Attorney General of Canada v. Lavell

Attorney General of Canada v. Lavell
Collection
Supreme Court Judgments
Date
1973-08-27
Report
[1974] SCR 1349
Judges
Fauteux, Joseph Honoré Gérald; Abbott, Douglas Charles; Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon; Hall, Emmett Matthew; Spence, Wishart Flett; Pigeon, Louis-Philippe; Laskin, Bora
On appeal from
Federal Court of Appeal
Subjects
Constitutional law
Decision Content
Supreme Court of Canada
Attorney General of Canada v. Lavell, [1974] S.C.R. 1349
Date: 1973-08-27
The Attorney General of Canada (Respondent) Appellant;
and
Jeannette Vivian Corbiere Lavell (Applicant) Respondent.
Richard Isaac, Leonard Staats, Clarence Jamieson, Rena Hill, Norman Lickers, William White, Nina Burnham, John Capton, Howard Lickers, Clifford Lickers, Mitchell Sandy, Ronald Monture, Gordon Hill, Sydney Henhawk, Ross Powless, Victor Porter, Frank Monture, Renson Jamieson and Vincent Sandy Appellants;
and
Yvonne Bédard Respondent.
1973: February 22, 23, 26, 27; 1973: August 27.
Present: Fauteux C.J. and Abbott, Martland, Judson, Ritchie, Hall, Spence, Pigeon and Laskin JJ.
ON APPEAL FROM THE FEDERAL COURT OF APPEAL
ON APPEAL FROM THE SUPREME COURT OF ONTARIO
Civil rights—Indians—Indian woman marrying non-Indian—Loss of rights—No analogous provision applicable male Indian—Discrimination by reason of sex—Canadian Bill of Rights, 1960 (Can.), c. 44—Indian Act, R.S.C. 1970, c. I-6, s. 12(1)(b).
The respondents are both female persons of North American Indian ancestry. Mrs. Lavell was born Jeannette Vivian Corbiere, a member of the Wikwemikong Band and registered in the Indian Register. She subsequently married a non-Indian and thereafter her name was deleted from the Indian Register.
Mrs. Bédard was born of Indian parents on the Six Nations Indian Reserve, married a non-Indian and thereafter having separated from her husband returned to the Reserve to live on a property held by her mother by Certificate of Possession and bequeathed to Mrs. Bédard by will approved by the Council of the Six Nations and by the Minister in terms of the Indian Act. The Council required Mrs.
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Bédard to dispose of the property and to leave the Reserve.
Mrs. Lavell failed in an appeal from the decision of the Registrar deleting her name from the Register. However a motion to review that decision was granted by the Federal Court of Appeal which held that s. 12(1)(b) of the Indian Act was inoperative by reason of s. 1(b) of the Canadian Bill of Rights. An appeal was filed in this Court.
Mrs. Bédard obtained in the Supreme Court of Ontario a decision in her favour based on the judgment of the Federal Court of Appeal in the Lavell case. Leave to appeal was granted to appeal to this Court.
Held (Abbott, Hall, Spence and Laskin JJ. dissenting): The appeals should be allowed.
Per Fauteux C.J. and Martland, Judson and Ritchie JJ.: These appeals are from judgments holding that the provisions of s. 12(1)(b) of the Indian Act, R.S.C. 1970, c. I-6, are rendered inoperative by s. 1(b) of the Canadian Bill of Rights, 1960 (Can.), c. 44, as denying equality before the law to the two respondents. In issue is whether the Bill of Rights is to be construed as rendering inoperative one of the conditions imposed by Parliament for the use and occupation of Crown lands reserved for Indians. The question is confined to deciding whether Parliament, in defining Indian status so as to exclude women of Indian birth who have married non-Indians, enacted a law which cannot be sensibly construed without abrogating, abridging or infringing the rights of such women to equality before the law. The Queen v. Drybones, [1970] S.C.R. 282 case can have no application to render inoperative legislation such as s. 12(1)(b) of the Indian Act passed by Parliament in discharge of its constitutional function under s. 91(24) of the B.N.A. Act. Equality before the law under the Bill of Rights means equality of treatment in the enforcement and application of the laws of Canada and no such inequality is necessarily entailed in the construction and application of s. 12(1)(b).
