In The Matter Of A Hearing Under The Child and Family Services Act, Ss, 2021 SKQB 2

Posted on February 8, 2021 by thp151

It is in the best interests of a First Nations child to stay with the current caregivers who are pursuing an adoption plan. Although it is encouraged that her First Nations paternal grandmother be in contact and included in her upbringing, the grandmother’s custody application is dismissed. The child should not have her living arrangements disrupted, as she is loved and cared for; one caregiver is a member of the First Nation; and there is cultural continuity.

Indigenous Law Centre CaseWatch Blog

T.L., who turned nine years in 2021, was first apprehended in the fall of 2015 by the Ministry of Social Services and then subsequently transferred to the Yorkton Tribal Council Child and Family Services Inc [“YTCCFS”]. Following her apprehension, she began living with her grandfather, M.S. on White Bear First Nations. M.S. had T.L. enrolled at the local playschool and called upon his sisters from time to time to assist with her care. Nevertheless, M.S. had concerns raising her by himself, thereby D.L. and C.Y., her current caregivers, welcomed T.L. as their daughter and do not differentiate between her and their other children. M.S. continues to play an active role in T.L.’s life, and she continues to have frequent visits with her grandfather. YTCCFS now requests a permanent order pursuant to The Child and Family Services Act [“CFSA”] with respect to T.L. with the intent of pursuing an adoption plan with her current caregivers.

A.D. is T.L.’s paternal grandmother. A.D. had no knowledge that T.L. was her granddaughter until her son informed her of the DNA results in the summer of 2018. Upon learning of T.L., A.D. contacted YTCCFS. A.D. was first introduced at D.L.’s and C.Y.’s home. A.D. was aware that YTCCFS supported T.L. remaining with D.L. and C.Y., but she was opposed to that arrangement and that year applied for an order finding her to be a person of sufficient interest, custody and access to T.L. A.D. asks for custody pursuant to The Children’s Law Act, [“CLA”] or, alternatively for T.L. to be placed in her care as a person of sufficient interest pursuant to the CFSA.

As T.L. is First Nations and a member of White Bear First Nations, consideration of her best interests requires thought be given to her cultural, linguistic, religious and spiritual upbringing and heritage, among other things. Regardless of which Act is applied, T.L.’s best interests must be considered. Some of the factors to be considered under the CFSA are similar to those found in the CLA but there are additions (Saskatchewan (Minister of Social Services) v S(EK) (1996), 146 Sask R 46 (QB)). Bill C-92 sets out principles which underly the legislation, including the best interests of the child and cultural continuity. It is required to the extent possible, that these factors be construed in a manner consistent with the law of the Indigenous group. White Bear First Nations “opposes permanent wardship orders and adoption orders involving non-[A]boriginal foster parent(s) when there is a White Bear First Nations band member(s) or other First Nations individual(s) or family member(s) able and willing to care for the child(ren) in question” (White Bear First Nations, Band Council Resolution).

T.L., through her grandfather, M.S., has been exposed to her cultural and spiritual heritage. It was through M.S. that T.L. was introduced to D.L. and C.Y. D.L. and C.Y. are part of M.S.’s family. T.L. developed strong relationships with D.L. and C.Y., whom she now calls “mom and dad”, and her siblings Z.L. and G.L., who reside in the home with her. D.L. is a member of White Bear First Nations, and although his spouse, C.Y. is Caucasian, she encourages T.L. in cultural activities. Her sister, T.H., who she had never met prior to M.S. taking her on a visit in 2017, now resides in D.L.’s and C.Y.’s home with her and have grown close. Bill C-92 specifically speaks to the need for stability. T.L. has had a connection to M.S. her entire life and has maintained that connection though she now lives with D.L. and C.Y. She is settled in their home and enjoys her school and friendships.

It is unfortunate that the parties are in conflict and compelled to speak ill of the other and find fault in the other’s care of T.L. Both A.D. and M.S. are residential school survivors, and both turned to alcohol in early adulthood. Both rediscovered their cultural and spiritual heritage following their commitments to sobriety. Even if they are not up to A.D.’s standards, it is unclear why A.D. as a grandmother and Elder, particularly when she lives minutes away, could not provide additional guidance and input respecting cultural heritage without the necessity of having T.L. live with her. The current care arrangement with D.L., C.Y. and M.S. is in keeping with the tradition of family stepping up to care. A.D. is a blood relative and is also family but until two years ago, she was a stranger.

