Monthly Archives: March 2020

Shiozaki v Aboriginal Mother Centre Society and another, 2020 BCHRT 10

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Reply

Ms. Shiozaki has no reasonable prospect of proving discrimination against non-Aboriginals working for the Aboriginal Mother Centre Society, therefore the complaint is dismissed.

Indigenous Law Centre – CaseWatch Blog

Ms. Shiozaki worked for the Aboriginal Mother Centre Society [“Society”] for about three months before being placed on administrative leave and eventually fired. She identified as “Japanese in origin”. Ms. Shiozaki alleged the President of the Society’s Board of Directors held discriminatory attitudes towards non-Aboriginal people and thought that only Aboriginal people should be working for the Society. She said her race, ancestry, and colour, as well as disability were factors in her negative treatment by the Respondents. The Society denied discriminating. They say that they never treated Ms. Shiozaki adversely because of characteristics protected by the Human Rights Code. Her employment was terminated because she committed fraud and breach of trust and bullied other employees.

The decision addressed three issues: 1) Ms. Shiozaki’s request for further document disclosure; 2) the Respondents’ application for dismissal; and 3) Ms. Shiozaki’s application for costs arising out of what she argues was improper conduct by the Respondents in the course of this complaint.

Ms. Shiozaki said the Respondents failed to comply with an earlier Tribunal order respecting seven categories of documents. The Respondents produced all documents ordered by the Tribunal. They were not required to create and produce affidavits about issues in contention, nor were they required to disclose documents protected by solicitor-client privilege. Therefore Ms. Shiozaki’s request for further orders respecting disclosure was denied.

There was no evidence to suggest that, generally speaking, the Society was an organization that favoured the interests of its Aboriginal staff. Because she felt she had been treated unfairly, her race must have been a part of that. Further, because she was on medical leave when a number of adverse decisions were made, that must have amounted to discrimination based on disability. This revealed a deep misunderstanding about discrimination and the context of Aboriginal people in Canada. This extended to the functioning of the Society itself, where Ms. Shiozaki argued the Society was engaging in discrimination by only providing services to Aboriginal mothers. The argument is further belied by the fact that the person hired to replace Ms. Shiozaki was not Aboriginal. Any connection between the Respondent’s conduct and Ms. Shiozaki’s protected characteristics was purely conjecture. The Respondent’s conduct was supported by sworn affidavits and documentary evidence. This complaint had no reasonable prospect of success and therefore dismissed.

Ms. Shiozaki argued that the Respondents engaged in improper conduct by using documents they obtained in the course of this complaint to fight her application for EI benefits. As the documents were all in the Society’s possession independently of this process, the Society was entitled to use them in other proceedings. The two pieces of information Ms. Shiozaki argued the Society had acted improperly on were not confidential to this process and therefore, there was no evidence the Respondents acted improperly in the course of this complaint and the application for costs was denied.

R v Awasis, 2020 BCCA 23

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Appeal dismissed. Public safety must be heavily weighed when sentencing a dangerous offender. Despite the consideration of Gladue factors of the Indigenous offender, his patterns of conduct and the factual findings of treatment would have made a finding of dangerousness inevitable.

Indigenous Law Centre – CaseWatch Blog

The offender was designated to be a dangerous offender and was sentenced to an indeterminate term of imprisonment after being convicted of two sexual offences. He is Indigenous and had an “unfortunate, tragic background.” He became involved with the criminal justice system when he was 13 years old, and he has continued to violently and sexually reoffended in the community. He has severe addictions to alcohol and drugs and has suffered from a lot of trauma, including sexual assault. The offender also has been diagnosed with a severe personality disorder which has contributed to the risk he poses to public safety.

Since the appellant was designated as a dangerous offender, indeterminate detention was available as a sentencing option under s 753(4) of the Criminal Code. To properly exercise discretion under that section, the Court must impose the least intrusive sentence required to reduce the public threat posed by the offender to an acceptable level (R v Boutilier, 2017 SCC 64). To do so, the sentencing judge must conduct an individual assessment of all relevant circumstances and consider the sentencing objectives set out in ss 753(4), (4.1) and 718–718.2, including those developed for Indigenous offenders. An offender who is found to be a dangerous offender has the right to appeal his designation and sentence on any ground of law or fact or mixed law and fact as per s 759(1). The offender applied to submit fresh evidence on appeal, but it was denied due to the credibility and lack of perceived effect on the outcome.

