Tag Archives: Indigenous

R v Colligan, 2020 BCSC 1139

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Rehabilitation can be critically important even for an offence where denunciation and deterrence warrant the most weight. Despite some aggravating circumstances, the Court decided that a conditional sentence was appropriate after considering Gladue factors.

Indigenous Law Centre CaseWatch Blog

Mr. Colligan was charged with three counts of trafficking cocaine but did not appear in court for his trial. A warrant was issued and executed for his arrest. He entered guilty pleas and was then released on bail, by consent. Currently, Mr. Colligan has completely turned his life around. That is commendable but the fact that he did so while on the lam presents a challenge at the sentencing stage. As well, the illicit sale of cocaine, particularly by way of dial-a-dope operations, takes a terrible toll on individuals and the community.

This Court has the benefit of a detailed and thoughtfully prepared Gladue report. Mr. Colligan self-identifies as Métis. His childhood was marred by trauma and instability. His mother was apprehended for neglect, and became involved with his father when she was a teenager. Mr. Colligan’s father was a drug-addicted member of the Hell’s Angels. He was emotionally, physically and sexually abusive to his mother. Mr. Colligan’s mother became an alcoholic. Mr. Colligan witnessed his father’s abuse of his mother, which culminated in a horrifying attack when he was five years old. He jumped on his father during the attack and ended up being covered in his mother’s blood. His father was charged with attempted murder and fled.

Following her separation from a second partner, Mr. Colligan’s mother reached out to social services for help, hoping it would be temporary. Mr. Colligan was removed from his mother’s care and placed in a series of private foster homes and group homes until he aged out of foster care. Mr. Colligan grew up feeling abandoned by his mother. He himself has had children from different partners, whom he does not have a relationship with.

While on the lam, Mr. Colligan had accumulated an unenviable criminal record consisting of seven youth and 15 adult convictions. However, he broke away from all negative associations when he developed a healthy relationship with his current partner, who now have two young children. Mr. Colligan began attending NA and AA meetings. He found employment in the oil industry and has been steadily employed since that time. As of the date of the sentencing hearing, he was working as a well site supervisor with a production testing company and had an annual income of $180,000. He is the sole income earner for his family. He works in a drug-free environment and is subject to mandatory drug testing. After some initial set-backs, with the support of his family, NA, AA and some counselling funded by his employee assistance program, Mr. Colligan has been clean and sober for a number of years.Mr. Colligan’s self-reports of his changed lifestyle are supported by a number of letters of support from his partner, friends and co-workers.

Mr. Colligan is disconnected from his Métis heritage. That was the goal of Canada’s historic assimilationist policies. Looking forward, Mr. Colligan hopes to connect with his Métis heritage. He has applied for a Métis citizenship card. He hopes that understanding more about his heritage and culture will help him to build his self-esteem, re-instate his value system and continue to lead a pro-social life.

In this case there are a number of aggravating factors. Mr. Colligan has a significant prior record, including convictions for possession for the purpose of trafficking. Mr. Colligan committed the offences at issue shortly after completing his 14-month custodial sentence for his prior trafficking convictions. He was a principal participant in an active and ongoing dial-a-dope operation, that demonstrates a level of sophistication in the operation. As well, Mr. Colligan evaded justice for almost six years.

The case law clearly establishes that denunciation and deterrence are the primary sentencing principles in a case such as this. A fit sentence must recognize the particularly harmful effects of trafficking cocaine by way of dial-a-dope operations and discourage flight from justice. At the same time, the Court must not lose sight of the importance of rehabilitation in providing for the long-term protection of the community. Canada’s assimilation policies have had a profoundly negative effect on Mr. Colligan and his family. As a result, Mr. Colligan developed a drug addiction that led directly to his past criminal lifestyle. He has overcome many hurdles and barriers to completely turn his life around and is now taking responsibility for his actions.

While Mr. Colligan must be punished for his offences and not rewarded for absconding, he is in the process of breaking the cycle of intergenerational trauma and dysfunction that has so negatively affected so many Indigenous families, including his own. Sending Mr. Colligan to jail would leave his children without their father for a significant period of time and vulnerable to poverty and dislocation. A highly restrictive conditional sentence is ordered of two years less one day and will adequately address denunciation and deterrence, particularly in view of Mr. Colligan’s reduced level of moral blameworthiness.

Hele c Canada (AG), 2020 QCCS 2406

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This is a significant new case on how to approach the provisions for Indian status under s 6 of the Indian Act. Among other things, the Court clarifies how the honour of the Crown applies to the interpretation of the Indian Act to disfavour the legality of enfranchisement. This decision may have significant implications for how applications for Indian status are processed.

Indigenous Law Centre – CaseWatch Blog

The present statutory appeal is from a final decision of the Indian Registrar of Aboriginal Affairs and Northern Development Canada. That decision refused to recognize a 9 year old child, Annora Daphne Hele as an Indian.

