Category Archives: Case Watch

R v Gamble, 2019 SKQB 327

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The accused’s application for a state-funded Gladue Report is dismissed.

Indigenous Law Centre – CaseWatch Blog

 The accused was found guilty for aggravated assault and unlawful confinement of a victim. The victim was waylaid and taken into a house where he was beaten and tortured. He was branded and his finger was cut off.

The sentencing of the accused has been delayed numerous times. The ongoing issue is how best to put required Gladue information (R v Gladue, 2 CNLR 252) before the Court for sentencing purposes. The accused wants a full Gladue Report filed, but has no resources for it. He wants the state to pay for this report. Court Services opposes such an order. The position taken is that there is sufficient information through a series of pre-sentence reports [“PSR”] already filed. Further, it is argued there are other means of putting that information before the Court.

At present there are no national standards and there is no national regulator. No formal accreditation is required to do a Gladue Report, as none exists. Section 718.2(e) of the Criminal Code and R v Gladue and R v Ipeelee, [2012] 2 CNLR 218, require that “Gladue information” be considered by any sentencing judge when dealing with an Indigenous offender. There can be no doubt that modern sentencing requires such a consideration. While s 718.2(e) is silent on how the Court may obtain this required information, for the purposes of sentencing, obtainment of this information is a must.

The defence argued that the information in the PSRs was inadequate. It is unclear by whose standards this would be the case. A major flaw in the accused’s argument was that there are absolutely no standards, nationally or even provincially, for the preparation of Gladue Reports or the type of information a court needs, and that requirement is highly fact-dependant. What is required in one case may not be required in another.

There is no basis in the evidence before the Court or in the law that the Gladue information must come to the court in the form of a report. Even if this Court granted the order sought by this offender, an author would not be identified or an amount for fees be decided for such a report. That is subject to negotiations between a potential author and Court Services. To make an order that is so directive to the executive branch of government is to overstep within the judicial branch. The granting of the relief sought herein is exceptional, rare, and done in response to specific and exceptional circumstances where a PSR does not provide the appropriate information and there is no other way to obtain that information and present it to the court. That is not the case here.

MCW v BC (Director of Child, Family and Community Service), 2019 BCPC 289

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An Indigenous mother’s application to restrict access visits organized by the Director with community members that are not the foster family is dismissed.

Indigenous Law Centre – CaseWatch Blog

The Director in this matter has applied for a continuing custody order [“CCO”] with respect to four children of Indigenous heritage, that were placed in the Director’s temporary care. The biological mother seeks to prohibit the Director from permitting persons that are related to the children and are connected to an Indigenous community, from having access to the children, for fear that the children may be traumatized now that they are used to their non-Indigenous foster family.

MCW is the biological mother of five children. All of her children’s lives have been subjected to temporary placement and interim orders, including orders of supervision while in the care of their mother intermittently. The foster parents of the four youngest children have remained supportive of the mother and have provided the children a loving environment. While the mother is supportive of transferring custody of her children to the foster parents, there has been resistance from the Lake Babine Nation, as they are opposed to Indigenous children being placed in non-Indigenous homes. The Ministry, along with assistance from the Lake Babine Nation, attempted to cultivate a relationship between one of the children and her half-sister. The mother described the removal of one of her children to spend time with the half-sister as traumatic, and feared the Ministry was attempting to break up the four youngest children. The Director submitted that facilitating visits between the two siblings did not constitute abuse or harm. Cultivating this connection is part of the Director’s obligation to maintain or facilitate contact with the extended family of a child in care.

Due to the contentions MCW had surrounding these proceedings, she filed an application for an order restricting access to the children. The mother relied on ss 2(a) and 98(1)(c) of the Child, Family and Community Service Act [“CFCSA”]. The Director referenced Bill C-92 to justify the CCO. Bill C-92 establishes that, when determining the best interests of an Indigenous child, primary consideration is given to the child’s physical, emotional and psychological safety, security and well-being and emphasizes Indigenous children’s right to stay with their families and communities and grow up immersed in their cultures.

Facilitating visits between the one child and her half-sister fell squarely within the Director’s legislated rights, duties and responsibilities as her custodian and guardian. While the visits got off to a rocky start, the submissions that the transitions were then trouble-free were accepted. The visits did not constitute the type of explosive, abusive, or intimidating conduct that s 98 of the CFCSA was intended to target. Accordingly, the mother’s application for an order restricting the access to her children was dismissed.

