Tag Archives: Indigenous self-identification

R v Runions, 2021 ABQB 67

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Reply

Although Gladue factors reduced an Indigenous offender’s overall blameworthiness, it was not enough to persuade the Court that he is not a risk to public safety or can be managed in the community. He is designated a dangerous offender and sentenced to detention in a penitentiary for an indeterminate period.

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In 2019, Dillion Richard Runions pleaded guilty to one count of aggravated assault, contrary to s 268 of the Criminal Code, and a further count of breaching an undertaking given to a police officer, contrary to s 145 (5.1). The aggravated assault consisted of Mr. Runion, who was unprovoked, slamming a machete into the neck of his unsuspecting victim. This vicious attack was nearly fatal with the victim surviving only because of timely medical intervention. At the time of the machete attack Mr. Runions was bound by the terms of an undertaking given to a police officer, which stipulated that Mr. Runions should not be in possession of a weapon. Both offences occurred in 2017.

The Crown brough an application to designate Mr. Runions a dangerous offender and to be given an indeterminate sentence (R v Corbiere, [1995] OJ No 938; R v Bedard, 2009 ONCA 678; R v Gulliver, 2018 ABCA 387; R v Neve, 1999 ABCA 206; and R v Lyons, [1987] 2 SCR 309). Part of the prospective assessment of dangerousness, is answering the question of whether the behaviour is such that the pattern of conduct can be said to be substantially or pathologically intractable (R v Boutilier, 2017 SCC 64).

Mr. Runions spoke of a childhood history which included general family dysfunction, poverty, domestic violence, maternal substance abuse, abandonment, neglect, placement in foster care, and a chaotic life involving frequent moves and school changes. According to a Gladue report, Mr. Runions indicated that one of his placements involved a Métis family, and he was exposed to his Métis heritage, traditions, and cultural practices. Mr. Runions said he was sexually abused from a young age, and that he was sexually assaulted by one of his mother’s boyfriends and by a foster parent.

Mr. Runions told the Gladue report writer that he fled a group home at age 16 and joined a street gang called “Deuce’s of Central”. He said that he resided with gang affiliates until his first incarceration at 19, and then dropped out of school, consumed alcohol, used cocaine, trafficked in illegal substances, and engaged in negative and violent behaviour. Mr. Runions reported a sporadic work history including having worked as a cribber and a drywaller, his average length of employment was under six months, and his longest period of employment was two years. Mr. Runions reported that he was diagnosed as being bipolar disorder in 2005, depression and anxiety at 18 years old, and post-traumatic stress disorder in 2009. He also reported auditory hallucinations if he did not take various medications.

The quality and strength of the evidence of past and future events, together with the expert opinion concerning those events, demonstrates that it is likely Mr. Runions will cause death or injury through his failure to restrain his behaviour in the future. Mr. Runions has not yet received nor exhausted all treatment options that are available to him. In most cases through no fault of his own, Mr. Runions remains untreated in relation to some of his most pressing treatment needs. It is also notable that Mr. Runions, who has demonstrated a recently renewed interest with respect to his Indigenous background (having previously self-identified with Buddhism and later as a Muslim), at least while incarcerated, could elect to be placed within a separate multi-target stream such as the ICPM Multi-Target Program which emphasizes Indigenous healing through traditional and cultural means, and importantly and supportively permits access to Elders for guidance and support.

Unfortunately, Mr. Runions cannot be trusted and his persistent disingenuous presentation makes treatment functionally impossible. It is also highly likely that Mr. Runions will resume gang-affiliations once released from custody. There is no suggestion in the evidence that he has ever succeeded in divesting himself (long-term) from his gang-lifestyle while not in a structured custodial setting. Mr. Runions acknowledged that he was still at the top of the pyramid when he was asked about his gang connections.

Mr. Runions has a very high risk for general recidivism and for violently reoffending. His Gladue factors does reduce his overall blameworthiness, but they do little to change the obvious gravity of the grave circumstances of the predicate offence, and the fact the Mr. Runions violently injured and endangered the life of three people in approximately a one-month period. The Gladue considerations do not persuade the Court that Mr. Runions’ risk to public safety can be controlled or managed in the community. Mr. Runions is a dangerous offender and he is sentenced to detention in a penitentiary for an indeterminate period. Given the circumstances, including the past criminal record, a fit and proper sentence in relation to the conviction under s 145(5.1) of the Criminal Code is 6 months imprisonment.

