SL (Re), 2020 ABPC 194

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The Court rejected a mother’s application for a hearing on the alleged non-compliance of the Director of Children’s Services with An Act Respecting First Nations, Inuit & Metis Children, Youth and Families, SC 2019, c 24 in context to an application for a Temporary Guardianship Order over her five children. She alleged the Director failed to provide notice of the apprehension to her and the Indigenous governing body of her children. The Court found it impossible to ascertain who or what comprises an Indigenous governing body and held there was no factual basis or statutory authority for the application.

Indigenous Law Centre CaseWatch Blog

The Director of Children’s Services [“Director”] has applied for a Temporary Guardianship Order [“TGO”] with respect to five siblings. There has been a long-standing history between the family and Children’s Services dating back to 2008. Concerns centered around substance abuse and domestic violence.

In 2020, police responded to the family’s home after being alerted to domestic issues between the parents who had engaged in a night of drinking. Ten days after a safety plan was put in place requiring the parents to remain sober, the police once more attended the home. The parents and one of the adult sons were found to be intoxicated and displayed aggressive behaviour towards the officers who responded to complaints. At the time, all five children were present in the home and were apprehended as there was no sober adult who was able to care for them.

Four days after the apprehension took place, the Director served the Dene Tha band designate with formal notice of its application for an Initial Custody Order, as well as a TGO. To date, no one has appeared on behalf of the band designate. The parents consented to an Order for Initial Custody. Both were represented by counsel at the time. The substantive application for a TGO remains outstanding.

The mother has now asked the Court for a hearing to rule on the Director’s alleged non- compliance with An Act Respecting First Nations, Inuit & Metis Children, Youth and Families, SC 2019, c 24 [“Act”]. Her concern relates to the alleged failure of the Director to provide notice prior to the emergency apprehension of the children.

The Child, Youth and Family Enhancement Act [“CYFEA”] is provincial legislation enacted by the Government of Alberta. While large swaths of the legislation confer power to the Provincial Court in granting certain orders, the Provincial Court does not have exclusive jurisdiction over every aspect of the CYFEA. In the case at bar, the Director’s substantive application seeks temporary guardianship of the children, thereby the Court has jurisdiction over this matter.

The Act is federal legislation which applies to Indigenous children in the care of the Director. The federal legislation does not articulate what remedies, if any, are available when a party is non-compliant with or in breach of the statute. Similarly, the CYFEA does not set out what consequences may arise if the Director fails to provide notification of a child’s apprehension. The CYFEA does permit an individual who is affected by a decision of a director to request a review. If the guardian is dissatisfied with the Director’s review, they may appeal to the Appeal Panel and thereafter to the Court of Queen’s Bench (RP v Alberta (Director of Child Youth and Family Enhancement), 2016 ABQB 306).

It would appear that the mother did, in fact, have notice that the children were to be apprehended as she was present at the time that the police made its decision. The federal legislation does not specify how or in what form the notice should be given. As such, oral notice is sufficient given the circumstances of this case. Any requirement of notice pursuant to s 12 of the Act must always consider the best interests of the children. In instances where law enforcement is required to respond in the middle of the night and finds that children are in harm’s way due to the condition of the parents, the primary principal step taken by peace officers must always be to protect the said children. Such a step is consistent with the children’s best interests.

As well, the Court finds it impossible to ascertain who or what comprises an Indigenous governing body. The children belong to the following Indigenous governing bodies: Dene Tha First Nation in Alberta; Frog Lake First Nation in Alberta; Witchewan Lake First Nation in Saskatchewan; and Onion Lake first Nation in Saskatchewan. The term Indigenous governing body is defined in s 1 of the federal legislation as a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982.

