The Queen v. Drybones, [1970] SCR 282

Supreme Court of Canada

The Queen v. Drybones, [1970] S.C.R. 282

Date: 1969-11-20

Her Majesty The Queen Appellant;

and

Joseph Drybones Respondent.

1968: October 28; 1969: November 20.

Present: Cartwright C.J. and Fauteux, Abbott, Mart-land, Judson, Ritchie, Hall, Spence and Pigeon JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR THE NORTHWEST TERRITORIES

Civil rights—Indians—Criminal law—Intoxicated off a reserve—No reserve in Northwest Territories—Whether relevant—Whether offence in s. 94(b) of Indian Act a discrimination against Indians under the Canadian Bill of Rights—Whether s. 94(b) rendered inoperative by the Canadian Bill of Rights—Indian Act, R.S.C. 1952, c. 149, s. 94(b)—Canadian Bill of Rights, 1960 (Can.), c. 44, ss. 1(b), 2.

The respondent, an Indian, was convicted by a magistrate of being intoxicated off a reserve in the Northwest Territories, contrary to s. 94(b) of the Indian Act, R.S.C. 1952, c. 149. There is no reserve in the Northwest Territories. On an appeal by way of trial de novo to the Territorial Court, the re­spondent was acquitted on the ground that s. 94(b) of the Indian Act has been rendered inoperative by the Canadian Bill of Rights, 1960 (Can.), c. 44, because it infringes the right of the respondent to equality before the law. Section 94(b) renders the respondent guilty of a punishable offence by reason of conduct which would not have been punishable if indulged in by any person who was not an Indian. The Court of Appeal for the Northwest Territories affirmed the acquittal. The Crown was granted leave to appeal to this Court.

Held (Cartwright C.J. and Abbott and Pigeon JJ. dissenting): The appeal should be dismissed.

Per Fauteux, Martland, Judson, Ritchie, Hall and Spence JJ.: The opening words of s. 2 of the Cana­dian Bill of Rights afford the clearest indication that the section is intended to mean and does mean that if a law of Canada cannot be "sensibly construed and applied" so that it does not abrogate, abridge or infringe one of the rights and freedoms recog­nized and declared by the Bill, then such law is

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inoperative "unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights". A declaration by the Courts that a section or a portion of a section of a statute is inoperative is to be dis­tinguished from the repeal of such a section and is to be confined to the particular circumstances of the case in which the declaration is made. The word "law" as used in s. 1(b) of the Canadian Bill of Rights is to be construed as meaning "the law of Canada". An individual is denied equality before the law if it is made an offence punishable at law, on account of his race, for him to do something which his fellow Canadians are free to do without having committed any offence or having been made subject to any penalty. Section 94(b) of the Indian Act is a law of Canada which creates such an offence and it can only be construed in such manner that its application would operate so as to abrogate, abridge or infringe one of the rights declared and recognized by the Canadian Bill of Rights. Section 94(b) is therefore inoperative.

The fact that there are no reserves in the Territories is quite irrelevant.

Per Hall J.: The concept that the Canadian Bill of Rights is operative in the face of a law of Canada only when that law does not give equality to all persons within the class to whom that particular law extends or relates, is to be rejected. The Canadian Bill of Rights can have validity and meaning only when subject to the single exception set out in s. 2 it is seen to repudiate 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.

Per Cartwright C.J., dissenting: Section 94(b) of the Indian Act is not rendered inoperative by the terms of the Canadian Bill of Rights. The section is expressed in plain and unequivocal words and must be given effect according to its plain meaning. Parliament did not have the intention to confer the power and impose the responsibility upon the Courts of declaring inoperative ,any provision in a statute of Canada although expressed in clear and unequi­vocal terms, the meaning of which after calling in aid every rule of construction including that pre-scribed by s. 2 of the Bill is perfectly plain, if in

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the view of the Court it infringes any of the rights or freedoms declared by s. 1 of the Bill. The Cana­dian Bill of Rights directs the Courts to apply the laws of Canada not to refuse to apply them.

Per Abbott J., dissenting: It would require the plainest words to impute to Parliament an inten­tion that the Courts should engage in judicial legis­lation as the interpretation of the Canadian Bill of Rights adopted by the Courts below necessarily im­plies. No such intention is expressed in s. 2 of the Canadian Bill of Rights. On the contrary, with respect to existing legislation, the section provides merely a canon or rule of interpretation for such legislation.

Per Pigeon J., dissenting: In respect of existing federal legislation, s. 2 of the Canadian Bill of Rights enacts a canon of construction and does not cast upon the Courts the task of removing there-from, whenever the question is raised, every provi­sion that may be considered as being in conflict with the enumerated rights and freedoms. Equality before the law in the sense in which it was understood in the Courts below would require the Indians to be subject in every province to the same rules of law as all others in every particular not merely on the question of drunkenness.

If one of the effects of the Canadian Bill of Rights is to render inoperative all legal provisions whereby Indians as such are not dealt with in the same way as the general public, the conclusion is inescapable that Parliament, by the enactment of the Canadian Bill of Rights, has not only fundamentally altered the status of the Indians in that indirect fashion but has also made any future use of federal legislative authority over them subject to the requirement of expressly declaring every time "that the law shall operate notwithstanding the Canadian Bill of Rights". It is very difficult to believe that Parliament so intended when enacting the Canadian Bill of Rights. Of themselves, the words in s. 2 "be so construed and applied as not to abrogate, abridge or infringe" do not enact something more than a rule of con­struction.

