Discrimination on the basis of gender and sex includes numerous aspects in our everyday life. It is illegal to discriminate someone on the basis of gender and sex. Furthermore, courts have extended legislation and coverage on the issue. Regardless of well stated provisions, gender and sex discrimination tends to be an issue of persistence in society and even in courts that should otherwise protect people. Courts have been involved in cases that have gender and sex discrimination issues. Such cases include Attorney General of Canada V. Lavelle, Murdoch v. Murdoch and Bliss v. Attorney General of Canada. The paper is based on a critical analysis of each case, highlighting issues of gender and discrimination.
Attorney General of Canada v. Lavelle
Introduction
The Attorney General of Canada v, Lavelle, case is a Supreme Court and landmark case as it centers on issues of gender and sex discrimination. The appellant was the Attorney General of Canada while the applicants were two ladies named Lavelle and Bedard. Both respondents are female and of North American Indian Ancestry. To further comprehend the case, a little background is crucial. In 1970, Jeannette Corbiere, lady from Wikwemikong Unceded Indian Reserve in Manitoulin Island, Ontario got married to David Lavelle, a non-indigenous man from Toronto. Following the marriage, Corbiere lost her Indian status due to the provision of the constitution section 12(1) (b) of the Indian Act that that removed status from Indian women who married non-status mean (Fleming, 1974). Status in this context refers to an individual that is not of Indian origin. The status quo affects Indian women only while men remain unaffected.
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Initially, the case was presided over by Judge Grossberg who concluded that Corbiere had not been deprived of equality according to the law. The rationale was based on the notion that the Bill of Rights afforded her similar rights as other women. Due to insatisfaction, Corbiere petitioned the case in the Federal Court in 1971. The judges ruled out that the Indian Act discriminated Indigenous women based on their gender and sex (Fleming, 1974). Further, recommendations were made that the Indian Act be repealed for non-compliance with the provisions of the Bill of Rights. In 1973, the case was associated with Bedard’s case as litigation moved through the court system. The two women were met with resistance from the Indigenous community. Further, the lower court’s ruling was overturned by the Supreme court in the same year citing that the Indian Act was not invalidated by the Bill of Rights.
Summary/Analysis
The case is among the first in groundwork laid by Aboriginal women to achieve equality in Canada. During the 70s, the era of the case, Indian women who got married to non-Indians lost their status as registered Indians, through this did not apply to men. Although the final ruling was a setback for Indigenous women rights, the judgement by the Supreme Court brought to the light these issues. Regardless of initially failing, the Lavelle case helped Indigenous women organize themselves into movements that significantly contributed to the dialogue for change and social reform against gender discrimination. These movements have been operational from the 80s to present.
Also, the case was a precursor to the Canadian legal code that has gained recognition from scholars and historians alike regarding the fight for fundamental human rights, particularly against gender discrimination. At the time of the case, there were revolutionary developments that were fueled by the feminist theory (Grabham, 2002). Groups of Indigenous women collaborated with feminists who shared similar ideologies, including commitment to having women considered equal as their men counterparts. Furthermore, the law provides that people should not be discriminated against on the basis of their gender, sex, and race among other factors. Therefore, the case sought to challenge sexist and gender stereotyping structures that were the norm of society back then.
Conclusion
In the case Attorney General V. Lavelle, women were subjected to discrimination on the basis of gender. The relevant section of the Indian act should be considered inoperative as it contradicts the Canadian Bill of Rights. According to the Canadian Bill of Rights both sexes-men and women- should be considered equal for whichever law applies to them. Besides the women who were discriminated against in this case were supported by interveners of the women’s rights movement and organizations advocating for Indians’ women rights.
Murdoch V. Murdoch
Introduction
Irene Murdoch-the appellant and James Murdoch-the respondent got married in 1943 and worked together on several ranches as a couple. In 1947 James and his father in-law purchased a guest ranch for $6000 and the property got sold in 1951. James received $3500. The father-in law passed on later and left proceeds to his wife who testified that part of the money she gave to Irene who deposited in the bank under her name. In 1958, James Murdoch purchased the Brockway Property at $25000. James had another job and so Irene stayed home and worked on the ranch until it thrived. Her efforts resulted to the increase of wealth for the family. Post separation, however, Irene would have been entitled to nothing.
The couple later separated and the appellant brought two actions against the respondent. One was the claim under judicial separation where she was supposed to get an award of $2000 per month. The award was made to her and was never protested by judgement upon appeal. The second claim was for the alleged partnership hence the interest in half of the three-quarter section of the ranch and all of the husband’s assets. The second claim is the major interest in this case. It was dismissed both at trial and appellant’s appeal at the Supreme Court of Alberta (Jacobson, 1974). The appellant’s claim was based on equitability by way of resulting or constructive trust. The appellant’s rationale for the claims was based on her contribution as a wife over the many years, towards the contribution of those assets.
According to Mart land, the contributions of the wife towards the acquisition of assets and the ranch was not beyond what was expected of her at the farm. Therefore, the appellant had no special interest on the land. The way she could have had interest is if a resulting trust was created. The resulting trust would have been created had the wife helped pay for the assets. Alternatively, if there had been a common interest to create a trust for her half of the interest, under the name of the respondent, a resulting trust would have been considered by the court. The majority upheld that since she did not help with the payments, there was no common intention and therefore the wife was not entitled to half of the property of the ranch she had worked for twenty-five years.
