R v Picody-Naveau, 2021 ONSC 1714

Posted on March 12, 2021 by thp151

Application granted. An Indigenous offender, charged with several Criminal Code offences, including second-degree murder, is granted bail as the mens rea is on the weaker spectrum for the offence. He has strong family support and sureties, will subject himself to GPS monitoring and any travel is substantially limited by the pandemic.

Indigenous Law Centre CaseWatch Blog

Isaah Picody-Naveau, an Indigenous man, has been charged with second-degree murder, along with several Criminal Code offences, including domestic violence against his intimate partner. This matter is an application for bail pursuant to ss 515 and 522. Mr. Picody-Naveau is alleged to have aided another offender, in the stabbing death of a man who was stabbed multiple times in the back with a drywall knife, who then subsequently died of his injuries in hospital. This offence was recorded on video, and Mr. Picody-Naveau is jointly charged for the murder as an aider and abettor. There is weakness, however, of the mens rea element in the Crown’s case against the applicant as pointed out in the written decision committing the applicant to stand trial on the 2nd degree murder charge, set to be heard in 2022.

The accused has been in custody on these matters for almost a year. There are four videos of altercations involving the applicant, who seems to be the instigator, at the Ottawa Carleton Detention Centre [“OCDC”]. He has a violent temper and has not done well at the OCDC. A Gladue report was prepared that detailed the many struggles the applicant has faced culturally and emotionally over the course of his 23 years of life. His difficulties with the criminal justice system and reckless behavior are in some measure attributable to chronic alcohol and addiction issues, a difficult and tragic upbringing and being transplanted from a small town in northern Ontario to the city of Ottawa.

The risk of Mr. Picody-Naveau not attending Court is sufficiently abated by the fact that he will be under the supervision of his family; that he will have to wear a radiofrequency monitoring ankle bracelet; he and his sureties will each be posting Bonds of $1000; and the pandemic where travel is substantially restricted. The applicant has satisfied the Court that detention on the primary ground was not justified on the facts of this case. While the applicant’s track record for obeying release orders has been abysmal, and he has been shown to be a risk to reoffend, the applicant has been in custody awaiting trial on all these charges for more than 315 days.

The second degree murder charge is a weak case and the presumption of innocence looms large. As the Supreme Court of Canada states, “The right not to be denied reasonable bail without just cause is an essential element of an enlightened criminal justice system. It entrenches the effect of the presumption of innocence at the pretrial stage of the criminal trial process and safeguards the liberty of accused persons” (R v Antic 2017 SCC). Therefore, the application for bail is granted.

R v Papequash, 2021 ONSC 727

Posted on February 9, 2021 by thp151

Application granted. An Indigenous applicant has met their onus on judicial review, as the Justice of the Peace made an error in law by failing to consider Gladue principles at the bail hearing. The applicant will be released on their own recognizance in the amount of $500, and be supervised by the Toronto Bail Program.

Indigenous Law Centre – CaseWatch Blog

The Applicant, Deeandra Papequash (“they/them” preferred pronouns), was denied bail in 2018, and seeks review of this denial of bail. The Applicant is facing four separate sets of charges that involves assaultive and threatening behaviour, petty theft, possessing or using a knife, and failing to follow conditions of bail. They had been released on bail before, on these charges and more than once. But when all the charges came again before the Justice of the Peace on December 18^th, 2018, after they had again been arrested on new charges, those releases came to an end. The Justice of the Peace did not release the Applicant again, and detained Deeandra Papequash on the secondary ground. The Justice of the Peace made a serious mistake in his decision. There is also a new and material change in the Applicant’s situation.

Deeandra Papequash is 34 years old, is mixed Cree and Saulteaux, and a member of Key First Nation. A Gladue report which had been previously prepared, was given to the Justice of the Peace. It describes the horrible childhood endured by the Applicant, including sexual abuse, physical abuse and discrimination at being a two-spirited person. The Applicant suffers from many mental illnesses including Fetal Alcohol Syndrome, ADD, PTSD, anxiety, depression, as well as alcohol and drug addiction. There was also involvement in gang activity in Regina and long periods of jail. Though the Applicant currently stands charged with assaulting their intimate partner, she remains supportive.

