The Queen v. Drybones

Supreme Court of Canada – [1970] S.C.R. 282

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Northwest Territories Criminal lawDiscriminationIndian Act

Issue

Does s. 94 of the Indian Act, which provides that an Indian who is drunk outside of a reserve is guilty of a criminal offence, violate the Canadian Bill of Rights? Is it therefore inoperative?

Decision

The provision that an Indian who is drunk outside of a reserve is guilty of an offence violates the Bill of Rights and must be declared inoperative (5 against 4).

Parties

Between: The Crown of Canada

And: Joseph Drybones

Facts

In 1967, Joseph Drybones, a status Indian from the Northwest Territories, was found inebriated on the grounds of the Old Stope Hotel in Yellowknife.

He was consequently accused of being unlawfully inebriated off a reserve contrary to s. 94 (b) of the Indian Act even though there are no Indian reserves in the Northwest Territories. The Indian Act imposed a more severe punishment for the offence of public drunkenness than the Liquor Ordinance applicable to non-Indians.

He was sentenced to a $10 fine and costs.

Arguments

Drybones: The Indian Act deprives Indians of the equality before the law which is afforded to other Canadians, on the basis of race. Section 94 (b) of the Indian Act then permits the abrogation, abridgement or infringement of one of the human rights and fundamental freedoms recognized and guaranteed to every individual in Canada.

The Crown: Parliament has legislative power over Indians and therefore its treatment of Indians will inevitably be differential without necessarily being discriminatory. The Bill of Rights has to be viewed as being an interpretative tool for assessing legislation, not as overriding the sovereignty of Parliament.

Decision of the lower courts

Northwest Territories Territorial Court (1967): The trial judge acquitted the accused of the charges against him because he found that the provisions of the Indian Act were contrary to the Canadian Bill of Rights. Drybones initially pleaded guilty but was able to withdraw his plea because the judge felt that he did not fully appreciate the consequences attached since he did not speak English.

Northwest Territories Court of Appeal (1967): The Court confirmed the trial judge’s decision.

Reasons for Judgement

Jury

Fauteux, Martland, Judson, Ritchie Spence

Reason

Hall wrote concurring reasons.

Being intoxicated in a public place is not an offence for any citizens of the Northwest Territories except for Indians.

Section 94 (b) should be declared inoperative because it violates s. 1 of the Bill of Rights, which recognizes equality before the law for every individual without discrimination based on race.

The provisions of the Bill of Rights, enacted in 1960, are retroactive, meaning that they are applied to every law of Parliament enacted before or after its coming into force, subject to an explicit clause exempting the statute from the application of the Bill of Rights.

Impact

The Drybones case was a great victory for Canada’s Aboriginal peoples and civil liberties activists alike. The most important effect of the decision was to strike down s. 94 (b) of the Indian Act.

Although there were hopes that it would open the door to other verdicts of discrimination, Drybones was largely an isolated case (Beaudouin, 2002). Four years later, the majority in Lavell rejected the argument aimed at rendering a discriminatory provision of the Indian Act towards Indian women inoperative because in doing so, the Indian Act would have to be rendered inoperative itself since it establishes a special regime of rights for Indians (Hogg, 2008).