Monthly Archives: April 2020

RR v Vancouver Aboriginal Child and Family Services Society (No 4), 2020 BCHRT 22

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West Coast LEAF’s application to intervene granted in part in a complaint of alleged discrimination, as it can contribute a unique and helpful perspective regarding the social context of Indigenous people in child welfare.

Indigenous Law Centre CaseWatch Blog

RR filed a complaint of discrimination against Vancouver Aboriginal Child and Family Services Society [“Society”] alleging that its decision to deny her custody and restrict access to her children amounts to discrimination on the basis of her race, ancestry, color, and mental disability. West Coast LEAF applied to intervene in the complaint under s 22.1 of the Human Rights Code [“Code”] stating it could assist the Tribunal to situate the complaint in its broader social context as well as interpreting both the Code and the Child, Family and Community Services Act in a manner consistent with the Charter and international law. RR supported the intervention, the Society opposed it.

Neither party raised issues related to Charter values, and in the view of the Tribunal, none arose in the complaint. Rather, this case involved an application of s 8 of the Code to the facts of this case, within a framework well known to human rights law and therefore the application to make submissions about Charter values was denied. Second, this complaint did not require the Tribunal to interpret s 8 or apply it in a novel circumstance and therefore that application was denied as well.

A different conclusion was reached for the remaining three proposed submissions. Based on the Tribunal specifically identifying the need to have full regard to the social context of Indigenous people in child welfare, the first two submissions concerned the social context underlying the complaint. West Coast LEAF had a unique and helpful perspective to bring to the Tribunal established through their demonstrable expertise in equality.

The application of West Coast LEAF to intervene was granted as follows: it had leave to make oral submissions during the opening, not to exceed 10 minutes; it had leave to file written submissions at the close of the hearing; the scope of the submissions was limited to the issues identified above; and it did not have standing to take part in any procedural matters before the Tribunal without leave.

R v Lemieux, 2020 ONCJ 54

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The Court did not believe the offender’s late, uncorroborated and inconsistent claim that he is a person of First Nations heritage. He is sentenced to 26 months for the possession of child pornography contrary to s 163(4) of the Criminal Code.

Indigenous Law Centre
Indigenous CaseWatch Blog

Just over a year prior, the offender entered a guilty plea to a single count that he did, without lawful excuse, possess child pornography in the form of videos and images contrary to section 163(4) of the Criminal Code. The Crown elected to proceed by way of indictment. Leading up to sentencing, there was preparation of a pre-sentence report, a Sexual Behaviours Assessment and a Gladue report.

The Ottawa Police Service initiated an investigation into the possession and sharing of suspected child pornography by following the information of an IP address that identified and led them to locate the offender’s home address. A search warrant was executed on the residence and the offender was placed under arrest. A desktop computer was seized as well as an external hard drive. There were 6617 images of child pornography and 611 videos of child pornography.

Although Gladue factors could be relevant to a sentencing for possession of child pornography, the offender brought this claim forward especially late in the proceedings after he was expressly provided opportunity to claim First Nations heritage. He was adopted at six months into a Franco-Ontarian family and therefore the source of ethnicity would be his birth parents. He could only recall his mother’s first name. The Court did not ultimately believe the offender’s late, uncorroborated and inconsistent claim that he is a person of First Nations heritage.

Overall, in the circumstances in this case, the record did not reflect a situation where credit should be given due to the restrictive nature of the bail conditions. Further, the court was not convinced on a balance of probabilities that the offender had been making serious and consistent efforts towards rehabilitation and thus not able to receive any credit.

An important case in Ontario involving sentencing for the possession of child pornography is R v Inksetter, 2018 ONCA 474 [“Inksetter“], and in the present matter the offender’s collection was nowhere near as large and while vile, did not seem to have been of the same level of depravity as that in Inksetter. He was cooperative with police while arrested, he plead guilty, complied with the conditions of his bail and had been a model resident at the John Howard Bail Bed Program. However, there was no clear indication the offender was truly remorseful. His cavalier attitude towards treatment lead the court to believe he had no true insight into his pedophilia. The age of children, size of collection and nature of acts depicted were aggravating. The most aggravating was his prior criminal record which consisted entirely of sexual assaults against children. This single factor alone would make a reformatory sentence inappropriate. Based on the foregoing, a sentence of twenty-six months was appropriate with the ancillary orders put forward by the Crown granted.