Cowichan Tribes v Canada (AG), 2019 BCSC 1922

Indigenous peoples’ claims require flexibility in order to be fairly adjudicated, but that is not a blanket admissibility of evidence. As with oral history, proving colonial documents has similar difficulties and should only be submitted following an assessment of their reliability.

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The plaintiffs seek declarations related to Aboriginal title to lands along the south shore of Lulu Island in the City of Richmond. They also claim fishing rights as the Cowichan people had a semi-permanent fishing village called Tl’uqtinus along the south arm of the Fraser River. There is heavy reliance on oral history and hearsay evidence contained in thousands of historical documents and on expert evidence to provide an opinion on the nature and character of the occupation by the Cowichan peoples in the past.

The plaintiffs submit that the defendants improperly objected to the admissibility of the documents. They submit that all of the documents should be admissible for the prima facie truth of their contents, leaving the question of reliability to be considered when assessing the ultimate weight given to the documents. The plaintiffs acknowledge that hearsay is presumptively inadmissible, however, in Aboriginal rights claims under s 35 of the Constitution Act, 1982, the rules of evidence should be broad, flexible and applied purposively to promote truth finding and fairness for plaintiffs faced with having to prove facts across a gulf of centuries (Mitchell v MNR, [2001] 3 CNLR 122 [“Mitchell”]).

Admitting a document into evidence for prima facie truth of its contents does not bind the court to the contents of the document. In some circumstances, however, hearsay evidence presents minimal dangers and its exclusion, rather than its admission, would impede accurate fact finding (R v Khelawon, 2006 SCC 57 [“Khelawon”]). To address this, there have been common law exceptions to the rule against hearsay and the Supreme Court of Canada [“SCC”] developed the principled approach employing a more flexible, case-by-case approach to assessing admissibility. Under this principled approach, hearsay can be admitted if the party tendering it establishes on a balance of probabilities that the twin criteria of necessity and threshold reliability are satisfied (Khelawon). The trial judge acts as a gatekeeper to protect trial fairness and the integrity of the truth-seeking process by protecting against the admission of unreliable evidence (R v Bradshaw, 2017 SCC 35).

In regards to hearsay in Indigenous claims, the SCC recognized the need for a flexible adaption of the traditional rules of evidence in Aboriginal claims cases, but made it clear that the rules of evidence are not to be abandoned. The flexible approach to evidence does not mandate blanket admissibility, and the threshold for reliability, while not high in Aboriginal claims cases, does continue to exist (Mitchell). Historical Aboriginal claims and rights cases have inherent evidentiary challenges. Necessity is almost automatically met given that these cases rely heavily on ancient documents and hearsay evidence of the deceased (Mitchell; Delgamuukw v British Columbia [1998] 1 CNLR 14 (SCC); Tsilhqot’in Nation v British Columbia, 2014 SCC 44).

That assessment may be fairly automatic if the document falls within certain categories, such as public documents, or official communications between persons responsible for stewardship of government. The court can rely on the evidence of experts to provide it with the information necessary to conduct a reliability assessment. The fact that an expert relies on a document does not automatically establish reliability of the document for the court, but it is evidence that the expert finds the document to be reliable. Courts need the assistance of experts to evaluate and understand historical documents. One of the difficulties in this case is that no living person can be called to give eye witness evidence of what was happening in the claim area before, at the time of, and for many decades after first contact with European settlers (Tsilhqot’in Nation v British Columbia, 2004 BCSC 1237 [“Tsilhqot’in BCSC”]).

It is abundantly apparent the parties must rely on historical documents, oral history and traditions, ethnography and archaeology in the proof of their cases. The meaning of documents is not always self-evident and can only be understood in context. That is particularly true of historical documents where it cannot be properly evaluated until the court knows who wrote it, for whom it was written, and, most importantly, why it was written (Tsilhqot’in BCSC). The distinction between threshold reliability and ultimate reliability remains, and the trial judge still must act as a gatekeeper to keep the record free from unreliable hearsay and to protect the fairness and integrity of the trial.

Sheck v Canada (Minister of Justice), 2019 BCCA 364

Application allowed. An order for the surrender of an Indigenous person to face charges of money laundering in the United States is remitted to the Minister of Justice for reconsideration.

