R v Leis, 2021 ONCJ 86

Posted on February 26, 2021 by thp151

After Gladue factors were considered, a young Indigenous woman was sentenced to three years in a penitentiary for causing an explosion from colliding into a home while driving under the influence.

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Daniella Leis, pleaded guilty to four counts of impaired driving causing bodily harm contrary to s 320.14(2) of the Criminal Code. Driving with blood alcohol being twice the legal limit, she caused an explosion in the historic East Village of London when she severed a gas line as a result of her vehicle colliding with a home.

The accused is a 24 year old Indigenous woman, and is a registered member of the Six Nations of the Grand River Territory. A Gladue Report was prepared. There was a history of family members who attended residential schools, which resulted in an upbringing wrought with substance abuse and domestic violence.

Despite her Gladue factors, Ms Leis drove from Kitchener to London to attend a concert knowing that she would be consuming alcohol. Given the amount of alcohol consumed, as well as consuming marijuana, it is hard to see how she mistakenly believed she was in any condition to drive. This decision risked the lives and safety of others. Ms. Leis has high moral blameworthiness in this matter, although not as high as it otherwise would be in the absence of Gladue factors. She is fortunate that no one was killed as result of her conduct. Thereby, Ms. Leis is sentenced to three years in the penitentiary, concurrent on all matters.

Interlake Reserves Tribal Council Inc et al v The Government of Manitoba, 2020 MBCA 126

Posted on February 23, 2021 by thp151

Motions made by the Manitoba Métis Federation and the Assembly of First Nations to intervene in an appeal were dismissed after the Court found that there was insufficient basis to grant the motions. Both parties failed to persuade the Court to find that their submission were useful and different from the immediate parties in a way that wouldn’t unnecessarily expand the appeal. The Manitoba Métis Federation also requested an expansion of time to file supporting documents, which was granted by the Court given its incidental nature.

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By way of background, the defendant, the Government of Manitoba, has appealed an order granting interlocutory injunctive relief preventing it from carrying out further work on a road in order to take action on a proposed flood management system in the Interlake region of Manitoba. This interlocutory injunction relief comes as a response to a motion by the plaintiffs, which consist of the Interlake Reserves Tribal council, as well as several First Nations within the area, who alleged that this development of the land would be an infringement on the exercise of their Indigenous and treaty rights. The defendant denies this infringement of rights. The hearing of this appeal is set for February 2021.

The Manitoba Métis Federation [“MMF”] and the Assembly of First Nations [“AFN”] seek to intervene in this appeal. As well, the MMF also requests an extension of time to file its supporting affidavit and memorandum of submissions on the intervention motion. The plaintiffs consent to the motions, while the defendant is opposed.

The Court dealt first with the MMF’s motion to extend time. The MMF filed its motion to intervene within 30 days after the defendant filed its notice of appeal. However, counsel for the MMF failed to file the supporting affidavit and memorandum of submissions at least four days before the initial hearing date and because of this, the motion to intervene was not done in a timely manner. In assessing whether or not an extension of time should be granted to the MMF, the Court considered that the delay is brief, and does not create prejudice to any party. As a result, the Court required that the extension of time to the MMF be granted.

The relevant case law states that an intervener should have either a direct interest in the outcome of the appeal or a special expertise or unique perspective relating to the subject matter (R v Morgentaler, [1993] 1 SCR 462). In applying this case law with the specifics of AFN’s motion to intervene, the Court found that much of the AFN’s submissions duplicated those of the plaintiffs or were not relevant to the issues before the Court. Given this, the Court was not persuaded that the AFN would provide submissions useful and different from those of the plaintiffs and dismissed the AFN’s intervention motion. Similarly, with regard to the MMF’s motion to intervene, the Court was not persuaded that the MMF’s submissions were useful or different from the immediate parties and would unnecessarily expand the appeal. Further, the Count also stated that the MMF did not have a direct interest in the outcome of the appeal, as language used by the MMF was overly vague and inconsistent in stating their direct interest in the outcome of the appeal. As a result, the Court also dismissed the MMF’s intervention motion.

