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Quebec (AG) v Picard, 2020 FCA 74

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Appeal dismissed. The Court of Appeal upheld the Federal Court’s finding that the pension plan for Indigenous police officers employed by several band councils in Quebec falls under federal jurisdiction and is a plan registered under the federal Pension Benefits Standards Act.

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The First Nations Public Security Pension Plan [“Plan”] was first registered by the Office of the Superintendent of Financial Institutions [“OSFI”] in 1981 under the authority of the Pension Benefits Standards Act [“PBSA”]. The purpose of that Plan is to provide retirement benefits to the police officers and special constables of a number of police forces of First Nations member communities serving Indigenous communities. The Plan currently covers the police forces under the responsibility of 14 band councils in Quebec.

The police services of the band councils that are members of the Plan are all subject to policing services agreements reached between each of the band councils, the Crown, as represented by the Minister of Public Safety and Emergency Preparedness, and the Government of Quebec. These agreements are made under the First Nations Policing Program [“Program”]. The federal government covers 52% of the costs, and the provincial government covers 48%. Tripartite agreements of the type at issue in this case are apparently preferred by the vast majority of the communities.

OSFI is responsible for regulating and supervising private federal pension plans registered under the PBSA in order to contribute to public confidence in the Canadian financial system (Office of the Superintendent of Financial Institutions Act). To be registered under the PBSA, a pension plan must primarily relate to employment in connection with the operation of any work, undertaking or business that is within federal legislative authority (PBSA). When this is not the case, the supervision of the plan is the responsibility of the provincial authorities.

The Federal Court found that the police officers and special constables hired and remunerated by band councils under a tripartite agreement that also involves the federal and Quebec governments are employed in a federal work, undertaking or business. Consequently, the Federal Court expressed the view that their pension plan was a plan registered under the PBSA and that OSFI should continue to administer the Plan.

This Court is of the view that the Federal Court did not err in allowing the application for judicial review and in declaring that the police officers and special constables hired and remunerated by band councils that are members of the Plan are employed in a work, undertaking or business within federal jurisdiction. Consequently, the PBSA and its Regulations apply to the Plan because the participating employees are employed in “included employment” within the meaning of the PBSA.

In contrast to the Indigenous police officers employed by the Nishnawbe-Aski Police Service Board at issue in a previous Federal Court of Appeal decision, the Indigenous police officers in this matter are employed directly by band councils and associated with the governance of their First Nations, therefore their labour relations are federally regulated.

RF v Kina Gbezhgomi Child and Family Services, 2020 ONCJ 366

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Counsel for a foster parent in a child protection matter was removed from the record based on his prior representation of the child protection agency respondent. The Court took into account the overall negative relationship between Indigenous peoples and the justice system in relation to the need to respect an Indigenous person’s choice of counsel, but held that intervention is necessary in clear cases of conflict in order to mitigate this crisis of confidence. 

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An Anishinaabe child [“NLJ”], a registered band member of Wiikwemkoong Unceded Territory [“Wiikwemkoong”], was removed at birth from the care of her parents by the Children’s Aid Society of Oxford County [“CAS”] and a protection application commenced. The child has significant physical needs that require specialized care both at home and at school. NLJ was placed with the applicant [“RF”] on this protection application proceeding, and who was, at that time, a recognized foster home and the placement was monitored by the CAS. The file was ultimately transferred to Kina Gbezhgomi Child and Family Services [“KGCFS”] and the applicant continued to provide a foster placement for NLJ.

NLJ was made a crown ward under the Child and Family Services Act and remained in RF’s care. Wiikwemkoong passed a Band Council Resolution which provided that NLJ remain in the home of RF pursuant to a Customary Care Agreement. Wiikwemkoong and KGCFS have a “Joint Protocol” [“Protocol”] with respect to the provision of child protection services, which includes Customary Care. The Protocol outlines the relationship between Wiikwemkoong and KGCFS and their inherent right to be involved in decision making on child protection issues.

Mr. Parisé was the primary lawyer retained by the respondent society, KGCFS, for child protection matters when the Customary Care Agreement was finalized. Because of the Protocol, KGCFS is necessarily a party to that agreement. In 2016, the Crown Wardship Order was terminated following a status review application commenced by KGCFS. The existence of the Customary Care Agreement was the basis for the application. Of note, Mr. Parisé was counsel for KGCFS at the time and counsel of record in that proceeding.