The dissenting judge regarded Irene’s work as extraordinary. Laskin claimed that the court did not have to examine the wife’s intentions to create trust (Jacobson, 1974). Furthermore, the court has the ability to create constructive trust to prevent one party’s unjust equity. It is a power afforded in equity and therefore the court is supposed to construct a trust that would allow the appellant to benefit based on her contributions.
Summary/Analysis
Murdoch v. Murdoch, is a Supreme Court of Canada case whose decision was made at Alberta. The case illustrates how law can be a blunt tool when adapting to social change and seeking for equality of rights between men and women. The case is applicable to principles and laws revolving around matrimonial property and the emerging issues in the field (Clapton, 2008). Up to the late 70s, marriage was traditional in Canada and property was mostly under the husband’s name. Following the high rates of divorce in the 80s, women found that they had a tenuous claim on marriage in the shared properties that they contribute while they are still married.
Following the emergence of issues revolving around matrimonial property, there has been an evolution of women rights. Particularly, the Murdoch v. Murdoch case increased public and political support for matrimonial property law reform. Furthermore, the case of Irene was a reality for most Canadian wives. The case is so apparent on gender discrimination on the basis of sex since it reveals how women were not entitled to matrimonial property regardless of significant contributions. The standard law that required the property to be under the husband’s name and the fact that women had no say on the property is a revelation of how the law favored the male gender at the expense of the female gender (Clapton, 2008). Furthermore, if the ruling was not from a gender perspective, the court would have constructed a resulting trust and granted Irene her share of the property due to the significant contributions she had made.
Conclusion
In conclusion, Murdoch v. Murdoch case is an example of the rampant gender discrimination in the judicial system. The case, however, became a catalyst for significant and far-reaching developments in law reform. Gone was the separation of property where each spouse owned properties that they could only establish proprietary rules through property and trust law, and where the wife, just as Irene received nothing if her name was not on the title. The new legislative regime mandates that matrimonial law must be shared equally between the husband and wife upon divorce or separation. This was to be upheld regardless of the financial labor contribution towards the acquisition of these properties. The law reform ensured that property sharing between couples is no longer on the basis of gender but on the basis of the marriage itself.
Bliss v. Attorney General of Canada
Introduction
Bliss v. Canada is a famous case of the Supreme Court of Canada that highlights the equality of women under the Canadian Bill of Rights. According to the background of the case, Stella Bliss, was obligated to leave work due to pregnancy, four days before she could give birth. Based on her situation, Stella was not entitled to the full benefits of section 30 of the Act. On the contrary, she was subject to section 46 which denied her benefits for six weeks after childbirth. Bliss filed a law suit to challenge how section 46 violated section 1(b) of the Bill of Rights which protects against discrimination based on one’s sex and uphold the right of an individual to be equal under the law (Pal & Morton, 1986). She claimed that the law violated her rights to equality before the Canadian law.
The court led by Justice Ritchie ruled out that the Act was valid and was not in violation with the provision of equality under the Bill of Rights. According to Richie, the Act was a code that equally took interest in the equality for women. Besides, the equality of sexes in this section of the Bill of Rights is not as a result of legislation but nature. The implication is that while the Canadian Bill of Rights is against discrimination on the basis of gender and sex, in this case it was not any of the above but of pregnant people. Richie rejected Bliss’ argument that section 46 denied women equality before the law.
Summary/Analysis
This case had a significant impact on equality rights in section 15 of the Canadian Bill of Rights. What the Bliss case proved was that there should be an equality that should guarantee both access to benefits and equality before the law regardless of one’s gender or sexual orientation. Interpretations of the rule of law as it appears in Bliss’ case, were designed to help prevent the judicial system from establishing immunity against ordinary laws and to negatively deny exemption claims (Grabham, 2002). Through applying the negative rule of law principles to claims for access, the Supreme Court made the equality law useless. In other words, it outrightly supported discrimination of women on the basis of gender. According to the supreme court, equality means treating all pregnant women in discriminatory manner and continuing to deny them the right to enjoy benefits and an equal status.
Conclusion
Based on the ruling of the SCC, it was evident that the court supported discrimination of pregnant women. Furthermore, the court had opportunity to advocate for reform that would enable women to enjoy their rights. However, the case brought to the limelight the issues of gender discrimination and consequently led to the reform of section 15 of the Canadian law (L’Huereux, 1999). Currently, the section supports claims for inclusion and simultaneously guarantees equality in accessing the benefits of the law.
References
Clapton, M. S. (2008). Murdoch v. Murdoch: The organizing narrative of matrimonial property law reform. Can. J. Women & L. , 20 , 197.
Fleming, D. J. (1974). Attorney-General of Canada v. Lavell Isaac et. al. v. Bedard. UNBLJ , 23 , 97.
Grabham, E. (2002). Law v Canada: New Directions for Equality Under the Canadian Charter?. Oxford Journal of Legal Studies , 22 (4), 641-661.
L'Heureux-Dube, C. (1999). The changing face of equality: the indirect effects of section 15 of the Charter. Canadian Woman Studies , 19 (1/2), 30.
Pal, L. A., & Morton, F. L. (1986). Bliss v. Attorney General of Canada: From legal defeat to political victory. Osgoode Hall LJ , 24 , 141.
