Adjusting Our Lens

• Author: David M. Tanovich
• Pages: 53-69

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Adjusting Our Lens

It was shortly after 11 p.m., on April 8, 1967, when the police

were called to the Old Stope Hotel in Yellowknife. In the hotel

lobby, they found Joseph Drybones, a forty-year-old trapper, passed

out.1 They arrested and charged him with “being an Indian” who

was “unlawfully intoxicated off a reserve, contrary to s. 94(b) of

the Indian Ac t.”2 This section of the Act singled out Aboriginals

for disproportionate criminal justice surveillance. While it was,

and still is, a provincial offence to be intoxicated in a public place

in Canada,3 section 94(b) made it an offence for Aboriginals to

be intoxicated in any private location off the reserve, including

their homes. Section 9 4 also imposed a more severe sentencing

scheme th an the prov incial legislation out lawing p ublic intoxi-

cation. Under the Northwest Territories Liquor Ordinance, the

maximum term of imprisonment was thirt y days. There was no

minimum f‌ine.4 Section 94, in contrast, imposed a mandatory

minimum f‌ine of $10, and three months imprisonment could

also be imposed.

Drybones, who did not speak English, initially pleaded guilty

before a magistrate. He was ordered to pay the minimum f‌ine of

part one: understanding racial profiling

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$10 plus costs and, in case of default, sentenced to three days in

jail. When reviewing a list of convictions from the lower court,

Mary Driscoll, a legal secretary for Justice William G. Morrow

of the Northwest Territorial Court, was concerned that Drybones

had been convicted of an “off the reserve” offence at a time when

there were no reserves in the Northwest Territories. When she

pointed this discrepancy out to Justice Morrow, he appointed

Bruce Purdy to f‌ile an appeal. Justice Morrow had, in his days as a

lawyer, convinced another judge that it was impossible to convict

in these circumstances.5 His familiarit y with the issue was only

part of the twist of fate that would ultimately lead to one of the

most important equality decisions ever handed down by the Su-

preme Court of Canada.

Justice Morrow was a jurist who was willing to take an active

role in using the law to rectify injustices.6 He wa s als o par ticu larl y

sensitive to the impact of the criminal justice system on Aborigi-

nals. For example, in March 1975, when he delivered the George

M. Duck Lecture, a prestigious annual lecture at the University

of Windsor Law School, he talked about the unique challenges of

sentencin g Aborig inal offenders:

I think that in t he Northwest Territories, more than in any

other part of Canada, I have a tougher problem tha n most

trial judges, because I a m dealing with more than just t he

normal sentencing problems. I am dealing perhaps wit h the

clash of social cu ltures.… I think I h ave a heavier burden

than most trial jud ges in an attempt to hit the proper sen-

tence, so that the impact of the culture that is taking over …

from the south is not too harsh.7

Twenty-one years later, Parliament recognized the challenges that

Justice Morrow spoke about and amended the Criminal Cod e to

require trial judges to consider all reasonable alternatives to im-

prisonment and, in doing so, to pay particular attention to the

circumstances of Aborigin al offenders.8