R v Reddick, 2020 ONCA 786

Posted on January 6, 2021 by thp151

Appeal dismissed. There is no error on the sentencing judge’s imposed sentence of an Indigenous offender who committed a robbery with an imitation firearm. Gladue principles was given appropriate consideration, along with hardships arising from the Covid-19 pandemic related lockdowns in determining a fit sentence.

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Mr. Chad Reddick entered a guilty plea to robbery and using an imitation firearm while committing an indictable offence. This was an extremely serious offence committed by a 33-year-old man with a significant, albeit largely non-violent, criminal record. The sentencing judge imposed a two-year sentence for the robbery, to be followed by the one-year mandatory minimum sentence for the firearm offence. The sentencing judge also granted the Crown a 12-month non-reporting probation order.

Mr. Reddick appeals the sentence imposed, claiming that the sentencing judge erred in applying Gladue principles and failed to pay attention to the sentencing objective of rehabilitation. He argued that there has been a change in the law that makes a conditional sentence possible for the robbery conviction, and that there has been a high frequency of lockdowns Mr. Reddick has experienced related to the Covid-19 pandemic since the sentence was imposed (R v Sharma, 2020 ONCA 478 [“Sharma”]).

Mr. Reddick is remorseful and has commited to change, however, his appeal is dismissed. Despite the fact that Aboriginal Legal Services declined to provide a Gladue report because he and his family members lacked specific information about his Aboriginal ancestry, the sentencing judge accepted that Mr. Reddick was Indigenous and drew on relevant information in the presentence report in order to comply with s 718.2(e). She applied the Gladue principles appropriately and sensitively, as well as considered rehabilitation.

Even if this Court was to accept that after the Sharma decision a conditional sentence may be imposed on a robbery conviction where a weapon is involved, there is no error by the sentencing judge that would permit resentencing Mr. Reddick using this “new” sentencing tool. As well, pursuant to s 742.1 of the Criminal Code, a conditional sentence cannot be imposed unless the accused is being sentenced to less than two years of imprisonment. The trial judge determined that the least restrictive sentence she could impose was two years. Despite hardship arising from lockdowns which can qualify as a collateral consequence that warrants consideration during sentencing (R v Morgan, 2020 ONCA 279), the sentencing judge already took the current Covid-19 pandemic into account on the hardship of the sentence imposed. The Court is not satisfied on the evidence that circumstances have changed to the point where additional credit should be given.

R c Kanatewat, 2020 QCCQ 3293

Posted on January 5, 2021 by thp151

A jail sentence is warranted for the offender who committed a sexual assault on the victim after entering a private residence. Gladue factors were considered, along with other competing sentencing principles, in crafting a restorative sentence that includes probation and community service.

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In 2019, Mr. Kevin Kanatewat, the offender, entered very early in the morning the residence rented by the victim, a male of 30 years old, and sexually assaulted him. The attack lasted approximately one hour and was for the victim intimidating, intrusive, humiliating and a painful experience. The offender was found guilty of sexual assault committed on the victim under s 271 a) of the Criminal Code; two counts of breach of his conditions under s 145; resisting or wilfully obstructing a peace officer in the execution of his duty, s 129 a); and with assaulting a peace officer engaged in the execution of his duties, 270 (1) a). The offender pleaded guilty to failing to comply with a conditions of an undertaking not to drink alcoholic beverages and to not completing all of the 150 hours of community work services he had to execute on a probation.

The Presentence Report mentioned a number of Gladue factors, including an upbringing marked by negligence and violence induced by consumption problems. The offender ceased school in Grade 9 and did not return to any scholastic or vocational program. He has an unstable history of employment where he worked various jobs, some which he lost or quit because of his consumption difficulties. The offender suffers from drug and alcohol abuse but would not participate in any services offered in the correctional facility, nor has he made any therapy demands. There are a number of priors regarding breaches and offenses against persons where the offender got short sentences of jail, generally suspended sentences and probations and even community work. The offender has a low level of maturity and a mitigated sense of responsibility with an elastic capacity for empathy.

