R v Grandinetti, 2020 ABQB 416

Experiences of racism is a Gladue factor, and there is relevance of credible employment opportunities for the Aboriginal accused that has informed the design of a fit and proper sentence in this matter.

Indigenous Law Centre CaseWatch Blog

Mr. Grandinetti was closely involved in the process of creating fraudulent documentation which he used to effect registration of six stolen trailers in his own name in order to facilitate the transfer of the trailers to others, including at least one innocent purchaser. He also physically possessed each of the stolen travel trailers, and knew each was stolen. He was not charged with a “possession offence” in respect of two of the trailers. He trafficked two of the travel trailers he knew were stolen. As well, he possessed two of them for the purpose of trafficking them.

Mr. Grandinetti’s crimes are not accurately described as sophisticated or involving a high degree of planning, at least not on his part. He was not charged with the theft of any of the six travel trailers with which he was involved and the evidence presented did not suggest he was involved in any theft. The actual mechanism of the deception in which he participated was relatively simple. He did not invent or design it.

Even before the sentencing principle established by s 718.2(2)(e) of the Criminal Code and considering Gladue factors, the circumstances of Mr. Grandinetti’s offences do not require that priority be given to deterrence, denunciation and separation over the other purposes of sentencing, rehabilitation, reparation and promotion of a sense of responsibility.

Mr. Grandinetti is the child of an Italian father and a Cree mother. He has a younger brother and an older half brother. As a child Mr. Grandinetti witnessed his father being physically abusive to his mother. His parents divorced when he was 15. When Mr. Grandinetti was 17 years old and in high school, his mother was murdered by his cousin. Evidence at the murder trial indicated that the cousin had been paid by Mr. Grandinetti’s father to murder his mother. There was an ongoing child support arrears dispute between Mr. Grandinetti’s parents at the time.

The Gladue Report indicates that Mr. Grandinetti’s brothers reported that their grandmother attended residential school and that the experience caused her to be “a mean and angry person at times”. She struggled with alcohol. But Mr. Grandinetti’s younger brother credits the grandmother with keeping the family together.

Mr. Grandinetti’s father forbade him from participating in Cree cultural activities and tradition, and not even to reveal his Cree heritage to anyone. He learned to attach shame to that heritage. The Gladue report writer noted that Mr. Grandinetti has strong and positive support from his brother and his brother’s family. There are culturally relevant and mainstream healing resources available to him which he has never attempted to access, in part, due to the shame of his Cree heritage instilled in him by his father.

Mr. Grandinetti is sentenced to a global 18 months of that includes 4-6 months incarceration, with the rest to be served in the community pursuant to a conditional sentence order, followed by a three year probation order. Upon his employment, he is to pay restitution.


Morin v Enoch Cree First Nation, 2020 FC 696

Application granted. Procedural fairness applies even when not directly incorporated into a First Nation’s custom election code.

Indigenous Law Centre – CaseWatch Blog

This application for judicial review is brought pursuant to s 18.1 of the Federal Courts Act, regarding a decision by an Election Appeal Board, constituted in connection with the Maskekosihk Enoch Cree Nation #440 Election Law [“MECN Election Law”]. The majority of voters of the Maskekosihk Enoch Cree Nation approved the MECN Election Law in 2018. It was enacted and adopted into the laws of that First Nation.

In this matter, the Applicant, Mr. Jared Morin and Respondent, Mr. Shane Peacock are members of the Enoch Cree Nation and both ran for the position of band councillor in the 2019 election. The counting of the ballots for councillors was conducted and there was found that both Mr. Morin and Mr. Peacock had received 319 votes. However, this “tie” is disputed as a councillor’s ballot was found in a ballot box intended for votes for the chief. That councillor’s ballot was for Mr. Morin. As some candidates ran for election as chief or councillor, the outcome of the election for chief had the potential to affect the outcome of the election to the 10th councillor position.

The Electoral Officer declared this tie and, in accordance with s 17.2 of the MECN Election Law, Mr. Morin and Mr. Peacock’s names were placed in a hat. The name drawn from the hat was Applicant. The Election Officer declared him the winner of the 10th councillor position.

Mr. Peacock subsequently submitted a brief to the Election Appeal Board that asserted the Electoral Officer improperly handled the councillor’s ballot found in the ballot box for votes for chief during the counting of the votes for the position of chief. That ballot, according to the brief, should have been considered as spoiled and not counted. In that event, Mr. Peacock would have had 319 votes and Mr. Morin would have had 318 votes, there would not have been a tie vote, and there would have been no need to conduct a tie breaking hat draw. The 10th councillor position in the 2019 election for the Maskekosihk Enoch Cree Nation chief and band council were then overturned and a by-election ordered.

