The Position in Canada

138. The Canadian Bill of Rights 1960. In 1960 the Canadian Parliament enacted a short Bill of Rights which included a guarantee of ‘equality before the law’.[43] The Canadian Bill of Rights had no constitutional status and could be overriden by an express derogation clause in later legislation. It affected only federal legislation and its administration. It was enacted against the background of the British North America Act 1867 (as it then was), which gives power to the Canadian Parliament to legislate for ‘Indians, and Lands reserved for Indians’.[44] As in the United States, there was a long history of use of this power to enact special ‘protective’ legislation for Indians. The impact of the Bill of Rights, and in particular of the guarantee of equality before the law, on this special legislation was a significant source of difficulty for the Supreme Court.[45]

139. Initial Uncertainties. The first such case, and the only one where the Supreme Court held that provisions of the Indian Act were inoperative by virtue of the guarantee of equality before the law, was R v Drybones.[46] Section 94(b) of the Indian Act made it an offence for an Indian to be intoxicated off a reserve (whether or not in public). Drybones was found intoxicated in the North West Territory (where there are no reserves). Other Territory legislation made it an offence for anyone to be intoxicated in public, but attached a lesser penalty than s 94(b) did.[47] The Supreme Court held that s 96(b) infringed the Bill of Rights guarantee of ‘equality before the law’. Justice Ritchie, for the majority said:

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, and I am therefore of opinion that an individual is denied equality before the law if it is made an offence punishable at law, on account of his race, for him to do something which his fellow Canadians are free to do without having committed any offence or having been made subject to any penalty.[48]

He added that the same considerations did not ‘by any means apply to all the provisions of the Indian Act’.[49] The difficulty with this reasoning lay in its comparison of the s 94(b) with the freedom of other Canadians to be intoxicated in private. As it happened, this freedom in the case of the Northwest Territory was the result of Territory legislation which was, for this purpose, equated to federal legislation. Elsewhere, however, it would be a matter for provincial legislation. Either the effect of the decision had to be confined to inequality within or between a federal law or laws, or the Court had to hold all Indian legislation discriminatory,[50] provincial law. None of these alternatives was acceptable. The first would allow gross forms of inequality to be perpetrated by isolated federal laws. The second would practically deprive the federal Parliament of all legislative power over Indians and Indian lands, which the Bill of Rights clearly did not intend. The third would make uniform federal legislation practically impossible, since it would require federal laws to be tested for equality against varying provincial laws.[51]

140. Membership of Indian Bands: Lavell’s Case. These difficulties became clearer in the case of Attorney-General of Canada v Lavell in 1973.[52] Two Indian women who had married non-Indians had thereby, under s 12(l)(b) of the Indian Act, permanently lost their status as band members. An Indian man who married a non-Indian woman would not have lost band membership. One of the women had illegally returned to live on the reserve after her marriage had broken up: the reserve council sought to evict her. Both claimed that s 12(1)(b) infringed their right to equality before the law under the Canadian Bill of Rights in that it discriminated on grounds of sex. The Canadian Supreme Court upheld s 12(1)(b) by a majority of one. Only four of the nine member court up held the legislation on its ‘merits’, and the decision therefore lacked a clear ratio.[53] The four ‘majority’ judges upheld s 12(1)(b) on two distinct grounds. The first related to the federal complication partly exposed in Drybones. Section 91(24) of the 1867 Act, in their view, positively required discriminatory provisions to be enacted with respect to the use of Indian land and the membership of Indian bands.[54] It followed that the Bill of Rights could not displace the ‘constitutional function … to specify how and by whom Crown lands reserved for Indians are to be used’.[55] Secondly, a narrow, formal view of ‘equality’ was adopted:

equality before the law under the Bill of Rights means equality of treatment in the enforcement and application of the laws of Canada before the law enforcement authorities and the ordinary Courts of the land, and no such inequality is necessarily entailed in the construction and application of s 12(1)(b).[56]

The second ground was straightforwardly rejected by the minority judges, and has been much criticised since.[57] More important for present purposes however was their treatment of the argument from s 91(24). On this point, Justice Laskin (as he then was) said:

It was urged, in reliance in part on history, that the discrimination embodied in the Indian Act under s 12(1)(b) is based upon a reasonable classification of Indians as a race, that the Indian Act reflects this classification and that the paramount purpose of the Act to preserve and protect the members of the race is promoted by the statutory preference for Indian men … [But] the Canadian Bill of Rights itself enumerates prohibited classifications which the judiciary is bound to respect … There is no clear historical basis for the position taken by the appellants, certainly not in relation to Indians in Canada as a whole … Pre-existing Canadian legislation as well as subsequent Canadian legislation is expressly made subject to the commands of the Canadian Bill of Rights, and those commands, where they are as clear as the one which is relevant here, cannot be diluted by appeals to history … In my opinion, the appellants’ contentions gain no additional force because the Indian Act, including the challenged s 12(1)(b) thereof, is a fruit of the exercise of Parliament’s exclusive legislative power in relation to ‘Indians, and Lands reserved for the Indians’ under s 91(24) of the British North America Act, 1867. Discriminatory treatment on the basis of race or colour or sex does not inhere in that grant of legislative power. The fact that its exercise may be attended by forms of discrimination prohibited by the Canadian Bill of Rights is no more a justification for a breach of the Canadian Bill of Rights than there would be in the case of the exercise of any other head of federal legislative power involving provisions offensive to the Canadian Bill of Rights.[58]

This passage is rather difficult to interpret. On the one hand it rejects the assistance provided by the United States cases, and seems to reject any classification based upon race. Moreover, the United States view that legislation for American Indians does not involve a racial classification, as distinct from a political classification rooted in the history of Indian relations, is dismissed as a mere appeal to ‘history’.[59] On the other hand it is said that ‘discriminatory treatment on the basis of race … does not inhere in’ the grant of power to legislate for ‘Indians and lands reserved for Indians’. It may be that Justice Laskin understood ‘discriminatory’ to mean only ‘adverse’ or ‘penal’, allowing federal legislation for Indians when this is ‘benign ‘ or beneficial. But, apart from the difficulty of determining whether particular legislation is indeed ‘benign’, and the fact that s 1(b) of the Canadian Bill of Rights requires ‘equality before the law’ rather than the absence of adverse treatment, it is clearly necessary to define the categories of persons to benefit from Indian status and Indian land. Such legislation is practically certain to distinguish between persons on grounds at least of descent (if not of race). It is true that it is not bound to distinguish on grounds of sex: Lavell objected to s 12(1)(b) not because its discriminated on grounds of her race but because it discriminated on grounds of her sex. But Justice Laskin was, it seems, not simply making this point.

141. The Emergence of a Test for Equality. In the end, the view that power to legislate for Indians does not entail discriminatory legislation requires the adoption of some form of ‘reasonable classification’ test, assisted by the argument that a category specifically enumerated as a head of constitutional power and establishing a substantial federal responsibility cannot be, as such, a ‘suspect classification’. And it is this view which seems to have emerged in subsequent cases.[60] Attorney-General for Canada v Canard[61] involved the impact of equality before the law on provisions of the Indian Act vesting testamentary jurisdiction in respect of Indians resident on reserves, in the Minister of Indian Affairs.[62] Under the Indian Act the invariable practice was to appoint a departmental officer to be administrator of an intestate Indian estate, and regulations made under the Act contemplated, if they did not require, that an officer would be the administrator. Under provincial law and practice, on the other hand, the spouse of a deceased person would normally be appointed as administrator. Canard, the wife of a deceased Indian who died intestate and resident on a reserve, claimed that the law or practice which prevented her appointment as administrator violated s 1(b) of the Canadian Bill of Rights. But by an apparently clear majority the Court (5-2) held that the Act did not violate equality before the law in this respect. As with Lavell, analysing the real basis for the decision is difficult. The argument which seems to have attracted the greatest support was that the vesting of testamentary jurisdiction over reservation Indians in the Minister (to be exercised as a quasi-judicial power subject to judicial review) did not as such constitute discrimination.[63] For such vesting to constitute discrimination there would have to be some substantive adverse consequence of the jurisdictional arrangements. But whether the wife’s ineligibility for appointment as administrator resulted from law or practice, it was a consequence not of the Indian Act but of the regulations and of Departmental practice under them. The Indian Act itself did not, therefore, discriminate.[64] The argument is, however, incomplete. Even if no adverse consequences flowed from a jurisdictional distinction, that distinction was still, apparently, separate treatment by reference to race, and there fore presumptively inconsistent with ‘equality before the law’. This objection was met in several different ways. Justice Ritchie (with whom Justice Martland agreed) held that the provision of a separate jurisdiction was not discriminatory because there was no basis of comparison within federal law.[65] Lacking any such basis, and given the inadmissibility of comparisons with provincial law, these were simply provisions which ‘deal[t] only with the legal rights of Indians’.[66] Such provisions, in isolation, were not discriminatory. This is an unsatisfactory solution to the problem of equality of law in a federation. It leaves penal provisions such as that in Drybones intact unless there happens to be another federal law potentially applicable. As Justice Beetz pointed out, this ‘would allow all sorts of discriminations provided all Indians were being equally discriminated against’.[67] That would be the negation of ‘equality before the law’. These difficulties are not overcome by the alternative suggestions of reference to the common law[68] or to some form of ‘provincial jus gentium’.[69]

