Category Archives: Case Watch

R v Overby, 2019 MBQB 102

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Reply

Due to the violent nature of the offence and lack of mitigating factors, the Indigenous offender, convicted of second degree murder, is sentenced to life in prison with no possibility of parole for 15 years.

Indigenous Law Centre
Indigenous CaseWatch Blog

Mr. Overby, an Indigenous man, has been found guilty of second-degree murder for the brutal killing of Christine Wood, a young Indigenous woman he had met on a dating app the same day he had murdered her. After engaging in sexual relations, he proceeded to murder her in the basement of his house. After the killing, he attempted to cover up the murder, until Ms. Wood’s body was found months later by chance.

The Gladue report submitted for Mr. Overby does not highlight any mitigating factors for the offender. He had an unremarkable childhood and the violence committed was considered “out of character”. The Court does not accept his version of events, including having no memory of what occurred.

In considering an appropriate parole ineligibility period, the Court must keep in mind that it must not be less than 10 years or more than 25 years according to s 745(b) of the Criminal Code. Balancing various caselaw with the sentencing principles, the aggravating factors that surrounded Ms. Wood’s unfortunate and violent death, required a more stringent parole ineligibility period (R v Shropshire, [1995] 4 SCR 227).

There were minimal mitigating factors other than the fact that alcohol was consumed by both parties and that Mr. Overby may have been depressed about his relationship situation. At the time of the offence, Mr. Overby had no criminal record at the age of 29 but his moral culpability in this case is very high. 15 years of parole ineligibility is deemed appropriate, but regardless, he remains under the supervision and control of correctional authorities for the rest of his life, including being subject to re-incarceration from parole should he breach any conditions or pose a threat to public safety.

R v Pijogge, 2019 NLSC 15

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An Indigenous offender has shown rehabilitative potential through community ties and strong family connections, however, incarceration is an appropriate sentence.

Indigenous Law Centre – CaseWatch Blog

The offender, while heavily intoxicated, had sexual intercourse with the victim, a close friend. Both the offender and victim were of Indigenous descent. The offence happened in her own home while she was also heavily intoxicated and unconscious. The offender was convicted of sexual assault contrary to section 271(1)(a) of the Criminal Code.

Balancing the sentencing principles with the Pre-Sentence Report and Gladue factors regarding the history of the offender, it was noted that he suffered sexual abuse at the hands of an unrelated male when he was a child, and also witnessed a suicide. Although he has never received counselling for these traumatic events, the offender enjoyed a relatively stable upbringing, with caring parents. He achieved his Grade 12 education, and generally maintained employment. The offender has the support of his family and a long-term partner, along with ties to his Indigenous community, which shows rehabilitative potential in addressing his issues with alcohol.

The presence of a criminal record is an aggravating factor on sentence. The commission of this offence showed an escalation in seriousness as compared to the other kinds of offences the accused committed in the past. Alcohol likely played a role in how the offence came to be committed, however, it may explain but does not excuse the behaviour.

The offence was at the serious end of the spectrum in regards of the gravity of conduct. Taking into account the above circumstances, with an emphasis on deterrence, the fit sentence is incarceration for 30 months, along with other conditions.

R v Gloade, 2019 NSPC 55

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Although a first offender, it is proportionate to the gravity of the fraudulent offences committed, that the Indigenous accused serve a custodial sentence and pay restitution and a fine in lieu of forfeiture.

Indigenous Law Centre – CaseWatch Blog

Ms. Gloade committed two serious criminal fraudulent offences against the Elizabeth Fry Society of Mainland Nova Scotia [“Society”] in her capacity as the Executive Director. The Society is a non-profit, charitable organization that engages with vulnerable women and girls to foster reintegration, rehabilitation, personal empowerment and addresses the root causes of criminalization. The organization is dependant, in part, on donations from the community in its effort to fulfill its mandate of providing programs that support some of society’s most vulnerable women.