Neither legislation provides any guidance on how determination of a child’s band affiliation is made, which is integral to the Director’s ability to identify which Indigenous governing body or bodies should be contacted. The Act does not address instances where a child has hereditary connections to several bands, nor on the required strength of any hereditary connection. In this case, the Dene Tha band designate has not appeared in Court, nor made any representation despite the provision of notice to it. The mother has not provided any additional information, including which children belong to which bands; the manner of the connection; or whether any of the children belong to more than one band. Jurisprudence on this topic provides limited guidance to the case at bar. If the Indigenous governing body wishes to participate, it would need to satisfy the Court that it is in fact authorized to act on behalf of the group, community or people. The mother has failed to establish any nexus between her rights and those of an Indigenous governing body.

Kim v Vancouver Native Health Society and another, 2020 BCHRT 153

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Reply

The British Columbia Human Rights Tribunal dismissed a complaint under s. 27 (1)(c) of the Human Rights Code on the basis that it had no reasonable prospect for success. The Complainant unsuccessfully argued discrimination in employment based on race and place of origin by the Vancouver Native Health Society.

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Ms. Ji Kim is an immigrant from Korea and a former employee of the Vancouver Native Health Society [“Respondent”]. She alleged that she was not afforded the same funding opportunities as other team members, experienced bullying, false accusations, and different performance standards applied to Aboriginal employees. She also alleged that her termination was due to her not being an Aboriginal person and that this amounts to discrimination in employment based on race and place of origin contrary to section 13 of the Human Rights Code [“Code”]. The Respondent denies the allegations and seek to dismiss the complaint on the basis that it has no reasonable prospect for success as per section 27 of the Code.

The Tribunal must consider the whole of the evidence to determine whether there is no reasonable prospect that the complaint will succeed (Workers’ Compensation Appeal Tribunal v Hill, 2011 BCCA 49). When assessing the evidence, the Tribunal looks for internal and external consistency and considers it in the context of the overall relationship between the parties and the circumstances in which the alleged discrimination occurred (Ritchie v Central Okanagan Search and Rescue Society and others, 2016 BCHRT 110).

Race must be proven as a factor in the adverse impact that Kim experienced. Direct evidence of race-based discrimination is rarely available and as a result, it is necessary to draw inferences from the evidence to prove such (Mezghrani v Canada Youth Orange Network (No. 2), 2006 BCHRT 60). In regard to the allegation of discrimination pertaining to the funding opportunities, neither the complaint nor the response to the application explains how her race was a factor in the decision not to approve the funding requests for her Indigenous clients requiring support. There were other workers seeking funding for their clients that were not Aboriginal, but Kim did not explain nor provide any evidence from which a reasonable inference could be drawn as to what would single her out.

Kim does not deny that many issues arose during the course of her employment nor that she had several conflicts with her co-workers. There has been no reference to Indigenous identity in the communications made to her and the allegations regarding “inappropriate racial comments” are found to have been too vague. They allege that she was a poor performer, had poor interpersonal skills and despite months of coaching and guidance, she did not demonstrate signs of improvement. The Respondent assured that the decision would have been the same regardless of whether she was Aboriginal or not.

The Tribunal decided that the complaint had no reasonable prospect of success at a hearing. The application was granted, and the complaint dismissed in its entirety under section 27 (1)(c) of the Code.

JEO v MD, 2020 ONSC 6106

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The Court dismissed an appeal from a customary care provider seeking sole custody of a child with access to her natural parents at the care provider’s discretion. Under the Child, Youth and Family Services Act, 2017, Customary Care Agreements are to be preferred even to child protection proceedings in the case of Indigenous children. It would be inconsistent with this regime to allow an individual to bring a custody application that could result in a court order collapsing such an agreement, thereby disregarding the voluntary parental participation and Indigenous community input that defines it.

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 This appeal concerns the intersection between a Customary Care Agreement [“CCA”], and the application by an individual for custody of a child under the Children’s Law Reform Act [“CLRA”]. The Appellant seeks to lift the stay imposed by the motion judge on her application under the CLRA for sole custody of an Indigenous child, with access to the child’s natural parents at the Appellant’s discretion. The errors that the Appellant alleges mainly focus on the motion judge’s use of s 103 of the Child, Youth and Family Services Act, 2017 [“CYFSA”] as the authority for the stay that was imposed.