Johnson v Canada (Registrar, Indian Register), 2020 BCSC 1955

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Appeal stayed. The appellant appealed what they interpreted as a decision by the Registrar of the Indian Register. The Court lacks jurisdiction to hear the appeal as it is premature given the statutory requirements of the Indian Act have yet to be met. Specifically, the nature of a response made by the Registrar was not a “decision” capable of being appealed until it is “protested” and the statutory proceeding is concluded.

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The appellant is a status Indian and member of Sechelt Indian Band, a band within the meaning of the Indian Act. In 2017, the appellant requested that the Registrar transfer him from the Sechelt Band List to the Semiahmoo Band List, as he believes he is entitled to membership in the Semiahmoo Indian Band [“Semiahmoo”].

The Department of Indigenous Services [“Department”] maintains the Semiahmoo Band List as Semiahmoo does not maintain its own membership code. Section 11 of the Indian Act sets out the membership rules for a band list maintained by the Department. Section 12(b) of the Act provides that, within certain limits, a person who is a member of another band is entitled to have their name entered in the Department band list if the council of the admitting band consents.

In 2018, the Registrar responded to the appellant’s transfer request, stating that the request could not be processed without receiving a Band Council Resolution [“BCR”] from the Semiahmoo Band Council. A separate letter was sent by the Registrar to the Band Council of Semiahmoo requesting a BCR accepting the appellant into the band’s membership. The appellant argued that a BCR from Semiahmoo was not required under s 11 of the Indian Act and that s 12(b), which requires band council consent to adding a band member, had no application.

The Registrar then advised the appellant that the Department’s position was that s 12 applied to all band transfers. The appellant sought judicial review in the Federal Court, but that was discontinued as it is this Court that has the necessary jurisdiction. The appellant advised the respondent he would pursue a protest under s 14.2 of the Indian Act. Section 14.2 allows for a protest to be made respecting the inclusion or addition of the name of a person or their omission or deletion of their name from the Indian Register or a band list maintained by the Department. The Registrar responded she would consent to a 90-day investigation period “once all necessary documents were filed”. The appellant agreed and in 2019, sent the documents to a computer link provided [“Protest”].

Subsequently, the Registrar informed the appellant that she was unable to accept the Protest as valid. She stated the Registrar’s original decision to add the name of the appellant to Sechelt First Nation registry was rendered prior to September 4, 1951 and therefore the Protest was out of time. Her earlier response did not constitute a “decision” but was a request for evidence, therefore it could not be protested. She also confirmed the Department’s position was that Semiahmoo consent was required for all band transfers.

This application concerns whether the Court has jurisdiction to hear the appeal at this time. The Indian Act sets out the statutory framework that applies to a dispute of a “first-level” Indian Registrar decision. Once such a decision is made, a party is statutorily entitled to protest the decision to the Indian Registrar. Upon receipt of a valid protest, the Registrar investigates and renders a final and conclusive decision. It is from that decision an appeal to this Court may be taken, not earlier.

The Registrar stated she could not accept the Protest as a valid protest, noting that the request for more evidence was not a decision or a denial of the application but merely a request for evidence, including the Semiahmoo BCR. The Indian Act provides a process to determine band status. As a complete code, the Indian Act must be complied with before it can be appealed (Baptiste v Canada (Registrar of Indian & Northern Affairs), 2000 SKQB 296). The Registrar is the “master of its own procedure” and can solicit information as they see fit in conducting the investigation.

The Court is satisfied that the earlier Registrar’s responses are not “decisions” as described by the appellant. The letter in 2018 did not make a decision as no BCR had been provided from Semiahmoo. It requested that it be provided. Nor did the letter in 2019 make a decision under s 14.2 of the Indian Act. Given the expiration of time from the 1951 decision, and that the 2018 response was neither a decision nor a denial but rather a request for information, the Protest of that letter was not a valid protest. That right to protest requires that the individual is added, omitted or deleted from an Indian Register or Band List.

