Monthly Archives: January 2020

R v McGinn, 2019 ONSC 4499

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Reply

Joint submission for sentencing granted. After considering the Gladue report and at the offender’s request, part of the sentence will be spent in the penitentiary to take advantage of programming specific to Aboriginal offenders.

Indigenous Law Centre
Indigenous CaseWatch Blog

After a search of his vehicle, the offender was arrested for drugs and weapons offences. The nature of the drugs involved in this case, are highly addictive substances and this was an aggravating factor. The offender also had a lengthy criminal record, which is reflective of an individual with a substance abuse problem.

The mitigating factors included a guilty plea, as well he expressed insight into his problems. Drug and alcohol abuse, as well as suicide and mistreatment within his family were present in his experiences as a child. His childhood and adolescence were traumatic for reasons that were not of his making. The drug abuse that he fell into has contributed to his involvement within the criminal justice system. The offender recognized that drug addiction had led him down a bad path. His paternal grandparents remain supportive of him and are willing to have him live with them on his release from jail.

The offender’s Aboriginal background no doubt had an impact on him but he appears to have benefitted from involvement in programs for Aboriginal offenders while in custody. The joint submission was accepted, modified slightly to accord with the offender’s request to be housed in the penitentiary to take advantage of programming. The offender was sentenced to three years and nine months in jail, less days spent in presentence custody.

Siksika Health Services v Health Sciences Association of Alberta, 2019 ABCA 494

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Appeal dismissed. The chambers judge did not err in denying judicial review and affirming the decision of the Alberta Labour Relations Board in accepting jurisdiction over labour relations issues involving the parties.

Indigenous Law Centre
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The appellant [“Employer”] appeals the chambers judge’s decision denying judicial review and affirming the decision of the Alberta Labour Relations Board to accept jurisdiction over labour relations issues involving the parties.

The specific operation of Siksika Emergency Medical Services [“SEMS”] is governed by an agreement between the Employer and Alberta Health Services, the provincial health authority. SEMS provides emergency medical services based in the First Nation in accordance with provincial regulation in return for monthly provincial payments. The Employer is also able to direct bill patients for services. The agreement between Alberta Health Services and Siksika Health Services Corporation [“Agreement”] includes the following policy and interpretive statement: “The parties acknowledge the historical and contemporary importance of the treaties to the relationship between the Crown, Canada and Siksika Nation. It is intended that nothing in this Agreement shall have the effect of, or be interpreted as, limiting or expanding any fiduciary relationship between Canada and the First Nations people.”

The respondent [“Union”] was not a party to the Agreement but the Union did not challenge this background philosophy. In this respect, both Canada and the province are expected to live up to the honour of the Crown in their dealings with Treaty and Aboriginal rights. The Union sought certification as the bargaining agent for all ambulance attendants employed with SEMS.

The Employer takes the position that all of the workers in SEMS and under its authority are performing tasks which amount to carrying out a federal undertaking respecting the supply of health and medical services to the people covered by the Treaty and to the First Nation. As such, the Employer argues that it is a federally regulated employer and any labour matters should be dealt with under federal rather than provincial legislation. The Board and the chambers judge had found otherwise.

The role of this Court is to step into the shoes of the chambers judge when it comes to reviewing the decision of the Board (Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36). A court must first apply the functional test to examine the nature, operations and habitual activities of the entity to see if it is a federal undertaking. If so, its labour relations will be federally regulated. Only if this inquiry is inconclusive should a court proceed to an examination of whether provincial regulation of the entity’s labour relations would impair the core of the federal head of power at issue (NIL/TU,O Child and Family Services Society v BC Government and Service Employees’ Union, [2010] 4 CNLR 284 [“NIL/TU,O”]).

The chambers judge concluded that the functional analysis in NIL/TU,O did not support the Employer’s position and dismissed the application for judicial review. It was concluded that the Board correctly found that the presumption of provincial regulation of labour relations was not rebutted in this case and that the Board correctly determined it had jurisdiction over the Union’s certification application.

