Forced Sterilization
How the Law Righted An Ugly Wrong in Alberta History

Early in 2016 a courageous woman Leilani Muir-O’Malley, who suffered a great injustice at the hands of the Alberta government, 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 procedure in 1980 when she went to a doctor to find out why she could not get pregnant.

The sterilization of Muir-O’Malley and of thousands of others were conducted in the name of the Alberta Sexual Sterilization Act passed in 1928 and incredibly not repealed until 1972. It was part of a misguided 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 determined and undaunted Muir-O’Malley and a handful of talented and dedicated Edmonton lawyers finally put right, or at least as right as the law can put it. The arduous, lengthy and but ultimately successful battle waged by Muir-O’Malley over her forced sterilization also saw hundreds of similarly mistreated people benefit from court imposed settlements on the Alberta government.

One of those talented and dedicated Edmonton 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 an Alberta law firm, now known as Field Law. She got a call from a friend who was with the then relatively new advocacy group called the Woman’s Legal Education and Action Fund (LEAF). The friend asked Bielby 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 Field’s downtown Edmonton 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 something here." Before taking the case Bielby had to get clearance from her Firm’s senior management because some disbursements would be charged to the Firm’s accounts. When she approached the managing 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 doing considerable preliminary research (including, incidentally establishing that Muir was of normal intelligence) and went as far as writing and filing a Statement of Claim with Alberta’s Court of Queen Bench. Then on Dec 24, 1990 (as was the tradition in Alberta) she got a phone call. She had been appointed to the Bench. With that, Bielby had to hand the case off. It fell ultimately to Sandra Anderson who had articled with Bielby.

When Anderson first became involved in the Muir case in 1991 she recalls “I was a pretty junior associate”. But by the time the case had ground through discovery it was 1995 and Anderson was heading for a partnership. Then just months before the scheduled June trial date a remarkable thing happened. It was probably the key break in the case.

Anderson received a call from Alberta Justice. Up 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 materials. The material included the minutes of the Eugenics Board and Anderson remembers that reading them “was quite an experience. 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, a senior partner and general litigator from Field, Jon Faulds “got tapped on the shoulder” as lead counsel. He had a reputation for being a very quick and incisive study. He recalls “there was a huge amount of material”. 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 Margaret Thompson, a geneticist, a professor at the University of Alberta and a one-time member of the Eugenics Board. She was subject to what Faulds calls “an extremely surgical” cross examination by Sandra Anderson which exposed before the court what the Board minutes showed, that the Board in the name of the government acted well beyond its legislated power.

Madame Justice Joanne Veit found in favour of Muir ordering that the Province pay compensation totalling $740,000. In her powerful and persuasive judgment Justice Veit wrote: “The circumstances of Ms Muir’s sterilization were so high-handed and so contemptuous of the statutory authority to effect sterilization, and were undertaken in an atmosphere 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 vindication” Faulds recalls, “for me it was a chance to represent a hero.”

A version of this story appeared in Canadian Lawyer in May 2016.

Geoff Ellwand is a Calgary criminal lawyer with an MA in history. A former CBC reporter, he continues to write about the law and history. Geoff is also a member of the CBA Alberta Editorial Committee, and has leant his many talents to guest-editing this edition of Law Matters.