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This is a judicial review of the decision of the Minister of Justice [“Minister”] that ordered Mr. Sheck’s surrender to the United States of America [“USA”] on charges of money laundering. The relief sought is to have the surrender order quashed, or in the alternative, have the matter remitted back to the Minister for reconsideration. The majority of this Court determined that the Minister failed to appreciate the disparity of the more severe sentence the accused would likely be given in the USA if convicted. As well, the Minister failed to consider the accused and his children’s Indigenous heritage and the context of the historical mistreatment by Canada of Indigenous families which forcibly separated children from their parents and culture.

The standard of review with respect to the Minister’s surrender decision is not in dispute. The Minister’s decision is entitled to deference, and interference is warranted only in exceptional cases of “real substance”. This Court considered whether the Minister’s decision fell within a range of reasonable outcomes, and if the correct legal test was applied (Lake v Canada (Minister of Justice), 2008 SCC 23 [“Lake”]; s 57(7) of The Extradition Act). This standard of review recognizes that the decision to surrender the accused is largely political and involved the Minister’s superior expertise with respect to Canada’s international obligations and interests (India v Badesha, 2017 SCC 44). The Minister must take into account Canada’s international obligations, but also consider the rights of the person sought.

Pursuant to s 7 of the Charter, a person is not to be deprived of the right to life, liberty and security of the person except in accordance with the principles of fundamental justice. In the extradition context, the Minister is not to surrender a person if surrender would “shock the conscience” (Lake) or not to surrender the person if the consequences of surrender would be “contrary to the principles of fundamental justice” (MM v United States of America, 2015 SCC 62 [“MM”]). This necessarily includes, when relevant, the best interests of that person’s children who may be affected by the extradition (MM).

The accused faces a potential sentence of 27 years imprisonment if convicted in the USA. If he enters a guilty plea in a timely manner, that might be reduced to a range of 19 to 27 years imprisonment. In contrast, the Minister considered only the maximum sentence an offender would face in Canada for a corresponding offence of ten years under s 462.31 of the Criminal Code. Mr. Sheck is Indigenous, employed, has a long-term spousal relationship, and supports and is actively involved in parenting four children. It is unlikely that Mr. Sheck’s circumstances would result in the maximum sentence in Canada of ten years’ imprisonment. The authorities suggest that a sentence for money laundering alone in Canada could range from a conditional sentence of less than two years, to a custodial sentence of 18 months to five years (R v Rathor, 2011 BCPC 338; R v Garnett, 2017 NSCA 33; R v Lawrence, 2018 ONCA 676; R v Barna, 2018 ONCA 1034; R v Bui, 2006 BCCA 245; R v Abdel, 2019 ONSC 690; R v Williams, 2019 NBPC 1; R v Rosenfeld, 2009 ONCA 307). The Minister cannot have truly appreciated the gross disparity between the two potential sentences the accused would face.

The Minister also failed to consider the impact of separating the accused from his children in the context of their common Indigenous heritage. Historically, the government-approved residential school program separated Indigenous children from their parents and communities, depriving them of their Indigenous culture and often subjected them to abuse. In numerous contexts, not just sentencing or extradition, the courts are called upon to consider the legacy of harm to the Indigenous peoples in Canada when determining a legal right or remedy (United Nations Declaration on the Rights of Indigenous Peoples; United Nations Convention on the Rights of the Child; Truth and Reconciliation Commission of Canada, 2015 [“TRC Report”]). Specifically, in the “Calls to Action”, the TRC Report identified five action items relating to Indigenous child welfare, including keeping Indigenous families together where safe to do so.

Troller v Manitoba Public Insurance Corporation, 2019 MBQB 157

Application denied. The actions of the Manitoba Public Insurance Corporation to limit the Applicant’s freedom of expression on his personalized license plate are a reasonable restriction in a free and democratic society.

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The Applicant is a resident of Winnipeg, Manitoba and an enthusiast of Star Trek, a science fiction television and movie franchise. He requested, and was granted, a personalized licence plate [“PLP”] from Manitoba Public Insurance Corporation [“MPI”] with the combination of letters and a number “ASIMIL8”. He asserts that this combination is a reference to a Star Trek character, the Borg and displayed the PLP for almost two years without incident. However, he was notified by MPI that the PLP was considered offensive and was demanded its immediate surrender, to which the Applicant complied.