In other words, a determination has been made. In this instance that did not occur until 2019, when the Registrar concluded that the appellant was not entitled to be a member of the Semiahmoo Band pursuant to s 11 of the Indian Act. As a result, the right to protest arises. The appellant was advised of that right, but has chosen not to do so. The right of appeal arises after the Registrar has ruled on a protest. This Court does not, at this time, have jurisdiction as the appeal is premature. The appeal is stayed.

R v Young, 2021 BCPC 6

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An offender, charged with possession of cocaine for the purposes of trafficking, is non-Indigenous but resides in a small isolated First Nations community, and identifies as Haida. The Court, after weighing the evidence and the principles of sentencing, applied a restorative justice approach, and determined that a one-year period of incarceration followed by two years’ probation is a fit sentence.

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In 2018, the RCMP received an anonymous tip regarding the drug trafficking activities of Frank Young and his wife Roberta Young, who reside in Skidegate, a small isolated First Nations community. After surveillance on the Young’s, police officers subsequently attended the residence and Mr. Young was arrested. Various types of drug paraphernalia was seized, including cocaine that would have been sold, at a minimum, for a total price of between $6,720 and $8,400. In 2019, Mr. and Mrs. Young were jointly charged with a single count of possession of cocaine for the purpose of trafficking. Mr. and Mrs. Young both entered pleas of “not guilty” in court in 2020, however, Mr. Young changed his plea from “not guilty” to “guilty”.

Mr. Young is not biologically Indigenous, nor a member of the Skidegate Band and he is not a citizen of the Haida Nation, although he considers himself Haida. Mr. Young described his childhood as being “normal.” Mr. Young met his wife in 1978 and were married in 2000 and stayed together until recently, when Mrs. Young left him. Together they have four children now adult ages. Mr. Young considers himself a high functioning addict, who was able to sustain a long career and raise a family without criminal issues.

As an adult, Mr. Young developed a drug habit and his social peers became mostly other drug users. He began using cocaine in his mid-20s, consuming half a gram to one gram of powder cocaine every weekend. Mr. Young has a dated criminal record that is not particularly relevant to this sentencing, given the time that has passed and the nature of the three convictions. Mr. Young experienced some difficulty with his addictions during his career, but maintains having control over it. The Deputy Chief Councillor for the Skidegate Band Council, has known Mr. Young for in excess of ten years and directly contradicts Mr. Young’s statement that he never sold drugs to children. He states that even while Mr. Young was working, there are three main families that traffic drugs in Skidegate, with Mr. Young’s family being one of them.

There is nothing to equate Mr. Young’s life experience with that of the Haida people specifically or Indigenous peoples in Canada generally. Mr. Young’s circumstances are not unique from those of other non Indigenous offenders. There is nothing in his personal circumstances, or in the manner Mr. Young committed the offence, that leads to the conclusion that Mr. Young’s moral blameworthiness is lessened due to systemic factors or individual Gladue factors. Just because an offender who is not biologically Indigenous self-identifies as Indigenous does not mean that they are entitled, as a matter of law, to have the sentencing judge consider them an Indigenous person for purposes of s. 718.2(e) and the Gladue analysis (R v Antoine, 2017 BCPC 333; R v Lawrence, 2018 BCSC 1319; and R v Kreko, 2016 ONCA 367).

In the sentencing context for the non-biologically Indigenous offender who self-identifies as Indigenous and seeks the benefit of s. 718.2(e) and the Gladue analysis, a number of factors are considered. Although Mr. Young is not an Indigenous offender, it is appropriate to consider a restorative justice approach to his sentencing, albeit it in a modified form. With respect to Indigenous communities, restorative justice ensures that the offender’s sentencing reflects an understanding of the specific First Nations’ cultures, traditions, and hopes for the future. It also means addressing local issues by engaging with the local community. The Community Impact Statement presented on behalf of the Skidegate Band Council served the purpose of enlightening the Court about the local community and allowed the victims of drug dealing and drug addiction in Skidegate a say in the outcome of Mr. Young’s case.