This Court finds that the Election Appeal Board breached the duty of procedural fairness owed to Mr. Morin by failing to give him notice of that appeal, and as a result, deprived him of the opportunity to address the appeal allegations. The Election Appeal Board also erred by failing to notify the Electoral Officer of the appeal and in failing to obtain the Electoral Officer’s written reasons for his decision, in breach of s 20.7 of the MECN Election Law. This was unreasonable and rendered its decision unreasonable.

Given that Enoch Cree Nation did not challenge Mr. Morin’s allegation that the Election Appeal Board breached procedural fairness, and given that he has been successful in his application for judicial review in that the decision of the Election Appeal Board will be quashed and remitted back for redetermination, it is appropriate that he should be awarded the costs of his application as against the Enoch Cree Nation.


R c Charlish, 2020 QCCQ 2438

In keeping with the sentencing principles, including a focus on Gladue factors, the Aboriginal accused has been granted a last chance of a total sentence of 90 days to be served intermittently and supervised probation that includes an essential focus on therapy.

Indigenous Law Centre – CaseWatch Blog

The accused is an Aboriginal person who is a member of the Mashteuiatsh Innu Nation. Paragraph 718.2(e) of the Criminal Code provides that the court must take into consideration all available sanctions, other than imprisonment with particular attention to the circumstances of Aboriginal offenders.

In 2018, the accused entered a guilty plea to a charge of trafficking cocaine. Presentence and Gladue reports (R v Gladue, [1999] 2 CNLR 252) were ordered. Despite the presence of aggravating factors, such as objective gravity and the scourge of drugs in the community, the court accepted the defence’s position and imposed an intermittent sentence of 60 days with two years’ probation, including 18 months with supervision, and 100 hours of community work.

The accused continued to use cannabis but reduced the quantity and for a time stayed away consumption. During submissions on sentencing in this matter, the Court granted the application of counsel to file the presentence and Gladue reports that were previously prepared because they remained relevant. The reports highlighted that since childhood, the accused has been exposed to instability, violence, and substance use. He is aware of the problem and has consulted an addiction counselor, but has not managed to remain abstinent. The accused has a spouse with substance abuse issues as well, with whom he lives with, along with their two young children in the Mashteuiatsh community.

The Court asked for information on the programs available in the community. There are no justice committees in Mashteuiatsh. The Court refers to the work of the “Viens Commission”, a Public Inquiry Commission on relations between Indigenous Peoples and certain public services in Québec that focus on listening, reconciliation and progress. The Viens Commission describes the roles and responsibilities of justice committees as varying with each community’s needs and priorities. In general, it can be said that their goal is to offer an alternative to or complement the structures of the existing justice system. They take care of a number of things, including diversion, sentencing recommendations, supervised probation, suspended sentences, conditional release, authorized leave, crime prevention and community support such as healing circles, offender reintegration and citizen mediation.

However, there are other resources available in Mashteuiatsh to all types of clients. There is a housing resource that is a community organization that some members of the Mashteuiatsh community attend. It helps those suffering from issues related to substance abuse or addiction. With respect to Aboriginal clients, there is the Centre Kapatakan Gilles-Jourdain in Mani-Utenam, near Sept-Îles. It is an organization accredited by the Ministère de la Sécurité publique whose mission is to provide services adapted to Aboriginal values and traditions to Innu adults and other First Nations members, with the objective of healing and rehabilitation. There is also the Wapan rehabilitation centre in La Tuque. It provides treatment and follow-up services to First Nations adults. Mashteuiatsh social services can also provide support and direct a person to the appropriate resources, to the extent that they are willing and participate in the follow-up required.

In this case, the accused has been noted as open and cooperative. Before his relapse, he had made sincere efforts to change. The accused decided to testify and was transparent and described his drug addiction. He now realizes that he must get to the root of the problem and that long-term therapy is needed even if that causes him to be away from his family. He realizes that he is reproducing for his children the conditions that has led to his own substance use.

Cocaine trafficking is an objectively serious offence, for which the offender is liable to imprisonment for life. What is more, this case concerns a subsequent occurrence of the same offence for which the accused was convicted a few months earlier, along with a breach of probation. However, the Court cannot ignore the unique systemic and background factors that are mitigating in nature in that they have played a part in the Aboriginal offender’s conduct. The Supreme Court of Canada urges sentencing judges to address the sources of the problem rather than reproducing the “revolving door cycle in the courts” (R v Gladue; R v Ipeelee, [2012] 2 CNLR 218).

