Manitoba Court of Appeal, Guy, Dickson and Hall JJ.A., 9 August 1972
(On appeal from judgment of Manitoba Queen's Bench, supra p.99)
(Appealed to Supreme Court of Canada, reported sub nom. Attorney-General of Canada et al. v. Canard et al., infra p.120)
Sections 42, 43 and 44 of the Indian Act, R.S.C. 1970, c. I-6, providing that jurisdiction in relation to testamentary matters with respect to In- dians is, unless the Minister of Indian Affairs and Northern Develop- ment confers jurisdiction on the Court that would have jurisdiction if the deceased were not an Indian, vested exclusively in the Minister and empowering the Minister, inter alia, to appoint administrators of estates of deceased Indains and authorize them to administer the property of In-
However, since ss. 42 to 44, in providing for the appointment of an ad-
ministrator by the Minister, deprive an Indian spouse of the right to
apply to a Court of competent jurisdiction to administer the estate of his
or her deceased spouse, they deny, on the basis of race alone, a civil right
which other Canadians enjoy and thus abrogate the right to equality
before the law and the protection of the law. While certain provisions of
the Indian Act are for the protection and advantage of the Indian and,
as such, apply only to Indians, it does not follow that those provisions
are invalid as being discriminatory. The Canadian Bill of Rights, 1960
(Can.), c. 44 (now R.S.C. 1970, App. III), is intended to erase all marks
of servitude based on race and the freedoms assured to others though the
Canadian Bill of Rights cannot be treated as having been bartered away
in return for these advantages. Furthermore, while there may be, as long
as there are reserves, a need for some limitation on the rights of the
Indians to alienate, inter vivos or by will, the lands of the reserve, control
of testamentary capacity is not a necessary incident to the control of land.
Following the death intestate of the respondent's husband the ap-
pellant was appointed administrator of the estate and in that capacity
commenced an action claiming damage from one H in respect of the ac-
cident in which the deceased was killed. The respondent, unaware of
these developments, applied for and was granted letters of administra-
tion and commenced an action against H. The Judge of first instance
held, on a preliminary objection, that ss. 42, 43 and 44 of the Indian Act
did not apply. On appeal, held, the appeal should be dismissed. While
the sections applied, they were inoperative.
[R. v. Drybones (1969), 9 D.L.R. (3d) 473, [1970] 3 C.C.C. 355, [1970]
S.C.R. 282, 71 W.W.R. 161, 10 C.R.N.S. 334, apld; R. v. Gonzales (1962),
32 D.L.R. (2d) 290, 132 C.C.C. 237, 37 W.W.R. 257, 37 C.R. 56, not folld;
Re Water Powers' Reference, [1929] 2 D.L.R. 481, [1929] S.C.R. 200; Re
Lavell v. A.-G. Can. (1971), 22 D.L.R. (3d) 188, [1971] F.C. 347, refd
to]dians who die intestate are intra vires the Parliament of Canada. Sec-
tion 91(24) of the B.N.A. Act, 1867, enabling Parliament to legislate
exclusively on all matters falling within the subject of Indians, embraces
everything reasonably having to do with Indians and includes the es-
tablishment for Indians of a comprehensive testamentary code. Al-
though s. 42 et seq. effect an ouster of the jurisdiction of a provincial
Court, Parliament may by virtue of s. 101 of the B.N.A. Act, 1867 es-
tablish Courts having exclusive jurisdiction in a field that is within the
jurisdiction of Parliament and it does not matter whether that juris-
diction is transferred from one Court to another "Court" or to a Board
or, as here, to a Minister of the Crown.
In interpreting the meaning of the words "ordinarily reside" in s. 4(3) of the Indian Act, R.S.C. 1970, c. I-6, it is permissible to adopt as a guide line the Rules governing band elections promulgated by Order in Council and interpreting the words "ordinarily resident" as used in
[Thomson v. M.N.R., [1946] 1 D.L.R. 689, [1946] S.C.R. 209, [1946]
C.T.C. 51; Levene v. Inland Revenue Com'rs, [1928] A.C. 217;
Stransky v. Stransky, [1954] 2 All E.R. 536; Emperor of Russia v.
