R v Drybones, S.C.R. 282, is a landmark 6-3 Supreme Court of Canada decision holding that the Canadian Bill of Rights "empowered the courts to strike down federal legislation which offended its dictates."Brian Dickson, "The Canadian Charter of Rights and Freedoms: Context and Evolution" in (eds.) Beaudoin, G-A., & Mendes, E, The Canadian Charter of Rights and Freedoms, Third Edition (Scarborough: Carswell, 1996) at 1:6 Accordingly, the Supreme Court of Canada held that section 94(b) of the Indian Act (which prohibited "Indians" from being intoxicated off of a reserve) is inoperative because it violates section 1(b) of the Canadian Bill of Rights.
Prior to this decision there had been much debate on the application of the Bill of Rights to an infringing statute. One perspective saw the Bill of Rights as an interpretive aid. The other perspective saw it as statute that constrained the supremacy of Parliament, rendering irreconcilable federal enactments of no force or effect. 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.
Although the judgement only rendered section 94b inoperable, as a consequence of the case, Parliament voted to repeal section 94 in its entirety in 1971.
Section 94
Background On April 8, 1967, shortly after 11:00pm, Joseph Drybones was discovered intoxicated on the floor of the lobby of the Old Stope Hotel in Yellowknife. On April 10, 1967, Drybones, representing himself without counsel, pleaded guilty to being an Indian who was intoxicated off a reserve, in contravention of section 94(b) of the Indian Act.R. v. Drybones (1967), 60 W.W.R. 321 at 321-322 (N.W.T.Co. Ct.). Drybones was convicted of this offence by Justice of the Peace Thompson and was sentenced to pay a fine of $10 or three days imprisonment. On April 27, 1967, Drybones gave notice that he was appealing the conviction.
In a motion before the Territorial Court of the Northwest Territories, counsel for Drybones argued that since their client did not understand English, he did not understand the nature of the proceedings, rendering his guilty plea invalid and subject to withdrawal. The motion was granted and the guilty plea was revoked by Drybones, the Court ordering a trial de novo.
In the trial de novo, the crown called six witnesses, including the Royal Canadian Mounted Police (RCMP) Constables and the wife of the hotel manager who had found Drybones. The crown also produced Joe Sangris as one of their witnesses, a former chief and leader of the Indian village at Yellowknife for 16 years. Sangris testified that he had known Drybones from his birth, as well as his wife and his father, towards the Crown's attempt to formally prove that Drybones was legally considered an Indian. Sangris also testified that Drybones received treaty money once a year. A similar crown witness was 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 Drybones, married to Madeline Crapeau with no children.R. v. Drybones, supra note 2 at 323. Both Greyeyes and Sangris also testified that there were no Indian reserves in the Northwest Territories.R. v. Drybones, supra note 2 at 324.
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 an officially-designated 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.
However, most crucially in terms of the potential precedent it would set, counsel for Drybones contended that if all the elements of a crime had been committed, the combined effect of sections 94(b) and 96 of the Indian Act violated Section 1(b) of the Canadian Bill of Rights because the legal sanction is more severe and more intrusive on account of race, than the equivalent sections of the Liquor Ordinance that apply to non-Indians.R. v. Drybones, supra note 2 at 328; The Liquor Ordinance, RONWT, 1956, c. 60. That distinction, counsel argued, is discrimination on account of race and colour, in contravention of the appellant's equality before the law under Section 1(b) of the Canadian Bill of Rights and, therefore, Drybones should be acquitted and the offending law disabled.
Judgment of the Northwest Territories Territorial Court On June 5, 1967, the Northwest Territories Territorial Court allowed the appeal and acquitted Drybones.
Writing for the court, Justice Morrow concluded that on April 8, 1967, 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.R. v. Drybones, supra note 2 at 324, 328. However, Morrow held that Section 94(b) of the Indian Act is negated because it impermissibly violates section 1(b) of the Canadian Bill of Rights.
While mindful of R v Gonzales (in which the British Columbia Court of Appeal found section 94 consistent with the Canadian Bill of Rights), Morrow asserted that it must be distinguished in light of Robertson and Rosetanni v. R..Robertson and Rosetanni v. Her Majesty the Queen, S.C.R. 651
In Robertson, Morrow noted that a majority of the Supreme Court emphasized that the appropriate test to determine a violation of the provisions of the Canadian Bill of Rights should turn on the effect of the impugned legislation and not necessarily its intended purpose. Applying the test stipulated by Robertson, Morrow found section 94 of the Indian Act discriminatory. If the impugned provisions of the Indian Act are enforced, the Bill of Rights could not be, as Morrow noted that Indians would have to be treated differently from white Canadians, other immigrant groups and even other groups of aborigines such as the Inuit.