142. The ‘Valid Federal Objective’ Test. The alternative is to adopt some variant of the ‘reasonable classification’ test, as Justice Martland did. He said:

the right to equality before the law guaranteed by s 1(b) of the Bill of Rights [does] not involve the proposition that all federal statutes must apply equally to all individuals in all parts of Canada … [F]ederal legislation which [applies] to a particular group or class of people, or in a particular area of Canada, [does] not offend against that guarantee if it [is] enacted in order to achieve a valid federal objective … Section 43 of the Indian Act is legislation relating to the administration of the estates of deceased Indians and (unless the Minister otherwise orders, which he did not do in this ease) relates only to those Indians ordinarily resident on reserves. It enables the Minister to appoint administrators of estates of deceased Indians and to remove them. The Regulations enacted pursuant to s 42 enable the Minister to appoint an officer of the Indian Affairs Branch to be the administrator of estates and to supervise the administration of estates. In my opinion there are legitimate reasons of policy for the enactment of such provisions in relation to the estate assets of deceased Indians ordinarily resident on reserves.[70]

The reference to a ‘valid federal objective’ cannot be a reference to the constitutional validity of legislation, otherwise the Canadian Bill of Rights would be redundant. It can only be a judgment as to the reasonableness or legitimacy (as distinct from the arbitrariness or unreasonableness) of the classification adopted by the law in the light of its purpose and effect. This view is supported by Justice Martland’s reliance upon the ‘legitimate reasons of policy’ for s 42 and 43.[71] A further gloss on the ‘valid federal objective’ test was provided by Justice Beetz in his concurring judgment. His Honour explained the decision in Lavell’s case in the following way:

I understand Lavell to have primarily decided that Parliament must not be deemed to have subjected to the Canadian Bill of Rights the authority vested upon it under s 91(24) of the British North America Act, 1867, exclusively to make laws for ‘Indians and Lands reserved for the Indians’, in so far as this authority, being of a special nature, could not be effectively exercised without the necessarily implied power to define who is and who is not an Indian and how Indian status is acquired or lost. In so defining Indian status, Parliament could, without producing conflict with the Canadian Bill of Rights, establish between various cases of intermarriages, such distinctions as could reasonably be regarded to be inspired by a legitimate legislative purpose in the light for instance of long and uninterrupted history … The British North America Act, 1867, under the authority of which the Canadian Bill of Rights was enacted, by using the word ‘Indians’ in s 91(24), creates a racial classification and refers to a racial group for whom it contemplates the possibility of a special treatment. It does not define the expression ‘Indian’ … Parliament can do [this] within constitutional limits by using criteria suited to this purpose but among which it would not app ear unreasonable to count marriage and filiation and unavoidably, intermarriages, in the light of either Indian customs and values which, apparently, were not proven in Lavell, or of legislative history of which the Court could and did take cognisance.[72]