Per Pigeon J.: This result is in accordance with the view that the enactment of the Canadian Bill of
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Rights was not intended to effect a virtual suppression of federal legislation over Indians.
Per Abbott J. dissenting: The decision in the Drybones case cannot be distinguished from the two cases under appeal. Effect must be given to the words “without discrimination by reason of race, national origin, colour, religion or sex” as used in s. 1 of the Canadian Bill of Rights and s. 1(b) must be read as if those words were recited therein.
Per Hall, Spence and Laskin JJ., dissenting: It is not possible to leap over the telling words of s. 1 of the Canadian Bill of Rights, “without discrimination by reason of race, national origin, colour, religion or sex” by invoking the words “equality before the law” in clause (b). That was not done in the Drybones case. There was an intimation during the argument of these appeals that the Canadian Bill of Rights is properly invoked only to resolve a clash under its terms between two federal statutes. It is a spurious contention. The Canadian Bill of Rights is the indicator to which any Canadian statute or provision thereof must yield unless Parliament has declared that the statute or the particular provision is to operate notwithstanding the Canadian Bill of Rights.
[St. Ann’s Island Shooting and Fishing Club Limited v. The King [1950] S.C.R. 211; Baker v. Edger [1898] A.C. 748; The Queen v. Drybones [1970] S.C.R. 282; Curr v. The Queen [1972] S.C.R. 889; Smythe v. The Queen [1971] S.C.R. 680; Roncarelli v. Duplessis [1959] S.C.R. 121; Lowny and Lepper v. The Queen (1972), 26 D.L.R. (3d) 224; Brownridge v. The Queen [1972] S.C.R. 926; Duke v. The Queen [1972] S.C.R. 917 referred to].
APPEALS from judgments of the Federal Court of Appeal[1] and the Supreme Court of Ontario[2] affirming that the provisions of the Indian Act are inoperative to deprive the respondents of their right to registration in terms of the said Act. Appeals allowed, Abbott, Hall, Spence and Laskin JJ. dissenting.
C.R.O. Munro, Q.C., M.A. Chalmers, Q.C., J.E. Smith and C.J. Pepper for the Attorney General of Canada.
Clayton Ruby, for the respondent, J.V.C. Lavell.
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B.H. Kellock and V. Libis, for the appellants R. Isaac et al. and for the Six Nations Band of Indians of the County of Brant, Intervenant.
M. Montgomery, Q.C., for the respondent, Yvonne Bédard.
Douglas Sanders, B.A. Crane, James O’Reilly, Ken Regier, Bob Young and Bruce Fotheringham, for The Indian Association of Alberta, The Union of British Columbia Indian Chiefs, The Manitoba Indian Brotherhood Inc., The Union of New Brunswick Indians, The Indian Brotherhood of the Northwest Territories, The Union of Nova Scotia Indians, The Union of Ontario Indians, The Federation of Saskatchewan Indians, The Indian Association of Quebec, The Yukon Native Brotherhood and The National Indian Brotherhood. Intervenants.
B.J. MacKinnon, Q.C., for the Native Council of Canada. Intervenant.
M.P. Hyndman, Q.C., and Frances Smookler, for Rose Wilhelm, Alberta Committee on Indian Rights for Indian Women Inc., Viola Shannacappo, University Women’s Club of Toronto, University Women Graduates Limited, The North Toronto Business and Professional Women’s Club Inc., and Monica Agnes Turner. Intervenants.
Arnold F. Moir, Q.C., for the Treaty Voice of Alberta. Intervenant.
E. Greenspan, for Anishnawbekwek of Ontario Inc. Intervenant.
The judgment of Fauteux C.J., and Martland, Judson and Ritchie was delivered by
RITCHIE J.—I have had the advantage of reading the reasons for judgment prepared for delivery by my brother Laskin.