The relationship most important to T.L. is her relationship with M.S. The parenting plan will secure that relationship. Both D.L. and M.S. are members of White Bear First Nations and an ongoing relationship with the community is therefore ensured. M.S., D.L. and C.Y. will also ensure cultural continuity and expose T.L. to Indigenous culture and heritage. T.L. can only benefit should A.D. choose to supplement that exposure through her own involvement with her granddaughter. YTCCFS was of the view that T.L. could only benefit from relationships with both her maternal and paternal sides of the family. The plan is also consistent with the White Bear First Nations’ band council resolution as T.L. will remain with a member of White Bear First Nations, D.L. YTCCFS should be permitted to pursue the plan as recommended as it will ensure T.L. has the stability she requires and the ongoing love of family. It is in T.L.’s best interests that she be permanently committed to the Ministry with a view to pursuing the adoption by D.L. and C.Y .

RR v Vancouver Aboriginal Child and Family Services Society (No 4), 2020 BCHRT 22

Posted on April 2, 2020 by thp151

West Coast LEAF’s application to intervene granted in part in a complaint of alleged discrimination, as it can contribute a unique and helpful perspective regarding the social context of Indigenous people in child welfare.

Indigenous Law Centre CaseWatch Blog

RR filed a complaint of discrimination against Vancouver Aboriginal Child and Family Services Society [“Society”] alleging that its decision to deny her custody and restrict access to her children amounts to discrimination on the basis of her race, ancestry, color, and mental disability. West Coast LEAF applied to intervene in the complaint under s 22.1 of the Human Rights Code [“Code”] stating it could assist the Tribunal to situate the complaint in its broader social context as well as interpreting both the Code and the Child, Family and Community Services Act in a manner consistent with the Charter and international law. RR supported the intervention, the Society opposed it.

Neither party raised issues related to Charter values, and in the view of the Tribunal, none arose in the complaint. Rather, this case involved an application of s 8 of the Code to the facts of this case, within a framework well known to human rights law and therefore the application to make submissions about Charter values was denied. Second, this complaint did not require the Tribunal to interpret s 8 or apply it in a novel circumstance and therefore that application was denied as well.

A different conclusion was reached for the remaining three proposed submissions. Based on the Tribunal specifically identifying the need to have full regard to the social context of Indigenous people in child welfare, the first two submissions concerned the social context underlying the complaint. West Coast LEAF had a unique and helpful perspective to bring to the Tribunal established through their demonstrable expertise in equality.

The application of West Coast LEAF to intervene was granted as follows: it had leave to make oral submissions during the opening, not to exceed 10 minutes; it had leave to file written submissions at the close of the hearing; the scope of the submissions was limited to the issues identified above; and it did not have standing to take part in any procedural matters before the Tribunal without leave.

CCAS v GH and TV, 2017 ONSC 742

Posted on December 20, 2018 by thp151

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

A mere claim that someone is “Native” is not enough for a court to consider that an Aboriginal child will be at a “disadvantage” when weighing legislative factors in child protection matters. There needs to be more evidence of what is important to the family, the child, and the Aboriginal community the child is said to be a member of.

The Catholic Children’s Aid Society of Hamilton (the Society) sought an order for Crown wardship with no access regarding the child EDV, born […], 2015, who was apprehended at birth. The mother, GH, and the father, TV, were known to the Society since 2012 regarding protection issues with the couple’s older children. After the Society commenced a protection application regarding EDV on May 5, 2015, it decided to pursue a summary judgment motion in relation to that application in February 2016. It is then that the Respondent father, TV, argued that EDV is a Métis child, and that as such, he should be treated in the same manner as children who fall within the definitions of “Indian”, “Native person” and “Native child” under Ontario’s former Child and Family Services Act (CFSA) [the CFSA has since been replaced by the Child, Youth and Family Services Act (CYFSA) as of April 30, 2018]. All parties conceded that Métis children did not fall within the scope of those definitions as they stood at the time of the hearing, and that EDV therefore did not have “Indian” or “Native” status within the meaning of the CFSA.