The offender argued that the trial judge failed to take into account evidence of his treatability at the designation stage, which would constitute a reversible error. Consideration of treatability is relevant at both the designation and sentencing stage. When it came to the trial judge’s analysis at the designation stage, the Court found that treatability was not considered. Nonetheless, the offender’s patterns of conduct and the factual findings of treatment would have made a finding of dangerousness inevitable. At the sentencing stage, the trial judge found a lack of evidence that the offender’s risk to the community could not be managed which was upheld by the appellant court.

The offender also argued that the trial judge failed to give a tangible effect to Gladue factors when determining his sentence, which resulted in a disproportionate sentence. The Court acknowledged that it is necessary to look at the whole picture (including Gladue considerations). Still, the sentencing lens for a dangerous offender is constrained as there is an emphasis on public safety which narrows the options available to a sentencing judge. The trial judge recognized that the offender’s Gladue factors reduced his moral blameworthiness; however, his repeated history of reoffending and failure to address the issues that contributed to his criminal conduct made the need to protect the public paramount. It was decided that the trial judge adequately considered the offender’s Gladue factors and overall, the indeterminant sentence that was imposed was acceptable to the Court.

R c Dubé, 2019 QCCQ 7985

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After interpreting the new provisions that codify the consideration of Gladue principles at bail, specifically s 493.2(a) of the Criminal Code, the Court found no basis for detention of the accused if supervisory measures are established.

Indigenous Law Centre – CaseWatch Blog

The accused, Mr. Dubé, is an Aboriginal person and a member of the Opitciwan Atikamekw community. He is charged with a number of offenses, but he undertakes to respect all the conditions that the Court may impose. The prosecution objected mainly on the ground of the substantial likelihood that he would not comply with any potential conditions, as had been demonstrated by numerous past breaches. The accused has regularly found himself before the courts for assaults, threats, mischief, and thefts. There are about 20 breaches of conditions related to recognizances or probation orders and he has had several stays in prison.

The Court considered the new provisions of the Criminal Code that came into force concerning the principle of restraint, s 493.1, and the particular attention that must be paid to Aboriginal accused who are overrepresented in the prison system, s 493.2. Section 11(e) of the Charter enshrines the right not to be denied reasonable bail without just cause. Release is to be favoured at the earliest reasonable opportunity and on the least onerous grounds (R v Antic, 2017 SCC 27). The Supreme Court of Canada [“SCC”] examined the principles governing interim release and noted that nearly half of the individuals in provincial jails are accused persons in pre-trial custody, where the conditions are dire; Indigenous individuals are overrepresented in the remand population, accounting for approximately one quarter of all adult admissions; such a situation can have serious detrimental impacts on an accused person’s ability to raise a defence in addition to proving costly for society; and therefore, pre-trial detention is a measure of last resort (R v Myers, 2019 SCC 18).

The SCC pointed out the recurring problem of the overrepresentation of Aboriginal people in the prison system. Based on section 718.1(e), the Court proposed a special approach to sentencing in light of the particular circumstances of these offenders whose lives are far removed from the experience of most Canadians. Judges were encouraged to take judicial notice of the broad systemic and background factors affecting Aboriginal people generally (R v Gladue, [1999] 2 CNLR 252; R v Ipeelee, [2012] 2 CNLR 218).

The Gladue factors, with the necessary adaptations, are applicable to the hearing on interim release (R v Hope, 2016 ONCA 648). This Court places the accused’s lengthy criminal history with respect to breaches in the above context. The accused’s release plan with various supervisory measures put in place, while imperfect, makes sense given this Aboriginal context.

Note: French translation of R c Dubé, 2019 QCCQ 7985 found here.

