Lavell Case

In A.G. (Can) v Lavell (1973) the Supreme Court of Canada considered whether s12 of the Indian Act, in providing that an Indian woman who marries a non-Indian lose her Indian status (while an Indian male does not lose his status by marrying a non-Indian), is contrary to the principle of equality before the law entrenched in the CANADIAN BILL OF RIGHTS of 1960. The Court ruled in a divided judgement of 5 and 4 that the measure was valid. In its controversial decision the court held that the concept of equality means equality in the administration or application of the law. Parliament could not exercise its jurisdiction over the Indians without passing legislation listing the characteristics required for a person to have the right to Indian status; according to the court, the Act could be enforced reasonably without infringing upon the rights of Indian women to equality before the law.

In Lovelace v Canada case the UN Human Rights Committee ruled that the status provision was contrary to the International Covenant on Civil and Political Rights. Section 35 of the Constitution Act, 1982, was amended in 1983 in order that the existing aboriginal and treaty rights of the aboriginal peoples of Canada be guaranteed equally to male and female persons. Section 12 of the Indian Act was repealed in 1985.

Author GÉRALD-A. BEAUDOIN