Penosway c R, 2019 QCCS 4016

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

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

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

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

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

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

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

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

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

West Moberly First Nations v BC, 2020 BCSC 1665

With a few exceptions, the Court declined to compel the parties to provide further responses to demands for particulars in West Moberly’s lawsuit challenging the Site C hydro project. Most of their points of contention with respect to the pleadings should be addressed through discovery. 

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The plaintiffs, West Moberly First Nations and Roland Willson on his own behalf and on behalf of all other members of West Moberly First Nations who are beneficiaries of Treaty 8 [collectively “West Moberly”] seek, among other things, to prohibit the defendant, the British Columbia Hydro and Power Authority, from building a hydroelectric dam and related facilities along the Peace River in northeastern British Columbia, known as the Site C project [“Project”] on the grounds, among others, that the Project infringes their rights under Treaty 8 (West Moberly First Nations v British Columbia, 2018 BCSC 1835).

The parties have been directed to develop a case management plan that would see the trial completed ahead of reservoir inundation, which was then scheduled for fall 2023. In this matter, out of the most recent round of amendments to the pleadings, there are six separate applications under the Supreme Court Civil Rules by which each of the parties seeks further and better particulars of their opponents’ pleadings [“Amended Notice of Civil Claim” or “NOCC”].

The Amended NOCC advances, among other things, new allegations as to the nature of the infringement of Treaty 8 that is alleged; breaches of various duties alleged to be owed by the defendants under the Canadian Charter of Rights and Freedoms and the United Nations Declaration on the Rights of Indigenous Peoples. The Amended NOCC also advances new private law causes of action based on alleged breaches of fiduciary duty, trespass, nuisance, riparian rights, unjust enrichment, waiver of tort and the tort of conspiracy. The subject matter of the claim has been expanded to include all development activities in West Moberly’s traditional territory, including the previous dams built along the Peace River. The amendments have also expanded the scope of the remedial relief sought, so that West Moberly now seeks, in addition to a prohibitive injunction permanently halting the project, a mandatory injunction to restore the land to its former state and damages, including disgorgement of all revenues that the defendants have received from the operation of the dams from their inception.

Although the parties agree on the general principles of law that must inform the Court’s analysis, they disagree on their application to the many contentious demands that are in issue. They join issue in many cases on the question of whether the applicant party is seeking particularisation of the facts that the pleading party intends to prove at trial, as opposed to the evidence that will be called to prove them. The Court refuses to compel the parties to provide further responses to the outstanding demands for particulars, with a few exceptions, due to that what is sought is evidence that is more properly explored through discovery.

Houle v Swan River First Nation, 2020 CanLII 88240 (FC)

The Court ordered that two consolidated applications for judicial review in relation to an election dispute will be treated as an action. The Applicants seek a declaration that the First Nation’s customary election regulations are contrary to section 15 of the Charter and the Defendants plan to bring a defence based on sections 1 and 25 of the Charter, as well as section 35 of the Constitution Act, 1982. As the Charter argument is being raised for the first time on judicial review and section 35 rights can only be determined at trial, the matter will proceed as an action. 

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Swan River First Nation [“SRFN”] and the Swan River First Nation Chief and Council [“Respondents”], have brought a motion under the Federal Courts Rules [“Rules”] for an Order pursuant to the Federal Courts Act directing that two consolidated applications for judicial review [“Applications”] be treated and proceeded with as an action.

Shawna Jean and Robert Houle [“Applicants”] in the underlying Applications, are seeking an Order to set aside the decision of the Electoral Officer of the SRFN that refused to accept their nominations as Chief and Councillor of the SRFN respectively in the 2019 General Election. The Applicants had not been residing on the SRFN Reserve for at least one year prior to May 3, 2019 in accordance with section 9.1(a)(2) of the Swan River First Nation Customary Election Regulations [“Election Regulations”]. Additionally, they seek declarations that they are eligible to run as candidates for the position of Chief and Councillor in the 2019 General Election, and that section 9.1(a)(2) of the Election Regulations contravenes section 15 of the Canadian Charter of Rights and Freedoms [“Charter”]. They contend that the impugned provision discriminates on the basis of Aboriginal residency and is therefore unconstitutional and is of no force or effect.