The child remained in the home of RF under this Agreement until 2019 when NLJ was removed by KGCFS and placed in another customary care home. The Customary Care Agreement between KF, Wiikwemkoong, KGCFS, and the biological parents of NLJ was terminated sometime thereafter. It was at this time that Mr. Parisé started acting as counsel of record for RF. Mr. Parisé represented RF who filed a status review which was ultimately dismissed without prejudice to the applicant bringing an application under s 81(4) of the Child, Youth and Family Services Act [“CYFSA”]. RF then filed a protection application. KGCFS brought a motion to remove Mr. Parisé as counsel of record a month later, which was the first time the issue of potential conflict was raised with the Court.

On March 16, 2020, the Office of the Chief Justice released a Notice to the Public ordering the suspension of normal court operations in light of the COVID-19 pandemic. As a result, RF’s application was adjourned, and with it, KGCFS’s motion. Subsequently, the Customary Care placement was revoked when the respondent mother withdrew her consent but did not seek custody at that time. NLJ no longer had a customary care placement and KGCFS commenced their own protection application without naming RF as a party. After dealing with the initial removal to a place of safety, the court remanded both matters to the same date to be spoken to in order to deal with jurisdictional issues arising out of the fact that there are now two separate child protection applications dealing with the same child, and which do not have all the same parties. The parties on both applications agreed that this motion would need to be heard first before other substantive issues could be addressed.

The jurisdiction to remove counsel is found in the inherent right of the court to determine “to whom it will give an audience” and that the threshold for court intervention should be high (Windsor-Essex Children’s Aid Society v BD, 2013 ONCJ 43). The test that the courts have developed for determining if counsel should be removed is whether the public, represented by the reasonably informed person, would be satisfied that no use of confidential information would occur (MacDonald Estate v Martin, [1990] 3 SCR 1235 [“MacDonald”]).

Counsel of choice is a foundational principle in the Canadian justice system. It is well established that a litigant should not be deprived of their counsel of choice without good cause. However, this principle is not absolute. The issue in this motion is whether a lawyer who acted on behalf of a society on a child protection file can now represent one of the other parties in a subsequent protection application. The Court determines in this case, that the conflict is one which should disqualify the lawyer from continuing to act on the matter and the lawyer be removed from the record. The courts owe a duty to the Indigenous people they serve to intervene in the clear cases of conflict, in order to mitigate this crisis of confidence.

R v Laforge, 2020 BCSC 1269

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The Court rejected a joint sentencing proposal of 27 months in prison followed by probation for arson related to the burning of a vehicle and a convenience store. Counsel failed to meaningfully consider the Gladue principles and the sentence itself would contribute to systemic discrimination against Indigenous people rather than amelioration. A sentence of time served in custody was imposed instead, which will now be followed by a probation order. 

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Mr. Laforge drove his vehicle into the front window of a 7-Eleven convenience store in Salmon Arm, British Columbia. He then exited his vehicle and poured gasoline into the cab. After everyone left the store, Mr. Laforge then lit his vehicle on fire. The fire spread quickly, causing extensive damage.

Mr. Laforge had been in custody for 548 days by the date of his sentencing hearing. Both counsel gave a joint proposal for a 27-month custodial sentence plus three years of probation. Mr. Laforge has Métis heritage and has been diagnosed with a schizophrenic illness. He did not want to hurt anyone or burn the 7-Eleven down, but to bring attention to his struggles, in particular, his delusional belief that he was being interfered with by intrusive brain-altering and perception-altering technologies.

The Court had the benefit of two well prepared reports, namely a pre-sentence report (“PSR”) prepared by a community corrections officer and a forensic psychiatric report, however, a Gladue report was not submitted. Mr. Laforge suffered abuse as a child and bullying in highschool for his Indigenous appearance. He used drugs extensively and eventually dropped out of school. He has only recently learned of his Métis ancestry, as his father was impacted by the “Sixties Scoop”. He has limited work experience and has a history of mental health problems, posing a moderate to high risk to reoffend without assistance from treatment and supports.

Restorative sentences may be more appropriate for Indigenous offenders, but taking a restorative approach will not necessarily lead to a reduced sentence. Generally, the more serious or violent the crime, the more likely it will be, as a practical matter, that the terms of imprisonment will be the same for an Indigenous and a non-Indigenous offender.