These appeals, which were heard together, are from two judgments holding that the provisions of s. 12(1)(b) of the Indian Act, R.S.C. 1970, c. I-6, are rendered inoperative by s. 1(b) of the Canadian Bill of Rights, 1960 (Can.), c. 44, as denying equality before the law to the two respondents.
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Both respondents were registered Indians and “Band” members within the meaning of s. 11(b) of the Indian Act when they elected to marry non-Indians and thereby relinquished their status as Indians in conformity with the said s. 12(1)(b) which reads as follows:
12. (1) The following persons are not entitled to be registered, namely,
(b) a woman who married a person who is not an Indian, unless that woman is subsequently the wife or widow of a person described in section 11.
It is contended on behalf of both respondents that s. 12(1)(b) of the Act should be held to be inoperative as discriminating between Indian men and women and as being in conflict with the provisions of the Canadian Bill of Rights and particularly s. 1 thereof which provides:
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;…
I think it desirable at the outset to outline the facts concerning the two respondents separately.
1. Mrs. Lavell—This woman was a member of the Wikwemikong Band of Indians who married a non-Indian and whose name was deleted from the Indian Register by the Registrar in charge thereof pursuant to the provisions of section 12(1)(b) of the Act. An appeal was taken from the Registrar’s decision and was heard before His Honour Judge Grossberg, acting as persona designata under the Indian Act before whom evidence was taken which disclosed that at the time of the hearing and for some nine years before her marriage Mrs. Lavell had not lived on any Reserve except for sporadic visits to her family, and the learned judge declined to accept the suggestion that she could not visit her family on the Reserve whenever she wished. Mrs. Lavell did not claim to have been deprived
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of any property rights on the Reserve except those incidental to the right as a Band member.
Judge Grossberg having found that in his opinion section 12(1)(b) of the Indian Act was not rendered inoperative by the Bill of Rights an appeal was taken from his judgment to the Federal Court of Appeal where a judgment was rendered by Mr. Justice Thurlow who concluded his opinion by saying of section 12(1)(b) of the Indian Act:
These provisions are thus laws which abrogate, abridge and infringe the right of an individual Indian woman to equality with other Indians before the law. Though this is not a situation in which an act is made punishable at law on account of race or sex, it is one in which under the provisions here in question the consequences of the marriage of an Indian woman to a person who is not an Indian are worse for her than for other Indians who marry non-Indians and than for other Indians of her band who marry persons who are not Indians. In my opinion this offends the right of such an Indian woman as an individual to equality before the law and the Canadian Bill of Rights therefore applied to render the provisions in question inoperative.
(The italics are my own.)
It is from this judgment that the Crown now appeals.
2. Mrs. Bédard—In this case the respondent sought an injunction restraining the members of the Six Nations Council from expelling her and her two infant children from the home she occupied on the Six Nations Indian Reserve in the County of Brant, and an order setting aside a resolution passed by the Council ordering her to dispose of such property. By agreement an additional claim was added for a declaratory judgment concerning the respective rights of the parties.
Mrs. Bédard was born on the Six Nations Indian Reserve of Indian parents and she married a non-Indian in May, 1964, by whom she had two children and with whom she resided off
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the Reserve until June 23, 1970 when, having separated from her husband, she returned to the Reserve to live in a house on a property to which her mother had held a Certificate of Possession under s. 20 of the Indian Act and which had been bequeathed to her under her mother’s will which had been approved by the Council of the Six Nations and on behalf of the Minister of Indian Affairs as required by the Indian Act, (section 45(3)) on August 7, 1969.