On the whole, one 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. Parliament did nothing more than

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instruct the Courts to construe and apply those laws in accordance with the principles enunciated in the Canadian Bill of Rights on the basis that the recog­nized rights and freedoms did exist, not that they were to be brought into existence by the Courts.

APPEAL from a judgment of the Court of Appeal for the Northwest Territories[1], affirming the acquittal of the respondent on a charge of being unlawfully intoxicated off a reserve. Appeal dismissed, Cartwright C.J. and Abbott and Pigeon JJ. dissenting.

D. H. Christie, Q.C., and C. D. MacKinnon, for the appellant.

G. Brian Purdy, for the respondent.

THE CHIEF JUSTICE (dissenting)‑The relevant facts, which are undisputed, and the course of the proceedings in the Courts below are set out in the reasons of my brothers Ritchie and Pigeon which I have had the advantage of reading.

There is no doubt that on the facts, the re­spondent was guilty of a breach of s. 94(b) of the Indian Act and the question to be decided is whether that provision is rendered inoperative by the terms of the Canadian Bill of Rights, Statutes of Canada 8-9 Eliz. II, c. 44, hereinafter referred to as the Bill.

In approaching this question I will assume the correctness of the view that s. 94(b) infringes the right of the respondent to equality before the law declared by clause (b) of s. 1 of the Bill, in that because he is an Indian it renders him guilty of a punishable offence by reason of conduct which would not have been punishable if indulged in by any person who was not an Indian.

This is, I believe, the first occasion on which it has become necessary for this Court to decide this question. In Robertson and Rosetanni v. Her Majesty the Queen[2], the majority were of the view that the impugned provisions of The Lord's Day Act did not infringe the right to freedom

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of religion declared by clause (c) of s. 1 of the Bill, and consequently did not deal with the opinion which I expressed in my dissenting reasons as to the effect of the Bill on a provision of an Act of Parliament which does infringe one of the declared rights.

In the case at bar s. 94(b) of the Indian Act is expressed in plain and unequivocal words. It is not possible 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.

In these circumstances the choice open to us is to give effect to the section according to its plain meaning or to declare it inoperative, that is to say, to declare that the Indian Act is pro tanto repealed by the Bill.

In Robertson and Rosetanni v. The Queen, supra, I had to deal with a similar question as in my view The Lord's Day Act did infringe the freedom of religion. At pages 661 and 662 I used the following words:

It remains to consider the reasons for judgment of Davey LA. in Regina v. Gonzales (1962) 37 C.R. 56, 37 W.W.R. 257, 132 C.C.C. 237, 32 D.L.R. (2d) 290. At page 239 of the C.C.C. Reports the learned Justice of Appeal says:

In so far as existing legislation does not offend against any of the matters specifically mentioned in clauses (a) to (g) of s. 2, but is said to other-wise infringe upon some of the human rights and fundamental freedoms declared in s. 1, in my opinion the section does not repeal such legisla­tion either expressly or by implication. On the contrary, it expressly recognizes the continued existence of such legislation, but provides that it shall be construed and applied so as not to dero­gate from those rights and freedoms. By that it seems merely to provide a canon or rule of inter­pretation for such legislation. The very language of s. 2, "be so construed and applied as not to abrogate" assumes that the prior Act may be sensibly construed and applied in a way that will avoid derogating from the rights and freedoms declared in s. 1. If the prior legislation cannot be so construed and applied sensibly, then the effect of s. 2 is exhausted, and the prior legislation must prevail according to its plain meaning.

With the greatest respect I find myself unable to agree with this view. The imperative words of s. 2

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of the Canadian Bills of Rights, quoted above, appear to me to require the courts to refuse to apply any law, coming within the legislative authority of Parlia­ment, which infringes freedom of religion unless it is expressly declared by an Act of Parliament that the law which does so infringe shall operate notwith­standing the Canadian Bill of Rights. As already pointed out s. 5(2), quoted above, makes it plain that the Canadian Bill of Rights is to apply to all laws of Canada already in existence at the time it came into force as well as to those thereafter enacted. In my opinion where there is irreconcilable conflict between another Act of Parliament and the Canadian Bill of Rights the latter must prevail.

Whether the imposition, under penal sanctions, of a certain standard of religious conduct on the whole population is desirable is, of course, a question for Parliament to decide. But in enacting the Canadian Bill of Rights Parliament has thrown upon the courts the responsibility of deciding, in each case in which the question arises, whether such an imposition in-fringes the freedom of religion in Canada. In the case at bar I have reached the conclusion that s. 4 of the Lord's Day Act does infringe the freedom of religion declared and preserved in the Canadian Bill of Rights and must therefore be treated as inopera­tive.

After a most anxious reconsideration of the whole question, in the light of the able arguments addressed to us by counsel, I have reached the conclusion that the view expressed by Davey J.A., as he then was, in the words quoted above is the better one.

