R v Hilbach, 2020 ABCA 332

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The Court of Appeal upheld a finding that the mandatory five-year prison sentence for robbery while using a prohibited firearm breaches s 12 of the Charter as cruel and unusual punishment. It fails to allow courts to account for mitigating factors and elevates principles of deterrence and denunciation to an extent that objectives of rehabilitation, the imposition of a just sentence, and special considerations for Indigenous offenders are lost. However, a sentence was varied based on errors, including an overemphasis of Gladue/Ipeelee factors. 

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Ocean Hilbach was convicted for committing a robbery while using a prohibited firearm, contrary to s 344(1)(a)(i) of the Criminal Code. Curtis Zwozdesky was convicted for using a firearm, as a party to the offence, in the course of two robberies contrary to s 344(1)(a.1) of the Criminal Code.

The mandatory minimum sentences were deemed grossly disproportionate to the fit and proper sentence to the appropriate sentence in other reasonably foreseeable applications of the law in both cases. As such, the mandatory minimums in those sections contravened s 12 of the Charter and were not justified under s 1 of the Charter, and therefore pursuant to s 52(1) of the Constitution Act, 1982, were declared unconstitutional and of no force and effect.

The Crown appealed both sentences, maintaining that the mandatory minimums set out in these Criminal Code sections are consistent with the provisions of the Charter, and the sentences imposed by the sentencing judges are unfit. The standard of review on a sentence appeal is highly deferential. An appellate court cannot modify a sentence “simply because it feels that a different order ought to have been made” (R v Lacasse, 2015 SCC 64).

The constitutional validity of legislation is a question of law subject to the standard of review of correctness (Housen v Nikolaisen, 2002 SCC 33; R v Malmo-Levine, 2003 SCC 74). Section 12 of the Charter provides that everyone has the right not to be subjected to cruel and unusual treatment or punishment. Each of the sentencing judges in these appeals correctly identified the stringent test as to whether a mandatory minimum sentence constitutes such cruel and unusual punishment (R v Smith, 1073 (SCR)). To be considered grossly disproportionate, the sentence must be “so excessive as to outrage standards of decency” such that Canadians “would find the punishment abhorrent or intolerable” (R v Ferguson, 2008 SCC 6).

The appeal with respect to Mr. Zwozdesky is dismissed. The Court determines that the sentences imposed on Mr. Zwozdesky were fit and proper. The appeal with respect to Mr. Hilbach, however, is allowed in part. The sentencing judge for Mr. Hilbach found that a fit global sentence for both charges would be two years less a day, acknowledging the relevant Gladue factors, his degree of responsibility, the need for denunciation and deterrence for the crimes committed while on probation and prohibited from possessing firearms, and recognizing that this was his first custodial sentence.

There is no doubt that the commission of robbery using a prohibited firearm is a serious violent offence with potentially grave consequences. There are aggravating factors of an already serious violent offence and Mr Hilbach’s moral culpability was high. However, he was young at the time, 19 years old, pleaded guilty to these offences, and expressed remorse for his crimes. He is a member of the Ermineskin Cree Nation, and there are significant Gladue factors to be considered.

The Court determined that the sentencing judge committed errors in principle by failing to put sufficient emphasis on aggravating factors and place sufficient weight on deterrence and denunciation, and overemphasizing Gladue/Ipeelee factors. The sentence of two years less a day is unreasonable and demonstrably unfit. Taking all of these factors into account, a fit and proper sentence for Mr Hilbach is three years’ imprisonment for the s 344(1)(a)(i) offence. However, given that a significant period of time has elapsed since Mr. Hilbach was sentenced and he has served his full original sentence, it is not in the interests of justice to re-incarcerate him at this time. The Court confirms the decisions of the sentencing judges that the mandatory minimum sentences in ss 344(1)(a)(i) and (a.1) of the Criminal Code are unconstitutional and of no force and effect.

 

AD-S v NMN, 2020 CanLII 67103 (ON HPARB)

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The Health Professions Appeal and Review Board of Ontario ordered the College of Physicians and Surgeons of Ontario Committee to conduct a further and adequate investigation into a complaint in which racial bias and profiling against a First Nations patient and her parents was alleged. The Committee overseeing complaints failed to recognize systemic anti-Indigenous bias in the health care system and the potential for conscious or unconscious racial/cultural bias and its existence in the medical setting, which is the appropriate lens for analysis of this complaint. 

