Gamlaxyeltexw v BC (Minister of Forests, Lands & Natural Resource Operations), 2020 BCCA 215

Appeal dismissed. The hereditary chiefs of the Gitanyow people are actively pursuing an Aboriginal title and rights claim that includes an area that overlaps with the Nisga’a Final Agreement. The concerns regard the decision of the Minister on the basis of a breach of the duty to consult. The lower court decision added an extra step to the Haida test in cases where there is an overlap between established treaty rights and ones yet unproven. The Court of Appeal rejects the need for any modification of the Haida test.

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The Appellants are hereditary chiefs of the Gitanyow people [collectively as “Gitanyow”]. The Gitanyow have an outstanding claim for s. 35 Aboriginal rights in an area described as the Gitanyow Lax’yip.

The Nisga’a Treaty sets out the s. 35 rights of the Nisga’a. It provides that nothing in the Treaty affects any s. 35 rights for any Aboriginal people other than the Nisga’a Nation. The Nisga’a Treaty established a hunting area known as the Nass Wildlife Area where the Nisga’a have non-exclusive rights to hunt. The Minister of Forests, Lands and Natural Resource Operations [“Minister”], has certain decision-making responsibilities in relation to determining the total allowable harvest in the Nass Wildlife Area and the annual management plan which regulates Nisga’a citizens’ hunting. The nature and scope of the decision-making responsibilities are set out within the Nisga’a Treaty.

The Gitanyow Lax’yip overlaps with the Nass Wildlife Area. As a result, decisions made concerning the Nass Wildlife Area may have the potential for affecting activities within the Gitanyow Lax’yip. In order to protect the rights of Indigenous groups such as the Gitanyow pending claims resolution, the Crown has a duty to consult and, where appropriate, accommodate in circumstances where the Crown has knowledge of the potential existence of an Aboriginal right and contemplates conduct that might adversely affect it. This is known as the Haida test (Haida Nation v British Columbia (Minister of Forests), [2005] 1 CNLR 72).

This appeal concerns two decisions of the Minister made in 2016 approving the total allowable harvest of moose and the annual management plan for the 2016-2017 hunting season in the Nass Wildlife Area. Prior to making these decisions, the Minister had consulted with the Gitanyow concerning the total allowable harvest, but not concerning the annual management plan.

On judicial review, the chambers judge held that the duty to consult was not triggered by the approval of the annual management plan, and that the consultation in relation to the total allowable harvest was adequate. In reviewing these issues, the chambers judge concluded that the Haida test to determine the existence of a duty to consult was not adequate to deal with the circumstance where a conflicting treaty right was at issue. She concluded that the Haida test required modification to preclude a duty to consult an Indigenous group claiming s. 35 rights when the recognition of such a duty would be inconsistent with the Crown’s duties and responsibilities to the Indigenous peoples with whom it has a treaty. It is unnecessary, however, to modify the Haida test in order to recognize the limits of accommodation that treaty rights impose. The Haida test that has been applied consistently over the past 15 years has sufficient flexibility within it to encompass these issues.

Despite the conclusion that the modification of the Haida test was unnecessary, the Court does not consider that the reviewing judge erred in her fundamental approach to the issue before her. The analysis of the chambers judge properly focused on the three-part Haida test, and in particular the third element, which asks whether the proposed Crown conduct has the potential for affecting the claimed right. This is primarily a question of fact, to be reviewed on a deferential basis. Applying the Haida test, the Minister did not err in concluding that the duty to consult was not triggered in relation to the annual management plan. The consultation undertaken by the Minister in relation to the total allowable harvest was adequate in the circumstances.

R v Kuliktana, 2020 NUCA 7

Appeal allowed. The sentence on the Appellant is altered as proposed by the joint submission. In this appeal, emphasis was placed on the role of Gladue factors to help justify a joint submission for a sentence that appeared to be lower than appropriate. Inferences were made in the absence of direct information, as a Gladue Report was not available.

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The Appellant, a 27-year-old Inuk man from the Hamlet of Kugluktuk, in the Kitikmeot Region of Nunavut, entered guilty pleas to one count of assault and one count of unlawful confinement. The Crown elected to proceed by summary conviction on both counts and pleas were entered after resolution discussions. The joint submission for a fit sentence was 120 days in custody, less credit for the 58 days the Appellant had spent in pre-sentence custody to that date, leaving 33 days to serve along with a probation order of 12 months.

The sentencing judge resisted the joint submission and called upon counsel to provide more information and a more elaborate rationale. The Appellant remained in custody in the meantime for almost 3 months. The sentencing judge then rejected the joint submission and imposed a sentence of imprisonment of 180 days on the count of assault which he described as “time served” and 60 days concurrent on the count of unlawful confinement also described as “time served”. In addition, the sentencing judge directed a probation order for a period of 12 months, with conditions, including performance of 50 hours of community service work.

