First ruling by Judge Marshall, which has received a lot of MSM attention. Judge Marshall ended the B.S. by both the OPP lawyers and the Ontario Attorney General about who is the final authority to ensure the Rule of Law is upheld. It was also clear that Judge Marshall is not prepared to allow Natives to be exempt from the Criminal Code because they have some special rights or some idea of Native Self-rule.

A lesser known ruling came from Judge Albert Clearwater in Manitoba on Aug. 14, 2006. The Judge ruled that Section 15 of the Charter of Rights and Freedoms, the very section we quoted in our report [link], guarantees that all people receive equal treatment under the law. What makes this ruling so important is that the Judge is ruling against Native Self-Rule and the idea that Natives have separate rights from all other Canadians.

The Manitoba Government tried to ban smoking province wide but exempted reserves - much like the gun registry exempted natives from having to obey the gun registry laws. The Judge ruled that the Province did have Jurisdiction over reserves and thus Section 15 of the Charter was violated because it created a two tier system.

Furthermore, both Judges are accepting that Provinces do have jurisdiction to enforce the Rule of Law upon Native people. No argument about 'land claims', about 'Native Self-rule' or about Natives having special rights in the Charter of Rights and Freedoms changes the fact that all people must be equal under the law.

Whether that is a smoking ban or the Criminal Code, Provinces and therefore the Police Forces must apply the law equally to all.

The fact that as of today - both the OPP and the Ontario Government continue to Refuse to Enforce our laws Equally only proves that both are violating the Rights of the People of Ontario.

If we had Strong Leadership in Ottawa, Harper would be quick to restore People's Rights and the 'Rule of Law'. Anything short of this is an attack on Democracy itself.

Judge says Manitoba smoking ban violates charter by excluding native reserves

STEVE LAMBERT
Canadian Press
Aug 15, 2006

WINNIPEG (CP) - A judge's ruling that Manitoba's anti-smoking law must apply to native reserves has raised a legal question other provinces will face as they decide whether to allow band councils to set their own smoking rules.

Justice Albert Clearwater of Court of Queen's Bench ruled Monday that an exemption for reserves is discriminatory because it violates Section 15 of the Charter of Rights and Freedoms, which guarantees that all people receive equal treatment under the law.

"It is every bit a breach of the charter to create offences for certain conduct by persons . . . and to concurrently exempt aboriginal persons from prosecution for the same conduct," Clearwater wrote.

He said the Manitoba government was wrong to think it does not have jurisdiction over smoking on reserves.

But aboriginal leaders disagree and are already warning the province will be in for a fight if it tries to enforce its ban on reserves.

"The fact is, First Nations have jurisdiction, and that's clear under the Constitution," Terry Nelson, chief of the Roseau River reserve south of Winnipeg, said Tuesday.

Nelson, whose reserve opened a smoker-friendly gambling house last year, expects the case will be appealed to a higher court.

Clearwater overturned the conviction of Robert Jenkinson, a bar owner in Treherne, Man., who was fined $2,550 last year for allowing patrons to light up.

Jenkinson argued he was being discriminated against as a non-native, and many of his patrons were flocking to bingo halls on nearby reserves, where they could smoke to their hearts' content.

The judge ordered the province to start applying its smoking ban on reserves after a "reasonable but short period of time" to allow native business owners to familiarize themselves with the law.

For bar owners who have been fighting the legislation since its inception in 2004, the ruling was sweet victory.

"This confirms what we've been saying all along, that you can't (enact) laws based on race that are going to damage somebody's business and discriminate against people," said Gary Desrosiers, the leader of a coalition of bar owners.

The ruling was also welcomed by bar owners in Saskatchewan, who have been fighting that province's smoking ban on the same grounds.

"Right across Canada, we'll be taking a close look at this," said Tom Mullin, head of the Saskatchewan Hotel and Hospitality Association.

"If an individual has now proven that there is definitely an unlevel playing field, then it's really a whole new ball game."

The Manitoba and Saskatchewan governments argue they do not have jurisdiction to set smoking laws on aboriginal lands.

Other provinces which have recently drafted no-smoking laws have also taken a hands-off approach. The Nova Scotia government originally said its anti-smoking law, which is to take effect in December, would apply to native reserves in the same way that highway speed limits and other laws already do.

But the province quickly added it would negotiate with individual bands about how the law is to be implemented and enforced.

In Ontario, First Nations can pass bylaws to opt out of the provincial smoking ban.

The Manitoba government is now caught between a political rock and a hard place. It can appeal Clearwater's ruling and gear up for another legal battle with non-native bar owners, who have raised money for Jenkinson. Or it can obey the ruling, start enforcing its law on reserves, and prepare for a likely court battle with native leaders.

A government spokesman would only say the province is reviewing the ruling and considering its options.