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The Applicants took their seven-year old daughter to the Huntsville District Memorial Hospital Emergency Department where the triage nurse recorded complaints of pain upon voiding, lower abdomen pain, legs hurting, no fever or nausea. An active diagnosis of a suspected urinary tract infection [“UTI”] was made.

The Respondent assessed and examined the patient in the presence of her mother. The Applicants complaint had a number of concerns including that the Respondent did not acknowledge the patient’s parent or introduce herself, did domestic violence and sexual abuse screening in a high traffic area and ignored three requests to check the patient’s urine for a UTI before deciding on a vaginal examination. The patient was not provided a gown or blanket before being asked her to remove her clothing and the door was shut on the patient’s father. The Respondent raised her voice at both Applicants in front of their child and chose the most intrusive examination first, prior to checking urine for UTI among other issues.

In her response, the Respondent explained it is best practice to complete a history and physical before ordering tests to inform what investigations are necessary. Although triage nurses often order tests to speed up the process, a proper assessment by the physician is required. The Respondent stated that had she not done the vaginal exam and treated only the urine infection, she would have missed the yeast infection and irritation in the patient’s perineum which also needed to be treated. The Respondent addressed the Applicants’ allegations of racial discrimination by stating that regardless of race, it is her consistent practice to examine the genital areas of children with complaints of painful urination to look both for irritation and any sign of sexual abuse.

The Committee investigated the complaint and decided to accept a remedial agreement from the Respondent. In the remedial agreement, the Respondent acknowledges the need for education in reviewing guidelines for a paediatric genital examination, which would include gowning, and also in reviewing treatment of UTI in children, including the need for urine culture screening. The Committee stated its expectation that physicians communicate appropriately and sensitively with patients and their families, including those of a culture other than one’s own.

The Applicants now request that the Board review the Committee’s decision. Pursuant to section 33(1) of the Health Professions Procedural Code, the mandate of the Board in a complaint review is to consider either the adequacy of the Committee’s investigation, the reasonableness of its decision, or both. In conducting a complaint review, the Board assesses the adequacy of an investigation and reasonableness of a Committee decision in reference to its role and dispositions available to it when investigating and then assessing a complaint filed about a member’s conduct and actions.

The key issue for the Board was to determine whether the Committee was alive to the issue of discrimination as articulated by the Applicants so as to render their investigation adequate. Had the Committee framed its analysis by recognizing at the outset the potential for conscious or unconscious racial/cultural bias and its existence in the medical setting, the Committee would have demonstrated that it was alive to the Applicants’ essential complaint and would have provided the appropriate lens for the Committee’s analysis of the Respondent’s treatment of the child and the manner in which she chose to interact with the parents.

The Board found that, in not properly framing the true nature of the Applicants’ complaint, the Committee’s investigation is inadequate and should be re-investigated by the same or by another Committee who may come to a different conclusion on some or all of the aspects of the Applicants’ concerns. The Board returns this matter to the Committee for re-investigation. The Board requires the Committee to recognize the potential for racial/cultural bias at the outset and to analyze the Applicants’ allegations with this lens. If it considers it necessary, as well to obtain expert advice to assist it in understanding how cultural/racial bias may affect a physician’s conduct and actions, whether conscious or unconscious.

 

R v Doering, 2020 ONSC 5618

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The Court sentenced a police constable to 12 months of imprisonment for failing to provide the necessaries of life and criminal negligence causing the death of Debra Chrisjohn, an Indigenous woman, who died while in police custody. Harmful stereotypes and bias with respect to drug users and Indigenous women were relevant to denunciation and the broader social context for sentencing. A jail sentence was warranted in order to convey the irrefutable message that Ms. Chrisjohn’s life was valued and valuable. 

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Debra Chrisjohn, an Indigenous woman, died while in police custody. The cause of death was a heart attack induced by ingestion of methamphetamine. She was arrested by the accused, Cst. Nicholas Doering, on an outstanding Ontario Provincial Police [“OPP”] warrant. During the time that she was in Cst. Doering’s custody, her condition deteriorated. She went from being conscious, physically agitated and verbal to being immobile, non-verbal and unable to stand or walk on her own. Cst. Doering did not obtain medical assistance for Ms. Chrisjohn. When he transferred her to the custody of the OPP, he told the OPP officers that she had been seen by a paramedic, and that her condition had not changed during his interactions with her. These statements were false. The statements made to OPP officers further reduced the likelihood that Ms. Chrisjohn would get the medical assistance that she so desperately required.

