R v Abram, 2019 ONSC 3383

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Reply

Application granted. The Applicant is entitled to a hearing before a jury to request that his parole ineligibility period be reduced.

Native Law Centre
Case Watch Blog

The Applicant was convicted of the first-degree murder of his 17-month-old stepson in 2005. He received the mandatory sentence of life imprisonment with no parole eligibility for 25 years. Having served more than 15 years of his sentence, the Applicant applied for a faint hope hearing where it will be asked that his parole ineligibility period be reduced. S 745.61 of the Criminal Code requires that such applications be screened for merit before a jury hearing is granted.

The primary purpose of the s 745 hearing is to call attention to changes which have occurred in the applicant’s situation that might justify imposing a less harsh penalty upon the applicant (R v Swietlinksi, [1994] 3 SCR 481). The Applicant was given the benefit of the lower screening standard, meaning, whether there is a “reasonable prospect of success” due to the uncertainty in the law, as well as this being the standard imposed at the time the offence was committed. If success falls within a range of reasonable outcomes, it qualifies as a reasonable prospect of success. Further, Gladue bears on whether the Applicant should have the right to make an application before a jury which applies in this case.

This Court considered victim impact statements, the community impact, the Applicant’s character and conduct in the institution, as well as his remorse/acceptance of responsibility. Many correctional records reported that the Applicant had a deep understanding of what he did, and a compelling need to make amends by becoming a better person. His community was eager to have him return. The most striking features of this case is the level of unqualified support offered by correctional officials towards the Applicant.

The Crown attempted to argue that the Applicant failed to accept full responsibility because he was unwilling to enrol in treatment programs aimed at sex offenders. The Court stated that the absence of sexual motivation did not affect the characterization of the crime but bears on whether the Applicant requires treatment as a sex offender. Because professionals within the correctional system had concluded there is no need for such treatment, the Applicant cannot be faulted for abiding by the recommendations of institutional officials. The Crown also attempted to argue a comment made in a psychological assessment 12 years ago showed his lack of remorse. The comments made then do not reflect the applicant’s current conceptualization of his crime. The prospect of success is therefore reasonable when one considers the Applicant’s present character, institutional history, adherence to Indigenous traditions, and his ongoing commitment to personal growth.

Anderson v Alberta (AG), 2019 ABQB 746

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Reply

Advanced costs granted. It would be manifestly unjust to either compel the First Nation to abandon its claim or to force it into destitution in order to bring the claim forward.

Native Law Centre

This is an application by the Beaver Lake Cree Nation [“BLCN”] for an order of advanced costs to allow them to proceed with their Statement of Claim filed 10 years ago against Canada and Alberta. The litigation deals with the cumulative effects of the “taking up” of land in the Beaver Lake traditional territory and the damage done thereby on the way of life of the members of the BLCN. An advanced costs decision is ultimately discretionary and there is a high threshold of accountability for using public funds through courts rather than through the legislature or the government bureaucracy.

The Court may award interim costs when a party demonstrates impecuniosity, a meritorious case, and issues of public importance (BC (Minister of Forests) v Okanagan Indian Band, [2004] 1 CNLR 7 [“Okanagan”]; Little Sisters Book and Art Emporium v Canada (Commissioner of Customs and Revenue), 2007 SCC 2 [“Little Sisters”]). Even if all the criteria are met, there is no right to interim costs. The Court has discretion whether to grant an order for interim costs, or consider other methods to facilitate the hearing of the case depending on its assessment of the individual circumstances of the case.

Impecuniosity means that it would be impossible to proceed with the litigation absent the order of costs. The threshold for proof of impecuniosity is high and it is not to be used as a “smart litigation strategy (Little Sisters). A party seeking such an extraordinary remedy is required to make full and transparent disclosure of its assets, expenses, ability to raise or borrow monies, and ability to obtain counsel, and the likelihood of a contingency fee agreement and an estimate of the costs it requires to fund the litigation (LC v Alberta, 2017 ABQB 93).

