British Columbia Court of Appeal, Bird, Davey and Tysoe JJ.A., 9 January 1962
(On appeal from judgment of British Columbia Supreme Court, supra p.381)
Accused, an Indian, was convicted of the offence of having possession of liquor off a reserve contrary to s. 94(a) of the Indian Act, R.S.C. 1952, c. 149, and appealed on the ground that s. 94 (a) violated his right to "equality before the law" as guaranteed by s. 1(b) and s. 2 of the Canadian Bill of Rights, 1960 (Can.), c. 44, Held, per Tysoe, J.A. (Bird, J.A., concurring), that "equality" before the law does not mean that there must be the same laws for everyone, regardless of such fac- tors as age, ability and characteristics and which would be a practical impossibility if an orderly society is to exist, but only that every per- son to whom a particular law extends has the right to stand on an equal footing with every other person to whom that particular law extends and that no one of such persons shall be in either a more or less ad- vantageous position before the law than any other of such persons. Accordingly s. 94(a) of the Indian Act is not contrary to the Canadian Bill of Rights and the appeal must be dismissed.Per Davey, J.A.: Even if s. 94(a) of the Indian Act does violate the right of accused to "equality before the law" under s. 1(b) of the Canadian Bill of Rights it is not repealed by the latter statute which, by s. 2 thereof, only requires that legislation be construed, if possible, so as not to infringe the general rights set out in s. 1, but where such legislation cannot be sensibly so construed it must prevail according to its plain meaning even though it conflicts with s. 1 of the Canadian Bill of Rights.
APPEAL from a decision of Maclean, J., 130 Can. C.C. 400, sustaining on an appeal by way of a stated case, a conviction by Pool, P.M., 130 Can. C.C. 206, for unlawful possession of liquor contrary to s. 94(a), Indian Act (Can.). Affirmed.
T. Berger, for appellant.
T. G. Bowen-Colthurst, Q.C., for respondent.
BIRD, J.A.:--I would dismiss this appeal for the reasons expressed by my brother Tysoe, in which I concur.
DAVEY, J.A.:--The appellant appeals from a decision by Maclean, J. [130 Can. C.C. 400], by which that learned Judge on a stated case upheld appellant's summary convict- ion of an offence of having liquor off an Indian Reserve con- trary to s. 94(a) of the Indian Act, R.S.C. 1952, c. 149. The sole ground of appeal is that s. 94(a) infringes s. 1(b) of the Canadian Bill of Rights, 1960 (Can.); c. 44, which de- clares one of the human rights and fundamental freedoms to be "the right of the individual to equality before the law and the protection of the law". Appellant submits s. 94(a) must therefore be taken to have been repealed by the Canadian Bill of Rights.
The difficulty in interpreting and applying the very general language of the Canadian Bill of Rights has not been exag- gerated. It is, in my opinion, impossible at this early date, to fully grasp all the implications of the Act, or to determine its application in circumstances that cannot be fully foreseen. In particular, it occurs to me that these human rights and fund- amental freedoms, especially s. 1(b), may operate quite dif- ferently on conflicting subordinate legislation, such as Orders in Council and orders and by-laws of ministerial and admin- istrative bodies, than they do on parliamentary enactments. In short, the effect of the Canadian Bill of Rights may be to nullify and avoid orders and regulations of subordinate bodies that abrogate or infringe any of those rights or freedoms. If so, the interpretation of s. 1(b) should perhaps be considered in that light. While I am somewhat reluctant to dispose of this appeal without attempting to explore the meaning of s. 1 (b), I am persuaded that it is better to let the jurisprudence under this Act develop step by step as the problems arise. So I propose to base my judgment on a very narrow point.
Turning to this appeal. I am far from being convinced that s. 94(a) violates "the right of the individual to equality be- fore the law, and the protection of the law", as that language is used in the Canadian Bill of Rights, but, without deciding the point, I will assume for the purpose of this judgment that it does.
Section 2 declares:
2. Every law of Canada shall, unless it is expressly declared by
an Act of the Parliament of Canada that it shall operate notwith-
standing the Canadian Bill of Rights, be so construed and applied
as not to abrogate, abridge or infringe or to authorize the abroga-
tion, abridgment or infringement of any of the rights or freedoms
herein recognized and declared, and in particular, no law of Can-
ada shall be construed or applied so as to . . .