In other words, given the existence of s 91(24), the classification ‘Indian’ cannot be a suspect one under the Canadian Bill of Rights, so far as concerns matters inherent in or reasonably related to the specification of Indian status and its incidents and the protection of that status. In determining the reasonableness of that relationship, it is proper to take into account ‘Indian customs and values’ (although this has never been directly in issue in the Canadian cases) and the history of legislation for Canadian Indians. Later cases have confirmed the ‘valid federal objective’ test as the established test in cases involving the Canadian Bill of Rights, although none dealt directly with Indian law.[73] The test operates as a form of ‘reasonable classification’ requirement, although the Court’s consideration of the issues has been more reticent and concealed than that of the United States Supreme Court.[74] What is of interest is that the Canadian Supreme Court seems to have arrived, by a rather different course, at the same general position with respect to federal legislation affecting Indians as the United States Supreme Court. In both jurisdictions, the suspicion that would normally be directed at legislative classifications involving Indians is displaced by the established constitutional mandate, and the related responsibility, to enact ‘special laws’. Adverse penal consequences are still carefully scrutinised: otherwise, reasonable legislative judgments of need will not be disturbed, especially where these are supported by an established legislative history, or by consideration of Indian ‘customs and values’.

143. The Canadian Constitution Act 1982. The Canada Act 1982 (UK), passed by the United Kingdom Parliament at the request and consent of the Canadian Parliament (and with the agreement of all the Provinces except Quebec) enacted a new Constitution Act for Canada. This includes the Canadian Charter of Rights and Freedoms, which applies to all Canadian Parliaments. The Constitution provides, in part:

15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including:

(a) any rights or freedoms that have been recognised by the Royal Proclamation of October 7, 1763: and

(b) any rights or freedoms that may be acquired by the aboriginal peoples of Canada by way of land claims settlement.

27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.

28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.



35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

(2) In this Act, ‘aboriginal peoples of Canada’ includes the Indian, Inuit and Metis peoples of Canada.

(3) For greater certainty, in subsection (1) ‘Treaty Rights’ includes rights that now exist by way of land claims, agreements, or may be so acquired.

(4) Notwithstanding any other provision of this Act, the Aboriginal and treaty rights referred to in subsection (I) are guaranteed equally to male and female persons.[75]

144. Continuing Constitutional Debate. Canadian Indian organisations were very active in the discussions and controversies leading to the adoption of the Constitution,[76] and this process has been continued and formalised by provisions for further consultation at First Minister’s conferences at which the Indian organisations are represented, to spell out in more detail the ‘existing aboriginal and treaty rights of the aboriginal peoples of Canada’ and to deal with other Indian demands. At the first such conference, held in 1983, a number of constitutional amendments were agreed to, some of which have now been implemented.[77]

In addition an express constitutional ‘commitment’ is given that amendments to s 25 or Part II of the 1982 Act or to s 91(24) of the Constitution Act 1867[78] will not be made before consultation with ‘representatives of the aboriginal peoples of Canada’ at a constitutional conference[79] and a schedule of further constitutional conferences to discuss ‘constitutional matters that directly affect the aboriginal peoples of Canada’ is established.[80] It is too early to tell how the Canadian courts will interpret and apply s 15, which is drafted in deliberately broader terms than s 1(b) of the Canadian Bill of Rights. However, in view of the specific reservation of Indian rights in s 25 and 35, it is clear that the special forms of protection or recognition of Indian claims or traditions envisaged by those sections will not be regarded as infringing equality before the law or equal protection.[81]

[43]Canadian Bill of Rights 1960, s 1(b). The Canadian Bill of Rights has been superseded by the Charter of Rights and Freedoms contained in the 1982 Constitution: see para 143.

[44]British North America Act (now Constitution Act) 1867, s 91(24).

[45]cf WS Tarnopolsky, The Canadian Bill of Rights, 2nd rev ed, McLelland and Stewart, Toronto, 1975, 294-308; Polyviou, 134-76.

[46][1970] SCR 282. In one lower court case a provision of the Indian Act was held inoperative under s 1(b): R v B (1982) 135 DLR (3d) 285. As in Drybones, this was straightforwardly punitive, discriminatory legislation.

[47]Liquor Ordinance 1956 (Northwest Territories) s 19(1).

[48][19701 SCR 282, 297.

[49]id, 298.

[50]As Pigeon J (dissenting) thought: id, 303.

[51]The ninth judge (Pigeon J), while adhering to the view he expressed in Drybones, agreed ‘in the result’ with the majority: id, 500-1. cf Tarnopolsky, (1975) 135-43.

[52](1973) 38 DLR (3d) 481.

[53]cf Tamopolsky (1975) 148-63.

[54](1973) 38 DLR (3d) 481, 490-2 (Ritchie J) (with whom Fateux CJC, Martland and Judson JJ concurred).

[55]id, 500 (Ritchie J).