The Appellant on this appeal submits that his sentence has been completed, but that his appeal is not moot because the entry on his criminal record will be higher than it should have been. The Appellant had an unstable childhood due to his family’s inability to settle in one community. He has a significant criminal record, including convictions in 2014 and 2015 for analogous “domestic assault” offences. His counsel attributes the Appellant’s criminal record at least in part to the criminogenic factors of alcohol and a lack of stable housing.

Regrettably, there was no Gladue report prepared to further illuminate what other factors may have contributed to his difficulty in maintaining a prosocial conduct pattern (R v Gladue, [1999] 1 SCR 688). It has been said repeatedly that this type of information is not to provide a special exemption in sentencing but rather is directly related to locating a proportional sentence having regard to the gravity of the offence and the degree of responsibility of the offender under s 718.1 of the Criminal Code. It is an error to proceed on the basis that Gladue factors do or do not justify departure from a proportionate sentence (R v Swampy, 2017 ABCA 134). Rather, they direct the sentencing court’s attention to circumstances that help to identify a proportionate sentence.

In this instance, it is a matter of conjecture as to what influence more Gladue information might have had on counsel or the Court. But it is possible to draw some inferences from what was provided about the Appellant’s circumstances. Often it is a matter of common-sense inference as to how the offender’s life has reached the point where the offender’s reactions to problems tends to breach social norms. In determining whether a proposed joint submission sentence for an offender seems unfit, the sentencing court should consider how Gladue factors might fit in to the situation.

When the Crown chooses to enter into a plea arrangement with an offender (by counsel) that is a solemn business, and it is not just clearing court backlog in some bureaucratic sense. Whether a sentencing court should harbor doubt about the utilitarian benefits of plea agreements and joint submissions, there cannot be similar doubt about the linkage between the Crown taking a consistent, reliable and predictable position and the Rule of Law.

The sentencing judge’s mention of what he felt did not reconcile the joint submission with his unexplained conceptualization of a fit sentence for the Appellant’s crimes came down to rejection of the joint submission on a basis subjectively held by him. It was not a manifestation of the principled override of a joint submission contemplated by, or consistent with, the guidance and policies in R v Anthony-Cook, 2016 SCC 43. Accordingly, the failure of the sentencing judge to explain what was wrong with the joint submission was a flaw with more than one dimension. It is not discernible what, if any, comparators or prior authority or guidance the sentencing judge was relying on, and it would not have been a demonstration of “public interest” error if the only discrepancy of the joint submission were that it did not fit the sentencing judge’s own practice.

Canadian Natural Resources Limited v Elizabeth Métis Settlement, 2020 ABQB 210

Application allowed. A Métis community’s Property Tax Bylaw is quashed as it is unlawfully enacted and unreasonable in substance.

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Elizabeth Métis Settlement [“Elizabeth”] is a small Métis community on the eastern edge of Alberta. In 2019, Elizabeth levied property taxes amounting to 187% of assessed land value on four natural resource companies whose lands comprise virtually its entire taxable base. Elizabeth explained that its unusual procedures in enacting it were justified by a looming financial emergency, and that the context of Alberta’s Métis settlements uniquely informs the question of what constitutes a reasonable rate of taxation in this situation.

In 1984, a movement began towards securing lands to support Métis communities in Alberta attaining self-governance. This consultation ultimately led to the Alberta-Métis Settlements Accord in 1989. This framework agreement and related legislation created eight Métis settlement [“Métis Settlements”] and granted fee simple title to those lands to the Métis Settlements General Council [“MSGC”]. This process also led to the incorporation of the Métis people in the Constitution of Alberta Amendment Act, which recognized that the Métis people were to gain self-governance, and protected their land base with the specific stated aim of preserving and enhancing Métis culture and identity. The Métis Settlements Act [“MSA”], was brought into force to provide a structure of delegated authority by which these communities could govern themselves individually, and collectively through the MSGC.

The top level of Métis governance established by the MSA is the MSGC. This umbrella body creates policies from which each of the Settlements derive sub-delegated authority to run their own communities. The individual Métis Settlements, in practice, operate at a quasi-municipal level. While their existence has a deeper social, cultural and historical underpinning than ordinary municipal corporations, they perform many of the same functions of a local municipal government common to municipalities across the province. Similar to municipalities, the sole source of tax revenue for the Settlements is through property taxation. Due to the structure of land holding on the Settlements, however, Elizabeth appears to have only four taxpayers, including the Applicants in this case.

Métis Settlements first gained independent taxation powers in 1997. Prior to that, any taxation was subject to direct ministerial approval. MSGC policy defines the parameters of Settlement taxation powers and the process for property assessment. Each Settlement in turn is left to pass its own property tax bylaw. In 1997, the MSGC enacted a tax policy to establish a fair, orderly, and equitable system by which those who use land in a Settlement area for business purposes can be required to contribute a fair share, based on valuation or agreement, to the cost of maintaining a viable Métis community in the Settlement area. The 1997 policy permitted Settlements to make annual business property contribution bylaws, and levy property tax based on the deemed value of land holdings, with a cap tax rate.