The question is whether or not it is the inten­sion of Parliament to confer the power and im­pose the responsibility upon the courts of declaring inoperative any provision in a Statute of Canada although expressed in clear and une­quivocal terms, the meaning of which after calling in aid every rule of construction including that prescribed by s. 2 of the Bill is perfectly plain, if in the view of the court it infringes any of the rights or freedoms declared by s. 1 of the Bill.

In approaching this question it must not be forgotten that the responsibility mentioned above, if imposed at all, is imposed upon every justice

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of the peace, magistrate and judge of any court in the country who is called upon to apply a Statute of Canada or any order, rule or regula­tion made thereunder.

If it were intended that the question should be answered in the affirmative there would, in my opinion, have been added after the word "declared" in the seventh line of the opening paragraph of s. 2 of the Bill some such words as the following "and if any law of Canada cannot be so construed and applied it shall be regarded as inoperative or pro tanto repealed".

What now appears to me to have been the error in my reasoning in the passage from Robertson and Rosetanni v. The Queen quoted above is found in the statement that the Bill requires the courts to refuse to apply any law of Canada which is successfully impugned as in-fringing one of the declared rights or freedoms whereas on the contrary, as Davey J.A. had pointed out, the Bill directs the courts to apply such a law not to refuse to apply it.

For these reasons I would dispose of the appeal as proposed by my brother Pigeon.

The judgment of Fauteux, Martland, Judson, Ritchie and Spence JJ. was delivered by

RITCHIE J.‑This is an appeal brought with leave of this Court from a judgment of the Court of Appeal for the Northwest Territories3 dismissing an appeal by the Crown from a judg­ment of Mr. Justice W. G. Morrow of the Territorial Court of the Northwest Territories[3] by which he had acquitted Joseph Drybones of being "unlawfully intoxicated off a reserve" contrary to s. 94(b) of the Indian Act, R.S.C.1952, c. 149, after having heard an appeal by way of trial de novo from a judgment of Magistrate Anderson-Thompson who had convicted the respondent of this offence and sentenced him to be fined $10 and costs and in default to spend three days in custody. The full charge against Drybones was that he,

On or about the 8th of April, 1967 at Yellowknife in the Northwest Territories, being an Indian, was

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unlawfully intoxicated off a reserve, contrary to s. 94(0 of the Indian Act.

The respondent is an Indian and he was indeed intoxicated on the evening of April 8, 1967, on the premises of the Old Stope Hotel in Yellowknife in the Northwest Territories where there is no "reserve" within the meaning of the Indian Act.

When he was first arraigned before Magistrate Anderson-Thompson, Drybones, who spoke no English, pleased guilty to this offence, but on appeal to the Territorial Court, Mr. Justice Morrow found that there was some serious doubt as to whether he fully appreciated his plea in the lower court and he was allowed to withdraw that plea whereafter the appeal proceeded as a trial de novo with a plea of not guilty. Section 94 of the Indian Act reads as follows:

94. An Indian who

(a) has intoxicants in his possession,

(b) is intoxicated, or

(c) makes or manufactures intoxicants off a re-serve, is guilty of an offence and is liable on sum­mary conviction to a fine of not less than ten dollars and not more than fifty dollars or to imprisonment for a term not exceeding three months or to both fine and imprisonment.

I agree with the Court of Appeal that the use of the words "off a reserve" creates

... an essential element to be proved in any charge laid under section 94. But once it is proved, as it was in the present case, that the offence was not committed upon a reserve, the requirement of the section was satisfied. The fact that there are no reserves in the Territories is quite irrelevant,

The important question raised by this appeal has its origin in the fact that in the Northwest Territories it is not an offence for anyone except an Indian to be intoxicated otherwise than in a public place. The Liquor Ordinance which is of general application in the Territories, (R.O.N. W.T. 1957, c. 60, s. 19(1)) provides that:

No person shall be in an intoxicated condition in a public place....

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but unlike s. 94 of the Indian Act, there is no provision for a minimum fine and the maximum term of imprisonment is only 30 days as opposed to 3 months under the Indian Act.

The result is that an Indian who is intoxicated in his own home "off a reserve" is guilty of an offence and subject to a minimum fine of not less than $10 or a term of imprisonment not exceeding 3 months or both, whereas all other citizens in the Territories may, if they see fit, be-come intoxicated otherwise than in a public place without committing any offence at all. And even if any such other citizen is convicted of being intoxicated in a public place, the only penalty provided by the Ordinance is "a f i n e not exceed­ing $50 or ... imprisonment for a term not ex­ceeding 30 days or ... both fine and imprisonment."

The argument which was successfully advanced by the respondent before Mr. Justice Morrow and before the Court of Appeal was that because of this legislation, Indians in the Northwest Territories, by reason of their race, are denied "equality before the law" with their fellow Canadians, and that s. 94(b) of the Indian Act therefore authorizes the abrogation, abridgement or infringement of one of the human rights and fundamental freedoms recognized and declared as existing in Canada without discrimination by reason of race, pursuant to the provisions of the Canadian Bill of Rights, Statutes of Canada 8-9 Eliz. II, c. 44 (hereinafter sometimes referred to as "The Bill of Rights" or "The Bill") which provides, inter alia:

1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,

* * *

(b) the right of the individual to equality before the law and the protection of the law;

* * *

2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abro­gate, abridge or infringe, or to authorize the abrogation,

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abridgement or infringement of any of the rights or freedoms herein recognized and declared

* * *

5. (2) The expression 'law of Canada' in Part I means an Act of the Parliament of Canada enacted before or after the coming into force of this Act, any order, rule or regulation thereunder, and any law in force in Canada or in any part of Canada at the commencement of this Act that is subject to be repealed, abolished or altered by the Parliament of Canada.

