Kruger et al. v. The Queen

Supreme Court of Canada – [1978] 1 S.C.R. 104


British Columbia Application of laws to AboriginalsJurisdiction over Indians
Summary

The Supreme Court develops the criteria to determine whether a law is of general application or not. It also develops a doctrine on a presumption of constitutionality, that dictates that if a provincial act is presumed to be valid, it will apply to Aboriginal peoples whether they have aboriginal rights or not.

This case is partly obsolete since the coming in force of the Constitutional Act of 1982.

Issue

Is the Wildlife Act a law of general application that falls under the scope of sect. 88 of the Indian Act?

Decision

Yes, the Wildlife Act is a law of general application, and Indians should respect it (unanimous decision).

Parties

Between: Jacob Kruger and Robert Manuel

And: British Columbia Crown

Facts

Kruger and Manuel are members of the Penticton Indian Band of British Columbia. They are not treaty Indians.

In 1973, they went hunting for food on unoccupied land near their reserve and killed four deer out of deer hunting season. They were accused of hunting without the license issued for Aboriginal people to hunt out of season under the Wildlife Act. They had held permits in the past

Arguments

Kruger and Manuel: The Wildlife Act is not a law of general application because it applies differently to Indians and to non-Indians, which makes it inapplicable to them as Indians because of the provision of sect. 88.

The Crown: The Wildlife Act is a law of general application for the purposes of the management and conservation of resources.

Decision of the lower courts

Provincial Court of British Columbia (1973): Kruger and Manuel were found guilty of killing big game out of the prescribed season in violation of sect. 4 (1) (c) of the Wildlife Act.

County Court of British Columbia (1974): Kruger and Manuel are not guilty, because their right to hunt is protected by the Royal Proclamation of 1763. As a result, the relevant prohibitions of the Wildlife Act do not apply to them.

British Columbia Court of Appeal (1975): The convictions are re-established. Sect. 88 of the Indian Act had the effect of subjecting Indians to laws of general application.

Reasons for Judgement

Jury

Laskin, Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz, de Grandpré

Reason

Two factors are important in assessing whether or not a piece of legislation was of general application. Firstly, the law has to apply consistently throughout the territory of the province. Secondly, its object and intent must not be “in relation to” one class of citizens. If the piece of legislation applies only to one class of citizens, then it is not a law of general application.

In the case of Kruger and Manuel, it was clear that the first criterion was fulfilled. As for the second, even if the Wildlife Act has greater consequences for a particular group, that is, Indians, this does not necessarily affect its nature of being of general application.

Since laws are assumed to be valid unless evidence is produced to the effect that they infringe on the “Indianness” or capacities of the Indians, proof had to be supplied to the court. Therefore, the Court decided that the Wildlife Act was applicable to Kruger and Manuel.

Impact

The case elaborated a doctrine called the “presumption of constitutionality” which purported that enactments were assumed to be constitutional and had to be put in force, albeit the consequence might be to abrogate or extinguish an Aboriginal right. After the advent of the Canadian Charter of Rights and Freedoms in 1982, the Court held that the presumption of constitutionality was an obsolete doctrine.

Related Cases

Cardinal v. Attorney general for Alberta, [1974] S.C.R. 695

 Dick v. The Queen, [1985] 2 S.C.R. 309

R. v. White and Bob (1965), 52 D.L.R. (2d) 481

aller vers le haut