In 2019, the basis and structure of property taxation within the Métis Settlements changed fundamentally. The MSGC revoked the 1997 policy and replaced it with a new instrument called the Métis Settlements General Council Property Taxation Policy 2018 [“Tax Policy”]. There was no cap identified on Settlement property tax rates and no mention of “fair, orderly, and equitable” contributions being required by businesses operating on Settlement lands. The Tax Policy specified a new formula by which the tax rate was to be calculated. It is based on dividing its total budget by the value of its assessed taxable base. Each Settlement was to determine its tax rate by dividing its budget by the total value of its tax base.

The net result of the Amended Budget, by operation of the formula was to increase the total property tax bill levied against the four Applicants from $624,692.44 to $25,000,733. In short, it increased the Applicants’ property tax bills 40-fold. This additional $24.4 million from the Applicant taxpayers was allocated to repair or replace virtually all infrastructure at the Elizabeth Settlement, including $75,000 in repairs and renovations to each and every residence in the community.

There is no evidence that Elizabeth considered the economic impact or viability of this rate of taxation. This includes a complete absence of discussion on whether taxes in this amount could possibly be paid, and what the economic and legal impact on the subject landowners would be. The Applicants were never given an opportunity to provide an economic analysis of the impact of this level of taxation on their operations and their ability to continue owning their land interests in Elizabeth. The Supreme Court of Canada has repeatedly affirmed the common law right of citizens to seek judicial review of municipal bylaws taxing their property (Catalyst Paper Corp v North Cowichan (District), 2012 SCC 2).

Métis Settlements are not completely analogous to municipal governments. They may well be afforded different and greater range in decision-making that touches upon the core animating values that underlie their existence, namely the preservation and promotion of Métis culture and society. That said, when Settlements levy property tax, they perform a function virtually indistinguishable from municipal governments, and derive their authority to do so through a similar process of sub-delegation. Moreover, the power they exercise in this capacity is no less impactful on the people against whom it is used.

Even if the Property Tax Bylaw was upheld in the face of its procedural defects, it is substantively unreasonable and must be quashed on that basis. Although unreasonable, it did not come about in a vacuum. The evidence in this case also showed that Elizabeth’s infrastructure need is very real, and that the stated aim of creating self-sufficient Métis communities has been thwarted by chronic capital underfunding.

The Court finds the impugned Property Tax Bylaw is the product of Métis frustration with the failure to achieve this objective. Ironically, the lack of adequate capital funding for Métis Settlements, or a viable model for the Settlements to raise capital funds through economic benefits derived on their territory, has driven Elizabeth to enact a measure that would severely, if not fatally, impair its ability to attract the investment it needs to develop a viable tax base in the future.

R v Itturiligaq, 2020 NUCA 6

Appeal allowed. The mandatory minimum punishment of imprisonment of four years is not a grossly disproportionate sentence for this offence and this offender.  The Indigenous accused is now finished the custodial portion of his sentence and is well into his probation, therefore the sentence of imprisonment is stayed.

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A 24-year-old Inuit man and traditional hunter for country food, who had lived his entire life in Nunavut, intentionally fired his hunting rifle at the roofline of a house he knew to be occupied. The single bullet exited the roof and caused no injuries. He was charged with intentionally discharging a firearm at a place, contrary to s 244.2(1)(a) of the Criminal Code.

The accused was interviewed by the RCMP and took full responsibility for his actions. He told police that on the day of the incident he had been upset that his girlfriend had not been spending enough time with him and their small daughter. He was angry that she had gone to her friend’s place without telling him and that she refused to leave with him. He told police that he only took one shot and was not trying to aim the gun at anybody, as he knew that he is not supposed to do so.

No formal Gladue report was prepared, but it is clear that some Gladue factors were relevant to the accused’s background. He and his family described that he had a good upbringing. The accused had no known history of residential schooling in his family’s background. He was in good physical health, save a hearing deficit and the need for hearing aids, a condition also shared by his father. While history of colonialism and its intergenerational effects must be acknowledged, the Gladue factors in this case do not operate to significantly diminish the high level of moral culpability underlying this offence.

The accused, who had no criminal record, entered an early guilty plea. He successfully challenged the constitutionality of the mandatory minimum punishment, on the basis that it violated s 12 of the Charter (R v Itturiligaq, 2018 NUCJ 31). The accused was ordered a custodial sentence of slightly less than two years, with credit for pre-trial remand, followed by two years probation.

