R v Alfred, 2021 BCCA 71

Appeal dismissed. The appellant was convicted of sexual interference and sought to appeal his nine month custodial sentence. The Court found that the sentencing judge clearly considered a number of mitigating factors, including the appellant’s history as an Indigenous person in order to arrive at a sentence that reflected significant restraint. The Court notes that a victim’s willing participation is not an indication that sexual violence has not occurred as sexual offences against children are inherently violent.

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The 27-year-old Indigenous appellant, Mr. Alfred, was convicted of sexual interference and sentenced to nine months imprisonment followed by 24 months of probation. Mr. Alfred attempted to appeal his conviction, but it was dismissed. He now comes before the Court to appeal his sentence. In doing this, the appellant argues that the sentencing judge failed to give effect to section 718.2 of the Criminal Code which sets out the principles of restraint and the need to consider the least restrictive sentence, particularly in the case of an Indigenous offender. The appellant held that the appropriate sentence here would be a suspended sentence, as opposed to the custodial sentence he was given.

In considering Mr. Alfred’s circumstances, the Court had the benefit of referring to a presentence report which also commented on Gladue factors. The report revealed that Mr. Alfred himself was a victim of sexual abuse as a child, was exposed to alcohol abuse, and suffered some dislocation from his family. Having reviewed these circumstances, the Court found that the sentencing judge had adequately considered the appellant’s history as an Indigenous person.

In considering the appellant’s argument that the sentencing judge arrived at a sentence that did not reflect proper restraint, the Court considered the principle of proportionality. Specifically, the Court sought to ensure that the sentence imposed on Mr. Alfred reflected his moral culpability and the gravity of the offence. With regard to this, the appellant submits that the complainant wanted her relationship with the appellant to happen, and that she was not pressured to enter into sexual relations with Mr. Alfred. The appellant submits that the victim’s willingness is a factor differentiating this case from cases of predatory sexual violence against children. The appellant argues that this “willingness” by the victim reduces his moral blame worthiness and is highly relevant to proportionality in this case since indications of predatory sexual violence against children were not present. The appellant holds that this justifies a reduced sentence.

The Court rejects this argument on the basis that it is inconsistent with case law that states that sexual offences against children are inherently exploitative and require higher sentences. (R v Friesen, 2020 SCC 9). The Court concluded that the sentencing judge considered all relevant factors, including the appellant’s history as an Indigenous person, and arrived at a sentence that reflected significant restraint. The Court found that the reasons for the sentence reflect no error in principle nor was the sentence demonstrably unfit.

R v Ireland, 2021 ONCJ 159

An Indigenous first offender was sentenced to a further 100 days over his presentence credit for a jewelry store heist. The value of the stolen jewelry is estimated at over half a million dollars. In lieu of forfeiture, he is fined $162,500.00 to pay in four years, or will have to serve 2 years in custody.

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In 2020, Mr. Ireland, an Indigenous man and first time offender, pleaded guilty to robbery contrary to s 343(a) of the Criminal Code for a jewelry store heist in 2019. Mr. Ireland and his accomplice entered a jewelry store masked and with sledgehammers. After intimidating the staff and smashing cases containing jewelry, they exited into a vehicle driven by a third accomplice. The entire incident was captured on the store’s video surveillance cameras.

At a different location, they changed vehicles driven by a fourth accomplice. That vehicle’s driver was under police surveillance at the time. Police were led to a residence on the Oneida Settlement where arrests were made after a K9 pursuit, and evidence of the robbery was located. The value of the stolen jewellery is estimated to be $530,545. None of it has been recovered.

Mr. Ireland has significant Gladue factors according to a Gladue report and pre-sentence report. He is a member of the Chippewa of the Thames First Nation. The reports, however, have conflicting information regarding his family members’ history in residential schools. What was apparent was substance abuse and domestic violence in his upbringing. He suffers from mental health issues and has limited employment history. Mr. Ireland is a committed father and is nurturing to his family.

Balancing all aggravating and mitigating factors with the sentencing principles, the appropriate sentence imposed on Mr. Ireland was one of four and one-half years in custody. Mr. Ireland is sentenced to an additional 100 days over and above the 385 days of pre-sentence credit he would normally be entitled to, leaving a remainder of 38 months to serve. The Court recommends Mr. Ireland be assessed by Correctional Services under their Indigenous Intervention Centre for possible placement in a Healing Lodge.