Proskouriakoff (1908), 18 Man. R. 56, refd to]s. 77(1) of the Indian Act giving a band member ordinarily resident on a
reserve the right to vote for the chief of the band and for councillors.
Accordingly, where it is shown that an Indian regularly occupied a house
on a reserve and only lived elsewhere during three successive summers
during which time he acted as a helper on a farm, held, having lived on
the reserve with some degree of continuity, ordinary residence was es-
tablished and it was not lost by temporary or occasional or casual ab-
sences.
APPEAL from the judgment of Matas, J., [1972] 4 W.W.R. 618, holding ss. 42, 43 and 44 of the Indian Act (Can.) to be inapplicable.
H. B. Monk, Q.C., and J. H. Dixon, for defendants, ap- pellants.
W. Rachman, for plaintiff, respondent.
The judgment of the Court was delivered by
DICKSON, J.A.:--This case raises a question of considerable importance under the Indian Act, R.S.C. 1970, c. I-6. It con- cerns the right to administer the estate of Alexander Canard late of the Fort Alexander Indian Reserve No. 3 of the Prov- ince of Manitoba. The contest is between Mrs. Flora Canard, widow of the late Alexander Canard, and William Barber Rees, Superintendent in charge of the Clandeboye Fisher River Indian District. Mrs. Canard was appointed administra- trix of the estate by letters of administration issued out of the Surrogate Court of the Eastern Judicial District of Manitoba. Mr. Rees was appointed administrator of the estate pursuant to ss. 42 and 43 of the Indian Act and amendments thereto. These sections read as follows:
42(1) Unless otherwise provided in this Act, all jurisdiction and
authority in relation to matters and causes testamentary, with re-
spect 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 posses-
sion 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 Sep-
tember, 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 adminstrators to administer the property of In-
dians who die intestate;
(d) carry out the terms of wills of deceased Indians and ad-
minister the property of Indians who die interstate; 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
Section 44 of the Act is pertinent. It reads:
44 (1) The court that would have jurisdiction if the deceased were
not an Indian may, with the consent of the Minister, exercise, in ac-
cordance 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 ordi-
narily 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 adminis-
tration 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 the Minister
enforce any order relating to real property on a reserve.
The Minister of Indian Affairs and Northern Development has not given the Surrogate Court his consent to the exercise of testamentary jurisdiction, pursuant to s. 44 (1) nor any di- rection pursuant to s. 44 (2), in relation to the estate.
Section 4 (3) of the Act is of particular significance as it is upon this subsection that Matas, J., in the Court of Queen's Bench decided the case in favour of Mrs. Canard:
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.
Sections 114 to 123 deal with the operation of Indian schools and require Indian children to attend such schools. Sections 42 to 52 deal with descent of property of deceased Indians. They virtually vitiate the testamentary capacity of Indians. Section 42 (1), quoted above, vests all jurisdiction and authority in relation to matters and causes testamen- tary, in respect of deceased Indians, exclusively in the Min- ister; s. 43 (a), inter alia, grants the Minister power to
appoint or remove executors or administrators of the estates of deceased Indians, and appoint others in their stead; s. 45 (3) provides that no will executed by an Indian has any legal force or effect as a disposition of property until the Minister has approved the will or a Court has granted probate thereof pursuant to the Act; s. 46 (1) permits the Minister on any of six different grounds to declare the will of an Indian to be void in whole or in part.
From an agreed statement of facts we learn that the late Alexander Canard was an Indian, registered as such under the Indian Act, and a member of the Fort Alexander Band of In- dians. The late Mr. Canard and Mrs. Canard began to live on the Fort Alexander Indian Reserve in 1964. In October, 1967, a house was built for them on the reserve and they occupied it as their home until Mr. Canard's death. Mrs. Canard con- tinues to reside there.