The BLCN is an impoverished community with a number of pressing infrastructural and social needs. It has only recently started to turn the corner financially as they accumulate some funds from various sources. The vast majority of the BLCN’s financial assets are not available to fund this litigation. Funding this litigation by the BLCN must be weighed against the community’s other pressing needs. The BLCN has funded this litigation for 10 years through its own sources, it now cannot fund the litigation at the rate required to bring it to trial.

The Court is satisfied that all three elements of the Okanagan/Little Sisters test have been met. This case is sufficiently extraordinary that the Court should exercise its discretion to grant the application. If the BLCN receives compensation or otherwise receives a windfall, then this order shall be revisited. Transparency is required from the parties.

Campbell v Vancouver Police Board, 2019 BCHRT 12

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Reply

Intervenor status granted. A First Nations woman must still prove the facts of her human rights complaint against the Vancouver Police Board at the hearing.

Native Law Centre

Deborah Campbell, a First Nations woman, filed a complaint with the Human Rights Tribunal [“Tribunal”] under s 8 of the Human Rights Code [“Code”]. Ms. Campbell felt that the Vancouver police mistreated her when arresting her son because of her visible Indigenous heritage. The Vancouver Police Board [“VPB”] denied the allegation of mistreatment and discrimination. The Union of BC Indian Chiefs [“UBCIC”] applied to intervene in the complaint under s 22.1 of the Code. The UBCIC wanted to provide the Tribunal with context surrounding the relationship between the BC police and Indigenous people as that would allow the Tribunal to gain a better understanding of the complaint. Campbell supported the intervention, and the VPB opposed it in concern that it would expand the scope of the complaint and remove the litigation away from the parties.

The Tribunal has broad discretion to allow a person or group to intervene in a complaint, and to specify the terms of that intervention (Hall v BC (Minister of Environment (No 4)), 2008 BCHRT 437). That discretion is conferred by s 22.1 of the Code. When considering an application to intervene, the Tribunal will balance the likelihood of the intervenor in making a “useful contribution” to the resolution of the complaint against the risk of prejudice to the parties, and the risk that the intervenor will “take the litigation away” from the parties (Hughson v Town of Oliver, 2000 BCHRT 11).

The Tribunal recognized that Indigenous people are disproportionately underrepresented in complaints that are brought before it. There are deep-rooted prejudicial implications of colonialism that continually impact Indigenous people based on their race and ancestry. Evidence of social context, however, was deemed to be inconclusive on its own when determining if discrimination has occurred (Québec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc (Bombardier Aerospace Training Center), 2015 SCC 39). At the hearing, the burden of proof remained on Ms. Campbell to prove the facts of her complaint. Merely establishing a context of “difficult” or “harmful” relationships between the VPD and Indigenous people would be insufficient on its own to determine that VPD violated Ms. Campbell’s rights under s 8 of the Code. The Tribunal considered these factors and granted UBCIC the opportunity to make oral and written submissions at the opening and closing of the hearing. If UBCIC wanted to introduce its own expert advice at the hearing, it was responsible for applying to do so.

R v Napope, 2019 SKPC 23

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Reply

The nature of a breach by the accused of a s 810.2 recognizance does not put the public at risk. It is the Court’s view that that his release back into the community is important if he is to make any progress on the restorative path as contemplated by Ipeelee and Gladue.

Native Law Centre Case Watch

The accused pled guilty to one breach of a recognizance issued under s 810.2, contrary to s 811 of the Criminal Code. The Crown sought a 15 month jail sentence minus his remand at enhanced credit from the time of his arrest. Defence sought a two month jail sentence minus his remand at enhanced credit. The accused is sentenced to time served of 44 days actual jail time but with credit for 66 days at enhanced credit.

