan that was repaid, and secondly, that he and his wife had a

158 Trueman v. Trueman, [1971] 18 D.L.R. (3d) 109. 159 "Factum of the Appellant," Murdoch v. Murdoch, Supreme Court of Canada Records, Docket #12624.

66 "normal husband-wife relationship and that the Appellant performed the normal duties of a rancher's wife and nothing more."160 The notion here was that it was expected of Mrs.

Murdoch to perform the duties that she performed without any form of compensation, because such an arrangement was seen as 'normal' within Canadian society. This norm was that wives necessarily contributed unpaid and unvalued work to the matrimonial home. Men, on the other hand, were seen as the ones who were responsible for providing valued work within marriage. Alex Murdoch declared that the Trueman case was decided wrongly, and even still, the work that Mrs. Trueman did was much more than the duties performed by Mrs. Murdoch. As a result, he argued that the Court should not declare the ranch venture to be a partnership, and thus Mrs. Murdoch had no rights to claim interest in her husband's assets.

In its 2 October 1973 decision, the Supreme Court agreed with Alex Murdoch's version of the case. Justice Martland wrote for the majority (four to one) decision against

Mrs. Murdoch, finding that Irene Murdoch's contribution was "no more than that was to be ordinarily expected of a ranch wife."1 l These "ordinary expectations" were exactly what the women's movement was trying to change throughout the 1970s and beyond.

The Court also found in favour of Alex Murdoch's version of the story that the money provided by Irene Murdoch toward the purchase of property for the ranch was a loan that had already been repaid. Justice Martland distinguished this case from the Trueman case by claiming that Mrs. Trueman had contributed in excess of her duties as a farm wife, and thus was entitled to an interest in her husband assets upon the dissolution of their marriage.

160 "Factum of the Respondent," Murdoch v. Murdoch, Supreme Court of Canada Records, Docket #12624. 161 Murdoch v. Murdoch, [1975] 1. S.C.R. 423.

67 The one voice of dissent among the Justices of the Supreme Court was that of

Bora Laskin. Although Laskin's reasoning cited many examples of precedents set in case law, the most important part of his dissenting opinion was that he found Murdoch's work to be of value when determining matrimonial property. In his view, Irene Murdoch's

"contribution, in physical labour at least, to the assets amassed in the name of the husband can only be characterized as extraordinary." Laskin's dissenting opinion received praise by many women's organizations. Also, some believed that his dissent in this case enhanced his reputation so greatly that it aided in his becoming Chief Justice in

1974.163 Yet, even Laskin's decision still rested on the idea that a wife had to perform more services than what would otherwise be expected of an "ordinary" ranch wife, which reinforces the undervaluation of the woman's work in the home. Laskin disagreed with his counterparts as to whether Irene Murdoch did indeed perform duties beyond that expectation, but there was no unequivocal denunciation of that expectation in the first place.

The public reaction to the Court's decision was massive, even more so than with what was seen in the wake of the Lavell decision. This is probably due to the fact that the

Murdoch decision was viewed as directly having an adverse affect on all Canadian women, whereas in Lavell the injustice only directly applied to native women.

Newspaper stories emphasized the more emotional elements of the Murdoch separation, including the domestic abuse issue that was not prominent in the Supreme Court case.

Murdoch's poverty as a result of living on $200 per month in the separation settlement, in

"Supreme Court," Globe and Mail, March 25, 1974. 6.

68 conjunction with her $2000 in medical bills (from the domestic abuse), created an element of sympathy for Murdoch's situation.

The first reaction in the media was shock, but that soon turned into a call for action. The shock factor stemmed from people's belief that as in the Murdoch decision, the Court was endorsing the idea that in marriage the wife was nothing more than "an underling entitled to severance pay, but nothing more," or that the decision further perpetuated the notion of "sexual nepotism."165 In one letter to the editor, reader Mary

Harris argued that "not all the slaves were freed in the nineteenth century,"166 relating the decision to dismiss the worth of a woman's work in home as being an unpaid household labourer. This letter also points out that if it is expected of the woman to cook, clean and raise children, then what duties are expected of the man in terms of contributing to the matrimonial home?1 7 Other women came forward in the press expressing their own stories of how they were left with nothing after the dissolution of their marriage as a result of their work being undervalued or considered 'ordinary.'168 Women's organizations began to criticize the decision, the Court, as well as lawmakers for there

"No evidence of contribution to property: Separated woman can't have share in husband's ranch, court says," Globe and Mail, October 3, 1973. 37; "Warning to women: the case of the rancher's wife," Toronto Star, October 3, 1973. B4. 165 "End sexual nepotism," Globe and Mail, October 8, 1973. 6. 166 "Murdoch case: 'not all slaves have been freed,'" Globe and Mail, October 15, 1973. 7. The term "slave" was also used in reference to Irene Murdoch in "Ranch wife: Court made me a slave," Toronto Star, October 18, 1973. 1. 7 Other letters raised similar issues: "Court shouldn't dismiss wife's years of work: Reader," Toronto Star, October 10, 1973. B5; "Farmwifery," Globe and Mail, October 15, 1974. 7; "Wives should go on strike," Toronto Star, October 15, 1973. C5; "Law which is supposed to protect citizens shouldn't ignore ranch wife's rights, she says," Toronto Star, October 27, 1973. B3; "Don't value life's work at $200 monthly she says," Toronto Star, November 3, 1973. C5; "More judges should be women she protests," Toronto Star, November 6, 1973. B3. 168 "Marital Laws," Globe and Mail, November 11, 1973. 6.

69 being a lack of protections for a woman's claim to matrimonial property in Canadian law.169

This sentiment led to the conclusion that political activism was the only way to change a woman's stake in matrimonial property. In an editorial letter in response to

Mary Harris, reader R. Sutherland suggested that Mary Harris "and several million other

Canadian women should urge their women friends to write the Minister of Justice rather than the newspapers."170 Despite the reader's confusion over the constitutional jurisdiction over matrimonial property, the message is nonetheless there: women's organizations were called to create change in provincial family law to protect a woman's right to matrimonial property. Editorial commentaries were also very passionate in response to the Murdoch decision. One editorial argued that the Murdoch case will make women aware that any security in the ability to divorce their husband was merely a

"chimera" and that there was a growing anxiety "to do what they can to reform the law."171

Due to the provincial jurisdiction on this issue, the Murdoch case gives a different perspective on the history of the Canadian women's movement than that of Lavell.

While the Lavell case had local organizations that participated in lobbying efforts, this was mostly done through coordination of the NAC or other national umbrella organizations. Since each province had control over their matrimonial property laws, the

160 "A woman's work undone by court," Globe and Mail, October 11, 1973. Wl 1; "Status council head is 'shocked' by court's Murdoch decision," Globe and Mail, November 15, 1973. W4; "That world beyond the bronze doors," Globe and Mail, December 22, 1973. 6. 170 "Murdoch case," Globe and Mail, October 19, 1973. 6. 171 "This injustice shocks Canadian wives," Toronto Star, February 11, 1974. C6. Similar attitudes were presented in subsequent editorials: "Do you take this woman? In Canada, the husband takes all," Toronto Star, February 20, 1974. B3; "Wife lost share of land wants laws changed," Toronto Star, February 20, 1974. E2; "Lets debate property law changes," Toronto Star, February 22, 1974. B4; "New property law must apply to all," Toronto Star, March 12, 1974. B4.

70 fight on this issue was necessarily fragmented. This provides a research opportunity to study some of the other organizations and their not always conventional methods.

In Manitoba, for example, the Manitoba Women's Institute held a meeting on 22

November 1973. In an innovative fashion, the leaders of the Institute decided to put together a dramatization, on stage, of the Murdoch case. The recording of the meeting was made into a transcript and was published by the Institute. The transcript was dubbed

"The Balloon Lady: You and Mrs. Murdoch."172 The dramatization began with an introduction to the case, where the narrator challenged the audience's comfort within their own marriage, stating that women "sort of float along thinking we're doing pretty well - we're living as we've always lived, and so for this reason we thought we could take you to the decision of Murdoch v Murdoch." The three characters of the dramatization, Mary, Matilda and Abigail, sat around a coffee table and discussed

"Matilda's" recent Supreme Court case. They discussed the case at great length, and demonstrated to the audience the main facts and arguments presented. At the end of their dramatization, one of the presenters challenged the audience with a call to action.174

In Ontario, the Ontario Status of Women Council, chaired by Laura Sabia, also called their members into action over the Murdoch case. In addition to a warning that

"the Irene Murdoch case could happen here [in Ontario]," Sabia urged women's organizations across the province to rally behind a general movement to overhaul

"The Balloon Lady: You and Mrs. Murdoch," The Manitoba Women's Institute, CWMA XI0-1, Box 58, File: Murdoch Case: Summary of the Case on Property Law and Transcript of a discussion of women and the law, November 22, 1973. 173 Ibid, 3. mIbid,2\.

71 Ontario's family laws. As a result of the pressure placed on Ontario lawmakers,

Attorney-General Dalton Bales promised the Council that the Ontario Government would implement "remedial legislation" to prevent a repeat of the Murdoch case. Bales' promise turned out to be rather empty, and the battle in Ontario for enhanced protections for women's property rights continued.