Ms. Gloade committed the offences while she herself was in a vulnerable state, as her marriage was failing and she was emotionally and financially stressed. The first offender principle requires that the sentencing judge exhaust all other dispositions, before imposing a custodial disposition (R v Stein, [1974] OJ No 93). The first offender principle has been codified in sections 718 and 718.2 of the Criminal Code.

As well, the Court in this matter considered the “sad life” principle. There is an evidentiary basis for its consideration, including the Pre-Sentence Report, the Gladue Report and the sentencing proposal report arising from Ms. Gloade’s Sentencing Circle. This principle also involves an offender to demonstrate a genuine interest in rehabilitation, for example successfully engaging in counselling or treatment. Cases that consider this principle often involve offenders who are victims of sexual or physical abuse, or have experienced a horrific upbringing.

There appears to be a very low risk for Ms. Gloade to re-offend as she has and continues to take the necessary steps to address the underlying causes of her emotional and financial stresses. Although this Court recognizes that rehabilitation is an important objective in the sentencing calculus, it must not be over-emphasized, as there is a real pressing need in this case for a denunciatory sentence as well as one directed at both specific and general deterrence.

All the relevant purposes and principles of sentencing have been considered by the Court in this matter, including the aggravating and mitigating factors, the Gladue factors, and that the sentence must be proportionate to the gravity of Ms. Gloade’s crimes and her degree of responsibility for having committed them. Ordering both restitution and a fine in lieu of forfeiture fulfills the Parliamentary intention of “giving teeth” to the sentencing provisions. She is also sentenced to 60 days to be served at the Central Nova Scotia Correctional Facility with a significant period of probation. As well, a Prohibition Order under s 380.2 is ordered that Ms. Gloade not seek, obtain or continue any employment, or become or be a volunteer in any capacity, that involves having authority over the real property, money or valuable security of another person for a period of ten years.

 

R v CGJ, 2019 BCPC 252

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A custodial sentence, with a lengthy period of probation, is appropriate and proportionate for an Indigenous offender found guilty of sexually assault. Serving a conditional sentence would not endanger the safety of the community with the imposition of appropriate conditions.

Indigenous Law Centre – CaseWatch Blog

This matter involves the sentencing of an Indigenous man who was found guilty of the offence of sexual interference, contrary to s 151 of the Criminal Code [“CC”]. At the time of the offence he was 18 years of age and the victim was 13 years of age and they both attended the same secondary school.

Sexual interference is a hybrid offence; the Crown may elect to proceed by way of indictment or summary conviction. The Crown proceeded by way of summary conviction, under s 151(b) CC. The convicted is therefore liable upon sentencing to a term of imprisonment of not more than two years less a day, and to a mandatory minimum sentence of imprisonment for a term of 90 days. The convicted has no prior criminal record and is now a first-time offender. He challenges the constitutionality of the mandatory minimum sentence of 90 days imprisonment provided for in s 151(b) CC, as being a violation of his s 12 Charter right of not being subjected to cruel and unusual treatment or punishment.

It was recently held that the mandatory minimum of a one-year term of imprisonment under s 151(a) CC, where the Crown can proceed by way of indictment, violates s 12 of the Charter and cannot not be saved under s 1 (R v Scofield, 2019 BCCA 3). The defence submits part of the individualized sentencing process this Court should consider is a suspended sentence pursuant to s 731(1)(a) CC, with a lengthy period of probation. Alternatively, if imprisonment is necessary, it should be served in the community under a conditional sentence order pursuant to s 742.1 CC, then followed by a significant period of probation. The existence of the s 151(b) CC statutorily prevents this Court from imposing either of the suggested sentences, until it has concluded that the mandatory minimum sentence violates s 12 of the Charter and cannot be saved under s 1. If the Court comes to that conclusion, it can then apply the available remedy within its jurisdiction.

It was agreed among the parties that if this Court found that the appropriate sentence is 90 days or higher, it can impose the sentence without addressing the constitutional question, as it would be unnecessary to do so (R v Lloyd, [2016] 1 SCR 130). If this Court, however, concludes that the proportionate sentence is below 90 days, then it should assess whether the 90-day mandatory minimum sentence is grossly disproportionate personally for the convicted.