The Court of Appeal agreed with Mr. Justice Morrow that s. 94(b) of the Indian Act is ren­dered inoperative by reason of this legislation and the Notice to appeal to this Court is limited to the single ground

That the Court of Appeal in the Northwest Ter­ritories in upholding the decision of the Territorial Court of the Northwest Territories erred in acquitting the respondent of "an offence contrary to s. 94 (b) of the Indian Act, R.S.C. 1952 Ch. 149 on the ground that s. 94 of the Indian Act is rendered inoperative by reason of the Canadian Bill of Rights, Stat. Can. 1960 Ch. 44."

It was contended on behalf of the appellant that the reasoning and conclusion of the courts below make the question of whether s. 94 has been rendered inoperative by the Bill of Rights dependent upon whether or not the law of any province or territory makes it an offence to be intoxicated otherwise than in 'a public place and that its operation could therefore not only vary from place to place in Canada but also from time to time, depending upon amendments which might be made to the provincial or territorial legislation. I can, however, find no room for the application of this argument in the present case as the or­dinance in question is a law of Canada within the meaning of s. 5(2) of the Bill of Rights (see Northwest Territories Act, R.S.C. 1952, c. 195, s. 17), and it is a law of general application in the Territories, whereas the Indian Act is, of course, also a law of Canada although it has special ap­plication to Indians alone.

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The question of whether s. 94 of the Indian Act is rendered inoperative by reason of the pro-visions of the Bill of Rights on the ground that it abrogates, abridges or infringes the right of Canadians of the Indian race to "equality before the law" was considered by the Court of Appeal of British Columbia in Regina v. Gonzale[4]', where Tysoe J.A., speaking for the majority of the Court, concluded that:

Sec. 94(a) of the Indian Act does not abrogate or infringe the right of the appellant to 'equality before the law' as I understand it. Sec. 2 of the Canadian Bill of Rights does not therefore affect it.

In reaching the same conclusion, Davey J.A., (as he then was) who wrote separate reasons for judgment from the other two members of the Court, took the view that s. 1 of the Bill of Rights should be treated as merely providing a canon of construction for the interpretation of legislation existing at the time when the statute was enacted. The learned judge said:

In so far as existing legislation does not offend against any of the matters specifically mentioned in clauses (a) to (g) of sec. 2, but is said to otherwise infringe upon some of the human rights and funda­mental freedoms declared in sec. 1, in my opinion the section does not repeal such legislation either expressly or by implication. On the contrary, it expressly recognizes the continued existence of such legislation, but provides that it shall be construed and applied so as not to derogate from those rights and freedoms. By that it seems merely to provide a canon or rule of interpretation for such legislation. The very language of sec. 2, '... be so construed and applied as not to abrogate ...' assumes that the prior Act may be sensibly construed and applied in a way that will avoid derogating from the rights and freedoms declared in sec. 1. If the prior legislation cannot be so construed and applied sensibly, then the effect of sec. 2 is exhausted, and the prior legislation must prevail according to its plain meaning.

The application of that rule of construction to existing legislation may require a change in the judicial interpretation of some statutes where the language permits and thus change the law.

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The difficulty with sec. 94(a) of the Indian Act is that it admits of no construction or application that would avoid conflict with sec. 1(b) of the Canadian Bill of Rights as appellant's counsel inter­prets it. Since the effect of the Canadian Bill of Rights is not to repeal such legislation, it is the duty of the courts to apply sec. 94(a) in the only way its plain language permits, and that the learned magis­trate did when he convicted.

This proposition appears to me to strike at the very foundations of the Bill of Rights and to convert it from its apparent character as a statutory declaration of the fundamental human rights and freedoms which it recognizes, into being little more than a rule for the construction of federal statutes, but as this approach has found favour with some eminent legal commentators, it seems to me to be important that priority should be given to a consideration of it.

I will hereafter refer to the case of Robertson and Rosetanni v. The Queen[5], but in the present context I mention it only to say that like the courts below I agree with what was said by the present Chief Justice in his dissenting reasons for judgment when commenting on the above view expressed by Mr. Justice Davey. He there said, at page 662:

With the greatest respect I find myself unable to agree with this view. The imperative words of s. 2 of the Canadian Bill of Rights, quoted above, appear to me to require the courts to refuse to apply any law, coming within the legislative authority of Parliament, which infringes freedom of religion unless it is expressly declared by an Act of Parliament that the law which does so infringe shall operate notwithstanding the Canadian Bill of Rights. As already pointed out s. 5(2), quoted above, makes it plain that the Canadian Bill of Rights is to apply to all laws of Canada already in existence at the time it came into force as well as to those thereafter enacted. In my opinion where there is irreconcilable conflict between another Act of Parliament and the Canadian Bill of Rights the latter must prevail.

I do not find that this expression of opinion in any way conflicts with the reasoning of the majority of this Court in Robertson and Rosetanni v. The Queen,

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supra, which held that there was no conflict between the impugned section of the Lord's Day Act and the Bill of Rights.