Ontario finally adopted the Family Law Reform Act in 1978, almost five years after the initial promise to ensure that provisions would be put into place to prevent a case similar to Murdoch from happening on Ontario. Early in 1974 Laura Sabia and the

Ontario Status of Women Council began to suspect that the promise made to them by

Attorney-General Bales was not going to be fulfilled, at least not as quickly as the

Council wanted. On 7 February 1974, Sabia's frustration became rather apparent in a speech she delivered to a conference of Jewish women's organizations. In her speech, she blamed Ontario women for not holding their political leaders to account, stating:

"We've got antiquated property laws. We haven't changed them because you didn't give a damn... you didn't ask those questions and so we know nothing about property laws."177 A few months later, Sabia argued that the reason it was taking so long to implement changes to family law was due to the fact that the law was being written by men; this also suggested that the Council was doubtful that the new laws would indeed

i no prevent an Ontario version of the Murdoch case. Sabia's commentary came on the heels of a second Ontario government promise to pass legislation to protect matrimonial

"Ontario status council unhappy with pace of property law reform," Globe and Mail, November 16, 1973. 12; "Wake up to property and legal rights Laura Sabia advises married women," Toronto Star, November 17, 1973. H3. 176 "Bales pledged bill to prevent Murdoch case here, women say," Globe and Mail, November 30, 1973. 16; "Brief urges property law change in Ontario," Toronto Star, November 30, 1973. E6. 177 "Political clout beats placards, Mrs. Sabia tells women's groups," Globe and Mail, February 8, 1974. 10. 178 "Law-making males annoy Mrs. Sabia," Globe and Mail, June 26, 1974. 2.

72 property rights. A new Attorney-General, Robert Welch, introduced the new piece of legislation after the one promised by Bales failed to be passed in the previous session of

1 Q A

Ontario's legislature.

Laura Sabia was not convinced that the bill as proposed by Robert Welch would have necessarily protected the property rights of women. She was concerned that the new bill would simply mean more money for lawyers and accountants to figure out a dissolved marriage's estate. Instead, the version of family law that she desired was to either have every couple write a contract upon marriage, or to give the courts the power to determine a fair and equitable distribution of assets at the termination of marriage,181 a view that seemed consistent with a desire to avoid another Murdoch case. However,

Welch's bill (known as Bill 117) was only attempting to avoid a repeat of the Murdoch case with the Family Law Reform Act. It was not designed "to be a complete legislative program implementing all the recommendations of the Ontario Law Reform Commission relating to family law."182 Welch's version of the family law reform met the same fate as

Bales'; it did not pass into law prior to the end of the Parliamentary session.

Family law reform continued in Ontario through the mid-1970s. In May 1975

Attorney-General John Clement once again promised to introduce a new Family Law

Reform Act that would attempt to prevent an Ontario version of the Murdoch case.

However, Clement's version of the law went against what the Ontario Law Reform

Commission, and what the Ontario Status of Women Council advised as to the rights of

Robert Welch replaced Bales in a February 1974 cabinet shuffle. 180 "Spouses could sue each other: New bill seeks end to women's inequality in law," Globe and Mail, June 26, 1974. 1; "Bill will give wives equality feminist says changes small," Toronto Star, June 26, 1974. A8. 181 "Working women have to be reckoned with in marriage reform," Globe and Mail, August 31, 1974. 8. 182 "Family law," Globe and Mail, December 28, 1974. 6.

73 women to claim half interest in the matrimonial home. Clement's reform bill did not pass into law because of the 1975 Ontario general election. During the Progressive

Conservative minority Parliament, between 1975 and 1977, Roy McMurtry served as

Attorney-General. McMurtry believed that deciding an estate upon divorce was a complicated issue, and that the province should establish a formula to calculate marital assets. However, given the political situation at Queen's Park, as well as the "enormous number of ramifications" that such a bill had, McMurtry predicted that it was still too early to pass the bill into law.184

After years of consultations and empty promises from four different Attorneys-

General, the Ontario Status of Women Council was understandably frustrated. In the summer of 1976, Laura Sabia resigned as the chair for the Council, but she did not do so quietly. Her resignation was critical of the government-appointed Council as being useless and unable to get "anything accomplished." That being said, the Council was credited with forcing the government to at least address the issues that came as a result of the Murdoch case. The Council continued to place pressure on the Ontario Government to actually legislate the changes they had been promised since Dalton Bales in 1973.186

However, Sabia's vocal departure as the chair of the Council represented an end to the

Council's legitimacy "as a site for feminist activism."187

"Women given more rights but not half share of house," Globe and Mail, May 13, 1975. 17; "Timid approach no help to wives," Toronto Star, May 16, 1975. B4. 1 "Ontario planning law to ensure women share of assets in event of divorce," Globe and Mail, March 10, 1976. 1. 185 "Rough times ahead for women's status council?" Globe and Mail, October 1, 1976. 15. 186 See: "Better, but vague," Globe and Mail, October 29, 1976. 6; "Marriage bill: too much power for judges?" Globe and Mail, November 23, 1976. 7. Caroline Andrew and Manon Tremblay, Women and Political Representation in Canada, (Ottawa: University of Ottawa Press, 1998): 358.

74 From 1973 to 1978, Ontario avoided its own version of the Murdoch case.

Judicial decisions in Ontario with regard to matrimonial property, at least as covered in the press, showed an interpretation that was more in tune with the views of women's organizations than that of their Albertan counterparts. In October 1974, Francis Marion

Brower was awarded $60,000 as well as $600 per month in maintenance as a result of the fact that the court found she "contributed more than could be reasonably expected of her as a wife and in fact more than what is usual of a farm wife."188 In November 1974,

Katharine Dzul's common-law husband passed away and, despite promising her his entire estate (worth over $60,000), had only left $500 for her in his will. The Ontario

Supreme Court's decision was considered to be yet "another judicial move away from the controversial Supreme Court of Canada decision a year ago which denied Alberta farmwife Mrs. Irene Murdoch half the ranch she and her husband had operated."189 In an editorial regarding Duzl's case, one commentator suggested that "the whole process - from Murdoch on - has been an excellent example of how bad laws are changed." The editorialist addressed the public campaign launched by women's organizations in conjunction with Robert Welch's plan to change Ontario's family laws. Also, in early

1976, the Supreme Court of Canada refused to hear the appeal of a man whose wife,

Leida Madisso, won an Ontario Court of Appeal decision that granted her a half interest in their home.191

"Share of farm: Judgment recognizes hard work of wife," Globe and Mail, October 3, 1974. 1. 189 Left $500, woman receives $60,000: Common-law wife wins right to share of estate," Globe and Mail, November 19, 1974. 1; "Willed just $500 common-law wife gets $60,000," Toronto Star, November 19, 1974. A2. 190 "Lesson in law reform," Globe and Mail, November 22, 1974. 6. 191 "Madisso appeal hearing denied: Top court upholds ex-wife's interest in house," Globe and Mail, January 31, 1976. 15.

75 Other provinces also had their issues with matrimonial property laws. By 1980, each province had enacted laws that would prevent a repeat of the Murdoch case.192

There is evidence to suggest that the events that took place in Ontario were representative of other provinces; the national attention that the issue of matrimonial property received from the Murdoch case, in conjunction with political mobilization on the part of women's organizations, pressured governments into making changes to their laws respecting marital property. In British Columbia, for example, the Family and Children's Law

Commission published a report on matrimonial property in 1975. In their report, the

Commission recommended a shift away from individual property ownership to a

"community of property." In their view, this would not only guarantee the equitable sharing of assets in the event of divorce, but would also better reflect the way in which many couples viewed their marriages: where both spouses "participate in the relationship as equals."193 British Columbia enacted the Family Relations Act in 1979, which, according to a 1982 report from the Legal Services Society of Vancouver, was the main piece of legislation through which a woman could maintain her interest in her matrimonial property. The Family Relations Act ensured a "fair division of family assets," and also provided each spouse with the option of obtaining an interim order restraining the other spouse from disposing of property.194 In Saskatchewan, the Law

Reform Commission announced in 1974 that it would conduct a review of the province's family law, to determine "what share a wife should get at the time of separation, divorce

192 Elizabeth Atcheson, Mary A Eberts, Beth Symes, Women and Legal Action: Precedents, Resources and Strategies for the Future, (Ottawa: Status of Women Canada, 1984.) 193 CWMA, X10-1, Box 26, File: Family and Children's Law Commission (British Columbia): Report on matrimonial property, February 1975. 194 "Protection of Matrimonial Property," CWMA X10-1, Box 47, File: Legal Services Society (Vancouver, B.C.): Legal Process for Battered Women, revised edition, 1982.

76 or death and what a fair determination of family property interests ought to be."

Saskatchewan passed its Matrimonial Property Act in January 1980.

Prior to the Alberta Government's promise to look into matrimonial property laws, Justice David McDonald of the Alberta Supreme Court advised women to keep a record of any time they: contribute to a mortgage payment, entertain the guests or clients of their husbands, shovel the driveway, or anytime their "husband begged them not to take a job."196 However, the Alberta Human Rights Commission asked the province to conduct a review of matrimonial property laws in April 1974. Chief Commissioner

Vincent Cooney's request was reportedly influenced by the minority decision of Justice

Bora Laskin. Cooney suggested that the decision was "morally, if not legally, unjust and one which could constitute an unfortunate precedent."197

In late 1975 the province was evaluated by the Alberta Status of Women Action

Committee (ASWAC). Their evaluation was based on the province's record for implementing the forty-nine recommendations that relate to provincial jurisdiction from the report of the Royal Commission on the Status of Women. One of the issues that the

Committee argued had not been implemented was in regards to matrimonial property rights.198 Like Ontario's experience, the Committee argued that despite assurances that the government would quickly respond to the failures of family law demonstrated by the

Murdoch case, the government was spending too much time studying a report of the

"Saskatchewan plans study," Globe and Mail, March 13, 1974. 13. 196 "Keep complete record to protect interest, judge advises wives," Globe and Mail, March 13, 1974. 13. 197 "House asked to reconsider Murdoch case," Globe and Mail, April 16, 1974. 14; "Court review asked over wife's lost rights," Toronto Star, April 16, 1974. A7. 198 "Province's actions evaluated on status of women report," Edmonton Journal, December 30, 1975.