Mosquito Grizzly Bear’s Head Lean Man First Nation v Her Majesty the Queen in Right of Canada, 2021 SCTC 1

Posted on February 22, 2021 by thp151

As a result of breach of Crown fiduciary duty arising in a 1905 surrender of lands, compensation due to the Mosquito Grizzly Bear’s Head Lean Man First Nation, totalled a combined amount of $126,933,972.00. The Crown took a surrender vote in contravention of the statutory requirement that permitted only members of the Grizzly Bear’s Head and Lean Man Bands to vote, and later accepted and acted on the surrender. Pursuant to Treaty obligations, Canada admitted that it breached its pre-surrender fiduciary obligation, which rendered the 1905 surrender of lands invalid.

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This matter is the determination of the compensation due to the Mosquito Grizzly Bear’s Head Lean Man First Nation [“Claimant”], as a result of breaches of fiduciary duty of the Crown [“Respondent”] in the surrender of land from Indian Reserve No. 110/111 [“Lands”]. The reserve land of the Claimant totals 46,208 acres. The Claimant is of Assiniboine, Nakoda and Stony descent. The Claimant’s ancestors adhered to Treaty 6 and Treaty 4. The Claimant is also a “band” within the meaning of the term in the Indian Act, and was established by an amalgamation of three bands.

Pursuant to Treaty obligations, the Crown set aside land for the benefit of Grizzly Bear’s Head and Lean Man Bands with the Lands. In 1905, the Crown took a surrender of a 14,670-acre parcel. The surrendered land comprised approximately 2/3 of the reserve. The Claimant is, for the purpose of this proceeding, the successor in interest to any cause of action that may arise against the Crown as a result of the surrender.

Awards of compensation where a claim is found valid are governed by paragraph 20(1)(c) of the Specific Claims Tribunal Act [“SCTA”], which provides that the Tribunal is to award compensation “that it considers just, based on the principles of compensation applied by the courts”. Equitable compensation is a remedy where a breach of fiduciary duty is found and applies in the context of a breach of fiduciary duty with respect to a surrender of reserve land (Guerin v R, [1984] 2 SCR 335 [“Guerin”]). Where reserve land is affected by an invalid surrender, section 20(1)(g) of the SCTA requires that the Tribunal award compensation equal to the current unimproved market value [“CUMV”] of the subject lands. The Tribunal must also, under section 20(1)(h) of the SCTA, award compensation equal to the value of the loss of use [“LOU”] of the lands, brought forward to the present value of the loss.

Although the agreement did not describe the events and actions that breached Crown fiduciary duty, the evidence introduced in the compensation phase of the proceeding reveals that the Crown took a surrender vote in contravention of the statutory requirement that permitted only members of the Grizzly Bear’s Head and Lean Man Bands to vote, and later accepted and acted on the surrender. This was, from the outset, a breach of the duty of ordinary prudence. This breach occurred within a Treaty relationship, with respect to a Treaty reserve, and the breach led directly to the permanent alienation of Treaty reserve land from the Claimant.

The evidence was for the most part comprised of filed expert reports, their respective reliance documents, and the testimony of the authors on direct and cross examination. The expert reports addressed the historical context of the breach, the CUMV of the Claim Lands, LOU models describing foregone revenues from the Claim Lands from 1905 to present, and present valuation of foregone revenues.

Equitable compensation “attempts to restore to the plaintiff what has been lost as a result of the breach; i.e. the plaintiff’s lost opportunity” (Canson Enterprises Ltd v Boughton & Co, [1991] 3 SCR 534 [“Canson”]). The underlying policies that guide the assessment of equitable compensation in this claim include restitution (Guerin; Canson), reconciliation (SCTA), deterrence (Canson), fairness, and proportionality (Hodgkinson v Simms, [1994] 3 SCR 377). Equitable compensation is assessed at the time of trial, not the date of the breach. Therefore, the assessment is of the loss at present, with all losses represented by a single award. There is a common sense connection between the loss of use of the land and the loss of revenue that may have been paid into the Claimant’s coffers if the land had been leased out to farmers.