Cst. Nicholas Doering was found guilty of failing to provide the necessaries of life and criminal negligence causing death. His conduct represented a marked and substantial departure from the standard of care of a reasonable and prudent police officer. When a police officer is convicted of crime, the sentence must reflect the special role and authority of police in society. The powers conferred on police require that they be held to a high standard of accountability (R v Cook, 2010 ONSC 5016). Crimes committed by police officers represent a breach of the public trust, therefore police are held to a higher standard than would be expected of ordinary citizens, and the principles of denunciation and general deterrence become magnified in the sentencing of police (R v Forcillo, 2018 ONCA 402; R v Ferguson, 2008 SCC 6).

At trial, there was no evidence to suggest that Ms. Chrisjohn’s Indigenous status was a factor in the commission of the offences. Racial bias, however, is often subtle and subconscious. Be that as it may, there is no evidence to suggest that Cst. Doering was motivated by racial bias. Even if Ms. Chrisjohn’s status did not contribute to the offences, it must be acknowledged. Canadian courts have come to recognize that, just as Indigenous offenders are disproportionately represented in Canadian prisons, Indigenous women and girls are disproportionately vulnerable to violence and other forms of mistreatment. (Report of the National Inquiry into Missing and Murdered Indigenous Woman and Girls; R v Barton, 2019 SCC 33).

Ms. Chrisjohn’s Indigenous status is also relevant because the death of an Indigenous woman in police custody has an impact beyond the parties in court. Tensions between Indigenous communities and police agencies have been documented by various Canadian courts and tribunals (Canadian Broadcasting Corporation v Ferrier, 2019 ONCA 1025; R v AM, 2020 NUCJ 4).

Cst. Doering must not be penalized for the acts of others, or for systemic failings that have generated racism and discrimination. Yet, just as it would be wrong to punish Cst. Doering for societal failings, so too would it be wrong to ignore the broader context. This case calls for a sentence of real jail. Nothing short of that can reflect the gravity of the offences in this case. The sentence imposed must denounce in the strongest terms the conduct of the offender, and the resulting harm. It must reinforce the societal values that were breached such as the sanctity of human life, the right of all persons to a minimum standard of care, and the duty of police to treat all persons in their custody with respect and humanity.

Cst. Doering demonstrated a wanton and reckless disregard for Ms. Chrisjohn’s life. He failed to obtain necessary medical treatment, ignored the gross deterioration of her condition, and he lied about her condition to the OPP, making it even less likely that her life would be saved. The essence of culpability lies in Cst. Doering’s devaluation of Ms. Chrisjohn’s life. The sentence must convey the irrefutable message that Ms. Chrisjohn’s life was valued and valuable.

Sioux Valley Dakota Nation v Tacan, 2020 FC 874

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The Court rejected an application for a stay of proceedings preventing a complaint under the Canada Labour Code from proceeding, while a preliminary ruling on jurisdiction is subject to judicial review. The First Nation failed to demonstrate a serious issue, as its application for judicial review was premature; it failed to demonstrate irreparable harm; and the balance of convenience favoured respect for the arbitrator’s autonomy and the availability of a quick and effective remedy for the complainant.

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Sioux Valley Dakota Nation [“SVDN”] sought a stay of proceedings before an adjudicator hearing Ms. Tacan’s complaint under the Canada Labour Code [“Code”]. In a preliminary ruling, the adjudicator found that Ms. Tacan’s employment fell under federal jurisdiction. SVDN brought an application for judicial review of that preliminary ruling and for the application to be decided before the adjudicator hears the merits of Ms. Tacan’s complaint.

