Monthly Archives: January 2020

Nogdawindamin and AW, BS and BFN, 2020 ONSC 40

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Reply

Appeal granted. Findings of Indigenous heritage requires more than a simple statement of self-identification from an applicant. The need for an evidentiary foundation of connection is a prerequisite for any finding under s 90 of the Child, Youth and Family Services Act.

Indigenous Law Centre – CaseWatch Blog

This is an appeal by the Batchewana First Nation [“Batchewana”] on an order of a motions judge that determined on an interim basis, whether a child in need of protection had an Indigenous background as per s 90 of the Child, Youth and Family Services Act [“Act”].

This Court agrees with Batchewana’s position that the motions judge erred when he decided that, based upon the evidence before him, the child in question had sufficient connection to Batchewana so as to be affiliated with the First Nation for purposes of the Act. Batchewana has not found a community connection of the child to the First Nation. The concern is that the motion judge’s decision could open the floodgates for any claimant to effectively acquire band status or other benefits.

There is considerable precedent to suggest that findings of Indigenous heritage require more than a simple statement from an applicant (Catholic Children’s Aid Society of Toronto v ST, [2019] OJ No 1783; Bruce Grey Child and Family Services v ABC, 2018 ONCJ 516; Children’s Aid Society of the Regional Municipality of Waterloo v CT, [2017] OJ No 6324 (ONCA); Children’s Aid Society of Ottawa v KF, 2015 ONSC 7580). Indigenous membership has expanded to include self-identification, however, 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 them.

In this instance, the evidence relied upon by the motions judge does not meet the necessary threshold. The only evidence is the self-identification of the father, that is found to be insufficient evidence as per the case law. The need for an evidentiary foundation is a prerequisite for any finding under s 90 of the Act. Were this not the case, it is conceivable that numerous people coming before the courts could self-identify as a member of Batchewana, leaving the band with insufficient resources to assist those in need, which constitutes an error in law (Housen v Nikolaisen, 2002 SCC 33). Appeal granted. The matter is remitted to the Ontario Court of Justice for a new hearing.

Beaucage v Métis Nation of Ontario, 2020 ONSC 483

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Motions dismissed. Canada has entered into a recent agreement with the Métis Nation of Ontario that brings closer the recognition of it as a government entity. However, this agreement does not retroactively apply to a past decision on membership, nor does the agreement subject it to public law remedies while it was still considered a private law entity.

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The applicant asks for a review of a decision that quashed his application for judicial review. In 2017, he was denied membership in the Métis Nation of Ontario [“MNO”]. He sought judicial review of that decision. The motion judge determined that MNO is a private voluntary organization incorporated without share capital under the Corporations Act. While MNO aspires to be recognized as a government with public law responsibilities to its citizens in Ontario, “that objective has not yet been achieved.”

The motion for fresh evidence concerns the Métis Government Recognition and Self-Government Agreement between MNO and Canada [“2019 Agreement”] that did not exist at the time of the hearing that quashed his application for judicial review. Parties are in agreement that admitting fresh evidence on appeals applies to this motion (Palmer v R, [1980] 1 SCR 759). But because this agreement did not exist at the time of the 2017 hearing, the only question is whether the 2019 Agreement would have likely affected that result.

For the 2019 Agreement to have affected the result, either: 1) it must be seen as confirming that in 2017 MNO was already a government; or 2) the entry into the 2019 Agreement must be seen to have made a change to the status of MNO that retroactively applies to the impugned decision. Neither argument can succeed. The fact that MNO was closer to being a government, but had still not yet arrived at formal recognition could not have affected that outcome. If, on the other hand, the 2019 Agreement made a substantial change in 2019 such that MNO is now a government, there is still not basis that the 2019 Agreement has a retroactive effect on the 2017 decision concerning the applicant.

It is inconsistent for the court to find that MNO is subject to the burden of judicial review under the public law as it if were already a government, while MNO is denied the benefits of governmental recognition under Canadian law. It would be invasive and disrespectful for the public law to subject the MNO to judicial review as if it were a government while at the same time denying recognition of such status.

 

R v Marr, 2019 NSSC 327

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Trial adjournment in order for the Respondent’s to make a Rowbotham application for state-funded counsel quashed and remitted back to the trial judge. It is insufficient to simply assert a complex constitutional defence, when the charge itself is not serious.