The Employer argues that because the Indian Act included certain provisions related to the medical and health services for the First Nation, then Parliament had made “provision” for the subject of medical and health services for the First Nation. The Employer said the duty of Canada to provide medical and health services to the First Nation could in part be derived from the “medicine chest” reference in Treaty No 6. That concept has evidently been accepted by Canada as influencing the promises to “take care of you” in the development of Treaty No 7 governing the lands in Alberta where this First Nation is located. The Employer referred to the language of Treaty No 7, which attracts a liberal reading in relation to the promises made to Aboriginal people as re-affirmed by s 35 of the Constitution Act, 1982.

The Court’s role on this appeal of a judicial review decision is restricted to determining whether the chambers judge erred and whether the Board erred in taking jurisdiction to the extent that it did so. This Court will not express any opinion beyond a legality determination respecting what the Board did, let alone express any policy perspective on any aspect of the ongoing effort to achieve social and legal reconciliation of Canadian society with Indigenous peoples.

The Court found no error in the chambers judge conclusion that the Employer’s position was without merit after applying the functional analysis in NIL/TU,O. Funding by Canada alone would not constitute direction of the work being done. The Agreement sets standards and links the service to compliance with laws and guidance applicable otherwise to similar medical and health services in Alberta.

Application of the functional test to the facts found here does not lead to the conclusion that SEMS is a federal undertaking under NIL/TU,O. Section 88 of the Indian Act extends provincial laws to Indians ex proprio vigore except to the extent those laws impair “the status and rights of Indians” (NIL/TU,O). The provision of medical and health services to members of the First Nation arises from their position as human beings, not from any specific ethnicity. While the duty of Canada to Aboriginal people is more general, the specific topic of medical and health services for Indigenous peoples is to their benefit as people living in Alberta. The Employer has not shown that the application of provincial labour relations laws to the SEMS work force impairs in any serious sense the “status or rights of Indians”.

Maliseet Grand Council et al v New Brunswick et al, 2019 NBQB 198

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Reply

Motion granted. The two applications for judicial review are dismissed. The applicants have not established standing. Judicial reviews are not an appropriate forum for how the dispute regarding s 35 Aboriginal rights is framed.

Indigenous Law Centre
Indigenous CaseWatch Blog

In a bid to enhance winter tourism in northern New Brunswick, the Province decided to improve the snowmobile trail system, by proceeding with the development of a snowmobile grooming hub in 2015 at Mount Carleton Park. The two judicial review applications arose in the context of this decision made by the Province. The initial judicial review focused on whether the Province’s decision to develop the grooming hub was in violation of the Province’s Parks Act and to first conduct an environmental impact assessment. The second judicial review application challenged the Province’s decision to exempt work on, and the replacement of, two bridges from a subsequently conducted environmental impact assessment. In addition, all of the judicial review applicants alleged a breach of Aboriginal and Treaty rights. These lands were, according to the judicial review applicants, never ceded by treaty.

Central to this dispute is the Mascarene Treaty of 1725/26, the so-called Peace and Friendship Treaty. The Mascarene Treaty represented a negotiated end to the Dummer’s War between the British and the Wabanaki Confederacy. The Eastern Wabanaki Confederacy are a confederation of First Nation and Native American people from (present day) Eastern Canada and the State of Maine, USA. The Mascarene Treaty of 1725/26 was signed by the numerous traditional chiefs of the Eastern Wabanaki Confederacy. This included traditional chiefs of the Wolastoqewiyik (Maliseet) peoples located in present day New Brunswick. The Wabanaki Confederacy is said to also be in the process of “being rebuilt”.

Having carefully considered the substantive submissions of the parties and having reviewed all of the numerous authorities in the context of both Aboriginal and Treaty rights litigation across Canada, the Court concluded that the Province’s motion to dismiss the two applications for judicial review will succeed. It was determined the applicants on judicial review have not established standing, which is fatal to both judicial reviews. As well, judicial reviews are not an appropriate forum to determine the existence of an Aboriginal section 35 rights-bearing collective.

