Monthly Archives: August 2020

JE and KE v Children’s Aid Society of the Niagara Region, 2020 ONSC 4239

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Application for judicial review allowed. The Board’s conclusion to deny adoption by the Applicants was unreasonable. The best interests of the Child, who is identified as Métis, require that she not be uprooted from the only family she has ever known.

Indigenous Law Centre
Indigenous CaseWatch Blog

This is a successful application for judicial review from the Child and Family Services Review Board in Ontario [“Board”]. The three year old child in question [“Child”], upon her birth, was apprehended almost immediately by the Children’s Aid Society of the Niagara Region [“the Society”] and she was placed with approved foster parents, KE and JE [“the Applicants”]. KE and JE applied to the Society to adopt the child. DC-G and MG [“the Respondents”] also applied to adopt the Child. Neither family had any biological relationship to the Child although DC-G and MG had previously adopted two of the biological mother’s seven children by different fathers.

The Society’s investigation of the biological father raised the possibility that his paternal grandmother had been associated with Québec Métis. On further enquiry, the paternal grandmother advised the Society that she believed her father had “Indian blood” but this had never been confirmed and her parents were dead.

The Society approved the application of JE and KE and declined the application of DC-G and MG. The Society regarded the continuity of care and averting the risk of harm from disruption by moving the Child to another family, when there were no care-based reasons for doing so, as the dominant and overriding considerations in this case. DC-G and MG brought proceedings before the Board seeking to review the Society’s decision. The Board reversed the Society’s decision and directed the Society to place the child for adoption with DC-G and MG.

The Applicants are white, live in Ontario and are members of a Mennonite Brethren church community. The Respondents are also white, live in Ontario and are members of the Roman Catholic church. Neither faith has a particularly open or positive attitude toward LGBTQ issues, although both sets of parents applying to adopt the Child were clear that they would love and support the Child regardless of her eventual sexual or gender preferences.

It is obvious, given the evidence, that the Child would, as submitted by the Society, wish to remain with the only parents and family she had ever known rather than be uprooted and sent to live with strangers. While the weight to be given to this view would have been up to the Board, it was unreasonable not to consider the Child’s view at all. There was uncontested evidence before the Board that the Child had, over the course of three years living with the Applicants, developed a strong bond with the Applicants, their seven year-old son and the Applicants’ extended family. It was also uncontested that the Child had never met, or knew of the existence of, the Respondents or their adopted children. The Respondents suggested an openness to maintaining a relationship with the foster sibling, but there was evidence of openness on the Applicants part to maintain a relationship with the Child’s half-siblings also, which was not considered.

The Board belittled the Applicants’ efforts to learn about Métis culture as doing the “bare minimum,” but ignored the fact that the Respondents, on the evidence, had done effectively nothing prior to the hearing to learn anything about Métis traditions. In contrast, the Board relied exclusively on the Respondents’ prior involvement with Algonquin culture regarding one of their already adopted children. But, the burden of the Act is to recognize the distinct heritage and culture of Aboriginal peoples. First Nations, Inuit and Métis people are distinct peoples and the Board’s decision failed to recognize this (LE v Simcoe Muskoka Child Youth and Family Services (CFSYA s 192), 2019 CFSRB 86). As well, the Respondents’ education and adoption of Algonquin culture appears to have been developed over time after they had adopted their Algonquin-affiliated child. The Board, in taking the approach it did, held the Applicants to a standard that, by its own terms, was not met by the Respondents.

This Court found that the Board put too much emphasis on one couple’s past support of an Algonquin child that they had adopted. This was seen as “super-weighting” the relevance of Indigenous identity to adoption, which the Court found to be an inappropriate interpretation of Ontario’s current legislation (amended in 2017). It also bears emphasizing, given the Board’s approach to this case, that these mandatory and discretionary factors are not just abstract concepts; the extent of their applicability in a particular case must be rooted in an assessment of the evidence. They also noted that this was relatively unrelated to the alleged Quebec Métis heritage of the Child since the new legislation requires a distinction-based approach.

