Attorney General of Canada et al. v. Canard

Attorney General of Canada et al. v. Canard
Collection
Supreme Court Judgments
Date
1975-01-28
Report
[1976] 1 SCR 170
Judges
Laskin, Bora; Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Beetz, Jean
On appeal from
Manitoba
Subjects
Constitutional law
Courts
Decision Content
Supreme Court of Canada
Attorney General of Canada et al. v. Canard, [1976] 1 S.C.R. 170
Date: 1975-01-28
The Attorney General of Canada and William Barber Rees (Defendants) Appellants;
and
Flora Canard (Plaintiff) Respondent;
and
The National Indian Brotherhood and The Manitoba Indian Brotherhood Intervenants.
1974: March 7, 8; 1975: January 28.
Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon and Beetz JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA
Constitutional law—Indians—Appointment by Minister of official as administrator of estate—Legislation and Regulations relating to estates of deceased Indians—Validity—No conflict with Bill of Rights—Meaning of “ordinarily reside on a reserve”—Indian Act, R.S.C. 1970, c. I‑6, ss. 4(3), 42, 43—Canadian Bill of Rights, R.S.C. 1970, App. III, s. 1(b)—British North America Act, 1867, s. 91(24).
Courts—Jurisdiction of Supreme Court of Canada—Supreme Court Act, R.S.C. 1970, c. S-19, s. 47—Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10.
The respondent’s husband, C, an Indian of the Fort Alexander Indian Reserve in Manitoba, was killed in a traffic accident on July 6, 1969. He died intestate. C and his wife had made their home on the reserve since 1964. In 1967 and 1968, C was employed for several weeks each summer on a farm at St. Andrews, Manitoba, and on those occasions he and his family would move to the farm, complete the work that was to be done, and then move back to the reserve. In 1969, C was again employed on the same farm, but had moved his family to the farm and commenced his employment only two days before his death. His wife then moved back to their home on the reserve.
On December 1, 1969, the second appellant, R, a departmental officer, was appointed to be administrator of C’s estate by the Minister of Indian Affairs and Northern Development pursuant to ss. 42 and 43 of the Indian Act, R.S.C. 1952, c. 149 (now R.S.C. 1970, c. I-6). In that capacity, on March 1, 1970, he commenced an action in the Manitoba Court of Queen’s Bench, claiming damages from three defendants in respect of the accident resulting in the death of C.
On March 18, 1970, pursuant to an application made by the respondent, letters of administration were issued to her by the Surrogate Court of the Eastern Judicial District of Manitoba. The Minister of Indian Affairs and Northern Development had not given to that Court his consent to the exercise of testamentary jurisdiction under s. 44 of the Indian Act in relation to the estate of C. In her capacity as administratrix of the estate of her late husband, the respondent also commenced an action in the Court of Queen’s Bench on July 6, 1970, against the same three defendants and against a fourth one.
The respondent then commenced an action against the appellants, claiming a judgment declaring that the Indian Act did not apply to the deceased because of exempting provisions under s. 4(3) of the Act, or, alternatively, if the Act did apply, its provisions relating to administration of estates of Indians (ss. 42, 43, 44) were ultra vires and contrary to the principles of the Canadian Bill of Rights; the appointment of R as administrator was contrary to the principles of natural justice. By way of counterclaim the appellants claimed (a) a declaratory judgment declaring R to be the lawful administrator of C’s estate; (b) a declaratory judgment declaring the appointment of the respondent as administratix to be void; (c) an injunction restraining the respondent from acting as administratrix; (d) an order impounding her letters of administration.
The trial judge held that when C died, he was not ordinarily resident on a reserve, and, as a result, the respondent was entitled to a declaration that pursuant to s. 4(3) of the Indian Act, ss. 42 to 44 did not govern the administration of C’s estate and that the appointment of R as administrator was invalid. He issued a declaration accordingly and dismissed the counterclaim.