The accused is granted a last chance with a total sentence of 90 days to be served intermittently and supervised probation including the essential focus on therapy. To prioritize that initiative and taking into consideration the accused’s family obligations, the Court will not add community work.

‘Namgis First Nation v Mowi Canada West Ltd and Canada (Fisheries, Oceans and Coast Guard), 2020 FCA 122

Application allowed. There were concerns from a First Nation involving a salmon farming licence after learning of new scientific evidence regarding potential spread of disease. A novel adverse impact that arises since an original consultation, creates a fresh duty to consult.

Indigenous Law Centre
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‘Namgis First Nation’s traditional territory is at the north end of Vancouver Island and includes a number of the adjacent islands, including Swanson Island, which lie between Vancouver Island and the mainland. A number of distinct wild salmon populations are found in this area. These populations are critically important to ‘Namgis for food, social and ceremonial purposes. Mowi operates an open net salmon facility adjacent to Swanson Island. That facility has been there since the early 1990’s and has been stocked with salmon during that period except for fallow periods between harvesting and restocking.

Restocking open-net facilities is at the heart of this litigation because there is an uncircumscribed risk of introducing disease agents into the waters used by wild salmon. That risk arises from the transfer of immature salmon, or smolts, from inland fish stations to the open-net aquaculture facilities. If disease-bearing fish are introduced into these waters and if those diseases spread to the wild salmon stocks, the results could be calamitous and perhaps irreversible.

‘Namgis First Nation appeals from the decision of the Federal Court dismissing its application for judicial review of the Minister of Fisheries and Oceans’ [“Minister”] decision to issue a Salmonid Introductions and Transfer Licence [“Licence”] to Mowi Canada West Ltd. [“Mowi”]. The Federal Court had before it three separate but closely related applications for judicial review which it dealt with in one set of reasons (Morton v Canada (Fisheries and Oceans), 2019 FC 143).

All three applications revolved around two risk factors for wild Pacific salmon in ‘Namgis’ asserted territory. The first is Piscine Orthoreovirus [“PRV”], a highly infectious virus that is known to be present in Canada. PRV is found in both farmed and wild salmon in British Columbia. The second is Heart and Skeletal Muscle Inflammation [“HSMI”] which is an infectious disease found in farmed Atlantic Salmon and has appeared in one aquaculture facility in British Columbia. ‘Namgis is convinced that PRV and HSMI pose a threat to the wild salmon stocks which it relies on for food, social and ceremonial purposes. The Minister views the threat level as very low. The science as to the relationship between these two threats, their prevalence, and the risk they pose to wild (as opposed to farmed) salmon is evolving.

Given the history of consultation between these parties, the issue is not whether there is a duty to consult in the abstract but rather whether a fresh duty to consult arose. The Federal Court’s reasoning does not address the question of whether a novel adverse impact had arisen since the original consultation, which would create a fresh duty to consult.

The third element required in the test for a duty to consult calls for a generous, purposive approach recognizing that Crown action has the potential to irreversibly affect Aboriginal rights (Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73; Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43 [“Rio Tinto”]). The adverse affect cannot be merely speculative, and it must be relevant to the future exercise of the Aboriginal right. The assessment of the duty to consult is forward looking. Prior and continuing breaches, including prior failures to consult, will only trigger a duty to consult if the present decision has the potential of causing a novel adverse impact on a present claim or existing right (Rio Tinto).

The science around PRV and HSMI is rapidly evolving so that it was not specifically covered in the original consultations concerning fish health. The risk of harm to the native salmon stocks may be greater than the Minister previously contemplated, thus the finding of a novel adverse impact.

Acho Dene Koe First Nation v Minister of Industry Tourism and Investment, 2020 NWTSC 19

Application dismissed. This matter is not subject to judicial review as it seems to be of a private contractual nature brought forward by a First Nation, therefore it is not of a sufficiently public character to bring into the public law realm.

Indigenous Law Centre CaseWatch Blog

The Acho Dene Koe First Nation [“ADKFN”], claims Aboriginal title over lands upon which oil and gas exploration was being conducted by Paramount Resources Ltd. [“Paramount”], Chevron Canada Resources [“Chevron”] and Ranger Oil Limited [“Ranger”]. Neither the status, nor the validity of the ADKFN’s claim to Aboriginal title are before the Court.

