Monthly Archives: April 2021

“The ProBono Students Canada Experience” authored by Jodi Hancheroff

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ProBono Students Canada has played a paramount role in my law school career. At the University of Saskatchewan’s College of Law, there exists approximately 20 projects to choose from for the 2020-2021 academic year. These projects allow students to gain volunteer experience in a field of law that is of most interest to them.

In my first year, I was placed with my top choice, the YWCA Survivors’ Toolkit Project. Here, we researched the legal options available to survivors of sexual assault and the laws relating to sexual assault in order to develop a plain language presentation. This presentation was to then be presented to members of the community who were at a high risk of having been a survivor of sexual assault, or who were statistically at a high risk of being sexually assaulted. We learned from a local prosecutor who shared her experiences working in criminal law. This was an invaluable experience as she offered an honest perspective and helped us to manage our expectations when it came to the reality of the criminal justice process. Right before the pandemic halted our group work, my fellow volunteer and friend, JC Steele and I were lucky enough to have been one of the groups to proceed. We presented our findings to the Lighthouse Supported Living shelter in Saskatoon to a group of employees working with our target group. This was an overall incredibly insightful opportunity which improved my understanding of sexual assault law and it prepared me in working with sensitive subject matters.

In my second year I was again placed with my top choice, that being the Indigenous Law Centre’s CaseWatch Blog. Here, I was assigned with one case a week to brief and summarize to be later published on the blog. Our supervising lawyers ensured that we gained strong legal writing skills and the opportunity to advance meaningful access to justice. My favourite part has been learning from all of the different fields of law relating to Indigenous Peoples, such as evidence law, Aboriginal law, Gladue principles, administrative law and human rights. This placement sharpened my legal writing skills and the ability to write concisely which in turn helped with my paper writing skills. Although it was conducted online because of the pandemic, we were never left with the sense that we were alone and I felt completely supported throughout.

I am endlessly grateful for the chance to volunteer with ProBono for the past two years and I hope to continue to do so for my third and final year of law school. These opportunities have allowed me to make meaningful connections not only with my peers but with local and established lawyers. I would highly recommend volunteering with ProBono. Specifically, I would recommend the two above-mentioned projects for eligible students. At the end of the day, the memories I have from my time with ProBono are unforgettable and I would have nothing further but good things to say about the organization and people that I’ve met along the way.

Note*

Tanisi. My name is Jodi Hancheroff and I am a proud nihithaw (Woodland Cree) woman from La Ronge, Saskatchewan. I am currently a second-year law student at the College of Law, University of Saskatchewan. I am mainly interested in pursuing Aboriginal/Indigenous Law. I am volunteering with ProBono Students Saskatchewan in partnership with the Indigenous Law Centre CaseWatch Blog and am looking forward to furthering my understanding of the law surrounding such issues.

Williams Lake First Nation v Canada (Indian Affairs and Northern Development), 2021 FCA 30

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Appeal remitted back to the Specific Claims Tribunal. The Federal Court of Appeal determined that the tribunal was unreasonable in their assessment of the Crown’s fiduciary duty owed towards the appellant First Nation. The tribunal erred by failing to give adequate consideration to applicable common law precedents. This was the result of failing to consider other less invasive and viable options in fulfillment of the Crown’s obligation of minimal impairment, where the taking or expropriation of reserve land is undertaken for a public purpose.

Indigenous Law Centre – CaseWatch Blog

This claim is rooted in the sale of 4.37 acres of land to the Pacific Great Eastern Railway Company in 1914-1915. It occurred in the grander context of British Columbia’s belated efforts to set aside reserve lands for British Columbia’s Indigenous peoples. Central to this claim is the historical backdrop in which the events unfolded and are imperative to the analysis of this case.

At the Specific Claims Tribunal [“SCT”], Williams Lake First Nation had contended that the lands had been wrongfully transferred, or alternatively, that the Crown had breached their fiduciary duty owed to the Band in respect to this transfer of land. The SCT determined that the Band’s specific claim was unfounded. Williams Lake contended that the determination made by the Supreme Court of Canada in Wewaykum was non-binding obiter, and that the application is limited to its fact, or needs to be revisited to apply to the present decision. The SCT rejected this. The SCT turned to the applicable legislation, determining that while the provisional nature of the land did implicate the application of some legislation, that ultimately, the BC Land Act, 1911 enabled the province to grant Crown land for railway purposes, regardless of whether the lands had been reserved under the Indian Act. Lastly, the SCT considered whether the Crown had discharged of their fiduciary duty, and focused their analysis on the monetary compensation, and not the unheeded wish of land in lieu of monetary compensation.