Sentencing is an individualized process which requires the court to take into account both the circumstances of the offence and the specific circumstances of the offender (R v Shoker, 2006 SCC 44; R v Angelillo, 2006 SCC 55). Section 718.2(e) does not permit the court to impose an unfit sentence (R v Jackson, 2012 ABCA 154). In deciding whether an Indigenous offender should be incarcerated, a judge must use all available information before the court about an offender to determine whether restorative justice should be given more weight than traditional objectives of sentencing, such as deterrence and denunciation.

In sentencing an Indigenous offender, the sentencing judge must carry out a three-step process: 1) examine the unique systemic or background factors common to Indigenous people as a group; 2) consider the personal circumstances of the offender which resulted in the offender committing the crime for which that offender is before the court; and 3) strive to arrive at a sentence that is informed, just, and appropriate in the circumstances, having regard to the information obtained (R v Gladue, [1999] 2 CNLR 252).

There is no burden on an Indigenous offender to establish a causal link between Gladue factors and the commission of the offences (R v Eustache, 2014 BCCA 337). Although the accused bears the onus of establishing mitigating factors on a balance of probabilities, it can be difficult for Indigenous offenders to establish direct causal links between the circumstances and the offending behaviour (R v Ipeelee, [2012] 2 CNLR 218). While an Indigenous offender need not establish a direct causal link, the Gladue factors nonetheless need to be tied to the offender and the offence in some way (R v DB, 2013 ONCA 691).

The conditional sentence order will permit the convicted to continue to receive the significant benefit of his cultural engagement, the support of his family and his community, be able to continue his employment, and at the same time to receive sex offender treatment. The Accused is sentenced to a five-month conditional sentence order and 30 months of probation. Subsequent to this determination, there will be a pending consideration by this Court of the s 12 Charter arguments.

Mi’kmaq of PEI v PEI (Her Majesty the Queen), 2019 PECA 26

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Appeal dismissed. Prince Edward Island [“PEI”] satisfied the duty to consult with the Mi’kmaq in PEI, when it came to the transfer of the Mill River golf course property to private ownership.

Indigenous Law Centre
Indigenous CaseWatch Blog

The Mi’kmaq in PEI [“Mi’kmaq”] have asserted Aboriginal title to all of the lands and waters of PEI. Their claim is based on exclusive occupancy at the time of first contact with Europeans and at the assertion of British sovereignty. The Province of PEI [“Province”] approved the conveyance of the Mill River golf course and resort to a private sector company. Since the Mill River property was Crown land, and the Mi’kmaq had previously given notice to the Province that it intends to bring a claim for Aboriginal title to all of PEI, the Government initiated consultation.

The Mi’kmaq brought an application for judicial review before the Supreme Court of Prince Edward Island. They sought declarations that the Province failed to adequately consult or accommodate and that the Orders-in-Council approving transfer for the properties are invalid and to be set aside. It was determined that the Province provided the Mi’kmaq with timely and appropriate information regarding its general intention to divest its four golf course properties, including requesting information and evidence in support of the Mi’kmaq claim to Aboriginal title and as to its concerns over potential adverse effect of the proposed conveyance.

The Mi’kmaq in PEI now appeal to this Court. They assert the reviewing judge made numerous errors. They challenge the finding that the Province gave adequate consultation. In this appeal they ask whether the government acted reasonably in carrying out consultation and if it was sufficient in the circumstances. This Court determined that the consultation was reasonable and also points out that the duty to consult was not triggered in the circumstances (Haida Nation v British Columbia (Minister of Forests), [2005] 1 CNLR 72). As to Aboriginal title, there was very little information or evidence provided in support of the assertion that, based on exclusive occupancy at the time of British sovereignty, it had Aboriginal title to all of PEI or the property.