R v Robinson, 2019 BCPC 273

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Defendant found guilty. The Wabalisla Street on the Bella Bella Indian Reserve is a road within the definition of a “highway” as set out in the Motor Vehicle Act.

Indigenous Law Centre
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The defendant was charged with driving while prohibited, contrary to s 95(1) of the Motor Vehicle Act [“MVA”]. The issue was whether the Crown proved beyond a reasonable doubt that Wabalisla Street located on Bella Bella Indian Reserve is a road within the definition of a “highway” as set out in the legislation. The analysis fell into two areas of consideration: 1) was the road designated or intended for or used by the general public for the passage of vehicles, and 2) are Aboriginal persons living on a reserve members of the general public.

The defence argued the reserve is in essence a closed community and any others who might use the street do so only to the extent which is incidental to the ownership of reserve property. Further, as the community is only accessible by water or air, any of the roads are thus precluded from the characteristics of a public highways within the meaning of the MVA. Bella Bella is a final destination, not a point of passage from one destination to another.

Albeit, there was investment in the network of transportation infrastructure that the community has either expressed or implied invitation to the general public to drive on their roads. The pursuit of tourism gave additional weight to this conclusion. There are numerous community-based resources along this roadway. It has traffic signs, is paved and is passable by two conventional cars. All persons are welcome on the reserve without restrictions or regulations. The defence also submitted that as the community had enacted their own by-law for the regulation and use of vehicles on their reserve pursuant to s 81(1)(f) of the Indian Act, this was evidence of their intent not to be subject to the MVA.

The fact that the community has a parallel regulatory by-law is not demonstrative that they have thus occupied the field through their regulations governing driving nor does it establish an intention not to be bound by the MVA. The defence says that a reserve road used by reserve residents is not a public road and is therefore, not a highway under the MVA. The Crown submits that the definition of a “highway” under the MVA, has use by the general public, which includes those Aboriginal members living on a reserve. The legislative purpose of s 95(1) of the MVA is to provide public protection against those prohibited from driving. The 1800 residents of the Bella Bella Reserve is not a trivial number of people. Collectively, they constitute the “general public”. There is nothing in the MVA that excludes individuals living on a reserve to be considered part of the general public. Therefore, the Crown has proven beyond a reasonable doubt that Wabalisla Street in Bella Bella is a highway under the MVA.

R v Vandal, 2020 BCPC 11

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The sentence imposed on the accused, who is of Indigenous heritage, must denounce and deter his and others conduct, as the many offences committed were serious.

Indigenous Law Centre
Indigenous CaseWatch Blog

The accused is a 46-year-old Indigenous male with a long-standing drug addiction and has in excess of forty convictions for break and enter and a total of sixty criminal convictions. The court has had the benefit of a Pre-Sentence Report (PSR), a Gladue Report, and to the offender’s credit, he has made repeated efforts to conquer his long standing drug addiction. In addition to accessing Indigenous programming in custody, the accused has established connections with Elders, regularly attends sweats, healing circles and weekly smudges. The Gladue Report summarized his childhood abuse, parental instability, early introduction to drug use and his alienation from his Indigenous background. In mitigation, it is significant that the offender pleaded guilty, which represents some expression of remorse.

However, there are many aggravating factors. His lengthy criminal convictions demonstrates that previous efforts to deter him have been unsuccessful, and his history does not support a finding that he is truly dedicated to his rehabilitation. As well, two of his offences were committed while bound by a recognizance. In the circumstances, the offences combined with his personal circumstances demands a sentence that denounces and deters. A sentence of six years less the time served will adequately denounce and deter while still being proportionate. The sentence imposed will provide an opportunity for the offender to continue with his culinary training while permitting him to engage with Indigenous programs.

 

Petahtegoose et al v Eacom Timber et al, 2016 ONSC 2481

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Motion dismissed. The applicants have failed to meet the test for an interlocutory injunction against sustainable forest licence holders.

Indigenous Law Centre
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The applicants that operate Camp Eagle Nest, a not-for-profit corporation, seek an interlocutory injunction preventing sustainable forest licence holders to stop immediately any cutting, road building, or aerial spraying of herbicides on lands promised for survey by treaty in the Benny area. The Camp develops and delivers arts, wilderness education and Anishnawbek cultural and spiritual training sessions that improve First Nations cultural literacy, and also delivers employment training for First Nations youth and families.

The Atikameksheng Anishnawbek First Nation [“AAFN”] Reserve is located adjacent to the city of Sudbury and is outside of the Spanish Forest. In addition to rights to hunt and fish held under the Robinson-Huron Treaty, AAFN asserts that it has traditional territory rights in the area of Benny, within the Spanish Forest. Sagamok Anishnawbek First Nation is also a party to the Robinson-Huron Treaty, and also asserts traditional territory rights in this same area.