In so far as the specific matters that follow this part of s. 2
are concerned, it may be that the effect is to nullify existing legislation to the extent that it purports to authorize any of the specifically prohibited things. But since none of those things are involved in this appeal, it is unnecessary to express any final opinion on that point, and I refrain from doing so.
In so far as existing legislation does not offend against any of the matters specifically mentioned in clauses (a) to (g) of s. 2, but is said to otherwise infringe upon some of the human rights and fundamental freedoms declared in s. 1, in my opinion the section does not repeal such legislation either expressly or by implication. On the contrary, it expressly recognizes the continued existence of such legislation, but provides that it shall be construed and applied so as not to derogate from those rights and freedoms. By that it seems merely to provide a canon or rule of interpretation for such legislation. The very language of s. 2, "be so construed and applied as not to abrogate" assumes that the prior Act may be sensibly construed and applied in a way that will avoid derogating from the rights and freedoms declared in s. 1. If the prior legislation cannot be so construed and applied sen- sibly, then the effect of s. 2 is exhausted, and the prior leg- islation must prevail according to its plain meaning.
The application of that rule of construction to existing legislation may require a change in the judicial interpreta- tion of some statutes where the language permits and thus change the law.
The difficulty with s. 94(a) of the Indian Act is that it admits of no construction or application that would avoid conflict with s. 1(b) of the Canadian Bill of Rights as appel- lant's counsel interprets it. Since the effect of the Canadian Bill of Rights is not to repeal such legislation, it is the duty of the Courts to apply s. 94(a) in the only way its plain language permits, and that the learned Magistrate did when he convicted.
I would dismiss the appeal.
TYSOE, J.A.:--This is an appeal from a judgment of Mac- lean, J. [130 Can. C.C. 400], dismissing an appeal by way of a stated case from a conviction by Police Magistrate A. D. Pool [130 Can. C.C. 206], for that:
CONTRARY TO THE FORM OF THE STATUTE IN SUCH CASE MADE AND
PROVIDED.. . . Harvey Jerome GONZALES being an Indian as defined by the
Indian Act of Canada on Thursday the 16th day of March A.D.
1961 in the City of North Vancouver County, and Province aforesaid
was UNLAWFULLY in possession of an intoxicant off an Indian Re-
serve.
The pertinent section of the Indian Act, is s. 94(a), and it is as follows:
(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 not 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 imprison-
ment.94. An Indian who
The question before us is whether the Canadian Bill of Rights, renders s. 94(a) of the Indian Act inoperative. The appellant submits that s. 94(a) of the Indian Act abrogates or infringes the right of Indians to "equality before the law" that this is not permitted by the Canadian Bill of Rights. Appellant's counsel confined himself to this submission. The appellant relies on the preamble and s. 1(b) and s. 2 of the Canadian Bill of Rights. Section 1 and the pertinent part of s. 2 are as follows:
(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.
2. Every law of Canada shall, unless it is expressly declared by
an Act of the Parliament of Canada that it shall operate notwith-
standing the Canadian Bill of Rights, be so construed and applied
as not to abrogate, abridge or infringe or to authorize the abroga-
tion, 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 . . . .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,
By s. 5(2) of the Canadian Bill of Rights it is provided that the expression " 'law of Canada' " when used in sections 1 to 4 means, inter alia, an Act of the Parliament of Canada en- acted before or after the coming into force of the statute.
Counsel for the appellant suggests that s. 94 (a) of the Indian Act constitutes discrimination against Indians as a race and because they are Indians, and so he argues it flies directly in the face of the words "without discrimination by reason of race, national origin, colour, religion or sex" in s. 1 of the Canadian Bill of Rights. Proceeding from this premise,
he submits that s. 94(a) of the Indian Act and the Canadian Bill of Rights cannot live together and the latter must survive.