Consultation is a two-way street. The Mi’kmaq provided little by way of evidence or information to show how its asserted title claim would be eventually proven or as to its historic connection with the property. The information provided was mainly repeated assertions with general statements of entitlement to title that did not materially contribute to an evidence-based assessment. The Mi’kmaq claim as presented to the Province was tenuous. A potential for adverse effect needs to be raised. There needs to be a nexus shown between the potential activity on or regarding the land and the interest sought to be protected (Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, [2010] 4 CNLR 250). There was no information or evidence provided to show potential infringement or adverse impact on identified Mi’kmaq interest or association with the Mill River property as a result of conveyance of the property. The reviewing judge performed the proportionality test properly and without error.

R v Balfour and Young, 2019 MBQB 167

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Ms. Balfour’s and Mr. Young’s s 11(e) Charter rights were violated. A stay of proceedings is moot, but an order of costs is just. Consideration should be given to an independent review of the system affecting in-custody accused on remand in northern Manitoba.

Indigenous Law Centre – CaseWatch Blog

Ms. Balfour and Mr. Young are residents of different northern Manitoba Indigenous communities. Each were arrested and charged with Criminal Code offences. Their cases are completely unrelated except they both experienced difficulty having timely bail applications. Each had made an application for a declaration that their ss 7, 9, 11(e) and 12 rights as guaranteed by the Charter of Rights and Freedoms had been violated. Each sought a judicial stay of proceedings of their charges, and costs.

The focus of the Court’s analysis was on s 11(e) of the Charter, the right of a person charged with an offence not to be denied reasonable bail, as it is broad enough to encompass the specific elements of this matter in a holistic manner. The Court found that Ms. Balfour and Mr. Young rights were violated and the Crown did not seek justification for the violation under s 1 of the Charter.

Remand custody is substantially unlike being a sentenced prisoner in a correctional facility or penitentiary. Particularly in northern Manitoba, being in remand custody awaiting some court process or trial is physically and emotionally stressful for many reasons, especially for first offenders and young offenders. An in-custody remand cannot be routine or perfunctory, the remand must be for a good reason. Lack of court resources or time is not a good or valid reason (R v Reilly, 2019 ABCA 212). Such remands cannot be done consecutively with the effect of sidestepping the accused’s right to object or consent to longer delays. This also applies to remands for less than three clear days, where an accused need not consent.

Northern Manitoba residents who are held waiting for bail are moved repeatedly, often driving great distances while locked in crammed vans and in foul weather. It is unsafe for Sheriffs and accused alike, and adds to the chaos of the northern justice system as personal or video appearances are unreliable. Many accused do not stay in remand in the north but are transferred to central or southern Manitoba. Almost all are away from their home community such that personal visits with their counsel, family, children or supports are few and far between, if at all. Telephone communication to lawyers or families is difficult, infrequent and expensive. Accused are housed with all manner of inmates from a mix of backgrounds and temperaments; some of whom are violent, addicted to drugs or alcohol, or have mental health issues. Lawyers deposed that many clients have lost their employment, or have been attacked or threatened, while in remand waiting for bail hearings. Some accused consider pleading guilty just to get out of remand custody.

The remedy for a stay of proceedings is moot. An appropriate remedy under s 24(1) of the Charter, may generally include a stay of proceedings, a reduction of a sentence, or costs. At a minimum, judicial condemnation is required and the Court finds the bail practices in play in northern Manitoba should shock the conscience of any reasonable person. The violations of Ms. Balfour’s and Mr. Young’s Charter rights were directly related to long-standing and glaring systemic issues. Although the breaches were predictable, the issue of processing the potential release of an arrested person is vital. A bail system must be designed to ensure no person’s liberty is improperly usurped. This is of special concern, as many of the communities in the Thompson judicial area of northern Manitoba are Indigenous and many of those citizens suffer the effects of colonization (R v Gladue, [1999] 2 CNLR 252; R v Ipeelee, [2012] 2 CNLR 218).

No other remedy than costs remains available. In the end, Ms. Balfour and Mr. Young will receive nothing for the breaches of their individual Charter rights, but their lawyers will be reimbursed their expenses and receive partial compensation for their efforts.

