Monthly Archives: December 2018

The Council of the Haida Nation v. British Columbia, 2018 BCSC 277

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Wiyasiwewin Mikiwahp Native Law Centre Case Watch

Application for severance of a trial concerning declarations of Aboriginal title and general Aboriginal rights, is granted on the terms sought by the Plaintiffs, with the exception that matters related to rights will only be decided in respect of the Representative Interests.

This is a case management application for an order severing the trial of an action into two parts, Phase 1 and Phase 2. The Court is satisfied that the Plaintiffs have demonstrated that there is a real likelihood that an order severing this trial into two parts will result in saving considerable time and expense. In the action, the Plaintiffs seek a declaration of Aboriginal title and Aboriginal rights to the terrestrial portions of Haida Gwaii. What is defined as the “Claim Area”, includes its inland waters, to the waters and submerged lands within the surrounding territorial sea (12 nautical miles from the coastal baseline) and to all living creatures such as fish and birds during times that they are present. The Plaintiffs claim general Aboriginal rights, including the right to harvest, manage and trade fish, marine resources and trees within the Claim Area.

The Plaintiffs’ claim that the Defendants have infringed their asserted Aboriginal title and general Aboriginal rights by issuing tenures, permits and licences, conveying land and passing laws in relation to Haida Gwaii that do not accommodate the Plaintiffs’ interests. The principle form of infringements for which compensation is sought from the Defendants are related to forestry, fisheries and land alienations. The Plaintiffs seek compensation for these infringements, or for unlawful interference with their asserted Aboriginal title, rights, and an accounting of all benefits collected in connection with Haida Gwaii. However, the Plaintiffs confirmed that they are not seeking to quash tenures, permits or licences or conveyances of land or to eject fee simple owners. They are only seeking compensation for relevant losses.

With respect to various procedural matters during and after trial, the Plaintiffs submit that a) following the completion of Phase 1 of the trial, the Court’s determination of the issues addressed in that phase will be the final determination of those issues; b) the parties may appeal the decision in Phase 1 before the commencement of Phase 2, but Phase 2 may proceed pending such appeals with the consent of the parties; c) that subject to availability, the same Justice will be seized of both phases of the trial which will be a single trial; and d) evidence heard in the Phase 1 of trial shall be deemed to be evidence in Phase 2 of the trial.

The key issue in dispute was whether Phase 1 of the trial should include a determination of broader Aboriginal rights, beyond those pertaining to the Representative Interests. The Court decided that matters related to general Aboriginal rights will only be decided in respect of the Representative Interests. Both Canada and British Columbia dispute that the plaintiffs have Aboriginal title to all of the Claim Area and both agree that the Plaintiffs’ claims with respect to Aboriginal title over private lands and submerged lands are novel. No such claims were dealt with in Tsilhqot’in Nation v. British Columbia. The Court reasoned that, without severance, evidence concerning a defence of justification for infringement to Aboriginal title would have to be adduced for the entire Claim area. With severance, once title is determined in Phase 1, the Court will only have to concern itself in Phase 2 with infringements to areas where title has been declared. Previous comprehensive title cases have not resulted in compensatory awards. The intention of the parties is that in Phase 1 the question of whether pecuniary damages are payable in respect of the Representative Interests, and from when, are what is to be judicially determined.

The expectation is that such a determination will assist in either the settlement of damages claims for other claimed interests or by establishing a framework for evaluating such claims, which can be utilized in Phase 2. The Court agrees with the submissions of the Plaintiffs that the establishment of a template for determining compensation may considerably reduce the range of expert financial computations and evidence required to compute damages valuations and other remedies as the parties intend to engage in negotiations after Phase 1. None of the parties suggest that resolving any of the issues in Phase 1 will, in and of itself, eliminate the requirement for Phase 2. However, the Court is satisfied that an order severing this trial into two parts will facilitate settlement discussions between the parties and may therefore result in an end to the action.

R v Anugaa, 2018 NUCJ 2

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Wiyasiwewin Mikiwahp Native Law Centre Case Watch

The unique cultural context and circumstances of Nunavut amount to a third category of exceptional circumstances with respect to the application of R v Jordan and its presumptive ceilings for trial delay.

