“The Decision of the (20th) Century”
In R v Drybones the Supreme Court of Canada, in a divided judgment called by some the decision of the century, rendered inoperative a provision of the Indian Act, basing its judgment on the “equality before the law” clause of the Canadian Bill of Rights.
However, when the time came to tell Mr. Drybones of his momentous, legal victory, a dog team had to be sent to find him. It seems Mr. Drybones was getting on with the ‘important things in his life’—like extracting a living from the wilderness.
Joseph Drybones, an Aboriginal man, was drunk on the evening of April 8, 1967 at the Old Stope Hotel in Yellowknife, NWT where no “reserve”, as defined in the Indian Act, existed. Mr. Drybones was charged with being unlawfully intoxicated off a reserve, contrary to s. 94(b) of the Indian Act.
The Trial Decision
Mr. Drybones was first arraigned before Magistrate Anderson-Thompson. He spoke no English and was not represented by counsel. Mr. Drybones pled guilty to the charge and on April 10, 1967, he was sentenced to pay a fine of $10 plus the costs of the proceedings.
Appeal to the Territorial Court of the Northwest Territories
Mr. Drybones, who was now represented by a lawyer, appealed the guilty verdict to the Territorial Court of the Northwest Territories on legal and factual grounds. Mr. Drybones did not understand English, creating serious doubt that he understood his plea in the lower court. Therefore, the Territorial Court allowed him to withdraw his guilty plea and the appeal proceeded as a trial de novo with a plea of “not guilty.” A trial de novo is a new trial before another tribunal than the one that held the first trial. It is usually ordered by an appellate court when the original trial is found to be unfair in some way. Mr. Drybones made an application to include the Canadian Bill o Rights as a further ground of appeal.
Mr. Drybones’ lawyer argued that his client was not, in fact, an “Indian” within the meaning of the Indian Act. This argument did not succeed because the Regional Director of Indian Affairs had official records proving that Mr. Drybones was an “Indian”, as defined by the Indian Act.
Mr. Drybones argued that since there were no Indian reserves in the Northwest Territories, it would not be possible for him to be “off a reserve” within the meaning of s. 94 of the Indian Act. The court looked at precedent cases, which suggested that “off a reserve” is an important element of the offence charged. In order to be “intoxicated off a reserve” there must be a reserve to be off of. However, Justice Morrow of the Territorial Court did not apply these precedents and found that the words “off a reserve” were not essential to the charge.
Mr. Drybones argued that section 94 of the Indian Act offended “the right of the individual to equality before the law and the protection of the law…”, set out in s. 1(b) of the Bill of Rights.
The key issue raised by the appeal was the fact that it was not an offence for anyone except an Indian to be intoxicated elsewhere than in a public place. In other words, all non-Indian inhabitants of the Northwest Territories could be drunk as long as they were not in a public place. The legislation, which applied to all other Canadian citizens in the NWT, had no minimum penalty and did not make it an offence to be drunk in one’s own home. This placed Aboriginal people, because of their race, in a different position from that of other Canadians. The Territorial Court agreed and acquitted Mr. Drybones of the charges. The court held that the intoxication sections of the Indian Act “abrogate, abridge or infringe” the Bill of Rights and were therefore inoperative.
Appeal to the Court of Appeal for the Northwest Territories The crown appealed the decision of Territorial Court to the Court of Appeal for the Northwest Territories. The Court of Appeal dismissed the appeal, agreeing with the reasons of the Territorial Court. In the decision, the Court of Appeal emphasized the importance of examining the effect of the legislation, not its purpose. Since the effect of s. 94 of the Indian Act was discrimination against Aboriginal people, the Court of Appeal agreed with the lower court’s ruling that the section was inoperative under section 1(b) of the Bill of Rights.
Appeal to the Supreme Court of Canada
The crown applied for permission to have the case heard by the Supreme Court of Canada. Six of the nine judges agreed with the decision of the Court of Appeal. The majority found that in the Northwest Territories it was not an offence for anyone except an “Indian” to be intoxicated anywhere other than in a public place. Therefore, the Indian Act made it an offence for an Aboriginal person to be intoxicated in his or her own home, while all other citizens may be intoxicated anywhere but a public place.
In the majority decision, Justice Ritchie stated:
“…I think that s.1(b) [of the Canadian Bill of Rights] 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 the opinion that 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.” (p.297)
Due to this difference in treatment, Mr. Drybones successfully argued that Aboriginal people were denied “equality before the law” and that s. 94(b) of the Indian Act authorized the abrogation, abridgement or infringement of one of the human rights protected by the Canadian Bill of Rights, contrary to s. 2 of the Canadian Bill of Rights.
However, the Supreme Court of Canada disagreed with the lower courts in that it did not declare all of s. 94 inoperative. The court stated that declaring a section or portion of a section of a statute inoperative is different from repealing the entire section. Only the portions of the statute that apply to the specific circumstances of the case can be declared inoperative. Therefore, the Supreme Court of Canada only declared s. 94(b) inoperative (not the entire section).
The Dissenting Opinions of the Supreme Court of Canada
The three dissenting judges discussed the intention of parliament and concluded that there was nothing in the language of the Canadian Bill of Rights to suggest that parliament intended to enable the courts to usurp the clearly expressed will of parliament in statutes. They felt that parliament was instructing the courts to construe and apply laws in accordance with the principles outlined in the Canadian Bill of Rights, but not to render laws inoperative.
The Crown’s appeal was dismissed and Mr. Drybones’ acquittal was upheld. Parliament repealed s. 94 of the Indian Act in 1971.
Source: Land Mark Case – http://www.ojen.ca/sites/ojen.ca/files/sites/default/files/resources/Drybones%20English.pdf