Makivik Corporation v Canada (Minister of Environment and Climate Change), 2019 FC 1297

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Application for judicial review dismissed. Granting declaratory relief would not be appropriate, as it would affect the parties’ intention to improve the wildlife management system for Nunavik Inuit as established by the Nunavik Inuit Land Claims Agreement.

Indigenous Law Centre
Indigenous CaseWatch Blog

The Applicant, Makivik Corporation [“Makivik”], sought judicial review against the Minister of Environment and Climate Change Canada’s [“Minister”] decision [“Minister’s decision”] regarding the Total Allowable Take [“TAT”] of polar bears in the Southern Hudson Bay [“SHB”] region pursuant to the Nunavik Inuit Land Claims Agreement [“NILCA”] and the Eeyou Marine Region Land Claims Agreement Act [EMRLCA]. Makivik is the legal representative of Nunavik Inuit. It is a non-profit organization with the primary role to administer the lands of the Inuit, as well as to protect the rights, interests and financial compensation provided by NILCA and EMRCLA.

This application primarily concerns Article 5 of NILCA, which establishes a co-management regime that seeks to integrate Inuit knowledge and approaches to wildlife management with Western scientific knowledge. The parties have all made it clear that the conservation and state of polar bears is fundamentally important to the Inuit, other Indigenous people, and society at large. For the Inuit, especially, the polar bear, or “Nanuq” in Inuktitut, is a powerful and meaningful being. Polar bears are prominent in their culture, as they are highly valued and appreciated for their meat and fur. The Inuit have hunted polar bears as a source of sustenance for thousands of years, and many Inuit communities continue to rely on polar bears for both social and economic purposes.

Makivik submits that this case really is not about polar bears, nor is it about the duty to consult. It submits that this case is about the implementation of Inuit treaty rights under NILCA, a constitutionally protected modern treaty which fosters reconciliation. Makivik also claims that the Minister’s decision was neither correct nor reasonable. For relief, it does not seek to quash the Minister’s decision but wants several declarations concerning the Minister’s decision.

The Minister’s decision varied the Nunavik Marine Region Wildlife Board’s and the Eeyou Marine Region Wildlife Board’s [“the Boards”] final decision regarding the TAT and non-quota limitations for the harvesting of SHB polar bears within the Nunavik Marine Region, pursuant to s 5.5.12 of NILCA and s 15.3.7 of the EMRLCA. She rejected the Boards’ initial decision to establish a TAT of 28 polar bears, and for them to reconsider their decision without exceeding a maximum sustainable harvest rate of 4.5 percent. The Boards were also asked to implement a sex-selective harvest of two males for every female bear.

The Court came to the conclusion in this matter, that the Minister’s decision was correct and, with the exception of the issue of using sex-selective harvests and varying other non-quota limitations, the remainder of the Minister’s decision was reasonable. Since Makivik is not seeking to quash the Minister’s decision, then it stands. The temporary nature of the Minister’s decision was a major factor in the Court’s decision. The Court’s role is not to assess the adequacy of each party’s compliance at each stage of a modern treaty process (First Nation of Nacho Nyak Dun v Yukon, 2017 SCC 58). It would be premature for the Court to grant declaratory relief on issues regarding the interpretation of NILCA. By declining to grant relief in the present application, the Court is of the view that the parties would continue to govern together and work out their differences.

R v Big River First Nation, 2019 SKCA 117

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Appeal dismissed. Big River First Nation is a “person” for the purpose of sentencing for a minimum fine of $100,000 after it plead guilty to a summary conviction offence contrary to ss 238(1) and 272(1)(a) of the Canadian Environmental Protection Act.