In 1967 and 1968 Mr. Canard was employed for several weeks each summer as a helper on a farm at St.. Andrews, Manitoba. On those occasions the Canard family moved into the bunk-house on the farm and when the work was done they moved back to the reserve.
In the summer of 1969, Mr. Canard again moved his family to the farm. He began work on July 4th, two days before he was struck and fatally injured by an automobile while walk- ing on a highway near the town of Parkdale, in Manitoba.
Pursuant to s. 43 of the Indian Act Mr. Rees was appointed administrator of the estate on December 1,1969. On March 1, 1970, as such administrator, he commenced an action in re- spect of the accident, claiming damages from John Alan Hodg- son, Penner Dodge and Chrysler Ltd., Canada Land and the Province of Manitoba.
Mrs. Canard was not told by the Department that Mr. Rees had been appointed administrator of the estate of her late hus- band, nor was she told that an action had been commenced on behalf of the estate to recover from those allegedly responsible for the death of Mr. Canard. Unaware of these developments, she, on her own initiative, consulted counsel, applied for let- ters of administration which were granted to her on March 18, 1970, and on July 6, 1970, commenced an action for dam- ages against Mr. Hodgson et al.
So we have at present two persons contending for adminis- tration of the estate, neither of whom will yield to the other, and there are two outstanding statements of claim.
Ordinarily reside on a reserve
As stated, Matas, J., relied on s. 4 (3) of the Indian Act in ruling in favour of Mrs. Canard. He made the following find- ing: "I find that Canard was ordinarily resident with his family on the farm at St. Andrews in Manitoba for the period during which he worked there. He was ordinarily resident on the reserve the rest of the time. When Canard died, he was not ordinarily resident on the reserve."
The words "ordinarily resident" have been judicially con- sidered in many cases, principally income tax cases or matri- monial causes. Among the former: Thomson v. M.N.R., [1946] 1 D.L.R. 689 at p. 701, [1946] S.C.R. 209, [1946] C.T.C. 51, in which Rand, J., said: "It is held to mean resi- dence in the course of the customary mode of life of the person concerned, and it is contrasted with special or occasional or casual residence"; Levene v. Inland Revenue Com'rs, [1928] A.C. 217 at p. 225, in which Viscount Cave, L.C., said: ". . . I think that it connotes residence in a place with some degree of continuity and apart from accidental or temporary absences". Among the latter: Stransky v. Stransky, [1954] 2 All E.R. 536 at p. 541, in which Karminski, J., applied the test: "where . . . was the wife's real home?" Perdue, J.A., of this Court, in Emperor of Russia v. Proskouriakoff (1908), 18 Man. R. 56 at p. 72, held that the words "ordinarily resident" simply meant where the person had "his ordinary or usual place of living".
Applying any of these tests it would seem to me that at the time of his death Alexander Canard was ordinarily resident on the reserve. He normally lived there, with some degree of continuity. His ordinary residence there would not be lost by temporary or occasional or casual absences.
When one seeks to interpret the phrase "ordinarily resi- dent" within the context of the Indian Act one is re-enforced in the view which I have expressed. Section 77 (1) of the Act gives a band member "ordinarily resident on the reserve" the right to vote for the chief of the band and for councillors. Par- liament could not have intended that an Indian would lose such voting rights, and lose the right to have his children schooled pursuant to s. 114 et seq. if he left the reserve during the summer months to guide or gather wild rice or work on a nearby farm.
