Johnson v Canada (Registrar, Indian Register), 2020 BCSC 1955

Appeal stayed. The appellant appealed what they interpreted as a decision by the Registrar of the Indian Register. The Court lacks jurisdiction to hear the appeal as it is premature given the statutory requirements of the Indian Act have yet to be met. Specifically, the nature of a response made by the Registrar was not a “decision” capable of being appealed until it is “protested” and the statutory proceeding is concluded.

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The appellant is a status Indian and member of Sechelt Indian Band, a band within the meaning of the Indian Act. In 2017, the appellant requested that the Registrar transfer him from the Sechelt Band List to the Semiahmoo Band List, as he believes he is entitled to membership in the Semiahmoo Indian Band [“Semiahmoo”].

The Department of Indigenous Services [“Department”] maintains the Semiahmoo Band List as Semiahmoo does not maintain its own membership code. Section 11 of the Indian Act sets out the membership rules for a band list maintained by the Department. Section 12(b) of the Act provides that, within certain limits, a person who is a member of another band is entitled to have their name entered in the Department band list if the council of the admitting band consents.

In 2018, the Registrar responded to the appellant’s transfer request, stating that the request could not be processed without receiving a Band Council Resolution [“BCR”] from the Semiahmoo Band Council. A separate letter was sent by the Registrar to the Band Council of Semiahmoo requesting a BCR accepting the appellant into the band’s membership. The appellant argued that a BCR from Semiahmoo was not required under s 11 of the Indian Act and that s 12(b), which requires band council consent to adding a band member, had no application.

The Registrar then advised the appellant that the Department’s position was that s 12 applied to all band transfers. The appellant sought judicial review in the Federal Court, but that was discontinued as it is this Court that has the necessary jurisdiction. The appellant advised the respondent he would pursue a protest under s 14.2 of the Indian Act. Section 14.2 allows for a protest to be made respecting the inclusion or addition of the name of a person or their omission or deletion of their name from the Indian Register or a band list maintained by the Department. The Registrar responded she would consent to a 90-day investigation period “once all necessary documents were filed”. The appellant agreed and in 2019, sent the documents to a computer link provided [“Protest”].

Subsequently, the Registrar informed the appellant that she was unable to accept the Protest as valid. She stated the Registrar’s original decision to add the name of the appellant to Sechelt First Nation registry was rendered prior to September 4, 1951 and therefore the Protest was out of time. Her earlier response did not constitute a “decision” but was a request for evidence, therefore it could not be protested. She also confirmed the Department’s position was that Semiahmoo consent was required for all band transfers.

This application concerns whether the Court has jurisdiction to hear the appeal at this time. The Indian Act sets out the statutory framework that applies to a dispute of a “first-level” Indian Registrar decision. Once such a decision is made, a party is statutorily entitled to protest the decision to the Indian Registrar. Upon receipt of a valid protest, the Registrar investigates and renders a final and conclusive decision. It is from that decision an appeal to this Court may be taken, not earlier.

The Registrar stated she could not accept the Protest as a valid protest, noting that the request for more evidence was not a decision or a denial of the application but merely a request for evidence, including the Semiahmoo BCR. The Indian Act provides a process to determine band status. As a complete code, the Indian Act must be complied with before it can be appealed (Baptiste v Canada (Registrar of Indian & Northern Affairs), 2000 SKQB 296). The Registrar is the “master of its own procedure” and can solicit information as they see fit in conducting the investigation.

The Court is satisfied that the earlier Registrar’s responses are not “decisions” as described by the appellant. The letter in 2018 did not make a decision as no BCR had been provided from Semiahmoo. It requested that it be provided. Nor did the letter in 2019 make a decision under s 14.2 of the Indian Act. Given the expiration of time from the 1951 decision, and that the 2018 response was neither a decision nor a denial but rather a request for information, the Protest of that letter was not a valid protest. That right to protest requires that the individual is added, omitted or deleted from an Indian Register or Band List.

