Author: Mackenzie Coleman, University of Alberta Law Student
On May 7, 2024, the Chiefs of Ontario alleged that First Nations in Ontario are being denied equal access to justice. The organization launched a constitutional challenge against the province of Ontario and the government of Canada over lack of enforcement of First Nations laws and the province’s Community Safety and Policing Act.[1]
The Chiefs of Ontario filed a lawsuit claiming that Ontario and Canada fail to provide the same access to justice to First Nations people in Ontario as to others in the province. The statement of claim says that “the defendants cooperate together to ensure that laws other than First Nation laws are enforced in Ontario and that offences under those laws are prosecuted. They do not do so for First Nations laws”.[2] The statement of claim goes on to say that “as a result, First Nations laws generally do not function effectively in Ontario. This results in inequitable access to important benefits for First Nations people in Ontario, especially those residing on reserve, including access to justice, the rule of law, community safety, protection of property, and individual wellbeing, contrary to s. 15 of the Canadian Charter of Rights and Freedoms”.[3]
The lawsuit centers around the Community Safety and Policing Act which was passed by the legislature in 2019 and came into force on April 1, 2024.[4] For years, the Chiefs-in-Assembly have been working with the Ford government over issues with the CSPA. Ontario Regional Chief Glen Hare states that “this legislation has always been discriminatory, but ignoring the serious concerns of First Nations was the final straw… this offensive legislation contributes to years of issues with both Ontario and Canada, who provide enforcement and prosecution everywhere in the province, except for our laws in our communities”.[5]
Ontario and Canada do not provide prosecutorial services for First Nations laws. As a result, laws around important safety issues such as “land regulation, law and order, tenancies, substance control, and the exclusion of dangerous individuals from communities” are not enforced.[6] Under the CSPA, enforcing laws under this area is optional.[7] First Nations are permitted to create their own laws and bylaws to address issues such as environmental protection, tenancy, and land management but the laws are not effective without enforcement and prosecution.[8] The lawsuit alleges “the governments do not provide enforcement or prosecution services in relation to First Nations laws, nor do they provide enough funding for First Nations to hire their own enforcement officers or prosecutors”.[9]
The Chiefs-in-Assembly have made various requests and recommendations to address the lack of enforcement and prosecution in relation to First Nations laws. Ontario and Canada have repeatedly turned down the requests. As a result, there is a lack of access to justice for First Nations in Ontario.[10] The lawsuit says that “the lack of resources is harming First Nations people by impeding their ability to combat addiction, exclude dangerous people from communities, regulate tenancy and evictions, and prevent the dumping of waste, among other things”.[11]
Hare states that litigation “is clearly necessary, as vulnerable people are suffering in [First Nations] communities. First Nations are asking for something that every other community in Ontario is provided with. Enforcing the rule of law should not be discretionary and keeping people safe should not be made into a political issue”.[12]
MPP Sol Mamakwa, Official Opposition Deputy Leader says that “when police come to reserves, they must work with First Nations to enforce their laws. Community-based approaches to implement and enforce our laws keep people safe and reduce crime. When First Nations can’t enforce these laws, chaos will ensue”.[13] Mamakwa goes on to say that he “hopes this lawsuit leads to a resolution that sets a precedent for the future”.[14]