The Court of Appeal found, on the evidence, that C did ordinarily reside on a reserve, and so the application of s. 43 was not excluded by the operation of s. 4(3). The Court went on to hold that s. 43 was inoperative to the extent that, in violation of s. 1(b) the Bill of Rights, guaranteeing the right to equality before the law without discrimination by reason of race, it denied the respondent administration of the estate of her late husband. From that judgment the appellants appealed to this Court. Held (Laskin C.J. and Spence J. dissenting): The appeal should be allowed, the judgments of the Courts below set aside, the respondent’s action dismissed and the appellants’ counterclaim maintained except para. (a) thereof on which no view was expressed.
Per curiam: As held by the Court of Appeal, C at his death was ordinarily resident on a reserve and therefore s. 4(3) of the Indian Act did not apply.
Per Martland and Judson JJ.: Section 43 of the Indian Act is legislation relating to the administration of the estates of deceased Indians and (unless the Minister otherwise orders, which he did not do in this case) relates only to those Indians ordinarily resident on reserves. It enables the Minister to appoint administrators of estates of deceased Indians and to remove them. The regulations enacted pursuant to s. 42 enable the Minister to appoint an officer of the Indian Affairs Branch to be the administrator of estates and to supervise the administration of estates. There is no discrimination against the respondent by reason of race in these provisions. They relate exclusively to the administration of the estates of deceased Indians, in certain circumstances, and apply generally to such estates. There is no federal legislation relating to the administration of estates of non-Indians in the provinces, and, constitutionally, such legislation could not be enacted. This is not a case in which federal legislation dealing with a subject-matter within s. 91 of the B.N.A. Act, 1867 has permitted certain acts or conduct by non-Indians and prohibited Indians from doing the same thing. The provisions of the Indian Act, including s. 43, deal only with the legal rights of Indians.
Per Martland, Judson and Ritchie JJ.: The civil right, i.e., the right to administer the estate of her husband, said to be denied to the respondent “that other Canadians not of her race enjoy”, is a provincial right which is beyond the scope of the legislative authority of the Parliament of Canada, and which cannot therefore be invoked in contra-distinction to the provisions of otherwise valid federal legislation so as to result in a denial to the respondent of “equality before the law” within the meaning of s. 1(b) of the Canadian Bill of Rights. In the context of this case there can only be a conflict between the Bill of Rights and the Indian Act if the Indian Act, standing alone or read in conjunction with other federal legislation, can be said to result in a denial to Indians of the equality before the law guaranteed by s. 1(b) of the Bill. Per Martland, Judson, Ritchie and Pigeon JJ.: The very object of s. 91(24) of the B.N.A. Act, 1867 in so far as it relates to Indians, is to enable the Parliament of Canada to make legislation applicable only to Indians as such, and there is no reason why provisions with respect to the administration of the estate of deceased Indians would be excluded from the scope of such authority.
The contention that such provisions were made inoperative by the Canadian Bill of Rights cannot be accepted. If one of the effects of the Bill is to render inoperative all legal provisions whereby Indians as such are not dealt with in the same way as the general public, the conclusion is inescapable that Parliament, by the enactment of the Bill, has not only fundamentally altered the status of Indians in that indirect fashion but has also made any future use of federal legislative authority over them subject to the requirement of expressly declaring every time “that the law shall operate notwithstanding the Canadian Bill of Rights”. It is very difficult to believe that Parliament so intended when enacting the Bill. Also, the provisions of the Indian Act vesting in the Minister jurisdiction for the appointment of administrators, cannot be considered as an infringement of the principle of equality before the law for much the same reasons as provisions creating a special jurisdiction respecting juvenile delinquents and authorizing discretionary transfers to the ordinary courts cannot be looked upon as violations of that same rule.
Lastly, concerning the attack against the Minister’s order based on absence of notice and of any valid reason for not appointing the widow as administratrix, the Courts of Manitoba were without jurisdiction to entertain it for the reasons given by Beetz J.