When Mrs. Bédard returned to the Reserve with her children in 1970 to occupy her mother’s house, the Council passed a series of resolutions giving her permission to reside on the Reserve for a period of six months during which she was to dispose of the property, and extending this permission for a further eight months, after which any further requests for her continued residence would be denied. In accordance with these resolutions this respondent conveyed her interest in the property in question to her brother who was a registered member of the Six Nations Band, and to whom a Certificate of Possession of the property was granted on March 15, 1971 by the Minister. Her brother, however, permitted Mrs. Bédard and her infant children to continue occupying the premises without rent, but the Band Council passed a further resolution on September 15, 1971 by which it was resolved that the Brant District Supervisor should be requested to serve a notice to quit the Reserve upon this respondent. It should be noted that the writ instituting this action was issued on September 14, 1971, more than a year after the brother had obtained his Certificate of Possession and that no notice to quit has been served on Mrs. Bédard pursuant to the resolution which was passed after the writ was issued.
Mrs. Bédard’s case was heard by Mr. Justice Osler in the Supreme Court of Ontario where it was contended that the Council’s request to the District Supervisor and any action taken by the Supervisor pursuant to such request, and the removal of her name from the Band list simply because of her marriage to a non-Indian, are
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actions that discriminate against her by reason of her race and sex and deny her “equality before the law”. Mr. Justice Osler, basing his decision on the judgment of the Federal Court of Appeal in the Lavell case, concluded that:
Section 12(1)(b) of the Act is… inoperative and all acts of the Council Band and of the District Supervisor purporting to be based on the provisions of that section can be of no effect.
Leave to appeal from this judgment was granted by order of this Court on January 25, 1972.
The contention which formed the basis of the argument submitted by both respondents was that they had been denied equality before the law by reason of sex, and I propose to deal with the matter on this basis.
In considering the impact of the Bill of Rights on the provisions of the Indian Act, I think it desirable to reproduce the portions of the Bill which I consider to be relevant and which are:
Preamble
The Parliament of Canada, affirming that the Canadian Nation is founded upon principles that acknowledge the supremacy of God, the dignity and worth of the human person and the position of the family in a society of free men and free institutions;
Affirming also that men and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law;
And being desirous of enshrining these principles and the human rights and fundamental freedoms derived from them, in a Bill of Rights which shall reflect the respect of Parliament for its constitutional authority and which shall ensure the protection of these rights and freedoms in Canada:
THEREFORE Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
BILL OF RIGHTS
Recognition and Declaration of Rights and Freedoms
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
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origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,
(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;
(b) the right of the individual to equality before the law and the protection of the law;
(c) freedom of religion;
(d) freedom of speech;
(e) freedom of assembly and association; and
(f) freedom of the press.
Construction of Law
2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to
(a) authorize or effect the arbitrary detention, imprisonment or exile of any person;
(b) impose or authorize the imposition of cruel and unusual treatment or punishment;
(c) deprive a person who has been arrested or detained
(i) of the right to be informed promptly of the reason for his arrest or detention,
(ii) of the right to retain and instruct counsel without delay, or
(iii) of the remedy by way of habeas corpus for the determination of the validity of his detention and for his release if the detention is not lawful;
(d) authorize a court, tribunal, commission, board or other authority to compel a person to give evidence if he is denied counsel, protection against self crimination or other constitutional safeguards;
(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;
(f) deprive a person charged with a criminal offence of the right to be presumed innocent until proved guilty according to law in a fair and public
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hearing by an independent and impartial tribunal, or of the right to reasonable bail without just cause; or
(g) deprive a person of the right to the assistance of an interpreter in any proceedings in which he is involved or in which he is a party or a witness, before a court, commission, board or other tribunal, if he does not understand or speak the language in which such proceedings are conducted.
5. (2) The expression ‘law of Canada’ in Part I means an Act of the Parliament of Canada enacted before or after the coming into force of this Act, any order, rule or regulation thereunder, and any law in force in Canada or in any part of Canada at the commencement of this Act that is subject to be repealed, abolished or altered by the Parliament of Canada.
(3) The provisions of Part I shall be construed as extending only to matters coming within the legislative authority of the Parliament of Canada.
(The italics are my own.)