The Federal Court of Appeal determined that Williams Lake appeal must succeed, insofar that the SCT was unreasonable as they “failed to give adequate consideration to the principles established in the applicable common law precedents governing the scope of the Crown’s fiduciary duties to Indigenous peoples in respect of reserve lands”. All that was required for the construction of a canal over reserve lands was the grant of an easement, and that the Aboriginal interest must be preserved to the greatest extent practicable to preserve the taxation jurisdiction of the band (Osoyoos Indian Band v Oliver (Town), 2001 SCC 85). On this vein of analysis, the Federal Court of Appeal cites extensive precedent in line with this principle of minimal impairment, and the failure of the SCT to reach a similar conclusion to similar circumstances in the past. Moreover, the Court finds that the SCT failed to consider such options as an easement, versus a grant in fee simple. The Court determines that the matter is best remitted back to the expertise of the SCT for redetermination.

R v JC, 2021 MBQB 52

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A conditional sentence was considered fit and appropriate for an Indigenous offender that pleaded guilty to assault. He cares for his three children, is not a threat to the community and in keeping with Gladue principles, will keep his family unit together.

Indigenous Law Centre CaseWatch Blog

In 2017, the accused pleaded guilty to assaulting a victim. The victim was 17 and the accused was 22 at the time of the event. Both were intoxicated when they got into a vehicle together. The victim, who was in the passenger seat, passed out and awoke to find the accused on top of her. Despite her struggling, he pinned her down and threatened to hit her. He is now being sentenced for this matter.

The accused has some Gladue factors but had a good upbringing, a history of employment, and is the father of three children that are in his care. He does have an unrelated youth conviction, and not expressed remorse. However, the accused, an Indigenous man from Waywayseecappo First Nation, has a connection to his community. He has participated in sweat lodge ceremonies with his father, as well as on his own. The accused has his own children involved in traditional Indigenous ceremonies. The accused also participated in trapping with his father, when his father used to do so. He also has had issues with substance abuse, but when the accused was charged with this offence, he stopped drinking.

While a custodial sentence is needed to denounce the actions of the accused, a period of actual incarceration is not needed. He is sentenced to a period of incarceration of 9 months, to be served in the community, subject to conditions. As well, a term of probation of 2 years following the completion of the sentence is imposed. The accused is not a danger to the community and the safety of the community would not be endangered by the accused serving his sentence in the community. The accused has care of his three children. The breakdown of familial relationships is a recurring consequence of colonialization. In this case, the accused being incarcerated would continue that intergenerational harm. A conditional sentence would keep this family unit together.

Iskatewizaagegan No 39 Independent First Nation v Winnipeg (City), 2021 ONSC 1209

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Ontario’s motion is dismissed. Ontario moved for an Order to strike out Iskatewizaagegan’s Amended Statement of Claim claiming that it is plain and obvious that Iskatewizaagegan pleading disclosed no reasonable cause of action for breach of a sui generis or an ad hoc fiduciary duty. The Court finds that it is not plain and obvious that Iskatewizaagegan does not have a tenable cause of action based on a sui generis fiduciary duty or an ad hoc fiduciary duty.

Indigenous Law Centre CaseWatch Blog

The City of Winnipeg, Manitoba [“Winnipeg”] extracts its drinking water from Shoal Lake, which is located predominantly in Ontario, but also Manitoba. Shoal Lake has been extracted for this purpose for over 100 years but has not paid anything to the Plaintiff, the Iskatewizaagegan No. 39 Independent First Nation [“Iskatewizaagegan”]. Winnipeg is being sued by Iskatewizaagegan for compensation for injurious affection, with damages claimed at $500 million. Iskatewizaagegan also sues the Province of Ontario, for breach of fiduciary duty.

Iskatewizaagegan pleads two distinct theories of Crown liability for breach of fiduciary duty: 1) a sui generis fiduciary duty based on the relationship between Aboriginal peoples and the Crown; and 2) an ad hoc fiduciary duty. It relies on a 1913 Order in Council along with antecedent Royal Proclamations and Treaties and sequent legislation enacted by Ontario.

In this matter, Ontario moves for an Order to strike out Iskatewizaagegan’s Amended Statement of Claim without leave to amend and to dismiss the action for failing to disclose a reasonable cause of action. Ontario states that it is plain and obvious that Iskatewizaagegan pleading discloses no reasonable cause of action for breach of a sui generis or an ad hoc fiduciary duty. Ontario’s action is dismissed.

The people of Iskatewizaagegan are Anishinaabe. They are a distinct Aboriginal society, a recognized Band under the Indian Act, and an Aboriginal people within the meaning of s 35 of the Constitution Act, 1982. Shoal Lake is a part of the cultural identity of Iskatewizaagegan and its people. Since time immemorial, the Anishinaabe have used the waters of Shoal Lake and the surrounding land for survival. Iskatewizaagegan’s culture is coextensive with Shoal Lake and the surrounding land. The transmission of Anishinaabe teachings, traditions, and values to future generations takes place and continues to take place at Shoal Lake.

Common law real property concepts do not apply to Aboriginal lands or to reserves. Aboriginal title and interest in reserves are communal sui generis interests in land that are rights of use and occupation that are distinct from common law proprietary interests. An Aboriginal interest in land will generally have an important cultural component that reflects the relationship between an Aboriginal community and the land. The Aboriginal interest in land is a sui generis independent beneficial legal ownership interest that burdens the Crown’s underlying title, which is not a beneficial ownership interest and which may rather give rise to a fiduciary duty on the part of the Crown.