At all relevant times, the Indian Act applied to the Crown’s management of the Claimant’s funds. If the land had been surrendered for leasing, the reality would be that lease revenue would have been deposited in the Band Trust Account. The Tribunal adopted the Band Trust Account rate. Revenue from leasing would if in fact received be deposited in the Band Trust Account, and would earn interest at the rate set annually on such funds, compounded annually. The Tribunal determined CUMV of $15,500,000.00, effective September 21, 2017. The Tribunal assessed the present value of loss of use to December 31, 2019 at $111,433,972.00. This amount is net of the payments made by the Crown to the Claimant in respect of the Claim Lands from 1906 to 1956. The combined amount awarded for CUMV and LOU, subject to adjustment, is $126,933,972.00.

Bangloy v Canada (AG), 2021 FC 60

Posted on February 17, 2021 by thp151

Application dismissed. An Indigenous family alleged that their education benefits were denied as retaliation for previous complaints the family had lodged against Indigenous and Northern Affairs Canada, and for discrimination based on race, or national or ethnic origin.

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Thirty years ago, Ms. Bangloy’s mother requested from Indigenous and Northern Affairs Canada’s [“INAC”] predecessor, Indian Affairs and Northern Development [“IAND”], reimbursements of Ms. Bangloy’s tuition fees at a private school in British Columbia. The family argued that the costs were reimbursable under the terms of Treaty 11. IAND’s position was that education expenses could be claimed under the Indian Act, but only for children living on reserve, which Ms. Bangloy was not. The Court sided with IAND, finding that Treaty 11’s terms were confined to the geographical area of the treaty (Beattie v Canada (Minister of Indian Affairs and Northern Development), [1998] 1 FC 104, [“Beattie”]).

This matter deals with the decisions arising from a human rights complaint initiated by Ms. Bangloy and her family. The family launched the complaint after alleging discrimination on the basis of race or national or ethnic origin by INAC for their failure to provide Ms. Bangloy and her children with information regarding education benefits. They also maintained that INAC denied them these education benefits in question as retaliation for previous complaints of discrimination the family had lodged against INAC in Beattie.

The Tribunal found that there was no connection between INAC’s alleged failure to provide Ms. Bangloy with information about obtaining educational benefits and her race or ethnic or national origin. Therefore, she had not made out a claim of discrimination. With regard to the education funding issue in general, the Tribunal found that the same family was raising the same issue that had already been decided by the Federal Court in Beattie. In respect of the complaints of retaliation, the Tribunal found that the existence of a previous complaint was not a factor that influenced INAC’s alleged failure to provide education benefits. Therefore, there was no retaliation involved.

Ms. Bangloy’s application for judicial review required the Court to consider the Tribunal’s conclusions and whether or not they were reasonable. The Court found that the Tribunal’s conclusions that Ms. Bangloy had not made out a claim of discrimination in respect of annuity payments or information about educational benefits was reasonable given the absence of evidence of a connection between INAC’s position and Ms. Bangloy’s race, or national or ethnic origin. The Court concluded that the Tribunal reasonably found that the issue of entitlement to education benefits had already been decided by the Federal Court in Beattie. The Tribunal reasonably concluded that INAC’s conduct was not retaliatory. The Court dismissed this application for judicial review.

R v Saddleback, 2020 ABPC 168

Posted on February 16, 2021 by thp151

An Indigenous man with significant Gladue factors that diminished some of his moral blameworthiness, was given a global sentence of three years and three months imprisonment for a sexual assault and assault on his domestic partner, as well as for breaching a no-contact order.

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In 2020, Mr. Saddleback was found guilty after trial on one count of assault, contrary to s 266 and one count of sexual assault, contrary to s 271 of the Criminal Code (R v Saddleback, 2020 ABPC 168). The complainant was his domestic partner. Following his conviction, Mr. Saddleback entered guilty pleas to three other charges of breaching a court order, contrary to s 145(5)(b). The issue in this matter, is the determination of a fit sentence.