77 Institute of Law Research and Reform. As a result, changes to matrimonial property law went through a similar time-consuming consultation process as found in Ontario.200

In the Committee's 1977-78 report, it was revealed that ASWAC fundraised $54,000 for an "Information Project" campaign on Matrimonial property. Part of this campaign included lobbying members of the legislative assembly "about concerns with the

201 proposed legislation."

Another similarity with Ontario was that in the wake of the Murdoch case, other women went before the judiciary regarding matrimonial property and were successful where Irene Murdoch was not. In Barbara Ann Fiedler's case, she was granted a half- interest in her and her husband's farm after the couple completed their divorce. Fiedler, a schoolteacher, divorced her husband after twenty-two years of marriage. The distinction between the two cases is clear: Fiedler contributed financially to the marriage by earning an income. But the case was still considered positive by those who were hoping that Irene Murdoch's work in the home would be recognized as having value within Canadian law. One editorial commented that the Fiedler case reflected "a far more sensible attitude toward women" than that shown in the Murdoch case. Fiedler's case turned out more positively than Irene Murdoch's, but it did still demonstrate the necessity for legislative change. A year after her victory at the Alberta Supreme Court,

"Alberta Status of Women Action Committee Joint Initiatives: A Goal for Women and Government in Alberta," CWMA X10-1, Box 2, File: Alberta Status of Women Action Committee (ASWAC, Edmonton, AB): Bylaws, reports, correspondence and other material, 1975-1997. p. 11. 200 Alberta enacted the Matrimonial Property Act on January 1, 1979, nine months after Ontario's similar legislation. 201 "Alberta Status of Women Action Committee 1977-78 Annual Report," CWMA X10-1, Box 2, File: Alberta Status of Women Action Committee (ASWAC, Edmonton, AB): Bylaws, reports, correspondence and other material, 1975-1997. 2-3. 202 "Rights of farm wives," Globe and Mail, June 20, 1974. 8; "High court gives divorced woman half interest in Alberta farm," Globe and Mail, July 17, 1974. 11; "Ex-wife wins half of farm," Toronto Star, July 16, 1974. 1.

78 Fiedler's husband's appeal to the appellate division of the Alberta Supreme Court dismissed any property claim that was granted to her in the previous decision. As a result, Fiedler was paid a lump sum of $38,400 in the divorce settlement. °3 In an article published by Branching Out: Canadian Magazine for Women, Stella Bailey examined ten cases that occurred throughout Canada on the topic of matrimonial property since the

Murdoch decision. As she demonstrated, all of the cases examined204 had outcomes that were more positive for women than that of Murdoch's,205 and that as a result of pressure from women's organizations, every Canadian province had enacted or was enacting legislation to correct the errors demonstrated in the Murdoch case.206

Due to the fact that this issue was based mainly in provincial jurisdiction, the national women's organizations were not in the forefront of the campaign for equitable matrimonial property laws; but that does not mean they were not involved. Many women and organizations complained to the Government-sponsored National Advisory Council on the Status of Women (not to be confused with the non-government organization, the

National Action Committee on the Status of Women). Their response was that they did not want "to play ombudsman," but they used this example to explain why they believed there needed to be a federal commission on human rights.207 Given that matrimonial

203 "Settles for lump sum after divorce: Alberta woman abandons her fight for share of farm," Globe and Mail, July 17, 1975.2. 204 There is one exception: Madisso v. Madisso Bailey reports as having a negative decision, but after her article went to print the Appeals division of the Supreme Court of Ontario found in favour of Mrs. Madisso's claim to a half-interest in the family home. 205 Stella Bailey, "Matrimonial Property: What has Happened Since Murdoch?" CWMA X10-1, Box 5, File: Branching Out: Canadian Magazine for Women (Edmonton, AB): Correspondence, advertising rates and other material, 1975-1981. p. 38-39. 206 Ibid, 35. 207 "Doesn't want to play ombudsman but federal advisory council goes to bat for women," Globe and Mail, January 14, 1974. 13.

79 property was a well-known section of the Royal Commission on the Status of Women, the matter fell within the mandate of the National Advisory Council on the Status of

Women. As mentioned in reference to the Lavell case, the federal government established the Canadian Human Rights Commission with the passage of the Canadian

Human Rights Act in 1977. In a March 1974 statement in the House of Commons, John

C. Munro, then Minister of Labour, discussed his role as being responsible for coordinating and establishing the Advisory Council. Despite his praise of the establishment of the Advisory Council, however, he did state that he recognized "that much more has to be done in the field of legislation as well as changing attitudes. Two recent decisions of the Supreme Court of Canada have made this abundantly clear. I refer of course to the Murdoch case and to the Lavell case."209 The Advisory Council also established a trust fund for Irene Murdoch to help cover her $3,000 in legal fees, and

$2,000 in medical expenses resulting from her domestic abuse incident with her former husband. The Council declared that it established the fund because Irene Murdoch "has become a symbol of the inequalities of Canadian matrimonial property laws."

Other national institutions also weighed in on the Murdoch decision. The Law

Reform Commission of Canada commissioned a working paper on matrimonial property that criticized the "mine-if-I-paid-for-it approach," which was seen as wholly unfair to married women.211 In a second report commissioned over a year later, the Commission argued that Irene Murdoch's case was seen as the landmark case needed to pressure provincial governments into enacting property laws which give "women a better break in

208 "A simple law to help women," Toronto Star, January 28, 1974. C4. 209 House of Commons Debates, March 5, 1974. 187. 210 "Fund set up," Globe and Mail, April 11, 1974. 13. 211 "Wives shortchanged by property laws, federal report says," Globe and Mail, March 18, 1974. 1.

80 divorce cases."212 The NAC was also weighing in on the matrimonial property issue by passing resolutions related to the issue at their Annual meetings in 1975 and 1977. These resolutions called for legislation at every level of government that would not only rectify inequalities in matrimonial property law and that marriage be considered both a social and an economic partnership, but also that the unpaid work by a spouse be recognized as having value (and thus entitling that spouse to a one-half interest in marital assets).213

While grateful for the support received across Canada, the political campaigns that ensued after her loss at the Supreme Court were of little comfort to Irene Murdoch.

In a candid interview with the Globe and Mail, she explained that she would much rather be "scrubbing floors and washing walls!"214 Such a statement suggests that she was uncomfortable with the amount of publicity she faced as a result of her case at the

Supreme Court. While the broader political campaign ensued on both the national and provincial levels, Irene Murdoch's fight was far from over. On 10 October 1975 she was granted a divorce from her husband and thus began proceedings to determine the

o i c settlement of the divorce. " Women's rights organizations arrived at her divorce proceedings to witness what they viewed was a landmark case unfolding;216 Irene Murdoch had become "a symbol of discrimination for women's groups. ,,217

212 "Working paper says Murdoch case shows family law deficiencies," Globe and Mail, May 27, 1975. 13; See also "Judgment in celebrated action reserved: Lawyers complete arguments in Murdoch divorce case," Globe and Mail, September 29, 1976. 9. 213 See resolutions 400.20.2, 400.40.1 and 400.50.1 in "Index of Policy Recommendations," CWMA, X10- 24, NAC, Box 685, Index of Policy Recommendations. May 10-12, 1975 Conference and Annual Meeting, Winnipeg, Manitoba; March 21-23, 1977 Conference and Annual Meeting, Ottawa, Ontario. 214 "The informal Mrs. Murdoch," Globe and Mail, May 3, 1974. 215 "Irene Murdoch: Lost ranch battle, woman gets divorce," Globe and Mail, October 11, 1975. 2. 216 "Murdoch lawyers bargain out of court," Globe and Mail, December 2, 1975. 17. 217 "Alberta court asked to set aside land transfer: Woman continues fight for share of ranch," Globe and Mail, September 9, 1976. 2.

81 Irene Murdoch's personal battle ended on 8 October 1976 when the Alberta

Supreme Court awarded her a lump-sum payment of $65,000, despite the ranch that she and her husband raised together being valued at $240,600.218 This was far from the half- interest (including property right) that she claimed before the Supreme Court of Canada three years prior. While this settlement meant that Mrs. Murdoch could move on with her life, the rest of the women's movement was galvanized by her case. Murdoch v.

Murdoch exemplified the inequalities that existed within matrimonial property legislation throughout Canada, but it also revealed to the women's movement some deeper themes within Canadian law and broader society. The Bill of Rights was not of any use in this instance because it was limited to federal legislation, and thus had no force in matters of provincial jurisdiction. This fact aided in shaping the women's perspective during the

Charter discussions. The Murdoch case also helped to demonstrate attitudes within

Canadian society towards both the role of women in the family unit, and the value of the work that women perform in the household. It revealed the notion that because work outside of the home could be easily measured, it was considered to be more valuable; more valuable to the point that women's work in the home had absolutely no economic consideration in determining marital property. These issues, as well as the campaign province to province, reveal how the Murdoch case galvanized the women's movement into producing real policy and legislative change for the benefit of Canadian women.

"Irene Murdoch to get $65,000 from divorce," Globe and Mail, October 9, 1976. 2.