[57]eg Tarnopolsky (1975) 158-63, 297-304; PW Hogg, ‘The Canadian Bill of Rights — Equality before the Law — AG Can v Lavell’ (1974) 52 Can B Rev 263; Polyviou, 153-60.

[58](1973) 38 DLR (3d) 481, 510-12. Hall, Spence and Abbott JJ agreed with Laskin J.

[59]For a defence of the Indian Act provisions see DE Sanders, ‘The Bill of Rights and Indian Status’ (1972) 7 UBCL Rev 81, 96-105. See also SM Weaver, The Status of Indian Women’ in JL Elliott (ed) Two Nations. Many Cultures, Prentice-Hall, Scarborough, 1983, 56; Sanders, ‘The Indian Act and the Bill of Rights’ (1974) 6 Ottawa L Rev 397, esp 413-4. For more recent developments see para 143-4.

[60]cf Re Fronan (1973) 33 DLR (3d) 676.

[61](1975) 52 DLR (3d) 548.

[62]Indian Act 1970 (Can) s 42-4.

[63](1975) 52 DLR (3d) 548, 565 (Pigeon J), 577-8 (Beetz J).

[64]ibid. And cf Polyviou, 160-8.

[65](1975) 52 DLR (3d) 548, 563.

[66]id, 561 (Martland J).

[67]id, 579.

[68]id, 553 (Laskin CJC) (with whom Spence J agreed).

[69]id, 579 (Beetz J).

[70]id, 560-1.

[71]Similarly Beetz J pointed out that:

the power bestowed upon the Minister by the Indian Act to appoint administrators of Indian estates, given its nature and history, is a power perfectly capable of being exercised by him in a judicial or quasi judicial manner, under judicial control, in accordance with the process of law and with standards applicable to other Canadians as well as with all the requirements of the Canadian Bill of Rights. (id, 578)

There was, it seems, no evidence that the Minister used these powers to bring about an appropriate recognition of applicable Indian traditions and customs in the administration of estates, as distinct from a form of bureaucratic control.

[72]id, 575.

[73]eg Mackay v R (1980) 114 DLR (3d) 393, noted by ME Gold, ‘Canadian Bill of Rights’ (1982) 60 Can B Rev 137. Other Canadian cases involving equality rights and Indians include R v Hayden [1983] 6 WWR 655; R v Rocher [1984] AR 387.

[74]cf Polyviou, 173-6; ME Gold, ‘Equality before the Law in the Supreme Court of Canada: A Case Study’ (1980) 18 Osgoode Hall LJ 336; Tamopolsky (1975) 302-4, 308, 315; Evans, 68-78.

[75]Some provisions of the Charter, including s 15, can be overriden by express Parliamentary declaration.

[76]See DE Sanders, ‘The Indian Lobby’ in K Banting and R Simeon, And No One Cheered. Federalism, Democracy and the Constitutional Act, Methuen, Toronto, 1983, 301; S McInnes, ‘The Inuit and the Constitutional Process: 1978-81’ in IAL Getty and AS Lussier, As Long as the Sun Shines and Water Flows. A Reader in Canadian Native Studies, University of British Columbia Press, Vancouver, 1983, 317. cf R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Indian Association of Alberta [1982] 2 All ER 118, noted (1982) 53 BYIL 253.

[77]For example, s 35(3) and (4) were inserted in 1985. For background see First Ministers’ Conference on Aboriginal Constitutional Affairs, 1983 Constitutional Accord on Aboriginal Rights (Ottawa, 15-16 March 1983). See N Lyons, ‘Constitutional Issues in Native Law’ in B Morse (ed), Aboriginal Peoples and the Law: Indian, Metis and Inuit Rights in Canada, Carleton UP, Ottawa, 1985, 408, 424-8. See also para 191 n 70.

[78]Previously British North America Act 1867 (s 91(24) of which gives federal power to legislate for ‘Indians and lands reserved for Indians’).

[79]Draft section 35.1.

[80]Draft Part V.1 (section 37.1).

[81]See WS Tarnopolsky, ‘The Historical and Constitutional Context of the Proposed Canadian Charter of Rights and Freedoms’ (1981) 44 Law and Cont Problems 169 esp 188-9; DE Sanders, ‘Aboriginal Peoples and the Constitution’ (1981) 19 Alberta L Rev 410.