Indigenous Law Centre
Indigenous CaseWatch Blog

The appellant, Big River First Nation [BRFN], pled guilty to the summary conviction offence of unlawfully failing to comply with an Environmental Protection Compliance Order, contrary to subsection 238(1) and 272(1)(a) of the Canadian Environmental Protection Act [“CEPA”]. The BRFN is a “band” within the meaning of the Indian Act. The sentencing judge found that the BRFN is an “individual” within the meaning of s 272 of CEPA and imposed a $10,000 fine (R v Big River First Nation, 2017 SKPC 16). The Crown appealed and the appeal judge found that the BRFN is a “person” within the meaning of s 272 of CEPA and substituted a sentence of a $100,000 fine (R v Big River First Nation, 2018 SKQB 109). The BRFN in this matter appeals this decision on the grounds that the appeal judge erred in law by finding that BRFN is a “person” within the meaning of s 272 of CEPA. As well, the appeal judge failed to even consider s 273 of CEPA, where the court may impose a fine that is less than the minimum amount if it is satisfied that the minimum fine would cause undue financial hardship.

The distinction as to whether BRFN should be classified as an “individual” or a “person” for the purpose of sentencing is important because of the fine minimums in s 272 of CEPA. An “individual” is subject to a $5,000 minimum sentence, while a “person” is subject to a $100,000 minimum sentence. The sentencing judge held that an Indian Act band is a sovereign nation, not a natural person or a corporation. It was his view that only a corporation can be a legal person and that a band must accordingly be an individual. He concluded that the minimum fine of $5,000 was unreasonable in light of the seriousness of the offence, but that a larger fine would place unnecessary hardship on a community such as BRFN and would damage innocent BRFN members. He imposed a fine of $10,000, noting that any destruction of the BRFN land base and water will be devastating for future generations.

The appeal judge, however, concluded that the respondent was a “person” within the meaning of s 272 of CEPA and fined them $100,000. The term “public body” is well known to the law. There is support for the proposition that the council of a First Nation is a public body (Westbank First Nation v British Columbia Hydro and Power Authority, [1999] 3 SCR 134). As for the meaning of “individual”, there is no definition of that term in CEPA or the Interpretation Act. It has, of course, been interpreted in the context of many statutes and, when used as a noun, has generally been interpreted so as to exclude anything other than a natural person (R v Carroll, 2016 ONCJ 214). There is authority for the proposition that a First Nation may fall within the scope of the term “person” (PSAC v Francis, [1982] 2 SCR 72). It was also determined that an Indian Act Band is a juridical person and is a unique, enduring, and self-governed entity that has distinct rights and obligations (Montana Band v Canada (TD), [1998] 2 FC 3). That supports the conclusion that “person” in s 272(1) includes “public bodies” that are neither bodies corporate nor individuals.

CEPA applies to reserve lands. It also contains mechanisms designed to enable the development of regulations and other measures to bridge the regulatory gap between non-reserve lands, where provincial and municipal laws apply, and reserve lands, where they do not. Those mechanisms provide for the participation of and exercise of jurisdiction by Indigenous governments and the incorporation of Indigenous knowledge. The purpose of sentencing for offences under CEPA is to contribute to respect for the law that is there to protect the environment and human health through the imposition of just sanctions. These objectives are for deterrence and to denounce unlawful conduct that damages or creates a risk of damage to the environment or human health. It reinforces the “polluter pays” principle by ensuring that offenders are held responsible for effective clean-up and environmental restoration.

BRFN submitted it should have the benefit of s 273 if BRFN is found a “person”. From the evidence submitted, the Court could not reasonably support a finding that the BRFN would suffer undue financial hardship from the minimum $100,000 fine.

 

 

Athabasca Chipewyan First Nation v Alberta, 2019 ABCA 401

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Appeal dismissed. The chambers judge correctly declared that: 1) the Aboriginal Consultation Office has authority to decide whether the Crown’s duty to consult has been triggered; and 2) a “mere” taking up of land does not in itself adversely affect the treaty rights of a First Nation.