This intrusive and forceful sexual assault has seriously harmed the victim, a pharmacy technician, as he suffered a very humiliating and destructive harm on his sense of dignity and security. The subjective gravity of the sexual assault warrants a sentence of jail that symbolizes strong denunciation and deterrence but also calls for weighing appropriately the historic and systemic community background factors as well as the personal background factors in a restorative and individualized fit sentence. This sentence has to be proportionate without trivializing or condoning the violent course of behavior.

The offender’s risk of reoffending is considered high, but could be reduced through the healing process under judicial surveillance. The Court is of the opinion that a sentence of imprisonment of 18 months would be a fit sentence, and probation of 24 months with a long healing and compelling process, along with 240 hours of community work to be performed. The probation and the community work are more likely to get the offender on the right track after a significant term of jail and an involvement in the healing programs.

R v SR, 2020 BCPC 227

Posted on January 4, 2021 by thp151

The Court considered the frequency of sexual abuse perpetrated by a father of a child that took place over the course of a year in 1982. From balancing of the competing sentencing principles and objectives, a period of jail is warranted as the daughter’s emotional, spiritual and physical integrity has been scarred through her lifetime. The father is sentenced to a period of one year jail, without probation after a pre-sentence report and Gladue factors were also considered.

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Over a number of months in 1982, S.R. did indecently assault his daughter J.R. contrary to s 149 of the Criminal Code. The charge is dated, as the offence took place 38 years ago when S.R. was 28 years old and J.R. was 6 years old. She is now 43 years old. In 2018, J.R. reported to the police that her father sexually abused her. The charge is indictable, the accused elected to proceed in Provincial Court, and he pled guilty in 2019. S.R. does not remember any specifics of the sexual abuse but does not deny any of the acts, and told the Court he was drinking alcohol excessively during this time of his life.

Of particular importance in this case is the provision of s 718.01 which deals with offences against children. The Court gives primary consideration to deterrence and denunciation when sentencing for any offence involving abuse of a person under 18. The applicable sentencing principles for child abuse, both statutorily and in the common law, are well established (R v D(D), 2002 CanLII 44915 (ONCA); R v Woodward, 2011 ONCA 610 (CanLII)). The harm is enduring, intergenerational, and well recognized. J.R. is now an adult and has told the Court, through the Crown, that her life has been devastated by this crime. J.R. is an Indigenous woman. With that comes a greater chance that she will be emotionally, physically or sexually abused than if she were not Indigenous.

S.R. is now a 65 year old First Nations’ man. S.R. states he and his cousins witnessed countless acts of sexual violence on a regular basis. He described watching his uncles sexually assaulting women on countless occasions. S.R. saw this so often he states he believed this to be normal behaviour. He was six years old when he was exposed to sexual behaviour and pornographic images. As for alcohol, he spoke of the normalization of excessive alcohol consumption. He grew up believing it was normal to drink non-stop all weekend long and partying until all hours of the night.

When she was 14, J.R. told family members what had happened. Family members and a social worker became involved and some sort of community intervention took place. However, the social worker that became involved was S.R.’s sister-in-law and turned to S.R.’s oldest brother for advice. Subsequently the family decided to deal with the offending in a traditional way and not involve law enforcement. The Court would have welcomed input from Elders as to what the ‘traditional way’ meant. Without a better cultural understanding, the approach taken might leave one with the impression that the issue was simply ‘swept under the rug.’

As for Indigenous background, many of S.R.’s family members went to residential school where they were physically, emotionally and sexually abused. The Court acknowledges the systemic horrors that have taken place on S.R.’s First Nations community as a result of the residential school system. As the Gladue report confirmed, the majority of S.R.’s family was mandated to attend there where for over a decade the school performed horrid nutrition experiments on the children without anyone’s knowledge.

Despite the cultural cuts that residential schools scarred his community with, S.R. is involved with cultural practices such as singing, drumming and other cultural events, including language classes. There is a long list of culturally appropriate supports provided, such as clinical counselling, support groups and relapse recovery options in the community. There is also a Men’s Group that is offered to men who have sexually offended and cultural healing retreats. The Court hopes S.R. can use his position as an Elder in his community and work with others to help support a restorative healing event that can help bring his community together. I hope J.R. is able to have supports in place that make her feel welcome to participate in any community apology.