Kina Gbezhgomi Child and Family Services [“KGCFS”] had been involved with the child’s parents since 2000 because of issues relating to domestic violence and substance abuse. Older children of the parents were being cared for by a relative in the community. Two other children were made Crown wards in 2009. In 2013, the mother’s file was reopened when KGCFS was advised that she was pregnant again.

Once born, the child was apprehended by KGCFS, which brought a protection application and placed her in the Appellant’s home for fostering. The Appellant is married to the child’s paternal great uncle. In 2014, a Wikwemikong Band Council Resolution was passed, resolving that the child would be in the care of the Appellant. This was done by Wikwemikong Unceded Indian Reserve [“Wikwemikong”], the child’s First Nation, in “exercising its inherent authority and responsibility for the care of children of their community” and so that KGCFS could grant the Appellant a subsidy for care according to the custom of the Band/First Nation.

 A CCA was made and came into force in 2015. As a result, the protection proceeding that had been initiated was withdrawn. Parties to the CCA are the mother, the father, Wikwemikong, the Appellant, KGCFS, and the Children’s Aid Society. The CCA was described as a “Long-Term” CCA which could be in effect until the child reached the age of 18 years. The CCA states that the Appellant, who is a Wikwemikong resident, is to be the “customary care provider.” She is given authority to consent to medical, surgical, dental, educational, psychological or diagnostic treatment and anesthetic care that a qualified medical or dental practitioner might recommend.

In 2018, the Appellant brought an application for full custody of the child under the CLRA, stating concerns with the parents. KGCFS may have had some concerns relating to the Appellant, but she had been working with them on a voluntary basis and that she wanted to terminate the CCA. The motion judge considered various sections of the CYFSA relating to the protection of First Nations, Inuit and Metis children. He reasoned that if a CCA was entered into, then it would be by agreement, and should be accorded deference as “a complete code for the resolution of child protection cases in appropriate circumstances.” The motion judge read CCAs into s 103 of the CYFSA as a valid reason for a stay of a custody application under the CLRA, as to conclude otherwise would be to diminish the importance of CCAs. To permit the custody application to continue would also invite the court to disregard the intent of the parties in setting up the CCA, which constituted a voluntary meeting of minds.

 The motion judge stayed the appellant’s CLRA application for custody pursuant to s 103 of the CYFSA, and is subject to a correctness standard on appeal (Housen v Nikolaisen, 2002 SCC 33). To assess the order made by the motion judge, the terms of s 103 of the CYFSA must be considered, its purpose, and legislative intent in child welfare legislation. Section 103 of the CYFSA dictates the pre-eminence of child welfare legislation, where child welfare proceedings have begun or an order has been made in those proceedings, and a person seeks custody under the CLRA. This section underscores the well-established principle that child protection legislation will take precedence over the jurisdiction granted to courts by other provincial legislation dealing with matters of custody (Fortowsky v Roman Catholic Children’s Aid Society of Essex (County), [1960] OJ No 600 (CA)). Section 103 protects the integrity of the child welfare placement by ensuring that no other court can substitute its decision for that of the child protection court (Children’s Aid Society of St. Thomas and Elgin County v CZ and JH, [2003] OJ No 4177 (CA)).

CCAs act as an alternative to child protection proceedings and serve as an expression of Indigenous community values in the sphere of child protection. In the circumstances of the CCA in this case, it would have been appropriate to exercise the court’s discretion to stay the CLRA application. That is not to say that any and all CCAs will equally merit the protection of the court against CLRA applications. The motion judge, however, committed no error in imposing a stay of proceedings on the Appellant’s CLRA application.

R v Wentzell, 2020 NSPC 20

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Reply

The Court sentenced an Indigenous offender who stabbed her significant other, to a global sentence of a suspended sentence with a period of probation for three years with conditions. This sentence provides the best mechanism for assuring that the offender continues on her path towards a pro-social lifestyle. Society’s protection is best assured by the continued supervision and encouragement of the offender’s efforts and progress in her rehabilitation.