The Director of Mineral and Petroleum Resources of the Department of Industry, Tourism and Investment for the Government of the Northwest Territories [“Director”] received a letter from the ADKFN explaining that the First Nation had entered into benefit agreements, called Community Investment Plans (“CIPs”), with Paramount, Chevron and Ranger. ADKFN asserted that each CIP related to specific licenses and interests held initially by each of the companies, and subsequently assigned to Paramount. ADKFN also asserted that the CIPs ran with the land to which the license and interest pertained and that Paramount, as the assignee, was bound by the CIPs with Chevron and Ranger, as well as its own.

Each CIPs’ stated purposes were to formalize the relationship between each of Paramount, Chevron and Ranger and ADKFN, and to provide for ongoing development of community relations. Among other things, they provided for financial contribution to a community development fund for the benefit of ADKFN members and a commitment to provide business opportunities to ADKFN members upon certain core competencies being demonstrated.

Although breaching of the CIPs is not before the Court, in its letter to the Director, ADKFN alleged that Paramount breached the CIPs and that consequently, Paramount was in violation of any licenses, permits or approvals that are contingent on compliance with such agreements. The Director replied by providing a general explanation of the benefits plans and approval process, noting that a benefits plan includes a commitment from the operator to implement strategies for training and employment, and procurement and contracting, but does not generally include guaranteed outcomes. He also noted that during the approval process, operators may enter into private contracts, such as the CIPs provided by ADKFN, to implement the strategies in the benefit plan, but that the terms of any private agreement do not thereby become terms of the benefit plan.

The AKDFN asks this Court to determine whether the Director in his letter erred by not assessing whether Paramount had complied with the benefits plans, declining to enforce the CIPs, and determining that the benefits plans are privileged. The Court finds that the Director’s letter is not subject to judicial review. The Director was not acting in accordance with “state authority” and the issues put before him were not of a sufficiently public character to bring the matter into the public law realm. He was not exercising a statutory or other public law power and, therefore was not acting as a tribunal. The Director received letters from ADKFN’s counsel, making a number of requests in relation to something that is entirely a private law matter. His response to the ADKFN did not become a tribunal and ADKFN’s interest did not take on a public dimension.

Even if a judicial review was allowed, it would be dismissed as the Director’s conclusion on the nature of the benefits plans as well as the Minister’s obligation to enforce the CIPs, would be assessed on a standard of reasonableness. His conclusion on the privilege question would be assessed on a standard of correctness as the privilege is statutorily protected. The Director’s assessment of the nature of the benefits plans is both reasonable and correct.

The Government’s duty to consult was not engaged because at the heart of ADKFN’s concern is a private contractual dispute with Paramount, not a proposed government action or decision. All that the ADKFN requested was an “enforcement” of the CIPs, in furtherance of its private contractual dispute with Paramount. That is something which neither the Minister, nor the Director have the authority to do and it is not altered by the Government’s fiduciary obligations to the ADKFN.

While the Director is employed in the public service, there is nothing in the applicable statutes that confers authority or imposes a duty upon him to decide or enforce anything, nor is there any evidence that any such authority or duty has been delegated to him. Accordingly, the Director does not fall into the category of a “public officer” in these circumstances.


Cunningham v Alberta (Métis Settlements Land Registrar), 2020 ABQB 301

Appeal dismissed. The Métis Settlements Act establishes membership requirements for the purpose for establishing a Métis land base. Although unfortunate, the appellant is not eligible to have Indian status and be a member of his Métis Settlement.

Indigenous Law Centre CaseWatch Blog

Mr. Cunningham spent almost his entire life on the Peavine Métis Settlement, including having a home and raising a family. However, he applied for Indian status in 1988. Although regretting the decision, he was unable to get his Indian status revoked. Mr. Cunningham has requested a judicial review of a 2018 decision of the Registrar of the Métis Settlements Land Registry [“Registrar’s Decision”].

The reasons for this decision is the conflict of Mr. Cunningham’s Indian status membership made 27 years ago. The Registrar did confirm that when the Peavine Métis Settlement approved Mr. Cunningham’s application for membership in 1991, the council acted contrary to s 78(2)(c) of the Métis Settlements Actbecause Mr. Cunningham was ineligible to become a member under s 75.