I am, however, with respect, of the opinion that Mr. Justice Davey's reasoning is untenable on another ground. The result of that reasoning is to conclude that any law of Canada which can only be "construed and applied sensibly" so that it offends against the Bill of Rights, is to operate notwithstanding the provisions of that Bill. I am unable to reconcile this interpretation with the opening words of s. 2 where it is provided that:

Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abro­gate ...

(The italics are my own.)

If Mr. Justice Davey's reasoning were correct and the Bill of Rights were to be construed as meaning that all laws of Canada which clearly offend the Bill were to operate notwithstanding its provisions, then the words which I have italicized in s. 2 would be superfluous unless it be suggested that Parliament intended to reserve unto itself the right to exclude from the effect of the Bill of Rights only such statutes as are unclear in their meaning.

It seems to me that a more realistic meaning must be given to the words in question and they afford, in my view, the clearest indication that s. 2 is intended to mean and does mean that if a law of Canada cannot be "sensibly construed and applied" so that it does not abrogate, abridge or infringe one of the rights and freedoms recognized and declared by the Bill, then such law is in-operative "unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights".

I think a declaration by the courts that a section or portion of a section of a statute is inoperative is to be distinguished from the repeal of such a section and is to be confined to the particular circumstances of the case in which the declara­tion is made. The situation appears to me to be somewhat analogous to a case where valid provincial

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legislation in an otherwise unoccupied field ceases to be operative by reason of conflicting federal legislation.

I think it is desirable at this stage to deal with the submission made on behalf of the appellant to the effect that the rights and freedoms recognized and declared by the Bill of Rights must have reference to and be circumscribed by the laws of Canada as they existed on the 10th of August, 1960, when the Bill was passed, which laws included s. 94 of the Indian Act. This sub-mission is based in large measure on the following paragraph from the reasons for judgment of this Court in Robertson and Rosetanni v. The Queen, supra, where it was said:

It is to be noted at the outset that the Canadian Bill of Rights is not concerned with 'human rights and fundamental freedoms' in any abstract sense but rather with such rights and freedoms as existed in Canada immediately before the statute was enacted (see also s. 5(1) ). It is therefore the 'religious freedom' then existing in this country that is safeguarded by the provisions of s. 2 ...

What was at issue in that case was whether the Lord's Day Act, in providing that "it shall be unlawful for any person on the Lord's Day ... to carry on or transact any business of his ordinary calling ... " abrogated, abridged or infringed the right to "freedom of religion", and it was con-tended on behalf of the appellant that the phrase "freedom of religion" as used in the Bill of Rights meant "freedom to enjoy the freedom which my own religion allows without being confined by restrictions imposed by Parliament for the purpose of enforcing the tenets of a faith to which I do not subscribe". In considering this contention, it became necessary to examine the decided cases in order to determine what was the accepted meaning of "freedom of religion" as it existed in Canada immediately before the Bill of Rights was enacted and the last-quoted excerpt from the reasons for justment must, in my view, be read in this sense. This appears to me to be confirmed by the succeeding paragraph of these reasons where it is said:

It is accordingly of first importance to understand the concept of religious freedom which was recog­nized in this country before the enactment of the

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Bill of Rights and after the enactment of the Lord's Day Act in its present form.

If it had been accepted that the right to "freedom of religion" as declared in the Bill of Rights was circumscribed by the provisions of the Ca­nadian statutes in force at the date of its enactment, there would have been no need, in determining the validity of the Lord's Day Act to consider the authorities in order to examine the situation in light of the concept of religious freedom which was recognized in Canada at the time of the enactment of the Bill of Rights. It would have been enough to say that "freedom of religion" as used in the Bill must mean freedom of religion subject to the provisions of the Lord's Day Act. This construction would, however, have run contrary to the provisions of s. 5(2) of the Bill which makes it applicable to every "Act of the Parliament of Canada enacted before or after the coming into force of this Act."

In any event, it was not necessary to decide this question in Robertson and Rosetanni because it was found that the impugned provisions of the Lord's Day Act and the Bill of Rights were not in conflict, and I accordingly do not consider that case to be any authority for the suggestion that the Bill of Rights is to be treated as being subject to federal legislation existing at the time of its enactment, and more particularly I do not con­sider that the provisions of s. 1(b) of the Bill of Rights are to be treated as being in any way limited or affected by the terms of s. 94(b) of the Indian Act.

The right which is here at issue is "the right of the individual to equality before the law and the protection of the law". Mr. Justice Tysoe, who wrote the reasons for judgment on behalf of the majority of the Court of Appeal of British Columbia in the Gonzales case, supra, expressed the opinion that as these words occur in the Bill of Rights they mean

A right of every person to whom a particular law relates or extends, no matter what may be a person's race, national origin, colour, religion or sex, to stand on an equal footing with every other person to whom a particular law relates or extends and a right to the protection of the law.

(The italics are Mr. Justice Tysoe's)

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Like the members of the courts below, I can-not agree with this interpretation pursuant to which it seems to me that the most glaring discriminatory legislation against a racial group would have to be construed as recognizing the right of each of its individual members "to equality before the law", so long as all the other members are being discriminated against in the same way.