In other words, a determination has been made. In this instance that did not occur until 2019, when the Registrar concluded that the appellant was not entitled to be a member of the Semiahmoo Band pursuant to s 11 of the Indian Act. As a result, the right to protest arises. The appellant was advised of that right, but has chosen not to do so. The right of appeal arises after the Registrar has ruled on a protest. This Court does not, at this time, have jurisdiction as the appeal is premature. The appeal is stayed.

R v Hiscock, 2020 BCCA 355

Appeal allowed. An Indigenous offender was given an effective global sentence of six years on four counts of weapons-related offences which occurred while in a drug-induced psychosis. The sentencing judge failed to give sufficient weight to the systemic factors documented by the offenders’ Gladue report; thereby he erred in his application of s 718.2(e) of the Criminal Code.

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Coda Hiscock was sentenced to six years incarceration on four counts of weapons-related offences which occurred while in a drug-induced psychosis. The Court observed that the question is not what sentence they would have imposed; but rather, the deferential standard which intervenes only where a sentencing judge has committed an error in principle, or imposed a demonstrably unfit sentence (R v Friesen, 2020 SCC 9).

Mr. Hiscock contends that his sentence is unfit because of the failing to reasonably weigh the importance of his Aboriginal heritage and the intersectional systemic factors which have affected the offender (R v Gladue; R v Ipeelee). The failure to give sufficient weight to these factors amounts to an error in principle which is sufficient to allow the appeal.

The offence occurred in March 2018, when Mr. Hiscock fired at least seven shots from a semi-automatic firearm from the interior of a residence. The shots penetrated the interior walls of the residence causing myriad of damage, with at least three shots having struck unoccupied cars parked outside the building. The judge found that earlier that day Hiscock has used methamphetamines and that at the time of his arrest his demeanor indicated one who was high and possibly in a psychotic or manic state.

Mr. Hiscock was 31 years old at the time of the offence. His mother was a member of the Ojibwe First Nation, and his maternal grandmother and great-great-grandmother attended residential schools in Saskatchewan. His youth was disrupted by the dissolution of his mother and stepfather’s relationship, and subsequent alchohol abuse by his mother. His mother died from a drug overdose. He has also lost a nephew to drug overdose. Six months after the passing of his mother, one of his brothers was murdered. Six months prior to the offence giving rise to the sentencing, Mr. Hiscock’s girlfriend was murdered.

In considering the offenders relatively moderate criminal record which had not previously attracted federal custody, the mitigating factors evinced by his pre-sentencing and Gladue reports, and the comparative analysis of similar offences, the Court considers a global sentence of five years incarceration is fitting. In comparison to other offenders who committed similar offences, the sentencing judge levied a disproportionately onerous sentence on Mr. Hiscock for possession of a loaded firearm compared to others with more serious criminal records. Accordingly, the Court concludes that the reduction of a five-year sentence to four years would bring the offender’s sentence into the appropriate range. Given credit for time served, Mr. Hiscock’s sentence is one year, 315 days.

Penosway c R, 2019 QCCS 4016

The Applicants have failed to establish that correctional services discriminated against them and thereby infringed their constitutional rights enshrined in section 15 of the Canadian Charter of Rights and Freedoms by using inadequate actuarial tools not adapted to their Aboriginal culture and by failing to provide the necessities and resources required for their rehabilitation.

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Yannick Hervieux-Riverin and Germain Penosway [collectively “Applicants”], are both accused of various breaches of long-term supervision orders. In this matter, they seek a remedy that the state’s conduct infringes upon their section 15 Charter rights. The Applicants are of Aboriginal ancestry and are members of their respective Aboriginal community.

Mr. Hervieux-Riverin was convicted on fifteen counts, including three counts of sexual assault, six counts of sexual interference, one count of invitation to sexual touching, and failure to comply with a recognizance and a probation order. For the nine files, he was sentenced to two consecutive terms of imprisonment and was found to be a long- term offender. In view of both the objective and subjective gravity of the offences to which Mr. Hevieux-Riverin pleaded guilty, and also taking into account his recurrent conduct attributable to a problem of a sexual nature, a sentence of twenty-seven months’ imprisonment is without a doubt within the range of fit sentences, and complies with the principle set out in s 718.2(e) of the Criminal Code (R v Gladue, [1999] 1 SCR 688; R v Ipeelee, [2012] 1 SCR 433).