This case involved two allegations of indictable historic sexual assault alleged to have happened in Sanikiluaq between May 2, 1977 and May 2, 1978. The accused, Lukasie Anugaa, was charged on July 8, 2013. Mr. Anugaa elected to be tried by a judge and jury. However, it turned into a case about pre-trial delay, in which five different jury trial dates were scheduled. Mr. Anugaa’s fifth and latest trial was scheduled to start on January 15, 2018. Over 54 months passed between the day Mr. Anugaa was charged and the anticipated end of his trial. Mr. Anugaa made a pre-trial application to the Court based on section 11(b) of the Canadian Charter of Rights and Freedoms and the Supreme Court of Canada decision’s in R v Jordan, arguing that his right to a trial within a reasonable time had been violated. Mr. Anugaa sought a stay of proceedings on this basis, which would have brought the case to an end. The Crown opposed the stay.

The Nunavut Court of Justice decided that the delay in the circumstances of this case had been reasonable. In 2016, the Supreme Court revisited its previous interpretation of section 11(b) of the Charter in Jordan. The Supreme Court set out presumptive ceilings in terms of the amount of time that would generally amount to an unreasonable delay between the issuance of charges and a criminal trial. The Supreme Court also discussed exceptional circumstances to the strict application of these presumptive ceilings. Two examples of exceptional circumstances listed in Jordan are “discrete events” and cases that are “particularly complex”. The delay caused by “discrete events” can be deducted from the remaining net delay. Where the case is particularly complex, no deductions are needed and the Court will instead consider if the complexity justifies the time spent on the case.

Central to the Nunavut Court of Justice’s analysis was the statement in Jordan that the list of exceptional circumstances is not closed. There are exceptional circumstances that surround access to justice in Nunavut as it sprawls over Canada’s vast northern landmass. Just to name a few, 38,000 people live in 25 remote communities scattered over Nunavut’s 2,093,190 square kilometres. There is only one courthouse, the Nunavut Court of Justice, located in Iqaluit. Outside Iqaluit, the Court travels regularly to each one of the other 24 far flung communities and the distances between them are immense. The circuit sits in school gyms, community halls and even council chambers. Many of the community halls lack functioning washrooms and heating systems fail leaving court participants to conduct court in their winter parkas and mittens. The harsh arctic climate is unforgiving, therefore flights are delayed or cancelled as blizzards are a regular occurrence. The cancellation of a court circuit has an impact out of proportion to a similar cancellation in the south as it means the possibility of no court in the community for an entire year, unless a jury trial has been scheduled. Jordan does not account for the impact of Nunavut’s tremendous infrastructure deficit, as the taxpayer money available to the Government of Nunavut is woefully inadequate. This level of service will continue despite the new Jordan rules.

In the Court’s view, Jordan is also problematic as it does not consider the unique cultural context in Nunavut. There is central importance of Inuit Qaujimajatuqangit. Nunavut’s communities are small and very closely knit. The Court stands down for burials and funerals and sentencing hearings are delayed in order to permit offenders to participate in seasonal hunts. The Court avoids scheduling jury trials during the extremely short arctic summers because it is a time when many Nunavummiut return to the land. This seasonal reality cannot be overstated and will continue in the future. Jordan only enumerates two subcategories which permit delay: exceptional discrete circumstances and exceptional case complexity.

In Mr. Anugaa’s case, the Court felt that the above was not enough to be described as “discrete events” as contemplated by Jordan. Rather, the way these events were dealt with reflected the very ethos of the approach of the delivery of justice in Nunavut. To apply Jordan justly in Nunavut, the Court held that there must be a third subcategory of exceptional circumstances which reflects the territory’s unique cultural context. The Court took the position that Jordan did not account for the need to respect and incorporate Inuit culture and experiences into the delivery of justice to Nunavummiut. The delivery of justice in Nunavut poses unique and unavoidable challenges in circumstances found nowhere else in Canada. Therefore, Mr. Anugaa’s application for a stay was rejected and the case was ordered to proceed to trial.