TV alleged that the definitions of Indigenous identity in the CFSA violated s 15(1) of the Charter of Rights and Freedoms on the basis that they did not extend to Métis children. He sought an order pursuant to section 52(1) of the Constitution Act, 1982 declaring these invalid and a remedy pursuant to section 24(1) of the Charter directing that EDV be treated as if he were an “Indian”, “Native person” or “Native child” for the purposes of these child protection proceedings. The Society did not take a formal position on the CFSA’s identity definitions, and it stated that it had in all material respects treated EDV as if he were “Indian” or “Native”. As well, the CFSA identified the cultural background and ethnicity of all children as an important factor in child protection proceedings, which was apparent from numerous provisions in the Act.

After considering many factors, including Gladue principles, the Court concluded it should not deal with abstract questions, especially in the context of a constitutional question. Absent a more complete record, the s 15 claim could not succeed. This may not have been the result if there were a fuller evidentiary record, but the issue in this case was too theoretical. When considering Gladue principles in sentencing matters, they do not on their own justify a different sentence for Aboriginal offenders, but provide the necessary context for understanding and evaluating the case-specific information presented by counsel. It is difficult to apply the context referred to in R v Gladue and R v Ipeelee to the disposition stage of a child protection hearing. The child protection court is directed to order in the best interests of a child. Taking judicial notice of the historical reasons that may have contributed to an Aboriginal parent’s current circumstances is less likely to be helpful to the child protection judge faced with the decision of whether to return a young child to the parent than it may be to a sentencing judge grappling with whether to order a custodial sentence and, if so, its duration.

As for the issue of EDV’s “Native” status, it was noted that the Métis Ontario coordinator of their Healthy Babies Healthy Children Program contacted the Catholic Children’s Aid Society in 2012. The representative told them that TV had self-reported that he was a member of the Métis Eastern Woodlands of Nova Scotia, and as a result of that self-report, she was working with this family. However, no one pursued the issue until 2016 when the matter came up for summary judgment before Justice Chappel, where the parties consented to a finding that the child was Métis. There were extensive efforts to serve and seek out the involvement of the Eastern Woodlands Métis of Nova Scotia. However, the response was that they were not going to participate, they did not have any placement options, and that they were supporting the plan of the Catholic Children’s Aid Society to have the child EDV adopted. Justice Chappel ordered that the child EDV be considered “Native” for the purposes of this and any other child protection application.

The Society made every effort to see if other Métis communities would participate in the litigation or provide the family with a placement option. No one came forward. TV never followed up on any suggestions given for obtaining assistance for his many issues. He did not describe his family background at all, or give any testimony about his Aboriginal background or any connections that he had or has in a Métis community other than his relatively brief contact with the Métis Ontario Healthy Babies Healthy Children Program. The Court stated that it had compassion toward and recognition of the importance of “Native” heritage and families but this special status does not equate to a blanket exemption from legislation carefully crafted to protect vulnerable and often damaged children. The paramount purpose of the CFSA is to promote the best interests, protection, and well-being of children. Where a person is directed in the Act to make an order or determination in the best interest of a child and the child is an “Indian” or “Native person”, the person shall take into consideration the importance, in recognition of the uniqueness of “Indian” and “Native” culture, heritage and traditions, presevering the child’s cultural identity.

In SB and BRM v Children’s Aid Society of Algoma and Mississauga First Nation, the Court addressed an appeal from an order for Crown wardship without access to the parents. The position of the Band was that access should continue so as to maintain the child’s connection to her Aboriginal community and to avoid the long-term consequences of cultural dislocation and estrangement from her roots, including from her siblings who resided on the reserve. However, there must be evidence of the nature of the involvement of the child’s family in the “Native” community which is lacking in this case. The mere claim that someone is “Native” does not allow the Court to consider the relevant factors within the legislative scheme, without some evidence of what is important to the family, the child, and the Aboriginal community the child is said to be a member of.

The Court decided that it was in the best interest of EDV to be made a Crown ward with no access, the Society was directed to make every effort to ensure that any foster parent and/or adoptive placement was willing to educate the child on his Aboriginal heritage and culture, to expose the child to this culture on an age-appropriate basis and provide the child with knowledge of any governmental benefits available to the child as a result of his “Native” status.

Children’s Aid Society of the Regional Municipality of Waterloo v CT, 2017 ONCA 931

Posted on December 14, 2018 by thp151

Self-identification of Indigenous ancestry submitted at the appeal level of court, does not alone constitute as fresh evidence to overturn a trial decision when there has been no error of law. Trial decision of no access for a Crown ward restored.

