TORONTO—The Chiefs of Ontario (COO) have launched a constitutional challenge litigation against Ontario and Canada for failing to provide First Nations with equal access to justice and the rule of law as other Canadians. This discrimination causes serious harm and hardship to First Nations. COO was directed to commence this lawsuit by a unanimous resolution passed by the Chiefs-in-Assembly after years of attempting to work with the Ford government on addressing serious flaws with its new Community Safety and Policing Act (CSPA), which explicitly excludes the enforcement of First Nations bylaws from mandatory police functions. The Act was passed by the legislature in 2019 and came into force on April 1, 2024.
A statement of claim filed by COO says Ontario Indigenous Affairs Minister Greg Rickford made threats of retribution. According to the statement on Friday, December 8, 2023, Ontario Regional Chief Glen Hare wrote to the Solicitor General and the Attorney General indicating that COO would be bringing this action, including a claim under the Human Rights Code. He also expressed a desire to work collaboratively together and avoid litigation if possible.
It is stated in the claim that on Monday, December 11, 2023 the Minister of Indigenous Affairs called Regional Chief Hare. “The Minister (Mr. Rickford) spoke in an angry tone and made threats of retribution against (COO) and the work it does in support of First Nations people in Ontario. For example, the minister advised (Regional Chief Hare) that everything taking place (between Ontario and the COO) will stop now that the COO is suing the government.” Minister Rickford also allegedly told Regional Chief Hare, “The Ontario government cannot work on anything with the COO” until the chiefs withdraw their lawsuit, the claim says.
“What you just read is what took place,” Regional Chief Hare told the Expositor last week. “I have asked other provincial ministers like health and education and others, and they are still communicating with us. It was Mr. Rickford’s comment. We knew he was going to be upset, but my question is ‘what’s it going to take to get action on our concerns?’ Now we are going to court, where millions of dollars are going to be spent in legal fees.”
“I know we can work this out,” said Regional Chief Hare. “We are not asking anything that no one else has.”
The Expositor reached out to Minister Rickford last Friday for his comments but were unable to reach him prior to this week’s press deadline.
The Soo Today reported last week that a spokesperson for Minister Rickford responded to the allegations with a one sentence statement: “As this matter is before the courts, it would be inappropriate to comment further.”
A statement of claim field by COO says that many provincial and federal laws, including those related to tenancy, land management, substance control, the exclusion of dangerous individuals from communities, and environmental protection, don’t apply on First Nations.
“First Nations want their communities to be safe and secure, everyone in all communities in Canada want the same,” said Regional Chief Hare at a news conference and demonstration held at Queen’s Park in Toronto on Tuesday of last week by COO and the Indigenous Police Chiefs of Ontario. “We spent many years making First Nation enforcement laws, but they (government) have disregarded this. This type of discrimination can no longer be accepted or tolerated.”
“This new legislation leaves us no access to justice and safety in our communities,” said Regional Chief Hare. “It is discriminatory and it puts our communities at serious risk. This legislation has always been discriminatory, but ignoring the serious concerns of First Nations was the final straw.”
First Nation laws are often needed to address important safety issues such as land regulation, law and orders, tenancies, substance control and the exclusion of dangerous individuals from communities. These bylaws require both enforcement, which is optional for police forces under the CSPA, and prosecution, which has not been possible, as Ontario and Canada do not provide prosecutional services for First Nations laws, says COO.
Regional Chief Hare said at the press conference, “Ontario had nearly five years to fix a preventable problem and they did not. This offensive legislation contributes to years of issues with both Ontario and Canada, which provide enforcement and prosecution everywhere in the province, except for our laws in our communities.”
“Ontario and Canada have stated that they respect our governments, yet they do not work to ensure that their police respect our laws, and their lawyers continue to prosecute people who violate these laws, even if we ask for help. They cannot have it both ways,” said Regional Chief Hare.
“Litigation is always a measure of last resort. In this case, it is clearly necessary, as vulnerable people are suffering in our communities. First Nations are asking for something that every other community in Ontario is provided with,” said Regional Chief Hare. “Enforcing the rule should not be discretionary and keeping people safe should not be made into a political issue. If Ontario and Canada truly believe in safe communities, we would not be going to court.”
The claim says that while First Nations can make their own laws and bylaws, they aren’t effective without enforcement and prosecution. The lawsuit alleges the governments do not provide enforcement or prosecution service in relation to First Nations laws, nor do they provide enough funding for First Nations to hire their own enforcement officers or prosecutors. It further alleges that Ontario’s CSPA, which took effect April 1, explicitly excludes the enforcement of First Nations bylaws from mandatory policing duties and is ambiguous on the enforcement of other First Nations laws.
“This leaves us with no access to justice and unsafe communities,” Regional Chief Hare said. “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.”
As for the next step in the process, “It is up to the premier and the prime minister to get back to us,” said Regional Chief Hare. “We don’t want to go to court. And I’m sure they don’t want to go to court. Call us to the table to discuss this.”
“We want to be able to write our own laws,” stated Regional Chief Hare. “When I go into another community, I respect their laws. Right now, the community I live in is a haven for the drug world. We have all seen what has taken place in M’Chigeeng the past four-five years and we can’t kick out those who are selling drugs and causing violence. We want to take care ourselves, and that includes having laws that can be enforced and people prosecuted.”
Ontario Solicitor General Michael Kerzner was asked about the COO lawsuit and the new CSPA during a question period last Tuesday but said he could not comment because the matter is before the courts.
MPP Sol Mamakwa, Official Opposition Deputy Leader, expressed his full support for the COO and the IPCO as they announced their intention to pursue litigation against Ontario and Canada for failing to ensure equal access to justice for First Nations communities.
“I am deeply committed to pursing justice for First Nations people across Ontario. This is not just a legal matter but a shared experience for First Nations peoples across the province.”
“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,” said Mr. Mamakwa. “Excluding the enforcement of First Nations laws as a mandatory police function is discriminatory. There’s no way around it. It leaves our communities vulnerable and without the protection they deserve. First Nations police services need to be considered essential like police forces off-reserve.”
James Killeen, chief of police for the UCCM Anishnaabe Police Services and vice president of IPCO, told The Expositor after the press conference, “We work and serve in our communities. Under this new act, it says that police agencies, the OPP and other police agencies, it is no longer mandatory for them to enforce First Nation laws.”
“A majority of our communities (in Ontario) are policed by the OPP, they work in First Nations but this act creates a divide. Our First Nation leaders are asking for the (First Nation) laws to be heard, the laws to be enforced and a mechanism be put in place to hold the accused responsible,” said Police Chief Killeen. “We want equality, the same as everyone else has. The biggest complaint I’ve heard in my three years with the UCCM Police from our community leaders and members is ‘why are our laws not being enforced?’ It is because we don’t have the ability to prosecute.”