There cannot, in my view, be any doubt that whatever may have been achieved by the Bill of Rights, it is not effective to amend or in any way alter the terms of the British North America Act and it is clear from the third recital in the preamble that the Bill was intended to “reflect the respect of Parliament for its constitutional authority…” so that wherever any question arises as to the effect of any of the provisions of the Bill, it is to be resolved within the framework of the B.N.A. Act.
It follows, in my view, that the effect of the Bill of Rights on the Indian Act can only be considered in light of the provisions of s. 91(24) of the B.N.A. Act whereby the subject of “Indians and lands reserved for Indians” is assigned exclusively to the legislative authority of the Parliament of Canada.
It is true that under s. 88 of the Indian Act laws of general application in any Province are made applicable to and in respect of Indians in the Province except to the extent that such laws
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make provision for any matter for which provision is made by or under the Indian Act. But the incorporation of these laws as a part of the Act in no way signifies a relinquishment of Parliament’s exclusive legislative authority over Indians, and in any event, the property and civil rights of members of Indian Bands living on Reserves, which is what we are here concerned with, are matters for which express provision is made by the Indian Act and which can only apply to Indians as distinct from other Canadians.
In my opinion the exclusive legislative authority vested in Parliament under s. 91(24) could not have been effectively exercised without enacting laws establishing the qualifications required to entitle persons to status as Indians and to the use and benefit of Crown “lands reserved for Indians”. The legislation enacted to this end was, in my view, necessary for the implementation of the authority so vested in Parliament under the constitution.
To suggest that the provisions of the Bill of Rights have the effect of making the whole Indian Act inoperative as discriminatory is to assert that the Bill has rendered Parliament powerless to exercise the authority entrusted to it under the constitution of enacting legislation which treats Indians living on Reserves differently from other Canadians in relation to their property and civil rights. The proposition that such a wide effect is to be given to the Bill of Rights was expressly reserved by the majority of this Court in the case of The Queen v. Drybones[3], at 298, to which reference will hereafter be made, and I do not think that it can be sustained.
What is at issue here is whether the Bill of Rights is to be construed as rendering inoperative one of the conditions imposed by Parliament for the use and occupation of Crown lands
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reserved for Indians. These conditions were imposed as a necessary part of the structure created by Parliament for the internal administration of the life of Indians on Reserves and their entitlement to the use and benefit of Crown lands situate thereon, they were thus imposed in discharge of Parliament’s constitutional function under s. 91(24) and in my view can only be changed by plain statutory language expressly enacted for the purpose. It does not appear to me that Parliament can be taken to have made or intended to make such a change by the use of broad general language directed at the statutory proclamation of the fundamental rights and freedoms enjoyed by all Canadians, and I am therefore of opinion that the Bill of Rights had no such effect.
The responsibility of the Parliament of Canada in relation to the internal administration of the life of Indians on Reserves is succinctly stated by Rand J. in St. Ann’s Island Shooting and Fishing Club Limited, v. The King[4], at 219, where he was dealing with the effect of s. 51 of the Indian Act, R.S.C. 1906 c. 81, in relation to the “surrender” of lands on Indian Reserves and said:
The language of the statute embodies the accepted view that these aborigenes are, in effect, wards of the State, whose care and welfare are a political trust of the highest obligation.
In the case of Barker v. Edger[5], the Privy Council was considering the effect of a New Zealand statute which established a Validation Court and contained a provision to the effect that the commencement of proceedings in that Court should operate as a stay of proceedings in any other court in respect of the same matter. The question arose in relation to special legislation concerning the title to lands of the Poututu native tribe which had been governed by the
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Native Land Courts Act whereunder proceedings had been taken when a new action was commenced in the Validation Court and it was claimed that the Native Land Court had thereby lost jurisdiction.
In the course of his reasons for judgment, Lord Hobhouse had occasion to say, at p. 754:
When the Legislature has given its attention to a separate subject, and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly. Each enactment must be construed in that respect according to its own subject-matter and its own terms.