82 Chapter 3 - Maternity Leave Benefits and the Unemployment Insurance Act: The case of Stella Bliss

The ability of lawmakers and judges to make a "relevant distinction," even if that distinction contravened the Bill of Rights, was at the heart of the issue in the case of Bliss v. Canada (Attorney General). As sociologist Sherene Razack has argued, the reason the

Supreme Court of Canada ruled against Stella Bliss was because there existed a "logical connection between the distinction made, in this case pregnancy, and the consequences that flowed from it, denial of unemployment benefits."219 This may have been the legal language used to deny Stella Bliss her maternity benefits, but such language did not explain the logic behind the government's distinction made within the Unemployment

Insurance Act that specified different qualifications for maternity benefits than other benefits covered under the Act. As in the Lavell and Murdoch cases, the Bliss decision unleashed a wave of anger within the women's movement. Once again, the women's movement launched a full-fledged political campaign to not only reverse the decision, but to also ensure that stronger language was contained in the Charter of Rights and

Freedoms.

In addition to a criticism of the Bill of Rights, the other major theme that is displayed through an analysis of the Bliss case is with regard to the role of women within the family, and within society. The major women's representatives believed that the provisions of the Unemployment Insurance Act with regard to maternity benefits were shaped in a way that made it part of a larger scheme of dissuading women from joining the workforce. At the very least, they believed, it was meant to suggest that while it was appropriate for women to work prior to having children, once pregnant, they should rely

219 Razack, 31.

83 on their male partner for financial subsistence. The maternity benefit of the

Unemployment Insurance Act was adopted in 1971 in conjunction with other items such as sick leave and retirement benefits.

Stella Bliss began her clerical job with Brown Brothers Ford Limited in

Vancouver, British Columbia, on 24 September 1975. In early January 1976 her employer terminated her employment because of her pregnancy. This action was deemed illegal by the British Columbia Human Rights Commission and she was reinstated. Bliss continued to work until 12 March 1976; she gave birth on 16 March 1976. As a result of the time frame in which she worked, she did not qualify for maternity benefits as prescribed under the Unemployment Insurance Act. This was the decision of the

Unemployment Insurance Commission's Board of Referees.

Stella Bliss, backed by her Union (Service, office and Retail Workers' Union

Local 1003), appealed this decision to Judge Collier, who acted as an Umpire as prescribed under the Act. The Unemployment Insurance Act specified very clear requirements for receiving maternity benefits. Section 46 of the Act stated that in order to receive benefits as a result of unemployment caused by pregnancy, women had to fit the profile of insurable employment as prescribed in a special section of the Act only pertaining to maternity benefits. Section 30 of the Act determined that a woman would be entitled to maternity benefits if she had ten or more weeks of insurable employment within a twenty week time period "that immediately preceded the thirtieth week before her expected date of confinement." In other words, in order for her to have qualified for maternity benefits Stella Bliss would have had to have been employed for at least ten

"Decision of Judge Collier," Bliss v. Canada (Attorney Genera), Supreme Court Record, Docket #14939. December 15, 1977. 3.

84 weeks between 13 April and 30 August, 1975. She thus had no weeks of insurable employment for maternity benefits as prescribed by the Unemployment Insurance Act.

Bliss did not make a claim for benefits under section 30 of the Act but rather claimed for benefits under sections 17 and 25. Section 17 of the Act stated that a person qualified to receive unemployment benefits provided they lost their job after eight or more weeks of insurable employment. Section 25 stated that a benefits claim would not be paid if "he fails to prove that he was either: a) capable of and available for work and unable to obtain suitable employment on that day, or b) incapable of work by reason of any prescribed illness, injury or quarantine on that day." Since she was incapable of work at the time of her unemployment, she claimed that she was entitled to benefits under sections 17 and 25 of the Act. However, due to the specific and onerous provisions set out in section 30, and prescribed specifically and only to unemployment as a result of pregnancy in section 46, Bliss was determined to be ineligible for unemployment insurance. Judge Collier decided that had Bliss not been pregnant but instead "had lost her employment with Brown Bros. Ford on 12 March because of shortage of work, and had for some reason not been able to prove "availability" or "capability" until 10 days later, she would have been entitled to benefits."221

Collier did not understand the reasoning behind "injecting s. 46 into the 1971 legislation."222 He speculated that the government's rationale behind the onerous provisions with regard to maternity leave was due to the fact that pregnant women are typically unable to work in the eight week period prior to their children's birth, and thus a different set of guidelines for eligibility needed to be established. As a result of this

' Ibid, 2.

85 oversight, Collier found that "impugned section, accidentally perhaps, authorizes discrimination by reason of sex, and as a consequence, abridges the right of equality of all claimants in respect of the Unemployment Insurance legislation."

The Attorney General of Canada appealed this decision to the Federal Court of

Appeal, which, on 2 June 1977, overturned the decision of Judge Collier. In writing for the unanimous decision of the Court, Justice Pratte raised three main issues. The first was that he determined that if there was discrimination in the Unemployment Insurance

Act, it was not discrimination based on sex as outlined in the Bill of Rights. He argued that the discrimination was based on pregnancy status. He stated, "Section 46 applies to pregnant women, it has no application to women who are not pregnant, and it has no application, of course, to men," and that if the Act treated "pregnant women differently from other unemployed persons, be they male or female, it is, it seems to me, because

994 they are pregnant and not because they are women." Such a view of the Bill of Rights, it would later be argued, was of the strictest and narrowest interpretation possible. It was this interpretation that women later cited as the reason for necessitating a strongly worded

Charter of Rights and Freedoms.

The second issue raised by Justice Pratte dealt with Collier's critique of the reason why section 46 of the Act was instituted in the first place. In Pratte's view, "Parliament considered that unemployment cause by pregnancy was something different from unemployment caused by sickness or unemployment which gives rise to the payment of 99S regular benefits." He also stated that unlike the other reasons why one might collect

Bliss v. Canada (Attorney General), [1977] 77 D.L.R. (3d) 609; also found at "Judgment of Justice Pratte," CWMA X10-24, NAC, Box 679, File: Maternity Leave Stella Bliss case, p. 6. 225 Ibid, 7.

86 unemployment benefits, pregnancy was "usually the result of a voluntary act." As a result of what he perceived as a legitimate "federal objective," Pratte determined that the maternity provisions in the Unemployment Insurance Act were not in contravention of the

Bill of Rights.

The third issue raised in Pratte's decision was a link back to the Lavell case.226

Pratte used the Lavell example to demonstrate his narrow interpretation of the "equality before the law" section of the Bill of Rights, a wholly justified example given the topic of the case he was examining. However, it does demonstrate the nature of precedence within Canadian common law. In the view of the women's movement, this case was drawing upon the judicial mistakes of the past, and indeed the Bliss case was considered yet another precedent-setting decision that rendered the Bill of Rights all but useless.

This link represented a major turning point for the women's movement's approach to the

Bill of Rights, and greatly galvanized the campaign for a strongly worded Section 15 of the Charter during Charter discussions in the early 1980s.

Once the case was appealed by Bliss to the Supreme Court, two groups submitted their position on the Bliss case for the consideration of the Court. The first group was the

Canadian Civil Liberties Association (CCLA), headed by the famous lawyer and legal scholar Alan Borovoy. His submission was a request to be granted intervener status in the case. In Borovoy's affidavit, he stated that one of the CCLA's major objectives included "the promotion of the legal protection of equality between the sexes," and that as a result, the CCLA felt that Justice Pratte erred in his decision that the Unemployment

Insurance Act did not contravene the Bill of Rights. The Court denied granting the CCLA

226 Ibid, 8. 227 "Affidavit of the Canadian Civil Liberties Association," Bliss v. Canada (Attorney General), Supreme Court of Canada Records, Docket #14939.

87 intervener status, and did not state a reason for doing so. The second organization was the Service, Office and Retail Workers Union of Canada. Although the Union did not request intervener status, they did send their view in a formal submission to the Court.

They argued that the Unemployment Insurance Act was discriminatory in two ways,

"first, it discriminates between pregnant women and all other working women; and

second, it discriminates against all women by creating a special section of the Act which

ignores the biological role of childbearing which is as much a part of any woman's life as working itself."228 In the wake of the Collier decision, the Union also urged its women members who found themselves in the same situation at Stella Bliss to appeal the

decision of the Unemployment Insurance Commission. These two submissions are indicative of the support of groups and organizations that did not necessarily restrict

themselves to the women's movement.

In the majority decision handed by Justice Ritchie on 31 October 1978, the Court

decided that the Unemployment Insurance Act was not in contravention of the equality rights espoused by the Bill of Rights. In every aspect, Justice Ritchie agreed with Justice

Pratte of the Federal Court of Appeal. This is particularly true of Ritchie's regard for the

idea that the Bliss case was not a matter of discrimination based on sex, but that it was

discrimination based on pregnancy. He argued that while men were by virtue excluded

from the maternity provisions of the Act, "any inequality between the sexes in this area is not created by legislation but by nature." He also argued that maternity benefits were part of a valid and legitimate policy of unemployment insurance in Canada, and that,

228 "A Submission by the Service, office and Retail Workers Union of Canada," Bliss v. Canada (Attorney General), Supreme Court Records, Docket #14939. 229 «TJIC ruled discriminatory," Montreal Gazette, February 24, 1977. 230 Bliss v. Canada (Attorney General), [1979] 1 S.C.R. 183.

88 since unemployment insurance was specifically allocated to federal jurisdiction by the

British North America Act, it could not be overridden by the Bill of Rights. This argument is almost an exact reference to the judgment held against Lavell five years prior.

Outside of the Supreme Court many organizations, from both the women's movement and otherwise, provided their input into the Bliss case as it was making its way through the Canadian legal system. The Vancouver Community Legal Assistance

Society solicited the advice in a 17 June 1977 letter to law professor and expert on the

Canadian Bill of Rights, Walter S. Tarnopolsky. In their submission to him, they believed that the Lavell case should not have been used by the Courts as a precedent for determining Bliss. Tarnopolsky's response is unknown, but the letter sent by the

Society indicates that they desired to disassociate the Bliss case from the Court's interpretation of the Bill of Rights in Lavell.