The Crown appealed the sentence imposed on the accused as demonstrably unfit, and the court’s declaration that s 244.2(3)(b) is unconstitutional. While not joined, this appeal was heard at the same time as the oral hearing in R v Ookowt, 2020 NUCA 5 [“Ookowt”], which also involved a declaration that s 244.2(3)(b) was unconstitutional pursuant to s 12 of the Charter. As stated in Ookowt, both of these appeals arose as a result of young men resorting to the use of hunting rifles in response to what they believed to be personal slights or problems in their personal lives. The appeal is allowed, and the court’s declaration of s 244.2(3)(b) is set aside.

R v Ookowt, 2020 NUCA 5

Appeal allowed. The declaration of unconstitutionality of a mandatory minimum sentence imposed by the sentencing judge is set aside, and a four-year penitentiary term is substituted. Significant time has elapsed since the Indigenous accused was sentenced – and who now has finished that sentence, therefore the sentence of imprisonment is stayed.

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A 19 year old Inuit man, in retaliation for being bullied, fired a bullet into a house, which shattered a window and missed striking a man by inches. The accused entered a guilty plea to intentionally discharging a firearm into a place knowing that or being reckless as to whether another person was present, contrary to s 244.2(1)(a) of the Criminal Code. The mandatory minimum sentence for this offence is four years.

At the sentencing hearing, a Notice of Constitutional Challenge was filed by the Defence arguing that the mandatory minimum sentence was grossly disproportionate to a fit sentence for this offence and this offender, contrary to s 12 of the Charter. The sentencing judge determined that a fit sentence for the accused was two years less one day, plus one year of probation, and the imposition of the mandatory minimum sentence in this case would result in a sentence that is double the appropriate sentence (R v Ookowt, 2017 NUCJ 22). The Crown appeals to this Court, contending the sentencing judge failed to properly assess the gravity of this offence and that the accused’s conduct warranted the four year mandatory minimum sentence.

It is common for those who live in Nunavut’s communities to own rifles. They are used for subsistence hunting, supporting a traditional way of life. Sadly, this also means they are often readily accessible for unlawful and dangerous purposes such as intimidation, revenge, domestic violence, and retaliation.

This Court concludes that the sentencing judge committed errors in principle by imposing a disproportionate and demonstrably unfit sentence. Further, it is concluded that the four year mandatory minimum sentence under s 244.2(3)(b) is not a grossly disproportionate sentence for this offence and this offender. The Court sets aside the sentencing judge’s declaration that the imposition of the four year mandatory minimum sentence would breach the accused’s s 12 Charter rights.

In the Court’s view, the sentencing judge underemphasized the accused’s high moral blameworthiness for this offence, and overemphasized intoxication, bullying and Gladue factors. As a result, the sentencing court failed to give sufficient weight to denunciation and deterrence in reaching a sentence that was ultimately disproportionate and unfit in all of the circumstances. The sentencing judge did not provide any persuasive reasons for imposing a sentence that did not address the well-established seriousness of this firearm offence, and failure to do so was an error (R v Mala, 2018 NUCA 2). In sum, an offender who commits the offence of intentionally discharging a firearm into a place, knowing or being reckless as to whether anyone is in that place, is guilty of significant morally blameworthy conduct.

The accused’s admitted act of “extreme premeditated violence is completely disproportionate to any reasonable and measured response to the bullying he suffered”. It was sheer luck that his bullet did not hit and kill either of the two men in the house, only one being the target of his “warning”. Gladue considerations do not significantly reduce the accused’s moral blameworthiness in this matter (R v Swampy, 2017 ABCA 134).

The trial judge found the accused did not have a disadvantaged upbringing, nor does there appear to be a history of family violence, displacement, residential schooling or “constrained circumstances” (R v Ipeelee, [2012] 2 CNLR 218). Rather, the accused enjoyed a culture-centred and close family upbringing throughout his life. He is both intelligent and educated, communicating in both English (written and oral) and Inuktitut (oral). He opted to leave formal schooling to pursue his vocation as a traditional hunter, earning a living from the land by selling furs and supporting his family and community with the country food he harvested, and by keeping their machines and dog teams in good order. While a history of colonialism must be taken into account, including substance abuse and suicide in this matter, it is difficult to identify any background factors that greatly diminish the accused’s moral blameworthiness for this serious firearm offence, at least to the extent found by the sentence judge to “temper the usual deterrence sentence” by more than two years.

R v Kapolak, 2020 NWTTC 12

The NWT Territorial Court found a provision for sexual assault against a minor under the Criminal Code to breach s 12 of the Charter and therefore declined to apply it and ordered a conditional sentence for an Inuk offender with FASD.

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This decision bears in mind the cognitive challenges associated with FASD with the Indigenous accused. It had to balance between the protection of Indigenous victims and the need to implement the Gladue principles for Indigenous offenders. Like provincial courts, the territorial court cannot strike down any provisions but it may become a persuasive precedent for other courts in the territories and elsewhere.