Counsel for the Crown answers by submitting that s. 94 (a) of the Indian Act does not discriminate against Indians be- cause they are of a particular race, but that the section is one of a number of sections in the Act of a protective nature, Indians being a group of people who for special reasons the Canadian Government is in duty bound to protect. Further, that the Canadian Bill of Rights is not intended to stand in the way of reasonable measures of this kind and should not be construed so that it does. If I understood Crown counsel correctly, he suggested that prohibitions and other provisions directed to particular groups of persons would not be con- trary to the Canadian Bill of Rights so long as they are rea- sonably necessary for the protection of such groups or of other members of the public, and so long as they are not of an arbitrary nature. Further, that if a rational and reasonable basis for some discrimination exists, the legislation is good provided the discrimination is not based on race, national origin, colour, religion or sex.
As I read the Canadian Bill of Rights, the human rights and fundamental freedoms enumerated in s. 1 belong to all persons irrespective of their race, national origin, colour, religion or sex. The words "without discrimination by reason of race, national origin, colour, religion or sex" are not quali- fying words. I am doubtful if this phrase is to be interpreted as extending further than to emphasize that the rights and freedoms exist for all persons no matter who they may be.
In my view, the test to be applied in this case is not whether s. 94(a) of the Indian Act constitutes discrimination against Indians as a race but whethre it abrogates or infringes the appellant's right to "equality before the law". It follows that this appeal falls to be determined on the true meaning of the expression "equality before the law" as it appears in s. 1(b) of the Canadian Bill of Rights.
Counsel for the appellant submitted that equality before the law means application of the law equally to everyone and equal laws for everyone in the sense of the same laws for all persons. He frankly stated that he had not been able to find any case or text-book in which the expression has been defined, and so the matter is really one of first impression. Counsel for the Crown was not able to assist us in this respect. We were referred to decisions of American Courts dealing with certain provisions of the Constitution of the United States, but it does not appeal to me that any of such decisions directly
touch upon the meaning of "equality before the law", al- though opinions are expressed in some as to what is meant by "equal protection of the laws" and "equality of the laws". I think these are different matters to "equality before the law". It is interesting to note that in the United States native Indians are subject to much the same restrictions as to pos- session of liquor and are given much the same protection as are the native Indians of Canada by our Indian Act. But we were not referred to any case in which it has been held that such a provision as s. 94(a) of the Indian Act abrogates or infringes any human rights or fundamental freedoms recog- nized by the Constitution of the United States. Indeed, the cases seem to be the other way: see 42 Corp. Jur. Sec., s. 76, p. 791; United States v. Nice (1916), 241 U.S. 591, in which Mr. Justice Van Devanter, speaking for the Court, said at p. 597:
The power of Congress to regulate or prohibit traffic in intoxicat-
ing liquor with tribal Indians within a State, whether upon or off
an Indian reservation, is well settled. It has long been exercised
and has repeatedly been sustained by this Court. Its source is two-
fold; first, the clause in the Constitution expressly investing Con-
gress with authority "to regulate commerce . . . with the Indian
tribes", and, second, the dependent relation of such tribes to the
United States.
I can understand a civilized society in which all persons to whom a particular law relates or extends have equality under that particular law, but I cannot visualize a society in which precisely the same rights, privileges, duties and obligations rest upon everyone regardless of age, ability, characteristics and other things. Without attempting any comprehensive definition, it may be said the law is the body of rights, privileges, duties and obligations which belong to and rest upon the citizens of our country. In a civilized society such as ours, it is necessary for the good of the whole that certain persons be denied rights or privileges of some par- ticular kind and that particular duties and obligations rest upon certain other persons. And this for a variety of reasons, of which age, ability and characteristics are some. In my view, it would be a practical impossibility, having regard to human frailties and weaknesses, for an orderly society to exist if there were equal laws for everyone in the sense of the same laws for everyone.
Equality before the law in the sense for which appellant's counsel contends is a practical impossibility. The common law and all legislation is built upon the needs of the com- munity as a whole. All law is necessarily directed to the de-
fining, creating and imposing of rights, duties and liabilities; that is its object. It is neither reasonable nor possible that everyone should have the same rights, the same duties and the same liabilities as everyone else.