The Métis Settlement Act establishes membership requirements for Métis Settlements for the purpose of establishing a Métis land base, as reflected in the Membership List maintained and updated by the Registrar. The legislation was held to be constitutional by the Supreme Court of Canada (Alberta (AAND) v Cunningham, [2011] 2 SCR 670). The Métis Settlements Act does not does not establish eligibility or membership criteria for other purposes (L’Hirondelle v Alberta (Minister of Sustainable Resource Development), 2013 ABCA 12).

The problem is that the different existing legislative schemes exclude an Indian, except for certain exceptions which are not applicable to Mr. Cunningham, from membership in a Métis settlement (Gift Lake Métis Settlement v Alberta (Aboriginal Relations), 2019 ABCA 134). The Registrar is neither required to address each and every piece of evidence nor to address each and every aspect of Mr. Cunningham’s history and relationship with the Peavine Métis Settlement.

As for the 27 years from when Mr. Cunningham applied for Indian status to the 2018 Registrar’s Decision, if the doctrine of laches applied in this matter, the previous error in the 1991 Registrar’s Decision would be perpetuated into the future and the administrative error would override the will of the legislature in the Métis Settlements Act. As long as a statute is in effect, it is no defence that it has not been enforced or correctly applied for many years (Château-Gai Wines Ltd v Institut national des appellations d’origine des vins, [1975] 1 SCR 190).

Laliberte v Day, 2020 FCA 119

Appeal dismissed. The motion judge made no reviewable error in granting the carriage of a proposed class proceeding to a representative plaintiff on behalf of Métis and Non-Status Indian groups affected by the Sixties Scoop.

Indigenous Law Centre – CaseWatch Blog

The Sixties Scoop was a federal program under which Status Indian, Inuit, Métis, and Non-Status Indian children were taken from their parents and placed in non-Indigenous foster homes or put up for adoption. This appeal concerned the carriage of a proposed class proceeding on behalf of Métis and Non-Status Indians affected by the Sixties Scoop. In the settlement of the Sixties Scoop litigation approved in Riddle v Canada, 2018 FC 901, and Brown v Canada (AG), 2018 ONSC 3429, Status Indian and Inuit Sixties Scoop survivors were only included.

Two motions were brought and heard together in the Federal Court seeking carriage. One motion sought carriage for a proposed representative plaintiff in Day v AG of Canada, represented by two law firms based in Toronto [“Day action”]. In the order under appeal, the Federal Court granted carriage to the plaintiff in the Day action, and stayed the other three actions [collectively as the “LMO action”]. The order was the first contested carriage order issued by the Federal Court. Counsel for the LMO action submit that the motion judge committed both errors of law and palpable and overriding errors of fact in granting carriage to the plaintiff in the Day action.

The motion judge found Mr. Day to be a better representative plaintiff because he reflected the type of circumstances and damage that is common to both the Métis and Non-Status Indian groups and was a textbook claimant and a mirror for both Indigenous components of the litigation. Counsel for the LMO action submits that the motion judge’s treatment of this factor amounted instead to imposing a requirement that the representative plaintiff be typical of the class (Western Canadian Shopping Centres Inc v Dutton, 2001 SCC 46).

The Court does not agree that in going on to consider Mr. Day’s circumstances and the nature of the damage that he claims, the motion judge improperly imposed a typicality requirement. The motion judge instead treated the dispute as one that would be litigated to its conclusion, and recognized that Mr. Day personified some of the worst consequences of the Sixties Scoop. His circumstances and the damage he claims was an advantageous platform for a claim on behalf of the class.

The factors that may be considered in a carriage motion are not ends in themselves. Rather, they are means of assisting the court, in the unique context of each case, to determine the best interests of the class (Mancinelli v Barrick Gold Corporation, 2016 ONCA 571; Strohmaier v KS, 2019 BCCA 388; and McSherry v Zimmer GMBH, 2012 ONSC 4113). Not only are these factors not exhaustive; they are also not watertight compartments (Quenneville v Audi AG, 2018 ONSC 1530; Winder v Marriott International Inc, 2019 ONSC 5766; and Rogers v Aphria Inc, 2019 ONSC 3698).

One of the comparisons the motion judge drew was between the litigation experience of the two sets of counsel. He found that both have extensive class action experience, both have experience in the Sixties Scoop and residential schools class actions, and both have experience acting for Métis people, but counsel in the Day action have experience acting for Non-Status Indians as well.