The Respondents intend to defend the Applications on the basis of sections 1 and 25 of the Charter and s 35 of the Constitution Act, 1982 in accordance with their asserted Aboriginal and Treaty rights. They argue that the procedures of an action are required to have a fair and just determination of the particular Aboriginal and Treaty rights defences being advanced and that the unique nature of these particular Applications is such that the rationales in support of the speedy judicial review process are not applicable.

The Applicants oppose the Respondents’ motion to have the Applications be treated and proceeded with as an action. They argue that the Respondents’ request to convert is premature because the Court has yet to determine whether there is a section 15 Charter violation. The Applicants also dispute the Respondents’ view of the customs, practices, traditions and history of the SRFN. According to the Applicants, the restriction of residency was not a traditional practice of the SRFN or its predecessor, the KEE NOO SHAY OOs’ Band, prior to Treaty No. 8, but rather the result of misinterpretation of Treaty No. 8 by government officials. The Applicants say that the judicial review procedure contains adequate mechanisms for the Respondents to outline their claim to Aboriginal and Treaty rights.

Section 18.4(2) of the Federal Courts Act vests the Court with the discretionary authority to order the conversion of an application for judicial review into an action “if it considers it appropriate” (Canada (AG) v Lafrenière, 2018 FCA 151). This Court has previously found that applications for judicial review that raise issues of proof of Aboriginal rights can only be determined by way of an action (Soowahlie Indian Band v Canada (Attorney General), 2001 CanLII 22168 (FC)). In this matter, the procedures of a judicial review application do not provide sufficient procedural safeguards to ensure fairness to the parties on the Applications, nor do they enable the Court to make a proper determination of the issues of Aboriginal and Treaty rights before the Court in this proceeding, thereby this Court concludes that the Applications shall be treated and proceeded with as an action.

La Rose v Canada, 2020 FC 1008

The Court granted Canada’s motion to strike the Plaintiffs’ Statement of Claim without leave to amend. The Plaintiffs are children and youth from across Canada who allege Canada is contributing to greenhouse gas emissions that are incompatible with a stable climate system, posing a particular threat to Indigenous peoples. The Plaintiffs pleaded causes of action under ss 7 and 15 of the Charter were found not to be justiciable. A separate cause of action based on the public trust doctrine was rejected as it does not form part of Canadian law. 

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The Plaintiffs are fifteen children and youth from across Canada. Although their locations and particular circumstances vary, the Plaintiffs collectively describe that climate change has negatively impacted their physical, mental and social health and well-being. They allege it has further threatened their homes, cultural heritage and their hopes and aspirations for the future. As children and youth, they claim a particular vulnerability to climate change, owed to their stage of development, increased exposure risk and overall susceptibility.

The Plaintiffs’ Statement of Claim is particularly focused on the contribution of greenhouse gases [“GHGs”] to climate change, discussing the link between the cumulative impacts of GHGs and changes occurring in the environment. The Statement of Claim lists alleged harm by the Defendants that includes: continuing to cause, contribute to and allow a level of GHG emissions incompatible with a Stable Climate System; adopting GHG emission targets that are inconsistent with the best available science about what is necessary to avoid dangerous climate change and restore a Stable Climate System; failing to meet the Defendants’ own GHG emission targets; and actively participating in and supporting the development, expansion and operation of industries and activities involving fossil fuels that emit a level of GHGs incompatible with a Stable Climate System [“Impugned Conduct”]. The Plaintiffs claim various forms of relief as the impacts of climate change that are described are wide ranging, significant and felt across Canada.

The test on a motion to strike is whether it is plain and obvious that the pleadings disclose no reasonable cause of action, or that the claim has no reasonable prospect of success (Hunt v Carey Canada Inc, [1990] 2 SCR 959; R v Imperial Tobacco Canada Ltd, 2011 SCC 42 [“Imperial Tobacco”]). The threshold to strike a claim is high and the matter must proceed to trial where a reasonable prospect of success exists.

