Johnson v Canada (Registrar, Indian Register), 2020 BCSC 1955

Posted on February 5, 2021 by thp151

Appeal stayed. The appellant appealed what they interpreted as a decision by the Registrar of the Indian Register. The Court lacks jurisdiction to hear the appeal as it is premature given the statutory requirements of the Indian Act have yet to be met. Specifically, the nature of a response made by the Registrar was not a “decision” capable of being appealed until it is “protested” and the statutory proceeding is concluded.

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The appellant is a status Indian and member of Sechelt Indian Band, a band within the meaning of the Indian Act. In 2017, the appellant requested that the Registrar transfer him from the Sechelt Band List to the Semiahmoo Band List, as he believes he is entitled to membership in the Semiahmoo Indian Band [“Semiahmoo”].

The Department of Indigenous Services [“Department”] maintains the Semiahmoo Band List as Semiahmoo does not maintain its own membership code. Section 11 of the Indian Act sets out the membership rules for a band list maintained by the Department. Section 12(b) of the Act provides that, within certain limits, a person who is a member of another band is entitled to have their name entered in the Department band list if the council of the admitting band consents.

In 2018, the Registrar responded to the appellant’s transfer request, stating that the request could not be processed without receiving a Band Council Resolution [“BCR”] from the Semiahmoo Band Council. A separate letter was sent by the Registrar to the Band Council of Semiahmoo requesting a BCR accepting the appellant into the band’s membership. The appellant argued that a BCR from Semiahmoo was not required under s 11 of the Indian Act and that s 12(b), which requires band council consent to adding a band member, had no application.

The Registrar then advised the appellant that the Department’s position was that s 12 applied to all band transfers. The appellant sought judicial review in the Federal Court, but that was discontinued as it is this Court that has the necessary jurisdiction. The appellant advised the respondent he would pursue a protest under s 14.2 of the Indian Act. Section 14.2 allows for a protest to be made respecting the inclusion or addition of the name of a person or their omission or deletion of their name from the Indian Register or a band list maintained by the Department. The Registrar responded she would consent to a 90-day investigation period “once all necessary documents were filed”. The appellant agreed and in 2019, sent the documents to a computer link provided [“Protest”].

Subsequently, the Registrar informed the appellant that she was unable to accept the Protest as valid. She stated the Registrar’s original decision to add the name of the appellant to Sechelt First Nation registry was rendered prior to September 4, 1951 and therefore the Protest was out of time. Her earlier response did not constitute a “decision” but was a request for evidence, therefore it could not be protested. She also confirmed the Department’s position was that Semiahmoo consent was required for all band transfers.

This application concerns whether the Court has jurisdiction to hear the appeal at this time. The Indian Act sets out the statutory framework that applies to a dispute of a “first-level” Indian Registrar decision. Once such a decision is made, a party is statutorily entitled to protest the decision to the Indian Registrar. Upon receipt of a valid protest, the Registrar investigates and renders a final and conclusive decision. It is from that decision an appeal to this Court may be taken, not earlier.

The Registrar stated she could not accept the Protest as a valid protest, noting that the request for more evidence was not a decision or a denial of the application but merely a request for evidence, including the Semiahmoo BCR. The Indian Act provides a process to determine band status. As a complete code, the Indian Act must be complied with before it can be appealed (Baptiste v Canada (Registrar of Indian & Northern Affairs), 2000 SKQB 296). The Registrar is the “master of its own procedure” and can solicit information as they see fit in conducting the investigation.

The Court is satisfied that the earlier Registrar’s responses are not “decisions” as described by the appellant. The letter in 2018 did not make a decision as no BCR had been provided from Semiahmoo. It requested that it be provided. Nor did the letter in 2019 make a decision under s 14.2 of the Indian Act. Given the expiration of time from the 1951 decision, and that the 2018 response was neither a decision nor a denial but rather a request for information, the Protest of that letter was not a valid protest. That right to protest requires that the individual is added, omitted or deleted from an Indian Register or Band List.

In other words, a determination has been made. In this instance that did not occur until 2019, when the Registrar concluded that the appellant was not entitled to be a member of the Semiahmoo Band pursuant to s 11 of the Indian Act. As a result, the right to protest arises. The appellant was advised of that right, but has chosen not to do so. The right of appeal arises after the Registrar has ruled on a protest. This Court does not, at this time, have jurisdiction as the appeal is premature. The appeal is stayed.

R v Hiscock, 2020 BCCA 355

Posted on February 4, 2021 by thp151

Appeal allowed. An Indigenous offender was given an effective global sentence of six years on four counts of weapons-related offences which occurred while in a drug-induced psychosis. The sentencing judge failed to give sufficient weight to the systemic factors documented by the offenders’ Gladue report; thereby he erred in his application of s 718.2(e) of the Criminal Code.