Arson is a serious offence. For sentencing purposes, arsonists can generally be divided into four types: pyromaniacs or persons suffering from mental illness; people who burn for no special reason; vandals; and people who burn for revenge or financial gain. Of these, persons who are suffering from mental illness are often considered to have the lowest level of moral blameworthiness while those who commit arson for revenge or financial gain are generally considered to have the highest (R v KH, (1994) 146 NBR (2d) 372 (CA)).

Given Mr. Laforge’s Indigenous heritage, mental health issues and highly reduced level of moral blameworthiness, the joint submission seems overly harsh, in that it would bring the administration of justice into disrepute or would otherwise be contrary to the public interest (R v Anthony-Cook, 2016 SCC 43).

R v Neasloss, 2020 BCPC 161

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The Court accepted a joint proposal for a 10-month conditional sentence served in the community for possession of child pornography. The Court did express misgivings with the absence of any independent or expert evidence in the record to justify the proposal as no Gladue report, pre-sentence report, or psychiatric assessment was obtained. The proposal was accepted, however, due to the high standard for any judicial departure from a joint submission on sentence.

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Tyler Eugene Neasloss was charged with distributing and possessing child pornography contrary to the Criminal Code. At the sentencing hearing the Crown and defence jointly proposed a sentence comprising of a ten-month conditional sentence [“CSO”], three years’ probation and four ancillary orders. The Court questioned whether a non-custodial sentence was appropriate in the circumstances of the offence and offender. Although, not convinced a CSO gives proper effect to the sentencing principles of parity and proportionality, the Court is bound by the Supreme Court of Canada’s directive that trial judges are to follow joint submissions in all but the rarest of cases. The Court can only depart from a joint submission if it is so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons to believe that the proper functioning of the justice system had broken down (R v Anthony-Cook, 2016 SCC 43).

In 2018, Facebook, a United States social media corporation, reported the transmission of suspected child pornography to the National Centre for Missing and Exploited Children [“NCMEC”]. The following day, NCMEC reported the transmission to the BC Integrated Child Exploitation [“ICE”] Unit of the Royal Canadian Mounted Police [“RCMP”]. The BC-ICE Unit determined that two images sent by a Facebook user met the definition of child pornography and forwarded a report to the New Hazelton RCMP detachment. The Facebook user had used an identifying IP address. The RCMP obtained and executed a search warrant at a residence, at which time they arrested Mr. Neasloss. The RCMP seized several items from Mr. Neasloss’ bedroom. Mr. Neasloss confessed to possessing child pornography and viewing images of pre-pubescent boys and girls performing various sexual acts. He denied ever touching a child sexually, expressed shame and wrote a written apology to his family for what he has done.

Mr. Neasloss was 30 years old at the time of the offence and has no criminal record. Mr. Neasloss is a member of the Gitxsan Nation. In Grade 8, while attending Skeena Junior Secondary School, Mr. Neasloss left school, never to return. He lives a narrow, lonely and solitary life with his father, where he stays home, watches television and is not otherwise socially engaged. Mr. Neasloss does not drink or smoke or use drugs. He has no friends or intimate partners, past or present, no children, does not work and has a negligible work history. Mr. Neasloss lives on social assistance and although he might qualify for a disability pension, he is unable to navigate the application process.

Typically, before imposing sentence on an offender convicted of possessing child pornography, the trial judge has the benefit of a pre-sentence report and a psychiatric and psychological risk assessment. When the offender is Indigenous, the court often receives a Gladue report, In this case, the Court has no such reports. There is no Gladue report and only a faint thumbnail sketch of Mr. Neasloss’ personal history. The Court, however, is acutely aware of the challenges facing Indigenous people in this region. The systemic and background factors affecting Indigenous people in Canadian society have likely impacted Mr. Neasloss’ life in such a way as to diminish his moral culpability.

The Court does not know the nature or severity of Mr. Neasloss’s asserted psychological, cognitive and social impairments. Apparently, he has the intellectual skills to navigate the dark web to access child pornography, and the psychological dysfunction to do so. Both counsel, however, argue that sentencing ought to proceed in the absence of presentence reports or psychological assessments in order to minimize delay and expedite Mr. Neasloss’s access to treatment. Both counsel are experienced and clearly considered the systemic benefits of Mr. Neasloss’s guilty plea to justify a non-custodial sentence. The crafting of the sentence endeavours to protect the community from the risk of Mr. Neasloss reoffending through a combination of rehabilitative and restrictive conditions contained in various court orders. The Court endorses the joint submission as advocated by counsel.

