Tag Archives: Indigenous

MCW v BC (Director of Child, Family and Community Service), 2019 BCPC 289

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An Indigenous mother’s application to restrict access visits organized by the Director with community members that are not the foster family is dismissed.

Indigenous Law Centre – CaseWatch Blog

The Director in this matter has applied for a continuing custody order [“CCO”] with respect to four children of Indigenous heritage, that were placed in the Director’s temporary care. The biological mother seeks to prohibit the Director from permitting persons that are related to the children and are connected to an Indigenous community, from having access to the children, for fear that the children may be traumatized now that they are used to their non-Indigenous foster family.

MCW is the biological mother of five children. All of her children’s lives have been subjected to temporary placement and interim orders, including orders of supervision while in the care of their mother intermittently. The foster parents of the four youngest children have remained supportive of the mother and have provided the children a loving environment. While the mother is supportive of transferring custody of her children to the foster parents, there has been resistance from the Lake Babine Nation, as they are opposed to Indigenous children being placed in non-Indigenous homes. The Ministry, along with assistance from the Lake Babine Nation, attempted to cultivate a relationship between one of the children and her half-sister. The mother described the removal of one of her children to spend time with the half-sister as traumatic, and feared the Ministry was attempting to break up the four youngest children. The Director submitted that facilitating visits between the two siblings did not constitute abuse or harm. Cultivating this connection is part of the Director’s obligation to maintain or facilitate contact with the extended family of a child in care.

Due to the contentions MCW had surrounding these proceedings, she filed an application for an order restricting access to the children. The mother relied on ss 2(a) and 98(1)(c) of the Child, Family and Community Service Act [“CFCSA”]. The Director referenced Bill C-92 to justify the CCO. Bill C-92 establishes that, when determining the best interests of an Indigenous child, primary consideration is given to the child’s physical, emotional and psychological safety, security and well-being and emphasizes Indigenous children’s right to stay with their families and communities and grow up immersed in their cultures.

Facilitating visits between the one child and her half-sister fell squarely within the Director’s legislated rights, duties and responsibilities as her custodian and guardian. While the visits got off to a rocky start, the submissions that the transitions were then trouble-free were accepted. The visits did not constitute the type of explosive, abusive, or intimidating conduct that s 98 of the CFCSA was intended to target. Accordingly, the mother’s application for an order restricting the access to her children was dismissed.

R v Robinson, 2019 BCPC 273

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Defendant found guilty. The Wabalisla Street on the Bella Bella Indian Reserve is a road within the definition of a “highway” as set out in the Motor Vehicle Act.

Indigenous Law Centre
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The defendant was charged with driving while prohibited, contrary to s 95(1) of the Motor Vehicle Act [“MVA”]. The issue was whether the Crown proved beyond a reasonable doubt that Wabalisla Street located on Bella Bella Indian Reserve is a road within the definition of a “highway” as set out in the legislation. The analysis fell into two areas of consideration: 1) was the road designated or intended for or used by the general public for the passage of vehicles, and 2) are Aboriginal persons living on a reserve members of the general public.

The defence argued the reserve is in essence a closed community and any others who might use the street do so only to the extent which is incidental to the ownership of reserve property. Further, as the community is only accessible by water or air, any of the roads are thus precluded from the characteristics of a public highways within the meaning of the MVA. Bella Bella is a final destination, not a point of passage from one destination to another.

Albeit, there was investment in the network of transportation infrastructure that the community has either expressed or implied invitation to the general public to drive on their roads. The pursuit of tourism gave additional weight to this conclusion. There are numerous community-based resources along this roadway. It has traffic signs, is paved and is passable by two conventional cars. All persons are welcome on the reserve without restrictions or regulations. The defence also submitted that as the community had enacted their own by-law for the regulation and use of vehicles on their reserve pursuant to s 81(1)(f) of the Indian Act, this was evidence of their intent not to be subject to the MVA.