R v Alphonse, 2020 BCSC 1882

Posted on December 18, 2020 by thp151

A Gladue report and pre-sentence report helped inform the sentence of 44 months incarceration, with credit for 81 days pre-trial detention for an Indigenous man who shot an Indigenous woman, who now suffers from lifelong debilitating injuries from the bullet wound.

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Kelvin Alphonse was with a small group of friends and family at a home, having some drinks and sharing time with one another. Things took a turn and Mr. Alphonse was asked to leave the gathering. He complied but returned a few moments later with a gun and shot Janet Paul as she was walking down the road, having left the party with her nephew. Ms. Paul now suffers lifelong debilitating injuries as a result of the bullet wound. Mr. Alphonse was convicted of that shooting and various firearms offences connected to it. Two of the offences for which he stands convicted carry mandatory minimum sentences of four years.

Mr. Alphonse is a 53 years old Tsilhqot’in First Nation man registered with the Lhtako (Red Bluff) Dene band and a residential school survivor. He has provided the Court with substantial information about his background and about his current circumstances, medically and otherwise in a Gladue Report and a Pre-Sentence Report. His criminal record is indicative of a person experiencing alcoholism. His early record contains convictions for property related offences and impaired driving.

Parliament insists that certain firearms offences must be punished by a prescribed minimum jail sentence. The prescribed minimum sentences at issue here have withstood prior constitutional scrutiny. Parliament also directs sentencing judges to recognize the systemic racism that plagues the criminal justice system and which has caused the disproportionate incarceration of Indigenous peoples (Section 718.2(e) of the Criminal Code; R v Gladue, [1999] 1 SCR 688). At the same time, s 718.2(e), as now constituted, directs sentencing judges to account for harm done to the victim and to the community. In this case, the harm done to Ms. Paul is grave and any sentence must properly reflect that harm. To that end, account is to be taken of Ms. Paul, her pain and suffering and her status as an Indigenous woman.

This proceeding has had a protracted history, impacted by a change of counsel, a constitutional challenge complicated by intersecting sentencing provisions and by a pandemic restricting access to the court. In this case, it is significant that Mr. Alphonse experienced residential schools both first hand and generationally. His experience at the St. Joseph’s Indian Residential School was “formally documented” and is described the horrendous history of the school in the Gladue report. Mr. Alphonse’s teenage years were similarly difficult.

Mr. Alphonse is remorseful and acknowledges the magnitude of the pain and suffering his actions caused Ms. Paul. He recognized the destructive role alcohol was playing in his life and the impact it had on others, most significantly, Ms. Paul. Also mitigating factors are his lengthy attendance at VisionQuest and ongoing involvement in alcohol treatment demonstrates his commitment to ongoing recovery, which includes abstinence for over four years. The Court imposes the sentence of 44 months incarceration, with credit for 81 days pre-trial detention.

* Read “Case highlights ‘tension’ in sentencing Indigenous offenders” here to read Ben Bulmer’s article that discusses complex issues in regards to this case.

Tallcree First Nation v Rath & Company, 2020 ABCA 433

Posted on December 17, 2020 by thp151

Permission to appeal is not needed for a chambers judge reserved decision regarding an appeal by an Applicant law firm that entered into a contingency fee with a First Nation for 20% that resulted in around $11 million dollars for a relatively small amount of work. The decision under appeal is not a decision “as to costs alone.” However, the decision under appeal is interlocutory in nature because the chambers judge’s final order on the amount of recoverable fees has not yet been issued. Appeals of interlocutory decisions are generally discouraged. Interlocutory appeals may turn out to be unnecessary and are normally contrary to the Court of Appeal’s policy against litigation by installment.

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Rath & Company and Jeffrey Rath [“Applicants”] apply for confirmation by way of declaration that they have a right to appeal a decision of a chambers judge overturning a Review Officer’s decision that a contingency fee agreement was reasonable. In the alternative, they seek permission to appeal, if their appeal is of a decision “as to costs alone.”