The material facts pleaded in the Statement of Claim must be taken as true, unless the allegations are based on assumption and speculation (Operation Dismantle v The Queen, [1985] 1 SCR 441 [“Operation Dismantle”]). It is incumbent on the Plaintiffs to clearly plead the facts in sufficient detail to support the claims and the relief sought. The material facts form the basis upon which to evaluate the possibility of the success of the claim (Imperial Tobacco; Mancuso v Canada (National Health and Welfare), 2015 FCA 227). Further, the pleadings must be read as generously as possible, erring on the side of permitting a novel but arguable claim to proceed to trial (Imperial Tobacco ; Atlantic Lottery v Corp Inc v Babstock, 2020 SCC 19 [“Atlantic Lottery”]).

The presence of a Charter claim alone does not prevent the Court from considering the motion to strike (Operation Dismantle; Tanudjaja v Canada (Attorney General), 2014 ONCA 852). It is clear that a Court can hear and decide novel questions of law on a motion to strike. A claim should not survive a motion to strike based on novelty alone. Disposing of novel claims that are doomed to fail is critical to the viability of civil justice and public access (Atlantic Lottery). The Court is not convinced that it is required to allow the Charter claims to survive the motion to strike simply because they are new Charter claims. Both Charter claims, under ss 7 and 15 of the Charter, are not justiciable.

The Plaintiffs’ position fails on the basis that there are some questions that are so political that the Courts are incapable or unsuited to deal with them. The finding on justiciability is supported both by the undue breadth and diffuse nature of the Impugned Conduct and the inappropriate remedies sought by the Plaintiffs. As well, the Plaintiffs’ Statement of Claim have not pleaded material facts to support the public trust doctrine as an unwritten constitutional principle, outside its allegation that this is in fact the case. The failure to offer any material facts which, taken to be true, would support this finding in their Statement of Claim, is fatal to the proposed cause of action (Reference re Succession of Quebec, [1998] 2 SCR 217). It is plain and obvious that the claims related to the public trust doctrine fail to disclose a reasonable cause of action.

The Defendants’ motion to strike the Plaintiffs’ Statement of Claim is granted without leave to amend. The Charter claims, under s 7 and s 15, are not justiciable and otherwise disclose no reasonable cause of action. The public trust doctrine, while justiciable, does not disclose a reasonable cause of action.

Laforme v Law Society of Ontario, 2020 ONLSTH 112

Ontario’s Law Society Tribunal – Hearing Division granted Retired Justice Harry Laforme permission to appear as counsel in two class proceedings against Canada regarding drinking water advisories based on exceptional circumstances, including the enhancement of the administration of justice by allowing him to assist Indigenous communities with these specific proceedings. 

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The Honourable Harry S. LaForme [“Licensee”] is a retired judge of the Ontario Court of Appeal. He has applied for permission to appear as counsel before the Federal Court of Canada and the Manitoba Court of Queen’s Bench on two specific matters relating to access to clean drinking water on First Nation reserves.

The test for approval required by Rule 7.7-1.2 of the Rules of Professional Conduct [“Rules”] is onerous. The Licensee must establish that “exceptional circumstances” exist to grant approval and the hearing panel must also determine whether any restrictions should apply to the Licensee’s appearance as counsel.

The Licensee is Anishinabe of the Eagle Clan of the Mississaugas of the Credit First Nation in southern Ontario. In 1994, the Licensee was appointed a judge of the Ontario Court of Justice (General Division), which is now the Superior Court of Justice. He was one of the first Indigenous judges appointed to this level of trial court in Ontario, and only one of three in Canada.

OKT and McCarthy Tétrault LLP [“McCarthys”] are jointly representing three First Nations in their class actions against Canada regarding drinking water advisories on First Nation reserves across the country, alleging breaches of the Canadian Charter of Rights and Freedoms rights of security of the person and equality, as well as the Crown’s fiduciary duties to First Nations for failure to provide clean drinking water on reserves. The actions seek to compel Canada to provide compensation and safe drinking water on reserves.