The fact that the community has a parallel regulatory by-law is not demonstrative that they have thus occupied the field through their regulations governing driving nor does it establish an intention not to be bound by the MVA. The defence says that a reserve road used by reserve residents is not a public road and is therefore, not a highway under the MVA. The Crown submits that the definition of a “highway” under the MVA, has use by the general public, which includes those Aboriginal members living on a reserve. The legislative purpose of s 95(1) of the MVA is to provide public protection against those prohibited from driving. The 1800 residents of the Bella Bella Reserve is not a trivial number of people. Collectively, they constitute the “general public”. There is nothing in the MVA that excludes individuals living on a reserve to be considered part of the general public. Therefore, the Crown has proven beyond a reasonable doubt that Wabalisla Street in Bella Bella is a highway under the MVA.

Nogdawindamin and AW, BS and BFN, 2020 ONSC 40

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Appeal granted. Findings of Indigenous heritage requires more than a simple statement of self-identification from an applicant. The need for an evidentiary foundation of connection is a prerequisite for any finding under s 90 of the Child, Youth and Family Services Act.

Indigenous Law Centre – CaseWatch Blog

This is an appeal by the Batchewana First Nation [“Batchewana”] on an order of a motions judge that determined on an interim basis, whether a child in need of protection had an Indigenous background as per s 90 of the Child, Youth and Family Services Act [“Act”].

This Court agrees with Batchewana’s position that the motions judge erred when he decided that, based upon the evidence before him, the child in question had sufficient connection to Batchewana so as to be affiliated with the First Nation for purposes of the Act. Batchewana has not found a community connection of the child to the First Nation. The concern is that the motion judge’s decision could open the floodgates for any claimant to effectively acquire band status or other benefits.

There is considerable precedent to suggest that findings of Indigenous heritage require more than a simple statement from an applicant (Catholic Children’s Aid Society of Toronto v ST, [2019] OJ No 1783; Bruce Grey Child and Family Services v ABC, 2018 ONCJ 516; Children’s Aid Society of the Regional Municipality of Waterloo v CT, [2017] OJ No 6324 (ONCA); Children’s Aid Society of Ottawa v KF, 2015 ONSC 7580). Indigenous membership has expanded to include self-identification, however, there still must be evidence in relation to the child so a determination can be made as to whether access is beneficial and meaningful to them.

In this instance, the evidence relied upon by the motions judge does not meet the necessary threshold. The only evidence is the self-identification of the father, that is found to be insufficient evidence as per the case law. The need for an evidentiary foundation is a prerequisite for any finding under s 90 of the Act. Were this not the case, it is conceivable that numerous people coming before the courts could self-identify as a member of Batchewana, leaving the band with insufficient resources to assist those in need, which constitutes an error in law (Housen v Nikolaisen, 2002 SCC 33). Appeal granted. The matter is remitted to the Ontario Court of Justice for a new hearing.

R v Matchee, 2019 ABCA 251

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There were errors of law present in the sentencing judge’s assessment of the offender’s Gladue factors and moral blameworthiness. The sentence has been reassessed.

Indigenous Law Centre – CaseWatch Blog

Mr. Matchee appealed his seven-year custodial sentence on the basis that the sentencing judge erred by not giving effect to Gladue factors. The sentencing judge’s desire to avoid the appearance of a “race-based discount” was demonstrated by an error of law that Gladue factors do not apply to serious offences – Gladue factors apply to all offences. There was a failure to recognize a connection between the offender’s mother and grandmother’s attendance at residential schools and his current circumstances. In turn, Mr. Matchee’s mother’s substance abuse led to his eventual placement in foster care and abuses suffered there during the first 10 years of his life. The sentencing judge made an error to deny the link. Lastly, the view of any community on what is an appropriate sentence is not an animating principle of sentencing law in Canada – to the extent these comments impacted the sentence, this was an error. Due to these reasons, sentencing must be assessed again.

The harm to society in the undermining of people’s security and safety in their homes, as well as the harm to the victim, is significant in assessing the gravity of the offence. Mr. Matchee had many opportunities to leave but chose not to. He was on probation at the time of the offense and has a long-related record. The pre-sentencing report indicated a failure to take responsibility for his actions or has not taken any positive steps to try to address the underlying issues that have been identified. The factors identified above, in particular the lack of any stable home until 10 years of age, sexual and physical abuse, no meaningful connection with his mother or father, an interrupted connection with his Aboriginal culture, lack of education and employment, diminish his blameworthiness for the current offences.