I think that the word "law" as used in s. 1(b) of the Bill of Rights is to be construed as mean­ing "the law of Canada" as defined in s. 5(2) (i.e. Acts of the Parliament of Canada and any orders, rules or regulations thereunder) and without attempting any exhaustive definition of "equality before the law" I think that s. 1(b) means at least that no individual or group of individuals is to be treated more harshly than another under that law, and I am therefore of opinion that an individual is denied equality be-fore the law if it is made an offence punishable at law, on account of his race, for him to do something which his fellow Canadians are free to do without having committed any offence or having been made subject to any penalty.

It is only necessary for the purpose of deciding this case for me to say that in my opinion s. 94(b) of the Indian Act is a law of Canada which creates such an offence and that it can only be construed in such manner that its appli­cation would operate so as to abrogate, abridge or infringe one of the rights declared and recog­nized by the Bill of Rights. For the reasons which I have indicated, I am therefore of opinion that s. 94( b) is inoperative.

For the purpose of determining the issue raised by this appeal it is unnecessary to express any opinion respecting the operation of any other section of the Indian Act.

For all the above reasons I would dismiss this appeal.

Since writing the above I have had the advan­tage of reading the reasons for judgment pre-pared by the Chief Justice and by Mr. Justice Pigeon which, when read together, appear to me to lead to the conclusion that, even on the as­sumption that the application of the provisions of prior federal legislation has the effect of denying equality before the law, and thus discriminating

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against, a sector of the population "by reason of race", they must nevertheless be given full effect notwithstanding the provisions of the Bill of Rights. In view of this conclusion, I find it necessary to restate the position which I take in the matter.

I am in full agreement with the Chief Justice that the question here raised was not decided in the case of Robertson and Rosetanni v. Her Majesty the Queen, supra, and that this is the first occasion on which it has become necessary for this Court to decide it.

In my view under the provisions of s. 1 of the Bill of Rights "the right of the individual to equality before the law" "without discrimination by reason of race" is recognized as a right which exists in Canada, and by ss. 2 and 5 of that Bill it is provided that every law of Canada enacted before or after the coming into force of the Bill, unless Parliament makes an express declaration to the contrary, is to be "so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgement or infringement" of any of the rights so recognized and declared.

It may well be that the implementation of the Canadian Bill of Rights by the courts can give rise to great difficulties, but in my view full effect must be given to the terms of s. 2 thereof.

The present case discloses laws of Canada which abrogate, abridge and infringe the right of an individual Indian to equality before the law and in my opinion if those laws are to be applied in accordance with the express language used by Parliament in s. 2 of the Bill of Rights, then s. 94(b) of the Indian Act must be declared to be inoperative.

It appears to me to be desirable to make it plain that these reasons for judgment are lim­ited to a 'situation in which, under the laws of Canada, it is made an offence punishable at law on account of race, for a person to do something which all Canadians who are not members of that race may do with impunity; in my opinion the same considerations do not by any means apply to all the provisions of the Indian Act.

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ABBOTT J. (dissenting)‑The relevant facts, which are undisputed, are set out in the reasons of my brothers Ritchie and Pigeon which I have had the advantage of reading.

The interpretation of the Bill of Rights, adopted by the courts below, necessarily implies a wide delegation of the legislative authority of Parlia­ment to the courts. The power to make such a delegation cannot be questioned but, in my view, it would require the plainest words to impute to Parliament an intention to extend to the courts, such an invitation to engage in judicial legisla­tion. I cannot find that intention expressed in s. 2 of the Bill. On the contrary, I share the opinion expressed by the Chief Justice, by my brother Pigeon and by Davey J.A., as he then was, in the Gonzales case that, with respect to existing legislation, the section provides merely a canon or rule of interpretation for such legislation.

I would dispose of the appeal as proposed by my brother Pigeon.

HALL J.‑I agree with the reasons of my brother Ritchie and wish only to add some ob­servations regarding the decision in Regina v. Gonzales[6].

The concept that the Canadian Bill of Rights is operative in the face of a law of Canada only when that law does not give equality to all per-sons within the class to whom that particular law extends or relates, as it was expressed by Tysoe J.A. at p. 264:

Coming now to sec. 1(b) of the Canadian Bill of Rights. The meaning of the word "equality" is well known. In my opinion, the word "before" in the expression "equality before the law," in the sense in which that expression is used in sec. 1(b) means "in the presence of." It seems to me this is the key to the correct interpretation of the expression and makes it clear that "equality before the law" has nothing to do with the application of the law equally to everyone and equal laws for everyone in the sense for which appellant's counsel contends, namely, the same laws for all persons, but to the position occupied by persons to whom a law relates or

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extends. They shall be entitled to have the law as it exists applied equally and without fear or favour to all persons to whom it relates or extends.

is analogous to the position taken by the Supreme Court of the United States in Plessy v. Ferguson[7] and which was wholly rejected by the same Court in its historic desegregation judgment Brown v. Board of Education[8].

In Plessy v. Ferguson, the Court had held that under the "separate but equal" doctrine equality of treatment is accorded when the races are provided substantially equal facilities even though these facilities be separate. In Brown v. Board of Education, the Court held the "separate but equal" doctrine to be totally invalid.

The social situations in Brown v. Board of Education and in the instant case are, of course, very different, but the basic philosophic concept is the same. The Canadian Bill of Rights is not fulfilled if it merely equates Indians with Indians in terms of equality before the law, but can have validity and meaning only when subject to the single exception set out in s. 2 it is seen to repudiate 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.