The discriminatory policy known as “enfranchisement”, involved the renouncement personally and on behalf of descendants, living and future, of recognition as an “Indian” including its certain rights and benefits. In return, one gained full Canadian citizenship and the right to hold land in fee simple. The policy used to be the cornerstone of the Canadian federal government’s assimilation blueprint relating to Aboriginal peoples. Enfranchisement was not a policy desired by Indians and was ultimately abolished in 1985. Parliament has since enacted remedial provisions to address some of the consequences of that oppressive process but certain descendants of enfranchised Indians continue to suffer its aftereffects.

The issue at the heart of this appeal is the interpretation of a subsection of a male-centric Indian Act, 1952 [“1952 Act”]. In debate is the meaning of the words, “an Indian” and “the Indian and his wife and minor unmarried children” found in subsection 108 (1), which cannot be understood without taking into consideration the entire section, the 1952 Act in both English and French, and the history of the Indian Act as a whole. The two versions of the Act are authoritative, the words of both English and French (translated verbatim) must be examined to understand the intention of the legislature.

When a court is called upon to interpret a statute, particularly one relating to the Aboriginal peoples, in addition to adopting a straightforward non-technical liberal purposive approach that resolves doubts or ambiguities in their favour, it should not engage in carrying out its task in a vacuum devoid of all realities before it. In interpreting a historic legislation such as the Indian Act that contains oppressive provisions, such as subsection 108 (1) of the 1952 Act, the court should not engage in merely an academic exercise.

Subsection 108 (1) was resorted to in 1965 to voluntarily enfranchise Annora’s paternal grandmother, Margaret Laura Hele. At the time, Margaret was twenty-five years old, educated, self-sufficient, and not yet married. She spent several years teaching in a number of cities in northern and southern Ontario. After she left the reserve, Margaret’s mother began to receive calls and visits from band councillors demanding to know why Margaret was not filing for enfranchisement. These councillors insisted that Indian women who had either married or who were going to marry a non-Indian in any event could no longer retain the right to be a member of the band. Conceding to the pressure, Margaret voluntarily enfranchised. Four years later, Margaret married a non-Indian Canadian. Despite the applicable legislation, this marriage had no effect on Margaret’s Indian status as she was by then already voluntarily enfranchised. Had Margaret not been enfranchised, she would have lost her Indian status by operation of law on the day of her marriage.

In 1985, due to compelling social and political reasons, section 108 of the 1952 Act was repealed and enfranchisement in Canada was abolished. Margaret filed to be registered as an Indian, and for her children living with her. In 1987, as a result of the amendments to the 1985 Act, their Indian status was restored. Shortly after Annora’s birth, the Appellant, filed an application with the Indian Registrar to register her as an Indian. The Indian Registrar refused to register Annora as an Indian based on the provisions of the 1985 Act. The Appellant then filed a protest of the Indian Registrar’s decision pursuant to section 14.2 of the 1985 Act. The main ground of protest was that in 1965 the Governor in Council had no competence under the 1952 Act to enfranchise Margaret, who was an unmarried Indian women.

The Indian Registrar concluded that since Margaret had been enfranchised voluntarily pursuant to section 108 of the 1952 Act, Annora was not entitled to be registered as an Indian. Had Margaret lost her Indian status four years later as a consequence of her marriage to Laurence, there would be no second generation cut-off under the 1985 Act, and the answer would be different.

The only relevant issue before this Court is the correctness of the Indian Registrar’s decision. The question that requires an answer in this appeal is whether subsection 108 (1) of the 1952 Act permits the voluntary enfranchisement of an unmarried Indian woman? The Court’s answer to the above question is no. Subsection 108 (1) of the 1952 Act did not permit in 1965 the enfranchisement of Margaret who was an unmarried Indian woman. The same conclusion holds today when subsection 108 (1) is examined in light of modern interpretive rules and the current socio-political context. There is no ambiguity in the text or language of subsection 108 (1) as they are not reasonably capable of more than one meaning when considered in their entire context.

Enfranchisement was never a right even though historically it was viewed as a privilege. Enfranchisement, which used to be the cornerstone of the Canadian federal government’s assimilation policies towards Aboriginal peoples, was abolished in 1985. The federal government today would not pass a law that would encourage or allow Margaret to enfranchise herself. It would be mistake in law today to interpret subsection 108 (1) of the 1952 Act as allowing Margaret to enfranchise herself voluntarily in 1965.

Sections 108 and 109 of the 1952 Act, as amended in 1956, are the only statutory provisions that existed and applied to Margaret at the time she was enfranchised in 1965. Neither section permitted in 1965, nor does either section permit today, the voluntarily enfranchisement of Annora’s grandmother, Margaret, as an Indian.