This case involved a single incident, and the victim suffered no apparent injury. This was a bold act, committed on a residential street, in the daytime, as opposed to a surreptitious act committed behind closed doors, on a sleeping victim, or in a context where the victim is physically isolated and cannot get away from the perpetrator. The victim initially did not feel threatened by the accused, because she was familiar with him, and likely because of his diminutive size and almost child-like appearance. But the accused then touched the victim’s body many times and in many places, and he failed to disengage when prompted verbally by her. She had to resort to physical violence to make him stop. This was a crime of opportunity, committed on impulse. The victim was in foster care at the time of the incident. She did not file a Victim Impact Statement, but it is inferred that she is from Inuit ancestry from her name.

Because the mandatory minimum sentence of imprisonment for six months applies to all offenders having committed any form of sexual assault on a victim aged anywhere between 1 day and 16 years, it is vulnerable to Charter scrutiny. Imposing a sentence of six months in jail on this accused who is a first offender when there are many mitigating factors and when the circumstances of the offence, while being serious, are not too egregious, is fundamentally unfair and as a result, disproportionate. As a result, the accused’s right to be protected against cruel and unusual treatment or punishment is infringed by the mandatory minimum punishment found at section 271(b) of the Criminal Code. The provision is not saved by section 1 of the Charter, and accordingly the mandatory minimum punishment is declined.

The presence of an intellectual disability that affects the accused’s cognitive functions makes it difficult to assess the risk to reoffend. Although present, and in light of other circumstances, the risk is not viewed as high, or determinative. However, the offence of sexual assault is prevalent in Northern communities, 5.3 times the national ratio in 2017. The accused’s early guilty plea is highly mitigating, as it spared the victim from having to testify in court.

The personal circumstances of the accused, which include the diagnosis of Alcohol-Related Neuro-Developmental Disorder, suggest a reduced moral blameworthiness. For a first offender, sentencing usually focuses on rehabilitation. There is nothing to say that a community-based sentence would not work for this accused. The risk to reoffend that this accused presents because of the impulsivity associated with his condition, as well as his intellectual limitation, is compensated by the fact that he benefits from family support. He has a home in which supervision may occur, and he has shown that he is able to comply with conditions.

For an offender with challenges to his executive functions, repetition of instructions, structure, and professional follow-up, appear to be key. A carefully crafted conditional sentence order can bring the necessary restrictions to a person’s freedom while providing rehabilitative tools, and thus achieve deterrence.

The Supreme Court of Canada determined that the standard for finding that a sentence represents a cruel and unusual punishment is that it be grossly disproportionate. An option to preserve the constitutionality of offences that cast a wide net is to provide for residual judicial discretion to impose a fit and constitutional sentence in exceptional cases (R v Lloyd, 2016 1 RCS 13).

In this case, the offender presents with cognitive challenges, and is sentenced more than one year after the commission of the offence. The immediate link between consequence and cause may be lost and as a result a sentence of imprisonment may not achieve the necessary deterrence. Reducing the over-incarceration of Aboriginal offenders is as important an objective as that of protecting vulnerable victims, and must be given equal consideration. The accused is to serve a conditional sentence of imprisonment of 120 days, to be followed by a period of probation of 18 months.

R v Campbell, 2020 NUCJ 28

The fact that programming is on hold during the pandemic is taken into account with sentencing in two ways: 1) in determining how much credit to allocate based on pre-trial custody; and 2) in assessing a fit term for a prison sentence, as collateral consequences of any period of incarceration that would make it harsher.

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In Nunavut, and elsewhere, it seems like most Indigenous programming in prison has been put on hold for months, including the examples of Elder counselling and family visits. Mr. Campbell plead guilty to a string of charges all committed in Iqaluit. A Pre-Sentence Report was ordered. Unfortunately, the date for his sentencing was cancelled by the COVID-19 pandemic effect on the operation of Court Services.

Following his time in custody, Mr. Campbell will be given a probation order for 18 months, to help his rehabilitation. In assessing his sentence, the Court considered the fundamental principle that the sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender. Over a period of almost six months, Mr. Campbell assaulted five separate individuals in four separate locations across Iqaluit, from well-known businesses to private residences. Each individual offence was relatively low on the gravity scale. However, two of the offences are statutorily aggravating because of the young age of one victim and the domestic nature of the previous relationship with another victim.

The Court must also consider the purpose of sentencing set out in s. 718 which is to impose just sanctions that have one or more of these objectives: denunciation, deterrence of the offender and others, separation if necessary, rehabilitation, reparation and promoting a sense of responsibility in offenders. Mr. Campbell’s guilty plea shows he is taking responsibility for these offences and intends to work on rehabilitating himself. The pre-sentence report outlined some Gladue factors that also need to be considered in this case, per s. 718.2(e).

