Canard Estate et al. v. Attorney General of Canada and Rees, (1975) 4 N.R. 91 (SCC)

JudgeRitchie, Spence, Pigeon and Beetz, JJ.
CourtSupreme Court (Canada)
Case DateJanuary 28, 1975
JurisdictionCanada (Federal)
Citations(1975), 4 N.R. 91 (SCC);1975 CanLII 210 (SCC);[1976] 1 SCR 588;[1976] 1 SCR 385;[1976] 1 SCR 170;52 DLR (3d) 548;1975 CanLII 136 (SCC);1975 CanLII 209 (SCC);1975 CanLII 172 (SCC);[1976] 1 SCR 541;[1975] 3 WWR 1;4 NR 91;1975 CanLII 214 (SCC);[1976] 1 SCR 126;[1976] 1 SCR 386;1975 CanLII 137 (SCC)

Canard Estate v. Can. (A.G.) (1975), 4 N.R. 91 (SCC)

MLB headnote and full text

Canard Estate et al. v. Attorney General of Canada and Rees

Indexed As: Canard Estate et al. v. Attorney General of Canada and Rees

Supreme Court of Canada

Laskin, C.J.C., Martland, Judson,

Ritchie, Spence, Pigeon and Beetz, JJ.

January 28, 1975.

Summary:

This case arose out of an action for a declaration respecting the validity of the appointment by the Minister of Indian Affairs of an administrator of the estate of a deceased Indian. The appointment was made by the Minister pursuant to s. 43 of the Indian Act. Pursuant to the Indian Act Regulations the Minister appointed an employee of the Department of Indian Affairs. The appointment was made without the knowledge of the widow of the deceased. The widow applied to the Manitoba Courts and she was appointed the administrator of her husband's estate. The trial court held that the appointment by the Minister was invalid because s. 43 of the Indian Act did not apply to the estate of the deceased because the deceased did not "ordinarily reside on a reserve" at the time of his death.

On appeal to the Manitoba Court of Appeal the appeal was allowed and the judgment of the trial court was set aside. The Manitoba Court of Appeal held that the deceased, at the time of his death, was ordinarily resident on an Indian reserve. The Manitoba Court of Appeal held that apart from the Canadian Bill of Rights, s. 43 was validly enacted pursuant to s. 91(24) of the British North America Act. However, the Manitoba Court of Appeal declared inoperative s. 43 of the Indian Act because the widow was denied equality before the law of Canada contrary to s. 1(b) of the Canadian Bill of Rights.

On appeal to the Supreme Court of Canada the appeal was allowed and the judgment of the Manitoba Court of Appeal was set aside. The Supreme Court of Canada declared the appointment of the widow as administrator by the Manitoba courts null and void. The Supreme Court of Canada held that s. 43 of the Indian Act was valid federal legislation by virtue of s. 91(24) of the British North America Act which empowers the Parliament of Canada to make laws respecting "Indians and lands reserved for Indians". Beetz, J., stated in the Supreme Court of Canada, that on an appeal from the Manitoba Court of Appeal, the Supreme Court of Canada did not have jurisdiction to review the exercise of the statutory authority granted by s. 43 of the Indian Act. Beetz, J., stated that such a review must be conducted in accordance with the Indian Act and the Federal Court Act - see paragraphs 58 and 59.

Laskin, C.J.C. and Spence, J., dissenting, in the Supreme Court of Canada, would have dismissed the appeal and would have varied the judgment of the Manitoba Court of Appeal by avoiding any declaration with respect to s. 43 of the Indian Act but would have declared inoperative s. 11 of the Indian Act Regulations - see paragraphs 101 and 108. Laskin, C.J.C. and Spence, J., would have declared that s. 43 of the Indian Act must be applied consistently with s. 1(b) of the Canadian Bill of Rights - see paragraph 108. Laskin, C.J.C. and Spence, J., stated that no grant of federal legislative power should be viewed as necessarily carrying with it a built-in exclusion of the mandates of the Canadian Bill of Rights - see paragraph 106.

Constitutional Law - Topic 6356

Enumeration in s. 91 of the British North America Act - Indians and lands reserved for Indians - Testamentary matters - S. 43 of the Indian Act granted to a minister the power to appoint administrators of the estates of Indians who died intestate - The Supreme Court of Canada held that such legislation was within the legislative competence of the Parliament of Canada and was not rendered inoperative by the Canadian Bill of Rights - See paragraphs 13 to 19, 64, 65, 75, 90 and 91.

Civil Rights - Topic 8000

Canadian Bill of Rights - Principles of operation and interpretation - The Supreme Court of Canada stated that the Canadian Bill of Rights renders inoperative any law of Canada that cannot be construed and applied so that it does not abrogate, abridge, or infringe one of the rights and freedoms recognized by the Bill of Rights - See paragraph 27.