The motion judge saw as leap-frogging the addition of Non-Status Indians to the class definition in the LMO action after the carriage motions had been scheduled. In the carriage motion context, “leap-frogging” refers to an attempt by one contender for carriage to improve its position after the motion has been scheduled by taking the benefit of the work of another contender; for example, by a copycat amendment to pleadings (Mancinelli et al v Barrick Gold Corporation et al, 2015 ONSC 2717, affirmed 2016 ONCA 571 [“Mancinelli”]). A rule has been rejected that carriage motions be decided based on a “freeze frame” as of the date the motion is filed, however, the court should be suspicious of conspicuous new activity after the filing of a carriage motion or of any attempts to ‘leapfrog’ a lagging action ahead of a more advanced one (Mancinelli).

R v JP, 2020 SKCA 52: Case Commentary by Glen Luther and Hilary Peterson

Indigenous Law Centre – CaseWatch Blog

On April 30, 2020 The Saskatchewan Court of Appeal released the judgement of R v JP,[1] in a case where the sentencing trial judge had failed to account for the proven mitigating factors (relating to the accused’s Indigenous background and to the accused’s Fetal Alcohol Spectrum Disorder [FASD]) in favour of “denunciation, deterrence and public protection”.[2] This appeal therefore considered the proper sentencing of an accused who suffers with FASD and whose personal circumstances require application of section 718.2(e) of the Criminal Code and the principles set out in R v Gladue.[3] In result, the Court of Appeal reduced the sentence for two robberies from the original sentence of seven years each, consecutive, to 5 years each, concurrent.[4]

The judgment of the Court of Appeal is highly significant with respect to, at least, the following four points:

  1. The recognition of proven FASD as reducing the “degree of responsibility of the offender”;
  2. The recognition that Gladue factors affect one’s “moral culpability” and as a logical consequence one’s “degree of responsibility” is lessened” even where a penitentiary term is called for;
  3. The presence of the word “rehabilitation” in s 718 as a purpose of sentence should be given a wide definition to include management and supervision in the community in relation to FASD;and
  4. That it is not the role of the Gladue report writer to suggest a fit sentence, as such is the province of the sentencing Judge.

At trial the circumstances of JP’s life as they relate to Gladue considerations were provided in detail and a Gladue report was completed, which included detail about his mother’s use of alcohol and drugs while pregnant with him and that she did not know she was pregnant until the seventh month.[5] The Court of Appeal provided the following summary of the Trial Judge’s conclusions regarding FASD and Gladue considerations:

… The judge began his analysis of these matters by stating that he was “satisfied that there are systemic and background factors that have contributed significantly to J.P.’s circumstances, and to his appearances before the criminal courts of this province”. He described these as “largely intergenerational” and stated that “[i]t is likely that these systemic and background factors have a bearing on J.P.’s lifestyle and attitude” (at para 87). The judge also said he had “no doubt” as to the accuracy of the diagnosis of FASD, which he said was supported by assessments which were “thorough and complete, including recommendations for intervention” (at para 92)…[6]

It is a finding of fact that JP suffers from FASD and Gladue circumstances which have contributed to JP’s involvement with the criminal justice system. The Court of Appeal analyzed the sentencing principles considered by the Trial Judge and ultimately found that the “The judge did not otherwise determine or consider the extent to which J.P’s level of reduced culpability arising from his FASD and other Gladue consideration should weigh in determining a fit sentence.”[7] However, as quoted above in paragraph 87 of the trial decision, the Trial Judge recognized JP’s reduced moral culpability.[8]

The Court of Appeal’s judgment is authored by Leurer JA and concurred in by Justices Schwann and Kalmakoff. The judgment is like a breath of fresh air in a Province that has often been seen as resistant to confronting the Indigenous over-incarceration epidemic. In doing so, the Court of Appeal builds on the now four-year-old decision of Richards CJS for the Court in R v Chanalquay, 2015 SKCA 141, in attempting to breath real life into the Gladue principles. Those principles have continued to confuse and, in some sense, be resisted by lower court judges. JP, who the sentencing Judge, Elson J of the Saskatchewan Court of Queen’s Bench, convicted after a trial, had been found to have “encouraged and directed” his nephew to commit the two convenience store robberies, had also been introduced himself at a young age to criminality by his step-father. As such, it is easy to see the inter-generational nature of this Indigenous family’s offending.