The three part test for an interlocutory injunction is set out as follows: 1) the applicant must demonstrate a serious question to be tried; 2) the applicant must convince the court that it will suffer irreparable harm if the relief is not granted; and 3) the balance of convenience must favour the applicant (RJR-MacDonald Inc v Canada, [1994] 1 SCR 311). The remedy of an injunction is an all-or-nothing solution. Either the project proceeds or not.

By contrast, the duty to consult assists in balancing Aboriginal interests and societal interests by reconciling Crown interests with Aboriginal interests. The jurisprudence makes it clear that in disputes involving First Nation peoples and the protection of First Nation culture and heritage, there is a duty to consult and to accommodate the concerns of First Nation peoples wherever possible (Haida Nation v British Columbia (Minister of Forests), [2005] 1 CNLR 72 [“Haida”]). The Supreme Court of Canada makes it clear in Haida that the duty to consult is paramount, but not the duty to agree.

Forest management plans for the removal of timber and the sustainability of forests are created after a long process of consultation and negotiation with stakeholders and people who would be directly affected. The consultative summary submitted to the Court is detailed and extensive. In this matter, there is overwhelming evidence that the duty to consult has been met by the Ministry of Natural Resources and Forestry in attempting to accommodate the concerns of the First Nations Peoples in the Spanish Forest Management Plan in and around the area of the hamlet of Benny. Even applying a low threshold, that threshold has not been met to establish that there is a serious question to be tried.

The applicants have not been specific about the harm that they would suffer if an injunction is not granted. They spoke in terms of generalities. Generalities do not satisfy the degree of proof required to establish irreparable harm. The Court concluded on the evidence and the facts of this case that the applicants have failed to establish all three requirements for an interlocutory injunction.

Further, a First Nations band may authorize an individual to represent its interest for the purpose of asserting the rights of the band, but that was not the situation in the case at bar. The applicants were not authorized by the AAFN to represent or speak for the band in its dealings with the Ministry of Natural Resources and Forestry concerning the Spanish Forest Management Unit in or around the hamlet of Benny. On the contrary, the AAFN was very much involved in the consultative process as seen by the consultative record. The applicants asserted that as First Nations people they are entitled to be consulted separate and apart from the AAFN. The duty to consult exists to protect the collective rights of First Nation peoples and therefore the duty to consult is owed to First Nation groups as a whole and not to individual members of the band (Behn v Moulton Contracting Ltd, 2013 SCC 26).

R v Christopher Ward, 2019 NBQB 068

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Penitentiary sentence ordered for an Indigenous offender after entering a guilty plea. For multiple sentences to be served concurrently, there must be a reasonably close nexus in time and place between the counts and not part of the same unfolding incident that justify treating them as one.

Indigenous Law Centre
Indigenous CaseWatch Blog

The accused pled guilty for numerous criminal charges including robbery with a firearm, having his face masked with intent to commit an indictable offence, unlawfully entering a dwelling house for the purpose of committing an indictable offence, criminal negligence causing bodily harm, and possession of a weapon for a purpose dangerous to the public peace. A pre-sentence report was prepared outlining the offender’s “seriously abusive upbringing.” Since the accused was Indigenous, it was necessary for the Court to interpret section 718.2(3) of the Criminal Code. It was determined that it is the analysis mandated by s 718.2(e) and not necessarily the result that is the correct lens through which the Aboriginal offender must be viewed in applying that provision (R v Gladue, [1999] 2 CNLR 252; R v Ipeelee, [2012] 2 CNLR 218). Once that occurs, the sentencing principles from s 178.2(3) are to be applied.

Since the offender pled guilty to five counts, consideration was given to the application of the principles of consecutive and concurrent sentences regarding each of those offences. In order for the sentences to be served concurrently, there must be a reasonably close nexus in time and place between the counts and not part of the same unfolding incident that justify treating them as one (R v Johnson (1996), 182 NBR (2d) 373). With these principles in mind, the Court reviewed various aggravating and mitigating factors surrounding the crimes and the accused. The most important factor in favour of the offender was that he pled guilty (R v Howe, 2007 NBCA 84). After evaluating the aggravating and mitigating factors, in combination with the accused’s Indigenous background, the court decided on a penitentiary sentence of seven years less time served.