The complainant and the accused were in a domestic relationship but had been living separate and apart for a period of time. The accused returned to reside with the complainant in quarantine due to the COVID-19 pandemic. Beginning in the early hours of the night, the accused committed sexual assault that included non-consensual vaginal penetration and physically biting the complainant in varying places, that took many weeks to heal. It was only by escaping to a neighbor’s house and a subsequent call to the police did the assualt end hours later. A no-contact Order was issued under s 516(2) following the accused’s arrest prohibiting him from having any contact with the complainant. However, the accused telephoned the complainant from the Calgary Remand Centre. When the complainant declined to accept the call, Mr. Saddleback proceeded to call her several more times that day.

Viewed as a whole, the conduct of the accused in the case at bar constituted a grave violation of the complainant’s bodily integrity, resulting likely in serious emotional and psychological harm, as there was no victim impact statement submitted. This finding is consistent with the highly intrusive and violent nature of the sexual assault, the complainant’s testimony that she begged the accused to stop, and from her demeanor in court when describing the assault.

Mr. Saddleback is a 53-year-old Indigenous man. He was born in Wetaskiwin, and is the second eldest of eight siblings. Both his parents are now deceased. Growing up he witnessed physical abuse, as well as drug and alcohol consumption within the family beginning at an early age. He was apprehended by Child and Family Services on numerous occasions on and off between the ages of 3 and 12. He describes his experiences with the “white” foster families as varying from severe violence to one that was “loving” and had him involved in numerous organized sports. At the age of twelve, he moved back to Hobbema with his mother and sister, and did not return to foster care. Mr. Saddleback reports that he first consumed alcohol at the age of six, and tried marijuana at age seven. He had access to drugs and alcohol through his siblings and cousins, and was drinking regularly by the age of 14.

Mr. Saddleback has a grade 11 education. He reports that three generations of his family attended Residential Schools. Mr. Saddleback reports losing a number of close family members to violence, suicide and overdose. According to the Gladue report, Mr. Saddleback was not present for the births of any of his three biological children due to being incarcerated. He states he received no help for his FASD condition, and had to learn to manage the disorder on his own. Mr. Saddleback suffers from Antisocial and Borderline Personality Disorders. He has an extensive criminal record with over 90 adult convictions (present offences included) dating back to 1984 with few gaps in between.

The crime committed by Mr. Saddleback is serious. The harm to the complainant is significant, as is the harm to the community in undermining people’s sense of security and safety in their own homes. Mr. Saddleback has nine prior convictions for breaching different types of court orders, including one conviction for contempt of court. The current breaches (which were put in place to protect the complainant) were deliberate, and committed within a day of his arrest. All that being said, Mr. Saddleback presents with significant Gladue factors, which, when viewed through the lens of normal human experience, can be presumed to have contributed to his long history of criminal behaviour, present offences included. For that, his moral blameworthiness can be viewed as somewhat diminished, thereby a global sentence of three years and three months imprisonment would be a just and proportionate sentence.

R v Runions, 2021 ABQB 67

Posted on February 12, 2021 by thp151

Although Gladue factors reduced an Indigenous offender’s overall blameworthiness, it was not enough to persuade the Court that he is not a risk to public safety or can be managed in the community. He is designated a dangerous offender and sentenced to detention in a penitentiary for an indeterminate period.

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In 2019, Dillion Richard Runions pleaded guilty to one count of aggravated assault, contrary to s 268 of the Criminal Code, and a further count of breaching an undertaking given to a police officer, contrary to s 145 (5.1). The aggravated assault consisted of Mr. Runion, who was unprovoked, slamming a machete into the neck of his unsuspecting victim. This vicious attack was nearly fatal with the victim surviving only because of timely medical intervention. At the time of the machete attack Mr. Runions was bound by the terms of an undertaking given to a police officer, which stipulated that Mr. Runions should not be in possession of a weapon. Both offences occurred in 2017.

The Crown brough an application to designate Mr. Runions a dangerous offender and to be given an indeterminate sentence (R v Corbiere, [1995] OJ No 938; R v Bedard, 2009 ONCA 678; R v Gulliver, 2018 ABCA 387; R v Neve, 1999 ABCA 206; and R v Lyons, [1987] 2 SCR 309). Part of the prospective assessment of dangerousness, is answering the question of whether the behaviour is such that the pattern of conduct can be said to be substantially or pathologically intractable (R v Boutilier, 2017 SCC 64).