SVDN’s motion is dismissed because the underlying application for judicial review is premature. As a result, the test for granting a stay is not satisfied. (RJR-MacDonald Inc v Canada (AG), [1994] 1 SCR 311 [“RJR-MacDonald”]. The applicant must show that: 1) the underlying application raises a serious issue; 2) the stay is necessary to avoid irreparable harm; and 3) the balance of convenience favours the granting of the stay. Courts will refrain from reviewing interlocutory decisions of administrative bodies, save in exceptional circumstances (Canada (Border Services Agency) v CB Powell Limited, 2010 FCA 61); Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission), 2012 SCC 10).

SVDN’s application raises the issue of jurisdiction over labour relations. Applications for judicial review of interlocutory decisions are premature even if they relate to “jurisdictional” or constitutional issues (Black v Canada (AG), 2013 FCA 201; Alexion Pharmaceuticals Inc v Canada (AG), 2017 FCA 241). This Court has concluded that challenges to the adjudicator’s jurisdiction do not justify judicial review of interlocutory decisions (Entreprise Publique Économique Air Algérie, Montréal, Québec v Hamamouche, 2019 FC 272). An application for judicial review is obviously premature, because it challenges an interlocutory decision, does not give rise to a “serious issue” for the purposes of a motion for a stay (Dugré v Canada (AG), 2020 FC 602).

SVDN does not show that a stay is necessary to avoid irreparable harm. It argues that letting the adjudicator rule on the merits would be a “waste of time.” This alone, however, cannot be considered irreparable harm. SVDN also argues that it would suffer irreparable harm because its “constitutional development” is at stake. SVDN has not shown any concrete harm, as Aboriginal and Treaty rights protected by section 35 have no bearing on division of powers issues (Canada (AG) v Northern Inter-Tribal Health Authority Inc, 2020 FCA 63).

At the third stage of the RJR-MacDonald test, it is obvious that granting a stay and allowing SVDN’s application for judicial review to proceed would significantly prejudice Ms. Tacan, who remains unemployed and is unable to pay for legal services.

R c Awashish, 2020 QCCQ 3614

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The Court rejected a joint submission on sentence of 34.7 months of imprisonment for aggravated assault, theft, and various administration of justice offences. The sentence was found to be excessive and likely to bring the administration of justice into disrepute as it failed to comply with the Gladue principles and perpetuated Indigenous over-incarceration, both individually and as a precedent. 

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An Indigenous accused, a member of the Cree First Nation and the Mistissini community, pleaded guilty to charges of aggravated assault against his sister, theft, a breach of probation related to failing to perform community work, and two breaches of recognizance, that is, consuming alcohol and failing to observe a curfew.

The Court ordered a presentence report and a Gladue report, but it was not prepared due circumstances surrounding the pandemic. The presentence report in this case states that the accused has very bad memories of his childhood. His parents consumed alcohol repeatedly and there was violence almost every day, which was experienced by the accused. As he grew older, he used drugs and alcohol heavily. He attempted suicide and has been heavily medicated to treat his depressive episodes and panic attacks.

The accused remains fragile psychologically. If he returns to the community without first working on his vulnerabilities, the risk of relapse is significant. Several traumas related to his childhood remain unresolved to this day. However, he is able to work well when he is in a safe environment. The accused acknowledges that he needs help and that he is not able to resolve his problems on his own. He is willing to go to therapy at the Waseskun Center, a healing center.

During submissions on sentencing, counsels proposed a sentence totaling 34.7 months of imprisonment, less presentence custody, leaving a residual sentence of two years, as well as 24 months’ supervised probation. Counsels took steps to verify whether the accused could take part in therapy at the Waseskun Center. The Court, however, informed the parties that it questioned compliance with the public interest test established in R v Anthony-Cook, [2016] 2 SCR 204 [“Anthony-Cook”] and asked them to make additional submissions on the reasons and circumstances underlying the joint submission.

A trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest (Anthony-Cook). This Court is of the view that the rejection of the joint submission in this case meets this high threshold. This joint submission for an Aboriginal offender viewed by reasonable and informed persons would be seen as representing a breakdown in the proper functioning of the justice system (R v LaForge, 2020 BCSC 1269).

The sentence proposed in this case is not only excessive, but also likely to bring the administration of justice into disrepute and contrary to the public interest because it does not comply with the obligations set out in s. 718.2(e) of the Criminal Code and Gladue factors (R v Gladue, [1999] 1 SCR 688; R v Ipeelee, 2012 SCC 13; R c Diabo, 2018 QCCA 1631; and Denis-Damée c R, 2018 QCCA 1251). Specifically, it does not take into account the accused’s actual moral blameworthiness and fails to consider the other reasonable sanctions available. Because both counsel are experienced and that ratifying their submission would carry weight, it would set a precedent from which the Court finds it important to depart.