Indigenous Law Centre
Indigenous CaseWatch Blog

The Athabasca Chipewyan First Nation (ACFN) sought judicial review of a decision of the Aboriginal Consultation Office (ACO) that the duty to consult was not triggered in relation to a pipeline project. The chambers judge did not judicially review the ACO’s Decision about the duty to consult. The ACFN, however, appeal two declarations out of the five that was made by the chambers judge: 1) whether the ACO has any authority in law to make the decision on whether the duty to consult is triggered; and 2) whether the “mere” act of taking up land by the Crown in a treaty area is sufficient to trigger the duty to consult.

TransCanada Pipelines Limited/Phoenix Energy Holdings Limited [“TransCanada”] contacted the predecessor to the ACO, the Alberta Department of Environment and Sustainable Resource Development, seeking guidance on consultation with First Nations for a proposed pipeline project [“Project”]. They were advised that consultation was required with eight First Nations in the affected area. The ACFN was not among these eight. TransCanada decided on its own initiative, however, to provide notice to thirty-three additional First Nations, including the ACFN. TransCanada shared information with respect to the Project and the regulatory process and consulted with the ACFN, funding a study relating to the Project.

Subsequently the ACO submitted its final report [“Decision”] to the Alberta Energy Regulator [“AER”], the decision-maker responsible for approving the construction and operation of the Project. It stated that consultation with the ACFN was not required with regard to the Project. The basis for the Decision was that the Project was outside the geographic area in which the ACO ordinarily requires consultation with the ACFN. The ACO advised that the ACFN was aware of its consultation area. If it wished to modify the area, the appropriate approach was through the GeoData Mapping Project, a cross-ministry initiative whose goal is to create standardized maps, continually updated with contributions from First Nations, of the areas in which First Nations exercise their treaty rights. The purpose of the maps is to provide assistance in determining whether a given project might adversely affect a First Nation’s treaty rights and, therefore, whether the Crown owes a duty to consult.

The AER decides whether to approve pipeline projects such as the Project. The Crown is represented by the Minister of Aboriginal Relations and the ACO is a branch of the Ministry established under the Government of Alberta’s Policy on Consultation with First Nations on Land and Natural Resource Management, 2013. The purpose of the ACO is to manage the consultation process for the Crown and to bring consultation matters under one Ministry, rather than several. It is the ACO’s responsibility to provide advice to the AER on the adequacy of such consultations.

The chambers judge correctly declared that the ACO has authority to decide whether the Crown’s duty to consult has been triggered. The duties of a Minister are normally exercised under the authority of the Minister by responsible officials of a department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the Minister (Carltona Ltd v Commissioner of Works, [1943] 2 All ER 560 (CA)).

Treaty 8 is one of the most important of the post-Confederation treaties. Made in 1899, the First Nations who lived in the area surrendered to the Crown 840,000 square kilometres. The ACFN submits that Treaty 8 gives its members the right to hunt, trap and fish “throughout the tract surrendered excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes”. Therefore, whenever there is a taking up of land anywhere in the land surrendered in Treaty 8, this reduces the available land to Treaty 8 First Nations for hunting, trapping and fishing, and triggers the duty to consult. Any taking up of land triggers the duty.

This dispute is about the meaning of adverse effect. The ACFN’s position is that any taking up of Treaty 8 land automatically has an adverse effect on Treaty 8 rights because it reduces the total land in the Treaty area available to First Nations to exercise those rights. The Crown’s position is that a further step is required to determine if the taking up has, or potentially has, an adverse effect on ACFN’s treaty harvesting rights. The Court agrees that a contextual analysis is required. The signatories to Treaty 8 understood that land would be “taken up” when it was put to a “visible use that was incompatible with hunting” (R v Badger, [1996] 2 CNLR 77). This implies a certain degree of relationship between the taking up and the impact on the First Nation. It cannot be presumed that a First Nation suffers an adverse effect by a taking up anywhere in the treaty lands. A contextual analysis must occur to determine if the proposed taking up may have an adverse effect on the First Nation’s rights to hunt, fish and trap. If so, then the duty to consult is triggered.