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Ms. Jennifer Wentzell is a 38-year-old woman of Mi’kmaq ancestry and a member of the Gold River First Nation. One night, when intoxicated, she uttered a threat to kill and then subsequently stabbed her significant other. The use of a knife and a resulting penetrative wound to the victim coupled with Ms. Wentzell’s prior criminal record must have a sentenced imposed that is proportionate to the gravity of the offence and the degree of responsibility of Ms. Wentzell.

A Gladue Report was prepared in 2019, and a sentencing circle was held in the Gold River community in 2020. At the sentencing circle, two videos were viewed regarding the events that led up to the altercation, including Ms. Wentzell being told her body was gross and some physical altercations between the couple. The victim in this matter declined to provide a Victim Impact Statement or participate in the sentencing circle.

Ms. Wentzell’s life has been marred with instability, poverty, homelessness, and a lack of education and employment opportunities. She has experienced domestic violence, sexual abuse, and the involvement of the child welfare system. She has suffered from addictions to alcohol and drugs, along with intergenerational trauma as result of the legacy of the residential school system, discrimination and colonization. She has three children from two long term relationships.

Ms. Wentzell has been attending programming at Holly House, which is run by the Elizabeth Fry Society. Ms. Wentzell has been engaging in individual addictions counselling. She has attended the Rising Sun Treatment Rehabilitation Centre on two occasions and has plans to attend again for the relapse prevention program. She has attempted to reduce her consumption of alcohol. Her plan going forward is to continue with counselling for addictions and healthy relationships. She also will be attending sweats on a regular basis and is working towards long term sober living. She would like to continue her education by attending the Nova Scotia Community College in a trades program and find part time employment.

Ms. Wentzell was involved in a volatile and abusive spousal relationship. The victim’s prior treatment, assaultive and degrading behaviour towards Ms. Wentzell along with her intoxication and impulsive reaction to the events must be taken into consideration. These events in addition, to Ms. Wentzell’s prior history of trauma and experiences of an Indigenous person, reduce her moral culpability in these offences.

The long-term protection of the community requires that Ms. Wentzell’s efforts be acknowledged and that she be allowed to continue on that path without interruption. It is hopeful that she will be able to show the community, by her example, that there is life beyond addiction and involvement in the Criminal Justice System. A suspended sentence with a significant period of probation was the reasonable alternative to incarceration in this case and is of significant consequence to Ms. Wentzell.

R v LC, 2020 MBPC 38

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Sentence confirmed. There is not enough evidence from the Indigenous offender that discloses progress substantial enough to enable a justification on the variation on her sentence of secure custody. The plan for supervision for this offender is insufficient to promote her rehabilitation and reintegration into society.

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In 2018, LC was sentenced to secure custody for forty months to be followed by conditional supervision for twenty three and one half months upon her guilty plea to second degree murder. Following an annual review that confirmed that sentence to continue without change, this proceeding is the second annual review pursuant to s 94 of The Youth Criminal Justice Act [“YCJA”].

LC seeks an end to her incarceration so that she can return to her First Nation community and take steps to enroll in University of Manitoba. She would have strong family support from three sources: her mother and grandmother, who have been in court for all of the proceedings and with whom she has had visits, as well as her preschool son whose guardian is presently the youth’s mother.

Since the last review, this youth has taken steps to remove negative influences which were a concern in the last review. She has ended troubling relationships with her son’s father and with a friend who had a tangential participation in the matter for which she is serving her youth sentence. LC has applied for, and has been involved in, an ongoing program offering support to Indigenous offenders. Although her conduct at both institutions that she has served at has not been without fault, she has completed high school and is eligible for university entrance. She was described as a role model for others and is trusted with a job in the laundry.