R v Hoshal, 2020 ONCJ 345

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The Indigenous defendant breached a Long Term Supervision Order on two separate accounts by consuming prohibited substances. This resulted in just one additional day in custody based on credit for pre-sentence custody and the collateral consequences of COVID-19 in the Toronto South Detention Centre, including the suspension of culturally appropriate programming and activities. Gladue factors contextualized his youth criminal record and indicated a need for restraint.

Indigenous Law Centre – CaseWatch Blog

Mr. Hoshal has pled guilty to two separate counts of breaching the conditions of his Long Term Supervision Order [“LTSO”]. Both breaches involved the consumption of substances prohibited by this order. His risk of violent future re-offence is directly linked to whether he can abstain from the consumption of alcohol and drugs. Breaching an LTSO is not like breaching probation or bail. It is met with significant jail terms. The public loses confidence in the judicial system when offenders breach court-ordered terms. He has been detained at the Toronto South Detention Centre.

Mr. Hoshal’s childhood was mired in trauma, abandonment, and abuse. Mr. Hoshal is forty years old and has a serious criminal record that includes approximately 25 convictions for domestic violence, all rooted in substance misuse and abuse. Mr. Hoshal is a non-status Blackfoot on his father’s side. Upon discovering this Indigenous heritage, he attempted to learn more about it on his own. He twice moved onto a reserve, only to feel isolated and singled out, sometimes violently, because he appeared “white”. The information he has managed to obtain about his Indigenous heritage has largely come from programs in jail. Otherwise, he has been disconnected from his Indigenous culture.

Mr. Hoshal’s punishment must be tempered as much as possible without displacing the fitness of the sentence, by the exercise of restraint. In order to rehabilitate oneself, hope is necessary. The conditions of Mr. Hoshal’s presentence custody, including the COVID-19 consequences, have amplified anxiety and stress, isolated him from supports, and caused him to lose hope. The harsh presentence custody conditions at the TSDC upon Mr. Hoshal personally, and the impact of COVID-19 adds to the already deplorable conditions. Mr. Hoshal’s global sentence of 14 months less presentence custody remains fit and within the range.

Fontaine v Canada (AG), 2020 ONCA 540

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The Court of Appeal declined a request to stay the destruction of the SADRE database used to manage Independent Assessment Process claims under the Indian Residential Schools Settlement Agreement pending an appeal. All parties consented to an order for an expedited appeal and the preservation of the database until December 30, 2020, which was ordered on a schedule that would make the stay unnecessary.

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This motion for a stay arises in the context of the Indian Residential Schools Settlement Agreement [“IRSSA”]. The IRSSA resulted in the establishment of the Independent Assessment Process [“IAP”], under which former students who suffered physical, sexual, or psychological abuse could claim compensation. The IAP is administered by the Indian Residential Schools Adjudication Secretariat [the “Secretariat”] under the direction of the Chief Adjudicator. Over 38,000 claims have been processed in the IAP and over $3 billion disbursed to former students. The Secretariat uses a database known as SADRE to case-manage the IAP claims. The IAP is coming to an end, and the Secretariat is to be closed and all claims adjudicated by March 31, 2021.

The Chief Adjudicator sought directions on the disposition of certain records [“Non-Claim Records”] held by the Secretariat. He made a proposal to archive most of them with the Appellant, the National Centre for Truth and Reconciliation [“NCTR”]. Its mandate under the IRSSA is to archive and store records collected by the Truth and Reconciliation Commission and other records relating to what were known as Indian Residential Schools. This proposal was supported by the Appellant and others, but not by the Respondent, the Attorney General of Canada [“Canada”]. The proposal was rejected on January 20, 2020, and Canada was instead directed to bring a Request for Directions [“RFD”] for court approval of a proposal for the archiving of copies of the Non-Claim Records with the Appellant subject to certain delineated principles.

“Final Static Reports” were to be excluded from the Non-Claim Records to be archived, as the generation of such reports would contravene the orders made in Fontaine v Canada (AG), 2014 ONSC 4585. Final Static Reports are new reports generated from the SADRE database used by the Secretariat and reflect final process and outcome data of the 38,000 IAP claims administered under the IAP. Final Static Reports include tables that represent a fixed extract from SADRE at the end of the IAP. It was determined that the reliability and soundness of the models is doubtful without more information and truth and reconciliation would not be advanced, therefore the Final Static Reports should not be archived with the Appellant and not to be included in the IAP Final Report.