Per Beetz J.: Sections 42 to 44 of the Indian Act are not ultra vires of the Parliament of Canada. Testamentary matters and causes with respect to deceased Indians come within the class of subjects of “Indians and Lands reserved for the Indians” upon which Parliament has exclusive legislative authority under s. 91(24) of the British North America Act, 1867. In a matter of exclusive federal competence, such as “Indians and Lands reserved for the Indians” there is nothing unconstitutional in Parliament excluding the authority of provincial courts over this subject and bestowing it upon a Minister, particularly if it makes it subject to a form of judicial control as is provided by s. 47 of the Indian Act. Nor are ss. 42 to 44 in conflict with the Canadian Bill of Rights. There is nothing in ss. 42 and 43 which prevents the Minister, on account of the respondent’s race, from authorizing her to administer the estate of her late husband, and nothing which deprives the respondent from the capacity to receive such authorization. The Act empowers the Minister to appoint anyone, including the respondent. In other words, if the respondent has been the victim of racial discrimination, such discrimination was administrative in nature; it does not flow from the Indian Act. The Indian Act in this respect is capable of being construed and applied so as to provide for Indians a treatment similar to that reserved for their fellow Canadians. Accordingly, it is not in conflict with the Canadian Bill of Rights and no part of it ought to be declared inoperative for the purpose of this case
As to whether, in this particular instance, the Act had been applied in accordance with the principle of equality before the law, the opinion might have been formed that the burden of showing cause why the respondent should not be appointed administratix was a burden which rested upon the appellants: in view of their failure to discharge that burden, the appointment of R could then have been deemed to have been made contrary to the principles of fundamental justice and to the Canadian Bill of Rights and the matter could have been referred back to the Minister for determination. However, once it is conceded that the Minister has jurisdiction to appoint an administrator, the exercise of this jurisdiction can only be reviewed in accordance with the Indian Act and the Federal Court Act and not by the Courts of Manitoba, which could not hear an appeal from the Minister’s decision or otherwise review it. This Court, sitting in appeal from a decision of the Manitoba Court of Appeal, is limited to giving the judgment that that Court could and should have given but not the one that could and should have been given had the issue been raised in the Federal Court.
As to the letters of administration issued to the respondent, their nullity makes no doubt. The Court which issued them was without jurisdiction to do so as this jurisdiction is vested exclusively in the Minister by ss. 42 and 43 of the Indian Act and could not, under s. 44, be exercised by the Surrogate Court without the consent of the Minister. This consent was not given.
Per Laskin C.J. and Spence J., dissenting: On the face of the Indian Act as amplified by the Regulations thereunder, and certainly as fortified by the invariable practice of the Department of Indian Affairs, Indians are disqualified from obtaining letters of administration of the estate of an Indian intestate, even in the case where the intestate is a spouse, and a fortiori where the intestate may have a lesser relationship to a would-be Indian applicant. This creates an inequality before the law by reason of race in violation of s. 1(b) of the Canadian Bill of Rights.
While it is much easier for the Courts to apply the Bill of Rights to a federal legislative measure if Parliament itself provides the touchstone of comparison in other federal legislation, it may equally provide it by what it has done and failed to do in the very measure that is under challenge. The Court’s function in such a case is different only in degree but not in kind.
The mere grant of legislative power is not to be regarded as itself authorizing Parliament to offend against its generally stated protections in the Bill of Rights. If Parliament deems it necessary to treat its grant of legislative power under s. 91(24) of the British North America Act in terms that would be offensive to the Bill of Rights, it is open to Parliament to do so, but s. 91(24) is not an invitation to the Courts to do what Parliament has not chosen to do.
The appeal should be dismissed but the judgment of the Court of Appeal should be varied by avoiding any declaration that s. 43 of the Indian Act is inoperative and by declaring instead that s. 43 must be applied consistently with s. 1(b) of the Canadian Bill of Rights and that s. 11 of the Indian Estates Regulations is inoperative in so far as it excludes Indians from eligibility to be administrators of the estates of deceased Indians.
[R. v. Drybones, [1970] S.C.R. 282; Attorney General of Canada v. Lavell, [1974] S.C.R. 1349, discussed; R. v. Burnshine,[1975] S.C.R. 693; Re Regina and M (1973), 2 O.R. (2d) 86; R. v. Smythe, [1971] S.C.R. 680, referred to.]