OKT has been jointly retained with McCarthy’s to act as class counsel in these proceedings and represents Curve Lake First Nation, Neskantaga First Nation, and Tataskweyak Cree Nation to prosecute the class action, including certification and a common issues trial. The Licensee is requesting to appear as counsel throughout both proceedings. All three First Nations want the Licensee to appear as one of their counsel along with other members of the McCarthy’s and OKT teams. None of the other members of those teams has the combined personal experience of living on reserve and the extensive professional experience working with First Nations that the Licensee possesses.

Canada, the sole defendant in both the Tataskweyak and Curve Lake Actions, does not oppose this application and will abide by the Tribunal’s decision. The Law Society consented to the Licensee’s application and together with the Licensee submitted that exceptional circumstances exist in this matter.

The concerns expressed about former judges appearing as counsel in the courts are related to apprehension of bias, conflict of interest, and most importantly, public perception and confidence in the justice system. While the Rule does not provide any guidance as to what constitutes exceptional circumstances, based on the particular facts of the application in question, the concerns identified above – apprehension of bias, conflict of interest and public perception and confidence in the justice system – have either been eliminated or materially ameliorated.

It is determined that exceptional circumstances exist such that the Licensee should be granted permission to appear as counsel in the two class proceedings. The applicant is restricted from using his honourific or making any reference to his status as a retired judge in any appearances in the two class action proceedings as listed above, in the courtroom and any pleadings, affidavits or other documents to be filed as part of the court record, except as required by the applicant’s professional responsibilities or any direction or order of the respective court.

Linklater v Thunderchild First Nation, 2020 FC 899

The Thunderchild First Nation Government is enjoined from continuing with and holding a by-election for Headman in order to fill the vacant position left by the removal of the Applicant, until the determination of his application for judicial review or further Order of the Court.

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The Applicant, Mr. Linklater, was elected Headman on the Thunderchild First Nation Council in late 2018. He was required to reside on Thunderchild First Nation reserve lands or Treaty Land Entitlement lands, or to move there within 30 days of the election (Thunderchild First Nation Election Act [“Election Act”]). Mr. Linklater considers this residency requirement to be contrary to s 15 of the Charter since it represents an unjustified violation of his right to equality as a citizen of a First Nation living off reserve. He also considers it to be a remnant of colonial structures, and of similar discriminatory provisions once in force in provisions of the Indian Act that were found unconstitutional by the Supreme Court of Canada (Corbiere v Canada (Minister of Indian and Northern Affairs), [1999] 2 SCR 203 [“Corbiere”]).

In 2019, a citizen of Thunderchild First Nation, asked the Thunderchild First Nation Government to remove Mr. Linklater from his position for failure to meet the residency requirement. It responded that it had no authority to do so because it also considered the residency requirement to be contrary to the Charter. Along with another citizen of Thunderchild First Nation, applications were brought to the Thunderchild First Nation Appeal Tribunal [“Tribunal”] to have Mr. Linklater removed from his position. Among other arguments, it was noted that a 2019 referendum in Thunderchild First Nation proposing various amendments to the Election Act, including the removal of the residency restriction, had not passed.

In 2020, the Tribunal issued a decision removing Mr. Linklater from his position for failure to meet the residency requirement. In its decision, the Tribunal decided it did not have jurisdiction under the Thunderchild First Nation Appeal Tribunal Act [“Tribunal Act”] to strike sections of the Election Act because they violate the Charter. It therefore did not address Mr. Linklater’s Charter arguments. The Tribunal ordered that a by-election be held as soon as possible to fill the position vacated by its removal of Mr. Linklater. Mr. Linklater has challenged the Tribunal’s decision on the application for judicial review. He alleges that the Tribunal did have jurisdiction to decide his Charter arguments, and that it should have decided that the residency requirement was unconstitutional. In this motion, Mr. Linklater seeks an injunction stopping the by-election until his application for judicial review can be heard and decided.

