R v Drybones

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. 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 The motion was granted and the guilty plea was revoked by Drybones, the Court ordering a trial de novo.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. Both Greyeyes and Sangris also testified that there were no Indian reserves in the Northwest Territories. 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. 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. 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.. 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." ==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. "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." 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. 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. ==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. This doctrine, Hall notes, has been rejected by the United States Supreme Court in Brown v. Board of Education. 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." 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 question this Court considered can only be answered by determining "whether or not it is the intention of Parliament to confer the power and impose the responsibility upon the courts of declaring inoperative any provision in a Statute of Canada" if a statute cannot be construed and applied to be consistent with the Bill of Rights. Instead, Cartwright argued that the opposite is true: Section 2 of the Canadian Bill of Rights "directs the courts to apply such a law not to refuse to apply it." Therefore, Cartwright wrote that he would dispose of the appeal in the same manner as Justice Pigeon. 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. Pigeon observed 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 argued, 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." Pigeon also derided as implausible the notion that any legislative provision treating Indians differently is invalid. If this perspective is true, Pigeon remarked, it would fundamentally alter the status of Indians and make the use of Parliament's exclusive legislative authority over Indians always subject to the requirement of expressly declaring "that the law shall operate notwithstanding the Canadian Bill of Rights". It is unlikely, Pigeon wrote, that Parliament intended such a vast effect without more explicit language. Moreover, the language that is used, Pigeon argued, would seem to indicate that the Bill of Rights merely enacts a rule of construction. As such, Pigeon asserted, the Bill of Rights does not allow the courts not to decline to apply the law. In other words, existing legislation, which embodies and delimits the content of the rights and freedoms enumerated in the Canadian Bill of Rights, cannot be held inoperative by virtue of the Bill of Rights. If the reverse were true, Pigeon wrote, 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. Moreover, Pigeon argued that the contrasting point of view would violate the well-settled common law presumption against implicit departure from the existing law. Pigeon maintained that Parliament simply demonstrated no intention of creating a quasi-constitutional statute with teeth, writing: On the whole, I cannot find in the Canadian Bill of Rights anything clearly showing that Parliament intended to establish concerning human rights and fundamental freedoms some overriding general principles to be enforced by the courts against the clearly expressed will of Parliament in statutes existing at the time. In my opinion, Parliament did nothing more than instruct the courts to construe and apply those laws in accordance with the principles enunciated in the Bill on the basis that the recognized rights and freedoms did exist, not that they were to be brought into existence by the courts. With respect to the disposition, Pigeon wrote that he would allow the appeal and reverse the judgment of the inferior courts and affirm Drybones' conviction and sentence. He also added that he agreed with the reasoning of Cartwright. ==See also==