As a remedy, Morrow, citing Chief Justice Cartwright's dissent in Gonzales, decided that since only section 94(b) of the Indian Act is discriminatory, only section 94(b) is therefore inoperative. Morrow stated that the remaining statute is "not discriminatory but merely providing for such things as protection of property and other rights."R. v. Drybones, supra note 2 at 329-330.
Judgment of the Northwest Territories Court of Appeal On August 25, 1967, the Court of Appeal for the Northwest Territories dismissed the Crown's application for leave to appeal, affirming Drybones's acquittal.
Writing for a unanimous court, Justice Johnson noted that the entire essence of the Crown's application hinged on the authority of the Gonzales decision of the British Columbia Court of Appeal. The Gonzales decision, however, Johnson argues, can no longer be seen as tenable. Johnson contended 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.R. v. Drybones (1967), 64 D.L.R. (2d) 260 at 263 (N.W.T.C.A.). "If this paragraph," Johnson wrote, "means no more than this, it would hardly have seemed necessary to include it for this right has always been jealously guarded by the courts."
In addition to making the right to 'equality before the law' merely a vain provision, Johnson argued that the interpretation endorsed by Gonzales would also permit Parliament to discriminate on account of race without an express declaration that the impugned provision is to operate notwithstanding the Bill of Rights. Johnson held 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.S. Supreme Court, the Bill of Rights would become irrelevant Johnson argued, falling "far short of the high purpose expressed both in the Act and its preamble."R. v. Drybones, supra note 9 at 262-263.
Johnson acknowledged that discrimination is not totally prohibited by the Bill of Rights. However, the Bill of Rights does prohibit all discrimination "by reason of race, national origin, colour, religion or sex" as it stipulates. Johnson also dismissed the Crown's arguments based on the purpose of the Indian Act, stressing the importance of the effect of the impugned provision in the analysis and citing, as authority, Robertston and Rosetanni v. Her Majesty The Queen.R. v. Drybones, supra note 9 at 264.
Johnson noted that Indians are indeed subject to more severe punishment and a broader prohibition under the Indian Act. As such, he held that the lower court was right to hold the impugned section discriminatory and hence inoperative under the Canadian Bill of Rights.R. v. Drybones, supra note 9 at 262, 264.
Judgment of the Supreme Court of Canada On November 20, 1969, in a 6-3 vote the Supreme Court of Canada dismissed the crown's appeal and upheld Drybones's acquittal.
Concurring opinion Justice Hall wrote a concurring opinion, registering his agreement with Justice Ritchie's reasons. Hall further argues that the concept articulated by Justice Tysoe in R. v. Gonzales is merely the equivalent of the separate but equal doctrine established in Plessy v. Ferguson.Plessy v. Ferguson (1896), 163 U.S. 537. This doctrine, Hall notes, has been rejected by the United States Supreme Court in Brown v. Board of Education.R. v. Drybones, at 299-300.
Similarly, Hall argues that the Canadian Bill of Rights can only be fulfilled if it has the effect repudiating "discrimination in every law of Canada by reason of race, national origin, colour, religion or sex in respect of the human rights and fundamental freedoms set out in s. 1 in whatever way that discrimination may manifest itself not only as between Indian and Indian but as between all Canadians whether Indian or non-Indian."
Dissenting opinions
Chief Justice Cartwright and Justices Pigeon and Abbott dissented.
Cartwright Chief Justice Cartwright, writing for himself in his dissenting opinion, asserted that there is simply no doubt that Drybones is guilty of contravening Section 94(b), which is "expressed in plain and unequivocal words"The Queen v. Drybones, S.C.R. 282 at 285-286. Its meaning, he argues, cannot be altered "by the application of any rule of construction to give it a meaning other than that an Indian who is intoxicated off a reserve is guilty of an offence." The Supreme Court of Canada, Cartwright writes, is therefore faced with the unprecedented dilemma of whether to give full effect to the Indian Act or to declare that it "is pro tanto repealed by the Bill [of Rights]."
Cartwright approached this question assuming that the Bill of Rights is indeed infringed by Section 94(b) of the Indian Act. He moreover noted that in Robertson he considered this question himself in his dissent, concluding that the Canadian Bill of Rights shall triumph over any inconsistency even to the point of rendering offensive legislation inoperative. Cartwright remarked that he is now persuaded otherwise.R. v. Drybones, supra note at 287.