Based upon the entirety of the evidence, Mr. Young falls within the category of busy retail seller or full-time commercial operation. Mr. Young’s moral blameworthiness is at the highest end of the spectrum. The uniqueness of Mr. Young’s situation allows for a significant reduction of sentence from 18 month’s incarceration. However, there should not be a reduction with regard to the two years’ probation, despite the ongoing COVID-19 pandemic, as it will not negatively affect Mr. Young’s health issues, warranting a shorter period of probation (R v Reimer, 2020 BCCA 102). A one-year period of incarceration is a significant reduction from 18 months incarceration, and followed by a two-year period of probation, it is the minimum sentence that the Court can impose. Any lesser sentence would be unfit.

R v Olson, 2021 BCSC 61

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An appropriate cumulative sentence of 11 and ½ years is imposed for an offender found guilty for a string of offences that are violent. Despite a tenuous connection to some Indigenous heritage, a Gladue report was ordered and considered in the sentencing process.

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Mr. Olson was found guilty, following a trial, of six counts contrary to the the Criminal Code from events that took place in 2017, including assault with a weapon, contrary to s 267(a); the reckless discharge of a firearm; possession of a loaded prohibited firearm (a sawed off shotgun) without a licence; possession of a firearm while prohibited; possession of stolen property in excess of $5000; and resist or wilfully obstruct a peace officer.

A Gladue report was obtained for Mr. Olson upon the Crown learning of possible Indigenous heritage. Mr. Olson, now 41, has a very lengthy criminal record, reaching back to 2001, with 58 prior convictions. Mr. Olson had a troubled childhood and felt unfairly treated by his stepfather. He recently reconnected with his mother and learned that there could be some Indigenous heritage on his mother’s side, that is a great, great grandmother, was believed to be First Nations. According to the Gladue report, Mr. Olson has six children with different mothers, and maintains some limited contact with one of his children. The Gladue report writer, noted that the Indigenous lineage could not be independently corroborated, and focussed on corrections and community resources available to Mr. Olson arising out of this somewhat tenuous connection.

It is clear from the nature of his offences and the risk of Mr. Olson reoffending that the principles of deterrence and denunciation are paramount, along with the protection of the public. However, there is a potential for rehabilitation that must also be taken into account, including considering the principles set out in s 718.2(b), (c), (d) and (e), that is, parity of sentencing, the totality principle, and restraint in imposing terms of imprisonment.

This string of offences is long and involves violence. Although there are connections between some of the counts, the indictment has a number of offences with slight or no connections. It is difficult to determine an appropriate and fair approach. Concurrent sentences are used where appropriate, but some of the sentences must necessarily be consecutive (R v M(CA), [1996] SCR 500). A total of 11 1⁄2 years, with credit for time served, is an appropriate cumulative sentence of this series of offences, and does not offend the totality principle.

R v Reddick, 2020 ONCA 786

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Appeal dismissed. There is no error on the sentencing judge’s imposed sentence of an Indigenous offender who committed a robbery with an imitation firearm. Gladue principles was given appropriate consideration, along with hardships arising from the Covid-19 pandemic related lockdowns in determining a fit sentence.

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Mr. Chad Reddick entered a guilty plea to robbery and using an imitation firearm while committing an indictable offence. This was an extremely serious offence committed by a 33-year-old man with a significant, albeit largely non-violent, criminal record. The sentencing judge imposed a two-year sentence for the robbery, to be followed by the one-year mandatory minimum sentence for the firearm offence. The sentencing judge also granted the Crown a 12-month non-reporting probation order.

Mr. Reddick appeals the sentence imposed, claiming that the sentencing judge erred in applying Gladue principles and failed to pay attention to the sentencing objective of rehabilitation. He argued that there has been a change in the law that makes a conditional sentence possible for the robbery conviction, and that there has been a high frequency of lockdowns Mr. Reddick has experienced related to the Covid-19 pandemic since the sentence was imposed (R v Sharma, 2020 ONCA 478 [“Sharma”]).

Mr. Reddick is remorseful and has commited to change, however, his appeal is dismissed. Despite the fact that Aboriginal Legal Services declined to provide a Gladue report because he and his family members lacked specific information about his Aboriginal ancestry, the sentencing judge accepted that Mr. Reddick was Indigenous and drew on relevant information in the presentence report in order to comply with s 718.2(e). She applied the Gladue principles appropriately and sensitively, as well as considered rehabilitation.