In this matter, the accused was released on an 18 month s 810.2 recognizance and was required to register to and report in person with Police Services and to his Probation Officer. The accused had ongoing difficulties with reporting in a timely manner which compelled the Probation Officer to submit a breach. The accused was residing with his mother at that time and been experiencing serious medical issues because of long-standing addictions issues. He was not intoxicated, he committed no substantive offence and did not remove himself from supervision. His health concerns may have impacted his ability to get to his appointments and attend programming, however, he always kept in touch with his supervisor, albeit late. An aggravating factor, however, is that this is not the accused’s first breach of this recognizance. He was sentenced on two breaches for not complying with his assessment, treatment, programming and a curfew. He also has a lengthy criminal record with violent convictions.

The purpose of a s 810.2 recognizance is to protect the public by preventing future criminal activity. Paramount consideration is not only placed on this purpose but also specific and general deterrence. The gravity of the breach must be examined in the context of the offender’s history (R v Zimmerman, 2011 ABCA 276). The court is required to consider the prior offences and circumstances of the accused in determining an appropriate sentence, keeping in mind that this type of recognizance has a different purpose from an undertaking or probation order.

With respect to Gladue factors (R v Gladue, [1999] 2 CNLR 252 [“Gladue”]), the accused had a difficult childhood, including attending residential school. The accused grew up from residential school to the penitentiary. The Supreme Court of Canada reiterated the seriousness of the incarceration problem and called on the justice system to address it. Rehabilitation was emphasized and sentencing judges were directed to ensure that they were not contributing to ongoing systemic racial discrimination (R v Ipeelee, [2012] 2 CNLR 218 [“Ipeelee”]).

S 718.2(e) is properly seen as a “direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process” (Gladue). No two offenders will come before the courts with the same background and experiences, having committed the same crime in the exact same circumstances. S 718.2(b) simply requires that any disparity between sanctions for different offenders be justified. Sentencing judges, as front-line workers in the criminal justice system, are in the best position to re-evaluate these criteria to ensure that they are not contributing to ongoing systemic racial discrimination (Ipeelee). Uniformity hides inequity, impedes innovation and locks the system into its mindset of jail. There is a constitutional imperative to avoiding excessive concern about sentence disparity (Ipeelee).

While specific and general deterrence are significant factors in assessing these types of breaches, the accused’s past and criminal history at this time and in this particular breach does not give the Court any reason to fear that the public is at risk of a violent crime. The accused’s lack of reporting is not significant as completely removing himself from supervision, which did not occur. He was lackadaisical in reporting as opposed to complete non-compliance. He turned himself in at the earliest opportunity and did not commit any other substantive offences. While a s 810.2 recognizance has a similar purpose and method as a long-term offender order, the accused is not a long-term offender. He was reporting and participating in his programs, albeit not as stringently as he should have been concerning his attendance. While these types of breaches are something the Court should be concerned about, there is no evidence that the accused has fallen back into his addictions that would open up a risk to the public.

The determination of a just and appropriate sentence is a highly individualized exercise and involves a variety of factors that are difficult to define with precision. It may happen that a sentence falls outside a particular range, that may never have been imposed in the past for a similar crime, but is not demonstrably unfit. Everything depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case. The fact that a judge deviates from a sentencing range established by the courts does not in itself justify appellate intervention. The accused is not more likely to commit a violent crime because he missed an appointment.

 

Awashish v Conseil des Atikamekw d’Opitciwan et al, 2019 FC 1131

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Reply

Motion dismissed. The Applicant failed to demonstrate he would suffer irreparable harm if a First Nation election proceeded, as he can pursue an adequate remedy for his complaint before the First Nation’s Appeal Board.

Native Law Centre Case Watch

A general election for the Conseil des Atikamekw d’Opitciwan was called for September 10, 2019. The elections are governed by an electoral code, where along with other conditions, all candidates must be ordinarily resident in Opitciwan. The Applicant was nominated for the position of Chief, but the Electoral Officer withdrew the name from the ballot because the Applicant does not reside in the community. The Applicant seeks an interlocutory injunction so that his name remains on the list of candidates. He submits that the residency requirement is invalid, discriminatory and contrary to the Charter. After he brought an application for judicial review of the Electoral Officer’s decision, the Applicant subsequently brought this motion for an interlocutory injunction. Despite a strong case shown on the merits, the Applicant has failed to demonstrate that he would suffer irreparable harm if his motion was not granted. There is an adequate remedy before the Opitciwan First Nation Appeal Board that would allow him to raise his Charter claims.

