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.

Indigenous Law Centre CaseWatch Blog

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.

Solomon v Garden River First Nation, 2019 FC 1505

Posted on February 28, 2020 by thp151

Judicial review granted. There was a breach of procedural fairness in the process followed by the Chief and Council that led to the Applicants being banished from Garden River First Nation. The matter is remitted for reconsideration.

Indigenous Law Centre – CaseWatch Blog

The Chief and Council of Garden River First Nation [“GRFN”] issued a series of Band Council Resolutions [“BCRs”] banning Kody John William Solomon and Ralph Justin Romano [“the Applicants”] from GRFN territory. On this application, the Applicants seek judicial review of these BCRs and the process undertaken by the Chief and Council.

GRFN is governed by an elected Chief and Council who are responsible for the governance of the Nation and its approximately 3,000 members. One of the applicants have resided there his whole life, another non-member has lived on GRFN for 19 years with his member spouse and teenage daughter. The Applicants were banished as they had been charged with offences under the Controlled Drugs and Substances Act, and that “illegal drugs have caused great harm to Garden River and its members,” and “allowing [the Applicants] to remain in Garden River may cause harm to Garden River and its members or endanger public safety.”

There is no dispute that the initial 2018 BCRs were issued by GRFN’s Chief and Council without the opportunity for any input from the Applicants, nor did they have notice. The right to a fair hearing requires that the Applicants have adequate notice of the case against them and sufficient opportunity to respond before a decision adverse to their interests was made (Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9). Given the serious consequences of the banishment decisions, the degree of procedural fairness owned to the Applicants is heightened.

It appears GRFN’s Council itself recognized flaws in the process undertaken. By-Law 20 was adopted subsequently after the BCRs in 2018. The major differences from By-Law 13 are that it allows the Band Council to banish members of GRFN and persons deemed to be threats to the peace and safety of the Band or other people lawfully on the reserve. By-Law 20 provides a process that is clearly tailored to address the particular circumstances of the Applicants, a member and a non-member of GRFN who were charged with a criminal offence. However, there was still no reconsideration of the original decision to banish the Applicants in the BCRs issued in 2019. Rather it appears the GRFN Council simply passed the new By-Law and considered it to have rectified any issues with the previous BCRs from 2018.

The case law is clear that issues of procedural fairness are considered on a correctness standard (Canadian Pacific Railway Company v Canada (AG), 2018 FCA 69). The test for assessing if the process was fair, is to ask whether a right-minded person, applying themselves to the question and obtaining the required information, would think it is more likely than not that the decision-maker did not decide fairly (Baker v Canada (Minister of Citizenship and Immigration), 1999 SCC 699 [“Baker”]). The factors outlined in Baker for assessing procedural fairness include: 1) the nature of the decision and the process followed in making it; the nature of the statutory scheme; 2) the importance of the decision to the individuals affected; 3) the legitimate expectations of the person challenging the decision; and 4) the choice of procedure made by the agency itself.

Considering that By-Law 20 appears to have been crafted to address the specific circumstances of the Applicants, they had a legitimate expectation that the process laid out in By-Law 20 would be followed. When the Baker factors are considered in conjunction with the reasonable apprehension of bias, it is clear that there was a breach of the Applicants’ right to procedural fairness. The evidence demonstrates a continuing course of conduct on the part of GRFN’s Council who never undertook the promised reconsideration of the original banishment decision. The 2019 BCRs were simply a reissue of the original 2018 banishments under the new By-Law. The decision-making process that led to the Council’s 2019 decision was procedurally unfair because the Council made up its mind in 2018. From that point, GRFN Council defended its original decision rather than engage in a true reconsideration.

Conseil des Atikamekw d’Opitciwan c Weizineau, 2018 QCCS 4170

Posted on December 6, 2018 by thp151

Wiyasiwewin Mikiwahp Native Law Centre

Judicial authorization granted to banish a defendant from the Opitciwan First Nation in accordance with a Band Council by-law.

The Opitciwan First Nation is an Aboriginal people of Canada who benefit from the rights arising from s. 35 of the Constitution Act, 1982, including the right to self-government. Under this principle of self-government and in accordance with the power conferred by s. 81 of the Indian Act, the Band Council adopted a by-law “respecting the expulsion of persons found guilty of trafficking certain drugs and other substances”, that allows the Band to banish any person found guilty of such offences by a court from their reserve for a period of sixty months. This by-law came into effect on January 1, 2017.

The defendant was found guilty of trafficking narcotics on March 22, 2017, by the Court of Quebec. On August 1, 2017, the Band Council adopted a resolution in accordance with the above by-law to expel her from the community until March 22, 2022. Despite the various attempts to apply the by-law and resulting resolution, the plaintiff ignored these requests by hiding in private homes in the Opitciwan community. Consequently, the Band Council has failed to expel her.

The Court ordered the defendant to leave the borders of the Opitciwan Indian Reserve and to remain outside these borders until such time as sanctioned by the Band Council. Any peace officer or bailiff is authorized to assist the plaintiff in the execution of this judgment, the whole at the plaintiff’s mere verbal request and regardless of the premises in which the defendant is to be found, such that they may be entered and the defendant escorted to the border of the Opitciwan Indian Reserve. As well, the Court acknowledges the plaintiff’s undertaking to execute the expulsion measures in such a way that the defendant will not be left alone or without support at the borders of the Opitciwan Indian Reserve.