R v Awasis, 2020 BCCA 23

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Reply

Appeal dismissed. Public safety must be heavily weighed when sentencing a dangerous offender. Despite the consideration of Gladue factors of the Indigenous offender, his patterns of conduct and the factual findings of treatment would have made a finding of dangerousness inevitable.

Indigenous Law Centre – CaseWatch Blog

The offender was designated to be a dangerous offender and was sentenced to an indeterminate term of imprisonment after being convicted of two sexual offences. He is Indigenous and had an “unfortunate, tragic background.” He became involved with the criminal justice system when he was 13 years old, and he has continued to violently and sexually reoffended in the community. He has severe addictions to alcohol and drugs and has suffered from a lot of trauma, including sexual assault. The offender also has been diagnosed with a severe personality disorder which has contributed to the risk he poses to public safety.

Since the appellant was designated as a dangerous offender, indeterminate detention was available as a sentencing option under s 753(4) of the Criminal Code. To properly exercise discretion under that section, the Court must impose the least intrusive sentence required to reduce the public threat posed by the offender to an acceptable level (R v Boutilier, 2017 SCC 64). To do so, the sentencing judge must conduct an individual assessment of all relevant circumstances and consider the sentencing objectives set out in ss 753(4), (4.1) and 718–718.2, including those developed for Indigenous offenders. An offender who is found to be a dangerous offender has the right to appeal his designation and sentence on any ground of law or fact or mixed law and fact as per s 759(1). The offender applied to submit fresh evidence on appeal, but it was denied due to the credibility and lack of perceived effect on the outcome.

The offender argued that the trial judge failed to take into account evidence of his treatability at the designation stage, which would constitute a reversible error. Consideration of treatability is relevant at both the designation and sentencing stage. When it came to the trial judge’s analysis at the designation stage, the Court found that treatability was not considered. Nonetheless, the offender’s patterns of conduct and the factual findings of treatment would have made a finding of dangerousness inevitable. At the sentencing stage, the trial judge found a lack of evidence that the offender’s risk to the community could not be managed which was upheld by the appellant court.

The offender also argued that the trial judge failed to give a tangible effect to Gladue factors when determining his sentence, which resulted in a disproportionate sentence. The Court acknowledged that it is necessary to look at the whole picture (including Gladue considerations). Still, the sentencing lens for a dangerous offender is constrained as there is an emphasis on public safety which narrows the options available to a sentencing judge. The trial judge recognized that the offender’s Gladue factors reduced his moral blameworthiness; however, his repeated history of reoffending and failure to address the issues that contributed to his criminal conduct made the need to protect the public paramount. It was decided that the trial judge adequately considered the offender’s Gladue factors and overall, the indeterminant sentence that was imposed was acceptable to the Court.

R c Dubé, 2019 QCCQ 7985

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Reply

After interpreting the new provisions that codify the consideration of Gladue principles at bail, specifically s 493.2(a) of the Criminal Code, the Court found no basis for detention of the accused if supervisory measures are established.

Indigenous Law Centre – CaseWatch Blog

The accused, Mr. Dubé, is an Aboriginal person and a member of the Opitciwan Atikamekw community. He is charged with a number of offenses, but he undertakes to respect all the conditions that the Court may impose. The prosecution objected mainly on the ground of the substantial likelihood that he would not comply with any potential conditions, as had been demonstrated by numerous past breaches. The accused has regularly found himself before the courts for assaults, threats, mischief, and thefts. There are about 20 breaches of conditions related to recognizances or probation orders and he has had several stays in prison.

The Court considered the new provisions of the Criminal Code that came into force concerning the principle of restraint, s 493.1, and the particular attention that must be paid to Aboriginal accused who are overrepresented in the prison system, s 493.2. Section 11(e) of the Charter enshrines the right not to be denied reasonable bail without just cause. Release is to be favoured at the earliest reasonable opportunity and on the least onerous grounds (R v Antic, 2017 SCC 27). The Supreme Court of Canada [“SCC”] examined the principles governing interim release and noted that nearly half of the individuals in provincial jails are accused persons in pre-trial custody, where the conditions are dire; Indigenous individuals are overrepresented in the remand population, accounting for approximately one quarter of all adult admissions; such a situation can have serious detrimental impacts on an accused person’s ability to raise a defence in addition to proving costly for society; and therefore, pre-trial detention is a measure of last resort (R v Myers, 2019 SCC 18).

The SCC pointed out the recurring problem of the overrepresentation of Aboriginal people in the prison system. Based on section 718.1(e), the Court proposed a special approach to sentencing in light of the particular circumstances of these offenders whose lives are far removed from the experience of most Canadians. Judges were encouraged to take judicial notice of the broad systemic and background factors affecting Aboriginal people generally (R v Gladue, [1999] 2 CNLR 252; R v Ipeelee, [2012] 2 CNLR 218).

The Gladue factors, with the necessary adaptations, are applicable to the hearing on interim release (R v Hope, 2016 ONCA 648). This Court places the accused’s lengthy criminal history with respect to breaches in the above context. The accused’s release plan with various supervisory measures put in place, while imperfect, makes sense given this Aboriginal context.

Note: French translation of R c Dubé, 2019 QCCQ 7985 found here.

Dumais et al v Kehewin Band Council et al, 2020 FC 25

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Reply

Motion dismissed. The reasons for dismissal is not the merits of the Plaintiffs’ grievances against Kehewin Band Council et al for refusing them memberships under Bill C-31, but rather this Court has no jurisdiction to entertain them.

Indigenous Law Centre – CaseWatch Blog

The Plaintiffs have asked for default judgement against the Kehewin Band and Band Council [“Kehewin”]. Due to the historical gender discrimination that existed against women with registered Indian status under the enfranchisement, or “marrying out”, provisions of the Indian Act, SC 1956. In 1985, however, the Indian Act was amended, also known as Bill C-31, to be consistent with s 15 of the Charter. Bill C-31 automatically restored band membership to the women who had lost their Indian status directly through enfranchisement.

Kehewin refused to recognize Bill C-31 or accept any of its eligible individuals or their children as band members. As a result, the Plaintiffs commenced the underlying action in 2000 seeking declaratory relief and damages against Kehewin and Her Majesty the Queen in Right of Canada, as represented by the Minister of Indian Affairs and Northern Development [“Canada”]. The Plaintiffs claim there was a fiduciary duty owed towards them and there was a breach of that duty.

In this matter, the Plaintiffs seek default judgment for damages resulting from Kehewin’s discrimination and associated denial of all tangible and intangible benefits of band membership. The action against Canada has been held in abeyance pending disposition of the present motion. The action moved forward by fits and bounds for almost a decade. Throughout this period, Kehewin engaged in a deliberate and systematic pattern of delay, using all possible means to frustrate the Plaintiffs’ efforts to conduct an orderly and complete discovery.

Kehewin never formally took control of its membership lists. Kehewin rebuffed all attempts to restore membership to the Plaintiffs, refusing to comply with Bill C-31 or recognize Canada’s authority. Kehewin also failed to file an action or application to challenge the constitutionality of Bill C-31. Kehewin simply ignored Bill C-31. Kehewin refused to recognize any Bill C-31 eligible individuals as Kehewin Band members. Kehewin’s adoption and application of their Kehewin Law #1 made it impossible for individuals reinstated to registered Indian status or Kehewin Band membership under Bill C-31 to qualify for Kehewin Band membership.

The applicable test to establish if this Court has jurisdiction is set out by the Supreme Court of Canada: 1) there must be a statutory grant of jurisdiction by the federal Parliament; 2) there must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction; and 3) the law on which the case is based must be “a law of Canada” as the phrase is used in s 101 of the Constitution Act, 1867 (ITO-Int’l Terminal Operators v Miida Electronics, [1986] 1 SCR 752 [“ITO”]).

The Plaintiffs rely on the provisions of ss 17(4) and paragraph 17(5)(b) of the Federal Courts Act [“FCA”] to find jurisdiction. First, the nature of the proceeding generally contemplated by ss 17(4) is an interpleader. To the extent any obligation may be owed by Kehewin or Canada to the Plaintiffs, are concurrent, not conflicting. The obligation can only be owed to one. It is the claims as against Canada by other parties which must be in conflict to fulfill the requirements of ss 17(4) (Roberts v Canada, [1989] 1 SCR 322). While Kehewin takes a different legal position regarding the Plaintiffs’ status as band members, this does not create a conflicting claim as against Canada. Therefore, this Court does not have jurisdiction to entertain the Plaintiffs’ action against Kehewin under ss 17(4) of the FCA.

Next, paragraph 17(5)(b) of the FCA grants concurrent jurisdiction to the Federal Court to entertain claims against persons in relation to the performance of their duties as an officer, servant or agent of the Crown. Band councils have been recognized as legal entities separate and distinct from their membership with the capacity to sue and be sued by courts at all levels. On the one hand, they may act from time to time as an agent of the Crown with respect to carrying out certain departmental directives, orders of the Minister and the regulations passed for the benefit of its members. On the other hand, the band councils do many acts which are done in the name of and which represent the collective will of the band members, all of which is directly related to the elective process provided for in the Indian Act whereby the band members elect its governing body. The element of control is key to a finding of agency (Stoney Band v Stoney Band Council, [1996] FCJ No 1113).

The difficulty with the Plaintiffs’ argument is that no facts have ever been advanced in their pleadings which could support a finding of agency, nor does the notice of motion seek a declaration or finding of agency. It is not open to the Plaintiffs on a motion for default judgment to now assert liability of Kehewin based on agency. The introduction of this new theory of liability at this late stage of the proceeding is problematic. In any event, the facts established by the Plaintiffs on this motion do not support a conclusion that Kehewin was under the control of Canada when it refused to provide benefits to the Plaintiff. Regrettably, the Plaintiffs have failed to satisfy the first branch of the ITO test.

R v BMW, 2020 BCPC 9

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Reply

After weighing the sentencing principles with the Gladue factors of the offender, a 32-month term of imprisonment was imposed for the guilty plea of two offenses.

Indigenous Law Centre – CaseWatch Blog

The offender pled guilty to one count of sexual interference and one count of sexual assault under ss 151 and 271 of the Criminal Code. At the time of the first offence, the accused already had a criminal record with 38 convictions, and at the time of the second offence, he had committed an additional 14 offences, that included multiple assaults. The issue for the Court was to determine a proper sentence by taking into account all of the relevant purposes and principles of sentencing, including the circumstances of the offence and the circumstances of the offender.

The offender held Indigenous status and lived in a reserve community that has a legacy surrounding residential schools, intergenerational alcoholism, drug addiction, poverty, family violence, suicide, and unemployment. He attended residential school from grades eight to ten. He had a job but lost it for being late and not getting along with his supervisor, which he attributes to alcohol abuse. In his early twenties, the offender lost both of his parents to alcohol abuse and his brother later passed away from a hit and run motor vehicle accident.

Following s 718.2(e) of the Criminal Code, it was necessary for the sentencing judge to consider the above background factors which may have played a part in bringing the offender to the Court and the types of sentencing procedures and sanctions that may be appropriate because of the offender’s Indigenous heritage. The mitigating factors included the offender’s early guilty pleas, his support from his family and his community, and his Indigenous heritage. The aggravating factors included his criminal record, details surrounding the offences, and the offences’ impact on the victim, a vulnerable Indigenous female. Considering the aggravating and mitigating factors, the Court ordered a term of imprisonment for ten months for the first offence and 22 months for the second offence, for a total of 32 months of imprisonment less time served.

R v Paulson, 2020 ONCJ 86

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Reply

After weighing the Gladue Report and other sentencing principles with the circumstances of the offender, 338 days of time served plus one day concurrent was imposed for the guilty plea of three offences.

Indigenous Law Centre – CaseWatch Blog

The 28 year old Indigenous offender pled guilty to three counts of Aggravated Assault, Breach of Recognizance, and Assault. The Court read about the offender’s personal circumstances in a Gladue Report and also had the opportunity to hear from her and her family during a sentencing circle. Following the sentencing principles of s 718 of the Criminal Code, it was necessary for the sentencing judge to analyze the circumstances of the offences and determine the weight of those factors while simultaneously considering the principles of denunciation and deterrence.

The offender is a single mother of four children. Her grandparents attended Residential School, which has had a tremendous impact on her mother, and herself. While growing up, she spent significant periods with relatives and friends before she was placed into foster care where she experienced childhood neglect and sexual abuse. The offender became pregnant at the age of fifteen and began abusing illicit substances while also entering into physically abusive relationships with men. She continued to have three additional children but has lost custody of all four. Losing her children caused the offender to experience Post-Traumatic Stress Disorder [“PTSD”], and she spiralled downward into further drug abuse. She did not have a prior criminal record.

It was accepted by the Court that the offender’s criminal actions were the result of extreme intoxication and that she had no memory of the events in question. Aggravating factors were considered including that the assaults were unprovoked, the assaults involved the use of a knife, the offender was on bail during the time of the attacks and was prohibited from possessing weapons, and the level of violence was significant. The mitigating factors included the fact that the offender pled guilty, she had no prior criminal record, her background as an Indigenous person impacted her life, she had PTSD at the time of the offences, and she was remorseful for her actions. It was decided that an appropriate sentence was one that would reflect the time that she had already served.

Dilico Anishinabek Family Care v Her Majesty the Queen (Ontario), 2020 ONSC 892

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Reply

Motion for stay dismissed. The applicants have not discharged their burden to show that they, or Indigenous children, will suffer irreparable harm if a stay of the Minister’s Directive and Designations is not granted.

Indigenous Law Centre CaseWatch Blog

This motion is for a stay. These proceedings involve a long-standing jurisdictional dispute between two representative Indigenous groups in northwestern Ontario over who should be permitted to provide child and family services in the City and District of Thunder Bay. The Minister of Children, Community and Social Services [“Minister”] issued designations authorizing three children’s aid societies to provide the full range of child and family services in Thunder Bay. At the same time, the Minister issued a directive providing that: a) Dilico Anishinabek Family Care [“Dilico”] will provide services to all Indigenous children and families other than Indigenous children from First Nations affiliated with Tikinagan Child and Family Services; b) Tikinagan will provide services to children and families from Tikinagan-affiliated First Nations; and c) the Children’s Aid Society [“CAS”] of Thunder Bay will provide services to non-Indigenous children and families [“Directive and Designations”].

Dilico was incorporated in 1986 by the Robinson Superior Treaty First Nations and granted authority in 1994 by a group of 12 First Nations to provide child protection services to Indigenous children and families in Thunder Bay. Dilico has operated as a designated CAS since 1995 under what is now the Child, Youth and Family Services Act [“CYFSA”]. Initially, Dilico’s designation restricted it to exercising powers as a CAS only over those members of the Dilico-affiliated First Nations residing in the City and District of Thunder Bay, together with powers over all children residing on specified reserve lands. In 2012, Dilico entered into a memorandum of understanding [“MOU”] with the Thunder Bay CAS. Under the MOU, Dilico assumed child protection jurisdiction over not only Dilico-affiliated First Nation children, but all Indigenous children in Thunder Bay.

Tikinagan Child and Family Services [“Tikinagan”] was incorporated in 1984 through the efforts of the 49 Chiefs of Nishnawbe Aski Nation which represents many First Nations across northwestern Ontario. In 1986, Tikinagan was given approved agency status by the Ministry and, in 1987, received its designation as a CAS. Tikinagan’s geographical area includes most of northwestern Ontario including parts of the District of Kenora and the northwest portion of the District of Thunder Bay. Tikinagan has the authority to offer the full range of child and family services within its territorial jurisdiction.

Dilico and the Fort William First Nation brought applications for judicial review seeking to set aside the Directive and Designations of the Minister on various constitutional and administrative law grounds, which will be heard at a later date. The applicants’ also motioned for a stay of the Directive and Designations; below are the reasons for the dismissal.

The court must consider three cumulative factors in determining whether to grant a stay: 1) whether there is a serious issue to be tried; 2) whether the moving party would suffer irreparable harm in the absence of a stay; and 3) whether the balance of convenience as between the parties favours granting the stay, in the sense that the harm that will be suffered by the moving party if the stay is not granted outweighs the harm that will be suffered by the responding party if it is (RJR-MacDonald Inc v Canada (AG), [1994] 1 SCR 311 [“RJR-MacDonald”]).

Cases involving child welfare or child custody require a modification to this approach to the three-part RJR-MacDonald test. The overriding consideration in such cases is the best interests of the child. In this matter, the Minister, the Thunder Bay CAS and the two Indigenous CASs operate within a statutory framework which makes the best interests of the child paramount. Section 1(1) of the CYFSA provides that the “paramount purpose of this Act is to promote the best interests, protection and well-being of children.” The applicants have, asserted grounds for judicial review of the Directive and Designations which are not frivolous. There are serious issues which can only be resolved in a full hearing. The applicants have, therefore, satisfied the first aspect of the RJR MacDonald test.

The Court concluded that the applicants have not discharged their burden to show that they, or Indigenous children, will suffer irreparable harm if a stay of the Directive and Designations is not granted. This conclusion is sufficient to dispose of the motion. However, there are other factors which tip the balance against a stay in any event. The public interest also includes a public interest in the legitimacy of public institutions. The public interest therefore includes a high level of respect for the decisions of the legislative and executive branches of government. The courts have limited institutional competence to interfere with those decisions. The courts have a supervisory role to play, but should be wary of usurping legislative and executive roles, particularly where they lie at the policy end of the decision-making spectrum (Hupacasath First Nation v British Columbia (Minister of Forests), 2005 BCSC 345; RJR-MacDonald).

At the end of the day, the balance of convenience weighs in favour of refusing the stay and, pending the disposition of the applications for judicial review, advancing the goal of providing child welfare services to Tikinagan-affiliated children and their families in a culturally appropriate manner. The applicants’ onus of showing that the balance of convenience favours granting the stay has also not been discharged.

 

Solomon v Garden River First Nation, 2019 FC 1505

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Reply

Judicial review granted. There was a breach of procedural fairness in the process followed by the Chief and Council that led to the Applicants being banished from Garden River First Nation. The matter is remitted for reconsideration.

Indigenous Law Centre – CaseWatch Blog

The Chief and Council of Garden River First Nation [“GRFN”] issued a series of Band Council Resolutions [“BCRs”] banning Kody John William Solomon and Ralph Justin Romano [“the Applicants”] from GRFN territory. On this application, the Applicants seek judicial review of these BCRs and the process undertaken by the Chief and Council.

GRFN is governed by an elected Chief and Council who are responsible for the governance of the Nation and its approximately 3,000 members. One of the applicants have resided there his whole life, another non-member has lived on GRFN for 19 years with his member spouse and teenage daughter. The Applicants were banished as they had been charged with offences under the Controlled Drugs and Substances Act, and that “illegal drugs have caused great harm to Garden River and its members,” and “allowing [the Applicants] to remain in Garden River may cause harm to Garden River and its members or endanger public safety.”

