[Vol. 17
Drybones and Stare Decisis
J. N. Lyon *
In Regina v. Drybones 1 the Supreme Court of Canada has re-
versed its earlier decision in Robertson and Rosetanni v. The
Queen,2 and it would have been better for our human rights juris-
prudence, indeed for Canadian public law generally, had the majority
judges openly admitted that this was the case.
The 1966 practice statement of the English House of Lords 8
was really just the formal confirmation of a growing judicial aware-
ness of the fact that the doctrine of precedent, when treated as
a fundamental value in any legal order, is central to our system,
but when deified into a dogmatic kind of absolute, tends over
the long run to clog up the machinery of justice. The judgments
in the classic decision in Ridge v. Baldwin,4 especially that of Lord
Reid, show clearly why the Lords decided to kick off the hobbles
of stare decisis, and the dire predictions made by some that the
legal order would begin to crumble have so far proved false. Their
error, I suggest, lies in their conviction that English law owes its
consistency to stare decisis. Such consistency as our law has derives
not from doctrines or dogmas but rather from the common sense
of justice shared by the judges, a sense that is, of course, disciplined
by long training in the imperatives of positive law and an awareness
of the parameters imposed on them by positive law.
In Drybones, Mr. Justice Ritchie, speaking for a majority of
six, distinguished the Rosetanni case, in which he gave the judgment
of four out of the five judges who sat. It is an interesting anomaly
of our constitutional practice that in 1963 the question of what
r6le the courts are to play in developing the human rights charter
enacted by Parliament was worth only five judges, while in 1968
it drew a full court.
To support my thesis that Drybones reversed Rosetanni, I must
establish what was authoritatively decided in each case and then
demonstrate that the two decisions cannot stand together. That
is what the balance of this note will seek to do.
Professor, Faculty of Law, McGill University.
1 [1970] S.C.R. 282, hereafter called ‘Drybones’.
2 [1963] S.C.R. 651, hereafter called ‘Rosetanni’.
3 [1966] 1 W.L.R. 1234.
4 [1964] A.C. 40.
No. 3]
DRYBONES AND STARE DECISIS
Ritchie, J. recognized that in Rosetanni there were two questions:
1. did section 4 of the Lord’s Day Act,5 as it was applied by the
convicting magistrate, abrogate, abridge or infringe the freedom
of religion of Robertson and Rosetanni?
2. if so, what is the effect of section 2 of the Canadian Bill of
Rights” on the operation of section 4 in this case?
If the answer to the first question was “no”, then question two
need not be answered, and this was the way the case was dis-
posed of in the Supreme Court of Canada. Thus, in Drybones
Ritchie, J. was able to state that the Rosetanni case did not decide
what would be the legal consequence if a provision of the Canadian
Bill of Rights was found to be in conflict with another Act of
Parliament, leaving the question an open one, to be decided at
first instance in Drybones.
But is it that simple? Let us examine the reasoning of Ritchie, J.
in Rosetanni in order to formulate the ratio decidendi of that case.
In order to answer question one, Ritchie, J. had first to decide
what freedom of religion meant in law in 1963. This he did by
going to section 1 of the Canadian Bill of Rights, where he zeroed
in on the declaratory nature of that provision and observed that
the Bill “is not concerned with ‘human rights and fundamental
freedom’s in any abstract sense, but rather with such ‘rights and
freedoms’ as they existed in Canada immediately before the statute
was enacted.”7
Thus, Ritchie, J. had first to decide that the Bill was only
declaratory in effect, before he could arrive at the legal definition
of freedom of religion that he applied to the facts of the case to
arrive at his decision. That is why he asserted that it was “of first
importance to understand the concept of religious freedom which
was recognized in this country before the enactment of the Canadian
Bill of Rights and after the enactment of the Lord’s Day Act in
its present form.” 7a
It was his determination that the Bill only declared and con-
tinued existing rights, did not create new rights, that conditioned
the definition of religious freedom that he chose to apply in the
case. Otherwise he would have had to base his definition of religious
freedom on an interpretation of the substantive provisions of the
Bill of Rights itself.
G R.S.C. 1952 c. 171.
6 Stats. Can. 1960 c. 44.
7 Supra n. 2, p. 654.
7a Ibid., at p. 655.