This Court orders that the by-election to fill the vacant seat for Headman on the Thunderchild First Nation Council be halted while Mr. Linklater’s Charter challenge to his removal from that seat is before the Court. This Court should not lightly interfere with elections directed by First Nations governments and tribunals. There is significant consideration given, however, to the fact that Mr. Linklater’s request is not opposed by either the Thunderchild First Nation Government or those who requested his removal. There is no other Thunderchild First Nation decision-maker who can grant the relief sought. This order does not grant Mr. Linklater’s challenge to his removal, nor does it reinstate him in his role as Headman, either temporarily or permanently. This order only seeks to avoid the harm that would arise from someone else being elected Headman while the question of Mr. Linklater’s removal remains outstanding.

This Court has confirmed that the Applicant has met the three-part test that applies to injunctions seeking to halt Indigenous elections (RJR-MacDonald Inc v Canada (AG), [1994] 1 SCR 311; Awashish v Conseil des Atikamekw d’Opitciwan, 2019 FC 1131). Mr. Linklater has already lost his seat. He does not on this motion seek reinstatement; he seeks that remedy among others on the underlying application for judicial review. However, if another Headman is elected to that seat, Mr. Linklater may be excluded from acting as Headman until the next election in late 2022, regardless of the outcome of this application. This would amount to irreparable harm resulting from the by-election itself, over and above any harm already incurred as a result of the order removing him from his seat as Headman.

The balance of convenience favours granting the requested injunction. The particular harm to Mr. Linklater if the injunction is not granted is significant. The broader interests of self-governance and democratic principles are of fundamental importance, but are attenuated in the particular circumstances of this case.

Alberta (CYFEA, Director) v NL, 2020 ABPC 118

This is a decision with respect to ordering costs against the Director of child and family services in Alberta, which is relatively unusual and difficult to obtain. While it is not per se an “Aboriginal law” case, the Court considered the overrepresentation of Indigenous children in protection as a factor in favour of issuing an order for costs under s. 24(1) of the Charter

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A Permanent Guardianship Order was determined as not warranted for a child apprehended by the Director of child and family services in Alberta. The Court orders the child to be returned to the mother [“NL”] over a period of three months pursuant to a Supervision Order. This was necessary because the child had been in the custody of the Director for a period of almost 2 years, and not because of any concern about the mother’s ability to care for the child. Counsel for the mother asks the Court for costs against the Director.

As background, concerns were enough for the Director to properly apply for an apprehension order in 2017 due to numerous medical difficulties that caused concern for health and medical professionals. As well, NL at the time did not seem to be taking the appropriate measures that were suggested. Although there had been previous concerns with respect to NL’s care of her other children in the past, none of the children had been apprehended and issues with respect to drinking, partnership issues and so on, always seem to be resolved and did not appear to be an insurmountable situation. Another issue regarding NL’s care for the child was that medical appointments were located in Red Deer, approximately one hour away from her residence by car. NL does not have a car or driver’s license.

There does not appear to have been any investigation into whether NL was suffering from postpartum depression or at least the anxiety brought on by having the child’s medical problems added on to the fact that she was caring for another child, age three, who had her own medical difficulties. It appears that the medical and psychological experts assumed that what they termed as NL’s passivity or lack of affect, was a personality defect rather than a situational reaction to the stressful situation she found herself in.

The foster mother gave evidence to the child’s present circumstances. She has been the foster parent for the child since he was apprehended at approximately four months of age. The child is a typical energetic, curious, active two-year-old and does not appear to have any difficulty eating, sleeping or anything else out of the ordinary. She is regularly in contact with NL and they share information on the child’s progress and any changes that are necessary with respect to his sleeping eating or activity patterns. This evidence exposes the Director’s evidence as being out of date, yet still having been used to pursue a permanent guardianship order. There was also no evidence before the Court of the child having FASD, nor did the Director provide any evidence that this concern was pursued at all since apprehension.

Effectively nothing was done with respect to re-uniting this family during the whole time the chlid was in care. This is in direct conflict with the Director’s mandated obligations under the CYFEA. Medical information should have been updated to show the child was still in need or the child should have been returned to the mother.