Counsel for the judicial review applicants acknowledges these to be unique circumstances, however, it does not require this Court to adopt unique and novel legal constructs. “Aboriginal rights exist within the general legal system of Canada” (R v Van der Peet, [1996] 4 CNLR 177 [R v Van der Peet]). There is ample and longstanding authoritative support for the notion that both Aboriginal and Treaty rights are collective or communal in nature (Haida Nation v British Columbia (Minister of Forests), [2005] 1 CNLR 72). While such rights may be exercised, in certain circumstances, by individual members of the community, these rights remain collective or communal (R v Powley, [2003] 4 CNLR 321). While the judicial review applicants initially based their claims against the Province over its failure to consult them, to a great degree, on “Aboriginal rights”, they now premise their relief on a breach of the Mascarene Treaty of 1725/26.

In the matter before this Court, the judicial review applicants believe a fair interpretation of the wording of the Mascarene Treaty allows for them to seek relief by way of judicial review for a breach of the Maliseets people’s rights. While they do not seek any declaratory relief specifically recognizing them as an authorized Aboriginal or Treaty rights holder for the Maliseet Nation, they do seek an order against the Province requiring it to fulfill a duty to consult prior to further work on the project continuing. Ostensibly, the judicial review applicants rely on the wording “any Indian” found in the Mascarene Treaty of 1725/26 so as to suggest they have “constitutional standing” to proceed. While creative, there is no merit to this argument. Even if this Court were satisfied with the specific interpretation of the wording found in the Mascarene Treaty of 1725/26, and in the manner now espoused by the judicial review applicants, there is an absence of evidence any of the judicial review applicants actually or actively pursued the very rights alleged to have been impacted and at the allegedly affected parts of Mount Carleton Park.

Even if the Court is in error with respect to standing, this dispute, as framed, is not appropriate for judicial review. A judicial review application should not be turned into a hearing de novo or an appeal. The Court’s role on judicial review is not to consider the matter anew or adjudicate conflicting expert opinions based on new evidence, but to review the decision on the basis of the material before the decision-maker. Aboriginal rights must be proven by tested evidence; they cannot be established as an incident of administrative law proceedings that centre on the adequacy of consultation and accommodation. To permit this would invite uncertainty and discourage final settlement of alleged rights through the proper processes. Aboriginal rights claims require that proper evidence be marshalled to meet specific legal tests in the context of a trial (R v Van der Peet; Delgamuukw v British Columbia, [1998] 1 CNLR 14; and Mitchell v MNR, [2001] 3 CNLR 122).

There are a few cases where standing was made an issue. In those few cases, it was held that the Aboriginal party must show it, in fact, has recognized authority to represent an Aboriginal collective, or portions thereof, for purposes of section 35 constitutional reconciliation or litigation. In this matter, the judicial review applicants argue that they need not do so as the Mascarene Treaty of 1725/26 expressly provides for their standing. Any Treaty interpretation, especially cases with such potentially broad application as in this case, must take into account all of the Aboriginal parties to the Treaty and the government(s). The judicial review applicants have chosen to proceed, not only without evidence of current representational authority for the collective Maliseet Nation, but they have done so in a forum to the exclusion of numerous recognized Maliseet entities, such as the First Nations communities in New Brunswick who quite likely may be affected by this proceeding and the relief sought.

R v Kowtak, 2019 NUCJ 03

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Appeal allowed. The Justice of the Peace is required to consider Gladue factors in crafting an appropriate sentence. This was an error in law that justified an appellate intervention. A conditional discharge is a fit sentence for the appellant.