The Supreme Court of Canada instructed a court as to how it should address an alleged violation of freedom of expression; s 2(b) of the Charter (Irwin Toy Ltd v Quebec (AG), [1989] 1 SCR 927 [“Irwin Toy”]). This Court found that “ASIML8” does attempt to convey a meaning and meets the first step, as the word itself does not attempt to convey a violent form of expression. This expression is within the protected sphere of conduct. The second step was to determine if the method of expression or the location of the expression is entitled to s 2(b) protection. The third step as outlined in Irwin Toy, was to determine whether the purpose or effect of the government action was to restrict freedom of expression. It was established that MPI’s purpose was to restrict the Applicant’s expression. The s 2(b) analysis in this case turns on the second step, the location of this expression.

The test for location, with respect to expression on government-owned property, is whether the place is public and where one would expect constitutional protection for free expression on the basis that expression in that place does not conflict with the purposes which s 2(b) is intended to serve: 1) democratic discourse, (2) truth finding and (3) self-fulfillment. To answer this question, the following factors were considered: a) the historical or actual function of the place; and b) whether other aspects of the place suggest that expression within it would undermine the values underlying free expression (Montréal (City) v 2952-1366 Québec Inc, 2005 SCC 62). The presence of a PLP, like advertising on a bus, is in the public space, not a private space.

Section 1 Charter rights and freedoms, however, are limited in scope and sets Canadian jurisprudence apart from American jurisprudence on free expression. The Court found that Charter protections were engaged, and the proportionate balancing required an understanding by the Court of the PLP program (Doré v Barreau du Québec, 2012 SCC 12; Loyola High School v Quebec (AG), 2015 SCC 12). The MPI brochure sets out the restrictions for a PLP. Its review committee takes extensive steps to avoid unintended meanings outside of their collective knowledge. The Court accepted that “ASIMIL8” was originally approved because the search term entered was “asimilate” as opposed to “assimilate”. The error itself is of no import because MPI reserves the right to recall a PLP and the length of time it took in making the decision was not crucial. MPI believed that when they became apprised of a complaint, this decision required immediate attention and “falls within a range of reasonable alternatives” (RJR-MacDonald Inc v Canada (AG), [1995] 3 SCR 199).

MPI submits that offensiveness is a matter of community standards and the word “assimilate” when considered in the context of Canadian history is on its face objectionable. The assimilation of Aboriginal people was the official policy of the Government of Canada and the Prime Minister in 2008 formerly apologized on behalf of all Canadians for its implementation and ongoing effects (Truth and Reconciliation Commission of Canada, 2015 [“TRC Report”]). Given the history of assimilate, the mere presence of “ASIMIL8” is contrary to a respectful and welcoming environment.

The Court accepts that by choosing to display the PLP on his vehicle, the Applicant was not denigrating Indigenous people. The standard of review, however, is reasonableness. The action of the Registrar in revoking the PLP was determined to be reasonable. The Path to Reconciliation Act played a significant part in the decision. The policy of the assimilation of Indigenous people appears 151 times in the TRC report. The word assimilate has taken on a new meaning within this country. In order to meet the Doré test, the Charter right must be minimally impaired. Following the surrender of the “ASIMIL8” PLP, Troller chose a different word to express his love of the Borg character in Star Trek and was issued a new PLP.

R v Barton, 2019 SCC 33

Appeal allowed in part. New trial on unlawful act manslaughter ordered. As an additional safeguard, juries should be instructed in a way that counters potential biases, prejudices, and stereotypes against Indigenous persons—particularly Indigenous women and girls, as well as those who perform sex work. 

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Bradley Barton was charged with first degree murder in the death of Cindy Gladue, an Indigenous woman who was a sex worker. She was found dead in the bathroom of the accused’s hotel room as a result of blood loss from an 11 cm wound in her vaginal wall. At trial, the Crown put forth the theory that the accused used a sharp object to create the wound with intent to seriously harm or kill her. On the alternative, the accused committed the lesser and included offence of unlawful act manslaughter by causing her death in the course of a sexual assault.