An interlocutory injunction is a temporary measure intended to preserve the rights of the parties until a decision is rendered on the merits but it is not a final resolution of the case. This takes into account that such motions must often be decided on the basis of an incomplete evidentiary record and that a final resolution cannot be reached in a short time frame (Manitoba (AG) v Metropolitan Stores Ltd, [1987] 1 SCR 110; RJR–MacDonald Inc v Canada (AG), [1994] 1 SCR 311 [“RJR”], and Harper v Canada (AG), 2000 SCC 57).

The first stage of a three part test requires the applicant to demonstrate a serious question to be tried, meaning neither frivolous nor vexatious. At the second stage, the Applicant must convince the court that irreparable harm would be suffered if an injunction is refused. The third stage of the test requires an assessment of the balance of convenience to identify the party that would suffer the greater harm from the interlocutory injunction, pending a decision on the merits. (R v Canadian Broadcasting Corp, 2018 SCC 5 [“CBC”]) It should not be believed in this highly contextualized and fact dependent framework, that the three components of this framework are completely independent of each other (Mosaic Potash Esterhazy Limited Partnership v Potash Corporation of SK Inc, 2011 SKCA 120).

This Court often hears motions for interlocutory injunctions in First Nations governance matters. The court’s discretion should be guided by the principle of self-government, and assess whether the various courses of action would facilitate decision-making by the First Nation itself (Gadwa v Joly, 2018 FC 568). Unlike a prohibitive injunction that has a relatively low threshold (RJR), a mandatory injunction directs the defendant to undertake a positive course of action. In these instances, a “strong prima facie case” is required. Upon a preliminary review of the application, the court must be satisfied that there is a strong likelihood that the applicant at trial will be successful in proving the allegations set out in the originating notice (CBC).

In this matter, the Applicant is not seeking to prevent the election from being held, but an order to include his name in the list of candidates. In certain cases, the result of the interlocutory motion will in effect amount to a final determination of the action, thereby, a more extensive review of the merits of the case must be undertaken (RJR). When the judge hearing the merits of the case cannot undo what was done at the interlocutory stage, a strong prima facie case must be established. If the injunction is granted, the election would be conducted with ballots that include the Applicant’s name, therefore he will have obtained what he wants, making it difficult to see how a hearing on the merits would be useful (Toronto (City) v Ontario (AG), 2018 ONCA 761).

The Applicant has demonstrated the existence of a serious question to be tried, but not a strong prima facie case. The trial judge dealing with this matter will assess the evidence presented to the court and come to the appropriate conclusions. Harm is by definition reparable if there is recourse that makes it possible to vindicate the underlying right and that provides adequate remedies. The doctrine of exhaustion of remedies requires that an applicant pursue all adequate administrative remedies available to them prior to applying for judicial review. This doctrine improves respect for self-government, as it ensures that governance disputes are first dealt with by Indigenous decision-making processes (Whalen v Fort McMurray No 468 First Nation, 2019 FC 732).

The Election Code provides for the establishment of an appeal committee. Upon receipt of a complaint, the appeal committee conducts an investigation and, if founded, they may take all necessary measures, including ordering a new election. The Applicant could file a complaint on the basis that the rejection of his nomination was in violation of the Charter. The Election Code also provides that any person whose nomination is withdrawn by the Electoral Officer may immediately bring that decision to the appeal committee which the Applicant could have done. The Court therefore concludes that the Applicant has a recourse that will allow him to put forward his Charter arguments and that he did not demonstrate irreparable harm. There was no need to fully address the balance of convenience.

 

R v Terris, 2019 NSPC 11

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Reply

Courts must give special consideration to restorative approaches to sentencing, particularly in cases involving Aboriginal persons, but not scrutinize minutely a person’s Aboriginal status for the purposes of applying the provisions of 718.2 (e) of the Criminal Code.