Even if this Court was to accept that after the Sharma decision a conditional sentence may be imposed on a robbery conviction where a weapon is involved, there is no error by the sentencing judge that would permit resentencing Mr. Reddick using this “new” sentencing tool. As well, pursuant to s 742.1 of the Criminal Code, a conditional sentence cannot be imposed unless the accused is being sentenced to less than two years of imprisonment. The trial judge determined that the least restrictive sentence she could impose was two years. Despite hardship arising from lockdowns which can qualify as a collateral consequence that warrants consideration during sentencing (R v Morgan, 2020 ONCA 279), the sentencing judge already took the current Covid-19 pandemic into account on the hardship of the sentence imposed. The Court is not satisfied on the evidence that circumstances have changed to the point where additional credit should be given.

SL (Re), 2020 ABPC 194

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The Court rejected a mother’s application for a hearing on the alleged non-compliance of the Director of Children’s Services with An Act Respecting First Nations, Inuit & Metis Children, Youth and Families, SC 2019, c 24 in context to an application for a Temporary Guardianship Order over her five children. She alleged the Director failed to provide notice of the apprehension to her and the Indigenous governing body of her children. The Court found it impossible to ascertain who or what comprises an Indigenous governing body and held there was no factual basis or statutory authority for the application.

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The Director of Children’s Services [“Director”] has applied for a Temporary Guardianship Order [“TGO”] with respect to five siblings. There has been a long-standing history between the family and Children’s Services dating back to 2008. Concerns centered around substance abuse and domestic violence.

In 2020, police responded to the family’s home after being alerted to domestic issues between the parents who had engaged in a night of drinking. Ten days after a safety plan was put in place requiring the parents to remain sober, the police once more attended the home. The parents and one of the adult sons were found to be intoxicated and displayed aggressive behaviour towards the officers who responded to complaints. At the time, all five children were present in the home and were apprehended as there was no sober adult who was able to care for them.

Four days after the apprehension took place, the Director served the Dene Tha band designate with formal notice of its application for an Initial Custody Order, as well as a TGO. To date, no one has appeared on behalf of the band designate. The parents consented to an Order for Initial Custody. Both were represented by counsel at the time. The substantive application for a TGO remains outstanding.

The mother has now asked the Court for a hearing to rule on the Director’s alleged non- compliance with An Act Respecting First Nations, Inuit & Metis Children, Youth and Families, SC 2019, c 24 [“Act”]. Her concern relates to the alleged failure of the Director to provide notice prior to the emergency apprehension of the children.

The Child, Youth and Family Enhancement Act [“CYFEA”] is provincial legislation enacted by the Government of Alberta. While large swaths of the legislation confer power to the Provincial Court in granting certain orders, the Provincial Court does not have exclusive jurisdiction over every aspect of the CYFEA. In the case at bar, the Director’s substantive application seeks temporary guardianship of the children, thereby the Court has jurisdiction over this matter.

The Act is federal legislation which applies to Indigenous children in the care of the Director. The federal legislation does not articulate what remedies, if any, are available when a party is non-compliant with or in breach of the statute. Similarly, the CYFEA does not set out what consequences may arise if the Director fails to provide notification of a child’s apprehension. The CYFEA does permit an individual who is affected by a decision of a director to request a review. If the guardian is dissatisfied with the Director’s review, they may appeal to the Appeal Panel and thereafter to the Court of Queen’s Bench (RP v Alberta (Director of Child Youth and Family Enhancement), 2016 ABQB 306).

It would appear that the mother did, in fact, have notice that the children were to be apprehended as she was present at the time that the police made its decision. The federal legislation does not specify how or in what form the notice should be given. As such, oral notice is sufficient given the circumstances of this case. Any requirement of notice pursuant to s 12 of the Act must always consider the best interests of the children. In instances where law enforcement is required to respond in the middle of the night and finds that children are in harm’s way due to the condition of the parents, the primary principal step taken by peace officers must always be to protect the said children. Such a step is consistent with the children’s best interests.

As well, the Court finds it impossible to ascertain who or what comprises an Indigenous governing body. The children belong to the following Indigenous governing bodies: Dene Tha First Nation in Alberta; Frog Lake First Nation in Alberta; Witchewan Lake First Nation in Saskatchewan; and Onion Lake first Nation in Saskatchewan. The term Indigenous governing body is defined in s 1 of the federal legislation as a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982.

Neither legislation provides any guidance on how determination of a child’s band affiliation is made, which is integral to the Director’s ability to identify which Indigenous governing body or bodies should be contacted. The Act does not address instances where a child has hereditary connections to several bands, nor on the required strength of any hereditary connection. In this case, the Dene Tha band designate has not appeared in Court, nor made any representation despite the provision of notice to it. The mother has not provided any additional information, including which children belong to which bands; the manner of the connection; or whether any of the children belong to more than one band. Jurisprudence on this topic provides limited guidance to the case at bar. If the Indigenous governing body wishes to participate, it would need to satisfy the Court that it is in fact authorized to act on behalf of the group, community or people. The mother has failed to establish any nexus between her rights and those of an Indigenous governing body.

Bruno v Samson Cree Nation, 2020 ABQB 504

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The Court certified a class action against the Samson Cree Nation for members from whom payment of per capita distributions, special pays, and interest were withheld during litigation and disputes over members added by virtue of Bill C-31 in 1987. The majority of common issues were approved as sought, or as modified by the Court or agreed to by counsel, and can proceed to trial. 

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For most of its history, the Indian Act based entitlement to Registered Indian status and band membership on descent through the male parent. This system of eligibility for Indian registration based on descent through the male line was in effect until Bill C-31 was passed in 1985, in response to the equality commands of the Charter. Women who lost their Registered Indian status before 1985 for “marrying out” were restored to status by Bill C-31. These women, and any children they had with their non-Indian husbands, could be registered as Indians pursuant to s 6 of the Indian Act, enacted by Bill C-31.

Before Bill C-31, the Government of Canada maintained all Band lists, and determined Band eligibility on the basis of its statutory and administrative rules about parentage and marriage. After Bill C-31, this dual role for Canada continued with respect to many Bands. However, Bill C-31 also gave Bands the option of taking control of their membership by establishing their own membership codes.

The Plaintiff, Bonnie Lee Bruno [“Bruno”], is a member of the Samson Cree Nation [“Nation”]. Her name was added to the Band List of the Nation maintained by the Minister of Indian Affairs and Northern Development [“Minister”], under the provisions of Bill C-31. Previously enfranchised Indian women and their children became members of Indian Bands on lists administered by the Minister, unless First Nations developed band membership rules approved by the Minister on or before June 28, 1987. The Court found that, on the unchallenged evidence before it, that this was not done in this matter, thus giving primacy to the list maintained by the Minister on which the Plaintiff, and allegedly others in the class, had status effective June 29, 1987. 233 individuals were added as at that date.

Prior to the passage of Bill C-31, there was considerable controversy within many First Nations over, among other things, questions over whether the women who had “married out” should be accepted back into the community and as Band members. After Bill C-31 came into effect, there were numerous challenges before the courts regarding Band membership and the equality rights issues raised by the history of enfranchisement and the attempted solution of Bill C-31.

This class proceeding relates to a claim of class members from whom, after they were added to the Band List of the Samson Cree Nation [“Nation”] by virtue of Bill C-31, the Nation withheld payment of per capita distributions and Special Pays, and interest, from 1988 to 1995 per the Plaintiff, and lesser or greater time periods as to other class members. Beginning in June 1987, the Plaintiff and other individuals’ names were entered onto the Samson Nation Band List maintained by the Minister pursuant to Bill C-31, but that the Class Plaintiffs only became members of Samson Nation about 1995 when Samson recognized and admitted them as members of the Samson Nation.

The first criterion for certification is that the plaintiff’s pleading discloses a cause(s) of action. No evidence is required, but rather the facts, as pleaded, are assumed to be true (Hunt v Carey Canada, [1990] 2 SCR 959). The pleading is to be read generously (Cloud v Canada (2004), 73 OR (3d) 401 (CA)). The standard test for unjust enrichment is: an enrichment of the defendant; a corresponding deprivation of the plaintiff; and the absence of a juristic reason for the enrichment (Garland v Consumers’ Gas Co, [2004] 1 SCR 629).

At this stage, the Plaintiff merely needs to allege an arguable cause of action, which she has done. Proof of the allegation is for trial. The Court finds that a cause of action for unjust enrichment has been established for the purpose of certification. It is determined that this is an appropriate case to proceed by way of a class proceeding, and the majority of 16 common issues and 4 subclass common issues are approved as sought, or, in some cases, with modification.

R v Laforge, 2020 BCSC 1269

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The Court rejected a joint sentencing proposal of 27 months in prison followed by probation for arson related to the burning of a vehicle and a convenience store. Counsel failed to meaningfully consider the Gladue principles and the sentence itself would contribute to systemic discrimination against Indigenous people rather than amelioration. A sentence of time served in custody was imposed instead, which will now be followed by a probation order. 

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Mr. Laforge drove his vehicle into the front window of a 7-Eleven convenience store in Salmon Arm, British Columbia. He then exited his vehicle and poured gasoline into the cab. After everyone left the store, Mr. Laforge then lit his vehicle on fire. The fire spread quickly, causing extensive damage.

Mr. Laforge had been in custody for 548 days by the date of his sentencing hearing. Both counsel gave a joint proposal for a 27-month custodial sentence plus three years of probation. Mr. Laforge has Métis heritage and has been diagnosed with a schizophrenic illness. He did not want to hurt anyone or burn the 7-Eleven down, but to bring attention to his struggles, in particular, his delusional belief that he was being interfered with by intrusive brain-altering and perception-altering technologies.

The Court had the benefit of two well prepared reports, namely a pre-sentence report (“PSR”) prepared by a community corrections officer and a forensic psychiatric report, however, a Gladue report was not submitted. Mr. Laforge suffered abuse as a child and bullying in highschool for his Indigenous appearance. He used drugs extensively and eventually dropped out of school. He has only recently learned of his Métis ancestry, as his father was impacted by the “Sixties Scoop”. He has limited work experience and has a history of mental health problems, posing a moderate to high risk to reoffend without assistance from treatment and supports.

Restorative sentences may be more appropriate for Indigenous offenders, but taking a restorative approach will not necessarily lead to a reduced sentence. Generally, the more serious or violent the crime, the more likely it will be, as a practical matter, that the terms of imprisonment will be the same for an Indigenous and a non-Indigenous offender.

Arson is a serious offence. For sentencing purposes, arsonists can generally be divided into four types: pyromaniacs or persons suffering from mental illness; people who burn for no special reason; vandals; and people who burn for revenge or financial gain. Of these, persons who are suffering from mental illness are often considered to have the lowest level of moral blameworthiness while those who commit arson for revenge or financial gain are generally considered to have the highest (R v KH, (1994) 146 NBR (2d) 372 (CA)).

Given Mr. Laforge’s Indigenous heritage, mental health issues and highly reduced level of moral blameworthiness, the joint submission seems overly harsh, in that it would bring the administration of justice into disrepute or would otherwise be contrary to the public interest (R v Anthony-Cook, 2016 SCC 43).

R v Grandinetti, 2020 ABQB 416

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Experiences of racism is a Gladue factor, and there is relevance of credible employment opportunities for the Aboriginal accused that has informed the design of a fit and proper sentence in this matter.

Indigenous Law Centre CaseWatch Blog

Mr. Grandinetti was closely involved in the process of creating fraudulent documentation which he used to effect registration of six stolen trailers in his own name in order to facilitate the transfer of the trailers to others, including at least one innocent purchaser. He also physically possessed each of the stolen travel trailers, and knew each was stolen. He was not charged with a “possession offence” in respect of two of the trailers. He trafficked two of the travel trailers he knew were stolen. As well, he possessed two of them for the purpose of trafficking them.

Mr. Grandinetti’s crimes are not accurately described as sophisticated or involving a high degree of planning, at least not on his part. He was not charged with the theft of any of the six travel trailers with which he was involved and the evidence presented did not suggest he was involved in any theft. The actual mechanism of the deception in which he participated was relatively simple. He did not invent or design it.

Even before the sentencing principle established by s 718.2(2)(e) of the Criminal Code and considering Gladue factors, the circumstances of Mr. Grandinetti’s offences do not require that priority be given to deterrence, denunciation and separation over the other purposes of sentencing, rehabilitation, reparation and promotion of a sense of responsibility.

Mr. Grandinetti is the child of an Italian father and a Cree mother. He has a younger brother and an older half brother. As a child Mr. Grandinetti witnessed his father being physically abusive to his mother. His parents divorced when he was 15. When Mr. Grandinetti was 17 years old and in high school, his mother was murdered by his cousin. Evidence at the murder trial indicated that the cousin had been paid by Mr. Grandinetti’s father to murder his mother. There was an ongoing child support arrears dispute between Mr. Grandinetti’s parents at the time.

The Gladue Report indicates that Mr. Grandinetti’s brothers reported that their grandmother attended residential school and that the experience caused her to be “a mean and angry person at times”. She struggled with alcohol. But Mr. Grandinetti’s younger brother credits the grandmother with keeping the family together.

Mr. Grandinetti’s father forbade him from participating in Cree cultural activities and tradition, and not even to reveal his Cree heritage to anyone. He learned to attach shame to that heritage. The Gladue report writer noted that Mr. Grandinetti has strong and positive support from his brother and his brother’s family. There are culturally relevant and mainstream healing resources available to him which he has never attempted to access, in part, due to the shame of his Cree heritage instilled in him by his father.

Mr. Grandinetti is sentenced to a global 18 months of that includes 4-6 months incarceration, with the rest to be served in the community pursuant to a conditional sentence order, followed by a three year probation order. Upon his employment, he is to pay restitution.

 

Cunningham v Alberta (Métis Settlements Land Registrar), 2020 ABQB 301

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Appeal dismissed. The Métis Settlements Act establishes membership requirements for the purpose for establishing a Métis land base. Although unfortunate, the appellant is not eligible to have Indian status and be a member of his Métis Settlement.

Indigenous Law Centre CaseWatch Blog

Mr. Cunningham spent almost his entire life on the Peavine Métis Settlement, including having a home and raising a family. However, he applied for Indian status in 1988. Although regretting the decision, he was unable to get his Indian status revoked. Mr. Cunningham has requested a judicial review of a 2018 decision of the Registrar of the Métis Settlements Land Registry [“Registrar’s Decision”].

The reasons for this decision is the conflict of Mr. Cunningham’s Indian status membership made 27 years ago. The Registrar did confirm that when the Peavine Métis Settlement approved Mr. Cunningham’s application for membership in 1991, the council acted contrary to s 78(2)(c) of the Métis Settlements Actbecause Mr. Cunningham was ineligible to become a member under s 75.

The Métis Settlement Act establishes membership requirements for Métis Settlements for the purpose of establishing a Métis land base, as reflected in the Membership List maintained and updated by the Registrar. The legislation was held to be constitutional by the Supreme Court of Canada (Alberta (AAND) v Cunningham, [2011] 2 SCR 670). The Métis Settlements Act does not does not establish eligibility or membership criteria for other purposes (L’Hirondelle v Alberta (Minister of Sustainable Resource Development), 2013 ABCA 12).

The problem is that the different existing legislative schemes exclude an Indian, except for certain exceptions which are not applicable to Mr. Cunningham, from membership in a Métis settlement (Gift Lake Métis Settlement v Alberta (Aboriginal Relations), 2019 ABCA 134). The Registrar is neither required to address each and every piece of evidence nor to address each and every aspect of Mr. Cunningham’s history and relationship with the Peavine Métis Settlement.

As for the 27 years from when Mr. Cunningham applied for Indian status to the 2018 Registrar’s Decision, if the doctrine of laches applied in this matter, the previous error in the 1991 Registrar’s Decision would be perpetuated into the future and the administrative error would override the will of the legislature in the Métis Settlements Act. As long as a statute is in effect, it is no defence that it has not been enforced or correctly applied for many years (Château-Gai Wines Ltd v Institut national des appellations d’origine des vins, [1975] 1 SCR 190).