The sentencing Judge had criticized defence counsel and the Gladue writer for a failure to address the “extent to which the identified systemic and background factors, may or may not, influence” the objectives of denunciation, deterrence and public protection.[9]Justice Leuer relying on R v Okimaw,[10] suggests that Elson J was wrongly seeking for the Gladue factors and the presence of FASD to have “impacted or influenced” the named objectives of sentencing. The Court of Appeal was also of the view that JP’s FASD, which damage occurred to JP’s brain when he was being carried by his then fifteen year old mother, (who was at the time living in a circumstance of “family dysfunction, substance and alcohol abuse and violence”) had a “direct connection” to other systemic and background (Gladue) factors. Indeed, the Court of Appeal found that JP’s FASD was an “intergenerational consequence of residential schools”.[11]

These findings then lead the Court to ask an important rhetorical question: “how can a person who received the different sort of education JP was given by his stepfather not be less morally culpable than someone who was raised in a stable environment uninfluenced by the mentorship of a criminal?”[12] The Court’s point is a good one. If we are looking for examples of reduced moral culpability we have it in JP, without even considering his FASD. To the Court of Appeal his reduced moral culpability is evident and when taken with his FASD the evidence points more directly to JP’s reduced moral culpability.

Before moving to how this should have affected the sentence given, the Court then moves to address FASD directly. A first for this Court, Leurer JA adopts a broader definition of rehabilitation than originally accepted by the sentencing Judge. The Court quotes from R v Friesen,[13] where the Manitoba Court of Appeal accepted that rehabilitation includes “finding a way to control and modify the behavior…”[14] in question. Therefore, finding that FASD is a “life-long” condition does not equate with it not being amenable to rehabilitation (or treatment).  Leuer JA says that “…when the risk of reoffending is reduced through structured support that control, modifies or manages behavior”[15] rehabilitation can be an important aim of a criminal sentence. This is a highly significant step and provides much scope for the use by the criminal courts of recent research into the management of those with FASD as showing pathways to effective rehabilitation. Can FASD researchers, including Dr. Jacquie Pie (and others), have been doing important work on this topic.[16] Indeed, when one stops to think about the issue it is clear that many conditions are in fact life-long and yet can be subjected to effective “treatment” that can lessen their adverse effects (including diabetes, for example).

Lastly, the Court of Appeal is very clear in their judgment in JP that when an offence requires a penitentiary sentence it remains significant to consider Gladue factors when arriving at the precise sentence that is to be imposed. The Court focuses on the principle of proportionality [in s.718.1] as requiring the sentencing judge to “put into the balance” the “impact …systemic and background factors have on an individual’s moral blameworthiness.”[17] Therefore, “A combination of Gladue factors and FASD will often serve to reduce an offender’s moral culpability in the context of consideration of the proportionality principle”[18] which “must be accounted for when determining a proportionate sentence.”[19] This, of course, is highly significant as one often gets the impression that sentencing judges are giving only lip service to Gladue principles. Leurer JA is clear that such factors must be “weighed when fixing a proportionate sentence”[20]. The Court is critical of the Crown’s argument that Gladue has less effect where the primary goal identified in the case law is deterrence as s718.2(e), (citing Gladue itself at para 44), “has a remedial purpose for all offenders… [with] a particular remedial role for aboriginal peoples.”[21] In a case involving FASD, the Judge must look for evidence as to whether the accused’s moral culpability is reduced by their FASD. Further, Gladue factors that reduce moral culpability remain in play when determining the ultimate sentence relying on R v Jensen [22]. In the end, the Court finds that the factors that reduce JP’s culpability were on the facts of the case “overwhelming” and “cannot be credibly denied”[23] and the Judge erred in principle by failing to account for those factors in setting the sentence.

It seems that courts continue to adapt their application of Gladue in order to fulfill the intended purpose of the Supreme Court of Canada’s interpretation of section 718.2(e) of the Criminal Code. Part of this picture is answered by this decision. It cannot be clearer: in Saskatchewan either proven FASD or significant Gladue factors affect one’s “moral culpability” and as a logical consequence one’s “degree of responsibility” is lessened. JP is a disabled person whose life circumstances are a consequence of colonial trauma and learned criminality. He will spend the next five years in a federal penitentiary. How are those five years of separation from society going to assist in supporting him in ways that recognize both his disability and his strengths and thus his future risk? One of the foundational statements from the Supreme Court in Gladue is that prison and the justice system in general is not working for Indigenous peoples [24]. While the search for the right balance of the proportionality equation is necessary, it is also important to remember that it is only through the creation of alternatives to incarceration, through the creation of Indigenous justice programs and the continued and increased reliance on organizations such as the FASD Network, that will we really make significant change to the lives of people involved in criminality, while making our society safer. Until then Indigenous people are being sent to prisons that won’t rehabilitate them. What kind of a society do we want to live in? One in which says it is making us safer or one that is actually safe?