In 2015, Tallcree First Nation [“Tallcree”] entered into a contingency fee agreement with the Applicants, who were retained to settle certain agricultural benefits claims under Treaty 8 made by Tallcree against the federal government. The initial contingency fee agreed to was 20%. The Applicants resolved the agricultural claims quickly, although Tallcree did not receive the payment of $57,590,375 from the federal government until 2018. The 20% contingency amounted to $11,518,075. Tallcree subsequently applied for a review of the contingency fee agreement under the Alberta Rules of Court. The Review Officer was asked to determine whether the 20% contingency fee was reasonable. It appears that all the Applicants did on this matter was file a formal claim, send a three-page settlement letter, and engage in “minor negotiations”.

The Review Officer found that the contingency fee was “not … clearly unreasonable” based on a comparison with personal injury lawsuits in which a 20% contingency fee is commonly charged in clear cases where liability is not in issue. Tallcree appealed the Review Officer’s decision to the chambers judge who revoked the Review Officer’s decision because the wrong test was applied (“clearly unreasonable” as opposed to “reasonable”). The finding that the 20% contingency was the minimum percentage for cases taken on a contingency basis was unsupported by evidence or authority as it failed to account for other considerations relevant to the reasonableness of the contingency fee. The chambers judge the asked for further written submissions on what the Applicant’s recoverable fees should be. A further hearing took place before the chambers judge in 2020, but the chambers judge has reserved his decision.

No appeal is allowed to this Court from a decision as to costs only unless permission to appeal has first been obtained. It is doubtful that the decision under appeal is a decision “as to costs only”. It concerns a dispute about the recovery of lawyers’ fees between a lawyer and his or her client, not the payment of costs between parties to litigation. Even if a Review Officer’s review of a lawyer’s charges to his or her client amounts to “a decision as to costs alone”, a review of a contingency fee agreement does not. A review of lawyers’ accounts is a largely discretionary exercise but a review of a contingency fee agreement for reasonableness raises issues of principle about whether (and when) clients who enter into such an agreement and allow the lawyer to fulfil the contingency can decline to pay the contractually-agreed contingency fee.

The policy behind the rule requiring permission to appeal for “a decision as to costs alone” does not apply to an appeal of a review of a contingency fee agreement. No previous decision of this Court has held that such an appeal requires permission to appeal its predecessors. The decision under appeal is not a decision “as to costs alone.” However, the decision under appeal is interlocutory in nature because the chambers judge’s final order on the amount of recoverable fees has not yet been issued. Appeals of interlocutory decisions are generally discouraged. Interlocutory appeals may turn out to be unnecessary and are normally contrary to this Court’s policy against litigation by installment.

Pruden v Manitoba, 2020 MBHR 6

Posted on December 16, 2020 by thp151

The Human Rights Adjudication Panel allowed in part the complaint of an Anishinaabe child and his mother alleging government departments denied them health care and related services on the basis of ancestry. Various healthcare services made available to other Manitobans were either denied or delayed based on the Government of Manitoba’s position that they were the responsibility of the federal government. This was obvious adverse treatment and concurrent federal jurisdiction over health care for First Nations did not provide a reasonable justification for discriminatory treatment.

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An Anishinaabe child and his mother complain that government departments have denied them health care and related services on the basis of their ancestry. At the time of the hearing, the complainant Alfred Pruden [“Dewey”] was a 16- year-old Anishinaabe boy. Dewey resided in Pinaymootang First Nation with his mother, the complainant Ms Harriet Sumner-Pruden, and his father.

Dewey was born with many disabilities, including a progressive neurological disorder called Sturge-Weber syndrome. He was prone to seizures during the initial years of his life, requiring him to take many medications. Eventually, Dewey underwent brain surgery when he was four in the hope that the procedure would address his seizures. Instead, he developed new problems: he lost his ability to speak even the very few words that he had previously used; glaucoma led to vision loss; his motor skills were impaired; his overall development was significantly delayed; and, he developed an autism spectrum disorder and attention deficit hyperactivity disorder.

The respondent offered health care and related services to Manitobans afflicted with such conditions, and those services even extended to the parents of children like Dewey. However, the respondent did not make those health care and related services available to Dewey and his mother in the same way that many other Manitobans received them. Sometimes, the respondent simply denied some services. In other instances, services were provided but delayed. In yet more circumstances, services were provided but then intermittently withdrawn. The respondent informed Dewey’s parents that its offering of health care and related services reflected the constitutional division of powers, whereby the federal government was responsible for the provision of health care and related services to Aboriginal individuals living in First Nation communities.