APPEAL from a judgment of the Court of Appeal for Manitoba[1], dismissing an appeal from a judgment of Matas J. Appeal allowed, Laskin C.J. and Spence J. dissenting.
I.G. Whitehall and D.F. Friesen, for the defendants, appellants.
W. Rachman, for the plaintiff, respondent.
D.E. Sanders, for the intervenants. The judgment of Laskin C.J. and Spence J. was delivered by
THE CHIEF JUSTICE (dissenting)—I have had the advantage of reading the reasons prepared by my brother Beetz and the concurring reasons of my brother Pigeon, holding that the Manitoba Courts were wrong in concluding that s. 43 of the Indian Act, R.S.C. 1952, c. 149, now R.S.C. 1970, c. I-6, was inoperative in the present case because of incompatibility with s. 1(b) of the Canadian Bill of Rights. I accept the narrative of facts in the reasons of Beetz J. but I cannot accept his conclusion that s. 1(b) of the Canadian Bill of Rights is without effect.
There are a number of preliminary points that are, in my opinion, easily put out of the way. I have no difficulty in accepting the conclusion of the Manitoba Court of Appeal that the deceased Canard was an Indian ordinarily resident on a reserve when he died in a traffic accident. Thus, under s. 4(3) of the Indian Act, the provisions of that Act respecting testamentary matters were applicable to him. Again, I am in entire agreement with the Manitoba Court of Appeal that Parliament, in legislating in the exercise of its exclusive power under s. 91(24) of the British North America Act, may include in such legislation testamentary provisions which would, according to their reach, govern the issue of letters of administration of the estate of an Indian intestate. Moreover, I see no constitutional infirmity in the assignment of jurisdiction in such matters to a federal functionary. Any constitutional limitation which might arguably reside in s. 96 of the British North America Act if provincial legislation was involved does not apply to the otherwise valid legislation of Parliament.
The only point for serious consideration in this appeal is whether any of the prescriptions of the Canadian Bill of Rights are offended by certain provisions of the Indian Act or by the administration of those provisions through regulations pro- mulgated under the Indian Act. The Manitoba Court of Appeal took the position that s. 43 of the Indian Act disqualified an Indian, whether male or female, from being an administrator or administratrix of his or her deceased spouse’s estate and that this created an inequality before the law by reason of race in violation of s. 1(b) of the Canadian Bill of Rights. Dickson J.A., as he then was, speaking for the Manitoba Court of Appeal, formulated his conclusion as follows:
In the present case we have a situation in which the Parliament of Canada has said in effect “because you are an Indian you shall not administer the estate of your late husband”. Parliament has thereby in a law of Canada placed a legal road-block in the way of one particular racial group, placing that racial group in a position of inequality before the law. The inequality does not arise through conflict between a federal statute with a provincial statute. It arises through conflict between the Bill of Rights and a federal statute. The Bill of Rights has capacity to render inoperative, racially discriminatory legislation, whether or not there be provincial legislation touching the subject-matter.
…
The right of Mrs. Canard to equality before the law of Canada does not depend upon which province she happens to live in. She enjoys that right as a citizen of Canada. If a law of Canada infringes that right on racial grounds, the Bill of Rights is available to remedy the injustice.
There is no doubt that this statement of principle carries the operation of s. 1(b) of the Canadian Bill of Rights beyond the law as considered in Regina v. Dry bones[2], and beyond the law as expounded even in the minority judgment in Attorney General of Canada v. Lavell[3]. In each of those two cases, this Court took the position that the Canadian Bill of Rights would have an operative effect if the conflict with any of its provisions arose under federal law in the sense that there was a discordance either between two federal statutes or between provisions of the same federal statute such as to exhibit that one of the statutes or one of the provisions was vis-à-vis the other in conflict with a prescription of the Canadian Bill of Rights. The effect of the judgment of Dickson J.A. is to measure the operation of a federal statute, or any provision thereof, by the guarantees (if I may so term them) of the Canadian Bill of Rights alone, and thus to treat those guarantees as requiring not only comparative conformity to their terms but conformity by a challenged statute alone.