The words "ordinarily resident" as used in s. 77 of the Act have been interpreted by Order in Council, Indian Band Elec- tion Regulations P.C. 1954-1367, SOR/54-425, which es- tablishes Rules governing band elections, a subject covered in
more general terms in s. 77 of the Act, Admittedly Rules con- tained in Regulations affecting one section of the Act do not govern the meaning to be given to the words in a different section of the Act. However, I am content to adopt the Rules found in those Regulations as appropriate for guidance in in- terpreting the words "ordinarily resident" as found in s. 4 (3) of the Act. Such Rules accord with the general objects sought to be achieved by the Indian Act and there is the added advan- tage of maintaining consistency in the interpretation to be given to the words "ordinarily resident" whether in s. 77 or s. 4 (3) of the Act.
These Rules read:
3. The following rules apply to the interpretation of the words "or-
dinarily resident" in respect of all matters pertaining to the right of
an elector to vote in an election:
(a) Subject to the other provisions of this section, the question
as to where a person is or was ordinarily resident at any
material time or during any material period shall be deter-
mined by reference to all the facts of the case;
(b) The place of ordinary residence of a person is, generally,
that place which has always been, or which he has adopted
as, the place of his habitation or home, whereto, when away
therefrom, he intends to return and, specifically, where a
person usually sleeps in one place and has his meals or is
employed in another place, the place of his ordinary resi-
dence is where that person sleeps;
(c) A person can have one place of ordinary residence only,
and he shall retain such place of ordinary residence until
another is acquired;
(d) Temporary absence from a place of ordinary residence does
not cause a loss or change of place of ordinary residence.
If one applies the foregoing Rules, one would, I think, con- clude that the late Mr. Canard was ordinarily resident on the reserve.
I hold that the late Mr. Canard at the time of his death, al- though resident on the farm at St. Andrews, was ordinarily resident on the Fort Alexander Reserve, and therefore s. 4 (3) of the Indian Act does not apply.
There remain two questions which Matas, J., was not required to consider by reason of his finding on the prelimi- nary issue of "ordinarily resident":
(1) the constitutional validity of ss. 42, 43 and 44 of the In- dian Act, and
(2) whether these sections are affected by the Canadian Bill of Rights, 1960 (Can.), c. 44 [now R.S.C. 1970, App. III].
The constitutional validity of ss. 42 to 44 of the Indian Act
Section 91, para. 24, of the B.N.A. Act, 1867, conferred exclusive legislative authority on the Parliament of Canada in "all Matters" coming within the subject "Indians and lands reserved for the Indians". This "enables the Dominion to legislate fully and exclusively, upon matters falling strictly within the subject 'Indians'", per Duff, J., as he then was, in Re Water Powers' Reference, [1929] 2 D.L.R. 481 at p. 485, [1929] S.C.R. 200.
It has been held that the Parliament of Canada has exclu- sive right to legislate regarding Indians, not only as regards administration but also judicially: Delorimier v. Cross (1937), 62 Que. K.B. 98.
In Laskin on Canadian Constitutional Law, 3rd ed. (1966), p.550, it is said:
There is no doubt but that Parliament alone has authority to regu- late the lives and affairs of Indians on a reservation and, indeed, to control the administration of a reservation; provincial laws are inapplicable on a reservation (save as they may be referentially in- troduced through federal legislation): see Rex v. Jim (1915), 26 B.C.R. 106, 26 Can. C.C. 236; Rex v. Rodgers, [1923] 3 D.L.R. 414, [1923] 2 W.W.R. 353; Warman v. Francis (1958), 20 D.L.R. (2d) 627, 43 M.P.R. 197, cf. The Indian Act, R.S.C. 1952, c.149, as amended.
I do not think it can fairly be doubted that s. 42 et seq. of the Indian Act are strictly within the subject of Indians. The "subject of Indians" embraces everything reasonably having to do with Indians, not excluding the disposition of their ef- fects.
Section 42 et seq. constitute a comprehensive testamentary code in respect of Indians. It was plainly the intention of Par- liament, in enacting those sections that provincial legislation on the subject of wills, devolution of estates and surrogate procedures applicable to others would not apply to Indians or to the administration of their estates unless the Minister so directed.