The accused admitted that he caused her death, but did not use a sharp object and claimed it was a non-culpable accident. He claimed that Ms. Gladue consented to the sexual activities as it was a commercial transaction, or at least he honestly believed that she did. The accused did not submit an application under ss 276.1(1) and 276.1(2) of the Criminal Code to adduce evidence of the deceased’s prior sexual activity, thereby he testified at length about his previous sexual activity with the deceased. The Crown did not object nor did the trial judge order a separate hearing to consider the admissibility and permissible uses of this evidence. The jury acquitted the accused. The Court of Appeal allowed the Crown’s appeal, set aside the accused’s acquittal, and ordered a new trial on first degree murder. The accused then appealed to the Supreme Court of Canada. The Court ordered a new trial but it is to be restricted to the offence of unlawful act manslaughter, as it was not demonstrated to the majority of the Court that the acquittal for murder was tainted by reversible error.

The Court held that the trial judge erred in failing to comply with the mandatory requirements set out in s 276 of the Criminal Code. Section 276 of the Criminal Code governs the admissibility of evidence about a complainant’s prior sexual activities and the uses to which that evidence may be put. Evidence of a complainant’s prior sexual activity is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant is more likely to have consented to the sexual activity in question or is less worthy of belief. This section is categorical in nature and applies irrespective of which party led the evidence. The ultimate responsibility for enforcing compliance with the mandatory s 276 regime lies squarely with the trial judge, not with the Crown. The procedural requirements under s 276 should have been observed, and if any of the evidence was deemed admissible, a careful limiting instruction by the trial judge was essential to instruct the jury on the uses of that evidence.

Trial judges are advised to provide an express instruction aimed at countering prejudices, myths and stereotypes, especially about Indigenous women who perform sex work (Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls). When jurors are sworn and empanelled, it is a task that is not easy as it requires patience, judgment, and careful analysis. It would be naïve to assume that the moment the jurors enter the courtroom, they leave their biases, prejudices, and sympathies behind (R v Williams, [1998] 3 CNLR 257 (SCC) [“Williams”]).

A carefully crafted instruction can expose biases, prejudices, and stereotypes that lurk beneath the surface, thereby allowing all justice system participants to address them head-on, openly, honestly, and without fear. Trials do not take place in a historical, cultural, or social vacuum. The Court has acknowledged the detrimental effects of widespread racism against Indigenous people within the criminal justice system (Williams; R v Gladue, [1999] 2 CNLR 252 (SCC); R v Ipeelee, [2012] 2 CNLR 218 (SCC)). With regard to trial fairness, it is worth emphasizing that any instruction given must not privilege the rights of the complainant over those of the accused.

As well, the language used to refer to Ms. Gladue at trial, witnesses, Crown counsel, and defence counsel all repeatedly referred to Ms. Gladue as a “Native girl” or “Native woman”, which, by the Court of Appeal’s count, occurred approximately 26 times. While in some cases it may be both necessary and appropriate to establish certain biographical details about an individual, it is almost always preferable to call someone by their name. There may be situations where it would be appropriate for the trial judge to intervene to ensure this principle is respected.

R v Doering, 2019 ONSC 6360

A constable from the London Police Service has been found guilty for failing to provide the necessaries of life and criminal negligence causing the death of an Indigenous woman.

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Debra Chrisjohn died while in police custody. Although she had ingested a toxic level of methamphetamine that resulted in a heart attack, timely medical intervention might have saved her life. Ms. Chrisjohn was wanted on an outstanding Ontario Provincial Police [“OPP”] warrant for failure to comply with a recognizance, was creating a disturbance in a public area while intoxicated by drugs, and who had done the same the day before. She was also a vulnerable woman of Indigenous heritage who was in dire need of medical attention and, by reason of her physical condition and placement in custody, could not secure it on her own. There is no suggestion that being Indigenous played any role in decisions made by the police in this case. It has been observed, however, that Indigenous women and girls are particularly vulnerable to stereotyping, including stereotypes relating to alcohol and drug abuse (R v Barton, 2019 SCC 33). The evidence in this case suggested that stereotypes and generalized assumptions played a role in the events leading to Ms. Chrisjohn’s death. The accused, Constable Doering of the London Police Service, had pre-conceived notions about drug users and held fast to those notions when dealing with Ms. Chrisjohn.