The difficulty in dealing with the question of costs in child protection matters is that there are a number of cases both in Provincial Court and The Court of Queen’s Bench which take differing views with respect to the Provincial Court’s jurisdiction to award costs against the Director in a child protection matter. One may assume that costs is not an issue for child protection litigants because through Legal Aid they get “free” lawyers. This is not actually the case in Alberta as new clients are required to sign documentation acknowledging that they will repay any amounts billed by counsel, prior to counsel taking on their matter. This Court can see no reason why child protection litigants, a significantly large proportion of whom are Indigenous women and men, should be denied court costs in instances of the Director’s failure to carry out its mandate under the CYFEA.

Having found that there is conflicting case law; and having found that the CYFEA remains silent with respect to this issue and thereby creating an apparent conflict; the Court finds that the Respondent’s rights ensured by the Charter pursuant to section 7 and 15 have been infringed or denied. This in turn leads to the Court to considering an appropriate remedy. Section 24 of the Charter states “(1) Anyone whose rights or freedom’s, as guaranteed by this Charter, have been infringed or denied, may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances”. The Court finds that the appropriate remedy for the respondent in this case is an award of damages against the Director in an amount equal to the legal fees the Respondent is required to repay to Legal Aid Alberta.

Servatius v Alberni School District No 70, 2020 BCSC 15

The petitioner failed to establish that the demonstrations of Indigenous culture at her children’s school interfered with her or her children’s ability to act in accordance with their religious beliefs. Accordingly there was no infringement of the petitioner’s or her children’s freedom of religion.

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As part of an effort to acquaint students with Indigenous culture and to promote a sense of belonging in Indigenous children, a Nuu-chah-nulth Elder visited a Port Alberni elementary school and demonstrated the practice of smudging. A few months later, at an assembly, the students witnessed an Indigenous dance performance and a prayer. The petitioner’s children witnessed the demonstrations. The petitioner is an evangelical Christian. She submitted that both the smudging and the prayer that accompanied the dance interfered with the religious freedoms of herself and her children guaranteed by the Charter of Rights and Freedoms. The petitioner sought a declaration to this effect and an order in the nature of prohibition enjoining further events of this nature in the school district.

It was conceded that the petitioner’s beliefs were sincere and that they had a nexus with religion. The petitioner, however, had two paths to fulfill a finding that the School District had interfered with their ability to act in accordance with their religious beliefs. First, and principally, the petitioner argued that the School District breached the state’s duty of neutrality. She had to show that (1) the School District professed, adopted, or favoured one belief to the exclusion of all others; and (2) the exclusion resulted in interference with the petitioner’s or her children’s freedom of conscience and religion. The organization of these events reflected a fathering momentum to incorporate the teaching of Indigenous worldview and perspectives. Arranging for students to observe hoop dancing accompanied by an Indigenous prayer, could not reasonably be interpreted as the School District professing, adopting, or promoting religious beliefs. Therefore, the petitioner’s argument failed to clear the first hurdle.

The petitioner’s second argument surrounded the right not to believe in Indigenous spirituality, the ability to refuse to participate in these practices, and the freedom from government coercion to affirm a specific religious belief as protected under s 2(a) of the Charter. She maintained that her children were compelled to participate in Indigenous spiritual practices, or affirm spiritual beliefs associated with those practices and that this constituted non-trivial interference with her and her children’s ability to act in accordance with their religious beliefs. Proof on an objective basis required more than the children being in the presence of an Elder demonstrating a custom with spiritual overtones or being in the presence of a dancer who said a brief prayer. This did not interfere with the ability to act in accordance with one’s religious beliefs.

The demonstrations were admirable and admissible efforts to teach, in a memorable way, about Indigenous beliefs. It was proper and advisable in light of the historical circumstances that the School District organize such events. The petitioner had therefore failed to establish that the Nuu-chah-nulth smudging in her children’s classrooms or the prayer said by the hoop dancer at the school assembly interfered with her or her children’s ability to act in accordance with their religious beliefs. Accordingly, no infringement of the petitioner’s or her children’s freedom of religion had been proved.