Indigenous Law Centre
Indigenous CaseWatch Blog

The appellant was at home, and while intoxicated and arguing with her spouse, assaulted her 15-year-old-daughter who attempted to intervene. The accused plead guilty and received a suspended sentence with nine months probation and a $100 victim fine surcharge. This is an appeal of that sentence on the grounds that the Justice of the Peace failed to consider Gladue factors, made impermissible statements about the accused, and deferred to the Crown’s position as presumptively reasonable.

It was determined in this appeal that the sentencing Justice of the Peace made an “impermissible speculation” about the accused’s lack of previous criminal record (R v Morrissey, 22 OR (3d) 514). The presumptive reasonableness of the Crown’s position was reviewed, and it was decided that the Justice of the Peace accepted the recommendation without considering the Defence recommendation. Any official deciding on an appropriate sentence must hear and consider both positions before deciding on a sentence. Further, there was no consideration of whether a conditional discharge would be appropriate, and this impacted the sentence. After considering these factors, and the role and value of Community Justices of the Peace, it was determined that the Justice of the Peace made a significant error in law as well as errors in the principle that affected the sentence in the case.

In deciding the sentence, the circumstances of the offender, and the applicable sentencing principles, including aggravating and mitigating factors, were considered. The Court followed s 718.1, which requires that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. The charge of assault is statutorily aggravated under ss 718.2(a)(ii.1) and (iii) because it was committed on a person under the age of 18, to whom the appellant was in a position of authority, as her mother. The mitigating factors of the case included the fact that the appellant demonstrated remorse by pleading guilty early on and stated she was sorry for what she had done; she was 35 with no prior record; her future employment would be put at risk with a criminal record; the assault was relatively minor and no injuries resulted; as well the Gladue factors of overcrowding and victimization of Indigenous offenders were also taken into account.

The Court determined that it would be in the best interests of the community of Rankin Inlet to see that a history of employment and good behaviour be given substantial weight, as this is a guilty plea to a single, one-time breach of the law. It was determined that the Inuk first offender should be given a chance to show that it was an isolated incident from which she learned an important lesson, and also to avoid a criminal record which could significantly impact her ability to find future employment. The appeal is allowed and she is sentenced to a conditional discharge which will not result in a criminal record. This appeal was held after the Supreme Court of Canada declared victim fine surcharges unconstitutional with immediate effect, therefore, the appellant shall have the victim fine surcharge removed from her sentence (R v Boudreault, 2018 SCC 58).

R v Overby, 2019 MBQB 102

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Due to the violent nature of the offence and lack of mitigating factors, the Indigenous offender, convicted of second degree murder, is sentenced to life in prison with no possibility of parole for 15 years.

Indigenous Law Centre
Indigenous CaseWatch Blog

Mr. Overby, an Indigenous man, has been found guilty of second-degree murder for the brutal killing of Christine Wood, a young Indigenous woman he had met on a dating app the same day he had murdered her. After engaging in sexual relations, he proceeded to murder her in the basement of his house. After the killing, he attempted to cover up the murder, until Ms. Wood’s body was found months later by chance.

The Gladue report submitted for Mr. Overby does not highlight any mitigating factors for the offender. He had an unremarkable childhood and the violence committed was considered “out of character”. The Court does not accept his version of events, including having no memory of what occurred.

In considering an appropriate parole ineligibility period, the Court must keep in mind that it must not be less than 10 years or more than 25 years according to s 745(b) of the Criminal Code. Balancing various caselaw with the sentencing principles, the aggravating factors that surrounded Ms. Wood’s unfortunate and violent death, required a more stringent parole ineligibility period (R v Shropshire, [1995] 4 SCR 227).

There were minimal mitigating factors other than the fact that alcohol was consumed by both parties and that Mr. Overby may have been depressed about his relationship situation. At the time of the offence, Mr. Overby had no criminal record at the age of 29 but his moral culpability in this case is very high. 15 years of parole ineligibility is deemed appropriate, but regardless, he remains under the supervision and control of correctional authorities for the rest of his life, including being subject to re-incarceration from parole should he breach any conditions or pose a threat to public safety.