Tag Archives: Aboriginal

R v Angnatuk, 2020 QCCS 3650

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The Court sentenced an Inuk man to life imprisonment and ordered him ineligible for parole for 18 years for the second-degree murder of his Inuk partner. His Gladue factors were considered in setting the period of ineligibility for parole but they were the only mitigating factor.

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Jimmy Angnatuk, was found guilty by jury of the second degree murder of Elisabeth Novalinga. By law, Mr. Angnatuk faces a mandatory sentence of life imprisonment. Access to the appropriate tools and programs to address his issues is paramount, and that Mr. Angnatuk will take steps towards rehabilitation. Domestic violence, in an Indigenous context or not, is a scourge on society. Mr. Angnatuk is to be sentenced to life imprisonment without eligibility for parole for 18 years.

Mr. Angnatuk and Ms. Novalinga lived in Kuujjuarapik and were in a relationship. On the day of her murder, both consumed alcohol and had an argument. Later that evening, the police received an emergency call. They arrived at the house shortly after, where the accused remained on the premises, and told the officers that he had killed Ms. Novalinga. She was found deceased with multiple blunt force injuries and knife wounds on her body.

Ms. Novalinga’s two children are now left without a mother. Mr. Angnatuk murdered Ms. Novalinga while he was bound by an undertaking, and he has a pending case of assault causing bodily harm. He has a history of abuse against his partners and has multiple prior convictions for violent offences against his partners but also against strangers. He is impulsive and extremely dangerous, has not shown a real possibility of rehabilitation, and has been in and out of prison without it being a deterrent.

Fixing an extended period of parole ineligibility is a very fact-sensitive process (R v Shropshire, [1995] 4 SCR 227). Sentencing is an individualized process. The sanction must be adapted to the nature of the offence and the situation of the offender (R v Nasogaluak, [2010] 1 SCR 206). The Court has to weigh the objectives listed in s 718 of the Criminal Code and against the facts and the relevant aggravating or mitigating factors, consider the ranges of sentences for similar circumstances, as well as the needs of the community in which the offence occurred.

Although the Court did not have a contemporary pre-sentence report that could help assess his risk of reoffending, Mr. Angnatuk has, by his own admission, serious anger and emotional issues that have been left largely unaddressed over the years. Mr. Angnatuk mentioned to his Gladue Report Writer that he is aware that he has a lot of anger inside, and that he understands that he needs help with his feelings and his anger in order not to reoffend. He shows an interest for programs or counselling sessions tailored to Inuit or that are culturally relevant and in his own language or that offer traditional activities.

Ms. Novalinga was, as Mr. Angnatuk is, Inuk, and suffered a horrible fate at the hands of her partner, who prevented her from getting help in extricating herself from a violent situation because he did not want to go to jail. The aggravating factors are numerous in the present case. The Court also has to take into account Gladue factors in determining Mr. Angnatuk’s sentence. The Court analyzed the factors documented in the Gladue Report that pertain to Mr. Angnatuk, his family, the community of Kuujjuaq, and the lasting impact of assimilation policies on Inuit People. However, were it not for these elements, the Court would have found no substantive mitigating factor in Mr. Angnatuk’s favour.

Okanagan Indian Band v Johnston, 2020 BCSC 1749

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The Court granted a one-year stay against the Band’s application for summary trial against a former member in relation to an interest in reserve land her late aunt bequeathed to her. The stay will give the defendant time to appeal the rejection of her membership application in another proceeding, although she will have other hurdles to surmount beyond membership before she can obtain a legal interest in the lot.

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The defendant, Marilyn Johnston, was a former member of the plaintiff, Okanagan Indian Band [“OKIB”] but is not a present member. Currently, she is a registered Indian of the Nak’azdli Whut’en Indian Band in Fort St. James, B.C. Ms. Johnston was bequeathed property on the reserve from her aunt who died in 2013. The plaintiff, the OKIB, is a band within the meaning of the Indian Act, and is the beneficiary of six reserves set aside for its use and benefit by the federal Crown pursuant to s 18 of the Indian Act. Okanagan Reserve No. 1 is one of the reserves set aside for the OKIB. Section 50 of the Indian Act prevents Ms. Johnston from inheriting her aunt’s property. The OKIB says that she must therefore vacate the property and Okanagan Reserve No. 1 [“Reserve”].

Ms. Johnston applied to transfer her membership back to the OKIB, and has been taking steps since then to reinstate her membership in the OKIB. She originally transferred her band membership from the OKIB in 1988 to enhance her credibility and trust with the community members she worked with in the victim services program. She had moved to that area in approximately 1976 and worked there in the social service sector. It was always the defendant’s intention to return from the Nak’azdli Whut’en Indian Band to the OKIB, as she has extensive ties to the Reserve.

When the defendant first contacted the OKIB in 2002 to transfer her membership, she was advised that the OKIB was in the process of adopting a new band membership transfer policy. OKIB said that it would process her application and she would be registered as a member. An internal band memo in 2012 stated that the defendant “has fulfilled all the requirements to apply for transfer to” the OKIB. It resolved that the defendant “has been accepted into the membership” of the OKIB, however, the transfer was not processed.

There is an issue between the parties as to whether the membership requirement in s 50 should be interpreted as being a member of the band at the date of the testator’s death, or whether it is retrospective and can be cured by membership granted after the date of death of the testator. The usual process under s 50(2) of the Indian Act where a beneficiary is unable to inherit the lands is for the lands to be sold to a band member and the proceeds of the sale provided to the beneficiary. Should the lands not sell, the lands would revert to the OKIB pursuant to s 50(3).

In 2019, the OKIB reconsidered the defendant’s application, but denied the defendant’s application for membership on the basis that she displayed aggressive and threatening behaviour to the OKIB staff and guests and that she would not make a positive contribution to the community. The defendant says she did not commit the behaviour or acts alleged and that there is no reasonable basis to deny her membership. The defendant appealed the OKIB Band Council decision to deny her membership with a formal application to the Protest Unit of ISC pursuant to the OKIB’s Band Membership Transfer Policy and s 14.2(1) of the Indian Act [“Protest”].

The Protest was sent by registered mail and accepted. The defendant has not yet received a reply. The basis for the Protest is that the decision to deny the transfer of membership to the OKIB was made without proper consultation and was significantly delayed. Subsequently, the plaintiff filed this Notice of Application. The defendant filed her application seeking a stay of proceedings to permit the membership process to complete, by way of appeal if necessary.

The Court has inherent jurisdiction to grant a temporary stay in a proceeding before it (Law and Equity Act, s 8(2); RJR-MacDonald Inc v Canada (AG), [1994] 1 SCR 311 [“RJR-MacDonald”]. There is a serious question to be determined (RJR-MacDonald). In the Court’s view, there is an intrinsic link between the membership application issue and the plaintiff’s claims against the defendant. In the event that she becomes a member, there will likely be the two hurdles identified by the plaintiff, the retrospectivity of the operation of s 50, and the permission of the Minister pursuant to s 49. Irreparable harm would be occasioned to Ms. Johnston if the stay was refused. The second branch of the test is met by the defendant (Dixon v Morgan, 2020 BCCA 200).

In considering the balance of convenience, it is important to note that the defendant first applied to OKIB for a transfer back of her membership in 2002. The decision denying the application was made in 2019. In the intervening time, Ms. Johnston returned to live with her aunt in 2009, and her aunt died in 2013. Internal band documents indicate that in 2012 there was no impediment to approving the membership application. There were many attempts made by Ms. Johnston to communicate with OKIB and further her application throughout the years from 2002 to 2019. The lack of certainty of the future of the Lots lies at the feet of OKIB as a result of their delays. The prejudice to the defendant is far greater than that to the OKIB (RJR-MacDonald). The stay is granted with the length of one year.

R v Head, 2020 ABPC 211

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The Court sentenced an Indigenous man to 245 days in prison (time served) followed by three years of probation for various offences including robbery of a convenience store. Counsel initially agreed to a joint submission on sentence for 30 months in prison but this position was abandoned once counsel investigated Gladue factors and the legal relevance of Fetal Alcohol Spectrum Disorder to moral blameworthiness.

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Simon Peter Head, a 26-year-old Aboriginal man pleaded guilty to 12 separate charges. A joint submission was presented of 30 months of jail, less 5 months time served, leaving 25 months left to be served in a federal institution where he had never been before. Gladue factors were read in superficially. The Crown’s position was that Mr. Head had an aggravating record with regard to breaches and failings to appear, as well as a history of assault and property offences.

In March 2017, a Gladue report was prepared. Mr. Head at the time of the report was almost 23 years of age. This report was prepared for 2 robbery charges that he was facing in 2017. Mr. Head dropped out of school, and in respect to Child Welfare system, he had been fostered. He had two different group homes between the ages of 12 and 16. Upon leaving, he did not have any means of employment and has not maintained any type of employment since then. When he was young, he started using alcohol. When he was 19, he then switched to crystal meth, which is his current addiction, and he struggles with now.

In 2017, he was hopeful to get out of his criminal life. He was interested in his Aboriginal heritage. He wanted to work with an Elder and learn how to make drums. He recognized that he needed help to manage, was remorseful for what he had done, particularly to the victims. He wanted to try and go back to do some schooling, particularly in computers. Although not formally diagnosed with FASD, he does have indicators. Although the Court found that Mr. Head’s moral culpability is at the lower end, it does not to detract from the fact that he caused harm to individuals.

The Court advised that counsel must understand that before bringing joint submissions before the court involving Aboriginal persons, they must do a careful analysis of the intersections of the Gladue factors related to this accused and what is a fit and proper sentence. Coming before a court and expecting a sentencing judge to rubberstamp a joint submission is not what Gladue says what the judge’s function is.

Although joint submissions are important to the administration of justice, they should not be accepted where the joint submission has failed to properly consider Gladue factors including FASD and other cultural circumstances. Judges should not be adding to the overrepresentation of Aboriginal persons in prisons where alternative approaches are available and which would meet the principles and objectives of sentencing. Counsel must be prepared to come to court with the proper information. This was not the case in the matter before this Court as demonstrated in its history.

R v Lerat, 2020 SKPC 30

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The Court sentenced Mr. Lerat to four years imprisonment for unlawful confinement and aggravated assault. His moral blameworthiness was impacted by a number of Gladue factors, but a penitentiary term of imprisonment was nevertheless warranted. A careful and merciful balancing of the constellation of relevant sentencing principles and factors in this case favoured a custodial disposition at the low end of the range.

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Wade Morris Lerat entered a guilty plea to aggravated assault contrary to section 268(1) of the Criminal Code and unlawful confinement contrary to section 279(2) of the Criminal Code. With accomplices, Mr. Lerat drove to a residence, where he attacked his uncle, Kevin Gambler, and severely beat him. Mr. Gambler was then loaded into Mr. Lerat’s vehicle, where they drove towards the “Gambler Graveyard” on Muscowpetung First Nation, approximately two miles from the residence. There is nothing else in that area. Mr. Gambler was then told he was going to be killed and buried in the graveyard. Mr. Gambler feared for his life and tried escaping the vehicle multiple times, only to be caught, restrained and further beaten, eventually with a metal bar. Mr. Gambler was then abandoned in the vehicle when it became stuck in mud. Mr. Gambler remained in the vehicle for an hour before walking to a residence to seek help.

A modified sentencing hearing was held for Mr. Lerat in Fort Qu’Appelle. The sentencing hearing included statements from members of the community that spoke to Mr. Lerat and how he has conducted himself since being placed on electronic monitoring. No recommendations were given, thereby determination of a fit sentence falls to the discretion of the sentencing judge. Mr. Lerat is a member of the Muscowpetung First Nation and descends from the Saulteaux people. Given that Mr. Lerat is an Indigenous offender, section 718.2(e) of the Criminal Code must be taken into consideration in determining a fit sentence for him (R v Ipeelee, 2012 SCC 13, 280 CCC (3d) 265).

Mr. Lerat comes from a family upbringing marred with alcohol use and poverty. He has experienced racism and disconnection. Around the age of 16, Mr. Lerat began struggling with drug and alcohol use. He is 36 years old and lives with his wife and nine children. He works for the Muscowpetung First Nation, assisting the Elders. Before the incident, Mr. Lerat was heavily involved with his community, organizing sports teams and tournaments, including hockey and fastball. Since the incident, Mr. Lerat has chosen to embrace his Indigenous heritage and has become more involved through practices such as smudging. He also continues to practice his Christian faith with the help of his Pastor, who is also an Aboriginal Protector. Since being on release, Mr. Lerat has taken treatment at Leading Thunderbird Lodge and with the National Alcohol and Drug Abuse Program worker on Muscowpetung First Nation. He has been sober for the past four years since the incident.

Mr. Lerat has six previous convictions on his criminal record which date back to 2008. However, Mr. Lerat does not have any violent offences on his record, and he has not been incarcerated. While Mr. Lerat may suffer from FASD, there is nothing in the record or evidence that suggested Mr. Lerat was not fully responsible for his actions or that his ability to appreciate or understand his actions was compromised in any way by intellectual or cognitive impairment. This attack happened between family members, many of whom likely are affected by the same systemic issues that affect Mr. Lerat. This is a community where alcohol abuse is the norm and there is a history of intergenerational trauma as a result of residential schools and colonialism. However, the gravity of the offences is serious and Mr. Lerat’s moral culpability remains high. He was highly involved and his actions directly led to a night of physical violence and psychological terror for Mr. Gambler.

These offences carry significant gravity and so the primary sentencing objectives must be denunciation, deterrence and the protection and safety of the public. Aggravated assault is a serious offence, as evidenced by the fact that it carries a maximum term of fourteen years imprisonment. Unlawful confinement is also not to be taken lightly, carrying a maximum term of ten years imprisonment. But it is the combination of the two that raises the gravity (R v Peyachew, 2016 SKCA 21).

Mr. Lerat’s post-offence conduct has demonstrated that he is receptive to rehabilitation and so an appropriate sentence must find a way to give life to that principle through restorative justice. While Mr. Lerat has a number of Gladue factors that impact his degree of responsibility, as a practical reality, the more violent and serious the offence, the more likely it is that the terms of imprisonment for Indigenous and non-Indigenous offenders will be closer to each other or the same, even taking into account their different concepts of sentencing (R v Jensen, (2005) 74 OR (3d) 561 (OCA)). Given the gravity of the offences and Mr. Lerat’s responsibility for them, a penitentiary term of imprisonment is warranted in this case.

R c Esau, 2020 QCCQ 5044

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The Court issued a suspended sentence and a three-year probation order for a 54-year-old Cree woman found guilty of trafficking in cocaine and possession of cocaine for the purpose of trafficking. The Court took judicial notice of the increasingly disproportionate numbers of Indigenous women in Canadian prisons. It found the circumstances of Ms. Esau’s life to be harrowing, including recurring experiences of domestic violence, forced marriage to a sexually, physically, and psychologically abusive husband in her Pentecostal community, and periods of homelessness. The Gladue report and the Pre-Sentence Report highlighted the need for participation in treatment and healing programs. 

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Marion Esau, a 54-year-old Indigenous woman from the Cree First Nation, pleaded guilty to charges of having trafficked in cocaine and having had cocaine in her possession for the purpose of trafficking. A Pre-Sentence Report and Gladue report were prepared. Ms. Esau was from a large family from the same biological parents. The family had problems with alcohol, and violence was common in the home. Suicide was rampant, indeed one of her brothers committed suicide at the age of 14. Furthermore, the family followed a traditional lifestyle, placing little emphasis on schooling. Her father and several members of her family attended Indian residential schools.

Because her parents are Pentecostal, Ms. Esau was forced into marriage at the age of 16. Her mother was the one who chose her husband, an uneducated man who lived primarily in the woods. During her marriage, she had four children, and was subject to extreme domestic violence. Isolated, friendless, and unable to see even her parents, she considered suicide. When she left her husband, she also had to leave her children behind. She went to social services for help, but did not receive any. After leaving her husband, she became involved with another man but also experienced severe violence in that relationship. Her current spousal relationship is not violent, but they were homeless.

Ms. Esau has a criminal record going back to 1999, when she was 34 years old. Her prior offences are related primarily with her periods of homelessness and substance abuse. The offences were mostly assault, threats, and theft, and they resulted in occasionally supervised probationary sentences, community work, and fines. She accepts full responsibility for her actions and has shown a good capacity for introspection and an acceptable degree of empathy, both for her community and individually. In the probation officer’s opinion, Ms. Esau must take part in various treatment and programs to heal the wounds caused by her past life. The author of the Gladue report emphasized that Ms. Esau is worried about her husband and daughter if she is sent to prison. Her daughter sometimes gives her some respite by helping her take care of her son, who is epileptic and an alcoholic.

The Court notes that Ms. Esau, as an Indigenous woman, had been victim of violence as it has been discussed in The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls. Without setting aside the other principles of sentencing, the Court notes the importance of the principle in section 718.2(e) Criminal Code. In cases involving Indigenous offenders, consideration should be given to all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or to the community. The Court finds that a suspended sentence of 36 months with restorative justice measures to be an appropriate sentence.

Saskatchewan Polytechnic Faculty Assn v Saskatchewan Polytechnic, 2020 CanLII 78471 (SK LA)

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The Arbitrator allowed a grievance filed on behalf of an instructor whose employment was terminated based on his inappropriate racist comments directed towards Indigenous people. While this conduct was found to have warranted a disciplinary response, the Arbitrator concluded termination was too severe in all the circumstances and ordered reinstatement with credit for a six-month unpaid suspension, compensation for lost wages, benefits, and seniority, and arrangements for the grievor to attend Indigenous Awareness Training. 

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The Saskatchewan Polytechnic Faculty Association [“SPFA”] filed a grievance on behalf of Wally Derow [“Grievor”] against Saskatchewan Polytechnic [“Employer”]. The Grievor’s employment was terminated in 2018 because of racist comments he had made towards Indigenous peoples.

The Grievor was an Instructor in SaskPoly’s Carpentry Program in Regina, Saskatchewan. An Indigenous student had sent an email to staff asking for donations for the SaskPoly’s Indigenous Student Holiday Hamper Appeal. The Grievor’s reaction including comments such as: “[h]ave we not given enough already. Be like the rest get jobs”; “taxpayers give enough, I work for what I have, they don’t work and get handouts”; “why can’t they get a job”; “we’ve given, all we’ve done is give”; and “you guys get free education – my son goes to university and he paid tuition and he says they don’t have to” and so on.

The Grievor, who at the time was 64 years old, testified that he had not attended SaskPoly’s Indigenous Awareness Training as of November 26, 2018. SPFA had advised the Grievor to expect some sort of discipline, but he did not expect to be terminated. He apologized after he was terminated because he felt remorse and had read further into the Truth and Reconciliation Commission. He explained that previously he thought residential schools were where people “learned our language so they could blend in, our culture, a trade, farming at the time” but realizes he was misinformed.

The Arbitrator determined that the Grievor is not alone in his misconceptions and misunderstandings, in consideration of the social context. Those misconceptions and misunderstandings which can give rise to prejudices on the basis of race have been developed over generations. Generations of non-Indigenous Canadians never received any education about Indigenous history, culture or experience. They know nothing about the Treaties. There is no question that racist attitudes exist because of misconceptions, misunderstanding and stereotyping. Generations of misinformation and lack of understanding cannot be wiped away in a day. The Truth and Reconciliation Commission is having an impact on all aspects of our society, but it is going to take time for society to change attitudes. The way to change those attitudes is not termination of the employment of otherwise good employees.

The Employer should have considered the fact that the Grievor had not yet taken the training as a significant factor to suggest that discipline along with training was the appropriate disciplinary response to the Grievor’s comments. SPFA submits there is no evidence the relationship is irreparable or that it cannot be repaired through education. The Grievor is willing to participate and has already taken steps on his own to educate himself and to make sure that what he says is accurate. The deterrent message in this case is that SaskPoly will not tolerate racism. SaskPoly could have sent a sufficient deterrent message in this case through a significant suspension and imposition of an education requirement.

The Arbitrator found that termination of employment was an excessive employer response to the Grievor’s conduct. SaskPoly is committed to Indigenization and through its Indigenous Awareness Training is attempting to educate all its employees to dispel myths and misconceptions and foster behavioural and attitudinal change towards Indigenous people. Principles of progressive discipline suggest that, especially in a situation like this where education is the best solution, steps short of dismissal would have been more appropriate. The appropriate remedy would have been a six-month unpaid suspension along with appropriate education.

LDC Solutions Inc v Natural Resources Canada, CITT PR-2020-001

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Request for Tribunal inquiry into complaint denied. The complainant, an unsuccessful Indigenous bidder, failed to meet the necessary requirements for the Tribunal to launch an inquiry.

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This complaint pertains to a request for proposal [“RFP”] issued by Natural Resources Canada [“NRC”] for the provision of subject matter expects for the Indigenous Forestry Initiatives Expert Review Panel. The complainant, LDC Solutions Inc. [“LDC)”] was an unsuccessful bidder, and alleged that NRC failed both in the issuance of the RFP, and its process in evaluating bidders’ and their respective bids.

Following the initial issuance of the RFP, the complainant wrote to NRC to inquire why the solicitation was not issued as an Aboriginal set-aside (which designates it exclusively to Aboriginal bidders) and if they would consider re-issuing. The Respondent replied that while a mandatory Aboriginal set-aside was considered, it did not meet the criteria. In recognizing Indigenous bidders, however, it would allot extra points to bidders registered with the Indigenous Business Directory, and amended the RFP.

Shortly thereafter, NRC informed LDC that its bid was unsuccessful, and that the contract had been awarded to another company. LDC’s bid had met all the requirements, but did not achieve the highest score in comparison to the winning bidder’s technical and financial scores that were provided for comparison. LDC inquired to NRC that the winning bidder could not be located on the Indigenous Business Directory, and that their winning score must have included the additional points for being an Indigenous bidder. NRC contended that the winning bidder was not awarded the extra points, but an internal investigation would be conducted, and a re-evaluation of the bids would take place.

As a part of the re-evaluation, NRC raised issues that the financial proposal did not account for the cost of providing an Honorarium for Elders who would perform opening and closing ceremonies of meetings, and the lack of clarity in the Financial Proposal Form and Statement of Work. Upon conclusion of the re-evaluation, LDC was notified that their bid had been disqualified, and that a contract had been awarded to Stratos in Joint Venture with First Peoples Group. LDC filed a complaint with the Tribunal in regards to NRC’s decision, and also requested that the Tribunal recommend that a new solicitation be issued as a mandatory Aboriginal set-aside, that the NRC should undergo Indigenous Cultural Awareness training, and that the winning bidder should be barred from competing in the new solicitation process for misrepresenting its Indigenous status.

The trade agreements require that government institutions disclose to unsuccessful suppliers that request it the reasons why their tenders were not selected, as well as information regarding the selected tender. The Tribunal found that NRC did not breach these obligations. It is not clear why LDC considers that its request for a debriefing meeting was refused. The debriefing did not address any issues with LDC’s bid, but was limited to responding to LDC’s questions regarding the winning bidder. LDC could have posed additional questions by email to NRC regarding its own bid, but according to the evidence on file, it did not do so. As a result, the Tribunal finds that NRC provided all the information that was requested by LDC and did not breach the trade agreement requirements in regard to debriefings. Pursuant to the Canadian International Trade Tribunal Act, the Tribunal has decided not to conduct an inquiry into the complaint.

JEO v MD, 2020 ONSC 6106

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The Court dismissed an appeal from a customary care provider seeking sole custody of a child with access to her natural parents at the care provider’s discretion. Under the Child, Youth and Family Services Act, 2017, Customary Care Agreements are to be preferred even to child protection proceedings in the case of Indigenous children. It would be inconsistent with this regime to allow an individual to bring a custody application that could result in a court order collapsing such an agreement, thereby disregarding the voluntary parental participation and Indigenous community input that defines it.

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 This appeal concerns the intersection between a Customary Care Agreement [“CCA”], and the application by an individual for custody of a child under the Children’s Law Reform Act [“CLRA”]. The Appellant seeks to lift the stay imposed by the motion judge on her application under the CLRA for sole custody of an Indigenous child, with access to the child’s natural parents at the Appellant’s discretion. The errors that the Appellant alleges mainly focus on the motion judge’s use of s 103 of the Child, Youth and Family Services Act, 2017 [“CYFSA”] as the authority for the stay that was imposed.

Kina Gbezhgomi Child and Family Services [“KGCFS”] had been involved with the child’s parents since 2000 because of issues relating to domestic violence and substance abuse. Older children of the parents were being cared for by a relative in the community. Two other children were made Crown wards in 2009. In 2013, the mother’s file was reopened when KGCFS was advised that she was pregnant again.

Once born, the child was apprehended by KGCFS, which brought a protection application and placed her in the Appellant’s home for fostering. The Appellant is married to the child’s paternal great uncle. In 2014, a Wikwemikong Band Council Resolution was passed, resolving that the child would be in the care of the Appellant. This was done by Wikwemikong Unceded Indian Reserve [“Wikwemikong”], the child’s First Nation, in “exercising its inherent authority and responsibility for the care of children of their community” and so that KGCFS could grant the Appellant a subsidy for care according to the custom of the Band/First Nation.

 A CCA was made and came into force in 2015. As a result, the protection proceeding that had been initiated was withdrawn. Parties to the CCA are the mother, the father, Wikwemikong, the Appellant, KGCFS, and the Children’s Aid Society. The CCA was described as a “Long-Term” CCA which could be in effect until the child reached the age of 18 years. The CCA states that the Appellant, who is a Wikwemikong resident, is to be the “customary care provider.” She is given authority to consent to medical, surgical, dental, educational, psychological or diagnostic treatment and anesthetic care that a qualified medical or dental practitioner might recommend.

In 2018, the Appellant brought an application for full custody of the child under the CLRA, stating concerns with the parents. KGCFS may have had some concerns relating to the Appellant, but she had been working with them on a voluntary basis and that she wanted to terminate the CCA. The motion judge considered various sections of the CYFSA relating to the protection of First Nations, Inuit and Metis children. He reasoned that if a CCA was entered into, then it would be by agreement, and should be accorded deference as “a complete code for the resolution of child protection cases in appropriate circumstances.” The motion judge read CCAs into s 103 of the CYFSA as a valid reason for a stay of a custody application under the CLRA, as to conclude otherwise would be to diminish the importance of CCAs. To permit the custody application to continue would also invite the court to disregard the intent of the parties in setting up the CCA, which constituted a voluntary meeting of minds.

 The motion judge stayed the appellant’s CLRA application for custody pursuant to s 103 of the CYFSA, and is subject to a correctness standard on appeal (Housen v Nikolaisen, 2002 SCC 33). To assess the order made by the motion judge, the terms of s 103 of the CYFSA must be considered, its purpose, and legislative intent in child welfare legislation. Section 103 of the CYFSA dictates the pre-eminence of child welfare legislation, where child welfare proceedings have begun or an order has been made in those proceedings, and a person seeks custody under the CLRA. This section underscores the well-established principle that child protection legislation will take precedence over the jurisdiction granted to courts by other provincial legislation dealing with matters of custody (Fortowsky v Roman Catholic Children’s Aid Society of Essex (County), [1960] OJ No 600 (CA)). Section 103 protects the integrity of the child welfare placement by ensuring that no other court can substitute its decision for that of the child protection court (Children’s Aid Society of St. Thomas and Elgin County v CZ and JH, [2003] OJ No 4177 (CA)).

CCAs act as an alternative to child protection proceedings and serve as an expression of Indigenous community values in the sphere of child protection. In the circumstances of the CCA in this case, it would have been appropriate to exercise the court’s discretion to stay the CLRA application. That is not to say that any and all CCAs will equally merit the protection of the court against CLRA applications. The motion judge, however, committed no error in imposing a stay of proceedings on the Appellant’s CLRA application.

R v Turtle, 2020 ONCJ 429

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The Court held that the unavailability of an intermittent sentence for on-reserve members of the Pikangikum First Nation, and those similarly situated, for mandatory minimum sentences under s 255 of the Criminal Code, breaches s 15 of the Charter. Alternative arguments under ss 7 and 12 of the Charter were dismissed. 

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Six band members of the Pikangikum First Nation have pled guilty to a drinking and driving offense that, in their circumstances, carries with it a mandatory minimum jail sentence of not more than ninety days. Each of the accused live, together with their young children, on the First Nation Territory of Pikangikum.

The parties to these proceedings agree it would be open to each of these accused, in the normal course, to request an order of this Court allowing them to serve their sentences intermittently. The challenge for these defendants is that the Pikangikum First Nation Territory is an isolated fly in community hundreds of kilometers from the nearest district jail in the City of Kenora and it is financially and logistically prohibitive for them to travel to and from there, from weekend to weekend, at their own expense, to serve out their sentences.

Faced with this obstacle, the defendants each brought applications alleging that their inability to mitigate the effect of a mandatory jail sentence because of the practical unavailability of an intermittent sentence violates their right to equal protection under the law, constitutes cruel and unusual punishment and an abuse of the court’s process. Given the common ground of these applications, the desirability of using resources efficiently and with the consent of the parties, this Court has directed these applications be heard in one joined proceeding.

The question at the heart of this joint application is whether particular Criminal Code provisions of general application have an unconstitutional impact on Pikangikum First Nation residents, their place in Canadian confederation and what it means for them to be equal under the law. The recognition that First Nations, like Pikangikum, lived in distinctive societies, that their members are described in s 35(2) of the Constitution Act, 1982 as “peoples” who have been recognized by our highest Court as holders of community based rights, by virtue of their connection to their land, strongly suggests that the defendants, as on-reserve members of the Pikangikum First Nation, belong to a group enumerated in s 15 of the Charter, namely, a nation.

Being deprived of the opportunity to serve a jail sentence intermittently because of their status as on-reserve band members of the Pikangikum First Nation, constitutes the deprivation of a legal benefit. It also creates a distinction in law between themselves and other members of the general public. Most of the offending behavior in Pikangikum, like the offences the defendants have pled guilty to, is related to alcohol or solvent abuse. Pikangikum First Nation reserve is, and always has been, an ostensibly dry community. The effects of alcohol abuse in Pikangikum are rampant and have become devastating.

Mandatory minimum sentences under s 255 of the Criminal Code, breaches s 15 of the Charter. Any s 1 justification must fail at the minimal impairment stage of the analysis given this Court is deprived of any other sentencing options for the defendants by virtue of their facing mandatory sentences. The deleterious effects of this constitutional violation are egregious and cannot be outweighed by the salutary effect of a uniform sentencing regime (R v Sharma, 2020 ONCA 478). Alternative arguments under ss 7 and 12 of the Charter are dismissed.

Pikangikum and other Treaty #5 nations had traditional means of keeping the peace in their communities that pre-date contact with Europeans by thousands of years. Pikangikum’s integration into Canadian confederation is a textbook example of the negative effects of colonialism on an isolated hunter-gatherer society. The people of Pikangikum were a healthy, self-sufficient band of families, who, in the lifetime of the current Chief’s grandmother, became the suicide capital of the world. The legal regime the Court has been asked to consider in this application, though neutral on its face, treats the people of Treaty #5 as second-class citizens. The Government is not fulfilling its treaty obligations and young Indigenous people are taking their lives in shocking numbers.

R c Awashish, 2020 QCCQ 3614

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

Indigenous Law Centre CaseWatch Blog

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

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

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

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

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

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

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