The Indian Registrar decided incorrectly when she concluded “that prior to 1952 the Indian Act was amended to allow men or women over the age of twenty-one to enfranchise.” The Indian Registrar therefore erred in law, when she concluded in 2017 that the Governor in Council had the power to enfranchise unmarried Indian women pursuant to subsection 108 (1) of the 1952 Act, and when she rejected the Appellant’s protest application to register Annora as an Indian on that basis. Annora’s request filed through her father is granted and this matter is returned to the Indian Registrar to modify in the appropriate registry records the notation that Margaret Laura Hele was voluntarily enfranchised by Order in Council.

 

R v McKay, 2020 MBQB 106

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The Gladue analysis in this sentencing decision included attention to both the systemic and background factors of the Indigenous offender and his victim, which in this case were significant and central enough to make rehabilitation the key sentencing principle.

Indigenous Law Centre – CaseWatch Blog

Mr. McKay, a young Indigenous man from Berens River First Nation, a remote settlement 300 km by air north of Winnipeg, pled guilty to manslaughter. Upon returning home extremely intoxicated, he severely beat his mother who did not recover from her injuries and died months later. During the time she was comatose in a Winnipeg hospital, he was overheard at her bedside, sobbing and saying he was sorry. A stepbrother confronted him and Mr. McKay admitted he had hurt his mother. After her death, he was arrested a month later. He told police that he had hit her with a “glass thing”, and could not say why he attacked her.

This decision deals with setting a fit and appropriate sentence for Mr. McKay for this crime, in these circumstances. A Probation Services Pre-sentence Report [“PSR”] and an independent Gladue report was ordered, which in part connected Canada’s historical treatment of Indigenous peoples to Mr. McKay and the killing. It is well accepted that the Government’s role, since the early days of dealing with First Nations peoples, has had the effect of isolating, infantilizing, marginalizing, and traumatizing Indigenous societies like the Ojibwe (or Anishinaabe) of Berens River. These effects on Mr. McKay’s traditional community set the context for his life and experiences.

Mr. McKay’s upbringing was horrible. He has 12 brothers and sisters that were often raised in foster homes. Intermittently, he would be returned to the custody of his mother and father, but his relationship with his family was fractured. His parents struggled with alcohol and sniffing, which he ultimately started at age 13. He is not close to his brothers or sisters, some of whom have died. Family empathy and support is non-existent. Mr. McKay’s father died of alcohol abuse, and they were not close. Mr. McKay and his mother were very close, and supported and depended upon each other. He loved her and is deeply affected by having killed her.

Mr. McKay was formally diagnosed with partial Fetal Alcohol Syndrome (“pFAS”) at 24 months. He continues to suffer physical, cognitive and intellectual disabilities. Child and Family Services files indicate that Mr. McKay was neglected because of the family’s chronic alcohol addiction, solvent sniffing, domestic abuse and family violence. He would often be the target of teasing and beatings by his brothers, and even now has been threatened by some siblings, who say they would kill him if he returned to Berens River. For the most part, while Mr. McKay has been in custody since his arrest in October 2018, he has done well, including taking many programs. Importantly, he wants a good future but does not have a real idea or plan of how to get there.

A sentence imposed on an accused for a serious crime should be tailor-made in the sense that, mindful of principles of sentencing, it is appropriate to the circumstances of the offence and the particulars of the offender. The critical issue is to determine a sentence that would benefit and protect the community, as well as provide the best prospects of rehabilitation for Mr. McKay. Gladue factors loom large, which affect the assessment of moral culpability for this grievous offense. His moral blameworthiness is high, but not as high as it would otherwise have been but for Gladue factors, including his pFAS. In balancing all of the factors, rehabilitation must be an overarching concern. While denunciation and deterrence are important factors, they are moderated by the unusual circumstances here.

Mr. Kay is sentenced to 50 months of incarceration, from which 26 months’ time-in-custody credit shall be deducted for a go-forward custody sentence of 24 months less one day, as well as three years of supervised probation with conditions.

JE and KE v Children’s Aid Society of the Niagara Region, 2020 ONSC 4239

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Application for judicial review allowed. The Board’s conclusion to deny adoption by the Applicants was unreasonable. The best interests of the Child, who is identified as Métis, require that she not be uprooted from the only family she has ever known.

Indigenous Law Centre
Indigenous CaseWatch Blog

This is a successful application for judicial review from the Child and Family Services Review Board in Ontario [“Board”]. The three year old child in question [“Child”], upon her birth, was apprehended almost immediately by the Children’s Aid Society of the Niagara Region [“the Society”] and she was placed with approved foster parents, KE and JE [“the Applicants”]. KE and JE applied to the Society to adopt the child. DC-G and MG [“the Respondents”] also applied to adopt the Child. Neither family had any biological relationship to the Child although DC-G and MG had previously adopted two of the biological mother’s seven children by different fathers.