As a result, Ms Sumner-Pruden filed a human rights complaint on behalf of Dewey and in her own right. The complaint alleges that the Manitoba Government had discriminated against Dewey and Ms Sumner-Pruden in the provision of health care and related services on the basis of their Anishinaabe ancestry and Dewey’s disability. Moreover, the complaint asserted that the discrimination had occurred without any bona fide and reasonable cause.

The respondent has discriminated against the complainants. There is no dispute among the parties that Dewey and his mother Ms Sumner-Pruden are Anishinaabe. Their ancestry is a characteristic that the Human Rights Code [“Code”] expressly protects at s 9(2)(a). It is equally accepted that Dewey has a physical and mental disability, which falls within s 9(2)(l) of the Code’s protected characteristics. The same problems did not afflict neighbouring non-First Nations communities, and those residents enjoyed health care and related services without denial, delay, or interruption. As a result, the complainants suffered treatment that was obviously adverse.

The complaint is allowed in part. Taking into account the spectrum of Manitoba awards for injury to dignity, feelings, or self-respect, the adjudication panel awards $30,000.00 to Dewey and $12,500.00 to Ms Sumner-Pruden. The respondent shall hereafter provide health care and related services to the complainants without regard to the fact that they are Anishinaabe individuals who reside in a First Nation community.

Blueberry River First Nation v Laird, 2020 BCSC 1615

Posted on December 15, 2020 by thp151

The Court dismissed various claims against members of two past governments of the First Nation who were also directors of the trustee for a trust for its members. The plaintiffs alleged breach of fiduciary duty, breach of trust, and negligence regarding roughly $11 million of transfers made from the trust to the First Nation over a four-year period. They also sued the former Band administrator for alleged breach of contract and fiduciary duty, negligence, knowing assistance, and knowing receipt. All claims were dismissed and the evidence failed to show impropriety or dysfunction.

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The Plaintiffs sue members of two past governments of the Blueberry River First Nation [“BRFN”], a band as defined in the Indian Act. Against those Defendants, the Plaintiffs allege a breach of fiduciary duty, breach of trust and negligence. The BRFN includes approximately 500 members, about half of whom live on the BRFN reserve. The reserve is located about an hour and a half by car north of Fort St. John, in northeast British Columbia.

The Blueberry Trust [“Trust”], and predecessor trusts, were established to hold and manage $76 million that the BRFN received in 1998 from its claim against Canada for damages arising out of the surrender of reserve land in 1945, and Canada’s disposition of the underlying mineral rights. The central dispute is to do with the transfer of approximately $11 million from the Trust to the First Nation and related entities, in a number of transfers over a four-year period.

The Defendants believe the claims against them in this action are politically motivated, and not based on bona fide legal grievances. There is another defendant, Mr. Laird, who was brought into this case as a defendant at the time when the operating minds of the Plaintiffs appear to have decided that the Defendants were taking money from the Trust for their own purposes. The Court believes the Plaintiffs kept Mr. Laird as a defendant on the theory that the other Defendants would have needed his help in implementing their wrongful plans. The same people who are suing Mr. Laird, however, asked him to come back in 2014, to assist the new government of the Nation for the 10 weeks Mr. Laird had available in his schedule. Mr. Laird had the misfortune to be joined in this action, along with several others against whom the Plaintiffs eventually discontinued their claims, simply because he happened to be one of those who had contracted to work with the Defendants-lead governments. Mr. Laird did excellent work for the Band throughout his employment as Band administrator. It was a difficult role for anyone at any time in the Band’s recent history, given the numerous and serious social problems the Band faces.

The current leadership of the Band points to the value of the Trust dropping substantially while the Defendants were the Chief or on Council, which in itself raised flags of suspicion about possible breaches of fiduciary duty and other wrongs. All of the members of the two Councils in the four year period testified that they considered financial issues within the BRFN as they arose, particularly when such matters were brought before them for consideration and decisions.

