1. Canadian Bill of Rights (1960)
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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
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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
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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
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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)
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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”
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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.
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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
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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”
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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
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