The parties were also at odds over where another trial should be held if the stay was not granted. The Crown brought an application to move the jury trial to a different community. It was argued that every eligible adult in Sanikiluaq had already likely been summonsed at least once to serve on the jury and fair trial interests required a change in venue, due to Mr. Anugaa being notorious in the community. The Court accepted that it was necessary to hold the trial in a different community in the unique circumstances of the case, as Mr. Anugaa is entitled to a jury of his peers but not entitled to a jury of his neighbours.

Gift Lake Métis Settlement v Alberta, 2018 ABQB 58

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Wiyasiwewin Mikiwahp Native Law Centre Case Watch

The Applicants’ claim that the membership provisions in ss 75, 90 and 91 of the Métis Settlements Act of Alberta are invalid due to the principle interjurisdictional immunity, is dismissed.

The Métis Settlements Act of Alberta, Chapter M-14 (MSA) provides for limitations on settlement membership, including an automatic termination provision under which membership automatically terminates if a person voluntarily registers as an Indian under the Indian Act. The Applicants are three former members of the Gift Lake Métis Settlement, whose memberships were terminated after each voluntarily registered as an Indian under the Indian Act to access health benefits. They asked for a declaration that certain membership sections of the MSA, are, in pith and substance, laws in relation to “Indians or Lands reserved for the Indians” and therefore outside provincial legislative competence, under section 91(24) of the Constitution Act, 1867.

The doctrine of interjurisdictional immunity does not apply to the impugned membership provisions of the MSA as their pith and substance can be related to a matter that falls within the jurisdiction of the Alberta legislature. Further, the impact of these provisions does not impair the core power of the federal government under s. 91(24). Also, there is no principled basis on which the doctrine of interjurisdictional immunity would have applied only to the impugned sections. Because the membership provisions are integral to the operation and purpose of the legislation, had the doctrine applied, it would have applied to the whole MSA, rendering the MSA entirely inapplicable to Alberta’s Métis population. Consequently, this group would have lost the benefits and protections the MSA affords them. Additionally, it would have would have created a legislative vacuum, as there is no corresponding federal legislation that would fill the void.

Unlike Indians, with whom the Federal Crown made treaties and granted reservations and other benefits, the Métis communities were not given a collective reservation or land base. They also did not enjoy the protection of the Indian Act, or any equivalent. Under the Accord, the Alberta government granted the Métis Settlements General Council fee simple title to the lands now occupied by eight Métis communities and passed legislation, including the MSA to protect Métis rights.

The MSA contains membership eligibility and termination provisions. An Indian registered under the Indian Act is not eligible to apply for membership in the Métis community except in limited circumstances, none of which apply in this case. Further, s. 90(1)(a) provides that if a person voluntarily becomes registered as an Indian under the Indian Act, that person’s Métis settlement membership terminates. There has been an amendment to the MSA in 2004, making the automatic termination provisions of s. 90 subject to a Métis Settlements General Council Policy that “provides otherwise”. However, there has been no alternative provision policy made so far that would alter the automatic termination provisions. As well, at this time, there is no way for the Applicants to withdraw their registration under the Indian Act.

The MSA recognizes and promotes the preservation of the distinct Métis culture and identity apart from other Aboriginal groups. The impugned provisions are necessary to achieve this objective. These sections only act to exclude specific individuals from membership in settlements and its benefits that are established under the MSA. The settlements under the MSA are creatures of provincial statute and were created and operate independently of Parliament’s jurisdiction over Indians under s 91(24). The fact that Métis are now recognized as Indians under s 91(24) does not change this. Membership in these settlements is not determinative of whether or not an individual is Métis and one can still be legally considered Métis under the test developed in R v Powley.

Francis v Canada, 2018 FC 49

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Wiyasiwewin Mikiwahp Native Law Centre Case Watch

The Plaintiff’s motion failed for a declaration of an interim order for advanced costs. The circumstances surrounding the claim of an unjust infringement of treaty and Aboriginal rights was not sufficiently compelling or unique enough for the Court to grant this exceptional remedy.