Documents in evidence showed during this period, the Chief and Council taking a number of steps to address the BRFN’s financial procedures and financial issues that were of concern at the time. Chief and Council did not have the skills to reform the financial department themselves. All they could do was obtain skilled advice, try to retain skilled employees, and support the reform proposals that were recommended. That is what they did. It was not an easy task, in part because it is difficult to retain skilled employees to work for the BRFN due, at least in part, to the isolation of the reserve. In the circumstances, they generally took appropriate steps, and improved the financial department’s performance while maintaining what they believed was an appropriate balance as between curbing overspending and maintaining needed social and health support programs.

Financial matters were not all that the Chief and Council had to deal with. Of significant importance were the many health and social issues that members of the BRFN faced, and in some cases, struggled with. Drug addition, domestic violence, mental health and the health and safety of the BRFN’s children were all important issues for the Chief and Council to address. The health and wellbeing of the members was a priority for the Chief and Council during this time period. In addition to supporting the health department, school, and working with the RCMP in relation to gang issues, they retained professionals to deliver workshops to the members and provide consulting services, and supported implementing an action plan to address social challenges. The Chief and Council during the four year period also took positive steps toward improving governance by retaining a former Chief, and Calgary lawyer, to prepare a Governance Manual.

The evidence elicited at trial showed a governing group that worked together, did its best to address the many issues and challenges that the BRFN faced during that time, and performed its duties satisfactorily. The claims against the Defendants, for knowing assistance, breach of fiduciary duty and negligence, as well as for breach of trust, are dismissed.

Big River First Nation v Agency of Chiefs Tribal Council Inc, 2020 SKQB 273

Posted on December 14, 2020 by thp151

The Court allowed the First Nation’s application for an oppression remedy against the incorporated Tribal Council in relation to the First Nation’s notice of an intention to resign membership in the Tribal Council in the future. Among other things, the Court considered a Convention Act enacted by the member First Nations to govern their relationship, which was grounded in traditional Cree values and customs. Likewise, Cree principles of respect, cooperation, consensus, and equal representation informed the First Nation’s reasonable expectations.

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Big River First Nation [“BRFN”], brought this application pursuant to the oppression remedy provided under The Non-profit Corporations Act [“NPCA”] for what it alleges is the oppressive conduct of the respondent, Agency Chiefs Tribal Council Inc. [“ACTC”]. ACTC is a non-profit membership corporation under the NPCA, and was created to conduct business and deliver programs to members of the corporation. BRFN, Pelican Lake First Nation and Witchekan Lake First Nation [“Member Nations”] formed a new tribal council in 1991 called the Agency Chiefs Tribal Council [“Tribal Council”]. The Tribal Council was constituted to promote cooperation among the Member Nations and to develop capacity for self-determination.

In 1991, representatives from the Member Nations signed the Agency Chiefs’ Tribal Council Convention Act [“Convention Act”] which contains a number of provisions purporting to govern the relationship between the Member Nations. It is grounded in traditional Cree values and customs and represents the setting down of some of the signatory First Nations’ customs in written form. In 2019, BRFN decided it would take steps to resign from the Tribal Council in order to have exclusive control over its funding, businesses and community services.

The Cree custom or law upon which the Convention Act is derived must inform the Court’s interpretation of the NPCA, as well as the parties’ reasonable expectations relevant to this application. Courts have recognized the existence of a rule of Indigenous law when it is shown that it reflects the broad consensus of the membership of a First Nation (Whalen v Fort McMurray No 468 First Nation, [2019] 4 FCR 217 (FC)). It is uncontroverted that the Convention Act is based in traditional Cree custom and that members of the Member Nations collectively developed and drafted the document.

ACTC takes the position that BRFN’s resignation from ACTC was effective on the date it received notice of a first resignation in the form of a BRFN Band Council Resolution, as two resignations similar in wording were sent, one before and one after a BRFN Chief and Council election. It is ACTC’s view that BRFN is not entitled to make its resignation from membership in ACTC subject to conditions. Consequently, ACTC has filed a Notice of Change of Directors with Information Services Corporation, and removed BRFN’s two representatives from ACTC’s board of directors.