Two major women's organizations also mobilized in support of Bliss. The

Vancouver Status of Women demonstrated its support for Stella Bliss and her case against the Unemployment Insurance Act. In a press release on 12 October 1977, the

Vancouver Status of Women revealed that they had established a "Stella Bliss Appeal

Fund," in an effort to raise $3,000 to cover transportation to Ottawa, as well as the filing fees associated with taking the case to the Supreme Court. In their release, the

Vancouver Status of Women argued that women constituted between 35-40 percent of

1 "Letter from the Vancouver Community Legal Assistance Society to Professor Walter S. Tarnopolsky," CWMA, X10-24, NAC, Box 679, File: Maternity Leave Stella Bliss case, June 17, 1977.; Tarnopolsky was the author of a widely referenced book called: The Canadian Bill of Rights, (Toronto: McClelland & Stewart, 1975).

89 the labour force, and thus the Unemployment Insurance Act should not "continue to discriminate against women who choose to exercise their child-bearing potential."

The NAC was also eager to support Stella Bliss. At the NAC's 17-20 March

1978 conference and annual meeting held in Ottawa, its members passed a number of policy recommendations and resolutions pertaining to Stella Bliss' case. In one instance, the NAC called for the removal of the exclusivity of the maternity provisions in the

Unemployment Insurance Act. Their goal was to not only change the Act's maternity benefit provisions, but to also enable women who chose to receive regular benefits (and not the maternity benefits upon becoming pregnant) to have the opportunity to do so.

The decision turned the issue away from the legal system to the political arena, but the battle to undo the sections at stake in the Bliss case represented a challenge to the women's movement. In a 1972 report from Bryce Mackasey, the Minister Responsible for the Status of Women, the Government's position on the maternity benefits was that it was "expected to have a major impact on the lives and working conditions of employed women throughout Canada."234 Some Members of Parliament argued that the

Unemployment Insurance Act was in actual fact too unrestrictive and that amendments needed to be made in order to make it so that fewer people could qualify for benefits under the Act. In a speech to the House on 28 October 1975, Progressive Conservative

Member of Parliament Howard Johnston (Okanagan-Kootenay) argued that there had been a "lack of restraint" in terms of the usage of the benefits granted under the Act, and

232 "Stella Bliss Appeal Fund: Press Release of the Vancouver Status of Women," CWMA, X10-24, NAC, Box 679, File: Maternity Leave Stella Bliss case, October 12, 1977. 233 "Recommendation 300.10.7," CWMA XI0-24, NAC, Box 685, File: Index of Policy Recommendations, March 17, 1978. 234 "Status of women in Canada - 1972, Report of the Minister Responsible for the Status of Women," CWMA X10-28, Business and Professional Women's Club of Ottawa, Box 584, File: Status of Women, 1972. p. 12.

90 that "too much money has been made available too easily to people in this country."

The women's movement faced an up-hill battle, particularly with the introduction of Bill

C-14, an amendment to the Unemployment Insurance Act aimed at curbing the reliance on unemployment insurance and thus theoretically encouraging people back to work.236

In a 2 September 1978 letter to Bud Cullen (Minister of Employment and

Immigration) the Vancouver Status of Women expressed outrage at the proposed legislation that would have tightened the provisions in the Unemployment Insurance Act.

They called it the "most blatant piece of sexism that has come down from the federal government since before the appointment of the Royal Commission on the Status of

Women."237 Reports in the press were also critical of Bill C-14's measures, some of which were aimed specifically at women. In a Toronto Star editorial on 31 October 1978

(the day of the Bliss decision), Michele Landsberg raised the idea that while women seemed to be one of the targets of Bill C-14, the statistics actually revealed that women underused the unemployment system as opposed to abusing it. According to this report, there were fifteen job hunters for every available job; forty-five percent of those job hunters were women, but only 36.8 percent of unemployment claimants were women.238

In the House of Commons, the New Democratic Party (NDP) was highly outspoken in its opposition to Bill C-14. In a speech by John Rodriguez (Nickel Belt), the NDP viewed the implementation of Bill C-14 as further preventing women from participating in the workplace, on top of the unofficial policy of women being "last hired

235 House of Commons Debates, October 28, 1975. p. 8630. 236 "News release from the Ministry of Employment and Immigration Canada," CWMA X10-24, NAC, Box 679, File: U.I. Bill C-14, November 2, 1978. 237 "Letter from Vancouver Status of Women to Bud Cullen," CWMA XI0-24, NAC, Box 679, U.I. Bill C- 14, Correspondence, September 2, 1978. 238 "Don't slam women for UIC abuse," Toronto Star, October 31, 1978. Dl.

91 and first fired." The response was to a government accusation that women were

"taking jobs away from men," and that they should only be viewed as secondary job earners. Bob Rae (Broadview) also claimed that the government planned to restrict unemployment insurance because it believed that the unemployment rate was artificially high as a result of the participation rate being too high. He argued that the government wanted to make it harder for women "to collect unemployment insurance because they do not want them to be employed in the first place."240 On 15 December 1978, Judy

Wasylycia-Leis of the NDP organized a protest on Parliament Hill against Bill C-14. In their poster advertising the protest, the NDP stated that the government had "embarked on a campaign to drive women out of the labour force by perpetuating myths that women are secondary earners, that they are taking jobs away from men, and that their true place is in the home."241 The NDP, however, made a mistake in asking that the government- appointed Advisory Council on the Status of Women be called as a witness to the committee examining Bill C-14, when in actual fact they meant to ask for the National

Action Committee, the non-government commissioned women's organization. The

NAC was able to rectify this mistake and was afforded the opportunity to present to the

Committee.

Much of the NAC's brief to the Committee on Labour, Manpower and

Immigration was designed to combat the provisions of Bill C-14 that would have negatively affected women. The NAC delegation was led by Lynn Kaye, who later became the NAC's President. While she spent much of her time before the Committee

239 "Excerpt from Hansard," CWMA X10-24, NAC, Box 679, U.I. Bill C-14, November 9, 1979. 240 Ibid, November 10, 1978. 241 "Women Protest. 1945: Once is enough!" CWMA XI0-24, NAC, Box: 679, File: Bill C-14 Correspondence, December 1978. 242 "Frank Howard's Bureaucrats," Ottawa Citizen, November 23, 1978. 2.

92 specifically dealing with the provision in Bill C-14, she also took the time to criticize the

Unemployment Insurance Act in general because of its inherent discriminatory provisions. It was the view of the NAC that the amendments in Bill C-14 were more of the same type of discrimination as was demonstrated in Bliss. The main issue for the

NAC was the idea that the Unemployment Insurance Act was designed to maintain

"biological determinism" of the female role in the family, the economy, and society in general.

Outside of Parliament, the NAC continued its battle in the press. In an article covering the NAC's brief to Parliament, NAC representatives stated that "of course as long as women do not receive equal pay for equal work or work of equal value, they will almost inevitably be secondary workers by this definition."244 In another interview with the Toronto Star, Lynn Kaye suggested that "the Liberal government is waging a campaign of financial abuse against Canadian women" as a result of making cuts to several programs within the Unemployment Insurance Act.245 The programs that were cut included the family allowance system, the Outreach employment services program, training allowances, as well as cuts to the family planning grants. All of these programs were not restricted to women, but were programs that women would be most disadvantaged if cut. This was the nature of the opposition to Bill C-14 from women's organizations and in particular, the NAC.

The Government commissioned organization, the National Advisory Council on the Status of Women, also expressed its concerns with Bill C-14. At a special meeting

4 "Minutes of the Proceedings of the Standing Committee on Labour, Manpower and Immigration," House of Commons Debates, November 27, 1978. 8:29. "Brief says new UIC proposals will hurt many working women," Globe and Mail, November 29, 1978. 245 "It's financial war on us women say," Toronto Star, December 30, 1978. A12.

93 held in Toronto of the Canadian, along with six (Prince Edward Island, Nova Scotia, New

Brunswick, Quebec, Ontario and Saskatchewan) provincial Councils, the leaders called for several changes to the proposed legislation. Included in these changes were some of the programs that the NAC had raised as major issues to the proposed changes. The

Council was also "shocked" at the comments reported from an official of the Canadian

Employment Insurance Commission who said, "I think it is fair to say that we have not done enough study of the place of women in the labour market. We have tended, I suppose, to apply the traditional notion as to why it is that a woman works, or does not work, and draws benefits."

The Government response was made primarily through Bud Cullen, the Minister responsible for Bill C-14. All but one of his arguments showed little sympathy for the impact of his Bill on Canadian women. In a position paper on the matter, Cullen argued that while Bill C-14 would affect women, it would, "in terms of absolute numbers," affect more men than women. His concession on this matter was rather vague, staying that "we will compensate for the effects of these changes by increased and continued efforts to improve the status of women in the labour force."247 Toward the end of his statement, during his discussion on maternity benefits under the Unemployment

Insurance Act, Cullen admitted the overwhelming support given to Stella Bliss, and he addressed this issue:

Notwithstanding that the Supreme Court has ruled in favour of the Government in [the Bliss] case, I have directed a thorough and sympathetic review of the maternity provisions of the UI Act. When that

"Press Release from the Canadian Advisory Council on the Status of Women," CWMA XI0-24, NAC, Box 679, File: U.I. Bill C-14 Correspondence, January 30, 1979. 247 "Notes for a statement by the Honourable Bud Cullen, Minister of Employment and Immigration Canada on the Second Reading of Bill C-14, A Bill to amend the Unemployment Insurance Act, 1971," CWMA X10-24 NAC, Box 679, U.I. Bill C-14, November 9, 1978. 8.