LC struggles with self-acceptance and thinks often of how to fit in with her peers. She’s very sensitive to criticism and internalizes what others say to her or about her. She has a tendency towards people pleasing and will give up her own values to gain acceptance from others. This is to be expected given her age and life experiences. The Healing Plan  includes appropriate cultural and spiritual activities to address this, including continued group attendance and continuing with Elders upon release and “spiritual guidance as requested”. It identifies jail tattooing with a history a self-harm and recommends appropriate education. The Plan does not specify how these resources would be provided, maintained and supervised. The young person seeking supervision instead of incarceration bears the onus of proof and it is not the burden of proof beyond a reasonable doubt (R v H(D), 2008 ONCJ 78; R v Z(AA), 2013 MBCA 33).

It is determined that LC still does not appreciate the significance of her consequences; she is serving the maximum YCJA sentence for taking a life. It is to be hoped that she continues working on this. The evidence does not disclose progress substantial enough to enable a justification on the variation sought. The plan for supervision for this offender is insufficient to promote “her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public” (YCJA, s 38(1)). Although there have been changes in her life, they are not changes that are material to what led to second degree murder. The sentence is therefore confirmed.

AM v Ministry of Social Services, 2020 SKCA 114

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Reply

Appeal to vary or terminate a permanent committal order under The Child and Family Services Act dismissed. Among other issues, the variation judge appropriately weighed the importance of the children’s Indigenous heritage in assessing their best interests, it was not an error to rely on hearsay evidence in a Opikinawasowin report prepared through Saskatoon Tribal Council, and there was insufficient evidence to find any breach of section 7 of the Charter due to delay in delivery of judgment.

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This appeal concerned a proceeding under The Child and Family Services Act [“Act”], where two of the Appellants’ children were apprehended by the Ministry of Social Services [“Ministry”]. At the time, the Appellants were struggling with addictions. Violence was also a problem in the home.

In June 2013, it was determined that the children were in need of protection within the meaning of the Act and ordered that they be committed permanently to the care of the Ministry. In 2016, the Appellants applied to vary or terminate the permanent committal order. Nearly two years passed before the judge who heard the application rendered a decision dismissing it. The variation judge relied in part on the recommendation of the Elders who participated in an Opikinawasowin (a Cree word that translates to “the child rearing way” in English), and concluded that the Appellants had failed to demonstrate either that there had been a material change in circumstances, or that the best interests of the children would be served by varying or terminating the permanent committal order.

The Appellants now appeal from the Variation Decision. They also argue that, by taking nearly two years to render a decision, the variation judge caused delay that violated their rights under section 7 of the Charter.

The variation judge acknowledged that the Appellants had made significant progress in their individual battles with addiction but he remained concerned that they had not addressed the issue of violence within their home. He determined the best interests would be served by remaining in a stable home where they had lived for most of their young lives and maintaining the familial bonds that they had developed with their younger sister and foster family. This decision was made after careful reflection, notwithstanding the fact it meant they would be adopted by a non-Indigenous person.

The variation judge did not underemphasize the importance of the children’s cultural heritage in reaching this conclusion. His reasons indicate that he considered a multitude of factors, including those set out in the Act. Given the discretionary nature of a judge’s task in deciding what weight to assign to each of those factors in the ultimate balancing exercise, and the governing standard of review, this Court is not persuaded that there is any basis to interfere with his conclusion.

As well in this case, there is simply not an adequate evidentiary basis upon which to properly assess the question of whether the judicial deliberation delay violated the Appellants’ rights under section 7 of the Charter. There is no evidence that the Appellants ever expressed concern about delay prior to the variation judge issuing his decision. Nor is there any evidence as to what impact the delay had on the Appellants, the children, or on any of the issues the variation judge was required to consider in disposing of the variation application. The Appellants have not persuaded that all the facts necessary to address the section 7 issue are before the Court (Canada (Attorney General) v Bedford, 2013 SCC 72).

CAS v KC and Constance Lake First Nation, 2020 ONSC 5513

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Reply

The Court issued a temporary order for twin children to be returned to the care of their mother on terms of supervision. Among other things, the Court interpreted the interplay between the federal Bill C-92 and Ontario’s Child, Youth and Family Services Act as establishing an augmented best interests test that overrides the hierarchy of placement for Indigenous children in Bill C-92.