Dumais et al v Kehewin Band Council et al, 2020 FC 25

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Motion dismissed. The reasons for dismissal is not the merits of the Plaintiffs’ grievances against Kehewin Band Council et al for refusing them memberships under Bill C-31, but rather this Court has no jurisdiction to entertain them.

Indigenous Law Centre – CaseWatch Blog

The Plaintiffs have asked for default judgement against the Kehewin Band and Band Council [“Kehewin”]. Due to the historical gender discrimination that existed against women with registered Indian status under the enfranchisement, or “marrying out”, provisions of the Indian Act, SC 1956. In 1985, however, the Indian Act was amended, also known as Bill C-31, to be consistent with s 15 of the Charter. Bill C-31 automatically restored band membership to the women who had lost their Indian status directly through enfranchisement.

Kehewin refused to recognize Bill C-31 or accept any of its eligible individuals or their children as band members. As a result, the Plaintiffs commenced the underlying action in 2000 seeking declaratory relief and damages against Kehewin and Her Majesty the Queen in Right of Canada, as represented by the Minister of Indian Affairs and Northern Development [“Canada”]. The Plaintiffs claim there was a fiduciary duty owed towards them and there was a breach of that duty.

In this matter, the Plaintiffs seek default judgment for damages resulting from Kehewin’s discrimination and associated denial of all tangible and intangible benefits of band membership. The action against Canada has been held in abeyance pending disposition of the present motion. The action moved forward by fits and bounds for almost a decade. Throughout this period, Kehewin engaged in a deliberate and systematic pattern of delay, using all possible means to frustrate the Plaintiffs’ efforts to conduct an orderly and complete discovery.

Kehewin never formally took control of its membership lists. Kehewin rebuffed all attempts to restore membership to the Plaintiffs, refusing to comply with Bill C-31 or recognize Canada’s authority. Kehewin also failed to file an action or application to challenge the constitutionality of Bill C-31. Kehewin simply ignored Bill C-31. Kehewin refused to recognize any Bill C-31 eligible individuals as Kehewin Band members. Kehewin’s adoption and application of their Kehewin Law #1 made it impossible for individuals reinstated to registered Indian status or Kehewin Band membership under Bill C-31 to qualify for Kehewin Band membership.

The applicable test to establish if this Court has jurisdiction is set out by the Supreme Court of Canada: 1) there must be a statutory grant of jurisdiction by the federal Parliament; 2) there must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction; and 3) the law on which the case is based must be “a law of Canada” as the phrase is used in s 101 of the Constitution Act, 1867 (ITO-Int’l Terminal Operators v Miida Electronics, [1986] 1 SCR 752 [“ITO”]).

The Plaintiffs rely on the provisions of ss 17(4) and paragraph 17(5)(b) of the Federal Courts Act [“FCA”] to find jurisdiction. First, the nature of the proceeding generally contemplated by ss 17(4) is an interpleader. To the extent any obligation may be owed by Kehewin or Canada to the Plaintiffs, are concurrent, not conflicting. The obligation can only be owed to one. It is the claims as against Canada by other parties which must be in conflict to fulfill the requirements of ss 17(4) (Roberts v Canada, [1989] 1 SCR 322). While Kehewin takes a different legal position regarding the Plaintiffs’ status as band members, this does not create a conflicting claim as against Canada. Therefore, this Court does not have jurisdiction to entertain the Plaintiffs’ action against Kehewin under ss 17(4) of the FCA.

Next, paragraph 17(5)(b) of the FCA grants concurrent jurisdiction to the Federal Court to entertain claims against persons in relation to the performance of their duties as an officer, servant or agent of the Crown. Band councils have been recognized as legal entities separate and distinct from their membership with the capacity to sue and be sued by courts at all levels. On the one hand, they may act from time to time as an agent of the Crown with respect to carrying out certain departmental directives, orders of the Minister and the regulations passed for the benefit of its members. On the other hand, the band councils do many acts which are done in the name of and which represent the collective will of the band members, all of which is directly related to the elective process provided for in the Indian Act whereby the band members elect its governing body. The element of control is key to a finding of agency (Stoney Band v Stoney Band Council, [1996] FCJ No 1113).