As s.42 et seq. come within s. 91, para. 24 of the B.N.A. Act, 1867, it is of no consequence that they incidentally affect property and civil rights within the Province. In Re Fisheries Act, 1914; A.-G. Can. v. A.-G. B.C., [1930] 1 D.L.R. 194 at p. 196, [1930] A.C. 111, [1929] 3 W.W.R. 449, the Privy Council stated that so long as it strictly relates to subjects of legislation expressly enumerated in s. 91 the legislation of Parliament is of paramount authority, even though it trenches upon matters assigned to the provincial Legislatures by s. 92.
Counsel for Mrs. Canard argued that if s. 42 et seq. are within s. 91, para. 24 of the B.N.A. Act, 1867, they are none the less invalid for the reason that they effect an ouster of the jurisdiction of a provincial Court. They do indeed effect such an ouster but there is ample authority to the effect that Par- liament has the right to establish Courts having exclusive ju- risdiction in a field that is within the jurisdiction of Parlia- ment and to oust the jurisdiction of provincial Courts in that field. The only question is whether the words by which that object is sought to be achieved are apt for the purpose. As long ago as 1879 in Valin v. Langlois (1879), 3 S.C.R. 1 at p. 75, Taschereau, J., said:
. . . cannot Parliament, in virtue of section 101 of the Act, create new courts of criminal jurisdicton, and enact that all crimes, all offences shall be tried exclusively before these new courts? I take this to be beyond controversy.
And at p. 76 :
I also think it clear, that Parliament can say, for instance, that all judicial proceedings on promissory notes and bills of exchange shall be taken before the Exchequer Court or before any other Federal Court. This would be certainly interfering with the jurisdiction of the Provincial Courts. But, I hold that it has the power to do so quoad all matters within its authority.
Section 101 of the B.N.A. Act, 1867, provides that the Par- liament of Canada may from time to time provide for the es- tablishment of any additional Courts for the better adminis- tration of the laws of Canada and Parliament has in the past acted under this power in establishing the Income Tax Appeal Board, Admiralty Court, Bankruptcy Courts, Labour Board, Immigration Appeal Board and the like. Among the cases in which an ouster of a provincial Court has been considered are: Delorimier v. Cross, supra (ouster of Superior Court of Quebec in favour of the Exchequer Court, by the Indian Act); Nanaimo Community Hotel v. Board of Referees, [1945] 3 D.L.R. 225, [1945] 2 W.W.R. 145, [1945] C.T.C. 125 (ouster of Supreme Court of British Columbia in favour of the Exchequer Court, by the Income War Tax Act), Pringle et al. v. Fraser, a judgment of the Supreme Court of Canada pro- nounced March 30, 1972, not yet reported [since reported 26 D.L.R. (3d) 28]; reversing 19 D.L.R. (3d) 129, [1971] 2 O.R. 749; R. v. Beattie, Ex p. Edery (1969), 7 D.L.R. (3d) 654, 70 W.W.R. 553, and R. v. Department of Manpower & Immigra- tion, Ex p. Hosin (1970), 12 D.L.R. (3d) 704, [1970] 3 O.R. 268 (ouster of the ordinary Courts in favour of the Immigra- tion Appeal Board, by the Immigration Appeal Board Act);
Klingbell v. Treasury Board, [1972] 2 W.W.R. 389 (ouster of Court of Queen's Bench of Manitoba in favour of the Federal Court, by the Federal Court Act).
Counsel then submitted that if ouster of jurisdiction is pos- sible, there is nevertheless a distinction between transferring jurisdiction from one Court to another Court or to a board, and transferring it from a Court to a Minister of the Crown; that the former may be within the federal power but the latter is not. I cannot accept this argument. Acting within the area of its legislative competence Parliament may limit or oust the jurisdiction of a provincial Court and give the jurisdiction which would otherwise reside within that Court to a federal Court or to a federal board or, if Parliament so wishes, to a Minister of the Crown.