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The Respondents are members of the Sipekne’katik First Nation and designated to partake in the Food, Social and Ceremonial fishery for lobster, which permits the fishing of 60 lobsters per day per fisher. The Respondents were charged with two sets of offences pertaining to catching and retaining more than 60 lobsters per day, contrary to s 7 of the Aboriginal Communal Fishing Licenses Regulations. The central issue was whether the trial judge erred in finding that a Rowbotham order was necessary to ensure a fair trial in the circumstances.

The complexity arised from the proposed constitutional defence. As per the air of reality to the defence put forward by the Respondents, there had been no indication of the substance of the defence, only a bare assertion of an Aboriginal or treaty right. There was no direction of how the Aboriginal or treaty rights are allegedly violated by the charges, and therefore impossible to say there was a proposed defence that is factually and legally relevant to the charges. The court on a Rowbotham application cannot simply assume that an Aboriginal person charged with a fisheries offence might have a treaty or Aboriginal rights defence as a basis to order state-funded counsel.

Further, with the bare assertion of an Aboriginal or treaty right, the court would have no way to assess the seriousness or complexity of the proposed defence. The charges were neither serious nor complex. They were straightforward, and there was no prospect of a sentence of imprisonment upon conviction. The only source of complexity was the potential defence to charges that are not, in themselves, serious or complex. Thus, the Respondents did not meet the Rowbotham test, and as such, the trial judge erred in law in finding that a Rowbotham order was necessary to ensure a fair trial.

The Respondents submit the application must be viewed through the prism of the United Nations Declaration on the Rights of Indigenous Peoples [“Declaration”]. As the Respondents provided no argument as to why the Declaration would mandate any particular result, as well as the Declaration is not legally binding, it is therefore not relevant on a Rowbotham application. The last argument raised by the Respondents pointed to sections 7 and 11(d) Charter violations. They did not provide authority for their argument that s 7 is engaged by an alleged violation of an Aboriginal or treaty right. As the court in Rowbotham effectively treated sections 7 and 11(d) as a joint guarantee of fair trial rights, the Respondents argument that a Rowbotham order can rest on a violation of section 11(d) alone, misconstrues the language of the decision.

McLean v Canada, 2019 FC 1075

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Motion approved for the Indian Day School Settlement Agreement.

Indigenous Law Centre – CaseWatch Blog

Motion approved for an Indian Day School settlement agreement [“Settlement”]. To approve a class action, the Court must determine if the settlement is, in all the circumstances, fair, reasonable, and in the best interests of the approximately 120,000 aging people that attended these Indian Day Schools [“Survivor Class Members”] as a whole.

The Settlement provides up to $1.4 billion in compensation to be shared by those who attended the over 700 Federal Indian Day Schools. For over 50 years, many Indigenous children were compelled to attend Indian Day Schools operated by the Defendant. The principal difference between Indian Day School students and Residential School students is that Day School students went home at night. Attendance at these schools was compulsory. Truancy resulted in punishment for not only the student, but also for the family including the cancellation of the “allowance” to which parents were entitled. Although the Defendant does not admit liability in the Settlement Agreement, the Settlement acknowledges that children were divided from their families and culture, and were denied their heritage. Many were physically, emotionally and sexually abused.

The proposed settlement represents access to justice for a class of Survivor Class Members and their spouses, children, and grandchildren. Indian Day School students were not included in the now famous Indian Residential School Settlement [IRSS]. However, many of the same abuses recognized in the IRSS were inflicted on those attending the Indian Day Schools. Not all settlements are good and settlement will not always be better than litigation, but this is a case where this Settlement, although general, is vastly preferable to the risky litigation, delays, costs, trauma and uncertainty inherent in this litigation.

It is important that the Settlement be looked at as a whole. The Court must refrain from rewriting the substantive terms of the Settlement or assessing the interests of an individual class member in isolation from the entire class (Manuge v R, 2013 FC 341; Hunt v Mezentco Solutions Inc, 2017 ONSC 2140). Further, a class action settlement is not required to be perfect as it must only fall within a “zone or range of reasonableness” (Châteauneuf v R, 2006 FC 286; Ontario New Home Warranty Program v Chevron Chemical Co, 46 OR (3d)).

It was determined that the Settlement reduced relevant risks, simplified the compensation process, and allowed family class members who did not receive direct compensation to participate in the healing process through the Settlement’s Legacy Fund. The Court was concerned with the litigation being drawn out, which was particularly meaningful as the Settlement involved an aging class of whom approximately 1,800 pass away each year. These considerations, in combination with the Court’s communication with class members, led the Court to determine that the Settlement was fair, reasonable, and in the best interests of the Class as a whole.

