FROM OUR PUBLICATIONS DESK

The following decisions came across our desk over the past month:

R v TJD, 2016 MBCA 67: Leave to appeal was granted by the Manitoba Court of Appeal in the sentencing of a young person under Manitoba’s Youth Criminal Justice Act (YCJA), the appeal was allowed and the sentence was varied. The Crown candidly conceded that various aspects of the sentence were illegal, or that the sentencing judge otherwise erred in principle, including with respect to the judge’s failure to consider relevant Gladue factors in imposing a sentence on this young person, who was of either Métis or Cree ancestry.

Calaheson v Gift Lake Metis Settlement, 2016 ABCA 185: The Alberta Court of Appeal allowed an appeal from part of an order of the Court of Queen’s Bench declaring the Gift Lake Metis Settlement General Election held in October 2013 invalid and vacating the election of three councillors. The appellant challenged the Order’s failure to declare a further position vacant, that of the respondent Dave Lamouche. The Court of Appeal held that this position should have also been vacated in the complex and unique circumstances of the contentious election at issue.

Re Gray, 2016 CanLII 38311 (ON OCCO): The Office of the Chief Coroner for Ontario released a verdict explanation for the inquest into the death of Brian Gray. Mr. Gray died in the custody of police during an armed stand off on Lac Seul First Nation in 2010, making an inquest mandatory. The jury’s recommendations from the inquest included: more funding and training for mental health and addictions services for Lac Seul, a review of the resourcing for the Lac Seul Police Service with a view to increasing police services for Lac Seul, funding for a certified mental health counsellor, additional mental health workers and training for existing workers in Lac Seul, among others.

R v Halkett, 2016 SKPC 65: The Saskatchewan Provincial Court applied Gladue factors in sentencing an Aboriginal man who was found guilty of sexual assault against a cellmate in an RCMP station “drunk tank” to an 18-month conditional sentence followed by a two-year term of probation. The Court noted that in Saskatchewan, where Aboriginal people represent roughly 16% of the population, they account for roughly 77% of the province’s 2014-2015 admissions into adult correctional centres. After reviewing the individual’s Gladue factors, the Court held that the accused would be “apt to find more success in his home community than he would in jail”.

Rice c Agence du revenu du Québec, 2016 QCCA 1077: The Quebec Court of Appeal dismissed a petition for an order to stay the execution of its April 2016 judgment in this matter while the petitioners seek leave to appeal to the Supreme Court of Canada. The petitioners are Mohawks of Kahnawake with status under the Indian Act that reside and carry on business on reserve operating gas stations and retail outlets. They are challenging tax assessments for having failed to charge taxes against their customers, regardless of whether these customers had “Indian” status or not. They have so far been unsuccessful. The Court of Appeal accepted that their arguments for challenging their tax collection and remittance obligations, which are now largely based on the Royal Proclamation of 1763, are serious questions to be tried. However, the petitioners failed to establish serious or irreparable harm in the absence of a stay.

Malcolm v Fort McMurray First Nation, 2016 FC 672: The Federal Court dismissed an application for judicial review of three decisions on applications for membership in the Fort McMurray First Nation. At issue was whether the applicants needed to register for status under the Indian Act before their membership applications could proceed. The Court interpreted Fort McMurray’s Membership Code as requiring confirmation of registration under the Indian Act before the applications could be processed and upheld the Membership Clerk’s decision.

R v Rich, NLTD(G) 87: The Newfoundland and Labrador Supreme Court allowed an application from the Crown for review of an order granting judicial interim release to Mr. Rich. Among other things, the Supreme Court held that the Provincial Court judge erred in his application of the Supreme Court of Canada’s Gladue and Ipeelee decisions. The Supreme Court found no reference to either decision or the fact that Mr. Rich was Aboriginal in the interim release decision. The Supreme Court found that the court below had incorrectly held that being an Aboriginal person was a factor in favour of judicial interim release without any evidence of the particular Aboriginal background of Mr. Rich. The Court stated that “case-specific information regarding the particular Aboriginal offender” is essential in order to apply Gladue and Ipeelee; they cannot be applied “in a vacuum”.

R v Menicoche, 2016 YKCA 7: The Yukon Court of Appeal allowed an appeal from a sentence of 23 months’ imprisonment for sexual assault. The Court of Appeal held that the sentencing judge failed to give genuine effect to the Aboriginal status of the appellant. It found that the sentencing judge failed to consider any alternative to a lengthy territorial jail term despite being familiar with the appellant’s compelling Gladue factors that were set out in the pre-sentence report. The sentence was reduced by six months.

2403177 Ontario Inc v Bending Lake Iron Group Ltd, 2016 ONCA 485: The Ontario Court of Appeal rejected an application for leave to appeal from an Approval and Vesting Order in relation to the moving party’s receivership. Among other things, the moving party argued that the Court of Appeal judge who made that order failed to consider whether the receiver discharged its obligation to consult with “affected Aboriginal communities” in approving a sale agreement arising from the receivership. This duty to consult argument was rejected on the basis that it should have been fully canvassed earlier in the proceedings.