The Society’s investigation of the biological father raised the possibility that his paternal grandmother had been associated with Québec Métis. On further enquiry, the paternal grandmother advised the Society that she believed her father had “Indian blood” but this had never been confirmed and her parents were dead.

The Society approved the application of JE and KE and declined the application of DC-G and MG. The Society regarded the continuity of care and averting the risk of harm from disruption by moving the Child to another family, when there were no care-based reasons for doing so, as the dominant and overriding considerations in this case. DC-G and MG brought proceedings before the Board seeking to review the Society’s decision. The Board reversed the Society’s decision and directed the Society to place the child for adoption with DC-G and MG.

The Applicants are white, live in Ontario and are members of a Mennonite Brethren church community. The Respondents are also white, live in Ontario and are members of the Roman Catholic church. Neither faith has a particularly open or positive attitude toward LGBTQ issues, although both sets of parents applying to adopt the Child were clear that they would love and support the Child regardless of her eventual sexual or gender preferences.

It is obvious, given the evidence, that the Child would, as submitted by the Society, wish to remain with the only parents and family she had ever known rather than be uprooted and sent to live with strangers. While the weight to be given to this view would have been up to the Board, it was unreasonable not to consider the Child’s view at all. There was uncontested evidence before the Board that the Child had, over the course of three years living with the Applicants, developed a strong bond with the Applicants, their seven year-old son and the Applicants’ extended family. It was also uncontested that the Child had never met, or knew of the existence of, the Respondents or their adopted children. The Respondents suggested an openness to maintaining a relationship with the foster sibling, but there was evidence of openness on the Applicants part to maintain a relationship with the Child’s half-siblings also, which was not considered.

The Board belittled the Applicants’ efforts to learn about Métis culture as doing the “bare minimum,” but ignored the fact that the Respondents, on the evidence, had done effectively nothing prior to the hearing to learn anything about Métis traditions. In contrast, the Board relied exclusively on the Respondents’ prior involvement with Algonquin culture regarding one of their already adopted children. But, the burden of the Act is to recognize the distinct heritage and culture of Aboriginal peoples. First Nations, Inuit and Métis people are distinct peoples and the Board’s decision failed to recognize this (LE v Simcoe Muskoka Child Youth and Family Services (CFSYA s 192), 2019 CFSRB 86). As well, the Respondents’ education and adoption of Algonquin culture appears to have been developed over time after they had adopted their Algonquin-affiliated child. The Board, in taking the approach it did, held the Applicants to a standard that, by its own terms, was not met by the Respondents.

This Court found that the Board put too much emphasis on one couple’s past support of an Algonquin child that they had adopted. This was seen as “super-weighting” the relevance of Indigenous identity to adoption, which the Court found to be an inappropriate interpretation of Ontario’s current legislation (amended in 2017). It also bears emphasizing, given the Board’s approach to this case, that these mandatory and discretionary factors are not just abstract concepts; the extent of their applicability in a particular case must be rooted in an assessment of the evidence. They also noted that this was relatively unrelated to the alleged Quebec Métis heritage of the Child since the new legislation requires a distinction-based approach.

R v Gaudet, 2020 ONSC 3975

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This bail review summarizes how the Gladue principles can apply to bail. Not only has Indigenous programming in remand been suspended for the pandemic, the Indigenous accused’s asthmatic condition was also taken into account in this decision.

Indigenous Law Centre – CaseWatch Blog

Mr. Gaudet is an accused that identifies as Indigenous. Gladue principles and purposes apply to all situations where an Indigenous person’s liberty is at stake. Section 493.2 of the Criminal Code [“CC”] provides that a judge shall give particular attention to the circumstances of an Indigenous person in making a bail decision. The inference to be drawn from the accused’s sentencing record is that he is a regular but minor offence offender. In the last 5 years, the accused has been convicted of failing to attend court or compliance with conditions of undertaking, recognizance or probation five times. He had two assault convictions in that period. This latest stint of detention is his longest in the last five years.

This review centers on the impact of time and unreasonable delay on the proportionality of detention, the rational offered for the original detention order and any new information brought forward. The issue is whether continued detention in custody is justified five months later within the parameters of s 515(10), in the context of an accused who identifies as Indigenous in the midst of the pandemic that lugs in public health and trial scheduling concerns.

The right to reasonable bail is entrenched in s 11(e) of the Charter and is closely connected to other entrenched constitutional rights such as the presumption of innocence (s 11(d)), the right not to be arbitrarily detained or imprisoned (s 9) and the right to liberty and security (s 7). The Supreme Court of Canada iterates that the pre-trial release of accused persons is the cardinal rule and detention the exception (R v Myers, 2019 SCC 27). Section 493.1 of the CC provides that release on reasonable terms is favoured at the earliest reasonable opportunity on the least onerous appropriate conditions including conditions that are reasonably practicable for the accused to comply with.

Given that the examination of Gladue factors in sentencing is directed at diminished moral blameworthiness for an offence in sentencing, the same application without adaptation in a bail proceeding could inappropriately violate the presumption of innocence. The interaction of Gladue principles and s 515(10) cannot be brought to bear in a vacuum. Consideration might include the factors, such as colonization and so on and practices that disproportionately affect Indigenous persons and contribute to their over-incarceration. The principle of restraint in bail is codified in s 493.1. The interim release process is not the time to apply rehabilitative or reformative provisions. Provisions looking like probation or conditional sentence are problematic.

Trial bottlenecks in the criminal justice trial system arising from pandemic restrictions are for now frustrating that option. There are valid reasons for releasing the accused. Prospects for timely trial fade on a daily basis. It is also reported that the Indigenous support programs in the detention center were terminated in March and emphasized the importance of the loss of this support on the accused’s mental health. The accused also suffers with asthma, which is a tertiary ground circumstance. Living conditions at the detention center do not permit social distancing. The pandemic stands as a material change in circumstances since the accused’s last bail hearing.

The accused’s record indicates that he honours conditions when a breach would result in automatic incarceration. If the accused breaches, his only source of trusted support, Ms. Seguin will report it. She will post a bond without cash in the amount of $1,000. For a person in her financial circumstances that is a significant commitment and imports the tug of bail on her part. The accused is to enter into a recognizance with surety, Ms. Seguin. She knows she is undertaking the role of jailor and if she neglects her duties, she will be called on to pay up.

 

R c Charlish, 2020 QCCQ 2438

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In keeping with the sentencing principles, including a focus on Gladue factors, the Aboriginal accused has been granted a last chance of a total sentence of 90 days to be served intermittently and supervised probation that includes an essential focus on therapy.

Indigenous Law Centre – CaseWatch Blog

The accused is an Aboriginal person who is a member of the Mashteuiatsh Innu Nation. Paragraph 718.2(e) of the Criminal Code provides that the court must take into consideration all available sanctions, other than imprisonment with particular attention to the circumstances of Aboriginal offenders.

In 2018, the accused entered a guilty plea to a charge of trafficking cocaine. Presentence and Gladue reports (R v Gladue, [1999] 2 CNLR 252) were ordered. Despite the presence of aggravating factors, such as objective gravity and the scourge of drugs in the community, the court accepted the defence’s position and imposed an intermittent sentence of 60 days with two years’ probation, including 18 months with supervision, and 100 hours of community work.

The accused continued to use cannabis but reduced the quantity and for a time stayed away consumption. During submissions on sentencing in this matter, the Court granted the application of counsel to file the presentence and Gladue reports that were previously prepared because they remained relevant. The reports highlighted that since childhood, the accused has been exposed to instability, violence, and substance use. He is aware of the problem and has consulted an addiction counselor, but has not managed to remain abstinent. The accused has a spouse with substance abuse issues as well, with whom he lives with, along with their two young children in the Mashteuiatsh community.

The Court asked for information on the programs available in the community. There are no justice committees in Mashteuiatsh. The Court refers to the work of the “Viens Commission”, a Public Inquiry Commission on relations between Indigenous Peoples and certain public services in Québec that focus on listening, reconciliation and progress. The Viens Commission describes the roles and responsibilities of justice committees as varying with each community’s needs and priorities. In general, it can be said that their goal is to offer an alternative to or complement the structures of the existing justice system. They take care of a number of things, including diversion, sentencing recommendations, supervised probation, suspended sentences, conditional release, authorized leave, crime prevention and community support such as healing circles, offender reintegration and citizen mediation.

However, there are other resources available in Mashteuiatsh to all types of clients. There is a housing resource that is a community organization that some members of the Mashteuiatsh community attend. It helps those suffering from issues related to substance abuse or addiction. With respect to Aboriginal clients, there is the Centre Kapatakan Gilles-Jourdain in Mani-Utenam, near Sept-Îles. It is an organization accredited by the Ministère de la Sécurité publique whose mission is to provide services adapted to Aboriginal values and traditions to Innu adults and other First Nations members, with the objective of healing and rehabilitation. There is also the Wapan rehabilitation centre in La Tuque. It provides treatment and follow-up services to First Nations adults. Mashteuiatsh social services can also provide support and direct a person to the appropriate resources, to the extent that they are willing and participate in the follow-up required.

In this case, the accused has been noted as open and cooperative. Before his relapse, he had made sincere efforts to change. The accused decided to testify and was transparent and described his drug addiction. He now realizes that he must get to the root of the problem and that long-term therapy is needed even if that causes him to be away from his family. He realizes that he is reproducing for his children the conditions that has led to his own substance use.

Cocaine trafficking is an objectively serious offence, for which the offender is liable to imprisonment for life. What is more, this case concerns a subsequent occurrence of the same offence for which the accused was convicted a few months earlier, along with a breach of probation. However, the Court cannot ignore the unique systemic and background factors that are mitigating in nature in that they have played a part in the Aboriginal offender’s conduct. The Supreme Court of Canada urges sentencing judges to address the sources of the problem rather than reproducing the “revolving door cycle in the courts” (R v Gladue; R v Ipeelee, [2012] 2 CNLR 218).

The accused is granted a last chance with a total sentence of 90 days to be served intermittently and supervised probation including the essential focus on therapy. To prioritize that initiative and taking into consideration the accused’s family obligations, the Court will not add community work.

‘Namgis First Nation v Mowi Canada West Ltd and Canada (Fisheries, Oceans and Coast Guard), 2020 FCA 122

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Application allowed. There were concerns from a First Nation involving a salmon farming licence after learning of new scientific evidence regarding potential spread of disease. A novel adverse impact that arises since an original consultation, creates a fresh duty to consult.

Indigenous Law Centre
Indigenous CaseWatch Blog

‘Namgis First Nation’s traditional territory is at the north end of Vancouver Island and includes a number of the adjacent islands, including Swanson Island, which lie between Vancouver Island and the mainland. A number of distinct wild salmon populations are found in this area. These populations are critically important to ‘Namgis for food, social and ceremonial purposes. Mowi operates an open net salmon facility adjacent to Swanson Island. That facility has been there since the early 1990’s and has been stocked with salmon during that period except for fallow periods between harvesting and restocking.

Restocking open-net facilities is at the heart of this litigation because there is an uncircumscribed risk of introducing disease agents into the waters used by wild salmon. That risk arises from the transfer of immature salmon, or smolts, from inland fish stations to the open-net aquaculture facilities. If disease-bearing fish are introduced into these waters and if those diseases spread to the wild salmon stocks, the results could be calamitous and perhaps irreversible.

‘Namgis First Nation appeals from the decision of the Federal Court dismissing its application for judicial review of the Minister of Fisheries and Oceans’ [“Minister”] decision to issue a Salmonid Introductions and Transfer Licence [“Licence”] to Mowi Canada West Ltd. [“Mowi”]. The Federal Court had before it three separate but closely related applications for judicial review which it dealt with in one set of reasons (Morton v Canada (Fisheries and Oceans), 2019 FC 143).

All three applications revolved around two risk factors for wild Pacific salmon in ‘Namgis’ asserted territory. The first is Piscine Orthoreovirus [“PRV”], a highly infectious virus that is known to be present in Canada. PRV is found in both farmed and wild salmon in British Columbia. The second is Heart and Skeletal Muscle Inflammation [“HSMI”] which is an infectious disease found in farmed Atlantic Salmon and has appeared in one aquaculture facility in British Columbia. ‘Namgis is convinced that PRV and HSMI pose a threat to the wild salmon stocks which it relies on for food, social and ceremonial purposes. The Minister views the threat level as very low. The science as to the relationship between these two threats, their prevalence, and the risk they pose to wild (as opposed to farmed) salmon is evolving.

Given the history of consultation between these parties, the issue is not whether there is a duty to consult in the abstract but rather whether a fresh duty to consult arose. The Federal Court’s reasoning does not address the question of whether a novel adverse impact had arisen since the original consultation, which would create a fresh duty to consult.

The third element required in the test for a duty to consult calls for a generous, purposive approach recognizing that Crown action has the potential to irreversibly affect Aboriginal rights (Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73; Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43 [“Rio Tinto”]). The adverse affect cannot be merely speculative, and it must be relevant to the future exercise of the Aboriginal right. The assessment of the duty to consult is forward looking. Prior and continuing breaches, including prior failures to consult, will only trigger a duty to consult if the present decision has the potential of causing a novel adverse impact on a present claim or existing right (Rio Tinto).

The science around PRV and HSMI is rapidly evolving so that it was not specifically covered in the original consultations concerning fish health. The risk of harm to the native salmon stocks may be greater than the Minister previously contemplated, thus the finding of a novel adverse impact.

Acho Dene Koe First Nation v Minister of Industry Tourism and Investment, 2020 NWTSC 19

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Application dismissed. This matter is not subject to judicial review as it seems to be of a private contractual nature brought forward by a First Nation, therefore it is not of a sufficiently public character to bring into the public law realm.

Indigenous Law Centre CaseWatch Blog

The Acho Dene Koe First Nation [“ADKFN”], claims Aboriginal title over lands upon which oil and gas exploration was being conducted by Paramount Resources Ltd. [“Paramount”], Chevron Canada Resources [“Chevron”] and Ranger Oil Limited [“Ranger”]. Neither the status, nor the validity of the ADKFN’s claim to Aboriginal title are before the Court.

The Director of Mineral and Petroleum Resources of the Department of Industry, Tourism and Investment for the Government of the Northwest Territories [“Director”] received a letter from the ADKFN explaining that the First Nation had entered into benefit agreements, called Community Investment Plans (“CIPs”), with Paramount, Chevron and Ranger. ADKFN asserted that each CIP related to specific licenses and interests held initially by each of the companies, and subsequently assigned to Paramount. ADKFN also asserted that the CIPs ran with the land to which the license and interest pertained and that Paramount, as the assignee, was bound by the CIPs with Chevron and Ranger, as well as its own.

Each CIPs’ stated purposes were to formalize the relationship between each of Paramount, Chevron and Ranger and ADKFN, and to provide for ongoing development of community relations. Among other things, they provided for financial contribution to a community development fund for the benefit of ADKFN members and a commitment to provide business opportunities to ADKFN members upon certain core competencies being demonstrated.

Although breaching of the CIPs is not before the Court, in its letter to the Director, ADKFN alleged that Paramount breached the CIPs and that consequently, Paramount was in violation of any licenses, permits or approvals that are contingent on compliance with such agreements. The Director replied by providing a general explanation of the benefits plans and approval process, noting that a benefits plan includes a commitment from the operator to implement strategies for training and employment, and procurement and contracting, but does not generally include guaranteed outcomes. He also noted that during the approval process, operators may enter into private contracts, such as the CIPs provided by ADKFN, to implement the strategies in the benefit plan, but that the terms of any private agreement do not thereby become terms of the benefit plan.

The AKDFN asks this Court to determine whether the Director in his letter erred by not assessing whether Paramount had complied with the benefits plans, declining to enforce the CIPs, and determining that the benefits plans are privileged. The Court finds that the Director’s letter is not subject to judicial review. The Director was not acting in accordance with “state authority” and the issues put before him were not of a sufficiently public character to bring the matter into the public law realm. He was not exercising a statutory or other public law power and, therefore was not acting as a tribunal. The Director received letters from ADKFN’s counsel, making a number of requests in relation to something that is entirely a private law matter. His response to the ADKFN did not become a tribunal and ADKFN’s interest did not take on a public dimension.

Even if a judicial review was allowed, it would be dismissed as the Director’s conclusion on the nature of the benefits plans as well as the Minister’s obligation to enforce the CIPs, would be assessed on a standard of reasonableness. His conclusion on the privilege question would be assessed on a standard of correctness as the privilege is statutorily protected. The Director’s assessment of the nature of the benefits plans is both reasonable and correct.

The Government’s duty to consult was not engaged because at the heart of ADKFN’s concern is a private contractual dispute with Paramount, not a proposed government action or decision. All that the ADKFN requested was an “enforcement” of the CIPs, in furtherance of its private contractual dispute with Paramount. That is something which neither the Minister, nor the Director have the authority to do and it is not altered by the Government’s fiduciary obligations to the ADKFN.

While the Director is employed in the public service, there is nothing in the applicable statutes that confers authority or imposes a duty upon him to decide or enforce anything, nor is there any evidence that any such authority or duty has been delegated to him. Accordingly, the Director does not fall into the category of a “public officer” in these circumstances.

 

Laliberte v Day, 2020 FCA 119

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Reply

Appeal dismissed. The motion judge made no reviewable error in granting the carriage of a proposed class proceeding to a representative plaintiff on behalf of Métis and Non-Status Indian groups affected by the Sixties Scoop.

Indigenous Law Centre – CaseWatch Blog

The Sixties Scoop was a federal program under which Status Indian, Inuit, Métis, and Non-Status Indian children were taken from their parents and placed in non-Indigenous foster homes or put up for adoption. This appeal concerned the carriage of a proposed class proceeding on behalf of Métis and Non-Status Indians affected by the Sixties Scoop. In the settlement of the Sixties Scoop litigation approved in Riddle v Canada, 2018 FC 901, and Brown v Canada (AG), 2018 ONSC 3429, Status Indian and Inuit Sixties Scoop survivors were only included.

Two motions were brought and heard together in the Federal Court seeking carriage. One motion sought carriage for a proposed representative plaintiff in Day v AG of Canada, represented by two law firms based in Toronto [“Day action”]. In the order under appeal, the Federal Court granted carriage to the plaintiff in the Day action, and stayed the other three actions [collectively as the “LMO action”]. The order was the first contested carriage order issued by the Federal Court. Counsel for the LMO action submit that the motion judge committed both errors of law and palpable and overriding errors of fact in granting carriage to the plaintiff in the Day action.

The motion judge found Mr. Day to be a better representative plaintiff because he reflected the type of circumstances and damage that is common to both the Métis and Non-Status Indian groups and was a textbook claimant and a mirror for both Indigenous components of the litigation. Counsel for the LMO action submits that the motion judge’s treatment of this factor amounted instead to imposing a requirement that the representative plaintiff be typical of the class (Western Canadian Shopping Centres Inc v Dutton, 2001 SCC 46).