A number of orders have been made by the supervising courts in the course of the administration of the IRSSA. Three that are the subject matter of the stay motion have ordered that the SADRE database be destroyed. These courts have also issued various sunset orders governing the orderly closure of the IAP claims process, the expiry of the Chief Adjudicator’s mandate, and the wind-up of the Secretariat. The process to effect the destruction of SADRE could begin on December 31, 2020 and the Secretariat itself is to close on March 31, 2021.

In a nutshell, the Appellant’s primary position on appeal is that invaluable information will be permanently lost if the Final Static Reports are destroyed. However, Canada’s position is that the Appellant’s request to halt the destruction of SADRE is non-justiciable, a collateral attack on the In Rem order already made, and amounts to re-litigation.

The overarching consideration is whether the interests of justice call for a stay (Zafar v Saiyid, 2017 ONCA 919; Longley v Canada (AG), 2007 ONCA 149). In this case, a stay is declined. The parties all consent to an order for an expedited appeal and the orders that the Appellant seeks to stay preserve the SADRE database until December 30, 2020. As a result, a stay is unnecessary if an expedite order is granted and the appeal is heard by the end of October or early November and decided before the end of the year. Therefore, it is reasonable to expedite the Appellant’s appeal.

Southeast Collegiate Inc v Laroque, 2020 FC 820

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Application allowed. A Canada Labour Adjudicator committed an error of law by failing to apply the correct legal test to determine if he had jurisdiction to hear an employee’s wrongful dismissal complaint. He erroneously concluded the presumption of provincial regulation of labour relations had been rebutted based on a provision of the Indian Act, the identity of the students, and the program’s emphasis on cultural sensitive education.

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The Court allowed an application for judicial review from a Canada Labour Adjudicator’s decision that the Southeast Collegiate Inc. is a federal undertaking to which the Canada Labour Code [“CLC”] applies. This corporate entity was created by the Southeast Tribal Council to deliver culturally sensitive high school education to Indigenous students from across Manitoba.

The Respondent complained under the CLC that she was wrongfully dismissed. She therefore bore the onus to adduce evidence to rebut the presumption of provincial authority. The Adjudicator addressed the two issues put forward regarding jurisdiction and the dismissal of the Respondent. Ultimately the Adjudicator found that the facts set out in the termination letter were proven and that the dismissal of the Respondent was justified. He also determined that the Applicant was a federal undertaking to which the CLC applies [“Decision”]. The Applicant does not challenge any of the fact-finding in the Decision. The Applicant seeks judicial review because it maintains that, in light of the relevant jurisprudence, it is not a federal undertaking for the purpose of employment.

It has been acknowledged that strictly speaking, this issue is not a genuine constitutional one as it is not concerned with whether a particular statute is intra or ultra vires the constitutional authority of the enabling government. However, there is a rebuttable presumption that labour relations are a matter of provincial jurisdiction (NIL/TU,O Child and Family Services Society v BC Government and Service Employees’ Union, 2010 SCC 45 [“NIL/TU,O”]; Treaty 8 Tribal Association v Barley, 2016 FC 1090).

The Applicant established and operates a high school for Indigenous students with classes for grades 10, 11 and 12. The school draws students from sixteen Indigenous communities across Manitoba. It serves all of Manitoba but is targeted to those communities that do not have their own local high school. The school is located in the City of Winnipeg. Students are required to live in campus dormitories during the school year except during holiday periods.

The Southeast Tribal Council and the Federal Government of Canada are parties to an annual contribution agreement to fund the operation of the school. It provides funding for the operation of the Applicant and pays the tuition and boarding fees for each Indigenous student. While the Federal Government funding is the primary source of money received by the Applicant, non-Indigenous students are allowed to attend the school if they pay the annual tuition.

Although the school is not governed by The Public Schools Act of Manitoba, the Applicant’s teachers are required to hold a Provincial Teaching Certificate. The compulsory provincial high school courses are offered by the Applicant. The annual contribution agreement requires that the Applicant follow the Manitoba Ministry of Education Curriculum in order to receive the funding. Course curricula are accredited and provided by the province of Manitoba. As a result, graduating students receive a high school diploma that is recognized by the Manitoba Board of Education and by post-secondary institutions.