The trial judge’s application, even after reconsideration in light of the Gladue report filed, remains unassailable. It contains no error of principle or any other error reviewable on appeal. Mr. Hervieux-Riverin’s personal profile, which includes his addiction, mental health problems, and complete absence of employment history, the high risk of recidivism, lack of any family or community support that could contribute to his rehabilitation, and the absence of resources in his community of origin to facilitate reintegration without reoffending, are significant factors. While he was required to observe strict conditions, Mr. Hervieux-Riverin was charged in nine different files for failing to comply with one of the conditions of his long-term supervision.

Mr. Penosway is also facing criminal charges for breach of long-term supervision. The long-term supervision order rendered in 2009 for a period of ten years will end only in 2024 because Mr. Penosway was re-incarcerated several times for breach, during which time the order was suspended temporarily. The initial conviction for which the long-term supervision order was rendered also referred to charges of a sexual nature. The Gladue report for Mr. Penosway, although drafted for the purpose of suggesting an alternative to a custodial sentence, illustrates the difficulties of a population exposed to violence, sexual abuse, and addiction.

The Applicants submit that Correctional Service Canada breached its obligations set out under the Corrections and Conditional Release Act [“Act”], by using inadequate actuarial tools that are not adapted to Aboriginal culture and fail to provide the necessities and resources required for their rehabilitation. They are the subjects of systemic discrimination, and as a result, their Charter s 15 rights have been breached. The Applicants argue that despite the legislative provisions duly set out in the Act, they are victims of systemic discrimination preventing them from obtaining the benefits recognized by the Act. It is not the Act nor the accompanying Directives that the Applicants contest, but rather their implementation, which they consider discriminatory.

The law provides that a person subject to a long-term supervision order shall be supervised by the Correctional Service of Canada and the Parole Board of Canada. The use of actuarial tools that had the potential effect of overestimating the risk and affecting the offender’s security classification do not infringe the rights guaranteed by s 15 (Ewert v Canada, 2018 SCC 30). Although they could be improved, actuarial tools are a measure that must be balanced with Aboriginal Social History to establish an intervention plan during mandatory long-term supervision. The conditions imposed do not fall under the authority of correctional services, but rather the Parole Board, which is not bound by the measures proposed. The Court cannot find that the rights of either applicant were violated further to discrimination, even involuntary discrimination, through the use of actuarial tools.

The Applicants submit that correctional services erred by omission by failing to provide the resources necessary for the rehabilitation of Aboriginal persons, in particular, programs specially adapted to their cultural situations, and by failing to establish places of residence near their community. They submit that these omissions are the result of discriminatory treatment. While the Court agrees that in a more perfect world, resources could be improved and allocated solely to Aboriginal offenders without being shared by other offenders, the fact remains that the lack of resources does not mean that there is discrimination. Breaching a mandatory parole supervision order and challenging it later goes to the very purpose of the long-term order (R v Bird, 2019 SCC 7). In view of the charges of breach alleged against each of the Applicants, they are launching collateral attacks of the orders rendered by the Parole Board. The Court therefore finds that the Applicants have not established discrimination.

The Court cannot accept the submission that the absence of resources, and in particular the fact that there is no residential centre near their community, puts the Applicants in a situation where they are inexorably bound to reoffend by failing to comply with a residency condition. A long-term offender designation is an exceptional measure that will be rendered only when the strict conditions of the Criminal Code are met. Had this Court found that there was discrimination, it simply would not have had jurisdiction to grant any of the remedies proposed. The services offered in the context of the long-term supervision orders, although not perfect, are not discriminatory in their regard. The efforts made to improve the services do not constitute a failure to act by refusing to take into account the specific features of each appellant’s Aboriginal Nation.

West v Cold Lake First Nations, 2021 CHRT 1

Complaint dismissed in its entirety. A Cree woman and member of Cold Lake First Nations, submitted a complaint to the Canadian Human Rights Commission that she was discriminated against contrary to her race, national or ethnic origin and family status in rejection of her band council nomination. Further, she submitted that the Nation retaliated due to her filing this complaint, by reassigning her daughter’s future house to another member of the Nation.