Mr. Campbell has now been in custody for a little over five months and is entitled to credit for that time. The issue is whether and how to account for the effect of COVID-19 on prison conditions and what, if any, sentencing considerations should be made on account of such conditions. Time in custody during the current pandemic, depending on public health and geographic realities, may be harsher time in custody than usual. This is so not only because authorities have put in place restrictions to try to keep inmates safe, but also because of the general uncertainty about the present and future wellbeing of individuals and society.

These changes due to the pandemic are to protect inmates and staff at the institution, where public health measures such as social distancing are not readily available. Protecting the inmates and staff then also protects the public in Iqaluit. The measures are imposed even though the Territory continues to be “COVID free” because that status could change at any time. In Nunavut where programming is often available for prisoners, punishment is also increased by loss of programs as well as family visits. These restrictions will continue going forward.

Mr. Campbell’s time spent in custody will be harsher for an unknown period of time. He has been given the maximum allowable amount of credit for his pre-sentence custody. In these circumstances, it is appropriate to reduce Mr. Campbell’s sentence going forward by 60 days because of the harsher conditions of his incarceration.

R v Colligan, 2020 BCSC 1139

Rehabilitation can be critically important even for an offence where denunciation and deterrence warrant the most weight. Despite some aggravating circumstances, the Court decided that a conditional sentence was appropriate after considering Gladue factors.

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Mr. Colligan was charged with three counts of trafficking cocaine but did not appear in court for his trial. A warrant was issued and executed for his arrest. He entered guilty pleas and was then released on bail, by consent. Currently, Mr. Colligan has completely turned his life around. That is commendable but the fact that he did so while on the lam presents a challenge at the sentencing stage. As well, the illicit sale of cocaine, particularly by way of dial-a-dope operations, takes a terrible toll on individuals and the community.

This Court has the benefit of a detailed and thoughtfully prepared Gladue report. Mr. Colligan self-identifies as Métis. His childhood was marred by trauma and instability. His mother was apprehended for neglect, and became involved with his father when she was a teenager. Mr. Colligan’s father was a drug-addicted member of the Hell’s Angels. He was emotionally, physically and sexually abusive to his mother. Mr. Colligan’s mother became an alcoholic. Mr. Colligan witnessed his father’s abuse of his mother, which culminated in a horrifying attack when he was five years old. He jumped on his father during the attack and ended up being covered in his mother’s blood. His father was charged with attempted murder and fled.

Following her separation from a second partner, Mr. Colligan’s mother reached out to social services for help, hoping it would be temporary. Mr. Colligan was removed from his mother’s care and placed in a series of private foster homes and group homes until he aged out of foster care. Mr. Colligan grew up feeling abandoned by his mother. He himself has had children from different partners, whom he does not have a relationship with.

While on the lam, Mr. Colligan had accumulated an unenviable criminal record consisting of seven youth and 15 adult convictions. However, he broke away from all negative associations when he developed a healthy relationship with his current partner, who now have two young children. Mr. Colligan began attending NA and AA meetings. He found employment in the oil industry and has been steadily employed since that time. As of the date of the sentencing hearing, he was working as a well site supervisor with a production testing company and had an annual income of $180,000. He is the sole income earner for his family. He works in a drug-free environment and is subject to mandatory drug testing. After some initial set-backs, with the support of his family, NA, AA and some counselling funded by his employee assistance program, Mr. Colligan has been clean and sober for a number of years.Mr. Colligan’s self-reports of his changed lifestyle are supported by a number of letters of support from his partner, friends and co-workers.

Mr. Colligan is disconnected from his Métis heritage. That was the goal of Canada’s historic assimilationist policies. Looking forward, Mr. Colligan hopes to connect with his Métis heritage. He has applied for a Métis citizenship card. He hopes that understanding more about his heritage and culture will help him to build his self-esteem, re-instate his value system and continue to lead a pro-social life.

In this case there are a number of aggravating factors. Mr. Colligan has a significant prior record, including convictions for possession for the purpose of trafficking. Mr. Colligan committed the offences at issue shortly after completing his 14-month custodial sentence for his prior trafficking convictions. He was a principal participant in an active and ongoing dial-a-dope operation, that demonstrates a level of sophistication in the operation. As well, Mr. Colligan evaded justice for almost six years.

The case law clearly establishes that denunciation and deterrence are the primary sentencing principles in a case such as this. A fit sentence must recognize the particularly harmful effects of trafficking cocaine by way of dial-a-dope operations and discourage flight from justice. At the same time, the Court must not lose sight of the importance of rehabilitation in providing for the long-term protection of the community. Canada’s assimilation policies have had a profoundly negative effect on Mr. Colligan and his family. As a result, Mr. Colligan developed a drug addiction that led directly to his past criminal lifestyle. He has overcome many hurdles and barriers to completely turn his life around and is now taking responsibility for his actions.