And he concluded this part of his judgment by saying:
The Legislature could not have intended to displace the complete and precise jurisdiction adapted to the special case of Poututu, or to put it in the power of a defeated litigant to so displace it, without substituting something equally complete and precise in its place.
The contention that the Bill of Rights is to be construed as overriding all of the special legislation imposed by Parliament under the Indian Act is, in my view, fully answered by Pigeon J. in his dissenting opinion in the Drybones[6] case where he said, 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 would have expected this
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important change to be made explicitly not surreptitiously so to speak.
That it is membership in the Band which entitles an Indian to the use and benefit of lands on the Reserve is made plain by the provisions of ss. 2 and 18 of the Indian Act.; Section 2(1)(a) reads as follows:
2. (1) In this Act ‘band’ means a body of Indians
(a) for whose use and benefit in common, lands the legal title to which is vested in Her Majesty, have been set apart before, on or after the 4th day of September 1951,…
Section 18 reads as follows:
18. (1) Subject to this Act, reserves are held by Her Majesty for the use and benefit of the respective bands for which they were set apart; and subject to this Act and to the terms of any treaty or surrender, the Governor in Council may determine whether any purpose for which lands in a reserve are used or are to be used is for the use and benefit of the band.
In considering the meaning to be given to section 1(b) of the Bill of Rights, regard must of course be had to what was said by Mr. Justice Laskin, speaking in this regard for the whole of the Court in Curr v. The Queen[7], at pp. 896 and 897, where he interpreted sections 1(a) and 1(b) of the Bill in the following passage:
In considering the reach of s. 1(a) and s. 1(b), and, indeed, of s. 1 as a whole, I would observe, first, that the section is given its controlling force over federal law by its referential incorporation into s. 2; and, second, that I do not read it as making the existence of any of the forms of prohibited discrimination, a sine qua non of its operation. Rather, the prohibited discrimination is an additional lever to which federal legislation must respond. Putting the matter another way, federal legislation which does not offend s. 1 in respect of any of the prohibited kinds of discrimination may nonetheless be offensive to s. 1 if it is violative of what is specified in any of the clauses (a) to (f) of s. 1. It is, a fortiori, offensive if there is discrimination by reason of race so as to deny equal-
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ity before the law. That is what this Court decided in Regina v. Drybones and I need say no more on this point.
It is, therefore, not an answer to reliance by the appellant on s. 1(a) and s. 1(b) of the Canadian Bill of Rights that s. 223 does not discriminate against any person by reason of race, national origin, colour, religion or sex. The absence of such discrimination still leaves open the question whether s. 223 can be construed and applied without abrogating, abridging or infringing the rights of the individual listed in s. 1(a) and s. 1(b).
My understanding of this passage is that the effect of s. 1 of the Bill of Rights is to guarantee to all Canadians the rights specified in paragraphs (a) to (f) of that section, irrespective of race, national origin, colour or sex. This interpretation appears to me to be borne out by the French version which reads:
1. Il est par les présentes reconnu et déclaré que les droits de l’homme et les libertés fondamentales ci-après énoncés ont existé et continueront à exister pour tout individu au Canada quels que soient sa race, son origine nationale, sa couleur, sa religion ou son sexe:…
It was stressed on behalf of the respondents that the provisions of s. 12(1)(b) of the Indian Act constituted “discrimination by reason of sex” and that the section could be declared inoperative on this ground alone even if such discrimination did not result in the infringement of any of the rights and freedoms specifically guaranteed by s. 1 of the Bill.