Native Law Centre Case Watch

The accused pled guilty to a single count of possession of cocaine for the purpose of trafficking. This case follows soon after the sentencing decisions which this court rendered in R v AL, 2018 NSPC 61 and R v Livingstone, 2018 NSPC 62 that are currently under appeal. There are some differences between these cases and this matter such as the circumstances of the offences and the biographies of the accused. The court, however, imposes the same sentence upon the accused in this matter as in R v AL and R v Livingstone because the seriousness of the offences and levels of moral culpability are similar.

The accused is only 28 years old, has no record and enjoys abundant family support. He did well in school, is in a common-law relationship and has children that he is involved with. He is also employed and described as a reliable worker. The presentence report informed the court that the accused holds a status card from the Confederacy of Nova Scotia Métis. He has never resided in an Aboriginal community, does not speak an Aboriginal language or is connected to an Aboriginal culture.

It is not for the court, however, to scrutinise minutely the Aboriginal status of a person for sentencing and applying appropriately the provisions of 718.2(e) of the Code (R v McInnis, 2019 PECA 3). Sentencing courts must give special consideration to restorative approaches to sentencing, particularly in cases involving Aboriginal persons (R v Gladue, [1999] 2 CNLR 252; R v Ipeelee, [2012] 2 CNLR 218). A person’s Aboriginal status, however, depends on more than producing a card (Daniels v Canada (Indian Affairs and Northern Development), [2016] 3 CNLR 56, [“Daniels”]). Daniels makes clear that Aboriginal rights are community-held rights inherent in a distinct, rights-bearing collective. It is unclear if the accused self identifies as Aboriginal. The accused’s status was not argued or advanced by his defence counsel, and it is not necessary for the court to decide the validity of it.

The accused’s conduct might be seen as more voluntary and calculated for profit and less driven by dependency or need. The accused had no aggravating factors under the statute, nor was there evidence of weapons or violence, and he cooperated with police. This combined with an early guilty plea, bail compliance and good prospects for rehabilitation, is why the court suspends the passing of sentence, and places the accused on probation for three years with conditions.

R c Kanatsiak, 2019 QCCQ 1888

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Reply

A second discharge for the accused is denied. Despite the offender’s Aboriginal status, it would be inappropriate to grant two consecutive discharges considering the violation of the first.

Native Law Centre Case Watch

The accused pled guilty to two counts of failing to comply with a probation order pursuant to s 733.1(1)(b) of the Criminal Code [“CC”]. She failed to perform 75 hours of community service within a period of 8 months (an extension granted from the original 4 months) and failed to attend her mandatory meetings with her probation officer as required by the terms of her supervised probation. In addition, she was also charged with domestic violence offences against her boyfriend.

The origin of the probation order that was breached and the granting of the previous discharge, was from breached conditions imposed in the context of various domestic violence charges against her, all involving the same boyfriend. Ultimately, all of the substantive domestic charges were withdrawn or stayed by the Crown. The accused was sentenced to a conditional discharge under s 730(1) CC on a 18-month probation order included mandatory supervision with a probation officer, with the above conditions. She now requests a second successive discharge.

The accused is now 25 years old and has no prior convictions, although she has breached her conditional discharge. She is from Nunavut but lives in the Montreal area where she works at a facility that provides Montreal-based services for Nunavik communities. A letter from the accused’s employment said nothing about the consequence of a criminal record or any other employment requirement or condition.

Granting of a discharge under s 730 CC is one of the most lenient sentences available under the CC. S 730(1) CC sets out two conditions which must be met before a discharge may be granted by a sentencing court: 1) it must be in the best interests of the accused; and 2) it must not be contrary to the public interest.