While Mr. Colligan must be punished for his offences and not rewarded for absconding, he is in the process of breaking the cycle of intergenerational trauma and dysfunction that has so negatively affected so many Indigenous families, including his own. Sending Mr. Colligan to jail would leave his children without their father for a significant period of time and vulnerable to poverty and dislocation. A highly restrictive conditional sentence is ordered of two years less one day and will adequately address denunciation and deterrence, particularly in view of Mr. Colligan’s reduced level of moral blameworthiness.

Hele c Canada (AG), 2020 QCCS 2406

This is a significant new case on how to approach the provisions for Indian status under s 6 of the Indian Act. Among other things, the Court clarifies how the honour of the Crown applies to the interpretation of the Indian Act to disfavour the legality of enfranchisement. This decision may have significant implications for how applications for Indian status are processed.

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The present statutory appeal is from a final decision of the Indian Registrar of Aboriginal Affairs and Northern Development Canada. That decision refused to recognize a 9 year old child, Annora Daphne Hele as an Indian.

The discriminatory policy known as “enfranchisement”, involved the renouncement personally and on behalf of descendants, living and future, of recognition as an “Indian” including its certain rights and benefits. In return, one gained full Canadian citizenship and the right to hold land in fee simple. The policy used to be the cornerstone of the Canadian federal government’s assimilation blueprint relating to Aboriginal peoples. Enfranchisement was not a policy desired by Indians and was ultimately abolished in 1985. Parliament has since enacted remedial provisions to address some of the consequences of that oppressive process but certain descendants of enfranchised Indians continue to suffer its aftereffects.

The issue at the heart of this appeal is the interpretation of a subsection of a male-centric Indian Act, 1952 [“1952 Act”]. In debate is the meaning of the words, “an Indian” and “the Indian and his wife and minor unmarried children” found in subsection 108 (1), which cannot be understood without taking into consideration the entire section, the 1952 Act in both English and French, and the history of the Indian Act as a whole. The two versions of the Act are authoritative, the words of both English and French (translated verbatim) must be examined to understand the intention of the legislature.

When a court is called upon to interpret a statute, particularly one relating to the Aboriginal peoples, in addition to adopting a straightforward non-technical liberal purposive approach that resolves doubts or ambiguities in their favour, it should not engage in carrying out its task in a vacuum devoid of all realities before it. In interpreting a historic legislation such as the Indian Act that contains oppressive provisions, such as subsection 108 (1) of the 1952 Act, the court should not engage in merely an academic exercise.

Subsection 108 (1) was resorted to in 1965 to voluntarily enfranchise Annora’s paternal grandmother, Margaret Laura Hele. At the time, Margaret was twenty-five years old, educated, self-sufficient, and not yet married. She spent several years teaching in a number of cities in northern and southern Ontario. After she left the reserve, Margaret’s mother began to receive calls and visits from band councillors demanding to know why Margaret was not filing for enfranchisement. These councillors insisted that Indian women who had either married or who were going to marry a non-Indian in any event could no longer retain the right to be a member of the band. Conceding to the pressure, Margaret voluntarily enfranchised. Four years later, Margaret married a non-Indian Canadian. Despite the applicable legislation, this marriage had no effect on Margaret’s Indian status as she was by then already voluntarily enfranchised. Had Margaret not been enfranchised, she would have lost her Indian status by operation of law on the day of her marriage.

In 1985, due to compelling social and political reasons, section 108 of the 1952 Act was repealed and enfranchisement in Canada was abolished. Margaret filed to be registered as an Indian, and for her children living with her. In 1987, as a result of the amendments to the 1985 Act, their Indian status was restored. Shortly after Annora’s birth, the Appellant, filed an application with the Indian Registrar to register her as an Indian. The Indian Registrar refused to register Annora as an Indian based on the provisions of the 1985 Act. The Appellant then filed a protest of the Indian Registrar’s decision pursuant to section 14.2 of the 1985 Act. The main ground of protest was that in 1965 the Governor in Council had no competence under the 1952 Act to enfranchise Margaret, who was an unmarried Indian women.

The Indian Registrar concluded that since Margaret had been enfranchised voluntarily pursuant to section 108 of the 1952 Act, Annora was not entitled to be registered as an Indian. Had Margaret lost her Indian status four years later as a consequence of her marriage to Laurence, there would be no second generation cut-off under the 1985 Act, and the answer would be different.

The only relevant issue before this Court is the correctness of the Indian Registrar’s decision. The question that requires an answer in this appeal is whether subsection 108 (1) of the 1952 Act permits the voluntary enfranchisement of an unmarried Indian woman? The Court’s answer to the above question is no. Subsection 108 (1) of the 1952 Act did not permit in 1965 the enfranchisement of Margaret who was an unmarried Indian woman. The same conclusion holds today when subsection 108 (1) is examined in light of modern interpretive rules and the current socio-political context. There is no ambiguity in the text or language of subsection 108 (1) as they are not reasonably capable of more than one meaning when considered in their entire context.