Cst. Doering arrested Ms. Chrisjohn and transferred her to OPP custody. He failed to provide the necessaries of life during his charge of her by not obtaining medical assistance contrary to s 215 of the Criminal Code [“CC”]. He also had a duty to convey accurate information about Ms. Chrisjohn’s medical condition to the officers assuming responsibility for her custody, but did not do so. After carefully considering the issue and evidence, the Court concluded that Cst. Doering knowingly misled the OPP. His conduct was a marked and substantial departure from the standard of care of a reasonably prudent police officer. In providing the OPP with erroneous and incomplete information about Ms. Chrisjohn’s condition, Cst. Doering demonstrated a wanton and reckless disregard for her life. His conduct created a risk that medical assistance would be even further delayed which represents a marked and substantial departure from the standard of care. It was a contributing cause of Ms. Chrisjohn’s death and grounds culpability, under s 219 of the CC, for criminal negligence causing death.

R v Boysis, 2019 ABQB 437

An Indigenous man may have propensity for recidivist violence, but the Gladue factors support a reduced moral culpability.

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The accused was convicted by a jury for manslaughter and aggravated assault. The accused has a criminal record which included a prior conviction for manslaughter and other crimes of violence. A high risk of violent recidivism is present which requires intensive supervision and active management if he is to be released in the community. Concerns about the accused’s potential for recidivist violence and the safety of the public must be borne in mind during the proportionality analysis.

The accused is an Indigenous male of Cree descent and the Gladue factors in this case point to impacts of intergenerational trauma from the accused’s mother and maternal grandmother’s residential school experience. The impacts include alcohol and drug abuse, violence, low educational achievement, criminal involvement, loss of language, culture, and traditions. Gang activity is common in the accused’s home community, as well as family violence, extended periods of poverty and homelessness, childhood neglect, chronic unemployment, low income, suicide among immediate family members, and physical and sexual abuse.

The accused was remorseful and had made efforts to disengage from the previous gang connections and lifestyle. He also understands he needs help with his emotional and mental wellness. The reduced moral culpability played a significant role in determining a fit and proper sentence.

Taking into account all the circumstances, including the aggravating and mitigating factors, the accused’s reduced moral culpability, the range of sentence indicated by the authorities and the principles of sentencing set out in the Criminal Code, a fit and appropriate sentence for the manslaughter conviction is 9 years and aggravated assault is 4 years.

R v Newborn, 2019 ABCA 123

Appeal dismissed. An accused is entitled to a fairly chosen representative jury, not to one with a particular composition. As well, the jury is entitled to have competing evidence on a critical issue before them.

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The Appellant was charged with murder for physically beating a man so severely that he died from the injuries two days later. The offence occurred on a train in front of other passengers, and was recorded by security cameras. The Appellant argued that the Crown could not prove the intent necessary for murder as the accused had a limited intellectual capacity with an IQ of 59 and a moderate cognitive impairment. The Appellant also challenged the jury selection process arguing that his right to a trial by an independent and impartial jury selection under s 11 (d) and (f) of the Charter had been violated, arguing that s 4(h)(i) of the Jury Act excludes persons who have been convicted of a criminal offence. This according to the Appellant is unconstitutional because it disproportionately excluded Aboriginal persons.

An accused is entitled to a fairly chosen representative jury, not to one with a particular composition (R v Kokopenance, 2015 SCC 28). The focus is on the process to select the jury, which must include the delivery of notices to citizens randomly selected from broadly based sources and the deliberate or systemic exclusion of segments of the population is not acceptable. Some limits on jury eligibility, however, are permissible.

It was concluded that the Appellant did not offer any satisfactory rational while his expert witness opinion would be admissible and beneficial to the jury, but the Crown’s rebuttal evidence on the same topic would not. While the Crown and defence experts approached the issue from slightly different perspectives, that does not reflect any error. Neither the Crown nor the defence is required to approach an issue in the way the other side frames it (R v DD, 2000 SCC 43). All of the evidence was relevant and admissible, despite its different assumptions and approaches. ­­The jury was given acceptable instructions regarding expert evidence from the trial judge.

R v GD, 2019 BCPC 179

After balancing sentencing objectives with the gravity of the violent and sexual offences committed, the offender’s Indigenous heritage was minorly influential in determining a fit sentence. 

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The accused was convicted of five offences relating to the confinment and repeated sexual abuse of a 16-year-old friend of her son’s over a two-day period. The offences were committed with her husband who pled guilty to four of the five offences and received a 15-year sentence.

There was an extensive list of aggravating features in this case. There was an element of planning to the offences. The offender was a co-perpetrator, primarily assisting in the execution of the plan once aware of it, although, did act independently at times. There was repeated violent, cruel and degrading acts over that period of two days. The assaults involved gratuitous and excessive violence for perverse reasons that went beyond what was necessary to gain the victim’s compliance. There was a power imbalance between the offender and victim by virtue of their age difference. The victim suffered multiple physical injuries.