The Chiefs of Ontario lawsuit addresses a variety of access to justice issues. The first is exclusion from mandatory policing duties. The CSPA “explicitly excludes the enforcement of First Nations bylaws from mandatory policing duties and is ‘ambiguous’ on the enforcement of other First Nations laws”.[15] First Nations administered police services “aren’t guaranteed funding to enforce First Nations bylaws even if they come under the funding mechanisms for the act because support is only guaranteed for mandatory police functions”.[16] As a result, First Nations communities are not receiving the same legal support and enforcement as other groups. Mamakwa says that change is needed on reserves. Reserves, Mamakwa says, are a part of Ontario but are treated in a different way than the rest of the province and are discriminated against. Alongside this, First Nations are obtaining inadequate prosecution and enforcement. Without proper enforcement and prosecution, First Nations laws and bylaws are ineffective. The lawsuit argues that the governments fail to provide the prosecution services and funding necessary for First Nations to create laws in areas such as tenancy, land management, and environmental protection.[17] The Chiefs of Ontario believe that the lack of enforcement and resources has a serious negative impact on First Nations communities. Hare states that “the rule of law that other Ontarians take for granted is an illusion for us. Failing to enforce and prosecute our laws is discriminatory to First Nations and puts our communities at serious risk”.[18] Hare believes that the lack of enforcement will create unsafe communities and denies First Nations equitable access to justice.[19]
The Chiefs of Ontario are asking the court to order the government of Ontario and Canada to provide “sufficient resources to enforce and prosecute First Nations laws, as well as other remedies”.[20] The statement of claim includes claims for a declaration of discrimination against First Nations people in Ontario contrary to s.15 of the Charter, Chapter H.19 of the Ontario Human Rights Code, R.S.O. 1999 and s. 46.1 of the Ontario Human Rights Code. As well, the plaintiff claims for a declaration under s. 52 of the Constitution Act 1982, that the Community Safety and Policing Act is “of no force of effect to the extent that they do not make the enforcement of First Nations laws and by-laws a mandatory police function”.[21]
A statement of defence has not been filed yet nor has the allegations been tested in court.
[1] Kerry Slack, “Lawsuit filed by Chiefs of Ontario alleges Indigenous Affairs minister ‘made threats’ to organization over legal action” (7 May 2024), online: < https://www.aptnnews.ca/featured/lawsuit-filed-by-chiefs-of-ontario-alleges-indigenous-affairs-minister-made-threats-to-organization-over-legal-action/>.
[2] Ibid.
[3] Ibid.
[4] Isak Vaillancourt, “Chiefs of Ontario Launch Litigation Against the Province and Canada Over Failure to Keep First Nations Safe: (7 May 2024), online: < https://chiefs-of-ontario.org/chiefs-of-ontario-launch-litigation-against-the-province-and-canada-over-failure-to-keep-first-nations-safe/>.
[5] Ibid.
[6] Ibid.
[7] Supra, note 1.
[8] CTV New Toronto, “Ontario First Nations denied equal access to justice, lawsuit alleges” (7 May 2024), online: < https://toronto.ctvnews.ca/ontario-first-nations-denied-equal-access-to-justice-lawsuit-alleges-1.6876861#:~:text=The%20lawsuit%20alleges%20the%20governments,own%20enforcement%20officers%20or%20prosecutors>.
[9] Ibid.
[10] Supra, note 4.
[11] Supra, note 8.
[12] Supra, note 4.
[13] Ontario NDP, “Mamakwa Supports Chiefs of Ontario Lawsuit Against Province for Failing to Provide First Nations with Equal Access to Justice” (7 May 2024), online: < https://www.ontariondp.ca/news/mamakwa-supports-chiefs-ontario-lawsuit-against-province-failing-provide-first-nations-equal>.
[14] Ibid.
[15] Supra, note 8.
[16] Paola Loriggio, “Ontario First Nations denied equal access to justice, lawsuit alleges” (7 May 2024), online: < https://www.cbc.ca/news/canada/sudbury/first-nations-equal-access-justice-1.7196842#:~:text=The%20lawsuit%20alleges%20the%20governments,own%20enforcement%20officers%20or%20prosecutors.>.
[17] Supra, note 8.
[18] Supra, note 16.
[19] Supra, note 8.
[20] Supra, note 16.
[21] Chiefs of Ontario v Attorney General of Canada et al. (7 May 2024), Toronto CV-24-00719736-0000 (TSCJ) (Statement of Claim), online: < https://www.aptnnews.ca/wp-content/uploads/2024/05/Statement-of-Claim-07-MAY-2024.pdf>.