In NIL/TU,O, the Supreme Court indicated that the functional test “calls for an inquiry into the nature, habitual activities and daily operations of the entity in question to determine whether it constitutes a federal undertaking” (NIL/TU,O). The Adjudicator was required to consider the functional test established by the Supreme Court of Canada in NIL/TU,O and, in doing so, he had to correctly apply it. The Adjudicator did neither. Because the Adjudicator found that it did not arise, there is no indication in the Decision that the presumption of provincial authority over this Applicant’s labour relations with the Respondent was rebutted. Unless the presumption is rebutted, the Province of Manitoba had jurisdiction over the relationship between the Applicant and the Respondent. Instead of applying the functional test, the Adjudicator substituted his own view that the presumption did not arise. In that respect, the Decision is based on an error of law.

Gamlaxyeltexw v BC (Minister of Forests, Lands & Natural Resource Operations), 2020 BCCA 215

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Appeal dismissed. The hereditary chiefs of the Gitanyow people are actively pursuing an Aboriginal title and rights claim that includes an area that overlaps with the Nisga’a Final Agreement. The concerns regard the decision of the Minister on the basis of a breach of the duty to consult. The lower court decision added an extra step to the Haida test in cases where there is an overlap between established treaty rights and ones yet unproven. The Court of Appeal rejects the need for any modification of the Haida test.

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The Appellants are hereditary chiefs of the Gitanyow people [collectively as “Gitanyow”]. The Gitanyow have an outstanding claim for s. 35 Aboriginal rights in an area described as the Gitanyow Lax’yip.

The Nisga’a Treaty sets out the s. 35 rights of the Nisga’a. It provides that nothing in the Treaty affects any s. 35 rights for any Aboriginal people other than the Nisga’a Nation. The Nisga’a Treaty established a hunting area known as the Nass Wildlife Area where the Nisga’a have non-exclusive rights to hunt. The Minister of Forests, Lands and Natural Resource Operations [“Minister”], has certain decision-making responsibilities in relation to determining the total allowable harvest in the Nass Wildlife Area and the annual management plan which regulates Nisga’a citizens’ hunting. The nature and scope of the decision-making responsibilities are set out within the Nisga’a Treaty.

The Gitanyow Lax’yip overlaps with the Nass Wildlife Area. As a result, decisions made concerning the Nass Wildlife Area may have the potential for affecting activities within the Gitanyow Lax’yip. In order to protect the rights of Indigenous groups such as the Gitanyow pending claims resolution, the Crown has a duty to consult and, where appropriate, accommodate in circumstances where the Crown has knowledge of the potential existence of an Aboriginal right and contemplates conduct that might adversely affect it. This is known as the Haida test (Haida Nation v British Columbia (Minister of Forests), [2005] 1 CNLR 72).

This appeal concerns two decisions of the Minister made in 2016 approving the total allowable harvest of moose and the annual management plan for the 2016-2017 hunting season in the Nass Wildlife Area. Prior to making these decisions, the Minister had consulted with the Gitanyow concerning the total allowable harvest, but not concerning the annual management plan.

On judicial review, the chambers judge held that the duty to consult was not triggered by the approval of the annual management plan, and that the consultation in relation to the total allowable harvest was adequate. In reviewing these issues, the chambers judge concluded that the Haida test to determine the existence of a duty to consult was not adequate to deal with the circumstance where a conflicting treaty right was at issue. She concluded that the Haida test required modification to preclude a duty to consult an Indigenous group claiming s. 35 rights when the recognition of such a duty would be inconsistent with the Crown’s duties and responsibilities to the Indigenous peoples with whom it has a treaty. It is unnecessary, however, to modify the Haida test in order to recognize the limits of accommodation that treaty rights impose. The Haida test that has been applied consistently over the past 15 years has sufficient flexibility within it to encompass these issues.

Despite the conclusion that the modification of the Haida test was unnecessary, the Court does not consider that the reviewing judge erred in her fundamental approach to the issue before her. The analysis of the chambers judge properly focused on the three-part Haida test, and in particular the third element, which asks whether the proposed Crown conduct has the potential for affecting the claimed right. This is primarily a question of fact, to be reviewed on a deferential basis. Applying the Haida test, the Minister did not err in concluding that the duty to consult was not triggered in relation to the annual management plan. The consultation undertaken by the Minister in relation to the total allowable harvest was adequate in the circumstances.

R v Kuliktana, 2020 NUCA 7

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Appeal allowed. The sentence on the Appellant is altered as proposed by the joint submission. In this appeal, emphasis was placed on the role of Gladue factors to help justify a joint submission for a sentence that appeared to be lower than appropriate. Inferences were made in the absence of direct information, as a Gladue Report was not available.