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Coda Hiscock was sentenced to six years incarceration on four counts of weapons-related offences which occurred while in a drug-induced psychosis. The Court observed that the question is not what sentence they would have imposed; but rather, the deferential standard which intervenes only where a sentencing judge has committed an error in principle, or imposed a demonstrably unfit sentence (R v Friesen, 2020 SCC 9).

Mr. Hiscock contends that his sentence is unfit because of the failing to reasonably weigh the importance of his Aboriginal heritage and the intersectional systemic factors which have affected the offender (R v Gladue; R v Ipeelee). The failure to give sufficient weight to these factors amounts to an error in principle which is sufficient to allow the appeal.

The offence occurred in March 2018, when Mr. Hiscock fired at least seven shots from a semi-automatic firearm from the interior of a residence. The shots penetrated the interior walls of the residence causing myriad of damage, with at least three shots having struck unoccupied cars parked outside the building. The judge found that earlier that day Hiscock has used methamphetamines and that at the time of his arrest his demeanor indicated one who was high and possibly in a psychotic or manic state.

Mr. Hiscock was 31 years old at the time of the offence. His mother was a member of the Ojibwe First Nation, and his maternal grandmother and great-great-grandmother attended residential schools in Saskatchewan. His youth was disrupted by the dissolution of his mother and stepfather’s relationship, and subsequent alchohol abuse by his mother. His mother died from a drug overdose. He has also lost a nephew to drug overdose. Six months after the passing of his mother, one of his brothers was murdered. Six months prior to the offence giving rise to the sentencing, Mr. Hiscock’s girlfriend was murdered.

In considering the offenders relatively moderate criminal record which had not previously attracted federal custody, the mitigating factors evinced by his pre-sentencing and Gladue reports, and the comparative analysis of similar offences, the Court considers a global sentence of five years incarceration is fitting. In comparison to other offenders who committed similar offences, the sentencing judge levied a disproportionately onerous sentence on Mr. Hiscock for possession of a loaded firearm compared to others with more serious criminal records. Accordingly, the Court concludes that the reduction of a five-year sentence to four years would bring the offender’s sentence into the appropriate range. Given credit for time served, Mr. Hiscock’s sentence is one year, 315 days.

Penosway c R, 2019 QCCS 4016

Posted on February 3, 2021 by thp151

The Applicants have failed to establish that correctional services discriminated against them and thereby infringed their constitutional rights enshrined in section 15 of the Canadian Charter of Rights and Freedoms by using inadequate actuarial tools not adapted to their Aboriginal culture and by failing to provide the necessities and resources required for their rehabilitation.

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Yannick Hervieux-Riverin and Germain Penosway [collectively “Applicants”], are both accused of various breaches of long-term supervision orders. In this matter, they seek a remedy that the state’s conduct infringes upon their section 15 Charter rights. The Applicants are of Aboriginal ancestry and are members of their respective Aboriginal community.

Mr. Hervieux-Riverin was convicted on fifteen counts, including three counts of sexual assault, six counts of sexual interference, one count of invitation to sexual touching, and failure to comply with a recognizance and a probation order. For the nine files, he was sentenced to two consecutive terms of imprisonment and was found to be a long- term offender. In view of both the objective and subjective gravity of the offences to which Mr. Hevieux-Riverin pleaded guilty, and also taking into account his recurrent conduct attributable to a problem of a sexual nature, a sentence of twenty-seven months’ imprisonment is without a doubt within the range of fit sentences, and complies with the principle set out in s 718.2(e) of the Criminal Code (R v Gladue, [1999] 1 SCR 688; R v Ipeelee, [2012] 1 SCR 433).

The trial judge’s application, even after reconsideration in light of the Gladue report filed, remains unassailable. It contains no error of principle or any other error reviewable on appeal. Mr. Hervieux-Riverin’s personal profile, which includes his addiction, mental health problems, and complete absence of employment history, the high risk of recidivism, lack of any family or community support that could contribute to his rehabilitation, and the absence of resources in his community of origin to facilitate reintegration without reoffending, are significant factors. While he was required to observe strict conditions, Mr. Hervieux-Riverin was charged in nine different files for failing to comply with one of the conditions of his long-term supervision.

Mr. Penosway is also facing criminal charges for breach of long-term supervision. The long-term supervision order rendered in 2009 for a period of ten years will end only in 2024 because Mr. Penosway was re-incarcerated several times for breach, during which time the order was suspended temporarily. The initial conviction for which the long-term supervision order was rendered also referred to charges of a sexual nature. The Gladue report for Mr. Penosway, although drafted for the purpose of suggesting an alternative to a custodial sentence, illustrates the difficulties of a population exposed to violence, sexual abuse, and addiction.

The Applicants submit that Correctional Service Canada breached its obligations set out under the Corrections and Conditional Release Act [“Act”], by using inadequate actuarial tools that are not adapted to Aboriginal culture and fail to provide the necessities and resources required for their rehabilitation. They are the subjects of systemic discrimination, and as a result, their Charter s 15 rights have been breached. The Applicants argue that despite the legislative provisions duly set out in the Act, they are victims of systemic discrimination preventing them from obtaining the benefits recognized by the Act. It is not the Act nor the accompanying Directives that the Applicants contest, but rather their implementation, which they consider discriminatory.