Iskatewizaagegan is a beneficiary of the Royal Proclamation of 1763, and was ratified by assembled Indigenous Nations by the Treaty of Niagara 1764. In the summer of 1764, representatives of the Crown and approximately 24 First Nations, met at Niagara. The lengthy discussions lead to the Treaty of Niagara 1764, which was recorded in wampum. The Crown does not recognize the Treaty of Niagara 1764 as substantively altering the legal effects of the Royal Proclamation of 1763. In contrast, First Nations assert that the Royal Proclamation of 1763 must be understood together with the Treaty of Niagara 1764 and so understood the Royal Proclamation of 1763 constitutes a recognition of Indigenous sovereignty.

In 1873, Iskatewizaagegan entered into Treaty No 3 with the Crown. The reserve of Iskatewizaagegan No. 39 adjacent to Shoal Lake was established pursuant to Treaty No 3. Treaty No 3 is a pre-confederation treaty on behalf of the Dominion of Canada and Chiefs of the Ojibway. The Ojibway yielded ownership of their territory, except for certain lands reserved to them. In return, the Ojibway received annuity payments, goods, and the right to harvest the non-reserve lands surrendered by them until such time as they were taken up for settlement, mining, lumbering, or other purposes by the Government of the Dominion of Canada. Although Treaty No 3 was negotiated with the Crown in right of Canada, the promises made in Treaty No 3 are promises of the Crown. The federal Government and Ontario are responsible for fulfilling the promises of Treaty No 3 when acting within the division of powers under the Constitution Act, 1867.

In exercising its jurisdiction over Treaty No 3 lands, Ontario is bound by the duties attendant on the Crown and it must exercise its powers in conformity with the honour of the Crown and the fiduciary duties that lie on the Crown in dealing with Aboriginal interests. The honour of the Crown has been a principle animating Crown conduct since at least the Royal Proclamation of 1763, through which the British asserted sovereignty over what is now Canada and assumed de facto control over land and resources previously in the control of Aboriginal peoples. The categorical fiduciary duty owed by the Crown in the Aboriginal context is sui generis. From the honour of the Crown and the Federal Government’s exclusive jurisdiction in respect of Indians under s 91(24) of the Constitution Act, 1867, the Crown has the responsibility to act in a fiduciary capacity with respect to Aboriginal peoples.

R v RS, 2021 ONSC 2263

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A jury acquitted an Indigenous man of one count of sexual assault, but found him guilty of another count of sexual assault and the offence of choking with intent to overcome resistance to facilitate the sexual assault. A 90-day intermittent sentence for the choking concurrent to a 2-year less a day conditional sentence for the sexual assault are the fit and proportional sentences which will allow the accused to keep his job, while seeking rehabilitation. The sentence is to be followed by probation for 2 years.

Indigenous Law Centre – CaseWatch Blog

The accused and victim initially met at work, where they struck up a friendship. However, in 2018, they both became intoxicated on a social night out. Eventually they reached her residence, but cannot recall all the events that led to it, but became aware of a sexual assault occurring on her in her home. She struggled and repeatedly told the accused ‘no’, and tried getting away. Her throat was grabbed and she was overpowered when he forced himself on her. A neighbor who thought she heard distress, attempted to intervene but both the accused and the victim made it appear that there was nothing wrong. After texting the accused after he left, the victim realized how upset she was and reported her state to a friend, then subsequently called the police.

The accused is 38 years old, and has substantial Gladue factors. He is connected to the Michipicoten First Nation on the shores of Lake Superior. There was domestic violence and substance abuse in his home. There are a number of aggravating factors to consider, however, mitigating factors are present, such as the employability of the accused, he is a first time offender, and has post-secondary education as well as shown insight into his actions, including remorse.

The sentencing in this matter is for two offences, sexual assault and choking. Indigenous women experience disproportionate rates of violent victimization in comparison to their non-Indigenous counterparts. Section 742.1 of the Criminal Code provides for a conditional sentence. The test has several elements: 1) the term of imprisonment must be less than two years; 2) service of the sentence in the community must not endanger the safety of the community; and 3) it must be consistent with the fundamental purpose and principles of sentencing set out in ss 718 to 718.2.

Determining a conditional sentence in this matter will not endanger the community in this matter. The decision whether to impose a conditional sentence must be consistent with s 782.1(e). The Gladue imperative relates to the outcome of the sentencing process, not just the methodology. The Court, however, is troubled by the choking to facilitate an offence, as it is inherently dangerous conduct. Real jail time is necessary to reflect the additional gravity of this act. In this case, the sentence for the choking should be concurrent to the sexual assault sentence. The offences are so closely factually and temporally linked to each other that they constitute a single criminal transaction. It is legally permissible to blend a custodial sentence with a conditional sentence so long as the sentences, in total, do not exceed two years less one day and the court is also satisfied that the preconditions in s 742.1 have been met in respect of one or more but not all of the offences.