The Plaintiff, Hubert Francis, is a Mi’kmaw and member of the Elsipogtog First Nation in the province of New Brunswick. On three occasions in 2015, officials from the Department of Fisheries and Oceans boarded his vessel and seized his catch for fishing without a valid fishing license. He asserts he is entitled to do so pursuant to treaty and Aboriginal rights. The Plaintiff and the Aboriginal crew of his vessel, have been charged with fishing without authorization in respect of the last two incidents, and are facing summary conviction proceedings under the Fisheries Act before the courts of the province of Québec.

The Plaintiff sought declarations that the prohibitions and restrictions placed upon him are an unjustifiable infringement of his treaty and Aboriginal rights. The Plaintiff asked for an interim order for advanced costs, relying on the principles in British Columbia (Minister of Forests) v Okanagan Indian Band, as he would otherwise be unable to proceed with this civil action. There is agreement among the parties that the Plaintiff must meet three criteria of the Okanagan test before the Court may order for advanced costs: (1) The party genuinely cannot afford to pay for the litigation, and no other realistic option exists for bringing the issues to trial; (2) The claim to be adjudicated is prima facie meritorious or of sufficient merit that it is contrary to the interests of justice for the litigation to be forfeited just because the litigant lacks financial means; (3) The issues raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolved in previous cases.

The Court concluded the Plaintiff cannot meet two of the three criteria required of the Okanagan test, therefore his motion fails. Although the Plaintiff only raised a nominal amount for a civil proceeding, there was no attempt by him to secure funding for his defense in the summary conviction proceedings. It has not been demonstrated that these issues cannot be determined fairly, adequately and without injustice in the context of the Quebec criminal proceedings. The failure of the Supreme Court to mention the availability of other fora under the specific heading of impecuniosity in both R v Caron and Little Sisters Book and Art Emporium v Canada has little relevance to the issues. Advanced cost orders must be used only as a last resort to avoid an injustice, not because it is a “preferable” mode of determining issues, where an adequate alternative mode exists. It must be to prevent an injustice for the litigant and the public at large that would result from the failure of having issues of public importance properly resolved. It should not be used as a smart litigation strategy.

Although the declarations sought by the Plaintiff in his statement of claim are limited to his own rights, it remains that the rights he asserts are, by their nature, collective rights held by the relevant Aboriginal communities or collectives. As such, they cannot be advanced as the basis of a civil claim or a declaratory action without the support of the community or collective, which he does not have. Individuals can, without the support of the relevant collective that holds the rights, assert these communal rights and have them adjudicated, to the extent necessary, in defense to criminal or regulatory offence proceedings, but individuals may not invoke them as the basis of a claim for determination of rights (R v Chevrier and Queackar- Komoyue Nation v British Columbia). To recognize an individual’s right to institute and maintain, without the support of the appropriate collective, civil actions asserting Aboriginal rights whenever they are brought “in parallel” to criminal proceedings, would ignore the unique nature of those rights and undermine the authority of the lawful representatives of the relevant band or nation to determine when and how to assert these rights. Given the Plaintiff’s lack of standing to bring this action, the second criterion of the Okanagan test, that the claim be prima facie meritorious, has not been met.

CCAS v GH and TV, 2017 ONSC 742

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Wiyasiwewin Mikiwahp Native Law Centre Case Watch

A mere claim that someone is “Native” is not enough for a court to consider that an Aboriginal child will be at a “disadvantage” when weighing legislative factors in child protection matters. There needs to be more evidence of what is important to the family, the child, and the Aboriginal community the child is said to be a member of.

The Catholic Children’s Aid Society of Hamilton (the Society) sought an order for Crown wardship with no access regarding the child EDV, born […], 2015, who was apprehended at birth. The mother, GH, and the father, TV, were known to the Society since 2012 regarding protection issues with the couple’s older children. After the Society commenced a protection application regarding EDV on May 5, 2015, it decided to pursue a summary judgment motion in relation to that application in February 2016. It is then that the Respondent father, TV, argued that EDV is a Métis child, and that as such, he should be treated in the same manner as children who fall within the definitions of “Indian”, “Native person” and “Native child” under Ontario’s former Child and Family Services Act (CFSA) [the CFSA has since been replaced by the Child, Youth and Family Services Act (CYFSA) as of April 30, 2018]. All parties conceded that Métis children did not fall within the scope of those definitions as they stood at the time of the hearing, and that EDV therefore did not have “Indian” or “Native” status within the meaning of the CFSA.