R v CGJ, 2019 BCPC 252

A custodial sentence, with a lengthy period of probation, is appropriate and proportionate for an Indigenous offender found guilty of sexually assault. Serving a conditional sentence would not endanger the safety of the community with the imposition of appropriate conditions.

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This matter involves the sentencing of an Indigenous man who was found guilty of the offence of sexual interference, contrary to s 151 of the Criminal Code [“CC”]. At the time of the offence he was 18 years of age and the victim was 13 years of age and they both attended the same secondary school.

Sexual interference is a hybrid offence; the Crown may elect to proceed by way of indictment or summary conviction. The Crown proceeded by way of summary conviction, under s 151(b) CC. The convicted is therefore liable upon sentencing to a term of imprisonment of not more than two years less a day, and to a mandatory minimum sentence of imprisonment for a term of 90 days. The convicted has no prior criminal record and is now a first-time offender. He challenges the constitutionality of the mandatory minimum sentence of 90 days imprisonment provided for in s 151(b) CC, as being a violation of his s 12 Charter right of not being subjected to cruel and unusual treatment or punishment.

It was recently held that the mandatory minimum of a one-year term of imprisonment under s 151(a) CC, where the Crown can proceed by way of indictment, violates s 12 of the Charter and cannot not be saved under s 1 (R v Scofield, 2019 BCCA 3). The defence submits part of the individualized sentencing process this Court should consider is a suspended sentence pursuant to s 731(1)(a) CC, with a lengthy period of probation. Alternatively, if imprisonment is necessary, it should be served in the community under a conditional sentence order pursuant to s 742.1 CC, then followed by a significant period of probation. The existence of the s 151(b) CC statutorily prevents this Court from imposing either of the suggested sentences, until it has concluded that the mandatory minimum sentence violates s 12 of the Charter and cannot be saved under s 1. If the Court comes to that conclusion, it can then apply the available remedy within its jurisdiction.

It was agreed among the parties that if this Court found that the appropriate sentence is 90 days or higher, it can impose the sentence without addressing the constitutional question, as it would be unnecessary to do so (R v Lloyd, [2016] 1 SCR 130). If this Court, however, concludes that the proportionate sentence is below 90 days, then it should assess whether the 90-day mandatory minimum sentence is grossly disproportionate personally for the convicted.

Sentencing is an individualized process which requires the court to take into account both the circumstances of the offence and the specific circumstances of the offender (R v Shoker, 2006 SCC 44; R v Angelillo, 2006 SCC 55). Section 718.2(e) does not permit the court to impose an unfit sentence (R v Jackson, 2012 ABCA 154). In deciding whether an Indigenous offender should be incarcerated, a judge must use all available information before the court about an offender to determine whether restorative justice should be given more weight than traditional objectives of sentencing, such as deterrence and denunciation.

In sentencing an Indigenous offender, the sentencing judge must carry out a three-step process: 1) examine the unique systemic or background factors common to Indigenous people as a group; 2) consider the personal circumstances of the offender which resulted in the offender committing the crime for which that offender is before the court; and 3) strive to arrive at a sentence that is informed, just, and appropriate in the circumstances, having regard to the information obtained (R v Gladue, [1999] 2 CNLR 252).

There is no burden on an Indigenous offender to establish a causal link between Gladue factors and the commission of the offences (R v Eustache, 2014 BCCA 337). Although the accused bears the onus of establishing mitigating factors on a balance of probabilities, it can be difficult for Indigenous offenders to establish direct causal links between the circumstances and the offending behaviour (R v Ipeelee, [2012] 2 CNLR 218). While an Indigenous offender need not establish a direct causal link, the Gladue factors nonetheless need to be tied to the offender and the offence in some way (R v DB, 2013 ONCA 691).

The conditional sentence order will permit the convicted to continue to receive the significant benefit of his cultural engagement, the support of his family and his community, be able to continue his employment, and at the same time to receive sex offender treatment. The Accused is sentenced to a five-month conditional sentence order and 30 months of probation. Subsequent to this determination, there will be a pending consideration by this Court of the s 12 Charter arguments.