Given Deeandra Papequash’s lived experiences as an Indigenous person, the question of their release required a careful application of the Gladue principles (R v Gladue, [1999] 1 SCR 688), which the Justice of the Peace did not do. Failure to consider Gladue principles at a bail hearing is a serious error of law (R v Robinson, 2009 ONCA 205).

Deeandra Papequash has been living precariously, including in shelters. At the bail hearing, it was hoped that secure and stable subsidized housing would become available sometime soon. This housing opportunity is now available through the COTA organization, where a one bedroom awaits them, but this offer is time limited. If the Applicant does not move into the apartment within three weeks, COTA will no longer hold it for them, which is a material change in circumstances. At the bail hearing this housing had not yet crystalized. The stable supportive housing is now real and this material change is significant. The law permits the Court to consider anew whether Deeandra Papequash has met their onus on this bail review regarding the primary, secondary, and tertiary ground for release.

The Applicant proposed a Bail Program release and the Bail Program has approved them. Given the Applicant’s life trajectory bent by trauma, the focus regarding bail should not be on whether a surety is available to supervise them. Rather it should be on whether supports can be put into place to meet secondary ground concerns. The criminal record, which is bad, must also be seen through a Gladue lens. While this does not extinguish the secondary ground concerns, it provides an explanation and a context for this criminal record. A number of organizations and professionals with skill, experience, and compassion have offered support if Deeandra Papequash is released on bail. They know the Applicant’s weaknesses as well as strengths, emphasizing that jail is not a good place for someone like Deeandra Papequash.

Secure housing can be crucial to the rehabilitation and treatment of people with mental health problems, addictions, and other challenges born from the effects of discrimination and marginalization. It provides the steady and firm ground for people to climb out of poverty. Stable housing means stable people, thereby reducing conflict with the law and better protecting the community. Deeandra Papequash has never received such intensive wraparound services before. Deeandra Papequash has met their onus and will be released on their own recognizance in the amount of $500. They will be supervised by the Toronto Bail Program. They will abide by the conditions set out by the Toronto Bail Program and the conditions proposed by the Applicant including no contact, treatment, and counselling.

R c Dubé, 2019 QCCQ 7985

Posted on March 6, 2020 by thp151

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

Indigenous Law Centre – CaseWatch Blog

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

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

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

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

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

R v Balfour and Young, 2019 MBQB 167

Posted on December 12, 2019 by thp151

Ms. Balfour’s and Mr. Young’s s 11(e) Charter rights were violated. A stay of proceedings is moot, but an order of costs is just. Consideration should be given to an independent review of the system affecting in-custody accused on remand in northern Manitoba.

Indigenous Law Centre – CaseWatch Blog

Ms. Balfour and Mr. Young are residents of different northern Manitoba Indigenous communities. Each were arrested and charged with Criminal Code offences. Their cases are completely unrelated except they both experienced difficulty having timely bail applications. Each had made an application for a declaration that their ss 7, 9, 11(e) and 12 rights as guaranteed by the Charter of Rights and Freedoms had been violated. Each sought a judicial stay of proceedings of their charges, and costs.

The focus of the Court’s analysis was on s 11(e) of the Charter, the right of a person charged with an offence not to be denied reasonable bail, as it is broad enough to encompass the specific elements of this matter in a holistic manner. The Court found that Ms. Balfour and Mr. Young rights were violated and the Crown did not seek justification for the violation under s 1 of the Charter.

Remand custody is substantially unlike being a sentenced prisoner in a correctional facility or penitentiary. Particularly in northern Manitoba, being in remand custody awaiting some court process or trial is physically and emotionally stressful for many reasons, especially for first offenders and young offenders. An in-custody remand cannot be routine or perfunctory, the remand must be for a good reason. Lack of court resources or time is not a good or valid reason (R v Reilly, 2019 ABCA 212). Such remands cannot be done consecutively with the effect of sidestepping the accused’s right to object or consent to longer delays. This also applies to remands for less than three clear days, where an accused need not consent.