The law provides that a person subject to a long-term supervision order shall be supervised by the Correctional Service of Canada and the Parole Board of Canada. The use of actuarial tools that had the potential effect of overestimating the risk and affecting the offender’s security classification do not infringe the rights guaranteed by s 15 (Ewert v Canada, 2018 SCC 30). Although they could be improved, actuarial tools are a measure that must be balanced with Aboriginal Social History to establish an intervention plan during mandatory long-term supervision. The conditions imposed do not fall under the authority of correctional services, but rather the Parole Board, which is not bound by the measures proposed. The Court cannot find that the rights of either applicant were violated further to discrimination, even involuntary discrimination, through the use of actuarial tools.

The Applicants submit that correctional services erred by omission by failing to provide the resources necessary for the rehabilitation of Aboriginal persons, in particular, programs specially adapted to their cultural situations, and by failing to establish places of residence near their community. They submit that these omissions are the result of discriminatory treatment. While the Court agrees that in a more perfect world, resources could be improved and allocated solely to Aboriginal offenders without being shared by other offenders, the fact remains that the lack of resources does not mean that there is discrimination. Breaching a mandatory parole supervision order and challenging it later goes to the very purpose of the long-term order (R v Bird, 2019 SCC 7). In view of the charges of breach alleged against each of the Applicants, they are launching collateral attacks of the orders rendered by the Parole Board. The Court therefore finds that the Applicants have not established discrimination.

The Court cannot accept the submission that the absence of resources, and in particular the fact that there is no residential centre near their community, puts the Applicants in a situation where they are inexorably bound to reoffend by failing to comply with a residency condition. A long-term offender designation is an exceptional measure that will be rendered only when the strict conditions of the Criminal Code are met. Had this Court found that there was discrimination, it simply would not have had jurisdiction to grant any of the remedies proposed. The services offered in the context of the long-term supervision orders, although not perfect, are not discriminatory in their regard. The efforts made to improve the services do not constitute a failure to act by refusing to take into account the specific features of each appellant’s Aboriginal Nation.

West v Cold Lake First Nations, 2021 CHRT 1

Posted on February 2, 2021 by thp151

Complaint dismissed in its entirety. A Cree woman and member of Cold Lake First Nations, submitted a complaint to the Canadian Human Rights Commission that she was discriminated against contrary to her race, national or ethnic origin and family status in rejection of her band council nomination. Further, she submitted that the Nation retaliated due to her filing this complaint, by reassigning her daughter’s future house to another member of the Nation.

Indigenous Law Centre – CaseWatch Blog

In 2016, Bonnie West, a First Nations Cree woman and member of Cold Lake First Nations [“CLFN”], attempted to stand for election as councillor to sit on the CLFN band council. Her nomination was rejected by the elections officer, and Ms. West filed a complaint with the Canadian Human Rights Commission, which was referred to the Tribunal in 2019. She alleged that she was discriminated against contrary to section 5 of the Canadian Human Rights Act [“CHRA”] in the provision of services by the Nation on the grounds of her race, her national or ethnic origin, and her family status. Ms. West has also amended her complaint, adding an allegation of retaliation by CLFN, contrary to section 14.1 of the CHRA. Her daughter was not given access to a new house in the community, in contrast to what had been planned. Ms. West believes that CLFN acted in this manner in retaliation against her filing her complaint.

CLFN is a First Nations community in Alberta with a population of about 3,000 members both on and off the reserve. In 1986, CLFN adopted the Cold Lake First Nations Election Law [“1986 Election Law”], which was approved by order of the former Minister of Indian and Northern Affairs. In the 2016 election for CLFN’s chief and band council, a member of the Nation nominated Ms. West to run for election as a councillor on the band council. After she was nominated, another member of the Nation protested Ms. West’s nomination. The protest alleged that Ms. West was not a direct descendant of original treaty citizens, contrary to the 1986 Election Law. The elections officer at the time had to consider the matter and determine whether Ms. West fulfilled the requirements.

Even though the 1986 Election Law does not clearly stipulate what is meant by “original treaty citizens”, the evidence establishes on a balance of probabilities that this expression refers to the signatories of Treaty No. 6. He asked Ms. West to provide him with a document, specifically an affidavit supporting her nomination, within 48 hours. Ms. West filed a short sworn statement with the elections officer, in which she declared before a commissioner of oaths that she was eligible to stand as councillor given that she was a direct descendant of original treaty citizens. The evidence reveals that no other documents were submitted, such as Ms. West’s family tree or the document confirming her North American Indian Blood Quantum as she did at the hearing. The elections officer found that Ms. West did not fulfill the requirements. After receiving the elections officer’s decision by email, she asked him which additional documents were needed to establish that she could stand as a candidate for election. The evidence reveals that Mr. Adam did not answer her question.