Despite Mr. Ireland’s arrest within an hour of a calculated jewelry store robbery, more than half a million dollars of jewelry remains unrecovered. In lieu of forfeiture, there will be a fine of $162,500 pursuant to section 462.37(3). Mr. Ireland has 4 years within which to make payment of the fine. Pursuant to section 462.37(4)(v), in default of payment, he will have the minimum sentence imposed of 2 years custody. The Court waives the application of the victim fine surcharge.

TA v CD, 2021 SKQB 52

An Indigenous mother has been granted custody of her six year old son. She voluntarily placed him with her great aunt when he was a few days old due to her addictions and incapacity to care for him. The aunt will continue to have specified access to the child, as she has bonded with him. The mother has worked hard over the last three years to remain sober and is now in a good position to care for her son along with his two siblings.

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CD, has been the primary care giver of a six year old child and her home has been his primary residence since he was only a few days old. He was placed with CD by his mother, TA, voluntarily, as she was struggling with addictions and knew she could not care for him. The mother is currently caring for two of her other children now that her addictions have been behind her now for almost three years. During this time that she has remained sober, TA went on to get two degrees from First Nations University in Regina and is confident she is capable to have her six year old son now stay with her.

CD, who is TA’s great aunt, has been cooperative with access to the mother, but feels that the boy should continue to live with her as it would be in his best interests. He is very sensitive to disruptions and requires special care and structured routine. CD has informed the Court that it is common both within their family and in First Nation circles to care for mothers who are struggling with raising their children.

TA acknowledges her previous addictions difficulties that included use of crystal meth and alcohol. However, this was due to unresolved trauma. She has worked very hard and has made long term, meaningful recovery and is prepared to become sole parent of her son. TA has put forth the effort to minimize conflict with her aunt over this custody issue, but remains adamant she can now provide for him with her place being primary residence.

The Court finds that a transition, if properly planned and executed will, in the short, medium and long run, to be in the best interests of TA’s son. The connection a child has to his biological parents is of great significance. It is not in his interests to have only a half time relationship with his mother. He will benefit most from living primarily with his mother and maintaining a relationship with his loving auntie. He needs access to both his Catholic roots and his Aboriginal culture. This is who he is at present and who he needs to continue to be until he makes choices himself as to where that leads. A transition period is important and counselling is recommended for the aunt and mother to repair the conflict this custody battle has inflicted on their relationship.

R v A(M), 2020 NUCJ 04

An Inuk woman received absolute discharge for breaching no-alcohol bail condition when she had called RCMP for help in domestic violence situation. The Justice of the Peace noted systemic issues Inuit women face as victims, including disproportionate rates of victimization, distrust of police and lack of social services; a disturbingly similar case one year prior, and did not want to send a message to Inuit women to “call at your own peril”.

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In 2018, A(M), an Inuk woman, who was placed on no-alcohol bail conditions, called police as she was facing a domestic violence situation. When police arrived, however, she was arrested for breaching her bail condition because she was found intoxicated.

Despite entering a guilty plea to the charge, she was sentenced to an absolute discharge for this offence. This case troubling, especially because it is nearly identical to another case, R v K(M), exactly one year prior, where K, also an Inuk woman who had pleaded guilty to breaching her bail for drinking when she was not supposed to. K called the police because she was being assaulted by her boyfriend, and was severely beaten and then held in custody to appear before the court.

In considering both cases of these women who are victims of violence, A(M)’s significant Gladue factors and the Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, the work of Pauktuutit, the Qulliq status of women, among other reports, there cannot be “institutional indifference”. Inuit women should never feel like they must hesitate to call the police for assistance in Nunavut.

R v CZ, 2021 BCPC 25

First time Indigenous young offender sentenced to 24 months’ probation for sexual assault of an inebriated 14-year-old. The Court considered the appropriate principles under the Youth Criminal Justice Act, and determined that a sentence of 24 months’ probation is fitting in light of the circumstance of the offence and the offender.