I do not find this to be other than a proper appreciation of what the Canadian Bill of Rights says. This Court in Curr v. The Queen[4] explored the issues in that case under the same appreciation. The fact that the Court has not hitherto found it necessary to give effect to the Canadian Bill of Rights in relation to a particular statute measured in its own terms against the prescriptions of s. 1(b) of the Canadian Bill of Rights is not a ground for refusing to do so in a case which calls for consideration of such an issue. This is what the Supreme Court of the United States has been doing over the years in testing state and federal legislation under the American Bill of Rights. This Court has done exactly this in relation to other provisions of the Canadian Bill of Rights, as, for example, in Brownridge v. The Queen[5], in relation to s. 2(c)(ii) (the right of a person who has been arrested or detained to retain and instruct counsel without delay), and in Lowry and Lepper v. The Queen[6], in relation to s. 2(e) (the right to a fair hearing in accordance with the principles of fundamental justice for the determination of rights and obligations), a provision which, as Martland J. speaking for the Court rightly said (at p. 201), relates back to those rights guaranteed by s.1. The proposition advanced by Dickson J.A. is with due recognition of the fact that the Parliament of Canada may take any of its legislation out of the scope of the Canadian Bill of Rights by appropriate enactment. What is involved in this approach, patent on the face of the Canadian Bill of Rights, is the premise of our legal system that no legal permission is needed to do anything or act in any manner not prohibited by law, whether statute law or common law. Hence, if a federal enactment were to operate prohibitively against a specified class of persons by reason, for example, of colour or religion, saying nothing about other classes, the question of its operability under the Canadian Bill of Rights would arise notwithstanding that there was no federal legislation expressly sanctioning for those other classes what was prohibited for a specified class. In short, the question would be whether, having regard to the purpose of the statute, it had accorded equality before the law (to take s. 1(b) of the Canadian Bill of Rights as illustrative) to the affected class. It is easy to give examples; for instance, a provision in federal railway legislation prohibiting Indians alone from travelling in first class accommodation; or a provision in federal communications legislation prohibiting members of Jehovah’s Witnesses from participating in religious programmes on radio or television; or a provision in federal banking legislation prohibiting persons of Asian descent from being bank directors. None of these illustrations are intended pejoratively, but they do raise the issue that arises here, namely, that it appears to be forbidden to Indians to become administrators of estates of Indian intestates, where no other class is singled out for disqualification.
It is said, however, that because questions of administration of estates are, generally, in the provincial domain, a consideration of the disqualification of Indians under the Indian Act would mean testing the operation of the Canadian Bill of Rights by reference to provincial legislation and that this is outside the scope of the Canadian Bill of Rights which applies only to federal law. In my opinion, this is to obtrude an irrelevant factor into the matter at issue. If provincial legislation respecting the administration of estates exhibited any conflict with the prescriptions of the Canadian Bill of Rights, that would be obviously no ground for challenging its operability as provincial legislation. Correlatively, I see no reason to refer to provincial legislation to test the operability of federal legislation under the Canadian Bill of Rights. The question whether any of the prescriptions of the Canadian Bill of Rights are offended by federal legislation depends on what that legislation provides and on the reach of the Canadian Bill of Rights itself.
It is thus not a telling factor for me that the respondent Mrs. Canard was appointed administratrix of her late husband’s estate by letters of administration issued out of a Surrogate Court in Manitoba. The relevance of this is in its relation to the issue whether Mrs. Canard as an Indian was disqualified under the Indian Act and applicable regulations from being appointed administratrix by the authorized federal functionaries charged with the execution of the Indian Act and regulations thereunder. Sections 42 to 44 of the Indian Act must now be considered, and they read as follows:
42. (1) Unless otherwise provided in this Act, all jurisdiction and authority in relation to matters and causes testamentary, with respect to deceased Indians, is vested exclusively in the Minister, and shall be exercised subject to and in accordance with regulations of the Governor in Council.