Ms. West is challenging the rejection of her nomination, which resulted from the verification of whether she met the eligibility criteria set out in the 1986 Election Law. In applying the 1986 Election Law and the candidate eligibility criteria, the officer was merely ensuring that Ms. West met or complied with the criteria established by the Nation when it created and passed its own election law. Therefore, it appears that Ms. West’s challenge is more an issue with the 1986 Election Law itself and its selection criteria (Forward v Citizenship and Immigration Canada, 2008 CHRT 5).

In this matter, the band council exercised its authority by enacting its own 1986 Election Law within its jurisdiction, which falls within the federal sphere (Francis v Mohawk Council of Kanesatake, 2003 FCT 115 (CanLII)). The fact that the Department of Indian Affairs and Northern Development allowed CLFN, by order in council, to adopt its own election law does not render the 1986 Election Law immune from scrutiny under the Charter (Ratt v Matchewan, 2010 FC 160 [“Ratt”]; Taypotat v Taypotat, 2013 FCA 192). The type of challenge Ms. West has brought should have been brought in the right forum, the Federal Court. The Federal Court has jurisdiction over the officer’s actions as well as over matters relating to the Nation’s elections (Ratt; Ballantyne v Nasikapow, 2000 CanLII 16594 (FC)). This jurisdiction of the Federal Court also extends to reviews relating to the application of the Charter and section 15, regarding equality rights.

Ms. West alleged that she was a victim of retaliation under section 14.1 of the CHRA. The preponderance of evidence does not support Ms. West’s claims. Her daughter lives in the CLFN community and she was informed by a consultant for the Nation that she was to receive a house to replace the one she was living in. Reasons for reassigning the house to another member of the community were provided and were credible.

Anderson v Alberta (AG), 2020 ABCA 238

Posted on January 29, 2021 by thp151

Applications to admit fresh evidence allowed. The advance costs order was based on an error of law in applying the legal test to the facts regarding Beaver Lake Cree Nation’s award for funding an underlying claim. Given the resources available to the First Nation, the award was unreasonable and is set aside.

Indigenous Law Centre CaseWatch Blog

In these two appeals the Government of Canada and the Government of Alberta appeal an order requiring them each to contribute $300,000 a year to the plaintiffs to fund underlying litigation (Anderson v Alberta (AG), 2019 ABQB 746). Beaver Lake Cree Nation [“BLCN”] has about 1,200 members, and is a signatory to Treaty 6. The underlying claim is lengthy and nuanced, but the essence of the claim is that the Crown appellants have improperly allowed lands traditionally used by BLCN to be “taken up” for industrial and resource development. Declarations of rights, injunctions and damages are claimed.

The original statement of claim was issued in 2008. Since that time there have been various interlocutory steps taken in preparation for trial, such as closing the pleadings and some disclosure of documents. Questioning has not yet started but BLCN has spent approximately $3 million on legal fees to date, about one-half from its own funds, and presently pays $25,000 in fees per month ($300,000 per year). The 120 day trial is presently scheduled for January 2024.

The 2017 annual financial review by Indigenous Services Canada concluded that there are no concerns in regard to the financial health of BLCN. The case management judge did note that BLCN has operated in a surplus position in the last few years, and that its financial situation is improving. The test for advance funding was quoted at length from the leading cases (British Columbia (Minister of Forests) v Okanagan Indian Band, 2003 SCC 71 [“Okanagan”]; Little Sisters Book and Art Emporium v Canada (Commissioner of Customs and Revenue), 2007 SCC 2, [“Little Sisters”]). It was concluded that BLCN had sufficient resources to fund the litigation, but was entitled to allocate it to other community priorities. While acknowledging the extraordinary nature of an advance costs order, the case management judge directed that each of the appellants contribute per year towards the costs of the litigation, with BLCN continuing to pay a like amount.

The test for ordering a defendant to fund public litigation against it through an advance costs order was set in Okanagan: 1) the party seeking interim costs genuinely cannot afford to pay for the litigation, and no other realistic option exists for bringing the issues to trial; 2) the claim to be adjudicated is prima facie meritorious; and 3) the issues raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolved in previous cases (Okanagan; Little Sisters). In this appeal, the appellants only argue that the respondents have failed to meet the “impecuniosity” branch of the test. The test is that the applicant must be impecunious (Okanagan).

BLCN created the Beaver Lake Cree Nation Heritage Trust in 2014, after this litigation was well underway. It now argues that there are “strict restrictions” on these funds. A plaintiff cannot voluntarily tie up its assets in a trust, and then argue it is impecunious and in need of litigation funding. The limits on how much can be taken out every year were self-imposed, and could be changed. BLCN also has access to other funds, subject to a request or approval. A plaintiff cannot fail to seek access to its own assets, and then argue it is impecunious (Little Sisters). It was an error of principle to disregard these assets in the analysis.