Mr. Runions spoke of a childhood history which included general family dysfunction, poverty, domestic violence, maternal substance abuse, abandonment, neglect, placement in foster care, and a chaotic life involving frequent moves and school changes. According to a Gladue report, Mr. Runions indicated that one of his placements involved a Métis family, and he was exposed to his Métis heritage, traditions, and cultural practices. Mr. Runions said he was sexually abused from a young age, and that he was sexually assaulted by one of his mother’s boyfriends and by a foster parent.

Mr. Runions told the Gladue report writer that he fled a group home at age 16 and joined a street gang called “Deuce’s of Central”. He said that he resided with gang affiliates until his first incarceration at 19, and then dropped out of school, consumed alcohol, used cocaine, trafficked in illegal substances, and engaged in negative and violent behaviour. Mr. Runions reported a sporadic work history including having worked as a cribber and a drywaller, his average length of employment was under six months, and his longest period of employment was two years. Mr. Runions reported that he was diagnosed as being bipolar disorder in 2005, depression and anxiety at 18 years old, and post-traumatic stress disorder in 2009. He also reported auditory hallucinations if he did not take various medications.

The quality and strength of the evidence of past and future events, together with the expert opinion concerning those events, demonstrates that it is likely Mr. Runions will cause death or injury through his failure to restrain his behaviour in the future. Mr. Runions has not yet received nor exhausted all treatment options that are available to him. In most cases through no fault of his own, Mr. Runions remains untreated in relation to some of his most pressing treatment needs. It is also notable that Mr. Runions, who has demonstrated a recently renewed interest with respect to his Indigenous background (having previously self-identified with Buddhism and later as a Muslim), at least while incarcerated, could elect to be placed within a separate multi-target stream such as the ICPM Multi-Target Program which emphasizes Indigenous healing through traditional and cultural means, and importantly and supportively permits access to Elders for guidance and support.

Unfortunately, Mr. Runions cannot be trusted and his persistent disingenuous presentation makes treatment functionally impossible. It is also highly likely that Mr. Runions will resume gang-affiliations once released from custody. There is no suggestion in the evidence that he has ever succeeded in divesting himself (long-term) from his gang-lifestyle while not in a structured custodial setting. Mr. Runions acknowledged that he was still at the top of the pyramid when he was asked about his gang connections.

Mr. Runions has a very high risk for general recidivism and for violently reoffending. His Gladue factors does reduce his overall blameworthiness, but they do little to change the obvious gravity of the grave circumstances of the predicate offence, and the fact the Mr. Runions violently injured and endangered the life of three people in approximately a one-month period. The Gladue considerations do not persuade the Court that Mr. Runions’ risk to public safety can be controlled or managed in the community. Mr. Runions is a dangerous offender and he is sentenced to detention in a penitentiary for an indeterminate period. Given the circumstances, including the past criminal record, a fit and proper sentence in relation to the conviction under s 145(5.1) of the Criminal Code is 6 months imprisonment.

R v Kolola, 2020 NUCJ 38

Posted on February 11, 2021 by thp151

In sentencing an Inuit offender, the Court sought to meet the purpose and objectives of sentencing through consideration of the unique circumstances of this case, including competing sentencing principles, Gladue factors, and the frequency of violence against sleeping and unconscious women in Nunavut.

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This case deals with the sentencing of Mr. Kolola, an Inuit offender who committed sexual assault on a sleeping female victim. The Court sought out to ensure that the sentence imposed was fit to the offender and the crime. Given that Mr. Kolola is an Inuit offender, the Court accounted for the effects of historic and systemic colonialism and inter-generational trauma experienced by Inuit people, articulated through Gladue factors.

The aggravating factors included Mr. Kolola’s criminal record, which demonstrated a pattern of violence against women through multiple convictions for serious intimate partner violence. The nature of Mr. Kolola’s sexual assault was quite predatory, as he assaulted the victim while she was asleep and in her own home. It was also noted by the Court that this assault seemed to be premeditated as he sought out his particular victim. There are several mitigating factors including Mr. Kolola’s Gladue factors which revealed his unfavourable childhood riddled with addiction and abuse, and his tangible efforts at rehabilitation through his continued sobriety.

