Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m M A Y 2 0 1 6 11 \ AT L A N T I C \ C E N T R A L \ W E S T REGIONAL WRAP-UP E arlier this year, a courageous woman, Leilani Muir-O'Malley, who suffered a great injustice at the hands of the Alberta gov- ernment, died of natural causes near Edmonton at the age of 71. In 1956, she was placed in the Provincial Training School in Red Deer and certified, in the terminology of the day, as "a mental defective." In 1959, at the age of 14, after being told she was having her appendix removed, she was instead sterilized, but she was never told and only learned of the pro- cedure in 1980 when she went to a doctor to find out why she could not get pregnant. The sterilization of Muir-O'Malley and thousands of others were conducted under the 1928 Alberta Sexual Sterilization Act, which was not repealed until 1972. It was part of a program overseen by the now defunct Alberta Eugenics Board (1928- 1971) to stop the transference of "biological defects" to the next generation "of deviants." It was a profound wrong that a deter- mined and undaunted Muir-O'Malley and a handful of dedicated Edmonton lawyers finally put right, or as right as the law can put it. The arduous but ultimately success- ful battle waged by Muir-O'Malley over her forced sterilization also saw hundreds of similarly mistreated people benefit from a provincial compensation program. One of the lawyers who helped Muir- O'Malley was Myra Bielby. Today, Bielby sits on the Alberta Court of Appeal, but in 1989 she was a partner in the firm now known as Field Law. She got a call from a friend who was with the relatively new advocacy group called the Woman's Legal Education and Action Fund. The friend asked if a woman, who had been turned down by a string of lawyers and whom LEAF did not have resources to help, could come and see her. The woman was Leilani Muir (she later added O'Malley to her name). As Bielby recalls, Muir arrived at their office "with shopping bags full of materials" along with a complicated and startling story. After talking to her, Bielby decided while "it didn't look too promising, there was some- thing here." Before taking the case, Bielby had to get clearance from her firm's senior management. When she approached man- aging partner Bob Teskey, she recalls him saying rather enigmatically, "Well Myra, God is with you." Bielby "took that as a yes" and proceeded with the case. She carried the matter forward — including establishing Muir was of "nor- mal" intelligence and filing a statement of claim with the Court of Queen's Bench. But on Dec. 24, 1990, she learned she'd been appointed to the bench and had to hand the case off. It fell to Sandra Ander- son, who had articled with Bielby. When Anderson first became involved in the case, she was quite junior but by the time it had ground through discovery, it was 1995 and Anderson was heading for a partnership. Then, just months before the scheduled trial date, there was a key break. Anderson received a call from Alberta Justice. Until then, justice said it only had limited records associated with Muir, but more or less at the last minute, "they had discovered in some obscure corner of the Provincial Archives the records of the (Alberta) Eugenics Board." Anderson was invited over to read the six boxes of mate- rials, including the minutes of the Eugenics Board. Reading them "was quite an expe- rience. It was mind-numbing to read how the Eugenics Board operated. It was just officialdom at its worst." Two weeks before the scheduled start of the case, Field senior partner Jon Faulds "got tapped on the shoulder" as lead coun- sel. He had a reputation for being a very quick and incisive study, but relying on Anderson's research he quickly concurred with his junior that the board minutes showed "all kinds of irregularities." Faulds found "a lot of evidence the whole thing was a rubber stamp, including the signing of documents [approving sterilizations] even before the so-called hearings had even been conducted." He concluded there was significant evidence that the way the board conducted itself "was not consistent with their obligations under the act." Among Faulds' witnesses was Muir herself and he remembers the government lawyers went after her hard, but "the more they tried to knock her down, the stronger she became." Then there was one of the government's expert witnesses, Dr. Marga- ret Thompson, a geneticist, professor, and one-time member of the Eugenics Board. She was subject to what Faulds calls "an extremely surgical" cross-examination by Anderson that exposed before the court what the board minutes showed: that the board in the name of the government acted well beyond its legislated power. Justice Joanne Veit found in favour of Muir, ordering the province pay compen- sation totalling $740,000. In her powerful and persuasive judgment, Veit wrote: "The circumstances of Ms Muir's sterilization were so high-handed and so contemptuous of the statutory authority to effect steriliza- tion, and were undertaken in an atmo- sphere that so little respected Ms Muir's human dignity that the community's, and the court's sense of decency is offended." For Muir-O'Malley "it was total vin- dication," Faulds recalls. "For me, it was a chance to represent a hero." — GEOFF ELLWAND writerlaw@gmail.com Forced sterilization: How the law righted an ugly Alberta wrong W E S T (l to r) Sandra Anderson, Leilani Muir, and Jonathan Faulds around the time of the trial in 1995. COURTESY FIELD LAW

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