A judge has struck down the part of Manitoba's smoking ban that exempts First Nations reserves, ruling that it discriminates against businesses outside reserves and violates the Charter of Rights.
Court of Queen's Bench Judge Albert Clearwater rejected the relevant section of the Non-Smokers Health Protection Act in a ruling Monday.
His decision leaves the province with at least four options: it could appeal, ban smoking everywhere in the province, revoke the ban or find some sort of compromise.
Clearwater made the decision when hearing an appeal of the conviction of Robert Jenkinson, who was charged under the act for allowing smoking in his motel and bar in Treherne after the ban came into effect in 2004.
Jenkinson owns the Creekside Hideaway Motel in Treherne, which is 135 kilometres southwest of Winnipeg and near two reserves. He argued that the law did not give him equal treatment with proprietors of native establishments.
Clearwater agreed, ruling that the ban discriminates against businesses in Treherne.
He also said the legislation protects people off reserves from second-hand cigarette smoke, but does not offer that same protection to people living on reserves.
"By including the exemption for reserve lands, the legislature has discriminated, within the meaning of Sec. 15(1) of the charter, against the accused and others similarly situated in Manitoba society.
"For reasons not readily apparent and not properly explained, the legislature ultimately declined to pay heed to what was (and should be) the overriding objective to be obtained," which was protecting Manitobans, including aboriginal Manitobans, from second-hand cigarette smoke.
'One set of rules'
Jenkinson said he was elated with the ruling, which means he will not have to pay the $2,500 in fines he had received.
He said the appeal will benefit him and other bar and hotel owners who have lost customers to native casinos and bingo halls.
'We've got one set of rules now for everybody. As a Manitoban and as a Canadian, I think that's just awesome.'-Bar owner Robert Jenkinson, who argued that the smoking ban was discriminatory because it didn't include businesses on reserves
"Most businesses will have an equal playing field now, and I think that's just great," he said. "We've got one set of rules now for everybody. As a Manitoban and as a Canadian, I think that's just awesome."
Jenkinson said he will abide by the smoking ban at this time. He said he wants to see the ban apply to all public places.
Art Stacey, Jenkinson's lawyer at the appeal, said Tuesday the provincial government must now change its laws in light of the decision.
"We'll be looking to see that the province actually does enforce the law across the province," Stacey said.
Reserves under Ottawa's jurisdiction, province argues
The provincial government has argued in the past that it could not extend the smoking ban to aboriginal lands because they fall within federal jurisdiction.
"The line was always, you know, 'We're only doing this on non-reserve lands because we have no jurisdiction on reserve lands,'" said Gary Desrosiers of the Manitoba Association of Rural Hotel Owners on Tuesday.
But in his decision, Clearwater wrote: "To suggest that a provincial legislature, which can and does regulate the establishment and licensing of hotels, bars, casinos, restaurants and gaming activities, both on and off reserve lands, suddenly has no right to regulate smoking on reserve lands is, with respect, incorrect."
Manitoba may appeal
In handing down his ruling, Clearwater said he expects the province to make changes to the ban to include on-reserve businesses in a "reasonable, but short, period of time."
Healthy Living Minister Theresa Oswald said the government must examine the ruling closely.
"We haven't made a decision as to what it is we are going to be doing in the short term, in the long term," she said Tuesday.
"That decision is going to come up as early as [Wednesday] as we begin our discussions on the complexity of this issue. So we won't be taking a protracted amount of time in making this decision, but it will be a measured one and a thoughtful one, as it ought to be."
Desrosiers said his association wants the province to consider a compromise.
"We're certainly open to seeing the government consider some form of a negotiated compromise … maybe smoking rooms or a ventilation system," he said.
Province can't enforce ban on reserves: chief
Jenkinson's lawyer said Manitoba went its own way when it came to exempting First Nations from the smoking ban.
"My understanding is that Manitoba is the only province where there is a specific exemption that exempted reserve land from the application of its smoking ban," said Stacey.
Three provinces — British Columbia, Ontario and Saskatchewan — have smoking bans that do not exempt facilities on First Nations.
The Assembly of Manitoba Chiefs said Tuesday it was examining the ruling and would release a statement later in the week.
But one rural Manitoba chief, Terry Nelson of the Roseau River First Nation, said the province does not have jurisdiction to enforce the smoking ban on native land.
"It's a jurisdiction issue, and it's pretty clear that the provincial law does not apply on federal Crown land," Nelson said.
However, a spokesperson for the federal Department of Indian and Northern Affairs told CBC News on Tuesday that laws of general application — including provincial smoking bans — apply to First Nations.