Raise a Glass to Drybones
It’s Christmas, so the law blog is delving into the past for a historic case from another country and another continent. This is the case of the Queen v Drybones from the 1960s in Canada.
Drybones was an American Indian. On the evening of April 8th 1967 he was intoxicated on the premises of the Old Stope Hotel in Yellowknife, not being a place within an Indian reservation. He was charged with the offence of being ‘unlawfully intoxicated off a reserve’ under section 94(b) of the Indian Act 1952. Ultimately Drybones appealed the case all the way to the Canadian Supreme Court.
For other Canadian citizens, they were subject to the Liquor Ordinance of 1957 which provided that ‘no person shall be in an intoxicated condition in a public place.’ The Old Stope Hotel, however, was not ‘a public place.’
The Canadian Bill of Rights stated:
It is hereby recognised 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.
Ritchie J, giving the majority opinion of the Supreme Court upholding the acquittal of Drybones, stated:
…I am therefore of the 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.
Section 94(b) of the Indian Act was, therefore, held to be inoperative.
Lessons for today?
The UK Commission on a Bill of Rights, on 18th December 2012, delivered their final report. By a majority of 7 with 2 dissenting, they recommended a UK Bill of Rights to replace the Human Rights Act 1998. Such a Bill of Rights could have specific provisions to protect Gypsies and Travellers (not that they mentioned that, of course!!). However Gypsy and Traveller groups, in their evidence to the Commission, were opposed to a UK Bill of Rights. This was because they believed that the current Government wanted to water down the Human Rights Act. This remains the fear of many. In this context it seems very unlikely that this Government would extend specific protection as mentioned above.
More to the point, the current Human Rights Act can be used by Gypsies and Travellers to challenge provisions of the law that are unequal. This is what happened with security of tenure on local authority Gypsy and Traveller sites. Similarly, to take just one other example, local authority tenants of houses and flats have a right of exchange but there is no right of exchange for Gypsies and Travellers on local authority sites. This could also be potentially challenged under the Human Rights Act. So whether it’s the Canadian Bill of Rights or the UK Human Rights Act, unequal treatment on account of race can and should be challenged ( and don’t forget the Equality Act 2010!).
Drybones has lessons for us to learn today! Cheers, Drybones!
The Queen v Drybones [1970] SCR 282
Chris Johnson, Travellers Advice Team (TAT) at Community Law Partnership (CLP)
TAT runs a self-funded national telephone helpline for Gypsies and Travellers, 0121 685 8677, Monday to Friday 9am to 5pm (but we are having a Christmas break! Phone the line for details).
December 2012