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An Indigenous mother [the “Mother”] does not deny that her twins were in need of protection but that it is in the children’s best interests to be returned to her care on terms of supervision. The Court interprets the interplay between Bill C-92 and the Child, Youth and Family Services Act as establishing an augmented best interests test as the paramount consideration that overrides the hierarchy of placement for Indigenous children set out at section 16(1) of Bill C-92. A rote application would be to the detriment of the best interests of the Indigenous child, which detracts from the legislation’s overall goal of promoting substantive equality between Indigenous and non-Indigenous children.

The Mother is a member of Constance Lake First Nation and has extended family residing there. The Mother does not know the identity of the twins’ biological father, as she was homeless and had relapsed with drug addiction when they were conceived. Although she is addicted to opiates, she has been on a methadone program for three years. She has not used opiates since discovering she was pregnant. The Mother came to the Society’s attention following her voluntary participation in the Healthy Babies, Healthy Children prenatal program in the month prior to the twins’ birth, when a call was made by an employee of that program.

The Mother’s post-traumatic stress disorder stems in large part from unrelated events that stink of racism. In 2017, a man was stalking and harassing the Mother. No charges were laid and, instead, Mother was told by police that they would warn the man to stay away from her. Police neither warned off the man, nor was any report filed about the Mother’s complaint. Police failed to advise Mother of the man’s 56 prior convictions including sex offences and an assault on his own 18-month-old child. When the man later attempted to rape the Mother, who fought him off and fled, he called Sudbury Regional Police who charged her with Break and Enter and Assault.

Although she initially intended to take the matter to trial, the Mother found the situation overwhelming and pleaded guilty to the reduced charge of unlawfully entering a dwelling house. Two subsequent instances of questioning by separate police agencies about the same violent assault from which Sudbury Region Police failed to protect the Mother from, triggered her post-traumatic stress disorder such that she found herself suffering from hallucinations and fears that she was being stalked and watched.

The Society appears to rely upon these events to suggest that the Mother has a history of domestic violence. The Society also allege that the Mother has been disengaged with them and with the medical officials, and that her partner has been “overbearing” and aggressive in his demeanour. Their approach appears high-handed rather than collaborative, despite the assertion that there is cultural sensitivity.

The Court has to start with the premise that a biological parent is entitled to parent his or her child. All parents start as first-timers; no inference should be drawn that a new parent cannot adequately care for his or her child. Three factors clearly do impact the Mother’s ability to care for the children: 1) her anxiety and attendant issues; 2) the significant burden of caring for twins in general; and 3) the additional therapeutic needs of these children (Baby A needing physiotherapy to address the congenital club feet and Baby B needing physiotherapy to address the muscles in her neck).

The best interests of the Indigenous child, however, are the paramount consideration in determining the placement of that child. The hierarchy of placements is to be followed where it is consistent with the Indigenous child’s best interests in the context of promoting substantive equality between the Indigenous child and other children.

R v Brown, 2020 BCPC 137

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Reply

The Court found the sentences in their aggregate to be unduly harsh and disproportionate. The sentences were adjusted to arrive at an appropriate global sentence that considered circumstances such as the defendant’s Indigenous heritage, hope of rehabilitation and his relatively young age.

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Mr. Brown, the defendant, is a 26-year old man who discharged a firearm in the hallways of a lodging house. He then went to a nearby house and struck a resident with the firearm. At the time of the incident, Mr. Brown was bound by a 10-year weapons prohibition, which prohibited him from possessing firearms. This prohibition was imposed after he had been sentenced for a drug offence three years prior. Mr. Brown pleaded guilty to discharging a firearm, unlawful possession of a restricted firearm, assault with a weapon and breach of a prohibition order. The Crown urged the Court to impose a global sentence of six and a half years, while counsel for Mr. Brown urged for a global sentence of five years.

The Court had the benefit of reading a Gladue report that was previously prepared for Mr. Brown for his earlier drug conviction. Findings in the report noted that many of the systemic background facts that impact Indigenous peoples in Canada have also impacted Mr. Brown, including substance abuse, criminal history, family breakdown, and racism. While the Court was able to recognize how these factors have contributed to Mr. Brown’s offences, these factors did not equate to an automatic reduction in sentence (R v Gladue, [1999] 1 SCR 688).