The Court also took into account that sexual offenses involving sleeping women in Nunavut are unfortunately a common occurrence. As a result, there is widespread perception that the Court minimises the nature and severity of sexual violence. Therefore, the Court sought to impose a sentence in which sought to repair this distrust and fear of the criminal justice system by victims of sexual violence, while also holding Mr. Kolola demonstrably responsible for his crime. Through consideration and application of these unique circumstances and the competing sentencing principles, the Court concluded by ordering that Mr. Kolola serve 30 months (900 days) in a federal penitentiary.

Saskatchewan Gaming Corporation – Casino Regina v Public Service Alliance Of Canada, 2021 CanLII 5520 (SK LA)

Posted on February 10, 2021 by thp151

Grievance dismissed. Previous incidents that included insensitive and racist remarks to an Indigenous female colleague, demonstrated that the Grievor has a hard time controlling his emotions and comments. There is little indication that his behaviour will change if given another chance. Casino Regina is in a customer focused business, and has a diverse workforce and diverse clientele. The Grievor’s dismissal was for just cause.

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The Grievor, a dealer at Casino Regina, was terminated in 2018 following the investigation of two harassment complaints lodged against him by co-workers. The first complaint alleged that he had made insensitive and racist remarks to an Indigenous female colleague and the second complaint, several weeks later, alleged rude and possibly racist behaviour towards a server of Asian origin. Combined with previous discipline and what senior managers viewed as a lack of remorse or acceptance of responsibility, the Grievor’s employment was terminated.

The Grievor was hired in 2008. The Casino has a very diverse work force that includes a significant Indigenous component and a diverse customer base. As part of ongoing training employees do take programs on “Diversity & Inclusion” and “Respectful Workplace”, which the Grievor last took in 2017 and 2018.

At the time of his dismissal, the Grievor had two disciplines plus a letter of expectations on his record. The letter of expectations, arose from a verbal altercation on the gaming floor with another staff member in which derogatory comments and expletives were exchanged within earshot of customers. The Grievor also received a one day suspension for consuming multiple alcoholic beverages during a staff charity poker tournament and then preparing to report to work. Another written reprimand was given for a comment made to customers at his table during a routine hand-off of the table to another dealer. The other dealer was not a native English speaker and the Grievor told the customers “hopefully you can understand him”. The remark was overheard by the incoming dealer who was upset by it.

The decision to terminate was made by the Employer from reviewing the initial complaints and the statements of staff and customers who had witnessed the incident that involved the Asian server. It was noted that the customer statements were unsolicited and highly unusual. The Employer argued that the harassment complaints, combined with the Grievor’s previous disciplinary record justified termination. In addition, the Grievor had been issued a letter of expectations for a verbal altercation with another employee in front of customers. The Employer argued that a common theme in all three previous cases was the reluctance of the Grievor to accept responsibility for his behaviour. He had been warned several times that a failure to change could result in more severe consequences.

Casino Regina is in a customer focused business and has a diverse workforce and diverse clientele. The evidence gives little confidence that the Grievor’s misconduct would not be repeated if he was reinstated. Accordingly, the grievance is dismissed.

R v Papequash, 2021 ONSC 727

Posted on February 9, 2021 by thp151

Application granted. An Indigenous applicant has met their onus on judicial review, as the Justice of the Peace made an error in law by failing to consider Gladue principles at the bail hearing. The applicant will be released on their own recognizance in the amount of $500, and be supervised by the Toronto Bail Program.

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The Applicant, Deeandra Papequash (“they/them” preferred pronouns), was denied bail in 2018, and seeks review of this denial of bail. The Applicant is facing four separate sets of charges that involves assaultive and threatening behaviour, petty theft, possessing or using a knife, and failing to follow conditions of bail. They had been released on bail before, on these charges and more than once. But when all the charges came again before the Justice of the Peace on December 18^th, 2018, after they had again been arrested on new charges, those releases came to an end. The Justice of the Peace did not release the Applicant again, and detained Deeandra Papequash on the secondary ground. The Justice of the Peace made a serious mistake in his decision. There is also a new and material change in the Applicant’s situation.