Section 5 of the Convention Act provides that before a Member Nations can withdraw from the Tribal Council, the Member Nations must hold a referendum on withdrawal and receive approval from the membership of the Member Nations, after which the Member Nations may pass a band council resolution. The withdrawal of membership from the Tribal Council is therefore conditional upon the majority support of the Member Nations’ community. BRFN is entitled to make its resignation from ACTC conditional and effective when conditions are met. This is clear because a resignation can be effective at a date in the future specified by the party tendering the resignation (Morin v Saskatchewan (Métis Nation Legislative Assembly), 2020 SKQB 63).

It is the Court’s determination that BRFN did not resign its membership in ACTC when it issued either of its resignations as BRFN’s resignation is properly subject to conditions and its resignation is not effective until those conditions are met. ACTC engaged in oppressive conduct when it treated BRFN’s notice that it would resign its membership in the future as an immediate resignation. It also engaged in oppressive conduct when it unilaterally removed BRFN’s directors from its board. BRFN had not intended to give up its portion of control of ACTC until it had appropriate measures in place to protect funding for its members, businesses and community services. Among other relief, ACTC shall amend its corporate records to restore BRFN’s membership in the corporation and shall replace two of its current directors with named BRFN directors. This will put BRFN in a fair position to negotiate the consequences of its future resignation from ACTC.

R v Soulier, 2020 MBPC 39

Posted on December 11, 2020 by thp151

The Court determined that expert evidence should be admitted from a psychologist on the issue of whether and how an Indigenous man’s severe language disorder might have affected his ability to understand and answer questions in an interview with the police. The expert is uniquely positioned and qualified to provide evidence regarding language disorders among Northern Indigenous persons like the accused.

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The Accused, Mr. Soulier, is from South Indian Lake in northern Manitoba and is a member of the O-Pipon-Na-Piwin First Nations Band. This matter is a follow-up decision regarding the admissibility of expert evidence.The context is a voir dire to determine the voluntariness of the Accused’s police statement. The defence tendered an expert report and viva voce evidence of psychologist, Dr. Ducharme, on the issue of whether and how a severe language disorder might have affected Mr. Soulier’s ability to understand and answer questions in his interview with the police. It was previously determined that Dr. Ducharme’s proposed evidence was logically relevant to the issue of voluntariness of Mr. Soulier’s statement (R v Soulier, 2020 MBPC 4).

Dr. Ducharme’s proposed evidence is that Mr. Soulier has a severe language disorder first diagnosed by a school psychologist in 2015, that the language disorder would have persisted in 2018 at the time he was interviewed by the police, and that it affected his ability to understand and respond to questions in the police interview to the extent that the information he provided in the interview is unreliable.

At the time of the alleged offence on March 18, 2018, he was in an adapted Grade 12 program. He always had difficulty in school and usually had educational assistants working with him. In February 2015 he was referred to a psychologist for an assessment because of the learning challenges he was facing. Through various standardized testing, it was determined that Mr. Soulier’s intelligence was artificially depressed due to his severe deficits in language skills. He was diagnosed with a severe language disorder. Adaptations and remediation can assist a person who has a language disorder, but the language disorder cannot be improved.

Dr. Ducharme has a PhD in Clinical Psychology and has worked as a clinician, supervisor and professor since 1996. Of particular relevance, he has worked with First Nations’ organizations and clients in northern Manitoba for several decades. He has published many papers and publications, presented at conferences and trained many doctors and clinicians. Since 2001 he has worked extensively in First Nations communities in northern Manitoba, especially as additional funding and services have been offered as a result of Jordan’s Principle. He testified that he has conducted cognitive testing approximately 2000 times. Over 70% of the clients have been First Nations people; 50% of the clients have been First Nations people from the north.

Dr. Ducharme testified about the difference between an intellectual disability and a language disorder. It is very common therefore, for people with language disorders to experience depression and anxiety. Dr. Ducharme testified that the severe language disorder would have been present when Mr. Soulier was interviewed by the police in 2018, and it still exists today. Dr. Ducharme opined that the language disorder affects how Mr. Soulier receives and presents information. Mr. Soulier does not have a significant intellectual deficit. Dr. Ducharme testified that Mr. Soulier understands language at a 10-year-old level. He testified that although 10-year-olds can engage in general conversation, if the language becomes “deeper”, or emotion is added to the mix (because emotions impact how we receive and express information) it goes beyond the capability of the average 10-year-old.