Civil Rights - Topic 5501

Equality before the law - Definition - Canadian Bill of Rights, s. 1(b) - The Supreme Court of Canada stated that equality before the law does not simply mean equality with every other person within the class to whom a particular law applies - See paragraph 27.

Courts - Topic 4203

Federal Court of Canada - Jurisdiction - Application of the Canadian Bill of Rights to federal statutes - The Supreme Court of Canada stated that the exercise of statutory authority pursuant to a valid provision in the Indian Act can only be reviewed pursuant to the provisions of the Indian Act and the Federal Court Act - See paragraphs 59 to 66.

Words and Phrases

Ordinarily reside on a reserve - The Supreme Court of Canada discussed the meaning of the words "ordinarily reside on a reserve" as found in s. 4(3) of the Indian Act, R.S.C. 1952, c. 149 - See paragraphs 8 to 12.

Cases Noticed:

R. v. Drybones, [1970] S.C.R. 282, folld. [paras. 22, 27, 76, 87, 96].

A.G. of Canada v. Lavell and Isaac et al. v. Bedard (1974), 38 D.L.R.(3d) 481, refd to. [para. 22].

Attorney General of Canada v. Lavell (1974), 38 D.L.R.(3d) 481, folld. [paras. 22, 65, 76, 87, 96].

Re Regina and M., [1973] 2 O.R.(2d) 86, folld. [para. 65].

R. v. Smythe, [1971] S.C.R. 680, folld. [para. 65].

R. v. Burnshine (1974), 2 N.R. 53; 44 D.L.R.(3d) 584, folld. [para. 88].

Curr v. The Queen, [1972] S.C.R. 889, folld. [para. 97].

Brownridge v. The Queen, [1972] S.C.R. 926, folld. [para. 97].

Lowry and Lepper v. The Queen, [1974] S.C.R. 195, folld. [para. 97].

Statutes Noticed:

Supreme Court Act, R.S.C. 1970, c. S-19, sect. 47 [para. 59].

Indian Act, R.S.C. 1952, c. 149, sect. 4(3) [para. 8]; sect. 42, sect. 43, sect. 44, sect. 47 [para. 14]; sect. 88 [para. 47].

British North America Act, 1867, sect. 91(24), sect. 101 [para. 18].

Canadian Bill of Rights, R.S.C. 1970, Appendix III, sect. 1(b) [para. 27].

Counsel:

I.G. Whitehall and D.F. Friesen, for the appellants;

W. Rachman, for the respondent;

D.E. Sanders, for the intervenants.

This case was heard by the Supreme Court of Canada on March 7 and 8, 1974. Judgment was delivered by the Supreme Court of Canada on January 28, 1975 and the following opinions were filed:

BEETZ, J. - see paragraphs 1 to 62.

PIGEON, J. - see paragraphs 63 to 67.

RITCHIE, J. - see paragraphs 68 to 78.

MARTLAND, J. - see paragraphs 79 to 92.

LASKIN, C.J.C. - see paragraphs 93 to 109.

JUDSON J., concurred with MARTLAND, J.

SPENCE, J., concurred with LASKIN, C.J.C.

