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affirming (1967), 61 W.Furthermore, an infringing statutory provision that cannot be sensibly construed so as not to infringe the rights enshrined in the Canadian Bill of Rights is inoperative, unless Parliament makes an express declaration that the statutory provision will operate notwithstanding the Canadian Bill of Rights.Joined by: Fauteux, Martland, Judson, Spence JJ.Joined by: None
Dissent by: Cartwright C.Joined by: None
Dissent by: Pigeon J.Joined by: None
Dissent by: Abbott J.Canadian Bill of Rights, 1960 (Can), c.Supreme Court of Canada decision holding that the Canadian Bill of Rights "empowered the courts to strike down federal legislation which offended its dictates."One perspective saw the Bill of Rights as an interpretive aid.After this case, the overriding power that the Court held flows from the Canadian Bill of Rights was never used, and has since never been reconsidered by the Supreme Court of Canada.Background
2 Judgment of the Northwest Territories Territorial Court
3 Judgment of the Northwest Territories Court of Appeal
4 Judgment of the Supreme Court of Canada
4.On April 10, 1967, Drybones, representing himself without counsel, pleaded guilty to being an Indian, intoxicated off a reserve in contravention of section 94(b) of the Indian Act.The motion was granted and the guilty plea was revoked by Drybones, the Court ordering a trial de novo.Sangris testified that he had known Drybones from his birth, as well as his wife and his father.Sangris also testified that Drybones received treaty money once a year.Another crown witness included David George Greyeyes, once the regional director of Indian affairs.Greyeyes was the officer charged with the maintenance of Indian records, contractual obligations and the execution of federal treaties involving Indians.Greyeyes produced official records of a Mr.Counsel for Drybones argued that the Crown failed to prove that Drybones was an Indian within the meaning of Section 2(g) of the Indian Act, which requires that Indian be a member of an Indian band; therefore, Drybones could not be convicted under sections 94(b) of the Indian Act.It was also argued that since there are no reserves in the Northwest territories, Section 94(b) of the Indian Act is inapplicable to such cases in the Northwest Territories.Judgment of the Northwest Territories Territorial Court
One June 5th, 1967, the Northwest Territories Territorial Court allows the appeal and acquits Drybones.Drybones was indeed an Indian within the meaning of the Indian Act, and that he was intoxicated off a reserve in contravention of section 94(b) of the Indian Act.If the impugned provisions of the Indian Act are enforced, Justice Marrow notes that Indians would have to be treated differently from white Canadians, in addition to other groups of aborigines like the Eskimos.Morrow states that the remaining statute is "not discriminatory but merely providing for such things as protection of property and other rights."The Gonzales decision, however, Mr.Johnson argues, can no longer be seen as tenable.Johnson contends that Gonzales unduly restricts the interpretation of 'equality before the law' in the Canadian Bill of Rights to a form of "equality before the courts" that would permit discriminatory laws.Johnson holds that discriminatory legislation requires an express declaration by Section 2 of the Bill of Rights to remain operative.Otherwise, if the Canadian Bill of Rights allows segregation on account of race that was recently struck down by the U.However, the Bill of Rights does prohibit all discrimination "by reason of race, national origin, colour, religion or sex" as it stipulates.Justice Johnson notes that Indians are indeed subject to more severe punishment and a broader prohibition under the Indian Act.Supreme Court of Canada dismissed the crown's appeal and upheld Drybones's acquittal.Majority opinion
Writing for the majority (Fauteux, Martland, Judson, Ritchie, Hall and Spence JJ.Concurring opinion
Justice Hall wrote a concurring opinion, registering his agreement with Justice Ritchie's reasons.Justice Hall furthermore argues that the concept articulated by Justice Tysoe in R.Gonzales is merely the equivalent of the separate but equal doctrine established in Plessy v.Canadian Bill of Rights shall triumph over any inconsistency even to the point of rendering offensive legislation inoperative.If that is the intention of Parliament, Cartwright argues that Parliament would have added an express provision to s.Bill of Rights making that unequivocal, like ".Canada cannot be so construed and applied it shall be regarded as inoperative or pro tanto repealed."Therefore, Cartwright writes that he would dispose of the appeal in the same manner as Justice Pigeon.In other words, Parliament has not clearly authorized the Courts to declare legislation inoperative.Justice Abbott writes that he would therefore dispose of the appeal as provided by Justice Pigeon.He stresses that Parliament's enshrined rights and freedoms in the Bill of Rights that "have existed and shall continue to exist," citing the language used in Section 1.In other words, the right to 'equality before the law', enshrined in section 1(b) of the Bill of Rights, must be construed in light of Parliament's power to treat Indians differently.Justice Pigeon observes that Section 91(24) of the British North America Act expressly provides exclusive legislative authority to the federal parliament over "Indians and Lands reserved for the Indians", allowing Parliament discretion "to make legislation applicable only to Indians as such and therefore not applicable to Canadian citizens generally."The conclusion, Pigeon argues, must be that the right to "equality before the law" cannot contain a legal right that had, in fact, been "restricted by any number of statutory and other provisions."Justice Pigeon also derides as implausible the notion that any legislative provision treating Indians differently is invalid.Moreover, the language that is used, Pigeon argues, would seem to indicate that the Bill of Rights merely enacts a rule of construction.As such, Pigeon asserts, the Bill of Rights does not allow the courts not to decline to apply the law.If the reverse were true, Justice Pigeon writes, section 2 of the Bill of Rights would be in conflict with its purpose to recognize and declare only the rights that have existed and that shall continue to exist.With respect to the disposition, Justice Pigeon writes that he would allow the appeal and reverse the judgment of the inferior courts and affirm Drybones's conviction and sentence.He also adds that he agrees with the reasoning of Chief Justice Cartwright.Drybones, supra note 2 at 323.Drybones, supra note 2 at 324.Drybones, supra note 9 at 262, 264.Drybones, supra note at 288.External links
full text of Supreme Court decision from canlii.This page was last modified 19:35, 31 December 2007.Wizards of the Coast, Inc.Wizards of the Coast, Inc.Macular pigment
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