The finding that “more than $3 million is available” demonstrates that the order should not have been granted, based on the record as it then existed. If circumstances have changed to the extent that BLCN has now become entitled to advance costs, it is incumbent on it to reapply. The presumption is still that public interest litigation must be funded by those advancing it.

R v LR, 2021 BCPC 7

Posted on January 27, 2021 by thp151

Although the sentencing judge still views a new joint submission of 180 days jail plus probation and mandatory ancillary orders as unduly lenient for an Indigenous man’s public and violent attack on his spouse at an elementary school in front of their child, it does not meet the threshold to reject the joint submission.

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L.R. is before the Court for sentencing a second time after having pleaded guilty in 2020, to three offences charged as a result of a violent altercation with his former spouse and the investigating RCMP officers. Joint submission by counsel was rejected for being unduly lenient (R v LR, 2020 BCPC 80 (CanLII)). Counsel has returned to Court with a new joint submission for a global sentence of 180 days jail plus probation and mandatory ancillary orders.

L.R. and C.L. met in highschool and cohabitated for ten years from 2008 to 2018 and are the biological parents of two children, one aged eight years old, the other three years old. L.R. came to an elementary school with his son to attend a birthday party where he encountered C.L. in the school parking lot. L.R. says C.L. showed him nude or “near nude” photographs of herself she had sent a number of friends and relatives. He became angry and began arguing with her. C.L. then picked up her son and ran to the school office and asked the receptionist to call the police. Enraged, L.R. chased after C.L. When he caught up with her in the school office, he grabbed her hair and began punching her in the head, even though at the time she was holding their child. He then threw C.L. on the floor and began kicking her in the ribs. Throughout this assault, L.R. was yelling at and threatening to kill C.L.

Eventually the staff succeeded in separating L.R. from C.L. L.R. took their son and left the school. The staff complained to the RCMP, who came to the school where they found C.L. L.R. left the school with his son and drove to his parents’ residence and asked his parents to keep his son safe. L.R. picked up a collapsible baton and a hunting knife at his residence and then drove to the house of his friend. In an attempt to locate him, the police called L.R.’s cell phone where he answered and uttered threats. The constables attended the friend’s residence where they believed L.R. might be hiding. L.R. was caught inside a smoke shack with the weapons. He continued to utter threats, then eventually held his weapons up and took a half step forward and was pepper sprayed.

While in custody, L.R. wrote apology letters to C.L., his son, and his parents. L.R. says he did not deny making threats to the officers or swinging the baton, but did not recall his interaction with the police, other than being pepper sprayed. L.R.’s present circumstances and antecedents are well documented in the presentence reports. L.R. is a member of a First Nation and was 27 years old at the time of the offence and 28 at sentencing. Until his banishment as a result of the offences, L.R. lived most of his life in the First Nation, as did most of his extended family. L.R. did work sporadically for the First Nation’s village government as a labourer, however, he was unable to sustain steady employment. Nevertheless, L.R. actively harvested fish and game to provide for his family, community and Elders.

C.L. and L.R.’s relationship was discordant. A social worker of the respective Child & Family Services Society, blames their problems on L.R.’s abusive behaviour. She depicts C.L. as the victim of the worst case of battered wife syndrome she has ever worked with. L.R. and C.L. separated permanently as a result of the school incident. After L.R. and C.L. separated, the children now live with C.L. At the hearing, the Court was not aware L.R. had issues of substance misuse. The presentence reports prepared for this continuation of the sentencing hearing tell a very different story. L.R. admitted to “selling and using cocaine” daily up to the time of his arrest.

While on remand at the Kamloops Regional Correction Centre, L.R. completed the 12-session Substance Abuse Management program and the 10-session Respectful Relationships programs. Since his release, L.R. sought and participated in individualized addictions and anger management counselling with an addiction specialist with the Terrace and District Counselling Services Society. L.R. does not speak or understand his Indigenous language nor does he participate in the spiritual or cultural activities to any significant degree. The Presentence Report and Gladue Report reference a number of support letters from Elders acknowledging L.R. as a skilled and generous hunter and fisher who provided sustenance fish and game to the community.

Although his grandparents attended residential school, L.R.’s upbringing was free of any trauma, physical or emotional abuse, neglect, abandonment, substance misuse, domestic discord or violence. L.R. grew up hunting and fishing with his father and extended family. L.R. remains close to his parents and siblings who have supported him throughout these legal proceedings. As a result of L.R.’s charges, his First Nation’s village government banished L.R. The village sent a letter to the RCMP and Terrace Crown Counsel advising that out of concern for the well-being of their citizens, the village government banished L.R. indefinitely from attending until he seeks medical or therapeutic attention for his actions and proves he is fit to return to their community.