According to the Supreme Court of Canada in R v Gladue, the main purpose of s 718.2(e) CC is to help correct the problem of over-incarceration, in particular to the disproportionate incarceration of Aboriginal peoples. The court must take into account the circumstances of the offence and the offender including a consideration of the unique circumstances Aboriginal peoples face, such as systemic background factors, and the sanctions that may be appropriate because of Aboriginal heritage or connections. Gladue factors do not serve to depart from a proportionate sentence in a given case, but it is to achieve a proportionate sentence.

The Gladue principles require sentencing judges to give s 730(1) CC a generous application when sentencing Aboriginal offenders so as to attempt to break the cycle of systemic criminalization. The court concludes that s 718.2(e) CC in this matter applies, in particular the “unemployment factor” weighs heavily in the court’s assessment. The accused contends that she is now steadily employed. In light of all the s 718 CC considerations, the court must fashion a sentence that would not result in her losing her employment or other future employment opportunities.

The accused has already benefited from a discharge, although this does not automatically disqualify her from receiving a second one. When an offender has already benefited from a discharge in the past, however, a subsequent request for another discharge will generally be refused by the courts. There is a clear continuum between the offences sentenced in the previous discharge and the new offences of failure to comply with the probation order imposed. Orders of the court must be scrupulously respected unless and until they are cancelled or replaced. The accused must comply with conditions, even if the underlying charges ultimately fall apart. The accused did not take her obligations seriously or make them a priority. As for mitigating factors, the lack of a criminal record, her guilty plea and her steady employment does show some structure in her life.

It was not shown that the burden of a criminal record would affect her work or reduce her employment prospects in any way, and to suggest otherwise would be speculation. The court needs to enter a conviction against the accused to deter her from future offences and to impress upon her the importance of respecting court orders. The breached court order was imposed to help her in the first place, therefore a conviction is also necessary for her rehabilitation. The accused did not respect her probation period imposed with the first discharge and there is no significant passage of time between the offending behaviours. With respect to the public interest, the conditions breached were specific and important. The hours of community service were integral in ensuring a sense of accountability, as well as a source of social contribution that justified in part the discharge that she received. After balancing all of the factors, including the degree of moral blameworthiness, general deterrence and denunciation, rehabilitation, her guilty plea and her Aboriginal status, a short period of imprisonment is deemed appropriate.

Taylor et al v Ginoogaming First Nation, 2019 ONSC 0328

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Reply

A Trust agreement’s payments are not extended to individuals who became members of the Ginoogaming First Nation after a designated payout day, even if they should have been a member on that date but for the discriminatory provisions of the Indian Act.

Native Law Centre Case Watch

The Trustees of the Ginoogaming First Nation Timber Claim Settlement Trust [“Trust”] brought an application concerning the interpretation of the Timber Claim Trust Agreement [“Trust Agreement”]. The Ginoogaming First Nation [“GFN”] is a Band pursuant to the terms and provisions of the Indian Act. The GFN is the settlor of the Trust. Prior to the Ginoogaming Timber Claim Settlement Agreement [“Settlement Agreement”] being entered into between the GFN and the Government of Canada, the terms and conditions of the Settlement Agreement and the Trust Agreement were put to the members of the GFN and approved in a ratification vote [“Voting Day”]. Article 12.5 of the Trust Agreement, provides for a one-time payment to be made to members of the GFN on the Voting Day. The discriminatory provisions of the Indian Act, RSC, 1985 c I-5 [“Indian Act”] were in effect at that time. At issue in this appeal is that some individuals were able to become members since two amendments to the Indian Act, and are they therefore eligible for the one time payments from this Trust.

The two significant legislative changes to the Indian Act arose from two court decisions, McIvor v Canada (Registrar of Indian and Northern Affairs), [2009] 2 CNLR 236 (BCCA) leave to appeal to the SCC refused, 33201 (2009) [“McIvor”] and Descheneaux c Canada (Procureur Géneral), [2016] 2 CNLR 175 (QCCS) [“Descheneaux”]. The Gender Equity in Indian Registration Act [“Bill C-3”] was in response to McIvor, but it focused exclusively on the specific circumstances outlined in McIvor and inequities persisted. Bill C-3 had not gone far enough to remedy the inequities perpetuated by the Indian Act. The federal government’s response to Descheneaux was Bill S-3, an Act to amend the Indian Act through the elimination of sex-based inequities in registration, which received royal assent on December 12, 2017.

