R. v. Francis

Supreme Court of Canada – [1988] 1 S.C.R. 1025

New Brunswick Application of laws to AboriginalsIndian Act

This case maintains the rejection of the enclave theory developed in Cardinal. A provincial legislation of general application must apply on reserve in absence of a federal legislation to the contrary.

It specifies that a provincial and a federal legislation dedicated to the same thing can apply simultaneously.


Can the New Brunswick Motor Vehicle Act be applied on a reserve, and is it in conflict with the Indian Reserve Traffic Regulations?


Yes, the New Brunswick Motor Vehicle Act can apply on reserve since it is a legislation of general application, and it is not in conflict with federal law. Both Acts create the same infraction, and both apply (unanimous decision).


Between: Leo Tyler Francis

And: the New Brunswick Crown

Interveners: Quebec, Nova Scotia, British Columbia and Alberta


Francis was found guilty of a traffic offence under the New Brunswick Motor Vehicle Act. He was arrested for failing to yield the right-of-way when entering a highway from a driveway so that he collided with another vehicle on the highway.

The transgression took place on an Indian reserve. On reserves, the Indian Reserve Traffic Regulations enacted by the federal government can also be applied.


Francis: He can only be accused and found guilty under the Indian Reserve Traffic Regulations adopted pursuant to the Indian Act, which allows the Governor in Council to enact regulations in order to limit the speeding, operation and parking of vehicles on roads within reserves. Since there was federal legislation on the same subject as a provincial statute, the federal law is the one applicable in this case.

The New Brunswick Crown: Provincial laws of general application hold for Aboriginal people on reserves as long they do not conflict with federal legislation.

Interveners: Quebec, Nova Scotia, British Columbia and Alberta support the Crown’s arguments. Canada did not intervene, because it was provincial legislation that was being contested.

Decision of the lower courts

Provincial Court (1983): Francis is convicted of the offence.

Court of Queen’s Bench (1984): The conviction is maintained.

New Brunswick Court of Appeal (1985):  The conviction is maintained. There was no conflict between the Regulations and the Motor Vehicle Act since the federal regulation did not incorporate the provincial law by reference but only said that both Indians and non-Indians must comply with provincial laws of general application, such as traffic laws, while on reserves.

Reasons for Judgement


Dickson, Beetz, Estey, McIntyre, Lamer, Wilson, Le Dain, La Forest, L’Heureux-Dubé


The lower courts’ verdicts of conviction are confirmed, but for different reasons.

Provincial laws of general application apply on reserves as long as they do not conflict with federal statutes. To argue the contrary would be equal to reviving the “enclave” theory, which was rejected in Cardinal.

The Regulations did make reference to the Motor Vehicle Act and incorporated it as a federal law. Even if the Act was incorporated into a federal law, this does not render the provincial statute inapplicable. A federal and a provincial statute where one is the replica of the other may coexist with one another, and a subject can be charged in violation of one or the other.

Since the Motor Vehicle Act is not inconsistent with the Regulations, the provincial law can be enforced on reserves. Francis’ conviction is maintained.


The main reason that Parliament chose to refer to provincial legislation in the Regulations is that it wanted to make the penalties for traffic violations uniform across Canada if the offence occurred on a reserve. Subsequent legal proceedings determined that the provincial Motor Vehicle Act cannot be applied if the offence occurs on a private reserve road, if its use is restricted to band members (R. v. Thunderchild), or if the public road has not been surrendered to the Crown by the band (Skerrywore Ratepayers’ Assn. v. Shawanaga Indian Band).

Related Cases

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


Skerrywore Ratepayers’ Assn. v. Shawanaga Indian Band (1993), 16 O.R. (3d) 390 (Ont. C.A.)

R.v. Thunderchild (1995), [1996] 1 C.N.L.R. 206 (Sask. Q.B.)

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