DG v Attorney General (Canada), 2020 BCCA 197

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Appeal dismissed. This decision deals with the outer boundaries of the Indian Residential Schools Settlement Agreement, which does not extend to a consensual relationship between a staff member and a non-student daughter of another employee. 

Indigenous Law Centre – CaseWatch Blog

This appeal asks whether a supervising judge under the Indian Residential Schools Settlement Agreement [“IRSSA”] erred in declining to intervene in a decision denying the appellant compensation for alleged sexual assault. The Court is of the view that the judge correctly held that she did not have jurisdiction to grant the relief sought. The appellant did not establish that the impugned decision failed to apply the terms of the IRSSA, which is the basis on which she sought judicial recourse.

The IRSSA is a contract negotiated between various stakeholders that established a process for the resolution of claims arising from the long and tragic history of abuse suffered by thousands of Indigenous children who attended Residential Schools across Canada (Fontaine v Canada (Attorney General), 2019 BCCA 246).

The IRSSA [“IAP Model”] recognizes three forms of “compensable abuse”: 1) sexual and physical assaults arising from or connected to the operation of an Indian Residential School that were committed by adult employees of the government or church entity operating the school, or other adults lawfully on the premises; 2) sexual and physical assaults committed by one student against another; and 3) any other wrongful act(s) committed by adult employees or other adults lawfully on school premises and proven to have caused serious psychological consequences for the claimant.

Collectively, these categories of abuse constitute continuing claims under the IAP Model. According to the terms of the Model, it is the responsibility of an IAP adjudicator to assess the credibility of each allegation made by the person who seeks IRSSA compensation and, where the allegation has been proven on a balance of probabilities, to then determine whether what has been proven constitutes a continuing claim.

The appellant brought a claim for compensation under the IAP, alleging sexual assaults by an adult employee of an IRS. At the material time, the appellant lived on the premises of an IRS with her family. Her father worked at the school. The appellant was not registered as a student as she attended school elsewhere. However, she interacted with IRS residents and attended some of the school’s sporting activities as a spectator.

The appellant had an intimate relationship with a man who worked at the IRS as a coach and cottage supervisor [“Employee”]. The appellant was 16–17 years old at the time. The Employee was nine years older. He was married and had two children. The appellant and Employee had sexual intercourse on numerous occasions. The sexual contact occurred on IRS property. The appellant became pregnant. When her family learned of that fact, she left the family’s home at the IRS and lived with a sibling. About a year after giving birth, the appellant resumed her relationship with the Employee. They eventually moved in together, married and had additional children. They have since divorced.

The appellant brought a claim under the IAP based on the start of her relationship with the Employee and the sexual contact that occurred while she was living on school premises. She argued that the relationship was exploitive, based on the Employee’s age, his position of power and the manipulative way in which he pursued sexual contact with her. An IAP adjudicator decided in the appellant’s favour, awarding her $149,667 in compensation for sexual abuse. The adjudicator found that the appellant was not a student or resident of the IRS at the time of the impugned relationship.

The Attorney General for Canada sought a review of the adjudicator’s decision. The reviewer did not agree that the appellant proved she was sexually assaulted and, as such, held that the adjudicator misapplied the IAP Model by awarding compensation for consensual sexual activity. A second reviewer concluded that the initial adjudicator’s determination of compensable abuse was erroneously grounded in findings about the Employee’s “character and motivation” in seeking out contact with the appellant, rather than whether consent to sexual intercourse had been vitiated in the circumstances. The supervising judge declined to grant the relief sought in the Request For Direction made by the appellant.