Even though it is recognized by the court that but for the discriminatory provisions of the Indian Act at the time those individuals should have been members on the Voting Day, they were not and therefore are excluded from the benefit of the payment provided for in the Trust. When it comes to Article 12.5, the settlors of the Trust expressed an intention to limit the payment to those individuals who were members of the GFN on the Voting Day. The applicants neither sought to vary the terms of the Trust, nor to have certain provisions declared void. It is not the role of an interpreting court to change the plain meaning of a trust document. Article 16 of the Trust Agreement specifically provides for changes or amendments to the terms of the Trust Agreement if approved by a vote of the Members. It is also open to the Trustees to bring an application for a variation of the terms of the Trust if otherwise permitted by law.

 

 

 

Kawartha-Haliburton Children’s Aid Society v MW, 2019 ONCA 316

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Appeal allowed. The Divisional Court erred by applying the wrong framework for access, including the special considerations for Indigenous children, and misstated the approach to summary judgement in child protection matters.

Native Law Centre Case Watch

The Applicant requests access to three of her children in extended care. Her children were apprehended in 2015 by the Respondent, Kawartha-Haliburton Children’s Aid Society, pursuant to the Child and Family Services Act, [“CFSA”]. The appropriateness of the extended care order is not disputed. The mother, however, did not agree to a no-access provision when she consented to a summary judgement motion for Crown wardship. The motion judge made the children Crown wards and denied the mother access to them. The mother appealed to the Divisional Court. By this time, the CFSA was about to be replaced with the new Child, Youth and Family Services Act, 2017 [“CYFSA”]. The major changes to the child protection legislation made pursuant to the CFYSA, such as the transition provisions of the new legislation, the new test for access to children in extended care, the special considerations for Indigenous children, and the proper approach to summary judgment in child protection matters are central to this appeal.

The transitional provisions of the CYFSA required that, at the date it came into force, all cases not “concluded” would be considered under the new Act. This court determines that the word “concluded” is to be taken in the ordinary sense of the word and a decision under reserve means the case is not concluded. Also, the children are First Nations as defined in the CYFSA. They and their family members identify as First Nation with the Curve Lake First Nation. In this matter, the transitional provisions of the CYFSA apply, so that the test for access was pursuant to the new Act that was to replace the CFSA. The criteria for access to children in extended care has been changed by removing the presumption against access, making the child’s “best interests” predominant in determining access, and emphasizing the importance of preserving Indigenous children’s cultural identity and connection to community. The record was insufficient to satisfy the new test pertaining to the children’s Indigenous heritage (Catholic Children’s Aid Society of Hamilton v GH, TV and Eastern Woodlands Metis of Nova Scotia, 2016 ONSC 6287 [“GH”]). The Act is remedial legislation and should be interpreted liberally especially for Indigenous children. By applying the transitional provisions to cases under reserve, thereby not “concluded”, these children would not be caught in a legislative void.

The CYFSA changed the considerations for access. The test for access to a Crown ward under the old Act was strict. The onus was on the person seeking access to establish that the relationship was meaningful and beneficial. There was a presumption against access and opportunities for adoption were prioritized over other considerations. Under the new Act, the court shall not make the access order unless it is satisfied that it is in the best interests of the child. It is to undertake a best interests analysis, assess whether the relationship is beneficial and meaningful to the child, and consider impairment to future adoption opportunities only as part of this assessment and only where relevant. The Divisional Court did not properly address the issue of the sufficiency of the record because it applied the old Act.