Coastal GasLink Pipeline Ltd v Huson, 2019 BCSC 2264

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Interlocutory injunction and enforcement order granted. The defendants are restrained from preventing access to key service roads used by the plaintiff, Coastal GasLink Pipeline Ltd.

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The plaintiff, Coastal GasLink Pipeline Ltd, is a wholly-owned subsidiary of TC Energy Corporation (formerly known as TransCanada Pipelines Ltd). The plaintiff obtained all of the necessary provincial permits and authorizations to commence construction of a natural gas pipeline [the “Pipeline Project”]. Over a period of several years beginning in 2012, the defendants set up the Bridge Blockade on the Morice West Forest Service Road [“FSR”]. The defendants have said publicly that one of the main purposes of the Bridge Blockade was to prevent industrial projects, including the Pipeline Project, from being constructed in Unist’ot’en traditional territories. In 2018, the Court granted an interim injunction enjoining the defendants from blockading the FSR. Blockading persisted, however, at another access point along the road, which resulted in the Court varying the interim injunction order to include all of the FSR.

The Pipeline Project is a major undertaking, which the plaintiff contends will generate benefits for contractors and employees of the plaintiff, First Nations along the pipeline route, local communities, and the Province of British Columbia. The defendants assert that the Wet’suwet’en people, as represented by their traditional governance structures, have not given permission to the plaintiff to enter their traditional unceded territories. The defendants assert that they were at all times acting in accordance with Wet’suwet’en law and with proper authority. The Wet’suwet’en people have both hereditary and Indian Act band council governance systems and there is dispute over the extent of their respective jurisdictions.

The Environmental Assessment Office issued to the plaintiff a Section 11 Order that identified the Aboriginal groups with whom the plaintiff and the Province of British Columbia were required to consult regarding the Pipeline Project. The plaintiff engaged in consultation with the Wet’suwet’en hereditary chiefs through the Office of the Wet’suwet’en over a number of years. The Office of the Wet’suwet’en expressed opposition to the project on behalf of 12 of the 13 Wet’suwet’en Houses. Offers by the plaintiff to negotiate agreements with the Office of the Wet’suwet’en have not been accepted.

The plaintiff has entered into community and benefit agreements with all five Wet’suwet’en elected Bands. The long-term financial benefits to those, and 20 other Indigenous Bands, may exceed $338 million cumulatively over the life of the Pipeline Project. The elected Band councils assert that the reluctance of the Office of the Wet’suwet’en to enter into project agreements placed responsibility on the Band councils to negotiate agreements to ensure that the Wet’suwet’en people as a whole would receive benefits from Pipeline Project. This appears to have resulted in considerable tension between the Office of the Wet’suwet’en and the elected Band councils.

The Court found that the reconciliation of the common law with Indigenous legal perspectives is still in its infancy (Beaver v Hill, 2018 ONCA 816 [“Beaver”]). Indigenous customary laws generally do not become an effectual part of Canadian common law until there is some means or process by which they are recognized. This can be through its incorporation into treaties, court declarations, such as Aboriginal title or rights jurisprudence, or statutory provisions (Alderville First Nation v Canada, 2014 FC 747). There has been no process by which Wet’suwet’en customary laws have been recognized in this manner. The Aboriginal title claims of the Wet’suwet’en people have yet to be resolved either by negotiation or litigation. While Wet’suwet’en customary laws clearly exist on their own independent footing, they are not recognized as being an effectual part of Canadian law. Indigenous laws may, however, be admissible as fact evidence of the Indigenous legal perspective. It is for this purpose that evidence of Wet’suwet’en customary laws has been considered relevant in this case.

There is significant conflict amongst members of the Wet’suwet’en nation regarding construction of the Pipeline Project. The Unist’ot’en, the Wet’suwet’en Matrilineal Coalition, the Gidumt’en, the Sovereign Likhts’amisyu and the Tsayu Land Defenders all appear to operate outside the traditional governance structures of the Wet’suwet’en, although they each assert through various means their own authority to apply and enforce Indigenous laws and customs. It is difficult for the Court to reach any conclusions about the Indigenous legal perspective. Based on the evidence, the defendants are posing significant constitutional questions and asking this Court to decide those issues in the context of the injunction application with little or no factual matrix. This is not the venue for that analysis and those are issues that must be determined at trial.