(2) The Governor in Council may make regulations for providing that a deceased Indian who at the time of his death was in possession of land in a reserve shall, in such circumstances and for such purposes as the regulations prescribe, be deemed to have been at the time of his death lawfully in possession of that land.
(3) Regulations made under this section may be made applicable to estates of Indians who died before, on or after the 4th day of September, 1951.
43. Without restricting the generality of section 42, the Minister may
(a) appoint executors of wills and administrators of estates of deceased Indians, remove them and appoint others in their stead; (b) authorize executors to carry out the terms of the wills of deceased Indians;
(c) authorize administrators to administer the property of Indians who die intestate;
(d) carry out the terms of wills of deceased Indians and administer the property of Indians who die intestate; and
(e) make or give any order, direction or finding that in his opinion it is necessary or desirable to make or give with respect to any matter referred to in section 42.
44. (1) The court that would have jurisdiction if the deceased were not an Indian may, with the consent of the Minister, exercise, in accordance with this Act, the jurisdiction and authority conferred upon the Minister by this Act in relation to testamentary matters and causes and any other powers, jurisdiction and authority ordinarily vested in that court.
(2) The Minister may direct in any particular case that an application for the grant of probate of the will or letters of administration shall be made to the court that would have jurisdiction if the deceased were not an Indian, and the Minister may refer to such court any question arising out of any will or the administration of any estate.
(3) A court that is exercising any jurisdiction or authority under this section shall not without the consent in writing of the Minister enforce any order relating to real property on a reserve.
Since no consent of the Minister has been given under s. 44(1) and no direction under s. 44(2), it is unnecessary to consider that section for the purposes of this case; it is simply not applicable. We are left then with ss. 42 and 43 and with the Indian Estates Regulations, promulgated pursuant to s. 42. The relevant provisions of the Regulations are ss. 4 and 11 which I reproduce hereunder so far as material:
4. (1) With the notice of death or as soon thereafter as possible, the Superintendent shall forward an itemized statement of inventory in the form prescribed, to the Minister, showing all the real and personal property of the deceased, the value of each item estimated as closely as possible, as well as all debts of or claims against the estate known at such time; he shall also state therein whether the deceased left a will and give the names of all persons entitled to share in the estate and all such other information as may be required by the Minister.
(2) For all the purposes of this section, the Superintendent shall act in the capacity of an administrator and shall take all necessary steps for the proper safekeeping or safeguarding of the assets of the deceased and for the collection of moneys due or owing to the deceased and shall dispose of the moneys so collected or held as the Minister may direct.
11. (1) The Minister may appoint an officer of the Indian Affairs Branch to be the administrator of estates and to supervise the administration of estates and of all the assets of deceased Indians, and may provide that for the purposes of closing an estate the administration thereof be transferred to the Superintendent of the Reserve to which the deceased belonged.
(2) The administrator appointed pursuant to this section or the person acting as administrator in accordance with section 4 shall be responsible to the Minister for the proper preparation of the inventory, the giving of all notices and the carrying out of all inquiries and duties that may be necessary or be ordered with respect to any matter referred to in these regulations.
(14) Generally, an administrator shall have all such powers as are required for the carrying out of the duties herein specified, and shall carry out any order or direction and abide by any finding made or given by the Minister with respect to any matter and cause testamentary.
(15) An administrator shall be accountable to the Minister for his administration.
It is clear from the reasons of the Manitoba Court of Appeal that it proceeded on the basis that ss. 42 and 43 did not envisage that an Indian could be an administratrix of a deceased Indian spouse’s estate. In this Court, counsel for the Attorney General of Canada submitted that there was nothing in s. 43 that prevented Mrs. Canard from applying for the issue to her of letters of administration, and nothing to prevent the Minister from granting her application. The completely illusory possibility of this is belied not only by the Regulations and the provisions thereof to which I have referred (provisions which name the Superintendent of Indian Affairs and officers of the Indian Affairs Branch as the qualified administrators) but by the fact that Mrs. Canard was not told by the Department of Indian Affairs that the appellant Rees, an officer of the Branch, had been appointed administrator of her deceased husband’s estate, nor was she told that Rees had commenced an action as administrator to recover damages arising out of the traffic accident in which Mrs. Canard’s husband was fatally injured. I do not think that the Canadian Bill of Rights can be set to one side so easily.