I am satisfied that in enacting s. 42 et seq. of the Indian Act, Parliament was acting within the powers given to Parlia- ment by the B.N.A. Act, 1867.
The Canadian Bill of Rights
That brings me to the final, but, in my view, decisive point, namely, the effect of the Canadian Bill of Rights (sometimes hereinafter referred to as the "Bill of Rights").
The material provisions, for present purposes, of s. 1 of the Bill of Rights are:
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 2 provides that, except for any law of Canada expressly declared by an Act of Parliament to operate not- withstanding the Bill of Rights, every law of Canada shall be construed and applied as not to abrogate, abridge or infringe any of the above rights and freedoms. Parliament has not declared that ss. 42 to 44 of the Act shall operate notwith- standing the Bill of Rights.
Since its enactment in 1960 the Bill of Rights has been the subject of many, and diverse, expressions of opinion in the Courts and in the learned journals. Some of the issues were authoritatively laid to rest by the Supreme Court of Canada in R. v. Drybones (1969), 9 D.L.R. (3d) 473, [1970] 3 C.C.C. 355, [1970] S.C.R. 282, 71 W.W.R. 161. This case dealt with s. 94 of the Indian Act which made it an offence for an Indian to be intoxicated off a reserve.
In the Northwest Territories, in which the case had its ori- gin, it was not an offence for anyone except an Indian to be intoxicated otherwise than in a public place. The Liquor Ordinance, R.O.N.W.T. 1956, c. 60, s. 19 (1), which is a law of Canada of general application in the Territories, provides that: "no person shall be . . . intoxicated . . . in a public place". The result, Ritchie, J., observed, was that an Indian who was intoxicated in his own home "off a reserve" was guilty of an offence whereas all other citizens in the Territories might, if they saw fit, become intoxicated otherwise than in a public place without committing any offence at all. Ritchie, J., who wrote the majority opinion, held that s. 94 (b) of the Indian Act was a law of Canada which made it an offence for an in- dividual, on account of his race to do something which his fellow Canadians were free to do without having committed any offence; that s.94 (b) could only be construed in such manner that its application would operate so as to abrogate, abridge or infringe one of the rights declared and recognized by the Bill of Rights, and was therefore inoperative.
During the course of his judgment Ritchie, J., rejected the contention that the Bill of Rights was merely a canon of con- struction and equally, rejected the opinion expressed by Tysoe, J.A., for the majority of the Court of Appeal of British Columbia in R. v. Gonzales (1962), 32 D.L.R. (2d) 290, 132 C.C.C. 237, 37 W.W.R. 257, that [s. 1 (b) ] "the right of the in- dividual to equality before the law and the protection of the law" means [at p. 296] "a right in every person to whom a particular law relates or extends . . . to stand on an equal footing with every other person to whom that particular law relates or extends . . .".
Ritchie, J., took pains in the concluding paragraph of his judgment to [at pp. 485-6] "make it plain that these reasons for judgment are limited to a situation in which, under the laws of Canada, it is made an offence punishable at law on account of race, for a person to do something which all Canadians who are not members of that race may do with impunity;" adding "in my opinion the same considerations do not by any means apply to all the provisions of the Indian Act."
Turning then to the instant case and the question -- Does s. 43 of the Indian Act, which has the effect of denying Mrs. Canard the right to administer the estate of her deceased hus- band, abrogate, abridge or infringe any of the human rights and fundamental freedoms recognized and declared in the Bill of Rights? Among the rights so recognized and declared is
"the right of the individual to equality before the law and the protection of the law". Ritchie, J., in the Drybones case said at p. 484:
I think that the word "law" as used in s. 1 ( b ) of the Bill of Rights is to be construed as meaning "the law of Canada" as defined in s. 5 (2) . . . and without attempting any exhaustive definition of "equality before the law" I think that s. 1 (b) means at least that no individual or group of individuals is to be treated more harshly than another under that law.