While they are not immutable or sacrosanct, joint submissions should only be rejected in exceptional circumstances (R v Anthony-Cook, 2016 SCC 43 [“Anthony-Cook”]; R v Spencer-Wilson, 2020 BCPC 140 (CanLII)). There are exceptional circumstances in this case to justify a lesser period of incarceration than might otherwise be imposed. Still, L.R.’s assault on C.L. at the elementary school was outrageous. The sentence that counsel now propose is still not one, absent a joint submission that the Court would otherwise impose. Although the Court believes the joint submission for 180 days jail sentence is unfit, perhaps even demonstrably unfit, it is unable to conclude its acceptance would cause a reasonable person to conclude “the proper functioning of the justice system had broken down” (Anthony-Cook). L.R. has 204 days of pre-detention credit, and has served the 180 day jail sentence. He is subject to an 18 month Probation Order with terms and conditions.

R v Hall, 2021 ONSC 420

Posted on January 26, 2021 by thp151

A Mohawk man has been designated a dangerous offender and sentenced to a period of imprisonment of 8 years in addition to the 769 days he has served since his arrest, followed by a Long-Term Supervision Order for 8 years. The protection of the public was paramount but it is not required that the offender should be subject to external controls for the rest of his life, as would be the case with an indeterminate sentence.

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Edward Hall, a Mohawk man, has entered guilty pleas to the offences of aggravated assault, break and enter, choking, and failing to comply with probation. Mr. Hall is 51-year-old years old. At the time he committed the offences, he was bound by two probation orders relating to two convictions for aggravated assault.

Mr. Hall has a criminal record in both Canada and the United States. Between the two countries, he has been convicted of approximately 60 offences. His Gladue report provided a detailed history of Mr. Hall’s childhood. His mother was a registered Mohawk of Akwesasne band member and former resident. His father was half-Mohawk. Both died in 2019 while Mr. Hall was in custody. Akwesasne is a nation of Mohawk people situated along the banks of the St. Lawrence River. It straddles the border between the United States and Canada, and includes territory within the jurisdictions of New York State, Ontario, and Quebec. The Mohawks of Akwesasne have been severely impacted by policies of assimilation aimed at eradicating Indigenous cultures. The intense suffering these policies have caused have had intergenerational impacts that continue to be felt today.

The impacts of this intergenerational trauma are evident in Mr. Hall’s history, including the physical and emotional abuse he suffered as a child; his early addictions to alcohol, marijuana, and cocaine; his loss of his connection to his community; the lack of employment skills, education, and functionality; and the racism he has faced in various communities and institutions. Mr. Hall states that the trauma that he experienced as a child has stayed with him, where he has nightmares and flashbacks of abuse.

The Waseskun Healing Center [“Waseskun”] is recommended as an option for residential treatment that has a culturally focused approach. However, Mr. Hall’s prior history of community supervision is noted to have been poor in almost every instance. In addition, he breached the last probation order imposed upon him, both by committing the index offence and by engaging in smuggling to support himself.

Public protection is the general purpose of the dangerous offender provisions. The protection of the public is an enhanced sentencing objective for individuals who have been designated dangerous, even while sentencing judges retain the discretion to “look at the whole picture”. The sentencing judge must impose the least intrusive sentence required to achieve the primary purpose of the legislation (R v Boutilier, 2017 SCC 64; R v Spilman, 2018 ONCA 551). Mr. Hall’s most serious offences have occurred while he was in his 40s. This pattern, however, does not place him outside the statistical pattern in the literature that sees persons who share his characteristics significantly diminishing at least the frequency of their offending in their 50s and 60s.

Mr. Hall committed a vicious assault in the context of a planned home invasion offence while he was on two probation orders relating to two recent convictions for aggravated assault. He used a weapon and choked his victim to the point of unconsciousness. The public must be protected from conduct like this by Mr. Hall in the future. On the mitigating side, the Court considered Mr. Hall’s diminished moral blameworthiness for the offences given the impact of Gladue factors, and that he pleaded guilty to the predicate offences.

Mr. Hall is designated a dangerous offender. The custodial sentence of 8 additional years will bring Mr. Hall to the age of roughly 59.5 years. The Long-Term Supervision Order [“LTSO”] will continue until Mr. Hall is 67. The custodial portion of the sentence will provide Mr. Hall with time to take the treatment offered to him and demonstrate that he can apply any lessons he has learned to reduce his risk. Parole will be available to him if he makes sufficient progress. A lesser sentence will not adequately protect the public. The need to protect the public militates against awarding enhanced credit to Mr. Hall for his presentence custody of 769 days. Awarding enhanced credit would reduce the period of time for which Mr. Hall will be subject to outside controls. On the totality of the evidence, this is the least intrusive of the options to adequately protect the public against Mr. Hall’s future commission of murder or a serious personal injury offence.