This is the second appeal from a trial decision involving a 10-year-old girl that was made a Crown ward with no access for the purpose of adoption. The biological parents appealed the no access order. The first appeal judge concluded that, although the trial judge did not err, the parents should have access. He outlined what he considered to be: a miscarriage of justice; the trial judge’s interference, bias and abuse of the trial process; procedural delay; and the incompetence of trial counsel. He invited costs submissions personally against trial counsel for the parents. This appeal restores the trial judge’s order of no access; dismisses the parents’ cross-appeal; and allows the cross-appeal of counsel on ineffective assistance and the consequent costs order.

After the initial trial, the parents filed affidavits that declared for the first time that the father was Cree and the mother was Mi’kmaq. The reasons from the first appeal judge are a scathing review of Ontario’s child welfare system and an apology to the parents for the manner in which they were “treated, ignored, demeaned and disbelieved.” He considered fresh evidence, including an affidavit which indicated that the child loves her parents, wanted to see her parents, but also wanted to be adopted by the proposed adoptive parent. By this time, the child had been with the proposed adoptive parent for almost two years and was flourishing.

The test for fresh evidence in a child protection matter is more flexible than in other types of cases. Statutory requirements for access to a Crown ward according to the Child and Family Services Act (the Act), however, puts the onus on the parents who seek access to present evidence that satisfies the test in CAS Hamilton v CG. First, the relationship between the person and the child must be beneficial and meaningful to the child, as opposed to the person seeking access. Second, the access must not impair the child’s opportunities for adoption. There was uncontroverted evidence that the adoptive mother would not adopt if there was contact with the parents, which would then make the access order statutorily impossible. The first appeal judge nonetheless ordered access and erred in doing so. Simply put, when a Crown wardship order is granted with access, the parental relationship with the child is preserved. When a Crown ward is sought to be placed for adoption, the goal is permanency and the success of the adoption.

The parents submitted on the first appeal, and before this court, that a child’s Indigenous heritage introduces different considerations into the access analysis. There is potential harm to Indigenous children if adopted by non-Indigenous families, as they often experience challenges, risks, and vulnerabilities that other children adopted across cultural and racial boundaries do not have. The parents argued that if they do not have access to the child, she is likely to suffer from a lack of connection to her Indigenous culture, heritage and community. Courts recognize the pervasive effects of the historical and continuing harms to First Nations families. This does not, however, automatically exempt Indigenous children from the access provisions for Crown wards under the Act.

A parallel can be drawn with the court’s approach to the sentencing of Indigenous offenders. In R v Ipeelee, the Supreme Court describes the proper approach where courts must take judicial notice of such matters as the history of colonialism, displacement, residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders but provide the necessary context for understanding and evaluating the case-specific information presented by counsel. While Gladue principles do not directly apply to access to a Crown ward, the Supreme Court’s comments about context and the need for case-specific evidence are instructive.

The first appeal judge made no mention that the parents or the child were in any way involved in an Indigenous community or its culture. There is no evidence that the parents had any connection to their culture, that the child was ever exposed to the Indigenous culture, or that anyone from the Indigenous community had ever been involved with the parents or the child. Because of this, the second appeal judge found that there was no evidentiary record in this case to balance the importance of the uniqueness or preservation of the Aboriginal heritage of the child when considering the other factors set out in the CFSA.

Although the second appeal judge recognized that Indigenous membership has expanded to include self- identification, there still must be evidence in relation to the child so a determination can be made as to whether access is beneficial and meaningful to her. The first appeal judge erred by ordering access based on nothing but the parents’ self-identification with Indigenous heritage in the absence of any evidence on this issue specific to this child.