The difficulty with the Plaintiffs’ argument is that no facts have ever been advanced in their pleadings which could support a finding of agency, nor does the notice of motion seek a declaration or finding of agency. It is not open to the Plaintiffs on a motion for default judgment to now assert liability of Kehewin based on agency. The introduction of this new theory of liability at this late stage of the proceeding is problematic. In any event, the facts established by the Plaintiffs on this motion do not support a conclusion that Kehewin was under the control of Canada when it refused to provide benefits to the Plaintiff. Regrettably, the Plaintiffs have failed to satisfy the first branch of the ITO test.

R v BMW, 2020 BCPC 9

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After weighing the sentencing principles with the Gladue factors of the offender, a 32-month term of imprisonment was imposed for the guilty plea of two offenses.

Indigenous Law Centre – CaseWatch Blog

The offender pled guilty to one count of sexual interference and one count of sexual assault under ss 151 and 271 of the Criminal Code. At the time of the first offence, the accused already had a criminal record with 38 convictions, and at the time of the second offence, he had committed an additional 14 offences, that included multiple assaults. The issue for the Court was to determine a proper sentence by taking into account all of the relevant purposes and principles of sentencing, including the circumstances of the offence and the circumstances of the offender.

The offender held Indigenous status and lived in a reserve community that has a legacy surrounding residential schools, intergenerational alcoholism, drug addiction, poverty, family violence, suicide, and unemployment. He attended residential school from grades eight to ten. He had a job but lost it for being late and not getting along with his supervisor, which he attributes to alcohol abuse. In his early twenties, the offender lost both of his parents to alcohol abuse and his brother later passed away from a hit and run motor vehicle accident.

Following s 718.2(e) of the Criminal Code, it was necessary for the sentencing judge to consider the above background factors which may have played a part in bringing the offender to the Court and the types of sentencing procedures and sanctions that may be appropriate because of the offender’s Indigenous heritage. The mitigating factors included the offender’s early guilty pleas, his support from his family and his community, and his Indigenous heritage. The aggravating factors included his criminal record, details surrounding the offences, and the offences’ impact on the victim, a vulnerable Indigenous female. Considering the aggravating and mitigating factors, the Court ordered a term of imprisonment for ten months for the first offence and 22 months for the second offence, for a total of 32 months of imprisonment less time served.

R v Paulson, 2020 ONCJ 86

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After weighing the Gladue Report and other sentencing principles with the circumstances of the offender, 338 days of time served plus one day concurrent was imposed for the guilty plea of three offences.

Indigenous Law Centre – CaseWatch Blog

The 28 year old Indigenous offender pled guilty to three counts of Aggravated Assault, Breach of Recognizance, and Assault. The Court read about the offender’s personal circumstances in a Gladue Report and also had the opportunity to hear from her and her family during a sentencing circle. Following the sentencing principles of s 718 of the Criminal Code, it was necessary for the sentencing judge to analyze the circumstances of the offences and determine the weight of those factors while simultaneously considering the principles of denunciation and deterrence.

The offender is a single mother of four children. Her grandparents attended Residential School, which has had a tremendous impact on her mother, and herself. While growing up, she spent significant periods with relatives and friends before she was placed into foster care where she experienced childhood neglect and sexual abuse. The offender became pregnant at the age of fifteen and began abusing illicit substances while also entering into physically abusive relationships with men. She continued to have three additional children but has lost custody of all four. Losing her children caused the offender to experience Post-Traumatic Stress Disorder [“PTSD”], and she spiralled downward into further drug abuse. She did not have a prior criminal record.

It was accepted by the Court that the offender’s criminal actions were the result of extreme intoxication and that she had no memory of the events in question. Aggravating factors were considered including that the assaults were unprovoked, the assaults involved the use of a knife, the offender was on bail during the time of the attacks and was prohibited from possessing weapons, and the level of violence was significant. The mitigating factors included the fact that the offender pled guilty, she had no prior criminal record, her background as an Indigenous person impacted her life, she had PTSD at the time of the offences, and she was remorseful for her actions. It was decided that an appropriate sentence was one that would reflect the time that she had already served.