I can find no support for such a contention in the Curr case in which, in any event, no question of any kind of discrimination was either directly or indirectly involved. My own understanding of the passage which I have quoted from that case was that it recognized the fact that the primary concern evidenced by the first two sections of the Bill of Rights is to ensure that the rights and freedoms thereby recognized and declared shall continue to exist for all Canadians, and it follows, in my view, that
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those sections cannot be invoked unless one of the enumerated rights and freedoms has been denied to an individual Canadian or group of Canadians. Section 2 of the Bill or Rights provides for the manner in which the rights and freedoms which are recognized and declared by s. 1 are to be enforced and the effect of this section is that every law of Canada shall “be so construed and applied as not to abrogate, abridge or infringe or authorize the abrogation, abridgment or infringement of any of the rights and freedoms herein recognized and declared…” (i.e. by s. 1). There is no language anywhere in the Bill of Rights stipulating that the laws of Canada are to be construed without discrimination unless that discrimination involves the denial of one of the guaranteed rights and freedoms, but when, as in the case of The Queen v. Drybones, supra, denial of one of the enumerated rights is occasioned by reason of discrimination, then, as Mr. Justice Laskin has said, the discrimination affords an “additional lever to which federal legislation must respond.”
The opening words of s. 2 of the Bill of Rights are, in my view, determinative of the test to be applied in deciding whether the section here impugned is to be declared inoperative. The words to which I refer are:
2. Every law of Canada shall, unless it is expressly declared by an act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or authorize the abrogation, abridgement of infringement of the freedoms herein recognized and declared…
In the course of the reasons for judgment rendered on behalf of the majority of this Court in The Queen v. Drybones, supra, this language was interpreted in the following passage at p. 294:
It seems to me that a more realistic meaning must be given to the words in question and they afford, in my view, the clearest indication that s. 2 is intended to mean and does mean that if a law of Canada cannot be ‘sensibly construed and applied’ so that it does not abrogate, abridge or infringe one of the rights and freedoms, recognized and declared by the
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Bill, then such law is inoperative ‘unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights’.
Accordingly, in my opinion, the question to be determined in these appeals is confined to deciding whether the Parliament of Canada in defining the prerequisites of Indian status so as not to include women of Indian birth who have chosen to marry non-Indians, enacted a law which cannot be sensibly construed and applied without abrogating, abridging or infringing the rights of such women to equality before the law.
In my view the meaning to be given to the language employed in the Bill of Rights is the meaning which it bore in Canada at the time when the Bill was enacted, and it follows that the phrase “equality before the law” is to be contrued in light of the law existing in Canada at that time.
In considering the meaning to be attached to “equality before the law” as those words occur in section 1(b) of the Bill, I think it important to point out that in my opinion this phrase is not effective to invoke the egalitarian concept exemplified by the 14th Amendment of the U.S. Constitution as interpreted by the courts of that country. (See Smythe v. The Queen[8] per Fauteux C.J. at pp. 683 and 686). I think rather that, having regard to the language employed in the second paragraph of the preamble to the Bill of Rights, the phrase “equality before the law” as used in s. 1 is to be read in its context as a part of “the rule of law” to which overriding authority is accorded by the terms of that paragraph.
In this connection I refer to Stephens Commentaries on the Laws of England, 21st Ed. 1950, where it is said in Vol. III at p. 337:
Now the great constitutional lawyer Dicey writing in 1885 was so deeply impressed by the absence of arbitrary governments present and past, that he coined the phrase ‘the rule of law’ to express the regime under which Englishmen lived; and he tried to give precision to it in the following words which have
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exercised a profound influence on all subsequent thought and conduct.
‘That the “rule of law” which forms a fundamental principle of the constitution has three meanings or may be regarded from three different points of view…’
The second meaning proposed by Dicey is the one with which we are here concerned and it was stated in the following terms:
It means again equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts; the ‘rule of law’ in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary courts.
“Equality before the law” in this sense is frequently invoked to demonstrate that the same law applies to the highest official of government as to any other ordinary citizen, and in this regard Professor F.R. Scott, in delivering the Plaunt Memorial Lectures on Civil Liberties and Canadian Federalism in 1959, speaking of the case of Roncarelli v. Duplessis[9], had occasion to say:
It is always a triumph for the law to show that it is applied equally to all without fear or favour. This is what we mean when we say that all are equal before the law.