Case Watch for November 2016

Posted on December 6, 2016 by thp151

FROM OUR PUBLICATIONS DESK

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

Equality rights of Métis children & families in child protection –

Catholic Children’s Aid Society of Hamilton v GH, 2016 ONSC 6287: The Ontario Superior Court of Justice released a decision in a Crown wardship application where it was found that the definitions of “Indian”, “Native person”, and “Native child” in Ontario’s Child and Family Services Act were invalid on the basis that they unjustifiably infringe s 15 of the Charter. The Court found that the impugned definitions do not extend to all individuals who self-identify as being Aboriginal. In fact, all parties conceded that they do not extend to Métis children. The Court also found that the Act afforded significant special protections for individuals falling into these definitions at every stage of a child protection intervention. The Court recognized that all Aboriginal peoples, including Métis, have been subject to a legacy of prejudice, stereotyping, and disadvantage. With this context in mind, the Court determined that the definitions created distinctions based on the analogous ground of “Aboriginality without membership in a community designated as “Native” under the [Act]”. It also concluded that these distinctions created or perpetuated disadvantage for Métis children and their families due to their inability to access the special protections under the Act. In conducting this analysis, the Court noted that the Act clearly created these unfair and objectionable disadvantages on its face and this could be discerned through logical reasoning alone. There was no need for social science evidence and empirical data. As no s 1 argument was advanced, the infringement was not saved. A suspended declaration of invalidity was issued and it was ordered that the Métis child in this case be treated as if he were an Indian, Native person or Native child within the meaning of the Act.

Inadequate investigation of vote-buying allegations by INAC –

Good v Canada (Attorney General), 2016 FC 1272: The Federal Court released a decision allowing in part an application for judicial review of INAC’s dismissal of an election appeal under the Indian Act. The applicant first unsuccessfully sought to appeal the March 2014 election of the Red Pheasant First Nation through INAC based on allegations of misconduct by the electoral officer and corruption in the form of vote-buying. She then sought judicial review of INAC’s rejection of that appeal. However, a subsequent election had since taken place in March 2016. The Court found that INAC’s delegate erred by choosing to dispense with any investigation of the applicant’s vote-buying allegations and proceeding to dismiss the appeal on the basis that corruption had not been proven on a balance of probabilities. The Court noted that this approach appears to have become settled practice within INAC’s Elections Unit. While the Court was sympathetic to INAC’s desire to streamline its management of appeals, it had significantly changed the very nature of the appeals process in a manner tantamount to attempting to amend the law via internal policy. The Court took no issue with how the delegate addressed the issue of electoral officer misconduct, but found that the delegate’s refusal to investigate conflicting evidence on vote-buying was unreasonable, based upon an error of law and procedurally unfair. While these issues were moot due to the subsequent election, the Court exercised its discretion to deal with the central controversy between the parties as roughly 40% of First Nations hold elections under the regime at issue in this case.

Relevance of Aboriginal equity stake to remedy in consultation case –

Michipicoten First Nation v Ontario (Minister of Natural Resources and Forests), 2016 ONSC 6899: The Ontario Superior Court of Justice dismissed an application for judicial review of provincial approvals for the Bow Lake Wind Farm Project on the shared traditional territory of the Michipicoten and Batchewana First Nations in northeastern Ontario. Michipicoten argued that the Crown breached its duty to consult and sought to quash the approvals, preclude further approvals until more consultation takes place, and have the court remain seized of remedies or order removal of the infrastructure, remediation of the lands, and costs. The Court noted that Michipicoten had inexplicably delayed several months in pursuing and perfecting its application for judicial review, which caused the proponent and Batchewana, which has a 50% interest in the project, serious harm. For this reason, the Court dismissed the application on its own motion. In the alternative, the Court went on to conclude that consultation was adequate as Michipicoten failed to provide any evidence of potential adverse impacts on its Aboriginal or treaty rights in spite of many requests to do so. Furthermore, the Court concluded that the remedy sought in terms of decommissioning the project was inappropriate. Michipicoten argued that a proponent’s commercial interests may not come into play in determining the balance of convenience in a consultation dispute between the Crown and an Aboriginal community. However, the Court found this principle inapplicable in this case since Batchewana would face irreparable harm if the relief sought was granted.

Validity of a Will under the Indian Act not providing for spouse –

Poitras v Khan, 2016 SKQB 346: The Saskatchewan Court of Queen’s Bench allowed an application for letters probate under a Will created pursuant the Indian Act. The testator met the man who became her husband and married him after she had already made her Will. Under provincial legislation, the testator’s spousal relationship would have automatically revoked her Will. However, the testator was a status Indian living on reserve and there was no such provision under the Indian Act to invalidate her Will automatically. Under the Indian Act, the Minister had the power to declare the Will void if it imposed hardship on persons to whom the testator had responsibility or was contrary to the interests of the band or the public. In this case, the Minister had referred the matter to the Court, conferring its power to declare the Will void on the Court. The testator’s husband, Mr. Khan, sought to invoke this power on the basis that he was not provided for in the Will. The Court confirmed the validity of the Will, but also noted that Mr. Khan could still potentially seek a claim for one half of the testator’s family property accrued from the date of marriage until death under provincial legislation.