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In 2016, Bonnie West, a First Nations Cree woman and member of Cold Lake First Nations [“CLFN”], attempted to stand for election as councillor to sit on the CLFN band council. Her nomination was rejected by the elections officer, and Ms. West filed a complaint with the Canadian Human Rights Commission, which was referred to the Tribunal in 2019. She alleged that she was discriminated against contrary to section 5 of the Canadian Human Rights Act [“CHRA”] in the provision of services by the Nation on the grounds of her race, her national or ethnic origin, and her family status. Ms. West has also amended her complaint, adding an allegation of retaliation by CLFN, contrary to section 14.1 of the CHRA. Her daughter was not given access to a new house in the community, in contrast to what had been planned. Ms. West believes that CLFN acted in this manner in retaliation against her filing her complaint.

CLFN is a First Nations community in Alberta with a population of about 3,000 members both on and off the reserve. In 1986, CLFN adopted the Cold Lake First Nations Election Law [“1986 Election Law”], which was approved by order of the former Minister of Indian and Northern Affairs. In the 2016 election for CLFN’s chief and band council, a member of the Nation nominated Ms. West to run for election as a councillor on the band council. After she was nominated, another member of the Nation protested Ms. West’s nomination. The protest alleged that Ms. West was not a direct descendant of original treaty citizens, contrary to the 1986 Election Law. The elections officer at the time had to consider the matter and determine whether Ms. West fulfilled the requirements.

Even though the 1986 Election Law does not clearly stipulate what is meant by “original treaty citizens”, the evidence establishes on a balance of probabilities that this expression refers to the signatories of Treaty No. 6. He asked Ms. West to provide him with a document, specifically an affidavit supporting her nomination, within 48 hours. Ms. West filed a short sworn statement with the elections officer, in which she declared before a commissioner of oaths that she was eligible to stand as councillor given that she was a direct descendant of original treaty citizens. The evidence reveals that no other documents were submitted, such as Ms. West’s family tree or the document confirming her North American Indian Blood Quantum as she did at the hearing. The elections officer found that Ms. West did not fulfill the requirements. After receiving the elections officer’s decision by email, she asked him which additional documents were needed to establish that she could stand as a candidate for election. The evidence reveals that Mr. Adam did not answer her question.

Ms. West is challenging the rejection of her nomination, which resulted from the verification of whether she met the eligibility criteria set out in the 1986 Election Law. In applying the 1986 Election Law and the candidate eligibility criteria, the officer was merely ensuring that Ms. West met or complied with the criteria established by the Nation when it created and passed its own election law. Therefore, it appears that Ms. West’s challenge is more an issue with the 1986 Election Law itself and its selection criteria (Forward v Citizenship and Immigration Canada, 2008 CHRT 5).

In this matter, the band council exercised its authority by enacting its own 1986 Election Law within its jurisdiction, which falls within the federal sphere (Francis v Mohawk Council of Kanesatake, 2003 FCT 115 (CanLII)). The fact that the Department of Indian Affairs and Northern Development allowed CLFN, by order in council, to adopt its own election law does not render the 1986 Election Law immune from scrutiny under the Charter (Ratt v Matchewan, 2010 FC 160 [“Ratt”]; Taypotat v Taypotat, 2013 FCA 192). The type of challenge Ms. West has brought should have been brought in the right forum, the Federal Court. The Federal Court has jurisdiction over the officer’s actions as well as over matters relating to the Nation’s elections (Ratt; Ballantyne v Nasikapow, 2000 CanLII 16594 (FC)). This jurisdiction of the Federal Court also extends to reviews relating to the application of the Charter and section 15, regarding equality rights.

 Ms. West alleged that she was a victim of retaliation under section 14.1 of the CHRA. The preponderance of evidence does not support Ms. West’s claims. Her daughter lives in the CLFN community and she was informed by a consultant for the Nation that she was to receive a house to replace the one she was living in. Reasons for reassigning the house to another member of the community were provided and were credible.