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The Appellant, a 27-year-old Inuk man from the Hamlet of Kugluktuk, in the Kitikmeot Region of Nunavut, entered guilty pleas to one count of assault and one count of unlawful confinement. The Crown elected to proceed by summary conviction on both counts and pleas were entered after resolution discussions. The joint submission for a fit sentence was 120 days in custody, less credit for the 58 days the Appellant had spent in pre-sentence custody to that date, leaving 33 days to serve along with a probation order of 12 months.

The sentencing judge resisted the joint submission and called upon counsel to provide more information and a more elaborate rationale. The Appellant remained in custody in the meantime for almost 3 months. The sentencing judge then rejected the joint submission and imposed a sentence of imprisonment of 180 days on the count of assault which he described as “time served” and 60 days concurrent on the count of unlawful confinement also described as “time served”. In addition, the sentencing judge directed a probation order for a period of 12 months, with conditions, including performance of 50 hours of community service work.

The Appellant on this appeal submits that his sentence has been completed, but that his appeal is not moot because the entry on his criminal record will be higher than it should have been. The Appellant had an unstable childhood due to his family’s inability to settle in one community. He has a significant criminal record, including convictions in 2014 and 2015 for analogous “domestic assault” offences. His counsel attributes the Appellant’s criminal record at least in part to the criminogenic factors of alcohol and a lack of stable housing.

Regrettably, there was no Gladue report prepared to further illuminate what other factors may have contributed to his difficulty in maintaining a prosocial conduct pattern (R v Gladue, [1999] 1 SCR 688). It has been said repeatedly that this type of information is not to provide a special exemption in sentencing but rather is directly related to locating a proportional sentence having regard to the gravity of the offence and the degree of responsibility of the offender under s 718.1 of the Criminal Code. It is an error to proceed on the basis that Gladue factors do or do not justify departure from a proportionate sentence (R v Swampy, 2017 ABCA 134). Rather, they direct the sentencing court’s attention to circumstances that help to identify a proportionate sentence.

In this instance, it is a matter of conjecture as to what influence more Gladue information might have had on counsel or the Court. But it is possible to draw some inferences from what was provided about the Appellant’s circumstances. Often it is a matter of common-sense inference as to how the offender’s life has reached the point where the offender’s reactions to problems tends to breach social norms. In determining whether a proposed joint submission sentence for an offender seems unfit, the sentencing court should consider how Gladue factors might fit in to the situation.

When the Crown chooses to enter into a plea arrangement with an offender (by counsel) that is a solemn business, and it is not just clearing court backlog in some bureaucratic sense. Whether a sentencing court should harbor doubt about the utilitarian benefits of plea agreements and joint submissions, there cannot be similar doubt about the linkage between the Crown taking a consistent, reliable and predictable position and the Rule of Law.

The sentencing judge’s mention of what he felt did not reconcile the joint submission with his unexplained conceptualization of a fit sentence for the Appellant’s crimes came down to rejection of the joint submission on a basis subjectively held by him. It was not a manifestation of the principled override of a joint submission contemplated by, or consistent with, the guidance and policies in R v Anthony-Cook, 2016 SCC 43. Accordingly, the failure of the sentencing judge to explain what was wrong with the joint submission was a flaw with more than one dimension. It is not discernible what, if any, comparators or prior authority or guidance the sentencing judge was relying on, and it would not have been a demonstration of “public interest” error if the only discrepancy of the joint submission were that it did not fit the sentencing judge’s own practice.

Canadian Natural Resources Limited v Elizabeth Métis Settlement, 2020 ABQB 210

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Application allowed. A Métis community’s Property Tax Bylaw is quashed as it is unlawfully enacted and unreasonable in substance.

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Elizabeth Métis Settlement [“Elizabeth”] is a small Métis community on the eastern edge of Alberta. In 2019, Elizabeth levied property taxes amounting to 187% of assessed land value on four natural resource companies whose lands comprise virtually its entire taxable base. Elizabeth explained that its unusual procedures in enacting it were justified by a looming financial emergency, and that the context of Alberta’s Métis settlements uniquely informs the question of what constitutes a reasonable rate of taxation in this situation.