The Court does not agree that in going on to consider Mr. Day’s circumstances and the nature of the damage that he claims, the motion judge improperly imposed a typicality requirement. The motion judge instead treated the dispute as one that would be litigated to its conclusion, and recognized that Mr. Day personified some of the worst consequences of the Sixties Scoop. His circumstances and the damage he claims was an advantageous platform for a claim on behalf of the class.

The factors that may be considered in a carriage motion are not ends in themselves. Rather, they are means of assisting the court, in the unique context of each case, to determine the best interests of the class (Mancinelli v Barrick Gold Corporation, 2016 ONCA 571; Strohmaier v KS, 2019 BCCA 388; and McSherry v Zimmer GMBH, 2012 ONSC 4113). Not only are these factors not exhaustive; they are also not watertight compartments (Quenneville v Audi AG, 2018 ONSC 1530; Winder v Marriott International Inc, 2019 ONSC 5766; and Rogers v Aphria Inc, 2019 ONSC 3698).

One of the comparisons the motion judge drew was between the litigation experience of the two sets of counsel. He found that both have extensive class action experience, both have experience in the Sixties Scoop and residential schools class actions, and both have experience acting for Métis people, but counsel in the Day action have experience acting for Non-Status Indians as well.

The motion judge saw as leap-frogging the addition of Non-Status Indians to the class definition in the LMO action after the carriage motions had been scheduled. In the carriage motion context, “leap-frogging” refers to an attempt by one contender for carriage to improve its position after the motion has been scheduled by taking the benefit of the work of another contender; for example, by a copycat amendment to pleadings (Mancinelli et al v Barrick Gold Corporation et al, 2015 ONSC 2717, affirmed 2016 ONCA 571 [“Mancinelli”]). A rule has been rejected that carriage motions be decided based on a “freeze frame” as of the date the motion is filed, however, the court should be suspicious of conspicuous new activity after the filing of a carriage motion or of any attempts to ‘leapfrog’ a lagging action ahead of a more advanced one (Mancinelli).

R v Sabattis, 2020 ONCJ 242

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Reply

Application dismissed. The applicant, a young Indigenous first offender, has not established that the mandatory minimum sentence results in a grossly disproportionate sentence for either herself or for other persons in reasonably foreseeable cases.

Indigenous Law Centre – CaseWatch Blog

A young Indigenous first offender was found guilty of impaired driving and operating a motor vehicle while her blood alcohol concentration exceeded 80 mg/100 ml of blood, contrary to s 253(1)(a) and s 253(1)(b) of the Criminal Code.

In this matter, the applicant submits that a curative discharge is most appropriate, but this remedy is not available because the Criminal Law Amendment Act allows Ontario to decline to proclaim the Criminal Code provision for a curative discharge into force. As a mandatory minimum sentence for a first offence, the applicant must pay a $1000 fine, and receive a one-year driving prohibition. The applicant alleges that the Criminal Law Amendment Act, violates the applicant’s s 15 Charter rights by allowing the provinces to opt out of the curative discharge provisions. This disregards Gladue principles, causing “differential treatment” of Aboriginal offenders and other members of society in the sentencing process. As well, she submits that the mandatory minimum sentence subjects the applicant to cruel and unusual punishment contrary to s 12 of the Charter. In respect of both alleged breaches, the applicant submits that the provisions are not saved by s 1 of the Charter and therefore seeks the imposition of a curative discharge as a remedy.

The Court finds that the applicant has not established that the mandatory minimum sentence results in a grossly disproportionate sentence for either the offender or for other persons in reasonably foreseeable cases. Similarly, the applicant has not established that the non-proclamation of the curative discharge provisions results in a grossly disproportionate sentence contrary to s 12 of the Charter. Given the finding that there is no violation of s 12 or s 15 of the Charter, the Court is bound by the mandatory minimum sentence. Using the relevant sentencing principles including Gladue principles, and having regard to the circumstances of the offence and of the offender, it is the Court’s view an appropriate sentence is a $1200 fine, a 15-month driving prohibition, and probation for a period of two years with the requirement that the offender attend counselling as directed by her probation officer related to her consumption of alcohol and other counselling as directed.

The fine and prohibition imposed is greater than the statutory minimums to recognize the need for denunciation and deterrence, the aggravating factors of the case, and to give effect to s 255.1, which provides that evidence of a blood alcohol concentration in excess of 160 mg/100 ml of blood is a statutorily aggravating factor. This non-custodial sentence, which includes two years probation with a requirement for alcohol counselling, recognizes the importance of rehabilitation for this youthful first offender and takes into account the restorative Gladue principles. The Court is satisfied that alcohol counselling is a necessary rehabilitative component of the sentence. This sentence is still at the lowest end of the range of what is appropriate given the aggravating features of the offence, but also reflects the significant mitigating personal circumstances of the offender.