Cowichan Tribes v Canada (AG), 2019 BCSC 1922

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Indigenous peoples’ claims require flexibility in order to be fairly adjudicated, but that is not a blanket admissibility of evidence. As with oral history, proving colonial documents has similar difficulties and should only be submitted following an assessment of their reliability.

Indigenous Law Centre
Indigenous CaseWatch Blog

The plaintiffs seek declarations related to Aboriginal title to lands along the south shore of Lulu Island in the City of Richmond. They also claim fishing rights as the Cowichan people had a semi-permanent fishing village called Tl’uqtinus along the south arm of the Fraser River. There is heavy reliance on oral history and hearsay evidence contained in thousands of historical documents and on expert evidence to provide an opinion on the nature and character of the occupation by the Cowichan peoples in the past.

The plaintiffs submit that the defendants improperly objected to the admissibility of the documents. They submit that all of the documents should be admissible for the prima facie truth of their contents, leaving the question of reliability to be considered when assessing the ultimate weight given to the documents. The plaintiffs acknowledge that hearsay is presumptively inadmissible, however, in Aboriginal rights claims under s 35 of the Constitution Act, 1982, the rules of evidence should be broad, flexible and applied purposively to promote truth finding and fairness for plaintiffs faced with having to prove facts across a gulf of centuries (Mitchell v MNR, [2001] 3 CNLR 122 [“Mitchell”]).

Admitting a document into evidence for prima facie truth of its contents does not bind the court to the contents of the document. In some circumstances, however, hearsay evidence presents minimal dangers and its exclusion, rather than its admission, would impede accurate fact finding (R v Khelawon, 2006 SCC 57 [“Khelawon”]). To address this, there have been common law exceptions to the rule against hearsay and the Supreme Court of Canada [“SCC”] developed the principled approach employing a more flexible, case-by-case approach to assessing admissibility. Under this principled approach, hearsay can be admitted if the party tendering it establishes on a balance of probabilities that the twin criteria of necessity and threshold reliability are satisfied (Khelawon). The trial judge acts as a gatekeeper to protect trial fairness and the integrity of the truth-seeking process by protecting against the admission of unreliable evidence (R v Bradshaw, 2017 SCC 35).

In regards to hearsay in Indigenous claims, the SCC recognized the need for a flexible adaption of the traditional rules of evidence in Aboriginal claims cases, but made it clear that the rules of evidence are not to be abandoned. The flexible approach to evidence does not mandate blanket admissibility, and the threshold for reliability, while not high in Aboriginal claims cases, does continue to exist (Mitchell). Historical Aboriginal claims and rights cases have inherent evidentiary challenges. Necessity is almost automatically met given that these cases rely heavily on ancient documents and hearsay evidence of the deceased (Mitchell; Delgamuukw v British Columbia [1998] 1 CNLR 14 (SCC); Tsilhqot’in Nation v British Columbia, 2014 SCC 44).

That assessment may be fairly automatic if the document falls within certain categories, such as public documents, or official communications between persons responsible for stewardship of government. The court can rely on the evidence of experts to provide it with the information necessary to conduct a reliability assessment. The fact that an expert relies on a document does not automatically establish reliability of the document for the court, but it is evidence that the expert finds the document to be reliable. Courts need the assistance of experts to evaluate and understand historical documents. One of the difficulties in this case is that no living person can be called to give eye witness evidence of what was happening in the claim area before, at the time of, and for many decades after first contact with European settlers (Tsilhqot’in Nation v British Columbia, 2004 BCSC 1237 [“Tsilhqot’in BCSC”]).

It is abundantly apparent the parties must rely on historical documents, oral history and traditions, ethnography and archaeology in the proof of their cases. The meaning of documents is not always self-evident and can only be understood in context. That is particularly true of historical documents where it cannot be properly evaluated until the court knows who wrote it, for whom it was written, and, most importantly, why it was written (Tsilhqot’in BCSC). The distinction between threshold reliability and ultimate reliability remains, and the trial judge still must act as a gatekeeper to keep the record free from unreliable hearsay and to protect the fairness and integrity of the trial.