The defendants have chosen to engage in illegal activities to voice their opposition to the Pipeline Project rather than to challenge it through legal means, which is not condoned. At its heart, the defendants’ argument is that the Province of British Columbia was not authorized to grant permits and authorizations to the plaintiff to construct the Pipeline Project on Wet’suwet’en traditional territory without the specific authorization from the hereditary chiefs. Rather than seeking accommodation of Wet’suwet’en legal perspectives, as suggested by their counsel, the defendants are seeking to exclude the application of British Columbia law within Wet’suwet’en territory, which is something that Canadian law will not entertain (Beaver).

Such “self-help” remedies are not condoned anywhere in Canadian law, and they undermine the rule of law. The Supreme Court of Canada has made it clear that such conduct amounts to a repudiation of the mutual obligation of Aboriginal groups and the Crown to consult in good faith (Behn v Moulton Contracting Ltd, 2013 SCC 261).

All three branches of the test for an interlocutory injunction are satisfied. Injunctive relief is an equitable remedy. In the Court’s view, it is just and equitable that an injunction order be granted and that this is an appropriate case to include enforcement provisions within the injunction order. The public needs to be informed of the consequences of non-compliance with an injunction order (West Fraser Mills v Members of Lax Kw’Alaams, 2004 BCSC 815).

Note: Benjamin Ralston is a sessional lecturer at the College of Law and a researcher at the Indigenous Law Centre. We are proud to acknowledge his contribution as co-counsel for the defendants in this case.

R v Matchee, 2019 ABCA 251

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There were errors of law present in the sentencing judge’s assessment of the offender’s Gladue factors and moral blameworthiness. The sentence has been reassessed.

Indigenous Law Centre – CaseWatch Blog

Mr. Matchee appealed his seven-year custodial sentence on the basis that the sentencing judge erred by not giving effect to Gladue factors. The sentencing judge’s desire to avoid the appearance of a “race-based discount” was demonstrated by an error of law that Gladue factors do not apply to serious offences – Gladue factors apply to all offences. There was a failure to recognize a connection between the offender’s mother and grandmother’s attendance at residential schools and his current circumstances. In turn, Mr. Matchee’s mother’s substance abuse led to his eventual placement in foster care and abuses suffered there during the first 10 years of his life. The sentencing judge made an error to deny the link. Lastly, the view of any community on what is an appropriate sentence is not an animating principle of sentencing law in Canada – to the extent these comments impacted the sentence, this was an error. Due to these reasons, sentencing must be assessed again.

The harm to society in the undermining of people’s security and safety in their homes, as well as the harm to the victim, is significant in assessing the gravity of the offence. Mr. Matchee had many opportunities to leave but chose not to. He was on probation at the time of the offense and has a long-related record. The pre-sentencing report indicated a failure to take responsibility for his actions or has not taken any positive steps to try to address the underlying issues that have been identified. The factors identified above, in particular the lack of any stable home until 10 years of age, sexual and physical abuse, no meaningful connection with his mother or father, an interrupted connection with his Aboriginal culture, lack of education and employment, diminish his blameworthiness for the current offences.

Taking into account the errors in the application of Gladue factors and the inadequate assessment of Mr. Matchee’s moral blameworthiness, a fit sentence for this offender and these offences is a period of six years incarceration. The other sentences and ancillary orders are unchanged. The net sentence, after the deduction of three years 7.5 months credit for pre-sentence custody, is two years 4.5 months.

 

R v Georgekish, 2019 QCCQ 2341

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After weighing the sentencing principles with information provided by a Pre-Sentence Report and a Gladue Report, it was determined that deterrence and denunciation should heavily shape a fit sentence due to the gravity of the offence.

Indigenous Law Centre – CaseWatch Blog

The offender was intercepted by police on the highway in possession of a large quantity of cocaine she was sent to purchase with money from her sister, before she got back to her home community where she intended to sell it. The offender plead guilty and at the time of the offence, she only had a few prior convictions. She is a member of the Cree Nation and a mother of six children. The Court ordered a Gladue Report to be written in which it was determined that both her parents attended residential schools, and was the victim of years of neglect, violence and abuse. The offender suffered with addictions throughout her life starting at a young age, and she was placed in a youth protection program for multiple years away from her family. She had lost a child the year prior to the offence and had not received any grievance support or services.

The Court considered multiple aggravating factors such as the quantity of drugs the accused had in possession, the nature of the drugs, the risk of reoffending, past convictions, the lack of empathy and to take responsibility, but also the vulnerability of the community where the drugs were to be sold. The Court also considered the mitigating circumstances such as the guilty plea, the offender’s collaboration with the police, the crime being one transaction, and the historical and systemic factors as an Aboriginal offender. With these considerations in mind, the Court sentenced the offender to a 20-month detention sentence and a 3-year supervised probation.