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C.Z., and Indigenous youth and first time offender, was convicted of sexual assault. He was 16 year’s old in 2018 when he assaulted an inebriated victim, who was then 14 years old. He ignored her pleas to stop and overcame her attempts to resist, forcing sex on her. The victim on the following day of the assault disclosed to her friends, mother, and the police, that the offence occurred in the early hours of the night following a house party.

The Youth Criminal Justice Act [“YCJA”] sets out a sentencing regime which differs from the regime established under the Criminal Code. The YCJA created a separate stream from young persons in recognition of their presumed diminished moral blameworthiness and heightened vulnerability in dealing with the justice system. A Gladue report, and a Psychosocial and Psychological Assessment report were produced to the court by Youth Forensic Psychiatric Services. Among significant Gladue factors, C.Z. had a childhood marred by family violence, poverty, residential instability, parental alcohol misuse, physical and sexual abuse, and transgenerational trauma.

Under s 42(14) of the YJCA, the maximum combined duration of sentences is two years, unless it is a serious offence for which an adult could receive life imprisonment, in which case the maximum custodial sentence is three years. Under s 2 of the YJCA, sexual assault meets the threshold of a “violent offence”, as it is defined as an offence that causes bodily harm. For young offenders, this is to be a highly individualized process which considers the offence, the circumstances of the offence, and the circumstances of the offender (R v PR, 2018 SKCA 27).

The court notes the aggravating factors at play. Despite admitting guilt, C.Z.’s psychiatric assessments demonstrated concern for his risk of recidivism, stating that as the offender continues to mature into adulthood that reassessment is imperative. Despite the offender’s harsh upbringing and admission of guilt, his offence unequivocally and gravely affected the victim’s life. A sentence of 24 months’ probation is appropriate.

AC and JF v Alberta, 2021 ABCA 24

In an appeal regarding an interim injunction that stayed the implementation of amendments made to the Child Youth and Family Enhancement Act that prevented an Indigenous woman to access financial support to help her transition from government care into adulthood. The appellate court found that the chambers judge failed to consider a number of important factors and failed to give adequate weight to the public interest in weighing the balance of convenience. As a result, the appellate court allowed for the appeal and has set aside the injunction.

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There are two applicants within this case – A.C. and J.F., however the applicant J.F. did not file any evidence, and therefore the application was only advanced by the respondent A.C.. A.C. is a 22 year old Indigenous woman whose traumatic childhood resulted in her being in government care since the age of 12. When she turned 18, she became eligible to participate in Alberta’s Support Financial Assistance program [“SFA”], which provided her with transitional social and financial support that, under prescribed circumstances, and could continue until the age of 24. The purpose of the program was to facilitate the transition from childhood to adulthood for children in long term care who, as a result of those circumstances, lack the emotional and financial support to smooth the transition. In 2019, Alberta announced an amendment to the SFA program, reducing the maximum age for SFA assistance from 24 to 22.

A.C. argues that the effect of this sudden and unexpected withdrawal of social and financial support had an incredibly negative effect on her. She challenged the constitutionality of the legislative amendment and the manner which it was carried out, asserting that it breached her section 7 right to life, liberty and security of the person, and her section 12 right to be free from cruel and unusual treatment. She sought out and obtained an interlocutory injunction, which would stay the implementation of the proposed changes pending the full hearing of her Charter challenge. This case deals with Alberta’s appeal of this injunction.

At issue in this appeal is whether or not the respondent met the test for an interlocutory injunction restraining the implementation of this legislation. The decision to grant an interlocutory injunction is a discretionary exercise, with which a tri-parte test should be applied (RJR-MacDonald Inc v Canada (Attorney General), 1994 1 SCR 311). The first step to consider in the test for an interlocutory injunction is whether the applicant has identified a serious question to be tried. The chambers judge found serious questions justifying the interlocutory injunction on three heads: a) infringement of A.C.’s right to security of the person contrary to s. 7 of the Charter; b) cruel or unusual treatment of A.C. contrary to s.12 of the Charter; and c) breach of a fiduciary duty owed by the government to A.C. as a recipient of public support. The appellate court found that the chambers judge erred in identifying the right or freedom in each of these instances and in finding an arguable case that the state action caused or constituted a breach of the right or freedom in question. As a result, the appellate court concluded that the first part of this test was not met.