Northern Manitoba residents who are held waiting for bail are moved repeatedly, often driving great distances while locked in crammed vans and in foul weather. It is unsafe for Sheriffs and accused alike, and adds to the chaos of the northern justice system as personal or video appearances are unreliable. Many accused do not stay in remand in the north but are transferred to central or southern Manitoba. Almost all are away from their home community such that personal visits with their counsel, family, children or supports are few and far between, if at all. Telephone communication to lawyers or families is difficult, infrequent and expensive. Accused are housed with all manner of inmates from a mix of backgrounds and temperaments; some of whom are violent, addicted to drugs or alcohol, or have mental health issues. Lawyers deposed that many clients have lost their employment, or have been attacked or threatened, while in remand waiting for bail hearings. Some accused consider pleading guilty just to get out of remand custody.

The remedy for a stay of proceedings is moot. An appropriate remedy under s 24(1) of the Charter, may generally include a stay of proceedings, a reduction of a sentence, or costs. At a minimum, judicial condemnation is required and the Court finds the bail practices in play in northern Manitoba should shock the conscience of any reasonable person. The violations of Ms. Balfour’s and Mr. Young’s Charter rights were directly related to long-standing and glaring systemic issues. Although the breaches were predictable, the issue of processing the potential release of an arrested person is vital. A bail system must be designed to ensure no person’s liberty is improperly usurped. This is of special concern, as many of the communities in the Thompson judicial area of northern Manitoba are Indigenous and many of those citizens suffer the effects of colonization (R v Gladue, [1999] 2 CNLR 252; R v Ipeelee, [2012] 2 CNLR 218).

No other remedy than costs remains available. In the end, Ms. Balfour and Mr. Young will receive nothing for the breaches of their individual Charter rights, but their lawyers will be reimbursed their expenses and receive partial compensation for their efforts.

Case Watch for August 2016

Posted on September 2, 2016 by thp151

FROM OUR PUBLICATIONS DESK

The following decisions came across our desk over the past month:

Crown’s duty to consult in multi-stage permitting process –

Listuguj Mi’gmaq First Nation v New Brunswick, 2016 NBQB 138: The New Brunswick Court of Queen’s Bench dismissed an application for judicial review to quash three provincial approvals granted to Chaleur Terminals Inc for the construction of a rail terminal and transfer system in Belledune, New Brunswick. The applicants argued that these approvals were issued without any meaningful consultation or accommodation of the Aboriginal and treaty rights and title of three Mi’gmaq communities along the Gaspé peninsula of Quebec. The Court rejected this application on the basis that the Crown had met the low level of consultation that it had pre-determined to be adequate for this project in 2014. The Crown first conducted its own assessment of the appropriate level of consultation in July 2014 and issued a certificate for the project to proceed at that time. The applicants never challenged those 2014 decisions and were now out of time to do so. The application was allowed to proceed with respect to three approvals from 2015 that involved excavation, the clearing of the site, and the installation of oil tanks. However, there was no new information brought to the province’s attention that would justify deeper consultation on the 2015 approvals and the province met the low level of consultation mandated by its 2014 determination.

Use of actuarial risk assessment tools for Aboriginal offenders –

Canada v Ewert, 2016 FCA 203: The Federal Court of Appeal allowed the Crown’s appeal from a Federal Court decision that concluded that the use of certain actuarial tools for assessing recidivism and psychopathy was unreliable with respect to Aboriginal inmates, and thereby unjustifiably infringed upon their section 7 rights and breached the statutory obligations of the Correctional Service of Canada. The Federal Court had held that Mr. Ewert was not required “to establish definitively” that the assessment tools were biased, but the Court of Appeal disagreed. It allowed the appeal on the basis that Mr. Ewert was required to prove on a balance of probabilities that the actuarial tools generate or were likely to generate false results for Aboriginal inmates, and failed to do so.

Gladue factors in sentencing –

R v Okimaw, 2016 ABCA 246: The Alberta Court of Appeal allowed the sentence appeal of an Aboriginal offender on the grounds that, among other things, the sentencing judge failed to give weight to specific Gladue factors. The Court of Appeal used this decision as an opportunity to provide a “practical framework” for the consideration of Gladue factors. It was not enough for the sentencing judge to merely acknowledge “the existence of systemic factors”; the judge had a duty to consider how unique systemic and background factors played a role in bringing the particular Aboriginal offender before the courts. The Court of Appeal found that this necessary context was effectively absent from, or at least given insufficient weight in the decision under review. The Court of Appeal also clarified that it is not incumbent on a Gladue report writer to explain the impact of Gladue factors on moral blameworthiness. It is the sentencing judge that has the duty to carry out an “individualized assessment” of Gladue factors and this duty cannot be delegated. In this case, the Court of Appeal found that the impact of Mr. Okimaw’s Gladue factors were “largely self-explanatory”.