PIGEON J. (dissenting)‑The respondent is an Indian and the following charge was made against him before a magistrate in the Northwest Territories, namely that he,

On or about. the 8th of April, 1967 at Yellowknife in the Northwest Territories, being an Indian, was unlawfully intoxicated off a reserve, contrary to s. 94(b) of the Indian Act.

Respondent pleaded guilty and was sentenced to a fine of $10 and costs. On his appeal to the Territorial Court, he was allowed to withdraw

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his plea of guilty. Having then pleaded not guilty, he raised the contention that s. 94(b) of the Indian Act has been rendered inoperative by the Canadian Bill of Rights (8-9 Eliz. 11, c. 44, hereinafter called the "Bill"). This contention was accepted by the Mr. Justice Morrow and the charge dismissed.

On appeal by the Crown to the Court of Appeal for the Northwest Territories[9], that Court refused to follow the contrary decision of the Court of Appeal of British Columbia in Regina v. Gonzales[10] and affirmed the acquittal.

The Crown now appeals to this Court by special leave.

The question before us is essentially whether, in respect of existing federal legislation, Section 2 of the Bill enacts a canon of construction or casts upon the courts the task of removing there-from, whenever the question is raised, every pro-vision that may be considered as being in conflict with the enumerated rights and freedoms. In. thus stating the question I am not unmindful of the fact that, due to the definition in Section 5.2 of the expression "law of Canada", Section 2 applies to subsequent federal statutes equally as to exist­ing legislation. However, because different con­siderations may conceivably apply in the case of subsequent statutes, I find it desirable to go no further than necessary for the decision of the case at hand which has to do with existing legis­lation.

Before considering any enacting clause I must note that the Bill is prefaced by a preamble, as follows :

The Parliament of Canada, affirming that the Canadian Nation is founded upon principles that acknowledge the supremacy of God, the dignity and worth of the human person and the position of the family in a society of free men and free institutions;

Affirming also that men and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law:

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And being desirous of enshrining these principles and the human rights and fundamental freedoms derived from them, in a Bill of Rights which shall reflect the respect of Parliament for its constitutional authority and which shall ensure the protection of these rights and freedoms in Canada:

Then, after the enacting formula and the title "Part I- Bill of Rights", s. 1 is in the following terms :

1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, na­tional origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,

(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;

(b) the right of the individual to equality before the law and the protection of the law;

(c) freedom of religion;

(d) freedom of speech;

(e) freedom of assembly and association; and

(f) freedom of the press.

In considering the provisions just quoted, one must observe that the Bill itself begins by a solemn declaration by Parliament in the form of an enactment that, in Canada, the enumerated rights and freedoms "have existed and shall con­tinue to exist ... ". This statement is the essen­tial element of the very first provision of the Bill and it is absolutely unqualified. It is the starting point of that legislation and I have great difficulty in reconciling it with the contention that in fact those rights and freedoms were not wholly and completely existing but were restricted by any number of statutory and other provisions in-fringing thereon.

There can be no doubt that in enacting legislation Parliament is presumed to be aware of the Late of the law (Walker v. The King[11]). A fortiori must it be so when the enactment itself has reference thereto. Where is the extent of exist­ing human rights and fundamental freedoms to be ascertained if not by reference to the statute books and other legislative instruments as well as to the decisions of the courts?

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It must also be considered that the rights and freedoms enumerated in s. 1 are not legal con­cepts of precise and invariable content. If those words were to be taken by themselves, a great deal would be left undefined. However, by de­claring those rights and freedoms as they existed a large measure of precision was supplied. Is this not an important purpose of s. 1 and a very effective way of defining some key words of the enactment?

In the instant case, the question whether all existing legislation should be considered as in accordance with the non-discrimination principle cannot fail to come immediately to mind seeing that it arises directly out of head 24 of s. 91 of the B.N.A. Act whereby Parliament has exclusive legislative authority over "Indians, and Lands reserved for the Indians". As was pointed out by Riddell J. in Rex v. Martin[12], this provision confers legislative authority over the Indians qua Indians and not otherwise. Its very object in so far as it relates to Indians, as opposed to Lands reserved for the Indians, is to enable the Parliament of Canada to make legislation applicable only to Indians as such and therefore not applicable to Canadian citizens generally .l This legislative authority is obviously intended to be exercised over matters that are, as regards persons other than Indians, within the exclusive legislative authority of the Provinces. Complete uniformity in provincial legislation is clearly not to be expected, not to mention the fact that further diversity must also result from special legislation for the territories. Equality before the law in the sense in which it was understood in the Courts below would require the Indians to be subject in every province to the same rules of law as all others in every particular not merely on the question of drunkenness. Outside the territories, provincial jurisdiction over education and health facilities would make it very difficult for federal authorities to provide such facilities to Indians without "discrimination" as understood in the Courts below.

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If one of the effects of the Canadian Bill of Rights is to render inoperative all legal pro-visions whereby Indians as such are not dealt with in the same way as the general public, the conclusion is inescapable that Parliament, by the enactment of the Bill, has not only funda­mentally altered the status of the Indians in that indirect fashion but has also made any future use of federal legislative authority over them subject to the requirement of expressly declaring every time "that the law shall operate notwith­standing the Canadian Bill of Rights". I find it very difficult to believe that Parliament so in-tended when enacting the Bill. If a virtual suppression of federal legislation over Indians as such was meant, one would have expected this important change to be made explicitly not sur­reptitiously so to speak.