The relevance of these quotations to the present circumstances is that “equality before the law” as recognized by Dicey as a segment of the rule of law, carries the meaning of equal subjection of all classes to the ordinary law of the land as administered by the ordinary courts, and in my opinion the phrase “equally before the law” as employed in section 1(b) of the Bill of Rights is to be treated as meaning equality in the administration or application of the law by the law enforcement authorities and the ordinary courts of the land. This construction is, in my view, supported by the provisions of subsec-
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tions (a) to (g) of s. 2 of the Bill which clearly indicate to me that it was equality in the administration and enforcement of the law with which Parliament was concerned when it guaranteed the continued existence of “equality before the law”.
Turning to the Indian Act itself, it should first be observed that by far the greater part of that Act is concerned with the internal regulation of the lives of Indians on Reserves and that the exceptional provisions dealing with the conduct of Indians off Reserves and their contacts with other Canadian citizens fall into an entirely different category.
It was, of course necessary for Parliament, in the exercise of section 91(24) authority, to first define what Indian meant, and in this regard s. 2(1) of the Act provides that:
‘Indian’ means a person who pursuant to this Act is registered as an Indian or is entitled to be registered as an Indian.
It is therefore clear that registration is a necessary prerequisite to Indian status and in order to fully appreciate the nature of the issue raised by the respondents, I think it desirable to consider s. 12(1)(b) in the context of ss. 11 and 12 of the Act which provide:
11. (1) Subject to section 12, a person is entitled to be registered if that person
(a) on the 26th day of May 1874 was, for the purposes of An Act providing for the organization of the Department of the Secretary of State of Canada, and for the management of Indian and Ordnance Lands, being chapter 42 of the Statutes of Canada, 1868, as amended by section 6 of chapter 6 of the Statutes of Canada, 1869, and section 8 of chapter 21 of the Statutes of Canada, 1874, considered to be entitled to hold, use or enjoy the lands and other immovable property belonging to or appropriated to the use of the various tribes, bands or bodies of Indians in Canada;
(b) is a member of a band
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(i) for whose use and benefit, in common, lands have been set apart or since the 26th day of May 1874, have been agreed by treaty to be set apart, or
(ii) that has been declared by the Governor in Council to be a band for the purposes of this Act;
(c) is a male person who is a direct descendant in the male line of a male person described in paragraph (a) or (b);
(d) is the legitimate child of
(i) a male person described in paragraph (a) or (b), or
(ii) a person described in paragraph (c);
(e) is the illegitimate child of a female person described in paragraph (a), (b) or (d); or
(f) is the wife or widow of a person who is entitled to be registered by virtue of paragraph (a), (b), (c), (d) or (e).
(2) Paragraph (1)(e) applies only to persons born after the 13th day of August 1956. R.S., c. 149, s. 11; 1956, c. 40, s. 3.
12. (1) The following persons are not entitled to be registered, namely,
(a) a person who
(i) has received or has been alloted halfbreed lands or money scrip,
(ii) is a descendant of a person described in subparagraph (i),
(iii) is enfranchised, or
(iv) is a person born of a marriage entered into after the 4th day of September 1951 and has attained the age of twenty-one years, whose mother and whose fathers’s mother are not persons described in paragraph 11(1)(a), (b) or (d) or entitled to be registered by virtue of paragraph 11(1)(e),
unless, being a woman, that person is the wife or widow of a person described in section 11, and
(b) a woman who married a person who is not an Indian, unless that woman is subsequently the wife or widow of a person described in section 11.
Provision for the loss of status by women who marry non-Indians was first introduced in 1869 by section 6 of chapter 6 of the Statutes of Canada of that year which reads as follows:
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Provided always that any Indian woman marrying any other than an Indian, shall cease to be an Indian within the meaning of this Act, nor shall the children issue of such marriage be considered as Indians within the meaning of this Act; Provided also, that any Indian woman marrying an Indian of another tribe, band or body shall cease to be a member of the tribe, band or body to which she formerly belonged and become a member of the tribe, band or body of which her husband is a member, and the children, issue of this marriage, shall belong to their father’s tribe only.
It is thus apparent that the marital status