R v Alec, 2016 BCCA 347: The British Columbia Court of Appeal dismissed the sentence appeal of an Aboriginal offender who was sentenced without the aid of a Gladue report. A report was allowed as fresh evidence on appeal. However, the Court of Appeal held that a “formal” Gladue report was not necessary for sentencing Aboriginal offenders. The Court held that the sentencing judge was clearly aware of Mr. Alec’s Aboriginal circumstances and his “disconnection” from his First Nation, and it was open to the sentencing judge to assume that Mr. Alec would not participate in the preparation of a report given his previous reluctance to do so.

R v Sateana, 2016 NUCJ 20: The Nunavut Court of Justice considered Gladue factors in sentencing an Aboriginal man for manslaughter. The Court stated that the systemic factors that influence criminality in Nunavut are well known and well documented, including the inter-generational impact of residential schools, over-crowded and sub-standard housing, poverty, high rates of domestic violence and sexual abuse, and high rates of alcohol and substance abuse. However, the Court held that a Gladue analysis is something “which this court is called upon to give effect to on a regular basis, but which it is unable to implement in any meaningful way”. While Mr. Sateana had appeared before the Court many times before the events leading to his manslaughter conviction, the Court “would have been unable to craft sentences which addressed his deep seated issues and alcohol addiction because the territory has no treatment or rehabilitation facilities and few counselling and mental health services.” Mr. Sateana was sentenced to 13 years incarceration.

Gladue factors in relation to solitary confinement –

Hamm v Canada (Attorney General), 2016 ABQB 440: The Alberta Court of Queen’s Bench allowed an application for habeas corpus from three self-represented inmates placed in solitary confinement, two of whom were Aboriginal. The Court ordered the release of these three inmates from segregation as the institution had failed to provide them with the high level of procedural fairness they were owed before being placed into solitary confinement. Among other concerns, the Court held that “given the potential rehabilitation benefits and other benefits of access to [A]boriginal spiritual and cultural programs, each [A]boriginal inmate should have had a Gladue type assessment of what placements would be appropriate.” The Court also concluded that it was “unreasonable for a correctional institution to deny transparency in relation to its decisions concerning whether, and how, and where, [A]boriginal offenders should be further deprived of liberty”.

Gladue factors & pledges of on-reserve property in bail hearing –

R v Hope, 2016 ONCA 648: The Ontario Court of Appeal granted an Aboriginal man release from custody pending a new trial on charges that include second degree murder. The Court of Appeal took note of the various contexts in which it has previously applied Gladue principles, including bail hearings, and stated that Gladue principles informed certain aspects of its analysis in this case. Ultimately, the Court concluded that detention pending appeal was not necessary in the public interest in this case. The Court also dismissed the Crown’s concerns with the fact that the individuals offering sureties and pledges against the equity in their homes on Mr. Hope’s behalf were of Aboriginal descent and lived on reserve. Section 89 of the Indian Act protects property on reserve from being subject to a charge by anyone other than an “Indian” or a band. The Court of Appeal held that this should not interfere with an Aboriginal person’s ability to secure release from detention, and what mattered was that these individuals expressed a willingness to pledge the “not insignificant” equity in their properties, not whether the Crown could execute against those properties.

Extinguishment of Aboriginal rights –

Québec (Procureure générale) c Lachapelle, 2016 QCCS 3961 (in French only): The Quebec Superior Court granted an application to evict two individuals from a hunting camp in the Eastmain River basin in northern Quebec. One of the respondents was a member of the Algonquins of Barriere Lake and asserted that the hunting camp was incidental to an Aboriginal right to hunt. However, the respondent failed to provide any evidence in support of a site-specific hunting right in the area in question. The Court noted that the camp was located approximately 1200km away from the respondent’s reserve and fell within Cree territory recognized under the James Bay and Northern Quebec Agreement (JBNQA). The Court also held that even if the respondent had proven a site-specific right in the area where the camp is located, the Court could not recognize it in light of the extinguishment clause in the JBNQA. The respondent declined the opportunity to challenge the JBQNA’s constitutionality. The Court did note, however, that the JBQNA’s constitutionality is at issue in another proceeding before the Superior Court.