Recently, the Court of Appeal for Ontario emphasized the importance of conditional sentences as other available sanctions under s. 718.2(e) with respect to Aboriginal offenders (R v Sharma, 2020 ONCA 478).  The Court determined a more appropriate sentence, and along with a conditional sentence order and probation order, there is included the condition that the accused complete six months of therapy at the Waseskun Center to heal his inner wounds, his violence issues, and his alcohol and drug abuse problems.

R v McCargar, 2020 ONSC 5464

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The Court sentenced an Indigenous woman to a conditional sentence of 24 months followed by a 12 month period of probation for robbery, with conditions including culturally based programmes described in her Gladue report. While her co-accused was sentenced to 10.5 months in prison, the offender’s rehabilitation path, less concerning criminal record, and Gladue factors distinguished her circumstances. 

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The offender, Ms. McCargar, was found guilty after a trial on one count of robbery. She participated in a robbery of fentanyl patches from a 67-year old victim that had been prescribed this medication for pain. The victim was living alone in a rural area when Ms. McCargar and another offender came to the house in order to rob him.

Ms. McCargar is the mother of 4 children and a grandmother. She currently works full-time hours at a funeral home and volunteers 15 hours per week at a senior’s centre. The offender comes from a disadvantaged background. Her father was alcoholic and abusive who subjected his family to significant trauma. Ms. McCargar also suffered significant abuse and has endured a number of additional traumas as an adult. She has managed to rehabilitate herself from drug addiction and no longer uses alcohol. Currently Ms. McCargar is not in a relationship and lives with two of her children, including one that requires a great deal of assistance.

Ms. McCargar is Metis and did not have the benefit of growing up in her culture, but because of the colour of her skin, she has faced racism. For some time, the offender has been seeking the knowledge, insight and support her culture can bring. She has maintained contact with the Mohawk community in Tyendinaga. Her father taught her to hunt, trap and fish, and she has maintained these practices. Ms. McCargar has a criminal record which involves a number of property offences and includes convictions for assault. The Gladue report and PSR suggest, however, that some of these convictions occurred in the context of domestic relationships where the offender was physically abused by her partner.

According to this Court, the protection of the public is achieved with a conditional sentence, which is best suited to permit the offender to maintain the significant progress she has made towards her rehabilitation and strengthen her supports within her cultural community. Since the offences, Ms. McCargar has led a productive life. Most critically, there is a duty to give meaningful effect to the Gladue principles in this case, and the considerable evidence of the impacts of those factors on the offender. It is appropriate in this case to apply restraint in sentencing to reflect the circumstances that led to this offence and which reduce her moral blameworthiness.

Despite that her co-accused received a sentence of 10.5 months, there are important differences between the offenders in this case. Since Ms. McCargar’s sentence will be served as a conditional sentence with terms of house arrest, the range of sentence is appropriately higher than if a jail sentence were imposed (R v Sharma, 2020 ONCA 478). This means that if the offender is not compliant with the terms of the conditional sentence, she might serve an even longer period of time in jail should she breach the terms of the conditional sentence order. This serves to reinforce the principles of denunciation and deterrence.

Ultimately, in order to give effect to all of the principles of sentencing in this case, the term of the conditional sentence is fixed at 24 months. The first 12 months will be under house arrest, with exceptions for employment and certain other circumstances. During the conditional sentence, Ms. McCargar shall attend for all treatment and counselling that might be deemed appropriate for her by her supervisor, including those programmes described in the Gladue report. This will be followed by a period of probation for 12 months during which time Ms. McCargar is to continue with the culturally based programmes outlined in the Gladue report.

Saskatchewan v Durocher, 2020 SKQB 224

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The Court rejected an application from the Government of Saskatchewan and the Provincial Capital Commission to have Tristen Durocher, a young Métis man from northern Saskatchewan, removed from the legislative building grounds where he had erected a tipi and was undertaking a ceremonial fast to bring attention to high rates of suicide in northern Saskatchewan. The Bylaws and Notice of Trespass on which the application was based breached his freedoms of religion and expression under the Charter (ss 2(a) & 2(b)), could not be justified under s 1, and were declared of no force and effect, subject to a six month suspension to allow new bylaws to be crafted. 