Nogdawindamin and AW, BS and BFN, 2020 ONSC 40

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Appeal granted. Findings of Indigenous heritage requires more than a simple statement of self-identification from an applicant. The need for an evidentiary foundation of connection is a prerequisite for any finding under s 90 of the Child, Youth and Family Services Act.

Indigenous Law Centre – CaseWatch Blog

This is an appeal by the Batchewana First Nation [“Batchewana”] on an order of a motions judge that determined on an interim basis, whether a child in need of protection had an Indigenous background as per s 90 of the Child, Youth and Family Services Act [“Act”].

This Court agrees with Batchewana’s position that the motions judge erred when he decided that, based upon the evidence before him, the child in question had sufficient connection to Batchewana so as to be affiliated with the First Nation for purposes of the Act. Batchewana has not found a community connection of the child to the First Nation. The concern is that the motion judge’s decision could open the floodgates for any claimant to effectively acquire band status or other benefits.

There is considerable precedent to suggest that findings of Indigenous heritage require more than a simple statement from an applicant (Catholic Children’s Aid Society of Toronto v ST, [2019] OJ No 1783; Bruce Grey Child and Family Services v ABC, 2018 ONCJ 516; Children’s Aid Society of the Regional Municipality of Waterloo v CT, [2017] OJ No 6324 (ONCA); Children’s Aid Society of Ottawa v KF, 2015 ONSC 7580). Indigenous membership has expanded to include self-identification, however, there still must be evidence in relation to the child so a determination can be made as to whether access is beneficial and meaningful to them.

In this instance, the evidence relied upon by the motions judge does not meet the necessary threshold. The only evidence is the self-identification of the father, that is found to be insufficient evidence as per the case law. The need for an evidentiary foundation is a prerequisite for any finding under s 90 of the Act. Were this not the case, it is conceivable that numerous people coming before the courts could self-identify as a member of Batchewana, leaving the band with insufficient resources to assist those in need, which constitutes an error in law (Housen v Nikolaisen, 2002 SCC 33). Appeal granted. The matter is remitted to the Ontario Court of Justice for a new hearing.

Beaucage v Métis Nation of Ontario, 2020 ONSC 483

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Motions dismissed. Canada has entered into a recent agreement with the Métis Nation of Ontario that brings closer the recognition of it as a government entity. However, this agreement does not retroactively apply to a past decision on membership, nor does the agreement subject it to public law remedies while it was still considered a private law entity.

Indigenous Law Centre
Indigenous CaseWatch Blog

The applicant asks for a review of a decision that quashed his application for judicial review. In 2017, he was denied membership in the Métis Nation of Ontario [“MNO”]. He sought judicial review of that decision. The motion judge determined that MNO is a private voluntary organization incorporated without share capital under the Corporations Act. While MNO aspires to be recognized as a government with public law responsibilities to its citizens in Ontario, “that objective has not yet been achieved.”

The motion for fresh evidence concerns the Métis Government Recognition and Self-Government Agreement between MNO and Canada [“2019 Agreement”] that did not exist at the time of the hearing that quashed his application for judicial review. Parties are in agreement that admitting fresh evidence on appeals applies to this motion (Palmer v R, [1980] 1 SCR 759). But because this agreement did not exist at the time of the 2017 hearing, the only question is whether the 2019 Agreement would have likely affected that result.

For the 2019 Agreement to have affected the result, either: 1) it must be seen as confirming that in 2017 MNO was already a government; or 2) the entry into the 2019 Agreement must be seen to have made a change to the status of MNO that retroactively applies to the impugned decision. Neither argument can succeed. The fact that MNO was closer to being a government, but had still not yet arrived at formal recognition could not have affected that outcome. If, on the other hand, the 2019 Agreement made a substantial change in 2019 such that MNO is now a government, there is still not basis that the 2019 Agreement has a retroactive effect on the 2017 decision concerning the applicant.

It is inconsistent for the court to find that MNO is subject to the burden of judicial review under the public law as it if were already a government, while MNO is denied the benefits of governmental recognition under Canadian law. It would be invasive and disrespectful for the public law to subject the MNO to judicial review as if it were a government while at the same time denying recognition of such status.

 

R v Marr, 2019 NSSC 327

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Trial adjournment in order for the Respondent’s to make a Rowbotham application for state-funded counsel quashed and remitted back to the trial judge. It is insufficient to simply assert a complex constitutional defence, when the charge itself is not serious.

