Canadian Bill of Rights (1960)

1. Canadian Bill of Rights (1960)

2. Canadian Bill of Rights • Ordinary Act of Parliament • Not part of Constitution • Two fundamental defects: • Applied only to Federal laws • Courts very reluctant to enforce against offending legislation • Parliamentary supremacy; no tradition of judicial review

3. R. v Drybones • One major exception • SCC willing to apply Bill of Rights to strike down Section 94 of Federal Indian Act • Section 94 of Federal Indian Act made it illegal for an Indian to be intoxicated off reserve in NWT

4. R. v Drybones, cont’d • 94. An Indian who • (a) has intoxicants in his possession • (b) is intoxicated, or • (c) makes or manufactures intoxicants off a reserve, is guilty of an offence and is liable on summary conviction to a fine of no 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

5. R. v Drybones, cont’d • Non-Indians subject to less stringent limitation, that is… “Persons other than Indians are only liable to a penalty or fine or imprisonment if they are intoxicated in a public place, Liquor Ordinance R.O.N.W.T. 1956, c. 60, s. 19(1).” (p. 270)

6. R. v Drybones, cont’d • SCC struck down Sec 94 on grounds of violation of Section 1b, Canadian Bill of Rights, which recognized: “the right of the individual to equality before the law and the protection of the law”

7. R. v Drybones, cont’d • Seemed to signal willingness of SCC to strike down Federal legislation if in conflict with Bill of Rights • Seemed to signal shift from Parliamentary supremacy to judicial review • BUT: Although Drybones never overruled, in future Court very reluctant to continue in similar fashion • Courts bent over backwards to interpret Bill of Rights so as to avoid conflict with legislation.

8. Canada (A.G.) v Lavell [1974] • Infamous example of SCC’s reluctance • According to Indian Act, woman who married non-Aboriginal man abdicated Aboriginal status • According to same Act, man who married non-Aboriginal woman retained Aboriginal status

9. Canada (A.G.) v Lavell [1974], cont’d • SCC refused to apply equality principles invoked in Drybones to strike down offending sections of Indian Act • Reverted to very formal notion of “the right of the individual to equality before the law and the protection of the law”

10. Canada (A.G.) v Lavell [1974], cont’d • Act applied equally to all Aboriginal women • Therefore, no violation of equality before the law and the protection of the law