To continue reading

Request your trial
95 practice notes
  • D.M. v. The Children__s Aid Society of Ottawa,
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • December 20, 2021
    ...been made under that Act. ***** Status review 113 (1) This section applies where a child is the subject of an order made under paragraph 1 or 4 of subsection 101 (1) for society supervision or under paragraph 2 of subsection 101 (1) for interim society Society to seek status review (2)......
  • Daniels v. Canada (Indian Affairs and Northern Development), [2016] 1 SCR 99
    • Canada
    • Supreme Court (Canada)
    • April 14, 2016
    ...of the B.N.A. Act includes Eskimo inhabitants of the Province of Quebec, [1939] S.C.R. 104; Attorney General of Canada v. Canard, [1976] 1 S.C.R. 170; referred to: Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44; Solosky v. The Queen, [1980] 1 S.C.R. 821; Borowski v. Canada......
  • Daniels c. Canada (Affaires Indiennes et du Nord canadien),
    • Canada
    • Federal Court (Canada)
    • January 8, 2013
    ...12 W.W.R. 599, 255 Man. R. (2d) 167 , [2010] C.N.L.R. 233, affd in part, 2013 SCC 14 ; Attorney General of Canada et al. v. Canard, [1976] 1 S.C.R. 170, (1975), 52 D.L.R. (3d) 548, 4 N.R. 91 ; Labrador Metis Nation v. Newfoundland and Labrador (Minister of Transporta-tion and Works), 200......
  • Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1
    • Canada
    • Ontario Acts
    • Invalid date
    ...final supervision order (2) In this section, “temporary or final supervision order” means an order under clause 94 (2) (b) or (c), paragraph 1 or 4 of subsection 101 (1), subsection 112 (8) or 115 (10) or clause 116 (1) Special Cases of Bringing Children to a Place of Safety Bringing childr......
  • Request a trial to view additional results
76 cases
  • D.M. v. The Children__s Aid Society of Ottawa,
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • December 20, 2021
    ...been made under that Act. ***** Status review 113 (1) This section applies where a child is the subject of an order made under paragraph 1 or 4 of subsection 101 (1) for society supervision or under paragraph 2 of subsection 101 (1) for interim society Society to seek status review (2)......
  • Daniels v. Canada (Indian Affairs and Northern Development), [2016] 1 SCR 99
    • Canada
    • Supreme Court (Canada)
    • April 14, 2016
    ...of the B.N.A. Act includes Eskimo inhabitants of the Province of Quebec, [1939] S.C.R. 104; Attorney General of Canada v. Canard, [1976] 1 S.C.R. 170; referred to: Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44; Solosky v. The Queen, [1980] 1 S.C.R. 821; Borowski v. Canada......
  • Daniels c. Canada (Affaires Indiennes et du Nord canadien),
    • Canada
    • Federal Court (Canada)
    • January 8, 2013
    ...12 W.W.R. 599, 255 Man. R. (2d) 167 , [2010] C.N.L.R. 233, affd in part, 2013 SCC 14 ; Attorney General of Canada et al. v. Canard, [1976] 1 S.C.R. 170, (1975), 52 D.L.R. (3d) 548, 4 N.R. 91 ; Labrador Metis Nation v. Newfoundland and Labrador (Minister of Transporta-tion and Works), 200......
  • Hunt v. T&N plc, [1993] 4 SCR 289
    • Canada
    • Supreme Court (Canada)
    • November 18, 1993
    ...rev'g [1976] C.P. 284; Benesh, Friedlandler, Coplan & Aronoff v. Nesmith, [1983] C.S. 790; Attorney General of Canada v. Canard, [1976] 1 S.C.R. 170; Buck v. Attorney‑General, [1965] 1 All E.R. 882; Manuel v. Attorney General, [1982] 3 All E.R. 786; Douglas/Kwantlen Faculty Assn. v. Dou......
  • Request a trial to view additional results
1 firm's commentaries
13 books & journal articles
  • Table of Cases
    • Canada
    • Irwin Books Constitutional Law. Fifth Edition Conclusion
    • August 3, 2017
    ...[1983] 2 S.C.R. 206, 49 A.R. 39, 28 Alta. L.R. (2d) 97 ................................... 300, 305 Canada (A.G.) v. Canard (1975), [1976] 1 S.C.R. 170, 52 D.L.R. (3d) 548 ....................................................................................... 489 Canada (A.G.) v. Lavell (19......
  • Table of cases, index and about the authors
    • Canada
    • Irwin Books The Charter of Rights and Freedoms. Seventh Edition
    • June 30, 2021
    ...55, [2017] 2 SCR 456.................................................................... 266 Attorney General of Canada et al v Canard, [1976] 1 SCR 170, 52 DLR (3d) 548........................................................................................... 375 Authorson v Canada (Attorn......
  • Table of cases
    • Canada
    • Irwin Books Archive The Charter of Rights and Freedoms. Sixth Edition
    • June 22, 2017
    ...Canada (Attorney General), [2004] 1 SCR 76, 2004 SCC 4 .......................58, 258, 299, 302, 355, 380−81, 448 Canard v Canada (AG), [1976] 1 SCR 170, 52 DLR (3d) 548 ............................. 356 Carter v Canada (Attorney General), [2015] 1 SCR 331, 2015 SCC 5.............................
  • Equality
    • Canada
    • Irwin Books Archive The Charter of Rights and Freedoms. Sixth Edition
    • June 22, 2021
    ...(3d) 473 [ Drybones ]. 5 Canada ( Attorney General) v Lavell , [1974] SCR 1349, 38 DLR (3d) 481 [ Lavell ]. 6 Canard v Canada ( AG) , [1976] 1 SCR 170, 52 DLR (3d) 548 [ Canard ]. 7 Bliss v Canada ( AG) , [1979] 1 SCR 183, 92 DLR (3d) 417 [ Bliss ]. The benefit lay in the fact that pregnant......
  • Request a trial to view additional results
1 provisions
  • Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1
    • Canada
    • Ontario Acts
    • Invalid date
    ...final supervision order (2) In this section, “temporary or final supervision order” means an order under clause 94 (2) (b) or (c), paragraph 1 or 4 of subsection 101 (1), subsection 112 (8) or 115 (10) or clause 116 (1) Special Cases of Bringing Children to a Place of Safety Bringing childr......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT