R v Lagrelle, 2019 ABQB 702

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A non-carceral sentence is unavailable for an Indigenous woman who pled guilty to causing an accident that resulted in a death and bodily harm to others while driving intoxicated.

Native Law Centre CaseWatch Blog

The offender, Ms. Lagrelle, had a previous impaired driving offence but still made the decision to drive intoxicated and was travelling at a high speed when a collision occurred. The alcohol content was almost twice the legal limit, and she had occupants in the vehicle. An aggravating aspect was that the offender denied driving the vehicle and only admitted to police that she was indeed the driver two weeks after the accident. Because of these actions, Ms. Lagrelle’s moral blameworthiness is high for causing an accident that resulted in a person’s death as well as bodily harm to others.

One of the challenges facing this Court is that Ms. Lagrelle, and Idigenous woman who has suffered substantial abuse in her life, will be facing a carceral sentence. A non-carceral sentence, such as a conditional sentence order, is simply not available for the offence. Ms. Lagrelle, however, shows prospects for rehabilitation. Although the gravity of the offences for which she has been convicted are high, her moral culpability was lessened through the various Gladue factors stated in a Gladue report that assisted with determining the length of the sentence that is imposed (R v Abraham, 2000 ABCA 159).

The Court determined that the fit and proper sentences for Ms. Lagrelle’s offences for causing an accident resulting in death was three years and six months imprisonment and for causing an accident resulting in bodily harm was two years and six months imprisonment. The sentences are to be served concurrently. Further, it was recommended that the sentence be served in the Okimaw Ohci Healing Lodge in Maple Creek, Saskatchewan.

Taseko Mines Limited v Tsilhqot’in National Government, 2019 BCSC 1507

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Interlocutory injunction granted in favour of the Tsilhqot’in Nation against Taseko Mines Limited work permit, on the basis that it infringes their Aboriginal rights.

Native Law Centre CaseWatch Blog

Taseko Mines Limited [“Taseko”] applied to prohibit members of the Tsilhqot’in Nation [“Tsilhqot’in”] from blockading its access to an area where the mining company wants to carry out an exploratory drilling program [“NOW program”]. Taseko has access pursuant to a notice of work permit [“NOW permit”] issued under the Mines Act. That application is now moot since the Court decided Tsilhqot’in’s application will succeed for an injunction prohibiting Taseko from carrying out its NOW program until the Tsilqot’in’s underlying claim to quash the NOW permit is heard.

In this matter, the issue is whether granting Tsilqot’in the interim injunction prohibiting Taseko from undertaking the NOW program would amount to a final determination of the action, which would effectively remove any benefit of proceeding to trial. The NOW permit will expire in July 2020, and if Taseko is enjoined until the action is heard, it is very unlikely the trial could be completed in time to for the 4-6 weeks required to complete the NOW program. In the Court’s view, the extension is essentially mechanical and concludes that Taseko will have until July 2022 to complete the NOW program, because Taseko can extend the NOW permit by two years under s 5(1) of the Permit Regulation.

Issues pertaining to infringement and justification, which will be the focus of the trial, are not new to the parties. Because some of the factual and legal elements have been argued before different courts for years, the discovery process will not be as time consuming as it would be if the issues were new to the parties. Based on the evidence and submissions before the Court, if the parties prioritize the matter, the timeline should be adequate to prepare for trial. The injunction is not tantamount to granting relief nor is it bound to impose a hardship removing any benefit of trial. The threshold merits test is the serious question to be tried standard (R v Canadian Broadcasting Corp, 2018 SCC 5). This threshold is relatively low as a prolonged examination of the merits is generally neither necessary nor desirable (RJR-MacDonald Inc  v Canada, [1944] 1 SCR 311).

It was determined that given the nature of the harm to the Tsilhqot’in, and the waiving of the undertaking as to damages, there was a material risk of irreparable harm to both parties. When there is a risk of both parties suffering a material risk of irreparable harm, the court should favor the status quo (AG British Columbia v Wale (1986), 9 BCLR (2d) 333 (CA)). It was determined that the NOW program would change the status quo as it would disturb the land. The Tsilhqot’in stand to suffer greater irreparable harm if the injunction is not granted. Despite that the Tsilhqot’in pursued a self-help remedy of a blockade outside the courts, the imperative of reconciliation was such that the balance of convenience was in the Tsilhqot’in’s favour.

FB v RB, 2019 ABPC 204

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Application denied. Considering the history of the family, the grandparents of child are granted daily care. The child’s mother has restricted parenting time. The father is allowed no contact unless via a safe visitation facility.

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This action involved the guardianship and parenting of a child. The grandparents of the child obtained court orders for guardianship. The parents were granted a Parenting Order in 2016, giving them daily care of their child, all decision-making powers, and gave the mother parenting time with the child at the discretion of the grandparents. The mother, however, applied under s 34(2) of the Family Law Act [“Act”], to vary the 2016 Parenting Order, asking that the child be transitioned to her day to day care.

The issues before this Court was whether it had the jurisdiction to make a variation order of the 2016 Parenting Order. If so, what allocation of parenting time, guardianship powers, entitlements, and responsibilities were in the best interests of this child. S 34(3) of the Act determines that the Court can only make a variation order if there has been a material change in the needs or circumstances of a child since the making of a Parenting Order. Additionally, the Court can only consider the best interests of a child as set out in s 18 of the Act, as determined by reference to any change in a child’s needs or circumstances. An existing custody order may be varied on an interim basis in emergent circumstances, but it should not be lightly disturbed as stability and certainty are primary considerations for a child’s best interests (Carey v Hanlon, 2007 ABCA 391).

S 18(2)(b) provides a non-exhaustive list of the needs and circumstances of a child that the Court must consider. Accordingly, for s 34(3) of the Act, a change in the needs or circumstances of a child has occurred if there has been a material change in any of the needs or circumstances listed in s 18(2)(b). The Court determined that there was a material change in the needs or circumstances of the child in this matter concerning the ability and willingness of the mother to care and meet the needs of the child. There was, however, a pending criminal proceeding regarding an allegation of sexual assault against the father, which is a circumstance affecting the safety and well-being of the child, which was afforded greater weight.

R v Paul, 2019 SKQB 142

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Offender is to be sentenced as an adult, even after consideration of Gladue factors. She is to serve, concurrently, nine years imprisonment for manslaughter and two years imprisonment for unlawful confinement.

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The accused was found guilty of a lesser charge of manslaughter as well as unlawful confinement. The offender was just shy of her 18th birthday at the time of the offences; as such, these proceedings fell under the Youth Criminal Justice Act, SC 2002, c 1 [“Act”]. However, the offender was to be sentenced as an adult as the Crown filed a notice and the offender had consented to that process under s 67 of the Act.

Proportionality, the fundamental principle of sentencing, the individualistic nature of sentencing, deterrence and denunciation, and rehabilitation as the offender is a young person were all taken into account. Further, sentencing must consider the Gladue factors when considering a person of Indigenous ancestry.

While on remand, the offender took advantage of some available programming but her time in remand could not be characterized as positive. The pre-sentence report ranked the offender in the highest level of risk to reoffend, and the psychological assessment report concluded she was at a high risk for future violent offending. The offender informed the court that she does understand she needs assistance and that was the primary reason she consented to an adult sentence to take advantage of the programming. She has been connected with her family since being incarcerated. She oscillates between expressions of remorse and pride at her capacity for violence and defiance, but stated she was sorry at the sentencing hearing which was taken as sincere.

Counsel agreed that the sentencing range for manslaughter is 4 to 11 years, with a starting point of 7 years. In some circumstances, a suitable sentence will fall outside the range. Two cases were relied on, R v Whitehead, 2016 SKCA 165 and R v Littlewolfe, 2002 SKCA 143. The prolonged nature of the attack and extent of physical violence inflicted on the victim were aggravating circumstances in this case. As for mitigating factors, her youth was a mitigating factor as well as not initially being the leader in the attack. The offender was sentenced to nine years imprisonment for manslaughter and two years imprisonment for unlawful confinement, to be served concurrently.

Ross River Dena Council v Yukon, 2019 YKSC 26

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Application dismissed. Yukon has engaged in “deep consultation” with the RRDC in respect to wildlife matters. There has been no breach of the duty to consult, and where appropriate, to accommodate.

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Ross River Dena Council [“RRDC”] applied pursuant to Rule 31(6) of the Rules of Court, for the following order: 1) A declaration that the issuance of hunting licences and seals might adversely affect the Aboriginal title of the RRDC members in and to the Ross River Area by permitting conduct in that Area inconsistent with Aboriginal title; 2) A declaration that the Government of Yukon has a duty to consult with, and where indicated, accommodate the RRDC prior to issuing hunting licences and seals; and 3) A declaration that, in respect of each of the 2016/2017, 2017/2018 and 2018/2019 hunting seasons, the Government of Yukon failed to consult with and, where indicated, accommodate the RRDC prior to issuing hunting licences and seals. The Government of Yukon [“Yukon”] opposed the application and relied on RRDC v Yukon, 2015 YKSC 45 [“RRDC 2015 wildlife case”], where this court refused to grant a declaration of a constitutional duty to consult on wildlife matters as it was unnecessary when Yukon was ready, willing, and able to negotiate and consult on wildlife matters as set out in Haida Nation v British Columbia (Minister of Forests), [2005] 1 CNLR 72 [“Haida Nation“].

The context and content of Yukon’s duty to consult with RRDC in wildlife matters required a consideration of the previous decisions. In Ross River Dena Council v Yukon, 2012 YKCA 14 the Court of Appeal recognized that the Yukon had a duty to consult with RRDC in determining whether mineral rights on Crown land within lands compromising the Ross River Area are to be made available to third parties. Further, that Yukon has a duty to notify, and where appropriate, consult with and accommodate RRDC before allowing any mining exploration activities to take place within the Ross River Area. In the RRDC 2015 wildlife case, it was concluded that the Haida Nation test for the duty to consult, had been met.

After reviewing the principles set out in Haida Nation, there were a number of reasons why deep consultation was required by Yukon. First, in Ross River Dena Council v Canada (Attorney General), 2019 YKCA 3, the Court of Appeal confirmed the constitutional obligation in the Rupert’s Land and North-Western Territory Order (UK) which was important for the case at bar to recognize the historic and legal nature of the RRDC claim to title and its application to Yukon. Second, there have been significant impacts on the RRDC traditional territory ongoing for at least 50 years. Third, Yukon and the RRDC have been negotiating land claims on and off from 1973 to 2002 which supports the strength of the claim as negotiations would only proceed on the understanding that there was an asserted but as yet undefined underlying claim to title. Fourth, the strength of the claim was enhanced by the lands set aside, on an interim basis, for settlement purposes. Last, the comprehensive nature of the Framework for a Government-to-Government Agreement between representatives of the Kaska Nation, including RRDC.

RRDC was at the claim stage of asserting Aboriginal title. Yukon had consulted extensively with RRDC representatives through sharing the harvest results, the population surveys, and discussing wildlife management issues. Yukon had further provided RRDC with notification of planned wildlife initiatives; shared specific wildlife data and information; and provided funding to RRDC to participate in discussions and negotiations. RRDC had acknowledged the correspondence. While RRDC believes that the entire Ross River Area should be a permit hunt area, Yukon saw this as a way to limit hunting access rather than a useful wildlife management tool. It must be remembered that failure to agree does not necessarily result in a breach of the duty to consult. Yukon was also prepared to continue discussing the proposal. After responding to concerns from RRDC indicating a decline in the Finlayson Caribou Herd, Yukon closed the permit hunt for the Finlayson Caribou Herd and set the outfitter quota to zero for the 2019/2020 hunting season which was seen as significant accommodation. For these reasons, there had been “deep consultation” with RRDC with respect to wildlife matters and no breach of the duty to consult, and where appropriate, to accommodate. RRDC’s application was dismissed.

Alton Natural Gas Storage Inc v Poulette, 2019 NSSC 94

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Permanent injunction order granted. The Applicant company may make a place on its lands where protestors could gather and be seen by the public. The Respondents and their belongings are confined to this permitted area.

Native Law Centre CaseWatch Blog

Alton Natural Gas Storage Inc [“Alton”] was seeking a permanent injunction against Respondents who oppose Alton’s plan to use hydro technology to construct a vast underground cavern system. Discharge construction water would flow as a result into the Sipekne’katik River [“River”]. The Mi’kmaq people have used the waterway for over 4,000 years. The Sipekne’katik First Nation and other First Nations have significant interests in the River. Alton was proposing to construct a system of caverns in the land beside the River to store natural gas and had acquired over 40 acres of land bordering the River. To do so, Alton planned on creating the caverns by pumping the River water into salt deposits underground. Alton expressed that the brine was to be injected into a mixing channel adjacent to the River, diffused, diluted, and returned to the River at a salinity level within the natural range.

Numerous First Nations, however, expressed their fears that the brine would pollute the River. A camp was built near the front entrance to Alton’s land and its guardhouse. Alton alleged that the camp prevented the heavy equipment needed to create a pump system. Protestors continued to impede access to Alton’s property at various times after 2016. The court determined that for Alton to receive a motion for an interlocutory injunction it must show three things: 1) that its claim raises a serious issue to be determined on the hearing of the application for a final injunction; 2) it will suffer irreparable harm if there is no temporary injunction before the hearing of the application; and 3) the balance of inconvenience must favour Alton over the Respondents (RJR MacDonald v Canada, [1995] 3 SCR 199 [“RJR”]).

Alton proved title and occupation to the land along the River where the protestors were camped and had established a serious issue to be tried. Evidence of threats from Youtube was sufficient to establish irreparable harm (RJR). Assessing the balance of convenience involved “determining which of the parties will suffer the greater harm from the granting or refusing of an interlocutory injunction, pending trial” (Maxwell Properties Ltd V Mosaik Property Management Ltd, 2017 NSCA 76).  The Court expected something more than an assertion of Aboriginal or treaty rights to establish a balance of inconvenience favouring the Respondents. Therefore, the balance of convenience was determined to be with Alton.

R v Luke, 2019 ONCJ 514

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Conditional discharge granted. In this matter involving an Indigenous first time female offender, the mandatory minimum sentence in s 255(1) is inconsistent with s 12 of the Charter.

Native Law Centre CaseWatch Blog

The accused was arrested for impaired driving after she took her mother’s car without consent. She assumed control of the vehicle in an extremely intoxicated state, out of reaction to her boyfriend’s infidelity with her own cousin. A monetary penalty in response to the creation of a serious risk, such as with impaired driving, will not be a grossly disproportionate punishment. The central issue is whether the criminal record which necessarily flows from the imposition of that mandatory minimum fine results in a s 12 Charter violation for an offender, such as with accused in this matter. The result of the mandatory minimum sentence demanded by s 255(1) of the Criminal Code [“CC”], the discretion afforded by s 730 of the CC was unavailable. As well, when Parliament enacted s 255(5), Ontario never opted into the application of a discharge provision.

A discharge should only be granted if the court “considers it to be in the best interests of the accused and not contrary to the public interest”. This must be answered having regard to the accused’s moral blameworthiness and to the gravity of the offence. As well, all sentencing determinations “must respect the fundamental principle of proportionality”. Taking into account s 718.2(e), a different method of analysis must also be used when determining a fit sentence for Aboriginal offenders.

Denunciation is a key consideration in drinking and driving offences, especially where the offence was motivated by extreme emotional turmoil such as in this matter. Deterrence of like-minded potential offenders seems futile. It would be more effective if the court imposed a driving prohibition in addition to the two years’ probation. The accused accepted responsibility for the offence by pleading guilty, within weeks began addressing the alcohol addiction, met with a counsellor and a registered psychotherapist, and has the intent of completing high school and becoming a youth worker. In holding it would not be contrary to the public interest to grant this specific accused a curative treatment discharge, it would also be a just sanction given the accused is an Aboriginal offender.

The mandatory minimum sentence in s 255(1) prevented giving effect to several important factors such as: 1) the accused is a first offender with strong rehabilitative potential; 2) the offence was largely motivated by alcohol addiction and there is good reason to believe continued treatment will effectively deal with that issue; and 3) the accused’s offence was connected to their Aboriginal background which also provides for rehabilitative and restorative sentencing options. There is recognition of the stigmatization, stereotyping, and further challenge to the Aboriginal accused in finding future educational and employment opportunities. S 255(1) was stated to result in at least some grossly disproportionate sentences and could not be saved under s1. A Provincial Court’s power to determine constitutional validity of a CC provision is limited to the case that is heard, therefore no formal declaration was made for s 255(1). In this case, the accused was granted a curative treatment discharge for the reasons above.

Bird v Blott, 2019 ABQB 764

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Application for certification granted with costs. A class action will go forward to sue an Albertan lawyer who was disbarred for his misconduct in managing IRS files.

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This is an application by the Plaintiffs for certification of a class action pursuant to s 5 of the Class Proceedings Act [“CPA”]. It concerns the alleged mishandling of approximately 5600 residential school claims by former Calgary lawyer, David Blott, on behalf of Aboriginal clients who were signed up to retain Blott by the form filling efforts of Honour Walk Ltd. Mr. Blott was reported to have received 21 million dollars for his firm’s services. The absolute failure of Blott to provide individualized legal services to the Plaintiffs in the Residential School Class Action is well documented in judicial decisions (Fontaine v Canada (AG), 2012 BCSC 839 and 2012 BCSC 1671). He had set up his practice in such a way as to maximize profit and minimize the effort required.

In order for the Court to certify these proceedings, it must be satisfied that the conditions set out in the CPA have been met, but be construed generously. An overly restrictive approach must be avoided in order to realize the benefits, such as judicial economy, access to justice and behavior modification and so on, by those who cause harm at the certification stage (Hollick v Metropolitan Toronto (Municipality), 2001 SCC 68) [“Hollick”]; Cloud v Canada (AG), (2004) 73 OR (3d) 401 (ONCA)).

The statement of claim disclosed a cause of action. The next condition for certification required an identifiable class that should be defined independently of the merits of the action (Western Canadian Shopping Centres Inc v Dutton, 2001 SCC 46). This definition included those who retained the Blott Defendants arising out of the residential school experience and should not be unnecessarily broad (Hollick). The way in which the Blott Defendants arranged Mr. Blott’s practice essentially ruled out the possibility of a solicitor and client relationship, which Mr. Blott’s clients were entitled to expect. The Court is satisfied that there is an identifiable class.

There is a common issue among this identifiable class of an experience of being largely ignored and exploited. It turned what was supposed to provide reconciliation and closure into another traumatic experience. It would appear that most of Mr. Blott’s clients will have had very similar complaints and circumstances. The fact that some of them may have been affected differently does not mean there are no common issues. The Court is satisfied that the condition of a common issue for certification has been met.

Thousands of innocent people retained Blott to seek justice for them, as part of a class of residential school attendees. This class of people are vulnerable and for the most part, impecunious. As with the resolving of the residential school claims through a class proceeding, it is hard to see how justice can ever be obtained for the Blott clients other than through another class proceeding. It is important to proceed with their claims as a class because, like the residential school claims, it will be useful to establish standards and a basis for comparison when one does analyze the quantum of each claim.

The law firm acting on behalf of the Plaintiff class is doing this on a pro-bono basis, and there can be no doubt that the efficiency of dealing with all the claims in this way is far superior to numerous individual claims. The Court is satisfied that a class proceeding is the preferable procedure for this action.

Wakeling v Debassige, 2019 ONSC 4058

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Variation to a divorce order granted in order for the parties’ children to more fully participate in Indigenous events.

Native Law Centre Case Watch

A member of the M’Chigeeng First Nation, sought to change the parenting schedule for his two children to support their connection with their First Nation’s heritage, communities, and Ojibwe language. The mother of the children is not First Nation. The children had primarily resided with their mother. The father sought to have the children primarily live with him in another province and have them attend school there as he felt their current school schedule interfered with their ability to participate in Indigenous events. The mother opposed the claims on the basis that she had been supportive of the children’s connection to their heritage, and there had not been a change in circumstances. She also sought an order preventing the father from bringing further motions to vary without leave of the court as she argued that he had abused the court system by bringing multiple variation proceedings.

Before a court may vary the parenting provisions of an order, the court must be satisfied that there has been a material change in the conditions, means, needs, or other circumstances of the child occurring since the making of the last variation order made in respect of that order (Divorce Act; Gordon v Goertz, [1996] 2 SCR 27 [“Gordon”]). A material change in circumstances is one that: 1) amounts to a change in the conditions, means, needs, or other circumstances of the child and/or the ability of the parents to meet the needs of the child; 2) materially affects the child; and 3) could not have been reasonably contemplated at the time of the last variation order.

On a balance of probabilities, the onus to prove that there has been a material change is on the party seeking the change. If that party is unable to show the existence of a material change, the inquiry can go no further. As well, evidence on a motion seeking a final order should meet the same tests for admissibility as apply at trial. When making a variation order after finding there had been a material change, the court must then take into consideration only the best interests of the children as determined by reference to that change (Divorce Act; Gordon).

After viewing all the factors, this Court determined that the only material change was relating to the National Aboriginal Day and powwows, therefore a variation order was necessary for that factor. The mother’s request to have an order granted to prevent the father from bringing further motions to vary without permission of the court, was dismissed. The mother had not provided evidence of previous costs orders against the father, nor that he had failed to pay such costs in the past.

R v Stride-Drew, 2019 NLSC 147

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A first offender’s Aboriginal status triggered a Gladue analysis. She was sentenced to 33 months imprisonment after pleading guilty to sexual interference involving a 14 year old child.

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The Offender pled guilty to sexual interference contrary to s 151 of the Criminal Code [“CC”]. She was 22 years of age and older than the 14 year old victim by 8 years. In this matter, the issue is the determination of a fit and just sentence for the Offender considering the circumstances of this offence. The Crown submits that a term of imprisonment of three years with mandatory ancillary orders is appropriate and is at the low end of a sentence for sexual intercourse with a child under the age of 16 years. The Defence requests a term of imprisonment of two years plus a day be imposed on the basis of Gladue considerations support a sentence outside the range (R v Gladue, [1999] 2 CNLR 252).

S 718.01 of the CC states that when a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, primary consideration should be given to the objectives of denunciation and deterrence of such conduct. S 718.2 (ii.1) requires that the abuse of a person under the age of 18 years be deemed an aggravating circumstance. S 718.2 provides a non-exhaustive list of secondary sentencing principles, including the consideration of aggravating and mitigating circumstances, the principles of parity and totality. There is also the instruction to consider all available sanctions other than imprisonment that are reasonable in the circumstances, with particular attention paid to the circumstances of Aboriginal offenders.

The extent of the sexual interference on the victim is very grave and on the high end of the scale. The victim’s unwillingness and distress should have been obvious to the Offender. She took full advantage of the opportunity to sexually abuse the child when she entered the room. The traumatic and long-lasting effects of sexual abuse on children are well known. The victim was only 14 years old, was very upset during the incident which was partially witnessed by two persons who came to his assistance. The victim was also required to testify at a Preliminary Inquiry.

The mitigating factors for the offender is that she is a youthful first offender, she entered a guilty plea to the charge and has expressed remorse. The offender was not in a position of trust with respect to the victim. There was no violence on the part of the offender to perpetrate the offence or evidence of planning to have sexual intercourse with the victim.

The offender is Mi’kmaq and member of the Miawpukek First Nations Band of Conne River. She has a positive attitude towards employment and is very receptive to counselling. She agrees that a Federal term of incarceration would be in her best interests given the available programs. The offender’s upbringing was extremely unstable, as she endured physical violence and mental abuse for many years. She has physical and mental health problems requiring daily medication. While this is not offered at all as an excuse to sexually abuse a child, it does give an understanding of this young Aboriginal woman, how it has impacted her and the offence as Gladue requires. The Court believes her prospects for rehabilitation are positive.

If not for her high degree of intoxication on the date of the offence, the Offender may not have committed this offence, but the facts are very grave. Denunciation and deterrence remain the primary considerations. Other than the Gladue factors, this is not a case where a sentence would be on the low end of the scale. The sentence would be three and a half years imprisonment as imposed in R v Barrett, 2012 NLCA 46. Given the compelling pre-sentence report and a thorough Gladue analysis, that sentence has been reduced to a sentence of 33 months.