Deeandra Papequash is 34 years old, is mixed Cree and Saulteaux, and a member of Key First Nation. A Gladue report which had been previously prepared, was given to the Justice of the Peace. It describes the horrible childhood endured by the Applicant, including sexual abuse, physical abuse and discrimination at being a two-spirited person. The Applicant suffers from many mental illnesses including Fetal Alcohol Syndrome, ADD, PTSD, anxiety, depression, as well as alcohol and drug addiction. There was also involvement in gang activity in Regina and long periods of jail. Though the Applicant currently stands charged with assaulting their intimate partner, she remains supportive.

Given Deeandra Papequash’s lived experiences as an Indigenous person, the question of their release required a careful application of the Gladue principles (R v Gladue, [1999] 1 SCR 688), which the Justice of the Peace did not do. Failure to consider Gladue principles at a bail hearing is a serious error of law (R v Robinson, 2009 ONCA 205).

Deeandra Papequash has been living precariously, including in shelters. At the bail hearing, it was hoped that secure and stable subsidized housing would become available sometime soon. This housing opportunity is now available through the COTA organization, where a one bedroom awaits them, but this offer is time limited. If the Applicant does not move into the apartment within three weeks, COTA will no longer hold it for them, which is a material change in circumstances. At the bail hearing this housing had not yet crystalized. The stable supportive housing is now real and this material change is significant. The law permits the Court to consider anew whether Deeandra Papequash has met their onus on this bail review regarding the primary, secondary, and tertiary ground for release.

The Applicant proposed a Bail Program release and the Bail Program has approved them. Given the Applicant’s life trajectory bent by trauma, the focus regarding bail should not be on whether a surety is available to supervise them. Rather it should be on whether supports can be put into place to meet secondary ground concerns. The criminal record, which is bad, must also be seen through a Gladue lens. While this does not extinguish the secondary ground concerns, it provides an explanation and a context for this criminal record. A number of organizations and professionals with skill, experience, and compassion have offered support if Deeandra Papequash is released on bail. They know the Applicant’s weaknesses as well as strengths, emphasizing that jail is not a good place for someone like Deeandra Papequash.

Secure housing can be crucial to the rehabilitation and treatment of people with mental health problems, addictions, and other challenges born from the effects of discrimination and marginalization. It provides the steady and firm ground for people to climb out of poverty. Stable housing means stable people, thereby reducing conflict with the law and better protecting the community. Deeandra Papequash has never received such intensive wraparound services before. Deeandra Papequash has met their onus and will be released on their own recognizance in the amount of $500. They will be supervised by the Toronto Bail Program. They will abide by the conditions set out by the Toronto Bail Program and the conditions proposed by the Applicant including no contact, treatment, and counselling.

In The Matter Of A Hearing Under The Child and Family Services Act, Ss, 2021 SKQB 2

Posted on February 8, 2021 by thp151

It is in the best interests of a First Nations child to stay with the current caregivers who are pursuing an adoption plan. Although it is encouraged that her First Nations paternal grandmother be in contact and included in her upbringing, the grandmother’s custody application is dismissed. The child should not have her living arrangements disrupted, as she is loved and cared for; one caregiver is a member of the First Nation; and there is cultural continuity.

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T.L., who turned nine years in 2021, was first apprehended in the fall of 2015 by the Ministry of Social Services and then subsequently transferred to the Yorkton Tribal Council Child and Family Services Inc [“YTCCFS”]. Following her apprehension, she began living with her grandfather, M.S. on White Bear First Nations. M.S. had T.L. enrolled at the local playschool and called upon his sisters from time to time to assist with her care. Nevertheless, M.S. had concerns raising her by himself, thereby D.L. and C.Y., her current caregivers, welcomed T.L. as their daughter and do not differentiate between her and their other children. M.S. continues to play an active role in T.L.’s life, and she continues to have frequent visits with her grandfather. YTCCFS now requests a permanent order pursuant to The Child and Family Services Act [“CFSA”] with respect to T.L. with the intent of pursuing an adoption plan with her current caregivers.