Read R v JP, 2020 SKCA 52 on CanLii

About the contributors: 

Glen Luther: “Professor Luther joined the faculty of the College of Law, University of Saskatchewan in 2003, having previously held teaching positions at Osgoode Hall Law School, Victoria University in Wellington, New Zealand, and the University of Calgary. He has extensive practice experience as a criminal lawyer, having practiced in Lloydminster (his hometown) from 1981-1984 and Calgary, Alberta from 1989-2003. He has argued cases throughout Alberta and Saskatchewan at all levels of courts including the Supreme Court of Canada. Currently his practice is limited to consulting with other counsel and assisting them in the presentation of cases before the courts.”

Hilary Peterson: “Sessional lecturer and lawyer, Ms. Peterson teaches at the College of Law, specifically the seminars Youth Criminal Justice and the Indigenous People and the Criminal Justice System.” 


[1] 2020 SKCA 52 [JP].

[2] Ibid, para 89.

[3] [1999] 1 SCR 688, [Gladue].

[4] At trial the accused was sentenced on a number of offences for a total global sentence of 17 years, which was reduced, based on the totality principle, to 10 years. The Appellate Court dealt predominately with the issue of sentence for two robbery convictions. The original sentence for the two robberies was seven years’ imprisonment, running consecutively, although the Trial Judge reduced the overall sentence of 17 years he would have imposed to 10 years based on the totality principle, [para 86] The Appellate Court modified the sentence for the two robberies to five years to run concurrently; resulting in a global sentence of eight years less time served on remand, [para 3].

[5] JP, supra note 1, see paras 9-15.

[6] Ibid, at para 21. [emphasis added]

[7]  Ibid, at para 38.

[8] Ibid at para 46.

[9] Ibid at para 89.

[10] 2016 ABCA 246, at para 76.

[11] JP, supra note 1, at para 45.

[12] Ibid, at para 47, [emphasis in original].

[13] 2016 MBCA 50.

[14] JP, supra note 1, at para 58.

[15] Ibid, at para 61.

[16] See for example: Pei J et al, “Interventions for Fetal Alcohol Spectrum Disorder: Meeting Needs Across the Lifespan” (2016) 3 Int. J. Neurorehabilitation 1 and www.canfasd.ca.

[17] JP, supra note 1, at para 63.

[18] Ibid, at para 65.

[19] Ibid, at para 66.

[20] Ibid, at para 66.

[21] Ibid, at para 67.

[22] 74 OR (3d) 561 (2005) (CA).

[23] JP, supra note 1, at para 73.

[24] Gladue, supra note 3, at paras 64 and 65.

Snaw-Naw-As First Nation v Canada (AG), 2020 BCSC 979

Claim dismissed. It is understandable the First Nation no longer wants their reserve lands bifurcated by a railway functioning under limited use, but it is not so abandoned that “inefficient” use triggers the right of reversion.

Indigenous Law Centre
Indigenous CaseWatch Blog

The plaintiff, Snaw-Naw-As First Nation, wants a maintained railway that has bifurcated its reserve lands for decades, no longer alienated from them. The railway is located on Vancouver Island runs from Victoria to Courtenay and transects 1.3 km of the plaintiff’s reserve lands in Nanoose. The right of way is in favour of the defendant, Island Corridor Foundation [“ICF”], that currently owns and operates the railway. It is self-evident that the bifurcation of the plaintiff’s lands imposes limitations on each side and impedes access and development.

At issue is whether this 1.3 km strip of railway should remain alienated from the plaintiff as the infrastructure has deteriorated and rail service has been discontinued except for freight traffic on the Nanaimo spur line. There are circumstances where a court will find that lands held for railway purposes have ceased to be so held and as a result ownership of the right of way ends. However, no authorities have been located that holds a right of way be set aside where the owner holds the lands expressly for railway purposes, uses them for alleged railway purposes, even if in a limited way, and intends to continue to do so. Nor have authorities been found that a right of way may be set aside on the basis of something that may happen in the future.

A formal process must be undertaken to declare or designate the railway “inactive” and to apply for its closure, and there is no intention on the part of the defendant to do so. The entire railway is treated under all laws and regulations as an active railway, although such do not require that actual freight and passenger services be provided. The defendant and its stakeholders operate on the basis that the railway is open and remains active and they continue to conduct business, undertake activities, satisfy all safety regulations, and incur expenses on this basis. Therefore, the claim must be dismissed.