McGILL LAW JOURNAL
[Vol. 17
The manner in which Ritchie, J. applied his definition of religious
freedom to the facts of Rosetanni is of no consequence here. His
distinction between the effect of the Lord’s Day Act and its purpose
was used simply to help determine whether the operation of bowling
alleys on Sunday came within that definition. That is, question
one involved two distinct steps.
1. defining religious freedom in law
2. applying the definition to the facts of the case at bar.
The definition arrived at through step 1 is based upon the
proposition that the declaratory nature of the Bill is its starting
point, a proposition which thus becomes part of the ratio decidendi
of the Rosetanni case.
Put another way, Ritchie, J. avoided question two only by decid-
ing in the course of answering question one that the Bill is con-
cerned only with rights and freedoms as they existed in Canada
immediately before the statute was enacted, and section 4 of the
Lord’s Day Act as well as section 94 of the Indian Act, both being
part of the law that defined those rights and freedoms, could not, by
definition, abrogate, abridge or infringe those rights and freedoms.
How, then, could the Supreme Court in Drybones come to the
opposite conclusion with respect to section 94 of the Indian Act?
It did so in the usual manner demanded by stare decisis: by
changing its mind, in the light of its fresh knowledge of the full
implications of its earlier view, while denying that it had made
a judicial determination of the issue in the previous decision.
It is interesting to note that the dissenting opinion of Pigeon, 3.
in Drybones is built on the same basic premise as is the judgment
of Ritchie, J. in Rosetanni: that the declaratory nature of the
Canadian Bill of Rights is its starting point. Not only does Pigeon,
J. begin with this proposition,8 but he falls back on it as authority
for refusing to give any effect to the exception in section 2 of
the Bill, which reads “unless it is expressly declared by an Act of
the Parliament of Canada that it shall operate notwithstanding
the Canadian Bill of Rights”.
Just as surely as the dissent of Pigeon, J. in Drybones was
legally “correct” if Rosetanni is a decision that is “binding” on
the court, so the majority view in Drybones is constitutionally
sound if one assumes as a value prior to legal correctness that
Parliament does not expend large quantities of public time and
8 Footnote 1 above, at p. 302.
No. 3]
DRYBONES AND STARE DECISIS
money to produce fancy pieces of paper whose main function will
be to serve as wallpaper in public schools and buildings.
The Drybones case had to originate with a judge like Mr. Justice
Morrow, who as Territorial Judge is in daily contact with the
consequences of the failure of Canadian law to respond to human
values. If the Canadian Bill of Rights is not enough, what must
Parliament do in order to move our judges and lawyers to accept
a broad responsibility for the protection of fundamental human
values and to find a way to weave this new responsibility into
the disciplined fabric of the law so that they do not lose their
judicial bearings? It is simply not good enough for judges to say
that section 1 of the Canadian Bill of Rights is expressed in vague
and general language, and they are accustomed to dealing with
more specific formulations. The Canadian Bill of Rights was enacted
by Parliament for an important purpose, and for lawyers and judges
to decline to accept the responsibility because the Bill is not suf-
ficiently technical to suit their taste is to thwart the will of Parlia-
ment. The irony is that many who take this view claim to be
observing the doctrine of parliamentary supremacy.
I suggest that expressions like “judicial supremacy” and “ju-
dicial legislation” are simply empty slogans that serve to justify
the lawyers’ balking at difficult and challenging responsibilities
conferred on them by Parliament.
Lord Reid answered this objection rather well in Ridge v. Badwin:
“In modern times opinions have sometimes been expressed to the effect
that natural justice is so vague as to be practically meaningless. But I
would regard these as tainted by the perennial fallacy that because some-
thing cannot be cut and dried or nicely weighed or measured therefore
it does not exist.” 9
Analyses like the foregoing may seem to some nothing but
gratuitous attacks on conscientious judges who cannot reply to
such criticism. However, this view misses the point, which is that
in a society whose institutions are already overloaded and under
attack for failing to solve critical social problems it is unacceptable
that highly trained judges should expend so much of their time
performing tasks that assume a primacy of doctrine in the legal
order.
I submit that if we are to achieve a civilised measure of justice
under law for all citizens, judicial energies must be freed and
directed to meet this challenge, putting into proper subordinate
position the lawyers’ fascination with technical gymnastics and
obsession with the legal rights of established economic interests.
9 Supra n. 4, p. 64.