A.D. is T.L.’s paternal grandmother. A.D. had no knowledge that T.L. was her granddaughter until her son informed her of the DNA results in the summer of 2018. Upon learning of T.L., A.D. contacted YTCCFS. A.D. was first introduced at D.L.’s and C.Y.’s home. A.D. was aware that YTCCFS supported T.L. remaining with D.L. and C.Y., but she was opposed to that arrangement and that year applied for an order finding her to be a person of sufficient interest, custody and access to T.L. A.D. asks for custody pursuant to The Children’s Law Act, [“CLA”] or, alternatively for T.L. to be placed in her care as a person of sufficient interest pursuant to the CFSA.

As T.L. is First Nations and a member of White Bear First Nations, consideration of her best interests requires thought be given to her cultural, linguistic, religious and spiritual upbringing and heritage, among other things. Regardless of which Act is applied, T.L.’s best interests must be considered. Some of the factors to be considered under the CFSA are similar to those found in the CLA but there are additions (Saskatchewan (Minister of Social Services) v S(EK) (1996), 146 Sask R 46 (QB)). Bill C-92 sets out principles which underly the legislation, including the best interests of the child and cultural continuity. It is required to the extent possible, that these factors be construed in a manner consistent with the law of the Indigenous group. White Bear First Nations “opposes permanent wardship orders and adoption orders involving non-[A]boriginal foster parent(s) when there is a White Bear First Nations band member(s) or other First Nations individual(s) or family member(s) able and willing to care for the child(ren) in question” (White Bear First Nations, Band Council Resolution).

T.L., through her grandfather, M.S., has been exposed to her cultural and spiritual heritage. It was through M.S. that T.L. was introduced to D.L. and C.Y. D.L. and C.Y. are part of M.S.’s family. T.L. developed strong relationships with D.L. and C.Y., whom she now calls “mom and dad”, and her siblings Z.L. and G.L., who reside in the home with her. D.L. is a member of White Bear First Nations, and although his spouse, C.Y. is Caucasian, she encourages T.L. in cultural activities. Her sister, T.H., who she had never met prior to M.S. taking her on a visit in 2017, now resides in D.L.’s and C.Y.’s home with her and have grown close. Bill C-92 specifically speaks to the need for stability. T.L. has had a connection to M.S. her entire life and has maintained that connection though she now lives with D.L. and C.Y. She is settled in their home and enjoys her school and friendships.

It is unfortunate that the parties are in conflict and compelled to speak ill of the other and find fault in the other’s care of T.L. Both A.D. and M.S. are residential school survivors, and both turned to alcohol in early adulthood. Both rediscovered their cultural and spiritual heritage following their commitments to sobriety. Even if they are not up to A.D.’s standards, it is unclear why A.D. as a grandmother and Elder, particularly when she lives minutes away, could not provide additional guidance and input respecting cultural heritage without the necessity of having T.L. live with her. The current care arrangement with D.L., C.Y. and M.S. is in keeping with the tradition of family stepping up to care. A.D. is a blood relative and is also family but until two years ago, she was a stranger.

The relationship most important to T.L. is her relationship with M.S. The parenting plan will secure that relationship. Both D.L. and M.S. are members of White Bear First Nations and an ongoing relationship with the community is therefore ensured. M.S., D.L. and C.Y. will also ensure cultural continuity and expose T.L. to Indigenous culture and heritage. T.L. can only benefit should A.D. choose to supplement that exposure through her own involvement with her granddaughter. YTCCFS was of the view that T.L. could only benefit from relationships with both her maternal and paternal sides of the family. The plan is also consistent with the White Bear First Nations’ band council resolution as T.L. will remain with a member of White Bear First Nations, D.L. YTCCFS should be permitted to pursue the plan as recommended as it will ensure T.L. has the stability she requires and the ongoing love of family. It is in T.L.’s best interests that she be permanently committed to the Ministry with a view to pursuing the adoption by D.L. and C.Y .