On the face of the Indian Act as amplified by the Regulations thereunder, and certainly as fortified by the invariable practice of the Department of Indian Affairs, Indians are disqualified from obtaining letters of administration of the estate of an Indian intestate, even in the case where the intestate is a spouse, and a fortiori where the intestate may have a lesser relationship to a would-be Indian applicant. The contention is, however, and here the judgment of Ritchie J. in the Lavell case is invoked, that federal legislative authority in relation to Indians is itself an expression of a classification that removes the Indian Act and allied legislation from any taint under the Canadian Bill of Rights. We are told that the reason why the Drybones case stands apart is because there other federal legislation had established a position of inequality by reason of race that operated against Indians alone, and that that is not this case, nor was it the case in Lavell.
If anything, the Drybones case is quite consistent with the approach I would take here. The fact that the Court had before it a liquor ordinance of the Territories which made it an offence for any person to be intoxicated in a public place and that s. 94(b) of the Indian Act made it an offence for an Indian to be intoxicated off a reserve, meant only that whereas all others in the Territories were not subject to liability and penalty for intoxication in other than a public place an Indian was so subject. I cannot believe that the Drybones case would have been decided differently if s. 94(b) of the Indian Act stood alone, thus making Indians alone subject to liability and penalty for being intoxicated off a reserve but there was no prohibition against anyone else. The Territories liquor ordinance merely circumscribed the offence and the issue of inequality resided in the want of any prohibition outside of that circumscription affecting others than Indians.
Of course, it is much easier for the Courts to apply the Canadian Bill of Rights to a federal legislative measure if Parliament itself provides the touchstone of comparison in other federal legislation. Yet, it may equally provide it by what it has done and failed to do in the very measure that is under challenge. The Court’s function in such a case is different only in degree but not in kind.
In my opinion, to the extent that there is any majority opinion in the Lavell case (having regard to the separate concurring reasons of Pigeon J. since the Court was otherwise evenly split), it resides in the view that the Indian Act is a self-contained code which if it exhibits any dissonance with the Canadian Bill of Rights is justified by the very fact that Indians have been designated as a special class for which Parliament may legislate. I did not accept that view in Lavell and I do not accept it now, because I do not regard the mere grant of legislative power as itself authorizing Parliament to offend against its generally stated protections in the Canadian Bill of Rights. If Parliament deems it necessary to treat its grant of legislative power under s. 91(24) of the British North America Act in terms that would be offensive to the Canadian Bill of Rights, it is open to Parliament to do so, but s. 91(24) is not, in my opinion, an invitation to the Courts to do what Parliament has not chosen to do. It seems to me patent that no grant of federal legislative power, as a mere vehicle for legislation, should be viewed as necessarily carrying with it a built-in exclusion of the mandates of the Canadian Bill of Rights. Lavell was, apart from the foregoing, an even more obvious case than Drybones for the application of the Canadian Bill of Rights, because the inequality in that case, on the ground of sex, was built into the Indian Act itself. The present case on its facts is at least as susceptible as was Drybones to the purging effect of the Canadian Bill of Rights, and I can add nothing more in this respect to what was said more tersely but just as effectively by Dickson J.A.
I would dismiss the appeal with costs but I would vary the judgment of the Manitoba Court of Appeal by avoiding any declaration that s. 43 of the Indian Act is inoperative and by declaring instead that s. 43 must be applied consistently with s. 1(b) of the Canadian Bill of Rights and that s. 11 of the Indian Estates Regulations is inoperative in so far as it excludes Indians from eligibility to be administrators of the estates of deceased Indians.
The Attorney General of Canada undertook, if he was successful here, to pay the costs of the appellant in this Court on a party-and-party basis and to forgo costs in the Courts below. In view of the result I reach, the appellant does not need this indulgence.
The judgment of Martland and Judson JJ. was delivered by
MARTLAND J.—The facts which give rise to this appeal are stated in the reasons of my brother Beetz.
The relevant provisions of the Indian Act, R.S.C. 1970, c. I-6, are subs. (3) of s. 4 and ss. 42 and 43, which provide as follows:
4. (3) Sections 114 to 123 and, unless the Minister otherwise orders, sections 42 to 52 do not apply to or in respect of any Indian who does not ordinarily reside on a reserve or on lands belonging to Her Majesty in right of Canada or a province.
42. (1) Unless otherwise provided in this Act, all jurisdiction and authority in relation to matters and causes testamentary, with respect to deceased Indians, is vested exclusively in the Minister, and shall be exercised subject to and in accordance with regulations of the Governor in Council.
(2) The Governor in Council may make regulations for providing that a deceased Indian who at the time of his death was in possession of land in a reserve shall, in such circumstances and for such purposes as the regulations prescribe, be deemed to have been at the time of his death lawfully in possession of that land.
(3) Regulations made under this section may be made applicable to estates of Indians who died before, on or after the 4th day of September 1951.
43. Without restricting the generality of section 42, the Minister may
(a) appoint executors of wills and administrators of estates of deceased Indians, remove them and appoint others in their stead;
(b) authorize executors to carry out the terms of the wills of deceased Indians;
(c) authorize administrators to administer the property of Indians who die intestate;
(d) carry out the terms of wills of deceased Indians and administer the property of Indians who die intestate; and
(e) make or give any order, direction or finding that in his opinion it is necessary or desirable to make or give with respect to any matter referred to in section 42.
The learned trial judge held that the deceased, Alexander Canard, did not ordinarily reside on a reserve, and, in consequence, there having been no order of the Minister otherwise, the Minister did not have the power, under s. 43, to appoint an administrator of his estate.
The Court of Appeal found, on the evidence, that Canard did ordinarily reside on a reserve, and so the application of s. 43 was not excluded by the operation of s. 4(3). I agree with this conclusion. The Court went on to hold that s. 43 was inoperative to the extent that, in violation of the Bill of Rights, guaranteeing the right to equality before the law without discrimination by reason of race, it denied Mrs. Canard administration of the estate of her late husband. It is from this judgment that the present appeal is brought. Section 1(6) of the Canadian Bill of Rights provides that:
1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,
(b) the right of the individual to equality before the law and the protection of the law;
Section 91(24) of the British North America Act gave to the Parliament of Canada exclusive legislative authority over the subject of “Indians, and Lands reserved for the Indians.” Pursuant to this authority Parliament has enacted the Indian Act, which establishes a comprehensive regime for Indians, dealing with such diverse matters as the possession of lands in reserves; the surrender of reserve lands; wills; the distribution of property on intestacy; mentally incompetent Indians; the administration of property of infant children; loans to Indians; schools; and enfranchisement.
The provisions of the Act dealing with wills and estates provide a scheme for testamentary capacity and for the administration of estates. It is characterized by a discretionary and supervisory jurisdiction in the Minister of Indian Affairs rather than in the Courts.
The subject-matter defined in s. 91(24) necessarily contemplates legislation respecting the status and rights of a particular class of persons. If the words “equality before the law” in s. 1(b) of the Bill of Rights were to be construed as precluding legislation of this kind it would prevent Parliament from exercising the power entrusted to it by s. 91(24).
The majority of this Court in Attorney General of Canada v. Lavell[7], rejected the application of the Bill of Rights in that way, and approved the statement of Pigeon J., on this point, in his dissenting reasons in The Queen v. Drybones[8], at p. 304:
If one of the effects of the Canadian Bill of Rights is to render inoperative all legal provisions whereby Indians as such are not dealt with in the same way as the general public, the conclusion is inescapable that Parliament, by the enactment of the Bill, has not only fundamentally altered the status of the Indians in that indirect fashion but has also made any future use of federal legislative authority over them subject to the requirement of expressly declaring every time “that the law shall operate notwithstanding the Canadian Bill of Rights”. I find it very difficult to believe that Parliament so intended when enacting the Bill. If a virtual suppression of federal legislation over Indians as such was meant, one