Lovelace v. Ontario

Supreme Court of Canada – [2000] 1 S.C.R. 950

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Ontario Canadian Charter of Rights and FreedomsGovernance (self-determination, self-government)

Issue

Is the exclusion of non-Indian communities from the Rama Casino’s profit sharing a violation of the right to equality (section 15 of the Canadian Charter of Rights and Freedoms) and was the decision made by the Ontario government and the Chiefs of Ontario out of jurisdiction under the Constitution Act, 1867?

Decision

No, the exclusion of non-registered Indians from the distribution of the Rama Casino’s profit is not discriminatory, and the decision to share these profits does not exceed Ontario’s jurisdiction (unanimous decision).

Parties

Between: Robert Lovelace, on his own behalf and on behalf of the Ardoch Algonquin First Nation and Allies, the Ardoch Algonquin First Nation and Allies, Chief Kris Nahrgang, on behalf of the Kawartha Nishnawbe First Nation, the Kawartha Nishnawbe First Nation, Chief Roy Meaniss, on his own behalf and on behalf of the Beaverhouse First Nation, the Beaverhouse First Nation, Chief Theron McCrady, on his own behalf and on behalf of the Poplar Point Ojibway First Nation, the Poplar Point Ojibway First Nation, and the Bonnechere Métis Association Be-Wab-Bon Métis and Non-Status Indian Association and the Ontario Métis Aboriginal Association

And: the Crown of Ontario and the Chiefs of Ontario

Interveners: Canada, Quebec, Saskatchewan, the Council of Canadians with Disabilities, the Mnjikaning First Nation, the Charter Committee on Poverty Issues, the Congress of Aboriginal Peoples, the Native Women’s Association of Canada and the Métis National Council of Women

Facts

In 1993, the government of Ontario entered into negotiations for the development of a reserve-based casino. In 1994, the Chippewas of Mnjikaning First Nation reserve was picked for the location of the casino, named Rama Casino.

In 1996, the Rama Casino opened. The Ontario Native Affairs Secretary and the Chiefs of Ontario came to an agreement: the Casino’s proceeds were to be deposited in the “First Nations Fund” and afterwards distributed between the First Nations communities.

For a community to be eligible for the program, it must be registered as a band as defined in the Indian Act. The excluded communities, mostly non-band First Nations, Métis Associations, Non-Status Indian Associations, Métis and off-reserve First Nations members, began an action against the Ontario government and the Chiefs of Ontario in order to seek a Court declaration that their exclusion from the Casino’s profit sharing was unconstitutional.

Arguments

Lovelace et al.: They saw themselves as communities. They viewed the distribution system for the Casino proceeds as violating section 15 (1) of the Charter.

Ontario and the Chiefs of Ontario: The distinction is justified under section 15 (2) of the Charter. The decision to limit access to the Fund to First Nations bands is justified as only First Nations bands are a distinct group under the Indian Act, since the Court never clarified the notion of Aboriginal or Métis. Also, bands are the form of Aboriginal government in Canada in which the leadership is accountable to their members. Furthermore, on-reserve Aboriginal people are disadvantaged in comparison with off-reserve people since the former do not have access to provincial programs and services available to Ontario’s general population and must receive additional financing to establish their own programs. Finally, the appellants never manifested their interest in the gambling business; there is no reason why they should have been included in the negotiation process.

Decision of the lower courts

Ontario Court (General Division) (1996): The exclusion of the Bands violated the right to equality as per section 15 (1) of the Charter and could not be justified under section 1. The negotiations between Ontario and the Chiefs of Ontario were outside the jurisdiction of the province.

The Ontario Court of Appeal (1997): The lower court’s decision is reversed. The judge had misconstrued the facts and made errors in law. The casino project’s aim was to provide the bands with better socioeconomic conditions as per the objectives of section 15 (2) of the Charter. Therefore, the distribution of the proceeds could not amount to discrimination under section 15 (1). The province exercised its spending power

Reasons for Judgement

Jury

Cory, L’Heureux-Dubé, Gonthier, McLachlin, Iacobucci, Major, Bastarache, Arbour

Reason

To determine whether there is discrimination against Lovelace et al., we need to evaluate whether there was a differential treatment, and whether this treatment was based on a motive enumerated in the Charter, or on a similar motive. Then, we must reflect on these issues:

1. “pre-existing disadvantage, stereotyping, prejudice, or vulnerability;
2. the correspondence, or lack thereof, between the ground(s) on which the claim is based and the actual need, capacity, or circumstances of the claimant or others;
3. the ameliorative purpose or effects of the impugned law, program or activity upon a more disadvantaged person or group in society, and;
4. the nature and scope of the interest affected by the impugned government activity.” (par. 68).

Lovelace et al. were the focus of a “differential treatment” since the province confirmed that they were excluded from a share in the First Nations Fund and any related negotiation process. However, this is not a ground covered by section 15 (1) of the Charter. When examining Lovelace et al.’s needs and capacities, the Court concluded that their conception of land, government and gaming was different from that of the First Nations bands. The redistribution program between First Nations bands is meant to enhance the social conditions of a specific group rather than of society in general; it therefore falls under the exception of section 15 (2) of the Charter and is not deemed discriminatory. The First Nations Fund does not deny Lovelace et al. acknowledgement as self-governing communities.

Finally, the establishment of the program and the negotiations are outside the jurisdiction of Ontario since the “Indianness” of Lovelace et al. was not prejudiced.

Impact

Lovelace was the first case brought to the Supreme Court concerning the right of government to establish partnerships with specific communities for an ameliorative purpose.

The new criterion established to evaluate whether a government program for Aboriginal people is discriminatory or not is whether it was implemented to improve their social conditions, even though it excluded First Nations groups such as Métis, non-band members and non-status Indians in this case (Bell, 2005: 293-294). Although First Nations members living off-reserve are a historically discriminated group within the larger group of Aboriginal people, not every government program needs to include them. Policies and programs aimed at raising the living conditions of an underprivileged group are in compliance with the equality right protections given by section 15 of the Charter (Morse, 2002: 411).