R v Young, 2021 BCPC 6

An offender, charged with possession of cocaine for the purposes of trafficking, is non-Indigenous but resides in a small isolated First Nations community, and identifies as Haida. The Court, after weighing the evidence and the principles of sentencing, applied a restorative justice approach, and determined that a one-year period of incarceration followed by two years’ probation is a fit sentence.

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In 2018, the RCMP received an anonymous tip regarding the drug trafficking activities of Frank Young and his wife Roberta Young, who reside in Skidegate, a small isolated First Nations community. After surveillance on the Young’s, police officers subsequently attended the residence and Mr. Young was arrested. Various types of drug paraphernalia was seized, including cocaine that would have been sold, at a minimum, for a total price of between $6,720 and $8,400. In 2019, Mr. and Mrs. Young were jointly charged with a single count of possession of cocaine for the purpose of trafficking. Mr. and Mrs. Young both entered pleas of “not guilty” in court in 2020, however, Mr. Young changed his plea from “not guilty” to “guilty”.

Mr. Young is not biologically Indigenous, nor a member of the Skidegate Band and he is not a citizen of the Haida Nation, although he considers himself Haida. Mr. Young described his childhood as being “normal.” Mr. Young met his wife in 1978 and were married in 2000 and stayed together until recently, when Mrs. Young left him. Together they have four children now adult ages. Mr. Young considers himself a high functioning addict, who was able to sustain a long career and raise a family without criminal issues.

As an adult, Mr. Young developed a drug habit and his social peers became mostly other drug users. He began using cocaine in his mid-20s, consuming half a gram to one gram of powder cocaine every weekend. Mr. Young has a dated criminal record that is not particularly relevant to this sentencing, given the time that has passed and the nature of the three convictions. Mr. Young experienced some difficulty with his addictions during his career, but maintains having control over it. The Deputy Chief Councillor for the Skidegate Band Council, has known Mr. Young for in excess of ten years and directly contradicts Mr. Young’s statement that he never sold drugs to children. He states that even while Mr. Young was working, there are three main families that traffic drugs in Skidegate, with Mr. Young’s family being one of them.

There is nothing to equate Mr. Young’s life experience with that of the Haida people specifically or Indigenous peoples in Canada generally. Mr. Young’s circumstances are not unique from those of other non Indigenous offenders. There is nothing in his personal circumstances, or in the manner Mr. Young committed the offence, that leads to the conclusion that Mr. Young’s moral blameworthiness is lessened due to systemic factors or individual Gladue factors. Just because an offender who is not biologically Indigenous self-identifies as Indigenous does not mean that they are entitled, as a matter of law, to have the sentencing judge consider them an Indigenous person for purposes of s. 718.2(e) and the Gladue analysis (R v Antoine, 2017 BCPC 333; R v Lawrence, 2018 BCSC 1319; and R v Kreko, 2016 ONCA 367).

In the sentencing context for the non-biologically Indigenous offender who self-identifies as Indigenous and seeks the benefit of s. 718.2(e) and the Gladue analysis, a number of factors are considered. Although Mr. Young is not an Indigenous offender, it is appropriate to consider a restorative justice approach to his sentencing, albeit it in a modified form. With respect to Indigenous communities, restorative justice ensures that the offender’s sentencing reflects an understanding of the specific First Nations’ cultures, traditions, and hopes for the future. It also means addressing local issues by engaging with the local community. The Community Impact Statement presented on behalf of the Skidegate Band Council served the purpose of enlightening the Court about the local community and allowed the victims of drug dealing and drug addiction in Skidegate a say in the outcome of Mr. Young’s case.

Based upon the entirety of the evidence, Mr. Young falls within the category of busy retail seller or full-time commercial operation. Mr. Young’s moral blameworthiness is at the highest end of the spectrum. The uniqueness of Mr. Young’s situation allows for a significant reduction of sentence from 18 month’s incarceration. However, there should not be a reduction with regard to the two years’ probation, despite the ongoing COVID-19 pandemic, as it will not negatively affect Mr. Young’s health issues, warranting a shorter period of probation (R v Reimer, 2020 BCCA 102). A one-year period of incarceration is a significant reduction from 18 months incarceration, and followed by a two-year period of probation, it is the minimum sentence that the Court can impose. Any lesser sentence would be unfit.