Enfranchisement was never a right even though historically it was viewed as a privilege. Enfranchisement, which used to be the cornerstone of the Canadian federal government’s assimilation policies towards Aboriginal peoples, was abolished in 1985. The federal government today would not pass a law that would encourage or allow Margaret to enfranchise herself. It would be mistake in law today to interpret subsection 108 (1) of the 1952 Act as allowing Margaret to enfranchise herself voluntarily in 1965.

Sections 108 and 109 of the 1952 Act, as amended in 1956, are the only statutory provisions that existed and applied to Margaret at the time she was enfranchised in 1965. Neither section permitted in 1965, nor does either section permit today, the voluntarily enfranchisement of Annora’s grandmother, Margaret, as an Indian.

The Indian Registrar decided incorrectly when she concluded “that prior to 1952 the Indian Act was amended to allow men or women over the age of twenty-one to enfranchise.” The Indian Registrar therefore erred in law, when she concluded in 2017 that the Governor in Council had the power to enfranchise unmarried Indian women pursuant to subsection 108 (1) of the 1952 Act, and when she rejected the Appellant’s protest application to register Annora as an Indian on that basis. Annora’s request filed through her father is granted and this matter is returned to the Indian Registrar to modify in the appropriate registry records the notation that Margaret Laura Hele was voluntarily enfranchised by Order in Council.


R v McKay, 2020 MBQB 106

The Gladue analysis in this sentencing decision included attention to both the systemic and background factors of the Indigenous offender and his victim, which in this case were significant and central enough to make rehabilitation the key sentencing principle.

Indigenous Law Centre – CaseWatch Blog

Mr. McKay, a young Indigenous man from Berens River First Nation, a remote settlement 300 km by air north of Winnipeg, pled guilty to manslaughter. Upon returning home extremely intoxicated, he severely beat his mother who did not recover from her injuries and died months later. During the time she was comatose in a Winnipeg hospital, he was overheard at her bedside, sobbing and saying he was sorry. A stepbrother confronted him and Mr. McKay admitted he had hurt his mother. After her death, he was arrested a month later. He told police that he had hit her with a “glass thing”, and could not say why he attacked her.

This decision deals with setting a fit and appropriate sentence for Mr. McKay for this crime, in these circumstances. A Probation Services Pre-sentence Report [“PSR”] and an independent Gladue report was ordered, which in part connected Canada’s historical treatment of Indigenous peoples to Mr. McKay and the killing. It is well accepted that the Government’s role, since the early days of dealing with First Nations peoples, has had the effect of isolating, infantilizing, marginalizing, and traumatizing Indigenous societies like the Ojibwe (or Anishinaabe) of Berens River. These effects on Mr. McKay’s traditional community set the context for his life and experiences.

Mr. McKay’s upbringing was horrible. He has 12 brothers and sisters that were often raised in foster homes. Intermittently, he would be returned to the custody of his mother and father, but his relationship with his family was fractured. His parents struggled with alcohol and sniffing, which he ultimately started at age 13. He is not close to his brothers or sisters, some of whom have died. Family empathy and support is non-existent. Mr. McKay’s father died of alcohol abuse, and they were not close. Mr. McKay and his mother were very close, and supported and depended upon each other. He loved her and is deeply affected by having killed her.

Mr. McKay was formally diagnosed with partial Fetal Alcohol Syndrome (“pFAS”) at 24 months. He continues to suffer physical, cognitive and intellectual disabilities. Child and Family Services files indicate that Mr. McKay was neglected because of the family’s chronic alcohol addiction, solvent sniffing, domestic abuse and family violence. He would often be the target of teasing and beatings by his brothers, and even now has been threatened by some siblings, who say they would kill him if he returned to Berens River. For the most part, while Mr. McKay has been in custody since his arrest in October 2018, he has done well, including taking many programs. Importantly, he wants a good future but does not have a real idea or plan of how to get there.

A sentence imposed on an accused for a serious crime should be tailor-made in the sense that, mindful of principles of sentencing, it is appropriate to the circumstances of the offence and the particulars of the offender. The critical issue is to determine a sentence that would benefit and protect the community, as well as provide the best prospects of rehabilitation for Mr. McKay. Gladue factors loom large, which affect the assessment of moral culpability for this grievous offense. His moral blameworthiness is high, but not as high as it would otherwise have been but for Gladue factors, including his pFAS. In balancing all of the factors, rehabilitation must be an overarching concern. While denunciation and deterrence are important factors, they are moderated by the unusual circumstances here.

Mr. Kay is sentenced to 50 months of incarceration, from which 26 months’ time-in-custody credit shall be deducted for a go-forward custody sentence of 24 months less one day, as well as three years of supervised probation with conditions.