94 review is completed, I shall be recommending changes to the Cabinet. Because the review will take time, such changes would be the subject of a future Bill. My only regret is that it is not possible to include these changes in the Bill before the House today.248

Regardless of his intentions, Cullen used this promise in an attempt to soften the criticism of Bill C-14. In his notes for his presentation to the Committee reviewing the Bill, he acknowledged that his promise to amend the maternity provisions were due to the Bliss case as well as "the interest shown during discussion of C-14."249 After Cullen responded to the NAC's concerns over Bill C-14, he stated in a letter to the NAC that his promise to amend the maternity provisions of the Act was a "positive response" to the opposition to C-14.250 Cullen's announcement received widespread praise from women's groups and from several people who were involved in Stella Bliss' case.

The Vancouver Community Legal Assistance Society, the group that had earlier aided Stella Bliss in her case against the government, came out strongly in favour of Bud

Cullen's announcement. Bliss' attorney, Allan H. MacLean, wrote Cullen to express his interest in the promise made to revise the provisions of the maternity benefits section of the Act. In his letter, he stated that Bliss lost her case because of the Supreme Court's

"extreme reluctance to ever again strike down substantive legislation under the Bill of

Rights,"252 referring, of course, to the action taken by the Court in Drybones. It was

MacLean's hope that his submission would be considered once the Government decided to embark on actually changing the legislation. In his response to MacLean's letter,

248 Ibid, 11. 249 "Maternity Benefits: Notes for the Minister," CWMA X10-24, NAC, Box: 679, File: U.I. Bill C-14 Correspondence, December 5, 1978. 250 "Letter from Bud Cullen to NACNAC,, " CWMA X10-24, NAC, Box: 679, File: U.I. Bill C-14 Correspondencei . February 20, 1979. 2551 "Cabinet to re-examine UIC maternitmatei y benefits," Globe and Mail, November 1, 1978. 14; "Ottawa to revievie w maternity benefits," Toronto Star, November 1, 1978. A14. 252 "Letter from Vancouver Community Legal Assistance Society to Bud Cullen," CWMA XI0-24, NAC, Box: 679, File: Maternity Leave Stella Bliss Case, December 7, 1978.

95 Cullen urged for patience on the matter. His sentiment stemmed from the idea that changes to the Unemployment Insurance Act would have profound effects on the

Insurance Premium Account, which was maintained by the private sector. As a result,

Cullen stated that he had to consult with the Canadian Unemployment Insurance

Commission Advisory Council. Cullen assured MacLean that the concerns he raised would be brought to the attention of Cabinet, given MacLean's knowledge of the case from his experience with the Stella Bliss case.

Bill C-14 came into effect on 1 January 1979, and with it came a strong response from women's organizations. The first campaign involved a number of letters written to

Federal Human Rights Commission from women in British Columbia. These women were adversely affected by the regulations that the newly passed Bill C-14 imposed on them. Two women in particular, Valerie Embree and Linda Sproule-Jones were concerned about their maternity benefits. Both women would have qualified for maternity benefits, even under the discriminatory policies of sections 30 and 46 of the

Unemployment Insurance Act, prior to the implementation of C-14. However, the new regulations meant that, since neither of these women were working the required minimum of twenty hours per week, they would not qualify for maternity benefits nor income protection in the event that either became pregnant.254

Other organizations protested the negative effects of C-14. The NAC also petitioned the Human Rights Commission over the Unemployment Insurance Act. Their complaint, like Embree and Sproule-Jones', was that the twenty-hour weekly minimum

253 "Letter from Bud Cullen to Allan H. MacLean," CWMA XI0-24, NAC, Box 679, File: Maternity Leave Stella Bliss Case, January 30, 1979. 254 "Letter from Valerie Embree to the Federal Human Rights Commission," May 11, 1979; "Letter from Linda Sproule-Jones to the Federal Human Rights Commission," May 7, 1979. Both letters found at: CWMA XI0-24, NAC, Box 679, File: U.I. Bill C-14 Correspondence.

96 for insurability would negatively affect women disproportionately to men. The Ottawa

Women's Lobby submitted a paper to the Government that argued against the attitude that women's participation in the workforce was nothing but "an unnecessary, temporary phenomenon."256 Bill C-14 was a fait accompli, but that did not mean that the women's movement was willing to cede the loss sustained by the Bliss case.

Liberal Member of Parliament Charles Caccia submitted a private members bill in

June 1980 that would have eliminated the section in the Unemployment Insurance Act that Stella Bliss contested at the Supreme Court three years prior. In his introduction of his Bill C-205 he referred to a ruling by the Human Rights Commission that "said that the case of Stella Bliss illustrates that women can suffer economic penalties if they attempt to combine the social roles of work and childbearing, both, of course, a necessary and valuable contribution in the development of our country." Bill C-205 did not pass as a result of procedural matters, but it did help to press the government into action, especially considering that this private members bill was coming from a member of the government, and had support from other parties. It should also be noted that Charles Caccia was appointed the Minister of Labour on 22 September 1981.

The discriminatory clauses of the Unemployment Insurance Act raised in the Bliss case were removed in legislation that went before Parliament in 1983 and became law on

1 January 1984. Bill C-156 was passed to remove the sections of the Act which discriminated against women with respect to maternity leave directly as a result of the ruling handed by the Canadian Human Rights Commission. Another response of the

255 "Letter from NAC to Canadian Human Rights Commission," CWMA X10-24, NAC, Box 679, File: U.I. Bill C-14 Correspondence, February 28, 1979. "A Brief Concerning the Proposed Amendments to the Unemployment Insurance Act and Their Impact on Women," CWMA XI0-24, NAC, Box 679, File: Bill C-14 Correspondence, May 1980. 257 House of Commons Debates, June 6, 1980. 1864.

97 Government was to establish the Commission of Inquiry on Equality in Employment, which was headed by Judge Rosalie S. Abella. Abella's mandate was to establish the main concerns of four target groups, women, native people, disabled persons and visible minorities, with regards to employment. Specifically, her mandate was to determine the concerns of women with regard to "the desirability of child care benefits, including parental and maternity leave provisions and child care facilities, and the determination of whether this is a corporate, government, or joint responsibility."

Provinces across Canada had implemented maternity leave protections starting with British Columbia in 1921. New Brunswick enacted maternity leave protection in

1964, Saskatchewan, Manitoba, Ontario, Nova Scotia and the federal government enacted their laws between 1970 and 1973, Newfoundland in 1977, and finally, Quebec in

1978.259 The jurisdiction over maternity leave benefits rested with the federal government, and thus the issue was wholly a federal matter. It was for this reason Stella

Bliss took her case to the Supreme Court of Canada and challenged the Unemployment

Insurance Act against the Canadian Bill of Rights.

Christopher Manfredi has argued that the federal government changed the

Unemployment Insurance Act in 1983 because it disagreed "with the legal principle established in Bliss."260 He also noted that the Bliss case was overturned by Chief Justice

Brian Dickson. In his decision of the 1989 case Brooks v. Safeway Canada, Dickson declared that "Bliss was wrongly decided," and that the discrimination as a result of

258 "Letter from the Commission of Inquiry on Equality in Employment to NAC," CWMA XI0-24, NAC, Box 683, File: Canadian constitution: Government, correspondence/Hansard, August 5, 1983. 259 "Free for the asking," Chatelaine, July 1979. p. 22; "Quebec ministers pledge changes in women's rights, maternity leave," Globe and Mail, May 9, 1978. 13. 6 Manfredi, "Feminist Activism in the Supreme Court," 2. 261 Brooks v. Safeway Canada, [1989] 1. S.C.R. 1219.

98 pregnancy was based on sex, and not created by nature. Eleven years after the fact, it was admitted by the Supreme Court that Stella Bliss should have won her case.

The case of Bliss v. Canada (Attorney General) was the final case that women brought before the Supreme Court under the Bill of Rights. It revealed, once again, the inadequacies of the Bill of Rights to protect against discrimination within federal legislation, or in this case, the Unemployment Insurance Act. The Court's decision reflected what women believed to be a narrow interpretation of the Bill of Rights, and certainly one that disappointed women in that it seemed to be a similar detraction from the Drybones case as seen in Lavell. Also similar to Lavell was the distinction between discrimination within a certain class of people. In Lavell, the Court justified the discrimination because native women had the option of not losing their status upon marriage by simply marrying someone who had Indian status. In Bliss, the discrimination was not based on sex, but rather was based upon a women's choice to become pregnant while holding a job. As a result of these choices, the Court declared that they were subject to specific regulations that were within the specific jurisdiction of the federal government as a result of the British North America Act, and thus the Bill of

Rights did not have the authority to render legislation inoperative.

Bliss also represented a final example of how, in the 1970s, women's organizations viewed failure at the Supreme Court as not the end, but the beginning of a wider political battle. Given the timing of the legislation, Bill C-14 represented an immediate opportunity with which to launch a campaign to not only rectify the Supreme

Court's own admitted mistake, but to make other issues related to women and employment available to the Canadian public. The failure of Bliss at the Supreme Court

262 Manfredi, "Feminist Activism in the Supreme Court," 1.

99 allowed the women's movement to galvanize and gain support in order to change the way in which maternity benefits were administered under the Unemployment Insurance Act.

100 Conclusion

In the previous pages, the weakness of the Canadian Bill of Rights has been made into the villain of the story of women's legal and political activism in the 1970s. Yet in

1960 the Bill of Rights represented a major political victory for Canadian human rights activists. It was thought to be the solution that Canadians needed in order to avoid the type of human rights abuses that were displayed preceding, during, and immediately after

World War II. Prior to World War II, union leaders, socialists and other left leaning political activists could be (and were) thrown in jail under Section 98 of the Criminal

Code. During World War II the civil liberties of Japanese, Italian and German Canadians were suspended as countless individuals were forcibly relocated away from their homes.