TV alleged that the definitions of Indigenous identity in the CFSA violated s 15(1) of the Charter of Rights and Freedoms on the basis that they did not extend to Métis children. He sought an order pursuant to section 52(1) of the Constitution Act, 1982 declaring these invalid and a remedy pursuant to section 24(1) of the Charter directing that EDV be treated as if he were an “Indian”, “Native person” or “Native child” for the purposes of these child protection proceedings. The Society did not take a formal position on the CFSA’s identity definitions, and it stated that it had in all material respects treated EDV as if he were “Indian” or “Native”. As well, the CFSA identified the cultural background and ethnicity of all children as an important factor in child protection proceedings, which was apparent from numerous provisions in the Act.

After considering many factors, including Gladue principles, the Court concluded it should not deal with abstract questions, especially in the context of a constitutional question. Absent a more complete record, the s 15 claim could not succeed. This may not have been the result if there were a fuller evidentiary record, but the issue in this case was too theoretical. When considering Gladue principles in sentencing matters, they do not on their own justify a different sentence for Aboriginal offenders, but provide the necessary context for understanding and evaluating the case-specific information presented by counsel. It is difficult to apply the context referred to in R v Gladue and R v Ipeelee to the disposition stage of a child protection hearing. The child protection court is directed to order in the best interests of a child. Taking judicial notice of the historical reasons that may have contributed to an Aboriginal parent’s current circumstances is less likely to be helpful to the child protection judge faced with the decision of whether to return a young child to the parent than it may be to a sentencing judge grappling with whether to order a custodial sentence and, if so, its duration.

As for the issue of EDV’s “Native” status, it was noted that the Métis Ontario coordinator of their Healthy Babies Healthy Children Program contacted the Catholic Children’s Aid Society in 2012. The representative told them that TV had self-reported that he was a member of the Métis Eastern Woodlands of Nova Scotia, and as a result of that self-report, she was working with this family. However, no one pursued the issue until 2016 when the matter came up for summary judgment before Justice Chappel, where the parties consented to a finding that the child was Métis. There were extensive efforts to serve and seek out the involvement of the Eastern Woodlands Métis of Nova Scotia. However, the response was that they were not going to participate, they did not have any placement options, and that they were supporting the plan of the Catholic Children’s Aid Society to have the child EDV adopted. Justice Chappel ordered that the child EDV be considered “Native” for the purposes of this and any other child protection application.

The Society made every effort to see if other Métis communities would participate in the litigation or provide the family with a placement option. No one came forward. TV never followed up on any suggestions given for obtaining assistance for his many issues. He did not describe his family background at all, or give any testimony about his Aboriginal background or any connections that he had or has in a Métis community other than his relatively brief contact with the Métis Ontario Healthy Babies Healthy Children Program. The Court stated that it had compassion toward and recognition of the importance of “Native” heritage and families but this special status does not equate to a blanket exemption from legislation carefully crafted to protect vulnerable and often damaged children. The paramount purpose of the CFSA is to promote the best interests, protection, and well-being of children. Where a person is directed in the Act to make an order or determination in the best interest of a child and the child is an “Indian” or “Native person”, the person shall take into consideration the importance, in recognition of the uniqueness of “Indian” and “Native” culture, heritage and traditions, presevering the child’s cultural identity.

In SB and BRM v Children’s Aid Society of Algoma and Mississauga First Nation, the Court addressed an appeal from an order for Crown wardship without access to the parents. The position of the Band was that access should continue so as to maintain the child’s connection to her Aboriginal community and to avoid the long-term consequences of cultural dislocation and estrangement from her roots, including from her siblings who resided on the reserve. However, there must be evidence of the nature of the involvement of the child’s family in the “Native” community which is lacking in this case. The mere claim that someone is “Native” does not allow the Court to consider the relevant factors within the legislative scheme, without some evidence of what is important to the family, the child, and the Aboriginal community the child is said to be a member of.