There is no dispute that the initial 2018 BCRs were issued by GRFN’s Chief and Council without the opportunity for any input from the Applicants, nor did they have notice. The right to a fair hearing requires that the Applicants have adequate notice of the case against them and sufficient opportunity to respond before a decision adverse to their interests was made (Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9). Given the serious consequences of the banishment decisions, the degree of procedural fairness owned to the Applicants is heightened.

It appears GRFN’s Council itself recognized flaws in the process undertaken. By-Law 20 was adopted subsequently after the BCRs in 2018. The major differences from By-Law 13 are that it allows the Band Council to banish members of GRFN and persons deemed to be threats to the peace and safety of the Band or other people lawfully on the reserve. By-Law 20 provides a process that is clearly tailored to address the particular circumstances of the Applicants, a member and a non-member of GRFN who were charged with a criminal offence. However, there was still no reconsideration of the original decision to banish the Applicants in the BCRs issued in 2019. Rather it appears the GRFN Council simply passed the new By-Law and considered it to have rectified any issues with the previous BCRs from 2018.

The case law is clear that issues of procedural fairness are considered on a correctness standard (Canadian Pacific Railway Company v Canada (AG), 2018 FCA 69). The test for assessing if the process was fair, is to ask whether a right-minded person, applying themselves to the question and obtaining the required information, would think it is more likely than not that the decision-maker did not decide fairly (Baker v Canada (Minister of Citizenship and Immigration), 1999 SCC 699 [“Baker”]). The factors outlined in Baker for assessing procedural fairness include: 1) the nature of the decision and the process followed in making it; the nature of the statutory scheme; 2) the importance of the decision to the individuals affected; 3) the legitimate expectations of the person challenging the decision; and 4) the choice of procedure made by the agency itself.

Considering that By-Law 20 appears to have been crafted to address the specific circumstances of the Applicants, they had a legitimate expectation that the process laid out in By-Law 20 would be followed. When the Baker factors are considered in conjunction with the reasonable apprehension of bias, it is clear that there was a breach of the Applicants’ right to procedural fairness. The evidence demonstrates a continuing course of conduct on the part of GRFN’s Council who never undertook the promised reconsideration of the original banishment decision. The 2019 BCRs were simply a reissue of the original 2018 banishments under the new By-Law. The decision-making process that led to the Council’s 2019 decision was procedurally unfair because the Council made up its mind in 2018. From that point, GRFN Council defended its original decision rather than engage in a true reconsideration.

Engstrom and Ragan v Peters First Nation Band Council, 2020 FC 286

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Reply

Application allowed. Peters First Nation Band Council is ordered to take all steps necessary to grant full Band memberships to the Applicants.

Indigenous Law Centre – CaseWatch Blog

The Peters First Nation Band Council [“Council”] rejected the Applicants’ respective applications for band membership. This matter is the second application for judicial review seeking relief in connection with the denial of their memberships.

The first application was granted, but the Court declined to express an opinion about the merits of the Council’s decision in denying membership to the Applicants. However, it was found that the Council had acted unfairly by failing to inform them in advance of the factors that would be taken into account in deciding their applications. There was also concern regarding the Council’s failure to provide substantive reasons for its decision. The matter was accordingly remitted to Council for reconsideration, but once again, the applications were refused.

The Court was not able to ascertain the exact motives of the Council for denying Band memberships to the Applicants. It can assess, however, the Council’s stated reasons for denying those memberships to determine whether those reasons had the mark of rationality, intelligibility and justification. The focus of judicial review is on the reasons provided by the decision-maker in support of its decision. According to the Supreme Court of Canada, reasonableness review “must be on the decision actually made”, not the reasons that could have been made (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [“Vavilov”]). Robust judicial review is about outcomes and a decision-maker’s reasoning process in getting to an outcome. Both must be reasonable in light of the legal and factual constraints that bear on the decision. A primary legal constraint is the governing statutory scheme. It is not open to a decision-maker to disregard the applicable rules. There is no such thing as absolute or untrammelled discretion (Roncarelli v Duplessis, [1959] SCR 121).