Immediately following the War, the Canadian Government initially intended to deport

Japanese Canadians to Japan, even though many of them had lived in Canada for generations.

The United Nations Universal Declaration of Human Rights (UNDHR), which was authored by a Canadian and yet opposed by Canada's delegation to the UN (until the final vote in which Canada realized the only company it had in opposition was the Soviet

Union and Cuba), was the first international step of unequivocally establishing what nations referred to as "human rights." In Canada's own experience, the Bill of Rights was the first time in which Canada absolutely declared what we as a nation believed to be

"human rights." The Bill of Rights was a failure in law, but to suggest that it was an ultimate failure in Canadian legislative history would be shortsighted.

It could easily be argued that it was not the legislation, but rather its interpretation which ultimately removed the power behind the Bill of Rights. A law is only as powerful

101 as the state's ability and or willingness to enforce it. In both of the Lavell and Bliss cases, it was a narrow, traditional and conservative interpretation of the law that demonstrated to the Canadian women's movement, and indeed other Canadian human rights activists

(such as the Canadian Civil Liberties Association) the ineffectiveness of the Bill of

Rights. Political scientist Edward Weissman argues that anyone who examines the shift from Drybones to Lavell could easily see "that courts in Canada have been in the policy

making business all the time."263

Legal scholars such as Robert Ivan Martin who argue that courts have become too powerful as a result of "judicial activism" are arguing from an incredibly limited,

traditional and conservative view of both the judiciary and human rights legislation in

Canada. For Martin, there exists an "orthodoxy" that has permeated the Canadian

Supreme Court, mainly as a result of feminist activism in the 1970s. In his opinion, "the

main causes of the Court's subversion are feminism and feminists... this was so largely because of three decisions of the Supreme Court - Lavell, Murdoch and Bliss."264 He

goes on to suggest that the decisions made by the Court, while the correct ones,

galvanized the women's movement into reshaping Canadian political and legal culture.

Such a view of the way in which human rights legislation is treated before the

Supreme Court is incredibly narrow because it pretends that a traditional or conservative

approach to human rights interpretation is by default not judicial activism. However, as it

has been shown in the previous pages, the conservative interpretation of the Bill of Rights

was in its own right judicial activism, one that promoted a policy of rendering the Bill of

"Judges make policy, reader claims," Globe and Mail, April 10, 1981. 7. Martin, 181.

102 Rights useless in Canadian law. For that reason, it is just as easy to be an "activist judge" by removing policy, as it is by making policy.

Equally, there have been feminist scholars who have been incredibly harsh on the

Canadian judiciary of the 1970s. These campaigns were hard fought, with many individuals contributing many hours of work in order to fight for a specific cause, so it is clear that passionate language can take hold. However, classifying the men who were members of the Supreme Court as being, in the words of feminist Beverley Baines, subscribers of "Aristotle's defense of male supremacy,"265 ignores some basic facts about the setting of the 1970s. That being said, Roy Romanow attributes much of the success and innovation of the Charter to Beverley Baines, particularly with regard to shaping the equality clauses in section 15. For that reason, perhaps it is Canadians such as

Beverley Baines, using "passionate language," who shape the nature of Canadian human rights as it exists today.

There is room to suggest that the Court could have easily and legally decided in favour of Lavell and Bliss, but for the Canadian judiciary of the 1970s human rights jurisprudence was not yet firmly established. In a system where precedent is the basis for legal decisions, having no precedents represented a challenge for the justices of the

Supreme Court. Furthermore, the concept of "women's rights" was in many ways new for these individuals, as second wave feminism was just making its way into intellectual discourse. It is important to keep in mind that the Royal Commission on the Status of

Women Report was quite new and as a guide for policy direction required time to be absorbed by Canadian lawmakers, scholars, judges, and activists.

Baines, "Women and Constitutional Process," 174. Romanow, 254.

103 The second reason that the Bill of Rights was not necessarily a failure was that it allowed the women's movement to force women's rights into the public discourse.

Throughout this examination of the Lavell, Murdoch and Bliss cases, it has been demonstrated several times that the women's movement utilized the failure of the Bill of

Rights in those three cases to protect the rights of Canadians. Their failure at the

Supreme Court as a result of the inadequacies of the interpretation of the Bill of Rights enabled the women's movement to launch a political campaign that not only sought legislative reform to rectify each of the three issues raised in these cases, but also to change the fabric of Canada's legal system by introducing stronger protections for women under the Charter of Rights and Freedoms. Such a campaign brought these issues to the press, which often referred to the Lavell, Murdoch and Bliss cases to demonstrate the ineffectiveness of the Bill of Rights, and the need to shape a strong

Charter of Rights and Freedoms.

The NAC officially called for a revamping of the Canadian Bill of Rights at its

1976 convention in Ottawa. A resolution urged "that the Bill of Rights be embodied and entrenched in the BNA Act at the earliest opportunity and that the NAC should become involved in the current movement patriate the constitution with the objective in mind."

At that time, the NAC was only five years old. By the time the Charter discussions were in full gear, the NAC was a fully functional political machine that was capable of wielding great influence. As such, on 5 November 1980, Lloyd Axworthy, the Minister

267 "Bill of Rights: A moment of glory then little for more than a decade," Toronto Star, August 11, 1980. A8; "Quick - let Ottawa know we want true equality," Toronto Star, October 16, 1980. CI; "Three sides to rights question," Toronto Star, November 15, 1980. B2; "Decisions that involve all of us," Toronto Star, December 26, 1980. A6. 268 "Recommendation 1976/1,2," CWMA XI0-24, NAC, Box 685, Index of Policy Recommendations, April 23-26, 1976 Conference and Annual Meeting, Ottawa. Responsible for the Status of Women, invited the NAC to make a submission before the

Special Joint Committee on the Constitution. His invitation was in light of "Supreme

Court decisions such as the Bliss and Lavell" cases.2 9 In a press release just prior to their submission before the Committee, the NAC announced that "Canadian women may be worse off with the Charter, warning that the proposal at the time only sought to entrench the phrase "equality before the law,"270 which had been the source of their misfortune in judicial interpretation.

Briefing the Committee, the NAC presented arguments that favoured entrenchment so as to make it apply to both federal and provincial legislation. This would ensure that the issues raised in the Murdoch case would be subject to the new

Charter. Also, it urged the members of the Committee to change the wording of their initial proposal, as the phrase "equality before the law" had been shown to be inadequate.

The NAC insisted on the need to ensure that a repeat of the Lavell and Bliss cases could not occur in post-Charter Canada.271

Sherene Razack has commented on this brief, arguing that the government's response to create a stronger Charter was due to the massive lobbying efforts and publicity campaigns of women's organizations. As she phrased it, the government responded "according to its perception of the level of support" for a change from the initial wording of the Charter.272 Penny Kome has studied the changes that occurred to

269 "Letter from Lloyd Axworthy to NAC," CWMA XI0-24, NAC, Box 683, File: Canadian Constitution, Government correspondence, November 5, 1980. 270 "NAC Press Release," CWMA XI0-24, NAC, Box 683, File: NAC brief to Joint Senate/House Committee, November 20, 1980; "Canadian women may be worse off in rights charter," Globe and Mail, November 15, 1980. 7. 271 "NAC Presentation to the Senate and House of Commons Special Joint Committee on the Constitution in Canada," CWMA X10-24, NAC, Box 683, File: Canadian Constitution, Government correspondence, November 20, 1980. 272 Razack, 32.

105 the Charter, specifically with the development of section 28, which further guaranteed equality rights and was seen as a "rejection of the way in which the Supreme Court of

Canada has dealt with questions about the status of women."273 Kome's comments regarding the success of the women's movement in influencing the government on the

Charter is relevant to the women's experience through the 1970s. She states:

The women's movement daily makes small demands and celebrates countless small victories... individually, these victories may not amount to much, but they are leverage and they do contribute to a sense of achievement, of progress, of solidarity of purpose that is crucial to the building of any movement whose implicit long-term goal is major societal overhaul.274

This is precisely the way in which this thesis views the Lavell, Murdoch and Bliss cases.

Individually, they each represented a setback for the women's movement. But in the broader picture, each loss was the beginning of a new political campaign, which gave that sense of achievement, progress and solidarity.

Kome uses the phrase "major societal overhaul," and this theme is very clear in the Lavell Murdoch and Bliss cases. The objective was not only to win a legal case, nor was it only to convince a government to change its policy; the objective was to also change the attitudes of Canadian society. Each case has several clear issues that are in tandem with the legal aspects. For Lavell, it was not simply about status issues and equality within the Indian Act. Nor was it solely about the fact that women were being used as "pawns" in a bitter feud between the federal government and the National

Indian Brotherhood. The issue as also about the societal notion that it was assumed in law that women necessarily take on the culture of their husbands upon marriage. It was

273 Bayefsky & Eberts, 515. 274 Kome, 16. 275 "Pawns" was the term used to refer to native women in a report by the National Advisory Council on the Status of Women: "Indian women 'made pawns' in rights battle," Toronto Star, April 13, 1978. D9. also the idea that because of gender roles, it was more likely that a white man living on a reserve would pose a higher economic threat than a white woman living on a reserve, thus it was considered necessary for the economic security of Canadian natives to maintain section 12(l)(b) of the Indian Act.