The case law clearly establishes that the risk posed by firearms demands a sentence that denounces and deters (R v Oud, 2016 BCCA 332; R v Guha, 2012 BCCA 423). The Court found that a fit sentence in this case must adequately meet the objectives of denunciation and deterrence, however, it must not lose sight of the importance of rehabilitation. Mr. Brown’s relatively young age and accessibility to Indigenous centered programs both within his community and through correctional institutions were taken into consideration. The Court found the sentences in their aggregate to be disproportionate and destructive to any hope of rehabilitation. As a result, the sentences were adjusted, and Mr. Brown received a sentence of 5 years 9 months.

Blois v Onion Lake Cree Nation, 2020 FC 953

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The Court granted an application for judicial review, quashed Onion Lake Cree Nation’s decision to terminate the appointment of its Appeals Tribunal, and ordered its reconstitution to hear the Applicant’s election appeal. Onion Lake members decided to codify their customary governance laws and nothing in their written laws allows for termination of the tribunal. The decision was also subject to procedural fairness since it was specific to the outstanding election appeal; as it was made without notice, procedural fairness was breached. 

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The members of Onion Lake Cree Nation [“OLCN”] passed the OLCN Convention Law [“Convention Law”] by community referendum in 2011. Amongst other things, the Convention Law empowers the OLCN Chief and Council to establish boards, commissions and committees as necessary for peace, order and good governance and to pass laws, regulations and codes. The members of OLCN passed the Onion Lake Election Law [“Election Law”] which came into effect in 2017. The Chief and Council subsequently passed the OLCN Appeals Regulation [“Appeals Regulation”]. Pursuant to the Election Law, an appeals tribunal [“Appeals Tribunal”] was appointed in advance of the upcoming Election.

This is an application for judicial review of a decision by the OLCN Chief and Council terminating the appointment of the Appeals Tribunal prior to the completion of its consideration and determination of an appeal of the 2018 OLCN [“Election”]. The Applicant, Florence Blois was an incumbent but unsuccessful candidate for councillor in the Election. The Applicant submitted to the Appeals Tribunal setting out various allegations. The Appeals Tribunal decided to accept the Applicant’s appeal but there were apparently concerns with the conduct of the appeal. The Applicant submits to this Court that the OLCN Chief and Council did not have the jurisdiction or authority to terminate her appeal.

By way of the Convention Law, the members of the OLCN chose to codify into writing the rules for establishing, empowering and regulating their institutions of government. OLCN effected a government (or executive) branch, the elected Chief and Council; the Elders Council to provide spiritual guidance; and a Judicial Assembly Commission.

Nothing in the Appeals Regulation speaks to the termination of the Appeals Tribunal prior to the completion of its term. That is, nothing in the Convention Law, Election Law or the Appeals Regulation provides authority to the Chief and Council, in any circumstance, to intervene in an appeal and dissolve the Appeals Tribunal before the Appeals Tribunal makes a decision in an appeal that is before it. If the legislative scheme suggested that the OLCN Chief and Council had the authority to disband the Appeals Tribunal before the expiry of its specified term, for any reason, and instead substitute its own finding, then this authority would have been clearly stated. This is demonstrated by the fact that the conduct of OLCN election appeals is exhaustively covered by the Election Law and Appeals Regulation.

Jurisprudence from the Federal Court of Appeal and this Court suggests that there must be clear legislative authority to remove appeal committee or council members (Johnson v Tait, 2015 FCA 247; Angus v Chipewyan Prairie First Nation, 2008 FC 932). It is clear that the Appeals Tribunal, as an independent body, holds a discreet and exclusive role in the conduct of election appeals, and the term of the appointment of that body is explicitly stated to start at appointment and not to terminate until an election appeal is decided.