A decision-maker may have some room to interpret the rules that apply to a matter before it but that exercise must be consistent with the text, context and purpose of the provision (Vavilov). Where the words employed are precise and unequivocal, their ordinary meaning will usually be determinative. It is not open to the decision-maker to adopt an “inferior” interpretation merely because it is plausibly available and expedient; or to “reverse-engineer” to get to a desired outcome (Vavilov). The express governing rules that apply to the Council’s membership decisions are contained in the Peters Indian Band Membership Code [“Code”]. The Code was adopted by the Band in 1990 and replaced the band membership provisions that had been previously contained in the Indian Act.

In rejecting the applications of the Applicants, it is clear that the Council did not consider itself bound by the membership criteria set out in the Code. It was not open to the Council to make up its own membership rules to supplement the explicit criteria that were adopted in 1990 when the Band took control of its memberships. The Council has acted unlawfully, unfairly and in bad faith in rejecting the membership applications of the Applicants. The Council has repeatedly shown itself to be unfit to decide these matters and there is no reasonable expectation that fairness and reason will prevail if this matter is remitted to the Council again. The Council is directed to take all the steps necessary to grant full Band memberships to the Applicants.

Jim Shot Both Sides v Canada, 2019 FC 789

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Reply

Claim allowed in part. A First Nation signatory to Treaty 7 filed a claim in 1980. Breaches of treaty obligations only became actionable with the passage of the Constitution Act, 1982. Canada is liable for the breach of treaty, but all other claims are time-barred. 

Indigenous Law Centre – CaseWatch Blog

In 1877, Treaty 7 was made between Canada, the tribes of the Blackfoot Confederacy, the Stoney, and the Sarcee Indians. Treaty 7 promised the Blood Tribe and each of the others, a reserve. The Blood Tribe reserve is at issue in this matter. It is set out in Treaty 7, however, that location was changed by agreement between the Blood Tribe and Canada.

Canada did two surveys of the area that was to become the Blood Reserve. The first was done in 1882 [“1882 Survey”] and the second was done in 1883 [“1883 Survey”]. The Blood Tribe asserts that the 1882 Survey, at law, created a reserve and the reduction of 102.5 square miles by the 1883 Survey required that it surrender that land as is provided for in The Indian Act, 1880. The Blood Tribe gave no such surrender. It therefore submits that it is entitled to that land or compensation for the loss of it.

Canada pleads that this action is time-barred by virtue of the Limitations Act. The Blood Tribe submits that Canada’s breach of its Treaty obligations to the Blood Tribe only became actionable in 1982 with the passage of the Constitution Act, 1982. The Blood Tribe commenced this action by Statement of Claim filed in 1980.

The Court found that a reserve for the Blood Tribe was created prior to 1883. The reserve that was set apart for them is that laid out by the 1882 Survey. It could not be reduced in size without obtaining a surrender from the Blood Tribe. There is no evidence how Canada arrived at the 650 square mile reserve created by the 1882 Survey. It appears to be based on a Blood Tribe population of 3250. Absent evidence as to how Canada arrived at the population figure it appears to have used, and given that the Court’s finding that the actual population was 3550, it is concluded that Canada failed to fulfill its treaty obligation.

The material facts as set out in the original Statement of Claim are that the Blood Tribe was a party to Treaty 7, that under the Treaty the Blood Tribe was entitled to a reserve of a size to be determined based on the Treaty Land Entitlement process [“TLE”], that Canada provided a reserve, but that the reserve provided was not of the required size under the TLE. The Blood Tribe sought a declaration that it is entitled to additional lands, or in the alternative, damages. These are the material facts that touch on the claim of breach of treaty. They are few and straightforward.

Paragraph 5(1)(g) of the Limitations of Actions Act provides that an action for breach of treaty must be commenced within six years after the cause of action arose. It may seem odd, but here the Blood Tribe commenced this action two years before the cause of action arose. It did so because it pleaded the action as if it were a breach of contract claim. As result of the view of the Supreme Court of Canada that treaties are not contracts (R v Sundown, [1999] 1 SCR 393; First Nation of Nacho Nyak Dun v Yukon, 2017 SCC 58), it has turned out that the claim of the Blood Tribe is not one for breach of contract but rather is a claim for breach of treaty.