Exceptions to the tax exemption under section 87 of the Indian Act –

Bell v Canada, 2016 TCC 175: The Tax Court of Canada dismissed an appeal from tax assessments based on the tax exemption for personal property situated on reserve (section 87 of the Indian Act). The appeal concerned whether the exemption could be applied to annual bonuses received by a status “Indian”, Ms. Bell, from a company she owned and operated with her non-status spouse. Ms. Bell worked out of an office located on reserve. Ms. Bell received regular bi-weekly pay from the company as well as the balance of the company’s annual income as year end bonuses. The Minister allowed her to rely on the tax exemption for her regular pay but not for her year end bonuses. The Tax Court upheld the Minister’s decision on the basis that there was no substantive connection between the bonuses and the reserve land where Ms. Bell was working. The Tax Court also found that the bonuses exceeded reasonable remuneration and were therefore abusive of the tax exemption.

Crowns added as parties in private law action involving Aboriginal rights –

Saik’uz First Nation v Rio Tinto Alcan Inc, 2016 BCSC 1474: The BC Supreme Court allowed an application to add both the federal and provincial Crowns as defendants to a tort action against Rio Tinto Alcan in relation to impacts on the Nechako River and its fishery resources. The action is premised in part on asserted Aboriginal rights and title. The Court noted that the plaintiffs acknowledged that the consequences of this “major and complex case”, which would define the intersection between Aboriginal rights and tort law, may be huge. This may warrant inclusion of the Crown on its own. Further, the plaintiffs had already formally invited the Crown to participate through the Notice of Constitutional Challenge they issued in order to challenge the applicability of certain statutes. Under British Columbia’s Water Act, the province also asserts ownership over the water under dispute in this action, thereby warranting its involvement. Finally, the Court held that even where a formal declaration of Aboriginal title is not sought in the pleadings, the federal and provincial Crowns are still necessary parties to the determination of issues relating to Aboriginal title.

Injunction against First Nation’s interference with use of road –

Revolution Infrastructure Inc v Lytton First Nation, 2016 BCSC 1562: The BC Supreme Court allowed an application from Revolution Infrastructure for an interlocutory injunction restraining the Lytton First Nation from prohibiting or interfering with its use of an access road and ranch on which it operates a composting facility. Lytton First Nation asserts Aboriginal rights and title to the valley in which the facility and road are located and asserts a right to control access on this basis, as well as the basis that the road crosses its reserve lands. Lytton has enacted a band bylaw requiring Revolution to obtain a permit to use the road. The Court held that there are several serious questions to be tried in this case, including the nature of Aboriginal title and whether the band bylaw was validly enacted. The Court also held that interference with Revolution’s access to the road would result in irreparable harm. Finally, the Court held that the balance of convenience favoured Revolution as Lytton’s actions had disrupted the status quo of its use of the road without interference since 2009, the road had been used by the public for a significant period before then, and a facilitation process was in place that could potentially address the issues between the parties.

No jurisdiction for provincial tribunal with respect to on-reserve clinic –

Cahoose v Ulkatcho Indian Band, 2016 BCHRT 114: The BC Human Rights Tribunal dismissed a complaint against the Ulkatcho Indian Band and others on the basis that it lacked jurisdiction over the matter. The complainant had been employed in the band’s healthcare clinic on reserve. The tribunal held that there was no dispute over the proper approach for determining the limits of its jurisdiction. Instead, the key issue was which entity the so-called “functional test” needed to be applied to. The complainant argued that the First Nations Health Authority administered the clinic. However, the tribunal found no evidence of the Authority acting as a service provider. Instead, it concluded that the band was the employer of the clinic’s staff and the entity providing medical services on the reserve. Finally, the tribunal concluded that the band’s operations were seen to be federal when the functional test was applied.