In 1984, a movement began towards securing lands to support Métis communities in Alberta attaining self-governance. This consultation ultimately led to the Alberta-Métis Settlements Accord in 1989. This framework agreement and related legislation created eight Métis settlement [“Métis Settlements”] and granted fee simple title to those lands to the Métis Settlements General Council [“MSGC”]. This process also led to the incorporation of the Métis people in the Constitution of Alberta Amendment Act, which recognized that the Métis people were to gain self-governance, and protected their land base with the specific stated aim of preserving and enhancing Métis culture and identity. The Métis Settlements Act [“MSA”], was brought into force to provide a structure of delegated authority by which these communities could govern themselves individually, and collectively through the MSGC.

The top level of Métis governance established by the MSA is the MSGC. This umbrella body creates policies from which each of the Settlements derive sub-delegated authority to run their own communities. The individual Métis Settlements, in practice, operate at a quasi-municipal level. While their existence has a deeper social, cultural and historical underpinning than ordinary municipal corporations, they perform many of the same functions of a local municipal government common to municipalities across the province. Similar to municipalities, the sole source of tax revenue for the Settlements is through property taxation. Due to the structure of land holding on the Settlements, however, Elizabeth appears to have only four taxpayers, including the Applicants in this case.

Métis Settlements first gained independent taxation powers in 1997. Prior to that, any taxation was subject to direct ministerial approval. MSGC policy defines the parameters of Settlement taxation powers and the process for property assessment. Each Settlement in turn is left to pass its own property tax bylaw. In 1997, the MSGC enacted a tax policy to establish a fair, orderly, and equitable system by which those who use land in a Settlement area for business purposes can be required to contribute a fair share, based on valuation or agreement, to the cost of maintaining a viable Métis community in the Settlement area. The 1997 policy permitted Settlements to make annual business property contribution bylaws, and levy property tax based on the deemed value of land holdings, with a cap tax rate.

In 2019, the basis and structure of property taxation within the Métis Settlements changed fundamentally. The MSGC revoked the 1997 policy and replaced it with a new instrument called the Métis Settlements General Council Property Taxation Policy 2018 [“Tax Policy”]. There was no cap identified on Settlement property tax rates and no mention of “fair, orderly, and equitable” contributions being required by businesses operating on Settlement lands. The Tax Policy specified a new formula by which the tax rate was to be calculated. It is based on dividing its total budget by the value of its assessed taxable base. Each Settlement was to determine its tax rate by dividing its budget by the total value of its tax base.

The net result of the Amended Budget, by operation of the formula was to increase the total property tax bill levied against the four Applicants from $624,692.44 to $25,000,733. In short, it increased the Applicants’ property tax bills 40-fold. This additional $24.4 million from the Applicant taxpayers was allocated to repair or replace virtually all infrastructure at the Elizabeth Settlement, including $75,000 in repairs and renovations to each and every residence in the community.

There is no evidence that Elizabeth considered the economic impact or viability of this rate of taxation. This includes a complete absence of discussion on whether taxes in this amount could possibly be paid, and what the economic and legal impact on the subject landowners would be. The Applicants were never given an opportunity to provide an economic analysis of the impact of this level of taxation on their operations and their ability to continue owning their land interests in Elizabeth. The Supreme Court of Canada has repeatedly affirmed the common law right of citizens to seek judicial review of municipal bylaws taxing their property (Catalyst Paper Corp v North Cowichan (District), 2012 SCC 2).

Métis Settlements are not completely analogous to municipal governments. They may well be afforded different and greater range in decision-making that touches upon the core animating values that underlie their existence, namely the preservation and promotion of Métis culture and society. That said, when Settlements levy property tax, they perform a function virtually indistinguishable from municipal governments, and derive their authority to do so through a similar process of sub-delegation. Moreover, the power they exercise in this capacity is no less impactful on the people against whom it is used.

Even if the Property Tax Bylaw was upheld in the face of its procedural defects, it is substantively unreasonable and must be quashed on that basis. Although unreasonable, it did not come about in a vacuum. The evidence in this case also showed that Elizabeth’s infrastructure need is very real, and that the stated aim of creating self-sufficient Métis communities has been thwarted by chronic capital underfunding.

The Court finds the impugned Property Tax Bylaw is the product of Métis frustration with the failure to achieve this objective. Ironically, the lack of adequate capital funding for Métis Settlements, or a viable model for the Settlements to raise capital funds through economic benefits derived on their territory, has driven Elizabeth to enact a measure that would severely, if not fatally, impair its ability to attract the investment it needs to develop a viable tax base in the future.