The Court concludes that the OLCN Chief and Council did not have the authority to terminate the appointment of the Appeals Tribunal and, thereby, the Applicant’s appeal. Accordingly, that decision was unreasonable.

Cowichan Tribes v Canada (AG), 2020 BCSC 1507

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Reply

Cowichan Tribes is entitled to claim privilege over information that their Lands and Governance Director learned from Cowichan Elders during Treaty Committee meetings and during his involvement in a project-specific traditional land use study. The public interest in reconciliation through good faith treaty negotiations and the duty to consult favours case-by-case privilege in this case.

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This matter is in regards to an Aboriginal title and rights case, where the testimony of Mr. George, Lands and Governance Director for Cowichan Tribes, was questioned on communications that was learned of during Cowichan Tribes Treaty Committee meetings and related to traditional use interviews, over which the plaintiffs claim privilege. The Treaty Committee meetings were held to advise on Cowichan Tribes’ approaches to treaty negotiations and the pursuit of Aboriginal rights and title. Cowichan Tribes was advised on strategic use of oral history information including oral histories shared at Treaty Committee meetings.

In establishing confidentiality at common law, the Supreme Court of Canada first adopted the Wigmore’s four criterion in Slavutych v Baker, [1976] 1 SCR 254: 1) the communications must originate in confidence that they will not be disclosed; 2) this element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties; 3) the relation must be one which in the opinion of the community ought to be sedulously fostered; and 4) the injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation. The party seeking to protect the communication from disclosure must demonstrate that the authors of the communications possessed expectations of confidentiality (Northwest Organics, Limited Partnership v Roest, 2017 BCSC 673 [“Roest”]; Yahey v British Columbia, 2018 BCSC 123 [“Yahey”]).

The plaintiffs submit that the communications were made during these confidential Treaty Committee meetings which were conducted with an expectation that the information would not be disclosed. Confidentiality is essential to Cowichan Tribes’ relationship with its members and its ability to ask knowledge holders and Elders to share information about traditional use. This relationship of trust is essential to Cowichan Tribes’ ability to engage in good faith consultation with the Crown. The Cowichan community view this relationship as one that should be sedulously fostered. Allowing disclosure of the contents of the interviews in the litigation would undermine the constitutionally protected process while having minimal benefit to the disposal of this litigation.

The court in Roest held that the Wigmore criteria are not “carved in stone” but are a “general framework within which policy considerations and the requirements of fact-finding can be weighed and balanced on the basis of their relative importance in the particular case” (Roest; R v National Post, 2010 SCC 16). Case-by-case privilege may restrict disclosure where Wigmore’s four criteria for establishing confidentiality at common law exists. Those criteria seek to balance the protection of confidential communication with the public interest in the correct disposal of litigation (P(V) v Linde, [1996] 2 WWR 48).

The Wigmore criteria have been applied to preserve the confidentiality of interviews with Elders and community members undertaken in the course of traditional use studies (Yahey). These criteria must be applied to such interviews in a manner sensitive to the unique legal and constitutional context of the duty to consult, which is underpinned by the honour of the Crown and reconciliation, and involves reciprocal duties on the Crown and First Nations to participate in good faith in the consultation process. This application must also be viewed in the context of the Crown’s constitutional duty to consult and deal honourably with First Nations. This context includes Cowichan Tribes’ reciprocal duty to “express its interests and concerns regarding potential impacts to its rights, and to consult in good faith” and recognition of the fundamental importance of reconciliation between the Crown and First Nations in this process (Yahey; Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69).

In this case, the four Wigmore criteria for case-by-case privilege are met. The plaintiffs are not evincing an intention to rely on, or benefit from, the evidence they claim to be privileged. They are not seeking to adduce evidence about the substantive content of the Treaty Committee discussions. Nor do they seek to rely on the substantive content of some interviews conducted while shielding other interviews from disclosure. Rather, they adduced evidence of oral history from other sources. The question of what Mr. George learned in Cowichan Tribes Treaty Committee meetings regarding oral history of Cowichan Tribes Elders about fishing on the Fraser River is disallowed as the answers it would elicit are privileged.