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Tristan Durocher, a Métis man, walked 635 km from Air Ronge, Saskatchewan to arrive in Regina, Saskatchewan in order to raise awareness of the crisis of suicide rates among Indigenous youth in Northern Saskatchewan. This trek was in response to the defeat in the Saskatchewan Legislative Assembly of An Act respecting a Provincial Strategy for Suicide Prevention [“Bill 618”].

Mr. Durocher erected a tipi on the grounds of the Saskatchewan Legislative Building located at Wascana Centre. He began a “restricted caloric intake hunger strike” as a ceremonial fast while inhabiting the tipi and keeping a sacred fire. Displayed around the tipi were photos commemorating suicide victims. Mr. Durocher said his fast would last 44 days as representative of the number of MLA’s who opposed the passage of Bill 618.

Over a number of days, the Government of Saskatchewan and the Provincial Capital Commission [“Government”] filed for a number of orders and relief for Mr. Durocher and his supporters to vacate the premises immediately. Mr. Durocher responded with a Notice of Constitutional Question impugning the constitutionality of the various bylaws.

Although Mr. Durocher did not apply for a permit, he does not argue that the application requirement itself is unconstitutional (Dubois v Saskatchewan, 2018 SKQB 241). The impugned bylaws have been found to offend Mr. Durocher’s rights guaranteed by s 2(a) (freedom of religion) and 2(b) (freedom of assembly) of the Charter. The impugned bylaws do not qualify as reasonable limitations upon those rights as they clothe the Wascana Centre Authority and its delegate with unfettered and absolute authority to grant a permit to public lands. There is no exemption or accommodation provided for constitutionally protected political and spiritual expression of the kind at issue in this matter. Therefore, the impugned bylaws are declared no force and effect under s 52(1) of the Constitution Act. Mr. Durocher is granted a constitutional exemption pursuant to s 24(1) of the Charter so he can complete his ceremonial fast and vigil without further incident.

Linklater v Thunderchild First Nation, 2020 FC 899

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The Thunderchild First Nation Government is enjoined from continuing with and holding a by-election for Headman in order to fill the vacant position left by the removal of the Applicant, until the determination of his application for judicial review or further Order of the Court.

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The Applicant, Mr. Linklater, was elected Headman on the Thunderchild First Nation Council in late 2018. He was required to reside on Thunderchild First Nation reserve lands or Treaty Land Entitlement lands, or to move there within 30 days of the election (Thunderchild First Nation Election Act [“Election Act”]). Mr. Linklater considers this residency requirement to be contrary to s 15 of the Charter since it represents an unjustified violation of his right to equality as a citizen of a First Nation living off reserve. He also considers it to be a remnant of colonial structures, and of similar discriminatory provisions once in force in provisions of the Indian Act that were found unconstitutional by the Supreme Court of Canada (Corbiere v Canada (Minister of Indian and Northern Affairs), [1999] 2 SCR 203 [“Corbiere”]).

In 2019, a citizen of Thunderchild First Nation, asked the Thunderchild First Nation Government to remove Mr. Linklater from his position for failure to meet the residency requirement. It responded that it had no authority to do so because it also considered the residency requirement to be contrary to the Charter. Along with another citizen of Thunderchild First Nation, applications were brought to the Thunderchild First Nation Appeal Tribunal [“Tribunal”] to have Mr. Linklater removed from his position. Among other arguments, it was noted that a 2019 referendum in Thunderchild First Nation proposing various amendments to the Election Act, including the removal of the residency restriction, had not passed.

In 2020, the Tribunal issued a decision removing Mr. Linklater from his position for failure to meet the residency requirement. In its decision, the Tribunal decided it did not have jurisdiction under the Thunderchild First Nation Appeal Tribunal Act [“Tribunal Act”] to strike sections of the Election Act because they violate the Charter. It therefore did not address Mr. Linklater’s Charter arguments. The Tribunal ordered that a by-election be held as soon as possible to fill the position vacated by its removal of Mr. Linklater. Mr. Linklater has challenged the Tribunal’s decision on the application for judicial review. He alleges that the Tribunal did have jurisdiction to decide his Charter arguments, and that it should have decided that the residency requirement was unconstitutional. In this motion, Mr. Linklater seeks an injunction stopping the by-election until his application for judicial review can be heard and decided.