The Court decided that it was in the best interest of EDV to be made a Crown ward with no access, the Society was directed to make every effort to ensure that any foster parent and/or adoptive placement was willing to educate the child on his Aboriginal heritage and culture, to expose the child to this culture on an age-appropriate basis and provide the child with knowledge of any governmental benefits available to the child as a result of his “Native” status.

Children’s Aid Society of the Regional Municipality of Waterloo v CT, 2017 ONCA 931

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Self-identification of Indigenous ancestry submitted at the appeal level of court, does not alone constitute as fresh evidence to overturn a trial decision when there has been no error of law. Trial decision of no access for a Crown ward restored.

This is the second appeal from a trial decision involving a 10-year-old girl that was made a Crown ward with no access for the purpose of adoption. The biological parents appealed the no access order. The first appeal judge concluded that, although the trial judge did not err, the parents should have access. He outlined what he considered to be: a miscarriage of justice; the trial judge’s interference, bias and abuse of the trial process; procedural delay; and the incompetence of trial counsel. He invited costs submissions personally against trial counsel for the parents. This appeal restores the trial judge’s order of no access; dismisses the parents’ cross-appeal; and allows the cross-appeal of counsel on ineffective assistance and the consequent costs order.

After the initial trial, the parents filed affidavits that declared for the first time that the father was Cree and the mother was Mi’kmaq. The reasons from the first appeal judge are a scathing review of Ontario’s child welfare system and an apology to the parents for the manner in which they were “treated, ignored, demeaned and disbelieved.” He considered fresh evidence, including an affidavit which indicated that the child loves her parents, wanted to see her parents, but also wanted to be adopted by the proposed adoptive parent. By this time, the child had been with the proposed adoptive parent for almost two years and was flourishing.

The test for fresh evidence in a child protection matter is more flexible than in other types of cases. Statutory requirements for access to a Crown ward according to the Child and Family Services Act (the Act), however, puts the onus on the parents who seek access to present evidence that satisfies the test in CAS Hamilton v CG. First, the relationship between the person and the child must be beneficial and meaningful to the child, as opposed to the person seeking access. Second, the access must not impair the child’s opportunities for adoption. There was uncontroverted evidence that the adoptive mother would not adopt if there was contact with the parents, which would then make the access order statutorily impossible. The first appeal judge nonetheless ordered access and erred in doing so. Simply put, when a Crown wardship order is granted with access, the parental relationship with the child is preserved. When a Crown ward is sought to be placed for adoption, the goal is permanency and the success of the adoption.

The parents submitted on the first appeal, and before this court, that a child’s Indigenous heritage introduces different considerations into the access analysis. There is potential harm to Indigenous children if adopted by non-Indigenous families, as they often experience challenges, risks, and vulnerabilities that other children adopted across cultural and racial boundaries do not have. The parents argued that if they do not have access to the child, she is likely to suffer from a lack of connection to her Indigenous culture, heritage and community. Courts recognize the pervasive effects of the historical and continuing harms to First Nations families. This does not, however, automatically exempt Indigenous children from the access provisions for Crown wards under the Act.

A parallel can be drawn with the court’s approach to the sentencing of Indigenous offenders. In R v Ipeelee, the Supreme Court describes the proper approach where courts must take judicial notice of such matters as the history of colonialism, displacement, residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders but provide the necessary context for understanding and evaluating the case-specific information presented by counsel. While Gladue principles do not directly apply to access to a Crown ward, the Supreme Court’s comments about context and the need for case-specific evidence are instructive.

The first appeal judge made no mention that the parents or the child were in any way involved in an Indigenous community or its culture. There is no evidence that the parents had any connection to their culture, that the child was ever exposed to the Indigenous culture, or that anyone from the Indigenous community had ever been involved with the parents or the child. Because of this, the second appeal judge found that there was no evidentiary record in this case to balance the importance of the uniqueness or preservation of the Aboriginal heritage of the child when considering the other factors set out in the CFSA.

Although the second appeal judge recognized that Indigenous membership has expanded to include self- identification, there still must be evidence in relation to the child so a determination can be made as to whether access is beneficial and meaningful to her. The first appeal judge erred by ordering access based on nothing but the parents’ self-identification with Indigenous heritage in the absence of any evidence on this issue specific to this child.