Of importance also is the statement by Ritchie, J., at p. 485, that "full effect must be given to the terms of s. 2" and the statement by Hall, J., at pp. 486-7:
The Canadian Bill of Rights is not fulfilled if it merely equates Indians with Indians in terms of equality before the law, but can have validity and meaning only when, subject to the single exception set out in s. 2, it is seen to repudiate discrimination in every law of Canada by reason of race, national origin, colour, religion, or sex in respect of the human rights and fundamental freedoms set out in s.1 in whatever way that discrimination may manifest itself not only as between Indian and Indian, but as between all Canadians whether Indian or non-Indian.
The Bill of Rights proclaims an egalitarian doctrine. It as- sures Mrs. Canard "without discrimination by reason of race" "the right to equality before the law". I do not think Mrs. Canard can be said to be in a position of equality before the law when that law denies her a civil right which other Cana- dians, not of her race, enjoy -- the right to administer the es- tate of her husband. The denial of that right is a negation of the principle of equality and places Mrs. Canard in a state of inferiority vis-à-vis other Canadians.
The discrimination to which she is subjected stems from the fact that she is an Indian. It is discrimination by reason of race. Her right to equality before the law having been abro- grated, abridged or infringed by s. 43 of the Act, that section in so far as it precludes her from administering the estate of her deceased husband must, in my view, be declared inoperative.
In reaching that conclusion I have not been unaware of the argument frequently advanced that Parliament in its wisdom in enacting the Indian Act embodied therein many provisions which are of advantage to Indians, when compared with other Canadians, as well as some which place Indians at a dis- advantage. It can hardly have been the intention of Parliament, it is said, that the Bill of Rights would have the effect of making inoperative the provisions which place Indians at a disadvan- tage, leaving untouched those provisions which are to their advantage. I cannot agree with that argument. The Bill of
Rights, as I read it, is intended to erase all marks of servitude based on race, national origin, colour, religion or sex. It is not consonant with reason or justice that Indians forfeit basic rights and freedoms which other men are assured through the Bill of Rights, for the reason that the Indian Act gives In- dians certain perquisites not shared by other men. One cannot place in a balance, and weigh, legal equality and material benefits, concluding in the end that each is of equal weight and they therefore cancel each other out. The freedoms expressed in the Bill of Rights cannot be bartered away.
Nor am I unaware of the contention that Indians have throughout been in a state of dependency and pupillage and must so continue for their own protection. This argument in substance equates Indians with children and mental defec- tives. It is not an analogy which I can accept. If the Bill of Rights means anything, it means that no racial group shall be deemed inferior to any other racial group in the enjoyment of basic human rights and fundamental freedoms. Clearly one of the central purposes is to eliminate any and all kinds of racial discrimination in order that the colour of a person's skin shall not determine his rights before the law. Parenthetically it may be observed that Mrs. Canard proved herself quite capable of retaining counsel and doing those things which need to be done in obtaining, with the help of counsel, letters of adminis- tration and issuing a statement of claim.
The argument that the Indian Act does not contravene the Bill of Rights because its purpose is protective was considered by L. H. Leigh in "The Indian Act, the Supremacy of Parlia- ment, and the Equal Protection of the Laws", 16 McGill L.J., No. 2, 389 at pp. 396-7 (1970):
The problems, or potential problems with this argument are
twofold. First, even a protective measure may be discriminatory, at
least viewed from the standpoint of the individual rather than the
group. If the constitutional protections enure to the benefit of indi-
viduals (and the Canadian Bill of Rights is so drafted) then much
discrimination in the interests of the group may be invalid, however
benign the intent underlying it. If rights are individual, then any
individual in a protected group is entitled to repudiate the protective
measure as discriminatory. He need not accept governmental pater-
nalism where this restricts him in exercising rights which others
enjoy. Of course these remarks will not fit all cases. If for example
land were conveyed to a group, only the members of which could oc-
cupy it, and none of whom was granted a separate interest which he
could alienate, the restraint upon him would not amount to invalid
discrimination. The right and the restriction arise uno flatu.