Jurisdiction of self-governing First Nation tribunal –

Kwanlin Dün First Nation v Kwanlin Dün First Nation Judicial Council, 2016 YKSC 35: The Yukon Supreme Court dismissed an appeal from the Kwanlin Dün First Nation (KDFN) against two decisions of its Judicial Council that set aside its termination of two tenancy agreements. KDFN argued that the Judicial Council had no jurisdiction to decide matters relating to landlord and tenancy issues since KDFN has not enacted any laws on this subject matter and provincial legislation therefore applies. The Court found this dispute raised a question of true jurisdiction that must be reviewed on a standard of correctness. It held that the Judicial Council, by virtue of KDFN’s Constitution and its Judicial Council Act, had the power to review administrative decisions by the KDFN, including those it makes in a landlord and tenant context, to ensure its Constitution and laws are complied with. The Court went on to conclude that the Judicial Council had not exceeded its jurisdiction by ruling on matters of procedural fairness and KDFN’s constitutional values in context to the tenancy disputes at issue. The Judicial Council did not rule on specific landlord-tenant issues.

Indian Residential Schools Settlement Agreement –

Fontaine v Canada (Attorney General), 2016 MBQB 159: The Manitoba Court of Queen’s Bench allowed a Request for Directions with respect to a claim that an individual was wrongfully denied compensation under the IRSSA for sexual abuse at a residential school. The adjudicator accepted that a nun grabbed the claimant’s genitals while he was at residential school, but was not satisfied that the act had a “sexual purpose”. This decision was upheld on review and re-review. The Court found that it had the jurisdiction to review the re-review adjudicator’s decision on a standard of reasonableness. It went on to conclude that the first adjudicator’s interpretation of the IRSSA as requiring a “sexual purpose” for sexual touching to be compensable was fundamentally inconsistent with the plain language of the IRSSA and with the criminal law jurisprudence that the adjudicator purported to apply. It was therefore unreasonable for the re-review adjudicator to uphold this decision. The Court sent the claim back to be reconsidered in accordance with its reasons.

Fontaine v Canada (Attorney General), 2016 ONSC 5359: The Ontario Superior Court of Justice addressed the results of an investigation into the legal services provided by Douglas J. Keshen and his former law firm with respect to claims under the Indian Residential Schools Settlement Agreement (IRSSA). The report resulting from the investigation was “largely a vindication for Mr. Keshen”. However, there were two exceptions to this: 1) Mr. Keshen was found to have facilitated third party loans on the basis of a promise to repay the loans from IRSSA awards, which is prohibited under the IRSSA; and 2) Mr. Keshen’s practice of reporting to clients orally rather than in writing did not fully meet the Law Society of Upper Canada’s guidelines for lawyers acting on IRSSA files. No costs were ordered for either party and Mr. Keshen was not ordered to pay the costs of the investigation.

Case Watch for June 2016

Posted on June 29, 2016 by thp151

FROM OUR PUBLICATIONS DESK

The following decisions came across our desk over the past month:

R v TJD, 2016 MBCA 67: Leave to appeal was granted by the Manitoba Court of Appeal in the sentencing of a young person under Manitoba’s Youth Criminal Justice Act (YCJA), the appeal was allowed and the sentence was varied. The Crown candidly conceded that various aspects of the sentence were illegal, or that the sentencing judge otherwise erred in principle, including with respect to the judge’s failure to consider relevant Gladue factors in imposing a sentence on this young person, who was of either Métis or Cree ancestry.

Calaheson v Gift Lake Metis Settlement, 2016 ABCA 185: The Alberta Court of Appeal allowed an appeal from part of an order of the Court of Queen’s Bench declaring the Gift Lake Metis Settlement General Election held in October 2013 invalid and vacating the election of three councillors. The appellant challenged the Order’s failure to declare a further position vacant, that of the respondent Dave Lamouche. The Court of Appeal held that this position should have also been vacated in the complex and unique circumstances of the contentious election at issue.

Re Gray, 2016 CanLII 38311 (ON OCCO): The Office of the Chief Coroner for Ontario released a verdict explanation for the inquest into the death of Brian Gray. Mr. Gray died in the custody of police during an armed stand off on Lac Seul First Nation in 2010, making an inquest mandatory. The jury’s recommendations from the inquest included: more funding and training for mental health and addictions services for Lac Seul, a review of the resourcing for the Lac Seul Police Service with a view to increasing police services for Lac Seul, funding for a certified mental health counsellor, additional mental health workers and training for existing workers in Lac Seul, among others.

