UNIVERSITY OF OSLO, FACULTY OF LAW, NORWEGIAN CENTRE FOR HUMAN RIGHTS
INTERNATIONAL HUMAN RIGHTS LAW: INSTITUTIONS & PROCEDURES (JUR5710)
Sample Case Brief: Lovelace v. Canada
Sandra Lovelace v. Canada, CCPR HRC Comm. No. R. 6/24
Author: Sandra Lovelace, individual citizen of Canada. State Party: Canada
 Lovelace was born a Maliseet Indian on the Tobique Reserve in Canada. She continued to live
on the reserve as a registered Indian until 23 May 1970 when she married a non-Indian. According
to the Canadian Indian Act, Section 12 (1) (b), her marriage to a non-Indian resulted in her no longer
being a legally registered Indian (the same act allows men who marry a non-Indian to remain
registered). Within a couple of years, Lovelace’s marriage ended and she eventually moved back
onto the reservation in the home of her parents. Lovelace is not legally entitled to remain on the
reservation, however, and does not have any legal claim to certain benefits enjoyed by registered
Indians.
 Lovelace claims multiple violations the CCPR, but especially “the loss of the cultural benefits of
living in an Indian community, the emotional ties to home, family, friends and neighbours, and the
loss of identity” (para. 9.9 (9)). Canada admits certain flaws in the legislation and an intent to change
parts of it, but claims its substance is consistent with its duties to protect minority groups under Art.
27.
Procedural No case was brought by the author in any Canadian court; she claimed a prior Canadian Supreme
Court decision had already ruled on the issue raised. Following the entry into force for Canada of the
Posture:
CCPR and its 1st Optional Protocol on 19 August 1976, the communication was filed on 29
December 1977. It was declared admissible on 14 August 1979 and a view of the HRC adopted on
30 July 1981.
1. Must a complainant exhaust all local remedies before filing a communication with HRC?
Issues:
2. Procedural application of the Covenant to facts that pre-date entry into force.
3. Who is entitled to minority protection?
4. What is included in the substance of minority protection in CCPR, Article 27?
Directly: minority rights (Art. 27).
Rights:
Indirectly: Non-discrimination (Arts. 2, 3 & 26), residence (Art. 12), and family life & children
(Arts. 17, 23 & 24).
Holding/
 The continuing effects of the Indian Act (not the change of a status at the moment of marriage)
Reasoning: are the “essence of the present complaint” (para. 13.1).
 In the circumstances of her case, Lovelace is entitled to “belong” to the minority group and to
the right of access to her native culture and language “in community with the other members” of her
group.
 The restrictions resulting from her no longer being registered as an Indian interfere with these
rights because there is no place outside the Tobique Reserve to otherwise fulfill them (paras. 14
&15). Denial of the right to residence in this case was a violation of a right to identity.
1. Local remedies that are demonstrated to be futile need not be exhausted (paras. 1 & 3).
Rules of
2. Effects of a state policy are to be examined without regard to the date or even necessarily the
Law:
substance of their original cause (para. 13.1).
3. “Persons who are born and brought up on a reserve who have kept ties with their community
and wish to maintain these ties must normally be considered as belonging to that minority with the
meaning of the Covenant” (para. 14).
4. “Statutory restrictions affecting the right to residence on a reserve of a person belonging to the
minority concerned, must have both a reasonable and objective justification and be consistent with
the other provisions of the Covenent, read as a whole” (emphasis added) (para. 16). “Article 27 must
be construed and applied in the light of the other provisions mentioned above” (para. 16).
View that Canada violated CCPR, Art. 27 (para. 19).
Decision:
Not legally binding upon any state, even Canada (only a “view” of the HRC) (see procedural rules of
Validity:
the HRC). (Normative force). Canada did amend the Indian Act, removing the discriminatory parts.
Case:
Parties:
Facts:
UNIVERSITY OF OSLO, FACULTY OF LAW, NORWEGIAN CENTRE FOR HUMAN RIGHTS
INTERNATIONAL HUMAN RIGHTS LAW: INSTITUTIONS & PROCEDURES (JUR5710)
Sample Case Brief: Lovelace v. Canada