Coming now to s. 1(b) of the Canadian Bill of Rights. The meaning of the word "equality" is well known. In my opinion, the word "before" in the expression "equality before the law", in the sense in which that expression is used in s. 1 (b) means "in the presence of". It seems to me this is the key to the correct interpretation of the expression and makes it clear that "equality before the law" has nothing to do with the application of the law equally to everyone and equal laws for everyone in the sense for which appellant's counsel contends, namely, the same laws for all persons, but to the position occupied by persons to whom a law relates or extends. They shall be entitled to have the law as it exists applied equally and without fear or favour to all persons to whom it relates or extends.
It would be difficult and indeed unwise to attempt an exact and includes definition of s. 1(b) applicable to all possible cases and circumstances and I have no intention of doing so. It is sufficient to say that in my opinion in its context s. 1 (b) means in a general sense that there has existed and there shall continue to exist in Canada a right in every person to whom a particular law relates or extends, no matter what may be a person's race, national origin, colour, religion or sex, to stand on an equal footing with every other person to whom that particular law relates or extends, and a right to the pro- tection of the law. To exemplify: There shall exist in every such person a right to be subject, for instance, to the same processes of law and the same presumptions, evidential and otherwise, and whether they be in his favour or against him, and to the same penalties and punishments and to have the same rights to claim and defend as every other such person, and there shall be no discrimination in these respects in favour of or against any such person because of race, national origin, colour, religion or sex. So all persons to whom a particular law relates or extends shall be on the same level in such respects, and no one of such persons shall be in either a more or less advantageous position than any other of such persons, provided that the requirements of the particular law have been met. Section 1 (b) declares the existence of this right of equality before the law and s. 2 provides that "every law of Canada shall . . . be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation,
abridgment or infringement" of this right. This is not to say that a law or provision or qualification of a law which confers or imposes upon some person or group of persons different rights, duties, or obligations than it or some other law or provision or qualification of a law confers or imposes upon some other person or group of persons must necessarily be regarded by its tenor as abrogating, abridging or infringing the right of the individual to equality before the law.
Equality before the law as I have explained it is quite a different thing to equal laws for everyone which, as I have already indicated, would be a practical impossibility. Never have our laws been the same for everyone regardless of such matters as age, ability and characteristics, but the two rights, "equality before the law" and "protection of the law" are deeply rooted in our traditions.
I, as one of Her Majesty's Judges, am deprived by law of the right to cast a vote in Federal elections and so are all of Her Majesty's Judges. The reason for this is that Judges are members of a group of persons whom Parliament in its wisdom feels should not have the same right to vote as other citizens. All members of the group encompassed by this par- ticular law -- what I may call the judicial class -- are on the same footing in this respect but they are not on the same footing as their fellow citizens. I doubt if anyone would seriously suggest that we have here a case of "inequality before the law"; yet the fact is the law as to the Federal franchise is not equal in the sense of being the same for one whose occupation is that of Judge and for one who is engaged in some other occupation. This is only one of many examples which could be cited.
The Indian Act is legislation which applies to a particular group of citizens, namely, native Indians, a group which Parliament feels that for the good of its own members and of society as a whole ought to have particular rights and privileges and particular disabilities. If the contention of appellant's counsel is correct, the Canadian Bill of Rights operates to make ineffectual the provisions of the Indian Act which confer special rights and privileges on the group of native Indians, for such provisions confer upon that group rights and privileges which are not given to citizens who are not members of that group and so they discriminate against such last-mentioned citizens. It logically follows from the contention of the appellant's counsel that the Canadian Bill of Rights renders inoperative these provisions. In the result, practically the whole of the Indian Act would be invalidated
by the Canadian Bill of Rights. I am not prepared to hold that the Canadian Bill of Rights, on its true interpretation, has this effect. If it does not render inoperative the provisions of the Indian Act which confer special rights and privileges, it does not render inoperative s. 94 (a).
Section 94(a) of the Indian Act does not abrogate or in- fringe the right of the appellant to "equality before the law" as I understand it. Section 2 of the Canadian Bill of Rights does not therefore affect it.
There has been no suggestion that the appellant is in any different position to any of the other persons to whom s. 91 (a) of the Indian Act relates.
For these reasons I would dismiss the appeal.
I desire to make it plain that this judgment and everything contained in it is directed and limited to the subject of the right of the individual to equality before the law, and that I have not considered the effect of the Canadian Bill of Rights in its relation to any of the other human rights and funda- mental freedoms to which it refers.
Appeal dismissed.