As for the importance of treatment with a cultural component such as that offered at Waseskun, if Mr. Hall has access to treatment that incorporates Indigenous culture and values, this is for the good insofar as it may assist him with certain personal issues and in reintegrating into the community. In the event Mr. Hall makes sufficient progress with his skills-based treatment for anger management and substance abuse and reduces his risk of reoffending, he may apply to and be accepted at Waseskun. If Mr. Hall does not make progress during the custodial part of his sentence, he can expect that this opportunity will not be available to him, even while serving the LTSO, because he will be ordered to reside at a community correctional centre.

R v Simon, 2020 NWTSC 46

Posted on January 25, 2021 by thp151

An Indigenous offender convicted for a major sexual assault, has been designated a Long Term Offender and sentenced to a prison term of 6 years and 8 months, with credit for time spent on remand. The offender has considerable issues to address to overcome his substance abuse disorder and traumas from his past, and maintain a pro-social lifestyle. A jail term should afford him an opportunity to have access to the programming that he needs.

Indigenous Law Centre – CaseWatch Blog

Following a jury trial held in Inuvik, Mr. Simon was convicted for a sexual assault committed against HK. The background that led to Mr. Simon’s conviction was that he and the victim had known each other for many years. On the day of the incident, they had spent some time together on the streets of Inuvik, drinking. They went to the apartment of someone that the victim knew, looking for more alcohol. Because no one was home, they broke into the apartment and stole mickeys of vodka from the fridge. They then left the apartment ending up in a staircase where they drank the mickeys. At some point Mr. Simon started pushing the victim on the chest with his hands until she fell onto her back, where she was subsequently sexually assaulted. Mr. Simon then left the building. Eventually, the victim got dressed and went directly to the warming shelter where she called the RCMP.

Mr. Simon is now 39 years old. He is Gwich’in, which engages the special legal framework that governs the sentencing of Indigenous offenders. That framework applies to Dangerous Offender and Long Term Offender proceedings (R v Ipeelee, 2012 SCC 13; R v Boutillier, 2017 SCC 64). Mr. Simon’s childhood was deeply traumatic. He does not know who his father is and lived with his mother until he was 5 years old. After that, for many years he lived mainly with his grandfather, whereupon Mr. Simon suffered very serious physical and sexual abuse at the hands of his grandfather between the ages of 5 and 18. This abuse happened when his grandfather was intoxicated. Mr. Simon witnessed violence and fights in the home on a regular basis.

When Mr. Simon was 14 years old, his mother was stabbed to death. He believes, and has for years, that his grandfather was responsible for her death. He has also suspected for years that his grandfather may in fact be his biological father. Mr. Simon began consuming alcohol at a very young age, around 5 or 7 years old, and was using alcohol regularly before he turned 12. When he was 11 years old a relative introduced him to sniffing gasoline. He began sniffing gasoline, propane and other inhalants on a regular basis. All his life, he was never cared for properly, nor had rules or structure. He went hungry and he did not have proper clothing for the seasons. Mr. Simon has an extensive criminal record which includes a wide variety of offenses ranging from relatively minor offenses to very serious ones.

Although Mr. Simon believes that the death of his grandfather sets the stage for a major change in his life, it is likely that any significant change will require intensive therapeutic intervention and ongoing support. His rehabilitation, as well as the protection of the public, require that he be subject to external controls beyond the reach of the term of imprisonment that must be imposed for his sexual assault of HK. Considering the fact that Mr. Simon has no impediment, cognitive or otherwise, to taking treatment and programming, that he is motivated and has engaged in programming in the past, it is not necessary to have him subjected to outside controls for a further 8 years after the completion of the custodial portion of his sentence.

TA v Alberta (Children’s Services), 2020 ABQB 97

Posted on January 21, 2021 by thp151

The Plaintiff, a Cree woman, filed a Statement of Claim against a number of parties after her children were apprehended by Children’s Services. The Application to strike the Statement of Claim and the Application for Summary Judgement were granted.

Indigenous Law Centre – CaseWatch Blog

The Plaintiff [“TA”] is a Cree woman whose six children were apprehended pursuant to court orders under the Child, Youth and Family Enhancement Act. The Claim criticized Edmonton Children’s Services’ [“CS”] handling of the apprehension of the children and sought a broad range of remedies. The Defendants pleaded that CS owed no legal duty of care to TA as the subject parent responding to CS actions and that the child protection proceedings have been handled properly and in good faith. The psychologist who assessed TA additionally asked for summary judgment on the basis that the only evidence has shown that they met their standard of care and acted in circumstances of qualified privilege.

The Defendants applied to strike the Claim as an abusive collateral attack on child protection proceedings pursuant to Rule 3.68(2)(d) and because it disclosed no cause of action. The Court relied on the rule that it is an abuse of process to attempt to relitigate a matter already decided (Dykun v Odishaw, 2000 ABQB 548). Further, the Court found that the wrongs in which TA says were done to her do not create causes of action against the Defendants, and the remedies she asks for are mostly beyond the jurisdiction of this Court. The action is doomed to fail because the mere fact that someone has done something that you do not like, treated you unfairly, or caused you emotional distress, does not automatically create a right to sue them.

The Claim was struck in its entirety, save for the defamation claim against the psychologist. The Court looked to Rule 7.3(b) which provides that a party may apply for a summary judgment where there is no defence or merit to some or part of a claim (Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49). The plaintiff offered no factual basis to conclude the professional assessment was conducted negligently.

The Court concluded that the lawsuit is an abuse of process in the technical sense that it attempts to relitigate completed court proceedings and is based on a variety of complaints that do not give the Plaintiff a cause of action, irrespective of whether they are accurate or not. The application to strike the Claim and the application for summary judgment are granted.

R v Wood, 2021 MBQB 4

Posted on January 20, 2021 by thp151

An imposed sentence for 18 years’ incarceration is considered fit for an Indigenous offender convicted of manslaughter for killing his wife. His moral blameworthiness, even when tempered for his Gladue circumstances, is very high. Denunciation is critical in condemning spousal violence, particularly the chronic threat to Indigenous women. While restorative sentences are important in many situations of an Indigenous victim and abuser, that is far less so in cases of murder or manslaughter.

Indigenous Law Centre – CaseWatch Blog

In 2018, Jonathon Wood was convicted of manslaughter for killing his wife, Kathleen Wood, in their home community of St. Theresa Point First Nation, Manitoba. Both Mr. Wood and his wife are Indigenous persons who were raised, and lived in the isolated First Nation with a population of about 4,000 people, accessible only by air, boat or winter ice-road. They began their relationship in 2004 and were married in 2010. Mr. Wood intermittently assaulted Mrs. Wood since 2012. He was convicted of assaulting her four times. By this point, they had three children together, along with an older boy from Mrs. Wood’s prior relationship. These assaults followed a consistent pattern.

When Mr, Wood attacked Mrs. Wood in 2013, 2014 and 2015, he was on some form of bail or probation aimed at reducing the chance he would assault her again. When he ultimately assaulted and killed her, he was still bound by two Probation Orders which stipulated he was not to have contact with Mrs. Wood and imposed restrictions on him when drinking. Regardless of these Orders, Mr. Wood was charged again for assault and aggravated assault of several people, including Mrs. Wood, as well as four probation breaches. He was released on a Recognizance which included not to communicate with Mrs. Wood, and in part, allowed him to be arrested even if he was just in the area of St. Theresa Point.

Despite the court orders, and his promise to abide by them, Mr. Wood went to St. Theresa Point to see his family and Mrs. Wood. A party took place at Mr. Wood’s brother’s residence, and all were intoxicated. As the evening progressed, Mr. and Mrs. Wood got into an argument, which eventually led to Mr. Wood assaulting Mrs. Wood with his fists and feet, repeating the escalating pattern of the four prior convictions. The brother wanted to check on Mrs. Wood, who was then lying on the floor, but Mr. Wood told him to leave her alone, that she was just passed-out. Concerned, the brother went next door for help but returned moments later to Mrs. Wood no longer breathing.

Mrs. Wood’s injuries were awful. The autopsy revealed the true devastation. The forensic pathologist detailed many injuries including numerous bones broken, including her jaw, left clavicle, left wrist and all 24 ribs, 23 of which had multiple fractures. She also suffered a subarachnoid hemorrhage, full-thickness tongue laceration, contusions and lacerations of the lungs and diaphragm, and contusion of the liver. There was no evidence Mrs. Wood’s injuries were caused by anything other than Mr. Wood beating her at the party.

A pre-sentence and Gladue report was prepared for sentencing. Mr. Wood left school with very little education, and no employable skills. There is nothing to suggest Mr. Wood experienced any mental health concerns. Poverty, unemployment, lack of education and substance abuse were negative influences in Mr. Wood’s upbringing. During the course of his times in custody, Mr. Wood participated in many programs, including anger management, parenting skills and healthy relationships.

The vulnerability of a victim, particularly a woman in a domestic context, are well established aggravating factors on sentencing and ones which emphasize denunciation and deterrence (R v LP, 2020 QCCA 1239). Generally, spousal killings attract a higher sentence, and greater condemnation, than other types of manslaughter (s 718.2(a)(ii) of the Criminal Code). Mrs. Wood’s Indigenous status, and living in a community so under-serviced and isolated as St. Theresa Point First Nation, heightened her vulnerability to spousal violence (R v AD, 2019 ABCA 396). It is clear that this event was not only catastrophic for Mrs. Wood but also for her four teenage children.

The nature of the beating was merciless. His previous pattern of beating Mrs. Wood and resulting convictions, his sober defiance of court orders, and his willful disregard for placing her, his wife, in situations of grave danger, adds considerably to his blameworthiness. Denunciation is critical in condemning spousal violence, particularly the chronic threat to Indigenous women. There is the need to separate Mr. Wood from his community so he is no longer a threat to them.