This Court orders that the by-election to fill the vacant seat for Headman on the Thunderchild First Nation Council be halted while Mr. Linklater’s Charter challenge to his removal from that seat is before the Court. This Court should not lightly interfere with elections directed by First Nations governments and tribunals. There is significant consideration given, however, to the fact that Mr. Linklater’s request is not opposed by either the Thunderchild First Nation Government or those who requested his removal. There is no other Thunderchild First Nation decision-maker who can grant the relief sought. This order does not grant Mr. Linklater’s challenge to his removal, nor does it reinstate him in his role as Headman, either temporarily or permanently. This order only seeks to avoid the harm that would arise from someone else being elected Headman while the question of Mr. Linklater’s removal remains outstanding.

This Court has confirmed that the Applicant has met the three-part test that applies to injunctions seeking to halt Indigenous elections (RJR-MacDonald Inc v Canada (AG), [1994] 1 SCR 311; Awashish v Conseil des Atikamekw d’Opitciwan, 2019 FC 1131). Mr. Linklater has already lost his seat. He does not on this motion seek reinstatement; he seeks that remedy among others on the underlying application for judicial review. However, if another Headman is elected to that seat, Mr. Linklater may be excluded from acting as Headman until the next election in late 2022, regardless of the outcome of this application. This would amount to irreparable harm resulting from the by-election itself, over and above any harm already incurred as a result of the order removing him from his seat as Headman.

The balance of convenience favours granting the requested injunction. The particular harm to Mr. Linklater if the injunction is not granted is significant. The broader interests of self-governance and democratic principles are of fundamental importance, but are attenuated in the particular circumstances of this case.

West Moberly First Nations v British Columbia, 2020 BCCA 138

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Appeal dismissed. There is no reversible error of law or fact demonstrated in the trial judge’s analysis of a long-standing dispute over the western boundary of Treaty 8.

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In 2005, the West Moberly First Nations, Halfway River First Nation, Saulteaux First Nations, Prophet River First Nation and Doig River First Nation [“Respondent FNs”] commenced the underlying litigation and are the respondents on appeal. The interest of the Respondent FNs in obtaining the declaration granted stems from their position that the Treaty gives them hunting, trapping and fishing rights [“harvesting rights”] throughout a tract of land defined in a “metes and bounds clause” of Treaty 8 [“tract”]. However, whether the Treaty gives them such rights throughout that tract was not the subject matter of the litigation at trial.

Between 1871 and 1921, the Dominion of Canada (“Canada”) entered into 11 “numbered treaties” with Indigenous groups throughout the country. This appeal concerns Treaty 8, which was signed on June 21, 1899, at Lesser Slave Lake in the District of Athabasca. What the original signatories to the Treaty meant by the phrase “the central range of the Rocky Mountains” has been a vexing issue for over 100 years. In the underlying litigation, Respondent FNs represent descendants of Indigenous groups who signed adhesion agreements with Canada or individuals who were added to the rolls of the Treaty. The plaintiffs applied for a declaration that the western boundary of the tract described in the Treaty referred to the height of land along the continental divide between the Arctic and Pacific watersheds, approximately 48,000 square miles. The trial judge concluded this clause referred to the Arctic-Pacific Divide, which is located within the Rocky Mountains up until the 54th parallel north, then diverges west.

The dissent stated that no declaration was available in the circumstances of this case or in the alternative, the only declaration available was one stating the relevant provision refers to a watershed of the Rocky Mountains. The dissent views that declarations must affect a legal right and since it is unclear from the text of the Treaty alone that any rights are tied to the provision, and consequently, the declaration should not have been granted.

The majority favoured that the declaration of the trial judge is upheld, and that there was no error in law or fact in his judgement. The requested declaration clarifies legal rights and obligations and the trial judge had discretion to issue it. The Court should not interfere with the conclusions he reached from his vantage point at trial. There is no obligation in the law of declaratory relief to litigate the range of a declaration’s effects. The question is simply whether the declaration will have practical utility.