Canadian Human Rights Tribunal’s jurisdictional limits re: Indian Act –

Beattie v Canada (Attorney General), 2016 FC 1328: The Federal Court dismissed an application for judicial review of a decision of the Canadian Human Rights Tribunal where a complaint was dismissed as being solely a challenge to legislation beyond the Tribunal’s jurisdiction. The applicant, Mr. Beattie, sought to register two leases and an assignment of lease in the Indian Lands Registry. The Registrar rejected the applications on the basis that the leases did not include the Crown as a party and no ministerial approval had been provided. Since the leases could not be registered, the assignment could not be registered either. As a result of this decision, the applicants brought a complaint to the Tribunal alleging that the respondent had discriminated against them on the basis of their race, national or ethnic origin by denying a service customarily available to the public. The Tribunal dismissed the complaints on the basis that they were beyond its jurisdiction since they were challenging the Indian Act itself, which obliged the Registrar to reject the leases and assignment. The Court was satisfied that the Tribunal’s decision was reasonable and it was reasonable to rely on other Federal Court and Tribunal decisions where such challenges to legislation were dismissed as beyond the Tribunal’s jurisdiction. The Court also rejected the applicants’ assertion that title to the reserve lands at issue in this dispute were vested in an individual pursuant to either a Certificate of Possession or customary tenure.

Court’s duty to explicitly consider & inquire into Gladue factors –

R v Park, 2016 MBCA 107: The Manitoba Court of Appeal allowed an appeal from sentence for impaired driving and drug possession due in part to the sentencing judge’s failure to adequately consider Gladue factors. It was conceded that defence counsel during the sentencing hearing did not address Gladue factors other than to note that the accused was Aboriginal. No Gladue report was ordered. The Crown argued that defence counsel expressly waived the Gladue rights of the accused whereas counsel for the accused on appeal argued that the Court had a duty to make further inquiry when no advocacy was provided on Gladue factors during sentencing. The Court of Appeal found there was no express waiver in this case. Defence counsel at sentencing acknowledged there were Gladue factors but focused on other arguments. A waiver must be express and clear. Both defence and Crown counsel have an obligation to bring forward Gladue information. Where that does not happen, the Court may need to go further and has a duty to at least make further inquiries. The Court must also make explicit its consideration of Gladue factors and its determination that it has adequate information on those factors before it. It is unsatisfactory for both the offender and the public to have to infer such circumstances were properly considered. The sentencing judge failed to expressly confirm that Gladue factors were considered and failed to clarify defence’s reliance on Gladue, which in turn had an impact on the sentence. The sentence was varied.

No need for ‘linkage’ between Gladue factors & offence –

R v Predham, 2016 ABCA 371: The Alberta Court of Appeal allowed an appeal from sentence with respect to convictions for driving while disqualified, breach of recognizance, failure to appear and possession of a stolen licence plate. The appellant argued that the sentencing judge erred in failing to give appropriate weight to his Gladue factors, among other things. In particular, the appellant took issue with the sentencing judge’s reasons where it was suggested that Gladue factors were less relevant to the offence of driving while disqualified in the absence of alcohol, drugs or violence. The sentencing judge stated that there must be “some relationship between the Gladue factors and the offending in order for there to be that sort of linkage”. The Court of Appeal held that it was an error of law to require a linkage between Gladue factors and the offending conduct. The Court stated that it is also an error to carve out a certain category of offences as being immune from the Gladue analysis. The Court was also satisfied that the sentencing judge’s error influenced his ultimate decision. The sentence was varied.

Injunction against Cleveland baseball team’s name & logo denied –

Cardinal v Major League Baseball, 2016 ONSC 6929: The Ontario Superior Court issued its reasons for dismissing an urgent interim injunction application to restrain the Cleveland baseball team, Rogers Communications, and Major League Baseball (MLB) from displaying the team’s name or logo during a game in Toronto and while the underlying federal and provincial human rights complaints proceed. In the underlying complaints, the applicant, Douglas J. Cardinal, is alleging that the use of the team’s name and logo constitutes prohibited discrimination and harassment against him on the grounds of race, ancestry, colour, ethnic and national origins, and constitutes a publication or display intended to incite infringement of the Ontario Human Rights Code. The Court held that it had jurisdiction over the application, rejecting MLB’s argument that it ought to allow the United States Supreme Court to determine the underlying issues in this case based on principles of comity. The Court was also satisfied that the parties raised serious issues to be tried in terms of whether a service had been offered and whether the team’s name and/or logo offend the provisions of federal and Ontario human rights legislation, as well as the relevance of MLB’s freedom of expression to the dispute. However, the Court did not accept the applicant’s assertion that he would sustain irreparable harm if an injunction was not granted, noting that damages were available and disputes over use of the impugned name and logo have been ongoing for years. The Court noted that the applicant sought a change to the status quo and his last minute application, if granted, would materially prejudice the respondents. The issue of delay went to both the question or irreparable harm and the balance of convenience.