Sarrazin c Canada (AG), 2016 QCCS 2458: The Quebec Superior Court certified a class action on behalf of a group of approximately 45,000 people who were deprived of status under the Indian Act based on discriminatory provisions. In its 2009 McIvor decision the BC Court of Appeal held that section 6 of the Indian Act infringed upon certain individuals’ right to equality under section 15 of the Charter. As a result of this decision, section 6 of the Indian Act was amended through Bill C-3 in 2010. This class action seeks compensation for the individuals who gained status under Bill C-3 on the basis that they were deprived of various forms of financial support under the Indian Act between 1985 and 2011 that they would have otherwise been entitled to were it not for the discriminatory provisions struck down in McIvor and removed through Bill C-3.

R v Laboucane, 2016 ABCA 176: The Alberta Court of Appeal dismissed a sentencing appeal brought on various grounds, including the ground that the sentencing judge disregarded the 30-page Gladue report provided on Mr. Laboucane, which the sentencing judge found had failed to disclose any meaningful Gladue factors to consider. The Court of Appeal rejected this argument and found that Mr. Laboucane had a “predominately stable and supportive upbringing and background” that did not mitigate his culpability. The Alberta Court of Appeal also went out of its way to criticize the Ontario Court of Appeal’s recent decision in R v Kreko, addressing an Aboriginal offender who was adopted by a non-Aboriginal family, suggesting that it expanded the level of generality in the application of Gladue factors “almost to a level of pure ethnicity”.

R v Chocolate, 2015 NWTSC 28: The Northwest Territories Supreme Court granted judicial interim release to Mr. Chocolate. The Crown in this case argued that Gladue factors are only relevant to the tertiary ground for detention under section 515(10) of the Criminal Code on the basis that Gladue factors are only relevant to questions of sentencing, and do not extend to questions of whether detention is required to ensure the accused attends at trial or whether the public is protected. The Court rejected this argument and found that Gladue factors were relevant to all three grounds for detention.

Robertson v The Queen, 2015 TCC 219: An official English translation of this 2015 decision of the Tax Court of Canada was released this month in which the Tax Court dismissed an appeal from a reassessment. The appellant is a member of the Mashteuiatsh Montagnais Band (Pointe-Bleu) with status under the Indian Act who operates a fur manufacturing and sales business. In disputing an assessment for GST, penalties and interest against his business, Mr. Robertson asserted an Aboriginal right to the fur trade as well as an Aboriginal self-government right in his defence, among other arguments. The Tax Court found that there was no right to engage in the fur trade in the manner that the appellant was engaged in this industry. It recognized the right of the Montagnais to engage in the fur trade but held that this must be limited to the sale of raw furs of trapped animals, noting that raw fur sales were non-taxable. The Tax Court also recognized the Montagnais du Lac Saint-Jean have an Aboriginal right to management of hunting, fishing and trapping territories within their jurisdiction, but held that this right could not give them exclusive authority over taxation of business transactions in their territory “since this would violate Crown sovereignty”. While the Tax Court recognized these Aboriginal rights it held that they were not prima facie violated by the Excise Tax Act.

First Nation of Nacho Nyak Dun v Yukon (SCC file 36779): The First Nation of Nacho Nyak Dun was granted leave to appeal to the Supreme Court of Canada from the Yukon Court of Appeal decision in relation to a dispute over land use planning for the Peel watershed under the terms of modern treaty agreements for the region.

Hughboy v Oujé-Bougoumou Cree Nation, 2016 QCCQ 4544: The Court of Quebec dismissed an application for advance costs in relation to a challenge to the results of a 2015 election for the Oujé-Bougoumou Cree Nation. The Court held that there was prima facie merit to Mr. Hughboy’s case. However, it found there were no special circumstances of public importance in support of making such an exceptional order and that Mr. Hughboy failed to prove that his financial circumstances were such that he could not proceed with his case without such an order being made.

R v McDonald, 2016 NUCA 4: The Nunavut Court of Appeal allowed an appeal from a sentence for Ms. McDonald’s breach of a Conditional Sentence Order (CSO) that resulted in her being sent back to prison. Among other issues, the Court of Appeal held that the sentencing judge had failed to give meaningful consideration to Ms. McDonald’s Gladue factors. The Court held that Gladue factors must be considered in every case involving an Aboriginal offender unless the offender waives this right. The sentencing judge erred in assuming that Gladue factors were adequately addressed into the original CSO and they ought to have been considered afresh at the CSO breach hearing.

Children’s Aid Society of Halton Region v MM, 2016 ONCJ 323: The Ontario Court of Justice released a decision addressing whether three children are “Indian” or “native persons” for the purposes of the Child and Family Services Act. This determination dictates whether the children have access to unique benefits, special treatment and special considerations not otherwise available under the Act. The Court noted that no previous decision in Ontario directly discussed the facts necessary to support a finding that children meet these definitions and therefore set out to provide such an analytical framework, including guiding principles.