Appendix C: Model factum

• Author: Allan C. Hutchinson
• Pages: 273-311

IN THE HIGH COURT OF THE DOMINION OF CANADA

(On Appeal from the Ontario Court of Appeal)

BETWEEN:

ORGANIZATION OF ABORIGINAL WOMEN

(OAW)

Appellant

-AND-

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO

Respondent

FACTUM OF THE APPELLANT

ORGANIZATION OF ABORIGINAL WOMEN

Counsel for the Appellant

Team #1

Wilson Moot 2000

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PART 1: STATEMENT OF FACTS

1. The Appellant, the Organization of Aboriginal Women (the “OAW”), is

a national non-profit organization which was incorporated in 1977. Its mem-

bers are Aboriginal women who self-identify as Aboriginal and have provid-

ed proof of Aboriginal ancestry. The OAW’s membership includes Métis,

status, and non-status Indian women.

Official Problem at 2.

2. The Respondent is the Assembly of Ontario’s First Nations (the

“AOFN”), an organization representing 132 band councils in Ontario. The

bands represented by the AOFN are comprised mainly of Indians registered

under the Indian Act (often referred to as “status Indians”) and all of them

have reserve land bases. Under the provisions of the Indian Act, each band

council represented by the AOFN controls access to residency on their

respective reserves.

Official Problem at 1, 2.

Indian Act, R.S.C. 1985, c. I-5, s. 81(1) [hereinafter the Indian Act].

3. The Appellant appeals from a decision of the Ontario Court of Appeal

reversing a decision of the Ontario Superior Court which found that

Ontario’s Casino Program violated the Appellant’s section 15 rights and is

not justifiable under section 1 of the Canadian Charter of Rights and

Freedoms.

Casino Corporation Ontario Act, per Official Problem [hereinafter the Act].

Canadian Charter of Rights and Freedoms, ss. 1, 15, Part I of the Constitution Act,

1982, being Schedule B to the Canada Act 1982 (U.K.), 1982 c.11, s. 2(a) [here-

inafter the Charter].

4. The Casino Program is a provincial program instituted in Ontario to

assist on-reserve Aboriginal communities. The Program was the result of

exclusive negotiations between the Ontario Government and the AOFN.

Pursuant to those negotiations, it was agreed that a Casino would be located

on one of the bands’ reserves and that the net revenues from the Casino

would be distributed to and between the 132 bands in the province. In

September 1994, a selection committee of the AOFN and the Ontario

Government announced that a First Nations Reserve in northern Ontario

had been chosen as the site for the new Casino.

Official Problem at 1.

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5. Under the provisions of the Program, Casino profits will be provided

through the First Nations Fund to band councils, who can then spend the

money on reserves for the benefit of the communities residing thereon. In

addition, the band councils are themselves actual beneficiaries of the Program.

Official Problem at 2-4.

6. No equivalent to the Casino Program exists to benefit Aboriginal women

as a group who are not band members. This is so despite the fact that

Aboriginal women suffer marked disadvantage. The OAW’s non-status and

Métis members belong to a severely disadvantaged group within Canadian

society. Furthermore, many of its status Indian members have been subject

to historical neglect and disadvantage imposed by provisions of the Indian

Act.

Indian Act, supra.

7. Recognizing this, the OAW sought the inclusion of off-reserve

Aboriginal women as negotiating partners and beneficiaries in the Casino

Program. Despite this expression of interest, the Ontario Government has

steadfastly refused to include the OAW in any aspect of the Program.

Official Problem at 1-4.

JUDICIAL HISTORY

8. The OAW brought an application in the Ontario Superior Court seeking a

declaration that the Casino Program violates its members’ equality rights under

section 15 of the Charter, and a declaration that it is entitled to a share of the

Casino’s future profits. The Attorney General of Ontario was the Respondent.

Official Problem at 2.

9. The Government of Ontario has stated that its object in excluding the

AOW is to benefit communities of on-reserve Aboriginal people by distrib-

uting the funds of the Casino Program to band councils. The Government

further attempted to justify its choice of beneficiary by stating that it was

simply utilizing an accepted statutory definition found in the Indian Act.

Indian Act, supra at s. 2.

Official Problem at 2-3.

10. Mr. Justice Perrin of the Ontario Superior Court held that Ontario’s

Casino Program was not authorized by section 15(2) of the Charter. His

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