Johnson v Fishing Lake Métis Settlement, 2020 ABCA 17

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Application denied. The stringent test for seeking advance costs in public-interest litigation was not met.

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The applicants are not Métis, but have lived their entire lives on the land of an estate that was given to a Métis land trustee. They wish to appeal the Fishing Lake Métis Settlement Council’s decision that was confirmed by the Metis Settlements Appeal Tribunal.

The principle in advance-costs cases normally involves the unsuccessful party in an action being ordered to pay all or part of the successful party’s costs. They are adverse in interest in specific court proceedings. Advance-costs order may only be granted against a person who is adverse in interest to the applicant in the proceedings to which the applicant is a party. Such an order cannot be made against the Métis Settlement General Council and the Registrar. The Fishing Lake Métis Settlement and the applicants are adverse in interest and may be the subject of an advanced-cost order. This order, however, should be made only in exceptional circumstances and as a last resort. There is a stringent test with three aspects for an order of advanced costs, but even if they are met, it is still in the Court’s discretion to grant it: 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; and 3) the issues raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolved in previous cases (British Columbia v Okanagan Indian Band, [2004] 1 CNLR 7; Little Sisters Book and Art Emporium v Canada, [2000] 2 SCR 1120).

Applications for advance-costs orders should not become routine applications. Legislators, and not judges, should, as a rule, decide how to spend public monies. At its heart, this case concerns trusteeship for one individual plot of land and presents no issues of special significance to the community.

 

Gitxaala Nation v Wolverine Terminals ULC et al, 2020 FC 382

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Motion dismissed. The Metlakatla First Nation and Lax Kw’alaams should not be joined as respondents or interveners in the Gitxaala Nation’s underlying application for judicial review.

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Wolverine Terminals ULC, has proposed to construct and operate the Prince Rupert Marine Fuels Service Project [“Project”] in the Port of Prince Rupert. The Project is a floating refuelling station intended for refuelling vessels calling in the Port. It is located on federal lands and is subject to a review under the Canadian Environmental Assessment Act [“CEAA”]. Under the CEAA, the Prince Rupert Port Authority and Transport Canada [“Federal Authorities”] could not enable the Project to proceed unless a determination was made that the Project was not likely to cause significant adverse environmental effects. As part of its evaluation process, the Federal Authorities consulted the six First Nation communities with asserted rights and interests within the Project area regarding potential environmental effects that included the Gitxaala Nation [“Gitxaala”], Metlakatla First Nation, Lax Kw’alaams, Gitga’at First Nation, Kitsumkalum, and Kitselas.

In the underlying application for judicial review [“Application”], Gitxaala challenges the decision of the Federal Authorities that the Project will not cause significant adverse environmental effects pursuant to the CEAA, and that the Crown’s obligation to consult with respect to the Project has been fulfilled [“Decision”]. The Metlakatla First Nation and Lax Kw’alaams [“Moving First Nations”] have brought a motion for an order to allow them to be joined as party respondents in the Application. In the alternative, they seek an order to allow them to jointly intervene. This motion is dismissed.

If the Moving First Nations had a direct interest in quashing the Decision that was actually made, they could and should have asserted it by bringing their own application for judicial review on a timely basis. It would be an “impermissible end-run” for them to join the proceedings, in substance as co-applicants, well after the limitation period for applying has passed (Tsleil-Waututh Nation v Canada (AG), 2017 FCA 102).

The Court is not persuaded that the relief sought, if granted, will inevitably impose legal obligations on the Moving First Nations to re-engage in the consultation process. For example, if the Decision is set aside on the narrow basis that the Federal Authorities failed to adequately consult with Gitxaala, due to unique gaps or inadequacies in the specific consultation process undertaken with Gitxaala, it does not inevitably follow that the Federal Authorities will be required to also re-consult with the other five First Nation communities with asserted rights and interests within the Project area. Even if the relief sought by Gitxaala would require the Federal Authorities to re-engage with the Moving First Nations, the Court is not satisfied that the Moving First Nations would be directly affected by the relief sought in the Application.