Indigenous Law Centre
Indigenous CaseWatch Blog

The Respondents are members of the Sipekne’katik First Nation and designated to partake in the Food, Social and Ceremonial fishery for lobster, which permits the fishing of 60 lobsters per day per fisher. The Respondents were charged with two sets of offences pertaining to catching and retaining more than 60 lobsters per day, contrary to s 7 of the Aboriginal Communal Fishing Licenses Regulations. The central issue was whether the trial judge erred in finding that a Rowbotham order was necessary to ensure a fair trial in the circumstances.

The complexity arised from the proposed constitutional defence. As per the air of reality to the defence put forward by the Respondents, there had been no indication of the substance of the defence, only a bare assertion of an Aboriginal or treaty right. There was no direction of how the Aboriginal or treaty rights are allegedly violated by the charges, and therefore impossible to say there was a proposed defence that is factually and legally relevant to the charges. The court on a Rowbotham application cannot simply assume that an Aboriginal person charged with a fisheries offence might have a treaty or Aboriginal rights defence as a basis to order state-funded counsel.

Further, with the bare assertion of an Aboriginal or treaty right, the court would have no way to assess the seriousness or complexity of the proposed defence. The charges were neither serious nor complex. They were straightforward, and there was no prospect of a sentence of imprisonment upon conviction. The only source of complexity was the potential defence to charges that are not, in themselves, serious or complex. Thus, the Respondents did not meet the Rowbotham test, and as such, the trial judge erred in law in finding that a Rowbotham order was necessary to ensure a fair trial.

The Respondents submit the application must be viewed through the prism of the United Nations Declaration on the Rights of Indigenous Peoples [“Declaration”]. As the Respondents provided no argument as to why the Declaration would mandate any particular result, as well as the Declaration is not legally binding, it is therefore not relevant on a Rowbotham application. The last argument raised by the Respondents pointed to sections 7 and 11(d) Charter violations. They did not provide authority for their argument that s 7 is engaged by an alleged violation of an Aboriginal or treaty right. As the court in Rowbotham effectively treated sections 7 and 11(d) as a joint guarantee of fair trial rights, the Respondents argument that a Rowbotham order can rest on a violation of section 11(d) alone, misconstrues the language of the decision.

McLean v Canada, 2019 FC 1075

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Motion approved for the Indian Day School Settlement Agreement.

Indigenous Law Centre – CaseWatch Blog

Motion approved for an Indian Day School settlement agreement [“Settlement”]. To approve a class action, the Court must determine if the settlement is, in all the circumstances, fair, reasonable, and in the best interests of the approximately 120,000 aging people that attended these Indian Day Schools [“Survivor Class Members”] as a whole.

The Settlement provides up to $1.4 billion in compensation to be shared by those who attended the over 700 Federal Indian Day Schools. For over 50 years, many Indigenous children were compelled to attend Indian Day Schools operated by the Defendant. The principal difference between Indian Day School students and Residential School students is that Day School students went home at night. Attendance at these schools was compulsory. Truancy resulted in punishment for not only the student, but also for the family including the cancellation of the “allowance” to which parents were entitled. Although the Defendant does not admit liability in the Settlement Agreement, the Settlement acknowledges that children were divided from their families and culture, and were denied their heritage. Many were physically, emotionally and sexually abused.

The proposed settlement represents access to justice for a class of Survivor Class Members and their spouses, children, and grandchildren. Indian Day School students were not included in the now famous Indian Residential School Settlement [IRSS]. However, many of the same abuses recognized in the IRSS were inflicted on those attending the Indian Day Schools. Not all settlements are good and settlement will not always be better than litigation, but this is a case where this Settlement, although general, is vastly preferable to the risky litigation, delays, costs, trauma and uncertainty inherent in this litigation.

It is important that the Settlement be looked at as a whole. The Court must refrain from rewriting the substantive terms of the Settlement or assessing the interests of an individual class member in isolation from the entire class (Manuge v R, 2013 FC 341; Hunt v Mezentco Solutions Inc, 2017 ONSC 2140). Further, a class action settlement is not required to be perfect as it must only fall within a “zone or range of reasonableness” (Châteauneuf v R, 2006 FC 286; Ontario New Home Warranty Program v Chevron Chemical Co, 46 OR (3d)).

It was determined that the Settlement reduced relevant risks, simplified the compensation process, and allowed family class members who did not receive direct compensation to participate in the healing process through the Settlement’s Legacy Fund. The Court was concerned with the litigation being drawn out, which was particularly meaningful as the Settlement involved an aging class of whom approximately 1,800 pass away each year. These considerations, in combination with the Court’s communication with class members, led the Court to determine that the Settlement was fair, reasonable, and in the best interests of the Class as a whole.