The offender expressed a lack of genuine remorse. The offender’s criminal record was given marginal bearing, as most were unrelated offences and had lack of proximity in time. The offender’s psychological profile, however, presented a high risk to engage in future sexual offences with the accomplice, or another male offender, while in the community. Even with intensive interventions, the accused’s rehabilitative prospects are guarded.

At times, the offender showed kindness to the victim and attempted at times to reduce suffering. The offender cooperated to a limited extent with police (treated marginally given its limited nature). The offender had taken concrete and positive steps towards rehabilitation while in custody. She has engaged in individual therapy sessions and numerous programs. There was no ascertainable evidence that the offender had been affected by racism, lower educational attainment, unemployment, low income or lack of employment opportunities as a result of her Métis heritage. The proportionate sentence to the gravity of the offence and degree of responsibility is a sentence of 12 years.

Brake v Canada (AG), 2019 FCA 274

Appeal allowed in part. Action is certified as a class proceeding that will determine important common questions affecting over 80,000 people regarding the Qalipu Mi’kmaq First Nation Band’s stringent membership criteria.

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This is an application to overturn an order by the Federal Court that refused to convert Mr. Brake’s application for judicial review into an action under ss 18.4(2) of the Federal Courts Act [“Act”] and certify it as a class proceeding under Rule 334.16(1) of the Federal Courts Rules [“FCR”]. Mr. Brake passed away just before this Court rendered judgment, but his application for judicial review continues. This Court grants the appeal in part, sets aside the order that denies certification under Rule 334.16(1), and grants the motion for certification.

The Qalipu Mi’kmaq First Nation Band [“Band”] was recognized as a Band under the Indian Act. Under a 2008 Agreement, there was higher than expected enrollment. Canada, along with the Federation of Newfoundland Indians, made it more difficult for people to qualify as members of the Band through changes under a 2013 Supplemental Agreement. Using a paragraph in the 2008 Agreement to authorize making these changes, many like Mr. Brake no longer qualified for Band membership. He had applied for judicial review of the rejection of his application, and others, under the new criteria. Alleging procedural unfairness, substantive unreasonableness and lack of good faith, he seeks, among other things, a redetermination of the membership applications under the original 2008 Agreement.

Mr. Brake followed what is described as the “Tihomirovs approach” (Tihomirovs v Canada (Minister of Citizenship and Immigration), 2005 FCA 308 [“Tihomirovs”]) procedurally in the Federal Court. This approach would transform his proceeding from an individual proceeding into a class proceeding. The goal was to seek both administrative law remedies against the decision and damages caused by the decision. The Federal Court declined to certify Mr. Brake’s proceeding as a class proceeding, reasoning that the issues raised in the proposed class proceeding be determined through a test case: Wells v Canada (AG), [2019] 2 CNLR 321 [“Wells”]. It cited Tihomirovs for the proposition that if the reason for conversion was to support an application for certification as a class proceeding and if certification were denied, then conversion should also be denied. Not only is the Federal Court’s decision in Wells only persuasive, not binding (Apotex Inc v Allergan Inc, 2012 FCA 308), but Mr. Brake did not consent to his claims being decided in Wells as a “lead case”, nor was there opportunity to make submissions or present evidence.

To seek both administrative law remedies and damages simultaneously, one must launch two separate proceedings. For example, an application for judicial review started by a notice of application and an action for damages started by a statement of claim. This has obvious ramifications for access to justice because it is difficult to prosecute one proceeding all the way through to judgment. Having more than one proceeding compounds that difficulty and can also result in unnecessary expenditure of judicial resources and conflicting results.

Rule 105 of the FCR permits the consolidation of multiple proceedings of any sort, allowing them to progress as if they were one proceeding governed by one set of procedures. Therefore, an application for judicial review can be consolidated with an action for damages. At the end of the consolidated proceeding, the Court issues two judgments, one for the application for judicial review and one for the action. Where appropriate, each judgment will give the relief available in each proceeding. The judgment in the application for judicial review will give administrative law relief and the judgment in the action will give damages. Rule 334.16(1) provides that a “proceeding” can be certified as a “class proceeding”. An application for judicial review that has been consolidated with an action can be a “proceeding” that can become a class proceeding under Rule 334.16(1).