The Blood Tribe since commencing this action has been the beneficiary of the entrenchment of treaty rights into the Constitution Act, 1982. Canada has not put forward any arguments on the temporal application of the Constitution Act, 1982 to suggest that it would not apply to an ongoing action. For these reasons, the claim of the Blood Tribe for breach of the TLE promise in Treaty 7 is not time-barred.

For the reasons above, the claim of the Blood Tribe is allowed, in part. The Court finds that Canada is in breach of the TLE formula in Treaty 7 in regards to the size of the Blood Reserve. The Plaintiffs were entitled under the TLE formula to a reserve of 710 square miles, whereas the current Reserve is 547.5 square miles. Canada is liable to the Blood Tribe for this breach of Treaty. All other claims are dismissed as time-barred.

Servatius v Alberni School District No 70, 2020 BCSC 15

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Reply

The petitioner failed to establish that the demonstrations of Indigenous culture at her children’s school interfered with her or her children’s ability to act in accordance with their religious beliefs. Accordingly there was no infringement of the petitioner’s or her children’s freedom of religion.

Indigenous Law Centre – CaseWatch Blog

As part of an effort to acquaint students with Indigenous culture and to promote a sense of belonging in Indigenous children, a Nuu-chah-nulth Elder visited a Port Alberni elementary school and demonstrated the practice of smudging. A few months later, at an assembly, the students witnessed an Indigenous dance performance and a prayer. The petitioner’s children witnessed the demonstrations. The petitioner is an evangelical Christian. She submitted that both the smudging and the prayer that accompanied the dance interfered with the religious freedoms of herself and her children guaranteed by the Charter of Rights and Freedoms. The petitioner sought a declaration to this effect and an order in the nature of prohibition enjoining further events of this nature in the school district.

It was conceded that the petitioner’s beliefs were sincere and that they had a nexus with religion. The petitioner, however, had two paths to fulfill a finding that the School District had interfered with their ability to act in accordance with their religious beliefs. First, and principally, the petitioner argued that the School District breached the state’s duty of neutrality. She had to show that (1) the School District professed, adopted, or favoured one belief to the exclusion of all others; and (2) the exclusion resulted in interference with the petitioner’s or her children’s freedom of conscience and religion. The organization of these events reflected a fathering momentum to incorporate the teaching of Indigenous worldview and perspectives. Arranging for students to observe hoop dancing accompanied by an Indigenous prayer, could not reasonably be interpreted as the School District professing, adopting, or promoting religious beliefs. Therefore, the petitioner’s argument failed to clear the first hurdle.

The petitioner’s second argument surrounded the right not to believe in Indigenous spirituality, the ability to refuse to participate in these practices, and the freedom from government coercion to affirm a specific religious belief as protected under s 2(a) of the Charter. She maintained that her children were compelled to participate in Indigenous spiritual practices, or affirm spiritual beliefs associated with those practices and that this constituted non-trivial interference with her and her children’s ability to act in accordance with their religious beliefs. Proof on an objective basis required more than the children being in the presence of an Elder demonstrating a custom with spiritual overtones or being in the presence of a dancer who said a brief prayer. This did not interfere with the ability to act in accordance with one’s religious beliefs.

The demonstrations were admirable and admissible efforts to teach, in a memorable way, about Indigenous beliefs. It was proper and advisable in light of the historical circumstances that the School District organize such events. The petitioner had therefore failed to establish that the Nuu-chah-nulth smudging in her children’s classrooms or the prayer said by the hoop dancer at the school assembly interfered with her or her children’s ability to act in accordance with their religious beliefs. Accordingly, no infringement of the petitioner’s or her children’s freedom of religion had been proved.