To be voluntary, a statement must not be provided in circumstances of oppression and must be the product of an operating mind. The modern rule with respect to voluntariness encompasses the negative right not to be tortured or coerced into making a statement, as well as the requirement that the person have an “operating mind.” Generally, all relevant factors and circumstances should be considered in terms of determining whether a statement is voluntary (R v Oickle, 2000 SCC 38 (“Oikle”)). It is recognized that the determination of oppressiveness has a subjective component. In other words, would a person in the circumstances of the accused experience the conditions as oppressive (Oickle; R v Bohemier, [2002] MJ No 313 (QB))? The Court has watched the police interview with Mr. Soulier and reviewed the transcript. At points in the interview, Mr. Soulier is crying, curled up in the fetal position, banging his head on the wall and appears to be generally distressed. The evidence about Mr. Soulier’s language disorder and whether he understood the police officer and communicated what he wanted to communicate to the officer is legally relevant to whether his statement was voluntary.

The Court will allow Dr. Ducharme’s evidence, however, with the noted exceptions, on the basis that he is not analyzing the police questions so much as providing expert opinion about the likelihood of the subject not understanding. He is not being asked to provide an analysis of the reliability of the statement and whether it is a false confession. The Court is satisfied in considering the legal relevance of the evidence, its necessity, reliability and the absence of bias, and that the benefits of admitting this evidence outweigh its risks.

West Moberly First Nations v BC, 2020 BCSC 1665

Posted on December 10, 2020 by thp151

With a few exceptions, the Court declined to compel the parties to provide further responses to demands for particulars in West Moberly’s lawsuit challenging the Site C hydro project. Most of their points of contention with respect to the pleadings should be addressed through discovery.

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The plaintiffs, West Moberly First Nations and Roland Willson on his own behalf and on behalf of all other members of West Moberly First Nations who are beneficiaries of Treaty 8 [collectively “West Moberly”] seek, among other things, to prohibit the defendant, the British Columbia Hydro and Power Authority, from building a hydroelectric dam and related facilities along the Peace River in northeastern British Columbia, known as the Site C project [“Project”] on the grounds, among others, that the Project infringes their rights under Treaty 8 (West Moberly First Nations v British Columbia, 2018 BCSC 1835).

The parties have been directed to develop a case management plan that would see the trial completed ahead of reservoir inundation, which was then scheduled for fall 2023. In this matter, out of the most recent round of amendments to the pleadings, there are six separate applications under the Supreme Court Civil Rules by which each of the parties seeks further and better particulars of their opponents’ pleadings [“Amended Notice of Civil Claim” or “NOCC”].

The Amended NOCC advances, among other things, new allegations as to the nature of the infringement of Treaty 8 that is alleged; breaches of various duties alleged to be owed by the defendants under the Canadian Charter of Rights and Freedoms and the United Nations Declaration on the Rights of Indigenous Peoples. The Amended NOCC also advances new private law causes of action based on alleged breaches of fiduciary duty, trespass, nuisance, riparian rights, unjust enrichment, waiver of tort and the tort of conspiracy. The subject matter of the claim has been expanded to include all development activities in West Moberly’s traditional territory, including the previous dams built along the Peace River. The amendments have also expanded the scope of the remedial relief sought, so that West Moberly now seeks, in addition to a prohibitive injunction permanently halting the project, a mandatory injunction to restore the land to its former state and damages, including disgorgement of all revenues that the defendants have received from the operation of the dams from their inception.

Although the parties agree on the general principles of law that must inform the Court’s analysis, they disagree on their application to the many contentious demands that are in issue. They join issue in many cases on the question of whether the applicant party is seeking particularisation of the facts that the pleading party intends to prove at trial, as opposed to the evidence that will be called to prove them. The Court refuses to compel the parties to provide further responses to the outstanding demands for particulars, with a few exceptions, due to that what is sought is evidence that is more properly explored through discovery.