The Moving First Nations argue that the relief sought will adversely and directly affect their legal rights by causing them to become legally obligated to participate in a more onerous statutory and consultative process, and incur additional time and expense to re-engage with the Federal Authorities. They rely on the legal principle of a reciprocal duty on First Nations to consult with the Crown in good faith and they cannot, by their conduct, place unnecessary obstacles in the way of the consultation process (Ahousaht First Nation v Canada (Fisheries and Oceans), [2008] 3 CNLR 67).

The reciprocal duty imposed on First Nations is significantly different in nature from the duty imposed on the Crown to consult with First Nations. The Crown’s duty to consult with First Nations gives rise to co-extensive right in First Nations to be consulted, and the breach of which is actionable in the Courts. The same cannot be said of the reciprocal duty on First Nations to engage in consultation with the Crown. Unlike the Crown’s duty to consult, the reciprocal duty imposed on First Nations is not an enforceable legal obligation.

The Moving First Nations have not satisfied the Court that their participation as respondents is necessary to determine the adequacy of Gitxaala’s consultation process, or demonstrated how this issue cannot be effectively and completely settled unless they are made respondents on the Application (Canada (Minister of Fisheries and Oceans) v Shubenacadie Indian Band, 2002 FCA 509).

As for being added as intervenors, acting under the guise of having a different perspective, an intervener cannot adduce fresh evidence or make submissions that are in reality fresh evidence (Canada (Citizenship and Immigration) v Ishaq, 2015 FCA 151). A proposed intervener must rely on the same evidence in the record that others are relying upon and focus on how they can assist the Court’s determination of the existing proceedings. The Moving First Nations’ proposed position appears to be an expansion of the issues raised in the existing Application. If they intend to argue, in effect, that Gitxaala has no valid asserted claim to the potential existence of Aboriginal title or rights in the project area, the corollary to that argument would be that no duty to consult arose. Gitxaala does not challenge the Decision based on any such finding, but rather on the basis that the Federal Authorities failed to adequately consult with Gitxaala. While the Moving First Nations assert that their participation will assist, it is the Court’s view they have not discharged the burden of proof to demonstrate how it will assist (Forest Ethics Advocacy Association v Canada (National Energy Board), 2013 FCA 236).

Peepeetch v R, 2019 SKQB 132

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Application granted for a publicly-funded Gladue report. A Gladue report, however, is not required on every occasion on which an Indigenous offender is being sentenced and a full Gladue report is not the only possible or appropriate source of such information.

Indigenous Law Centre – CaseWatch Blog

The applicant was convicted after a trial on charges of impaired driving and refusing to provide a breath sample. During the trial, he also pled guilty to a charge of possession of brass knuckles, a prohibited weapon. Following the trial, sentencing was adjourned so that a Pre-Sentence Report [PSR] could be prepared. Since the applicant is of Aboriginal heritage, the court directed that the report should contain information, such as Gladue factors (R v Gladue, [1999] 2 CNLR 252; R v Ipeelee, [2012] 2 CNLR 218), particular to Mr. Peepeetch’s circumstances as the Gladue analysis is mandated by the Criminal Code. The applicant’s counsel submitted an application for a publicly-funded Gladue report as the applicant did not have the resources to cover the costs himself.

It was determined that when evaluating whether a publicly-funded Gladue report should be ordered, the following parameters must be met: i) the assistance of the Gladue report must be essential to the judge discharging their judicial function in the case at hand; and (ii) the authority to order for the preparation of Gladue reports should be used sparingly and with caution, in response to specific and exceptional circumstances (Ontario v Criminal Lawyers’ Association of Ontario, 2013 SCC 43; R v Sand, 2019 SKQB 18). Such circumstances exist where a PSR prepared by a probation officer is not capable of providing the information necessary to conduct the proper analysis under ss. 718.2(e), and there is no other effective method of obtaining the necessary information and bringing it before the court in a timely fashion.

When deciding if a publicly-funded Gladue report was appropriate in this case, the court considered a number of factors including the nature of the analysis called for by ss 718.2(e), the sufficiency of the information provided in the current PSR, and if that report is lacking the availability and likely effectiveness of other measures that may be taken to address the deficiencies. Further, the court decided that a Gladue report is not required on every occasion on which an Indigenous offender is being sentenced and a full Gladue report is not the only possible, nor the only appropriate source of such information. Whether or not such a report is required is based on the context of the situation. It is the duty of the sentencing judge to ensure that the information they receive is relevant and necessary for such analysis. Overall, it was determined that the information contained in the PSR report was not sufficient for the court to carry out its judicial function in sentencing the applicant and thus, a publicly-funded Gladue report was ordered.