Settlement approved in Newfoundland & Labrador school claims –

Anderson v Canada (Attorney General), 2016 NLTD(G) 179: The Newfoundland and Labrador Supreme Court approved the terms of a $50 million settlement in a class action brought by Aboriginal individuals who attended schools, dormitories or orphanages in the province between 1949 and 1980. The plaintiffs claimed that Canada breached a fiduciary duty to the students who attended these facilities to protect them from actionable physical or mental harm. The Court was satisfied that the settlement was fair, reasonable, made in good faith, and in the best interests of the class as a whole. It was also satisfied that the fees and disbursements of the plaintiffs’ counsel were fair and reasonable. The settlement includes both General Compensation Payments for years that students resided at the facilities at issue, and Abuse Compensation Payments that depend on the harm individual students suffered. The settlement provides for a confidential paper-based claims process and Canada is committed to funding mutually agreeable commemoration and healing initiatives over and above its compensation funding.

Tax Court’s exclusive jurisdiction over tax assessment challenges –

Horseman v Canada, 2016 FCA 252: The Federal Court of Appeal dismissed an appeal from a decision to strike the appellant’s claims as falling under the exclusive jurisdiction of the Tax Court of Canada. The appellant received a Notice of Assessment and Requirement to Pay $59,000.06 of outstanding GST. He initiated this Federal Court action for a declaration that the Requirement to Pay is null and void and contrary to the Indian Act, Treaty No. 8, and s 35 of the Constitution Act, 1982. The Court found that this challenge was properly characterized as an indirect challenge to a tax assessment, making it plain and obvious that the Tax Court had exclusive jurisdiction. The Tax Court has jurisdiction to consider the constitutional validity, applicability or operability of federal legislation and regulations and can issue remedies if a notice of constitutional question is properly served. It is also well-established that the Tax Court can determine claims under s 87 of the Indian Act over the applicability of tax requirements, or involving tax exemption claims under Treaty No. 8. Such assertions are properly tested in the Tax Court.

Provincial human rights tribunal’s jurisdictional limits re band store –

Dinsmore v Slenyah Store, 2016 BCHRT 176: The British Columbia Human Rights Tribunal dismissed a human rights complaint alleging discrimination in the area of employment on the basis of colour or race with respect to a business in Fraser Lake, British Columbia known as the Slenyah Store. The business was operated by the Stellat’en First Nation up until April 2014. The majority of its customers are status Indians who are able to purchase gas and cigarettes at tax exempt rates there. In 2013, the store was in serious financial difficulty. It was kept afloat via overdraft protection from Stellat’en and Stellat’en paid the store’s back taxes to get it out of its financial difficulties. In 2014, the store was incorporated to be operated at arm’s length through a limited partnership. As a result of these changes, all the store’s employees were laid off by Stellat’en and encouraged to reapply for positions with the limited partnership that would operate the store going forward. The Tribunal found that while the store was operated by Stellat’en it was an integral part of the First Nation’s overall governance and operations. Its purpose was to permit members to avail themselves of their tax-free status, it was financially integrated with the First Nation, its employees were employees of the First Nation, and its operations were continuously concerned with the status, rights and privileges of Stellat’en’s members. As a result, the store fell under federal jurisdiction and outside the Tribunal’s jurisdiction while it was operated by Stellat’en. While operated at arm’s length through a limited partnership, however, the store was a provincial undertaking subject to the Tribunal’s jurisdiction. The Tribunal went on to dismiss the complaint against both entities on the ground that it had no reasonable prospect of success if it were to proceed on its merits.

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This Case Watch blog post has been brought to you by the Native Law Centre in partnership with Pro Bono Students Canada – University of Saskatchewan

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.