Since the respondent was unable to meet the first part of the test, it is not strictly necessary to consider the following steps of the analysis which pertain to irreparable harm and the balance of convivence. However, the appellate court considered these steps regardless. With regard to finding irreparable harm, the Court concluded that it was not clear that the respondent proved any potential harm arising from the amendment, much less irreparable harm. With regard to the balance of convenience, the appellate court found that it weighed in favor of dismissing the application for an interlocutory injunction on the basis that the amendment to the legislation was enacted in the public interest. The appellate court concluded their decision by allowing the appeal and determining that interlocutory relief should not have been granted.

R v Herman, 2021 YKTC 12

An Indigenous offender is sentenced to conditional custody to be served in the community with support from the John Howard Society, followed by probation. Although convicted of a sexual assault on an Indigenous woman, a rehabilitative approach is considered appropriate in the overall balancing of the principles of sentencing, which included the accused’s significant Gladue factors.

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Mr. Claude Herman, a 42 year old man and member of the Chipewyan First Nation, was convicted of sexual assault on an Indigenous victim. Mr. Herman groped the woman, while in a highly intoxicated state. This offence occurred within the larger backdrop of the victimization of Indigenous women in Canada. This same backdrop of systemic and individualized factors was also considered in the sentencing as he is an Indigenous offender (R v Gladue, [1998] 1 SCR 688).

Mr. Herman does have a criminal record with two prior convictions for assaults, but also has significant Gladue factors. He has limited education and has had trouble with domestic violence in his common-law relationship. However, he has participated in rehabilitative programming and has avoided trouble during his incarceration. He does have remorse for his actions. Mr. Herman’s substance abuse and associated violent behaviour cannot be dissociated from the Gladue considerations.

If Mr. Herman is able to comply with the rules and requirements of residency at the John Howard Society, then there is a benefit to society in the reduction of the longer-term risk he poses, through his rehabilitation. The Court is satisfied that the victim is not at a risk of harm by Mr. Herman. There is no indication that Mr. Herman poses any significant risk of committing further sexual offences against women. The safety of the community is not endangered by allowing Mr. Herman to serve his sentence in the community, with residency at the John Howard Society and compliance with its rules and requirements as the foundation for the order.

The Court is satisfied that a fit sentence for Mr. Herman is a period of custody to be served conditionally in the community for a period of six months. Mr. Herman will be placed on a probation order for a period of one year with terms, along with a $100 victim surcharge.

R v Bennett, 2021 NLSC 26

A first time Inuit offender, who maintains his innocence, was convicted of sexual assault involving forced anal intercourse with an Indigenous victim. The Court determined that a further 90 days imprisonment and 18 months supervised probation with ancillary orders was fit in the circumstances.

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Mr. Bennett, an Inuit man, was convicted of sexual assault against the complainant contrary to s 271 (1) of the Criminal Code (R v Bennett, 2020 NLSC 147). In 2017, the accused and complainant consensually engaged in sexual intercourse after meeting in a bar and both were heavily intoxicated. After an attempt at anal intercourse, the complainant protested, and the accused acquiesced. However, he attempted again and forced anal intercourse against her will and firm protestations. The complainant subsequently called the police. Upon seeking medical observation, and because she was still inebriated, she gave a formal statement regarding the sexual assault in the following days. The accused has denied any guilt, although he testified he had no recall of the events.

Her explicit communication during their sexual activity, that the accused did not have consent for anal intercourse, did not prevent her from being physically restrained by the accused who forced himself on her anyways. Women are not walking around in a perpetual state of consent from which they must overcome any unwanted sexual contact. All individuals are entitled to have their personal and sexual integrity respected. This means taking the time in all relationships to ascertain whether or not there is consent to particular sexual contact.

The accused has Gladue factors to be considered, but has been a long term relationship and has two children. He is employable as a construction worker and has had a steady work history. Despite his intoxication of the night of the sexual assault he does not appear to suffer from substance abuse. He has no prior criminal history, and now that he has been in remand, fears homelessness and significant debt upon release.

Balancing the mitigating and aggravating factors and relevant caselaw, the fit sentence for sexual assault in these circumstances is the lower range of 3 years imprisonment. A further 90 days in custody from the time already spent in remand and an order for supervised probation of 18 months with ancillary orders, is determined to be a fit sentence.