R v Halkett, 2016 SKPC 65: The Saskatchewan Provincial Court applied Gladue factors in sentencing an Aboriginal man who was found guilty of sexual assault against a cellmate in an RCMP station “drunk tank” to an 18-month conditional sentence followed by a two-year term of probation. The Court noted that in Saskatchewan, where Aboriginal people represent roughly 16% of the population, they account for roughly 77% of the province’s 2014-2015 admissions into adult correctional centres. After reviewing the individual’s Gladue factors, the Court held that the accused would be “apt to find more success in his home community than he would in jail”.

Rice c Agence du revenu du Québec, 2016 QCCA 1077: The Quebec Court of Appeal dismissed a petition for an order to stay the execution of its April 2016 judgment in this matter while the petitioners seek leave to appeal to the Supreme Court of Canada. The petitioners are Mohawks of Kahnawake with status under the Indian Act that reside and carry on business on reserve operating gas stations and retail outlets. They are challenging tax assessments for having failed to charge taxes against their customers, regardless of whether these customers had “Indian” status or not. They have so far been unsuccessful. The Court of Appeal accepted that their arguments for challenging their tax collection and remittance obligations, which are now largely based on the Royal Proclamation of 1763, are serious questions to be tried. However, the petitioners failed to establish serious or irreparable harm in the absence of a stay.

Malcolm v Fort McMurray First Nation, 2016 FC 672: The Federal Court dismissed an application for judicial review of three decisions on applications for membership in the Fort McMurray First Nation. At issue was whether the applicants needed to register for status under the Indian Act before their membership applications could proceed. The Court interpreted Fort McMurray’s Membership Code as requiring confirmation of registration under the Indian Act before the applications could be processed and upheld the Membership Clerk’s decision.

R v Rich, NLTD(G) 87: The Newfoundland and Labrador Supreme Court allowed an application from the Crown for review of an order granting judicial interim release to Mr. Rich. Among other things, the Supreme Court held that the Provincial Court judge erred in his application of the Supreme Court of Canada’s Gladue and Ipeelee decisions. The Supreme Court found no reference to either decision or the fact that Mr. Rich was Aboriginal in the interim release decision. The Supreme Court found that the court below had incorrectly held that being an Aboriginal person was a factor in favour of judicial interim release without any evidence of the particular Aboriginal background of Mr. Rich. The Court stated that “case-specific information regarding the particular Aboriginal offender” is essential in order to apply Gladue and Ipeelee; they cannot be applied “in a vacuum”.

R v Menicoche, 2016 YKCA 7: The Yukon Court of Appeal allowed an appeal from a sentence of 23 months’ imprisonment for sexual assault. The Court of Appeal held that the sentencing judge failed to give genuine effect to the Aboriginal status of the appellant. It found that the sentencing judge failed to consider any alternative to a lengthy territorial jail term despite being familiar with the appellant’s compelling Gladue factors that were set out in the pre-sentence report. The sentence was reduced by six months.

2403177 Ontario Inc v Bending Lake Iron Group Ltd, 2016 ONCA 485: The Ontario Court of Appeal rejected an application for leave to appeal from an Approval and Vesting Order in relation to the moving party’s receivership. Among other things, the moving party argued that the Court of Appeal judge who made that order failed to consider whether the receiver discharged its obligation to consult with “affected Aboriginal communities” in approving a sale agreement arising from the receivership. This duty to consult argument was rejected on the basis that it should have been fully canvassed earlier in the proceedings.

Sarrazin c Canada (AG), 2016 QCCS 2458: The Quebec Superior Court certified a class action on behalf of a group of approximately 45,000 people who were deprived of status under the Indian Act based on discriminatory provisions. In its 2009 McIvor decision the BC Court of Appeal held that section 6 of the Indian Act infringed upon certain individuals’ right to equality under section 15 of the Charter. As a result of this decision, section 6 of the Indian Act was amended through Bill C-3 in 2010. This class action seeks compensation for the individuals who gained status under Bill C-3 on the basis that they were deprived of various forms of financial support under the Indian Act between 1985 and 2011 that they would have otherwise been entitled to were it not for the discriminatory provisions struck down in McIvor and removed through Bill C-3.