Regardless of the right or obligation being interpreted, if there is a possibility it could be affected by the location of the western boundary, the parties will be assisted by knowing that boundary. The Treaty 8 First Nations who assert rights within the tract may find the declaration clarifies their ability to protect those rights through the existing Treaty, rather than as s 35 rights stemming from historic use and occupation.

As well, under the majority’s view, the honour of the Crown may give rise to a remedy if this was breached in the setting of the boundary, but it should not change the interpretation of the evidence. There is ambiguity over whether Treaty 8 entitles signatories to hunt, trap, and fish throughout Treaty 8 or whether Treaty 8 only guarantees this right within their traditional territory (i.e. a subset of the Treaty). This again ties back into the effect of Treaty 8 on non-treaty First Nations in BC whose territories are covered by the western boundary accepted at trial. If Treaty 8 only guarantees harvesting rights within the traditional territories of the signatory First Nations then it will have no effect on the First Nations in the Rockies who were never consulted.

 Another legal issue discussed, was the relevance of the Indigenous perspective on treaty versus the trial judge’s heavy emphasis on the Crown’s perspective. All judges on appeal seem to agree that this is important but the majority decision found there to be very little evidence of the Indigenous perspective, hence the trial judge’s emphasis on the Crown’s perspective.

 

R v Penunsi, 2020 NLSC 101

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Appeal dismissed. Newfoundland’s failure to enact the option of curative discharges does not result in a breach of the Constitution.

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The Appellant, an Innu woman who resides in the community of Sheshatsiu, Newfoundland and Labrador, was convicted of driving while her blood alcohol was in excess of the legal limit. The conviction was her third for such an offence. Notwithstanding that she faced mandatory imprisonment, she advised the sentencing court that she wished to seek a curative discharge. The option was not available in Newfoundland and Labrador.

The Appellant challenged the constitutionality of legislation affording the Provinces the discretion whether to enact the curative discharge provision in the Criminal Code. She asserted that the failure to be able to take advantage of a curative discharge disadvantaged her as an Aboriginal offender. The sentencing judge dismissed her application and the Appellant was sentenced to the mandatory minimum of 120 days imprisonment.

The Appellant has now appealed arguing that the sentencing judge erred in dismissing the application. Her application seeks to have the Court find that the legislation that affords the provinces the discretion whether to enact the curative provision, s 209(2)1 of the Criminal Law Amendment Act [“CLA”] violates her rights to equal treatment under s 15 of the Canadian Charter of Rights and Freedoms [“Charter”], in that it permits the Province to decline enacting the curative sentencing section. As an Aboriginal offender, she submits she is entitled to a restorative approach to sentencing, relying on s. 718.2(e) of the Criminal Code and the interpretation that section has received (R v Gladue, [1999] 2 CNLR 252; R v Ipeelee, [2012] 2 CNLR 218).

At the hearing of the appeal in this Court, the Appellant was afforded the opportunity to present her argument not solely as to how the sentencing judge erred in the manner in which the application was heard, but also as to why section 209(2) was unconstitutional.

The Applicant relied on the reasoning in R v Daybutch, 2015 ONCJ 302 for support that her rights under s 15 were violated. The Court, however, does not find the reasoning in R v Daybutch persuasive as it fails to consider the legitimate differences in treatment of persons under the criminal law as part of the administration of criminal law in a federal system. In contrast, a recent and thorough examination of the same issue was conducted in R v Sabbatis, 2020 ONCJ 242. Like the Applicant in this matter, and the accused in R v Daybutch, the accused in R v Sabbatis is Aboriginal. In assessing whether the accused’s rights under s 15 were violated, the court declined to follow the reasoning in R v Daybutch, but instead came to the opposite conclusion. There is no basis to find that the discretion of the Province, as permitted by s 209(2) of the CLA, namely whether to enact the curative provision under the Criminal Code, violates the Appellant’s right to not be discriminated against under s 15, on the basis of her being an Aboriginal person.

The Court determined there was no error committed by the sentencing judge reasoning in dismissing the application and holding that s 209(2) of the CLA does not discriminate against the Applicant under s 15 of theCharter. This appeal from sentence is dismissed. The stay of the Appellant’s sentence is set aside, and the Appellant is to surrender herself into custody at the police detachment nearest to her current place of residence.