Conseil des Atikamekw d’Opitciwan c Weizineau, 2018 QCCS 4170

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Wiyasiwewin Mikiwahp Native Law Centre

Judicial authorization granted to banish a defendant from the Opitciwan First Nation in accordance with a Band Council by-law.

The Opitciwan First Nation is an Aboriginal people of Canada who benefit from the rights arising from s. 35 of the Constitution Act, 1982, including the right to self-government. Under this principle of self-government and in accordance with the power conferred by s. 81 of the Indian Act, the Band Council adopted a by-law “respecting the expulsion of persons found guilty of trafficking certain drugs and other substances”, that allows the Band to banish any person found guilty of such offences by a court from their reserve for a period of sixty months. This by-law came into effect on January 1, 2017.

The defendant was found guilty of trafficking narcotics on March 22, 2017, by the Court of Quebec. On August 1, 2017, the Band Council adopted a resolution in accordance with the above by-law to expel her from the community until March 22, 2022. Despite the various attempts to apply the by-law and resulting resolution, the plaintiff ignored these requests by hiding in private homes in the Opitciwan community. Consequently, the Band Council has failed to expel her.

The Court ordered the defendant to leave the borders of the Opitciwan Indian Reserve and to remain outside these borders until such time as sanctioned by the Band Council. Any peace officer or bailiff is authorized to assist the plaintiff in the execution of this judgment, the whole at the plaintiff’s mere verbal request and regardless of the premises in which the defendant is to be found, such that they may be entered and the defendant escorted to the border of the Opitciwan Indian Reserve. As well, the Court acknowledges the plaintiff’s undertaking to execute the expulsion measures in such a way that the defendant will not be left alone or without support at the borders of the Opitciwan Indian Reserve.

Law Society of British Columbia v Coutlee, 2018 LSBC 33

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Wiyasiwewin Mikiwahp Native Law Centre Case Watch

A law society hearing panel agreed to adjourn a hearing and recommend that it be reconstituted with an Indigenous member on the basis that its lack of Indigenous representation raised an apprehension of institutional bias.

A Hearing Panel of the Law Society of British Columbia (the Panel) granted an application to adjourn the hearing of a disciplinary citation against the Respondent, that concerned a failure to abide by practice restrictions. The decision to adjourn the hearing was in reaction to the second of two applications made by the Respondent at the outset of the hearing of the citation. The Respondent’s first application was dismissed. It asked that the citation be withdrawn or stayed as being baseless and in breach of natural justice and procedural fairness. The Respondent’s second application was for a determination that the Hearing Panel should include a person who is either an Indigenous lawyer or Elder. The Respondent did not assert any actual bias in the members of the Panel. Yet he argued that he would be more confident in the decision of the Panel, if reconstituted as requested, as being non-discriminatory and having weighed the evidence fairly. Counsel for the Law Society took no position on this application except to oppose any decision by the Panel that would result in an adjournment of the hearing of the citation.

The Respondent referred to the analysis of the Supreme Court of Canada’s decision in R v Kokopenace as a basis for his right to be treated differently, at least to the extent of ensuring that he is “tried” or heard by a panel that includes an Elder. The Respondent argued that this give him more confidence that the Panel was not biased against him as an Indigenous person. Counsel for the Law Society distinguished Kokopenace as dealing with an accused’s right to a fair trial under Section 11 of the Charter of Rights and Freedoms, submitting that this does not apply to the proceedings before a Law Society hearing panel because they do not attract true penalty consequences.

In reaching its decision, the Panel did not rely on Kokopenace, but they were guided by challenges identified in the Truth and Reconciliation Commission’s Final Report. The Panel also concluded that specifically addressing cultural competencies on the Panel is warranted in this case.

The Panel granted the Respondent’s application by adjourning the hearing and making a recommendation to the President’s Designate that the Panel be reconstituted to include an Indigenous person. The Panel found that a failure to reconstitute the Panel with an Indigenous member would be inconsistent with the values and objectives of the Law Society that are made evident in its commitment to its Truth and Reconciliation Advisory Committee Report.