For Irene Murdoch, the issue was not only to do with the financial ability to live her life and pay her medical bills. The issue was also the notion that her contribution to the ranch was not seen as having value; meanwhile all of her husband's contributions did have value. It was also about the fact that there were those who believed that she only did what was expected of her as a rancher's wife; that since it was expected of her to assist in helping out on the ranch, she was not entitled to any of the marital assets at dissolution.

Finally, for Stella Bliss, her case at the Supreme Court may have been in regards to an incredibly arbitrary set of rules for claiming unemployment insurance as a result of pregnancy, but her fight was for more than just changing the piece of legislation that governed her benefit claims. The issues in Bliss dealt with the notion that rights do not extend to those who are disadvantaged because of "nature." It was also about the role of women in the economy; that the Unemployment Insurance Act seemed necessarily shaped in order to ensure that women were regarded as "secondary earners." Each case dealt with the role of women in the family, in the economy, and in society. The goal, then, was not simply legal, legislative, or even constitutional change; the goal was societal change.

For this reason, their losses at the Supreme Court were not viewed as the end of their campaign for societal equality: it was the beginning.

107 BIBLIOGRAPHY

PRIMARY SOURCES

ARCHIVAL RECORDS

Canadian Women's Movement Archives (University of Ottawa, Ontario)

X10-1: Canadian Women's Movement Archives Fonds

X10-24: National Action Committee on the Status of Women Fonds

X10-28: Business and Professional Women's Club of Ottawa Fonds

Supreme Court of Canada Records (Ottawa, Ontario)

Bedard Case Files, Docket #12548.

Bliss Case Files, Docket #14939.

Lavell Case Files, Docket #12535.

Murdoch Case Files, Docket #12624.

PRINTED MATERIAL

Hansard

House of Commons Debates, 1970-1982.

Law Journals

Attorney General (Canada) v. Lavell, [1971] 22 D.L.R. (3d) 188.

Attorney General (Canada) v. Lavell; Isaac v. Bedard, 38 D.L.R. (3d) 481.

Bedard v. Isaac [1971] 25 D.L.R. (3d) 551.

Bliss v. Canada (Attorney General), [1977] 77 D.L.R. (3d) 309.

Bliss v. Canada (Attorney General), [1979] 1 S.C.R. 183.

Brooks v. Safeway Canada, [1989] 1. S.C.R. 1219.

Murdoch v. Murdoch, [1975] 1. S.C.R. 423. R v. Drybones [1967] 60 W.W.R. 321.

R v. Drybones, [1967] 61 W.W.R. 370.

R v. Drybones [1970] 1 S.C.R. 282.

Trueman v. Trueman, [1971] 18 D.L.R. (3d) 109.

Newspapers

Globe and Mail, 1973-1985.

Toronto Star. 1973-1985.

"Frank Howard's Bureaucrats," Ottawa Citizen, November 23, 1978. 2.

"Free for the asking," Chatelaine. July 1979. p. 22.

"Province's actions evaluated on status of women report," Edmonton Journal, December 30,1975.

"UIC ruled discriminatory," Montreal Gazette, February 24, 1977.

SECONDARYSOURCES Adamson, Nancy. Feminist Organizing for Change: The Contemporary Women's Movement in Canada. Toronto: Oxford University Press, 1998.

Andrew, Caroline, and Manon Tremblay. Women and Political Representation in Canada. Ottawa: University of Ottawa Press, 1998.

Atcheson, Elizabeth, Mary A Eberts and Beth Symes. Women and Legal Action: Precedents, Resources and Strategies for the Future. Ottawa: Status of Women Canada, 1984.

Baines, Beverly. "Women and Constitutional Process." in Sandra Burt, Lorraine Code, and Lindsay Dorney, eds., Changing Patterns: Women in Canada. Toronto: McClelland and Stewart, 1993: 157-183.

Baines, Beverley. "Section 28 of the Canadian Charter of Rights and Freedoms: A Purposive Interpretation." Canadian Journal of Women and the Law, vol. 17, (2005): 45-70.

Bashevkin, Sylvia. "Losing Common Ground: Feminists, Conservative and Public Policy in Canada during the Mulroney Years." Canadian Journal of Political Science, Vol. 29, No. 2 (June, 1996): 211-242.

109 Bayefsky, Anne. "The Human Rights Committee and the Case of Sandra Lovelace," Canadian Yearbook of International Law 29 (1982).

Bayefsky, Anne and Mary Eberts. Equality Rights and the Canadian Charter of Rights and Freedoms. Toronto: Carswell, 1985.

Bear, Shirley. "You Can't Change the Indian Act?" in Jeri Dawn Wine & Janice L Ristock, ed., Women and Social Change: Feminist Activism in Canada. Toronto: James Lorimer & Company, 1991:198-220.

Brodie, Ian. "Lobbying the Supreme Court," in Political Dispute and Judicial Review: Assessing the Work of the Supreme Court of Canada, ed. Hugh Mellon and M.W. Westmacott, Scarborough, ON: Nelson/Thomson Learning, 2000: 195-203.

Brooks, Kim. "Valuing Women's Work in the Home: A Defining Moment," Canadian Journal of Women and the Law, vol. 17,(2005): 177-195.

Burrows, John. "Contemporary Traditional Equality: The Effect of the Charter on First Nations Politics." In David Schneiderman & Kate Sutherland, ed., Charting the Consequences: The Impact of the Charter Rights on Canadian Law and Politics. Toronto: University of Toronto Press, 1997: 169-199.

Dobrowolsky, Alexandra Z. The Politics of Pragmatism: Women, Representation, and Constitutionalism in Canada. Don Mills, ON: Oxford University Press, 2000.

Gotell, Lise. "The Canadian Women's Movement, Equality Rights and the Charter," Feminist Perspectives, No. 16 (1990).

Harper, Anita Olsen. "Is Canada Peaceful and Safe for Aboriginal Women?" Canadian Woman Studies, vol. 25, no. 2 (2006): 33-38.

Hosek, Chaviva. "Women and the Constitutional Process." In And No One Cheered, ed. Keith Banting and Richard Simeon. Toronto: Methuen, 1983: 280-300.

Jhappan, Radha. "Introduction: Feminist Adventures in Law." In Women's Legal Strategies in Canada, ed. Radha Jhappan, Toronto: University of Toronto Press, 2002:3-41.

Knetsch, Jack L. "Some Economic Implications of Matrimonial Property Rules." The University of Toronto Law Journal, Vol. 34, No. 3 (Summer, 1984): 263-282.

Lachapelle, Caroline. "Beyond Barriers: Native Women and the Women's Movement," in Maureen Fitzgerald, Connie Buberman & Margie Wolfe, ed., Still Ain 't Satisfied: Canadian Feminism Today, Toronto: The Women's Educational Press, 1982: 257- 264.

110 Lahey, Kathleen A. "Celebration and Struggle: Feminism and Law," in Feminism: From Pressure to Politics, ed. Angela Miles and Geraldine Finn, Montreal: Black Rose Books, 1989: 99-122.

Lambertson, Ross. Repression and Resistance: Canadian Human Rights Activists, 1930- 1960. Toronto: University of Toronto Press, 2005.

MacLennen, Christopher. Toward,the Charter: Canadians and the Demand for a National Bill of Rights, 1929-1960. Montreal: McGill-Queen's University Press, 2003.

Majury, Diana. "Women's Equality Before and After the Charter," in Women's Legal Strategies in Canada, ed. Radha Jhappan, Toronto: University of Toronto Press, 2002:101-134.

Manfredi, Christopher. The Canadian Feminist Movement, Constitutional Politics, and the Strategic Use of Legal Resources. Vancouver: SFU-UBC Centre for the Study of Government and Business, 2000.

Manfredi, Christopher. Feminist Activism in the Supreme Court: Legal Mobilization and the Women's Legal Education and Action Fund. Vancouver: UBC Press, 2004.

Manfredi, Christopher. Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism. Don Mills, ON: Oxford University Press, 2001.

McCormick, Peter J. Supreme at Last: The Evolution of the Supreme Court of Canada. Toronto: J. Lorimer, 2000.

Mossman, Mary Jane. "Defining Moments for Women as Lawyers: Reflections on Numerical Gender Equality." Canadian Journal of Women and the Law, vol. 17, no. 1 (2005): 15-25.

Pal, Leslie A. Interests of State: The Politics of Language, Multiculturalism, and Feminism in Canada. Montreal & Kingston: McGill-Queen's University Press, 1993.

Pierson, Ruth and Allison Prentice, "Feminism and the Writing and Teaching of History," in Feminism: From Pressure to Politics, ed. Angela Miles and Geraldine Finn, Montreal: Black Rose Books, 1989: 103-118.

Price, Lisa S. In Women's Interests: Feminist Activism and Institutional Change, Vancouver: Women's Research Centre, 1988.

Razack, Sherene. Canadian Feminism and the Law: The Women's Legal Education and Action Fund and the Pursuit of Equality. Toronto: Second Story Press, 1991.

Ill Romano, Roy. Canada - Notwithstanding: The Making of the Constitution, 1976-1982. .Toronto: Methuen, 1984.

Smith, Miriam. Lesbian and Gay Rights in Canada: Social Movements and Equality- Seeking, 1971-1995. Toronto: University of Toronto Press, 1999.

Tarnopolsky, Walter S. The Canadian Bill of Rights. Toronto: McClelland & Stewart, 1975.

Vickers, Jill, Pauline Rankin and Christine Appelle. Politics as if Women Mattered: A Political Analysis of the National Action Committee on the Status of Women. Toronto: University of Toronto Press, 1993.

Walker, James W. St. G. "Race, " rights and the law in the Supreme Court of Canada: historical case studies. Waterloo, ON: Wilfred Laurier University Press, 1997.

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