The Divisional Court also erred by misapplying the key principles regarding the use of summary judgment to the specific circumstances of child protection proceedings (Hryniak v Mauldin, 2014 SCC 7 [“Hryniak”]). Hryniak’s fairness principle requires that exceptional caution is needed for summary judgment in the child protection context by reviewing the Charter implications of child protection proceedings. Child protection litigation engages the Charter rights of both parents and children (New Brunswick (Minister of Health and Community Services) v G (J), [1999] 3 SCR 46). The courts should be especially mindful of the reality and material circumstances of those subject to child protection proceedings. Women, and especially single mothers, are disproportionately and particularly affected by child protection proceedings (G(J)). The cautious approach to summary judgment in child protection has long been recognized by lower courts and by this court (Children’s Aid Society of Halton (Region) v A (KL) (2006), 216 OAC 148).

The proper approach to summary judgment in child protection proceedings must exercise caution and apply the objectives of the CYFSA, including the expanded best interests of the child test. This court sets aside the motion judge’s order and refers this matter back to the Superior Court on an expedited basis to determine the question of access pursuant to the CYFSA.

NC v Kunuwanimano CFS and Fort Albany First Nation, 2019 CFSRB 7

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Reply

The decision of the Respondent to refuse the adoption of three Indigenous children placed in the Applicant’s care is confirmed under s 192 of the Child, Youth and Family Services Act.

Native Law Centre Case Watch

The Applicant requested a review pursuant to s 192 of the Child, Youth and Family Services Act, [“Act”]. This application refers to a decision made in favour of the Respondent, Kunuwanimano Child and Family Services, [“KCFS”] who refused the Applicant’s application to adopt three children who were placed in her care for two years. The children were apprehended from the care of their parents by the North Eastern Ontario Child and Family Services and made Crown Wards without access for the purpose of adoption. The children’s mother, who is deceased, and their father have membership with the Fort Albany First Nation [“FAFN”]. The children’s files were transferred to the KCFS, an Indigenous child welfare agency and were subsequently placed in a foster home. After three years the foster home could no longer care for the children due to uncontrollable circumstances. The children were then placed in the care of the Applicant and remained in her care for almost two years until their abrupt removal.

The Child and Family Services Review Board’s [“CFSRB”] determination is made in accordance with the expanded definition of the test for the best interests of the child set out in s 179(2) of the Act. In addition to giving prominence to the child’s views and wishes, as well as the recognition of Indigenous cultures and connections to their community, the preamble of the Act also acknowledges that children are individuals with rights to be respected and voices to be heard.

SV, who is the most recent placement for the children, is a member of the Moose Cree First Nation and grew up alongside the children’s father. The evidence is clear that SV has strong connections to the children’s community and cultural heritage. Her practices are traditional in her home where the children are introduced to hunting and fishing and that this was consistent with a way of life, rather than simply an activity. She has taken significant measures to connect the children to their extended family with whom she is well acquainted.

In contrast, the Applicant has no significant ties to the children’s First Nations community or extended family. The Applicant knows very little about the cultural practices of the children’s Indigenous community, or the Illilu people. It was clear that she cares deeply for the children and wishes to adopt all three of them. Her evidence, supported by report cards and the agency’s own documents, was that they were well-cared for in her home and had developed a bond with her and her family. The views and wishes of the children also confirmed the strong bond that the children have with the Applicant. The abrupt removal of the children from her care was traumatic for her and also for the children.

The CFSRB, however, is also mindful of the view of family and community that is expressed by the FAFN and the emphasis on customary care alternatives for Indigenous children under the Act. It is also through the current placement that the children are reconnecting with their father, albeit not as a primary caregiver. While SV is not a direct relation to the children, it is clear that she has strong historical and current connections to the children’s extended family and is committed to facilitating their relationships with family as much as possible. The Applicant simply cannot offer the same commitment and ease of connection to family as SV.

Of considerable importance to our determination is the connection between the siblings. They have always been together and expressed a wish to remain that way. The CFSRB finds that to separate the Children at this time would not be in their best interests and along with all the above factors, favours confirmation of the Respondents’ position. The CFSRB, however, is also of the view the children were not given the opportunity to properly say good-bye to the Applicant and suggested that the KCFS facilitate an acknowledgement and contact to bring some finality to these unresolved feelings.