There is only one issue on appeal, namely, whether the supervising judge correctly held there was no jurisdiction for her to interfere with the decision of the second IAP reviewer. Where an appeal raises a question about a supervising judge’s interpretation of the IRSSA, the standard of review is that of palpable and overriding error (Canada (Attorney General) v Fontaine, 2017 SCC 47). The Court is not persuaded that the judge committed palpable and overriding error. To sustain a conviction for sexual assault in the criminal law context, there must be proof of non-consent, actual or vitiated (R v Barton, 2019 SCC 33; R v JA, 2011 SCC 28; s 265(1)–(3), 273.1, Criminal Code). Appreciating the “very limited” scope of judicial recourse in IAP cases, there is no principled basis on which to interfere with the supervising judge’s conclusion.

R v Gaudet, 2020 ONSC 3975

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This bail review summarizes how the Gladue principles can apply to bail. Not only has Indigenous programming in remand been suspended for the pandemic, the Indigenous accused’s asthmatic condition was also taken into account in this decision.

Indigenous Law Centre – CaseWatch Blog

Mr. Gaudet is an accused that identifies as Indigenous. Gladue principles and purposes apply to all situations where an Indigenous person’s liberty is at stake. Section 493.2 of the Criminal Code [“CC”] provides that a judge shall give particular attention to the circumstances of an Indigenous person in making a bail decision. The inference to be drawn from the accused’s sentencing record is that he is a regular but minor offence offender. In the last 5 years, the accused has been convicted of failing to attend court or compliance with conditions of undertaking, recognizance or probation five times. He had two assault convictions in that period. This latest stint of detention is his longest in the last five years.

This review centers on the impact of time and unreasonable delay on the proportionality of detention, the rational offered for the original detention order and any new information brought forward. The issue is whether continued detention in custody is justified five months later within the parameters of s 515(10), in the context of an accused who identifies as Indigenous in the midst of the pandemic that lugs in public health and trial scheduling concerns.

The right to reasonable bail is entrenched in s 11(e) of the Charter and is closely connected to other entrenched constitutional rights such as the presumption of innocence (s 11(d)), the right not to be arbitrarily detained or imprisoned (s 9) and the right to liberty and security (s 7). The Supreme Court of Canada iterates that the pre-trial release of accused persons is the cardinal rule and detention the exception (R v Myers, 2019 SCC 27). Section 493.1 of the CC provides that release on reasonable terms is favoured at the earliest reasonable opportunity on the least onerous appropriate conditions including conditions that are reasonably practicable for the accused to comply with.

Given that the examination of Gladue factors in sentencing is directed at diminished moral blameworthiness for an offence in sentencing, the same application without adaptation in a bail proceeding could inappropriately violate the presumption of innocence. The interaction of Gladue principles and s 515(10) cannot be brought to bear in a vacuum. Consideration might include the factors, such as colonization and so on and practices that disproportionately affect Indigenous persons and contribute to their over-incarceration. The principle of restraint in bail is codified in s 493.1. The interim release process is not the time to apply rehabilitative or reformative provisions. Provisions looking like probation or conditional sentence are problematic.

Trial bottlenecks in the criminal justice trial system arising from pandemic restrictions are for now frustrating that option. There are valid reasons for releasing the accused. Prospects for timely trial fade on a daily basis. It is also reported that the Indigenous support programs in the detention center were terminated in March and emphasized the importance of the loss of this support on the accused’s mental health. The accused also suffers with asthma, which is a tertiary ground circumstance. Living conditions at the detention center do not permit social distancing. The pandemic stands as a material change in circumstances since the accused’s last bail hearing.

The accused’s record indicates that he honours conditions when a breach would result in automatic incarceration. If the accused breaches, his only source of trusted support, Ms. Seguin will report it. She will post a bond without cash in the amount of $1,000. For a person in her financial circumstances that is a significant commitment and imports the tug of bail on her part. The accused is to enter into a recognizance with surety, Ms. Seguin. She knows she is undertaking the role of jailor and if she neglects her duties, she will be called on to pay up.