Thanks very much.
I speak today in support of the amendments made by the Senate to Bill S-2, and I urge its swift passage by the House of Commons.
I am a constitutional lawyer. I taught at the Faculty of Law at the University of Toronto, and I have held chairs at the law schools of the University of Ottawa and the University of Saskatchewan. I have, for many years, also practised constitutional and charter law, and I appeared as counsel in the McIvor, Descheneaux and Gehl cases. That is the perspective I bring to you today.
This hearing is the latest stage in a long struggle—almost 70 years—for justice for women who lost status, and their children.
I honour one of your other witnesses today, Jeannette Corbiere Lavell, who was one of the plaintiffs in a case heard by the Supreme Court in 1974 attacking the marrying-out rules. The Supreme Court ruled against Jeannette Lavell and her co-plaintiff Yvonne Bédard, holding that the marrying-out provision did not violate equality before the law but might well violate equality under the law.
Nationwide efforts were made, successfully, to have a guarantee of equality under the law included in section 15 in order to make a strong guarantee. The case of Andrews v. Law Society of British Columbia was the first one decided on section 15, in 1989. Recognizing the contribution of indigenous women to the development of section 15, Justice McIntyre said, in that case, “The worst oppression will result from discriminatory measures having the force of law. It is against this evil that s. 15 provides a guarantee.” That is a Supreme Court judge describing what is going on under the Indian Act now.
The marrying-out rule did not appear in Bill C-31. Paragraph 6(1)(c) restored status to women who lost it upon marriage, but that did not end the matter. As of 1985, the couple headed by a male who had given status to his wife and the couple in which the wife regained status lost upon marriage were not on an equal footing, nor were their children. Challenges to these inequalities in the McIvor and Descheneaux cases produced legislative changes but did not put the maternal and paternal lines of descent on an equal footing.
What kept the descendants of the maternal line in a subordinate position, and still does, was the 1985 cut-off. They had to be born before April 17, 1985, or of a marriage contracted before that date, in order to take advantage of the equality conferred by the amendments to section 6. These provisions assign and confine people, years and years after 1985, to the pre-1985 era, when women were denied equality with men. Descendants of such women are told, now, that you can only have rights under the charter if you are in the same position Jacob Grismer was in, in 1985, all those years ago.
This committee is at a crucial moment. It can accept the Senate amendments and recommend that Parliament end the discrimination now, or it can insist on keeping the present provisions in effect longer, continuing to threaten the very existence of many first nations. What will keep them in effect? Consultations will keep them in effect, as will people despairing of this process and bringing litigation. The provisions will remain in effect as long as the litigation takes.
I urge Parliament to act now instead of abdicating its legislative power in favour of the judiciary. We now know that the 2017 version of the two-parent rule, second generation cut-off and 1985 cut-off violate the charter, just as their predecessors were found to do. We do not need more litigation to establish that.
In the years before this legislation comes into effect, consultations with first nations can proceed not on whether to end the discrimination—there's no option about that, as it must end—but on how to transition into an ordered world without discrimination, which provides opportunity and belonging to children from either the paternal or the maternal line of descent.