Troller v Manitoba Public Insurance Corporation, 2019 MBQB 157

Application denied. The actions of the Manitoba Public Insurance Corporation to limit the Applicant’s freedom of expression on his personalized license plate are a reasonable restriction in a free and democratic society.

Native Law Centre CaseWatch Blog

The Applicant is a resident of Winnipeg, Manitoba and an enthusiast of Star Trek, a science fiction television and movie franchise. He requested, and was granted, a personalized licence plate [“PLP”] from Manitoba Public Insurance Corporation [“MPI”] with the combination of letters and a number “ASIMIL8”. He asserts that this combination is a reference to a Star Trek character, the Borg and displayed the PLP for almost two years without incident. However, he was notified by MPI that the PLP was considered offensive and was demanded its immediate surrender, to which the Applicant complied.

The Supreme Court of Canada instructed a court as to how it should address an alleged violation of freedom of expression; s 2(b) of the Charter (Irwin Toy Ltd v Quebec (AG), [1989] 1 SCR 927 [“Irwin Toy”]). This Court found that “ASIML8” does attempt to convey a meaning and meets the first step, as the word itself does not attempt to convey a violent form of expression. This expression is within the protected sphere of conduct. The second step was to determine if the method of expression or the location of the expression is entitled to s 2(b) protection. The third step as outlined in Irwin Toy, was to determine whether the purpose or effect of the government action was to restrict freedom of expression. It was established that MPI’s purpose was to restrict the Applicant’s expression. The s 2(b) analysis in this case turns on the second step, the location of this expression.

The test for location, with respect to expression on government-owned property, is whether the place is public and where one would expect constitutional protection for free expression on the basis that expression in that place does not conflict with the purposes which s 2(b) is intended to serve: 1) democratic discourse, (2) truth finding and (3) self-fulfillment. To answer this question, the following factors were considered: a) the historical or actual function of the place; and b) whether other aspects of the place suggest that expression within it would undermine the values underlying free expression (Montréal (City) v 2952-1366 Québec Inc, 2005 SCC 62). The presence of a PLP, like advertising on a bus, is in the public space, not a private space.

Section 1 Charter rights and freedoms, however, are limited in scope and sets Canadian jurisprudence apart from American jurisprudence on free expression. The Court found that Charter protections were engaged, and the proportionate balancing required an understanding by the Court of the PLP program (Doré v Barreau du Québec, 2012 SCC 12; Loyola High School v Quebec (AG), 2015 SCC 12). The MPI brochure sets out the restrictions for a PLP. Its review committee takes extensive steps to avoid unintended meanings outside of their collective knowledge. The Court accepted that “ASIMIL8” was originally approved because the search term entered was “asimilate” as opposed to “assimilate”. The error itself is of no import because MPI reserves the right to recall a PLP and the length of time it took in making the decision was not crucial. MPI believed that when they became apprised of a complaint, this decision required immediate attention and “falls within a range of reasonable alternatives” (RJR-MacDonald Inc v Canada (AG), [1995] 3 SCR 199).

MPI submits that offensiveness is a matter of community standards and the word “assimilate” when considered in the context of Canadian history is on its face objectionable. The assimilation of Aboriginal people was the official policy of the Government of Canada and the Prime Minister in 2008 formerly apologized on behalf of all Canadians for its implementation and ongoing effects (Truth and Reconciliation Commission of Canada, 2015 [“TRC Report”]). Given the history of assimilate, the mere presence of “ASIMIL8” is contrary to a respectful and welcoming environment.

The Court accepts that by choosing to display the PLP on his vehicle, the Applicant was not denigrating Indigenous people. The standard of review, however, is reasonableness. The action of the Registrar in revoking the PLP was determined to be reasonable. The Path to Reconciliation Act played a significant part in the decision. The policy of the assimilation of Indigenous people appears 151 times in the TRC report. The word assimilate has taken on a new meaning within this country. In order to meet the Doré test, the Charter right must be minimally impaired. Following the surrender of the “ASIMIL8” PLP, Troller chose a different word to express his love of the Borg character in Star Trek and was issued a new PLP.