R v Drybones

R v Drybones
Supreme Court of Canada
Hearing: October 28, 1968 Judgment: November 20, 1969
Full case name	Her Majesty The Queen v Joseph Drybones
Citations	[1970] S.C.R. 282, 1969 CanLII 1 (S.C.C.)
Prior history	affirming (1967), 61 W.W.R. 370, [1968] 2 C.C.C. 69, 64 D.L.R. (2d) 260 (N.W.T.C.A.); affirming (1967) 60 W.W.R. 321 (N.W.T.Co. Ct.)
Ruling	The appeal should be dismissed.
Holding
Section 94(b) of the Indian Act, which makes it a criminal offence for the respondent to do something which his fellow Canadians are free to do without having committed any offence or being made subject to any penalty purely on account of race, is in violation of the respondent's right to equality before the law, protected in Section 1(b) of the Canadian Bill of Rights. Furthermore, an infringing statutory provision that cannot be sensibly construed so as not to infringe the rights enshrined in the Canadian Bill of Rights is inoperative, unless Parliament makes an express declaration that the statutory provision will operate notwithstanding the Canadian Bill of Rights. Therefore, Section 94(b) of the Indian Act is inoperative.
Court membership
Reasons given
Majority	Ritchie J., joined by Fauteux, Martland, Judson, Spence JJ.
Concurrence	Hall J., joined by None
Dissent	Cartwright C.J., joined by None
Dissent	Pigeon J., joined by None
Dissent	Abbott J., joined by None
Laws applied
Canadian Bill of Rights, 1960 (Can), c. 44, ss. 1(b), 2; Indian Act, R.S.C. 1952, c. 149, s. 94(b).

R v Drybones, [1970] S.C.R. 282, is a landmark 6-3 Supreme Court of Canada decision holding that the Canadian Bill of Rights "empowered the courts to strike down federal legislation which offended its dictates."^[1] Accordingly, the Supreme Court of Canada held that section 94(b) of the Indian Act (which prohibited "Indians" from being intoxicated off of a reserve) is inoperative because it violates section 1(b) of the Canadian Bill of Rights.

Prior to this decision there had been much debate on the application of the Bill of Rights to an infringing statute. One perspective saw the Bill of Rights as an interpretive aid. The other perspective saw it as statute that constrained the supremacy of Parliament, rendering irreconcilable federal enactments of no force or effect. After this case, the overriding power that the Court held flows from the Canadian Bill of Rights was never used, and has since never been reconsidered by the Supreme Court of Canada.

Although the judgement only rendered section 94b inoperable, as a consequence of the case, Parliament voted to repeal section 94 in its entirety in 1971.