Monthly Archives: February 2020

R v Vandal, 2020 BCPC 11

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The sentence imposed on the accused, who is of Indigenous heritage, must denounce and deter his and others conduct, as the many offences committed were serious.

Indigenous Law Centre
Indigenous CaseWatch Blog

The accused is a 46-year-old Indigenous male with a long-standing drug addiction and has in excess of forty convictions for break and enter and a total of sixty criminal convictions. The court has had the benefit of a Pre-Sentence Report (PSR), a Gladue Report, and to the offender’s credit, he has made repeated efforts to conquer his long standing drug addiction. In addition to accessing Indigenous programming in custody, the accused has established connections with Elders, regularly attends sweats, healing circles and weekly smudges. The Gladue Report summarized his childhood abuse, parental instability, early introduction to drug use and his alienation from his Indigenous background. In mitigation, it is significant that the offender pleaded guilty, which represents some expression of remorse.

However, there are many aggravating factors. His lengthy criminal convictions demonstrates that previous efforts to deter him have been unsuccessful, and his history does not support a finding that he is truly dedicated to his rehabilitation. As well, two of his offences were committed while bound by a recognizance. In the circumstances, the offences combined with his personal circumstances demands a sentence that denounces and deters. A sentence of six years less the time served will adequately denounce and deter while still being proportionate. The sentence imposed will provide an opportunity for the offender to continue with his culinary training while permitting him to engage with Indigenous programs.

 

Petahtegoose et al v Eacom Timber et al, 2016 ONSC 2481

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Motion dismissed. The applicants have failed to meet the test for an interlocutory injunction against sustainable forest licence holders.

Indigenous Law Centre
Indigenous CaseWatch Blog

The applicants that operate Camp Eagle Nest, a not-for-profit corporation, seek an interlocutory injunction preventing sustainable forest licence holders to stop immediately any cutting, road building, or aerial spraying of herbicides on lands promised for survey by treaty in the Benny area. The Camp develops and delivers arts, wilderness education and Anishnawbek cultural and spiritual training sessions that improve First Nations cultural literacy, and also delivers employment training for First Nations youth and families.

The Atikameksheng Anishnawbek First Nation [“AAFN”] Reserve is located adjacent to the city of Sudbury and is outside of the Spanish Forest. In addition to rights to hunt and fish held under the Robinson-Huron Treaty, AAFN asserts that it has traditional territory rights in the area of Benny, within the Spanish Forest. Sagamok Anishnawbek First Nation is also a party to the Robinson-Huron Treaty, and also asserts traditional territory rights in this same area.

The three part test for an interlocutory injunction is set out as follows: 1) the applicant must demonstrate a serious question to be tried; 2) the applicant must convince the court that it will suffer irreparable harm if the relief is not granted; and 3) the balance of convenience must favour the applicant (RJR-MacDonald Inc v Canada, [1994] 1 SCR 311). The remedy of an injunction is an all-or-nothing solution. Either the project proceeds or not.

By contrast, the duty to consult assists in balancing Aboriginal interests and societal interests by reconciling Crown interests with Aboriginal interests. The jurisprudence makes it clear that in disputes involving First Nation peoples and the protection of First Nation culture and heritage, there is a duty to consult and to accommodate the concerns of First Nation peoples wherever possible (Haida Nation v British Columbia (Minister of Forests), [2005] 1 CNLR 72 [“Haida”]). The Supreme Court of Canada makes it clear in Haida that the duty to consult is paramount, but not the duty to agree.

Forest management plans for the removal of timber and the sustainability of forests are created after a long process of consultation and negotiation with stakeholders and people who would be directly affected. The consultative summary submitted to the Court is detailed and extensive. In this matter, there is overwhelming evidence that the duty to consult has been met by the Ministry of Natural Resources and Forestry in attempting to accommodate the concerns of the First Nations Peoples in the Spanish Forest Management Plan in and around the area of the hamlet of Benny. Even applying a low threshold, that threshold has not been met to establish that there is a serious question to be tried.

The applicants have not been specific about the harm that they would suffer if an injunction is not granted. They spoke in terms of generalities. Generalities do not satisfy the degree of proof required to establish irreparable harm. The Court concluded on the evidence and the facts of this case that the applicants have failed to establish all three requirements for an interlocutory injunction.

Further, a First Nations band may authorize an individual to represent its interest for the purpose of asserting the rights of the band, but that was not the situation in the case at bar. The applicants were not authorized by the AAFN to represent or speak for the band in its dealings with the Ministry of Natural Resources and Forestry concerning the Spanish Forest Management Unit in or around the hamlet of Benny. On the contrary, the AAFN was very much involved in the consultative process as seen by the consultative record. The applicants asserted that as First Nations people they are entitled to be consulted separate and apart from the AAFN. The duty to consult exists to protect the collective rights of First Nation peoples and therefore the duty to consult is owed to First Nation groups as a whole and not to individual members of the band (Behn v Moulton Contracting Ltd, 2013 SCC 26).

R v Christopher Ward, 2019 NBQB 068

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Penitentiary sentence ordered for an Indigenous offender after entering a guilty plea. For multiple sentences to be served concurrently, there must be a reasonably close nexus in time and place between the counts and not part of the same unfolding incident that justify treating them as one.

Indigenous Law Centre
Indigenous CaseWatch Blog

The accused pled guilty for numerous criminal charges including robbery with a firearm, having his face masked with intent to commit an indictable offence, unlawfully entering a dwelling house for the purpose of committing an indictable offence, criminal negligence causing bodily harm, and possession of a weapon for a purpose dangerous to the public peace. A pre-sentence report was prepared outlining the offender’s “seriously abusive upbringing.” Since the accused was Indigenous, it was necessary for the Court to interpret section 718.2(3) of the Criminal Code. It was determined that it is the analysis mandated by s 718.2(e) and not necessarily the result that is the correct lens through which the Aboriginal offender must be viewed in applying that provision (R v Gladue, [1999] 2 CNLR 252; R v Ipeelee, [2012] 2 CNLR 218). Once that occurs, the sentencing principles from s 178.2(3) are to be applied.

Since the offender pled guilty to five counts, consideration was given to the application of the principles of consecutive and concurrent sentences regarding each of those offences. In order for the sentences to be served concurrently, there must be a reasonably close nexus in time and place between the counts and not part of the same unfolding incident that justify treating them as one (R v Johnson (1996), 182 NBR (2d) 373). With these principles in mind, the Court reviewed various aggravating and mitigating factors surrounding the crimes and the accused. The most important factor in favour of the offender was that he pled guilty (R v Howe, 2007 NBCA 84). After evaluating the aggravating and mitigating factors, in combination with the accused’s Indigenous background, the court decided on a penitentiary sentence of seven years less time served.