R v Laboucane, 2016 ABCA 176: The Alberta Court of Appeal dismissed a sentencing appeal brought on various grounds, including the ground that the sentencing judge disregarded the 30-page Gladue report provided on Mr. Laboucane, which the sentencing judge found had failed to disclose any meaningful Gladue factors to consider. The Court of Appeal rejected this argument and found that Mr. Laboucane had a “predominately stable and supportive upbringing and background” that did not mitigate his culpability. The Alberta Court of Appeal also went out of its way to criticize the Ontario Court of Appeal’s recent decision in R v Kreko, addressing an Aboriginal offender who was adopted by a non-Aboriginal family, suggesting that it expanded the level of generality in the application of Gladue factors “almost to a level of pure ethnicity”.

R v Chocolate, 2015 NWTSC 28: The Northwest Territories Supreme Court granted judicial interim release to Mr. Chocolate. The Crown in this case argued that Gladue factors are only relevant to the tertiary ground for detention under section 515(10) of the Criminal Code on the basis that Gladue factors are only relevant to questions of sentencing, and do not extend to questions of whether detention is required to ensure the accused attends at trial or whether the public is protected. The Court rejected this argument and found that Gladue factors were relevant to all three grounds for detention.

Robertson v The Queen, 2015 TCC 219: An official English translation of this 2015 decision of the Tax Court of Canada was released this month in which the Tax Court dismissed an appeal from a reassessment. The appellant is a member of the Mashteuiatsh Montagnais Band (Pointe-Bleu) with status under the Indian Act who operates a fur manufacturing and sales business. In disputing an assessment for GST, penalties and interest against his business, Mr. Robertson asserted an Aboriginal right to the fur trade as well as an Aboriginal self-government right in his defence, among other arguments. The Tax Court found that there was no right to engage in the fur trade in the manner that the appellant was engaged in this industry. It recognized the right of the Montagnais to engage in the fur trade but held that this must be limited to the sale of raw furs of trapped animals, noting that raw fur sales were non-taxable. The Tax Court also recognized the Montagnais du Lac Saint-Jean have an Aboriginal right to management of hunting, fishing and trapping territories within their jurisdiction, but held that this right could not give them exclusive authority over taxation of business transactions in their territory “since this would violate Crown sovereignty”. While the Tax Court recognized these Aboriginal rights it held that they were not prima facie violated by the Excise Tax Act.

First Nation of Nacho Nyak Dun v Yukon (SCC file 36779): The First Nation of Nacho Nyak Dun was granted leave to appeal to the Supreme Court of Canada from the Yukon Court of Appeal decision in relation to a dispute over land use planning for the Peel watershed under the terms of modern treaty agreements for the region.

Hughboy v Oujé-Bougoumou Cree Nation, 2016 QCCQ 4544: The Court of Quebec dismissed an application for advance costs in relation to a challenge to the results of a 2015 election for the Oujé-Bougoumou Cree Nation. The Court held that there was prima facie merit to Mr. Hughboy’s case. However, it found there were no special circumstances of public importance in support of making such an exceptional order and that Mr. Hughboy failed to prove that his financial circumstances were such that he could not proceed with his case without such an order being made.

R v McDonald, 2016 NUCA 4: The Nunavut Court of Appeal allowed an appeal from a sentence for Ms. McDonald’s breach of a Conditional Sentence Order (CSO) that resulted in her being sent back to prison. Among other issues, the Court of Appeal held that the sentencing judge had failed to give meaningful consideration to Ms. McDonald’s Gladue factors. The Court held that Gladue factors must be considered in every case involving an Aboriginal offender unless the offender waives this right. The sentencing judge erred in assuming that Gladue factors were adequately addressed into the original CSO and they ought to have been considered afresh at the CSO breach hearing.

Children’s Aid Society of Halton Region v MM, 2016 ONCJ 323: The Ontario Court of Justice released a decision addressing whether three children are “Indian” or “native persons” for the purposes of the Child and Family Services Act. This determination dictates whether the children have access to unique benefits, special treatment and special considerations not otherwise available under the Act. The Court noted that no previous decision in Ontario directly discussed the facts necessary to support a finding that children meet these definitions and therefore set out to provide such an analytical framework, including guiding principles.