Secondly, and of equal importance is the evident reluctance of
American Courts to assume the existence of racial characteristics
warranting protective legislation.
I would add this -- so long as there are Indian reserves there must be, I should think, limitation of the right of Indi- ans to alienate, inter vivos or by will, the lands of the reserva- tion or any estate or interest therein. Some restriction is es- sential to the preservation of the treaties and the integrity of the reserves. But control of testamentary capacity is not a necessary incident to the control of land. In the present case the land or an interest therein is not, so far as I am aware, a factor. The estate of Mr. Canard consists of a money claim. Even if an interest in land did form part of an estate, the ad- ministrator would take such interest subject to whatever re- striction or alienation had earlier been imposed.
One learned author, W. S. Tarnopolsky, in an article "The Canadian Bill of Rights From Diefenbaker to Drybones", 17 McGill L.J., No. 3, p. 437 (1971), raises a further point which needs to be considered. He says, at pp. 456-7:
Although Mr. Justice Ritchie does not make this explicit, it would seem clear that the Drybones case would not be applicable to the operation of section 94 of the Indian Act in any of the provinces of Canada. The reference in the Canadian Bill of Rights is to "the law of Canada", which is defined as referring to that law which is within the legislative jurisdiction of Parliament. Therefore, an in- equality which arises because of different provisions in a federal statute as contrasted with a provincial statute, would not be covered by the present "equality before the law" clause in the Canadian Bill of Rights. Thus, although the Indian Act limits the testamentary rights of Indians in a way that no provincial laws limit the tes- tamentary rights of any other person, this provision in the Indian Act could not be declared inoperative merely on the strength of the Drybones decision. It cannot apply to an inequality which arises because of the operation of a federal law and a provincial law. For one thing, this answers Mr. Justice Pigeon's problem which he says arises out of the fact that Parliament is given specific legislative jurisdiction with respect to Indians and their lands. He was bothered by the fact that almost any legislation in the Indian Act, unless it treats Indians equally with everyone else, even, or perhaps, if it treats Indians better than anyone else, would necessarily be declared invalid. Whether this should be so or not is not the issue for this article. The effect of the Drybones decision does not go that far. The decision is limited to an inequality which arises by operation of two or more provisions in federal statutes or regulations.
I accept that this case cannot be decided merely on the strength of the Drybones decision. I also recognize the validity of the argument advanced in the Drybones case that the ques- tion of whether a piece of federal legislation has been ren- dered inoperative should not rest upon the law of any Prov- ince or territory, for its operation would then vary from Province to Province and from time to time. But I do not
think that is the situation with which we are faced in the present case. 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 hus- band". 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 dis- criminatory legislation, whether or not there be provincial legislation touching the subject-matter.
In Re Lavell v. A.-G. Can. (1971), 22 D.L.R. (3d) 188, [1971] F.C. 347, the Federal Court of Appeal held inoperative s. 12(1) (b) of the Indian Act which deprived an Indian woman who married a non-Indian of her rights as an Indian under the Act while not affecting a similar result in respect of the marriage of a male Indian to a non-Indian. Thurlow, J., for the Court said at p. 191:
It is, of course, clear that the discrimination in that case was be- tween the rights of Drybones, as an Indian to whom the Indian Act applied, and those of other Canadians not subject to the particular provision but nevertheless subject only to the laws of Canada as dis- tinguished from laws of particular Provinces of Canada, but that this sort of discrimination is not the only kind within the precept of the Canadian Bill of Rights and does not represent its full scope is emphatically stated in the judgment of Hall, J., in the Drybones case.
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.
I hold that s. 43 of the Indian Act is inoperative to the ex- tent that, in violation of the Bill of Rights guaranteeing the right to equality before the law without discrimination by reason of race, it denies Mrs. Canard administration of the es- tate of her late husband.
I would dismiss the appeal with costs.
Appeal dismissed.