There are three recognized ways in case law to certify consolidated judicial reviews and actions as class proceedings: 1) the Hinton approach is when an application for judicial review seeking administrative law remedies is started. A separate action for damages for the administrative misconduct is also started and the two are consolidated. If desired, certification of the consolidated proceeding as a class proceeding can be sought under Rule 334.16(1) (Canada (Citizenship and Immigration) v Hinton, 2008 FCA 215 [“Hinton”]); 2) the Paradis Honey approach where an action is started. In the statement of claim starting the action, both administrative law remedies and damages for the administrative misconduct are sought. But the entitlement to damages is pleaded as a public law cause of action for unreasonable or invalid decision-making (Paradis Honey Ltd v Canada (Attorney General), 2015 FCA 89 [“Paradis Honey”]); and 3) the Tihomirovs approach where an application for judicial review seeking administrative law remedies is started. A motion for an order permitting the judicial review to be prosecuted as an action under ss 18.4(2) of the Act is brought. Then the litigant brings a motion for certification as a class proceeding under Rule 334.16(1). In support of the certification motion, a proposed statement of claim is filed that simultaneously seeks administrative law remedies and damages. The Court determines the motions together.

Under the Tihomirovs approach, the draft, unissued statement of claim becomes the subject of a certification motion which is contrary to the text of Rule 334.16(1). It speaks of certifying an existing proceeding, not a proposed proceeding. Tihomirovs, however, remains good law (Miller v Canada (AG), 2002 FCA 370). Yet Tihomirovs sits uncomfortably within the Act, the FCR and associated jurisprudence. Tihomirovs needs to be tweaked to address these concerns so that it can fit more comfortably into the FCR. The Court should consider the proposed statement of claim as if it were finalized and filed, then assess whether the action and the application for judicial review, if they were consolidated, would meet the certification requirements under Rule 334.16. It should require that within a short period of time the proposed statement of claim be filed as the statement of claim, the action be consolidated with the application, and the consolidated proceeding be prosecuted as if it were an action. Under this revised approach, nothing is being converted to an action under ss 18.4(2) of the Act, consistent with the jurisprudence of this Court (Canada (Human Rights Commission) v Saddle Lake Cree Nation, 2018 FCA 228). Instead, the Court is attaching a term to its certification order allowing the consolidated proceeding to be prosecuted as if it were an action.

The revised Tihomirovs approach places the litigants in substantially the same position they would have been in if they followed the Hinton or the Paradis Honey approaches. It would be wise for parties in the future to follow these latter approaches, the Paradis Honey approach being the simplest of all, when applying to certify a class proceeding where they seek simultaneously the invalidation of administrative decision-making and damages for wrongful administrative decision-making as in this matter.

R v Lagrelle, 2019 ABQB 702

A non-carceral sentence is unavailable for an Indigenous woman who pled guilty to causing an accident that resulted in a death and bodily harm to others while driving intoxicated.

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The offender, Ms. Lagrelle, had a previous impaired driving offence but still made the decision to drive intoxicated and was travelling at a high speed when a collision occurred. The alcohol content was almost twice the legal limit, and she had occupants in the vehicle. An aggravating aspect was that the offender denied driving the vehicle and only admitted to police that she was indeed the driver two weeks after the accident. Because of these actions, Ms. Lagrelle’s moral blameworthiness is high for causing an accident that resulted in a person’s death as well as bodily harm to others.

One of the challenges facing this Court is that Ms. Lagrelle, and Idigenous woman who has suffered substantial abuse in her life, will be facing a carceral sentence. A non-carceral sentence, such as a conditional sentence order, is simply not available for the offence. Ms. Lagrelle, however, shows prospects for rehabilitation. Although the gravity of the offences for which she has been convicted are high, her moral culpability was lessened through the various Gladue factors stated in a Gladue report that assisted with determining the length of the sentence that is imposed (R v Abraham, 2000 ABCA 159).

The Court determined that the fit and proper sentences for Ms. Lagrelle’s offences for causing an accident resulting in death was three years and six months imprisonment and for causing an accident resulting in bodily harm was two years and six months imprisonment. The sentences are to be served concurrently. Further, it was recommended that the sentence be served in the Okimaw Ohci Healing Lodge in Maple Creek, Saskatchewan.