In s. 2, the crucial words are that every law of Canada shall, subject to the exception just noted, "be so construed and applied as not to abrogate, abridge or infringe" any of the rights and freedoms recognized and declared in the Bill. The question is whether those words enact something more than a rule of construction. Of themselves, it seems to me that they do not. Certainly the word "construed" implies nothing else. Does the word "applied" express a differ­ent intention? I do not think so and, even if this may appear a trite saying, I must point out that what respondent asks the Court to do and what the Courts below have effectively done is not to apply the statute, the Indian Act, but to decline to apply it.

The strongest argument against viewing s. 2 as a canon of construction is undoubtedly that the exception "unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights" is thereby deprived of any practical meaning. It cannot be denied that the operation of a rule of construction is not normally subject to such a qualification. On the contrary, the principle is that it has no effect against the clearly expressed will of Parliament in whatever form it is put.

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On the other hand, in seeking to give effect to some words in s. 2 that cannot for obvious reasons be applicable to any existing law, one must always bear in mind the very starting point of the Bill, namely that the rights and freedoms therein recognized are declared as existing, not as being introduced or expanded. If in s. 1 the act means what it says and recognizes and de­clares existing rights and freedoms only, nothing more than proper construction of existing laws in accordance with the Bill is required to accom­plish the intended result. There can never be any necessity for declaring any of them inop­erative as coming in conflict with the rights and freedoms defined in the Bill seeing that these are declared as existing in them. Thus, it ap­pears to me that s. 2 cannot be construed as suggested by respondent without coming in con­flict with s. 1.

If, with respect to existing legislation, we had to choose between reading s. 1 as written and failing to adopt a construction of s. 2 that gives some meaningful effect to the exception, it seems to me that the choice should be in favour of giving paramount effect to s. 1. It is the pro-vision establishing the principle on which the whole act rests.

Another compelling reason is the presumption against implicit alteration of the law, Parliament must not be presumed to have intended to depart from the existing law any further than expressly stated (Maxwell, On Interpretation of Statutes, 9th ed., p. 84, cited in Duchesneau v. Cook[13]). In the present case, the judgments below hold in effect that Parliament in enacting the Bill has implicitly repealed not only a large part of the Indian Act but also the fundamental principle that the duty of the courts is to apply the law as written and they are in no case authorized to fail to give effect to the clearly expressed will of Parliament. It would be a radical departure from this basic British constitutional rule to enact that henceforth the courts are to declare inoperative all enactments that are considered as not in con­formity with some legal principles stated in very

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general language, or rather merely enumerated without any definition.

The meaning of such expressions as "due proc­ess of law", "equality before the law", "freedom of religion", "freedom of speech", is in truth largely unlimited and undefined. According to in­dividual views and the evolution of current ideas, the actual content of such legal concepts is apt to expand and to vary as is strikingly apparent in other countries. In the traditional British system that is our own by virtue of the B.N.A. Act, the responsibility for updating the statutes in this changing world rests exclusively upon Parlia­ment. If the Parliament of Canada intended to depart from that principle in enacting the Bill, one would expect to find clear language ex-pressing that intention. On the contrary, what do we find in s. 1 but an apparent desire to adhere to the traditional principle and to avoid the uncertainties inherent in broadly worded enactments by tying the broad words to the large body of existing law and in effect declaring the recognized human rights and fundamental freedoms to be as existing in the laws of Canada.

I fail to see how it can be considered that by taking this to be the fundamental intention, the apparent character of the Bill is not fully recog­nized. I also fail to see how it can be said that to read s. 2 as little more than a rule of construction is to fail to give effect to the Bill. On what basis is it assumed that anything else was intended in an act that is not of a constitutional character?

That canons of construction are of less im­portance than constitutional rules does not mean that they are of minimal importance. For instance, in our legal system, the rule against retrospective operation of enactments as well as the principle that a criminal offence requires means rea are nothing more than canons of construction. It certainly does not mean that they are of secondary importance. Decisions such as Beaver v. The Queen[14],

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The Queen v. King[15] clearly show how far-reaching such principles are. If the Canadian Parliament should consider it desirable to en-shrine them in a statute, would it be contended that those who subsequently read it as not alter­ing their fundamental nature and letting them remain canons of construction are failing to give it effect?

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.

For those reasons I would allow the appeal, reverse the judgments of the Court of Appeal and of the Territorial Court of the Northwest Territo­ries, and re-establish the conviction and sentence. In view of the terms of the order granting leave to appeal, it is presumed that suitable arrange­ments have been made for the costs of re-presentation of the respondent and therefore, no order requires to be made in that regard.

Since writing the above I have had the ad-vantage of reading the reasons of the Chief Justice and I wish to add that I agree with his observations entirely.

Appeal dismissed, Cartwright C.J. and Abbott and Pigeon JJ. dissenting.

Solicitor for the appellant: D. S. Maxwell, Ottawa.

Solicitor for the respondent: G. B. Purdy, Yellowknife.

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