Nuchatlaht v British Columbia, 2021 BCSC 370

Motion dismissed. The Province opposed the admission of an archaeologist’s report on culturally modified trees in an underlying Aboriginal title claim. It raised issues of bias or impartiality, novel approach, qualifications and necessity of the opinion. The report reached the threshold of requirement of admissibility.

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Mr. Earnshaw, an archaeologist, was asked to address the following by plaintiff’s counsel in an underlying Aboriginal title claim: 1) perform reconnaissance surveys within the Nuchatlaht claim area to understand the condition of recorded Culturally Modified Trees [“CMT”] sites as well as search out and record other previously unrecorded archaeological sites; 2) prepare written reports outlining findings; and 3) prepare a written expert report that includes the extent of archaeological research into the claim area, and what the archaeological record shows concerning the use and occupation of the claim area.

Mr. Earnshaw defined CMTs as archaeological features that refer to any tree with modifications related to the cultural use of the forest by Indigenous people. He testified he was impartial with respect to his opinion (White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23). Experts are experts because they focus on a particular area. They may even express an opinion or theory in their writings, for example, that the less tread there is in a tire the tire more susceptible it is to hydroplaning. That does not mean that their evidence within that area should not be admitted.

Novel theory must be scrutinised at the admissibility stage (R v Bingley, 2017 SCC 12; R v J-L-J, 2000 SCC 51). However, the closer the opinion gets to the ultimate issue, the greater the scrutiny (R v Mohan, [1994] 2 SCR 9). Here the opinion does not approach the ultimate issue. The basis for Mr. Earnshaw’s opinion is not completely untested as it was contained in his thesis and one peer-reviewed article, and he has acknowledged the limits of the report. For example, he said he could not determine which groups were responsible for creating the archaeological sites. This is not a scientific report with formulas and calculations that makes it impossible for the Court to assess.

Mr. Earnshaw completed his master’s thesis on CMT studies on the Northwest Coast and is working on multiple archeology sites in BC, including several along the coast. He might not be a senior person in his field, but he meets the threshold requirement for admissibility (R v Marquard, [1993] 2 SCR 223). Mr. Earnshaw’s report may not give the near-conclusive evidence needed for the plaintiffs but nevertheless it is not irrelevant. The overall question of whether the pitfalls of admitting the report outweigh its usefulness, the Court concludes the report ought to be admitted.

Germa v Canada (AG), 2021 FC 134

An Indigenous inmate sought judicial review on a decision which revoked his statutory release. The Court decided that judicial discretion would not be exercised because the dispute had become moot and because a reviewing court has a traditional role of which it will not depart.

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Justin Germa, the Applicant, is an Indigenous inmate in a federal institution. He sought to obtain the judicial review of a decision made by the Parole Board of Canada. The decision revoked the statutory release of the Applicant. The Appeal Division confirmed this decision because the Applicant had failed to cite reasons justifying intervention. The Court had to decide if judicial discretion should be exercised in these circumstances.

The Applicant did not learn that he was Indigenous until 2016 while serving a sentence in a penitentiary and met his biological father there. He alleged that the Board had not adequately considered his Indigenous status. He further alleged that the Board used actuarial tools inappropriately as part of a psychological assessment contrary to the precedent set in Ewert v Canada, 2018 SCC 30.

A case becomes moot when the decision to be made can no longer have any practical effect on the rights of the parties, for example, because events have occurred such that a live controversy no longer exists (Borowski v Canada (AG), [1989] 1 SCR 342). The Court acknowledged that the live controversy that may have then existed in this case no longer exists. The issue has become abstract and the dispute cannot lead to any decision resolving it. The parties agreed that this dispute has become moot.

The Applicant argued that this case invokes a standard of correctness and falls under one of the exceptions raised in Vavilov v Canada (Minister of Citizenship and Immigration), 2019 SCC 65. However, the Applicant wanted to refer to this Court a moot question not originating in facts giving rise to an administrative decision in a context that is highly specific. This would lead to a significant departure from the traditional role played by a reviewing court. The Court concluded that judicial discretion would not be exercised to hear the application for judicial review despite its mootness.