Taking into account the errors in the application of Gladue factors and the inadequate assessment of Mr. Matchee’s moral blameworthiness, a fit sentence for this offender and these offences is a period of six years incarceration. The other sentences and ancillary orders are unchanged. The net sentence, after the deduction of three years 7.5 months credit for pre-sentence custody, is two years 4.5 months.

 

R v Georgekish, 2019 QCCQ 2341

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After weighing the sentencing principles with information provided by a Pre-Sentence Report and a Gladue Report, it was determined that deterrence and denunciation should heavily shape a fit sentence due to the gravity of the offence.

Indigenous Law Centre – CaseWatch Blog

The offender was intercepted by police on the highway in possession of a large quantity of cocaine she was sent to purchase with money from her sister, before she got back to her home community where she intended to sell it. The offender plead guilty and at the time of the offence, she only had a few prior convictions. She is a member of the Cree Nation and a mother of six children. The Court ordered a Gladue Report to be written in which it was determined that both her parents attended residential schools, and was the victim of years of neglect, violence and abuse. The offender suffered with addictions throughout her life starting at a young age, and she was placed in a youth protection program for multiple years away from her family. She had lost a child the year prior to the offence and had not received any grievance support or services.

The Court considered multiple aggravating factors such as the quantity of drugs the accused had in possession, the nature of the drugs, the risk of reoffending, past convictions, the lack of empathy and to take responsibility, but also the vulnerability of the community where the drugs were to be sold. The Court also considered the mitigating circumstances such as the guilty plea, the offender’s collaboration with the police, the crime being one transaction, and the historical and systemic factors as an Aboriginal offender. With these considerations in mind, the Court sentenced the offender to a 20-month detention sentence and a 3-year supervised probation.

Siksika Health Services v Health Sciences Association of Alberta, 2019 ABCA 494

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Appeal dismissed. The chambers judge did not err in denying judicial review and affirming the decision of the Alberta Labour Relations Board in accepting jurisdiction over labour relations issues involving the parties.

Indigenous Law Centre
Indigenous CaseWatch Blog

The appellant [“Employer”] appeals the chambers judge’s decision denying judicial review and affirming the decision of the Alberta Labour Relations Board to accept jurisdiction over labour relations issues involving the parties.

The specific operation of Siksika Emergency Medical Services [“SEMS”] is governed by an agreement between the Employer and Alberta Health Services, the provincial health authority. SEMS provides emergency medical services based in the First Nation in accordance with provincial regulation in return for monthly provincial payments. The Employer is also able to direct bill patients for services. The agreement between Alberta Health Services and Siksika Health Services Corporation [“Agreement”] includes the following policy and interpretive statement: “The parties acknowledge the historical and contemporary importance of the treaties to the relationship between the Crown, Canada and Siksika Nation. It is intended that nothing in this Agreement shall have the effect of, or be interpreted as, limiting or expanding any fiduciary relationship between Canada and the First Nations people.”

The respondent [“Union”] was not a party to the Agreement but the Union did not challenge this background philosophy. In this respect, both Canada and the province are expected to live up to the honour of the Crown in their dealings with Treaty and Aboriginal rights. The Union sought certification as the bargaining agent for all ambulance attendants employed with SEMS.

The Employer takes the position that all of the workers in SEMS and under its authority are performing tasks which amount to carrying out a federal undertaking respecting the supply of health and medical services to the people covered by the Treaty and to the First Nation. As such, the Employer argues that it is a federally regulated employer and any labour matters should be dealt with under federal rather than provincial legislation. The Board and the chambers judge had found otherwise.

The role of this Court is to step into the shoes of the chambers judge when it comes to reviewing the decision of the Board (Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36). A court must first apply the functional test to examine the nature, operations and habitual activities of the entity to see if it is a federal undertaking. If so, its labour relations will be federally regulated. Only if this inquiry is inconclusive should a court proceed to an examination of whether provincial regulation of the entity’s labour relations would impair the core of the federal head of power at issue (NIL/TU,O Child and Family Services Society v BC Government and Service Employees’ Union, [2010] 4 CNLR 284 [“NIL/TU,O”]).

The chambers judge concluded that the functional analysis in NIL/TU,O did not support the Employer’s position and dismissed the application for judicial review. It was concluded that the Board correctly found that the presumption of provincial regulation of labour relations was not rebutted in this case and that the Board correctly determined it had jurisdiction over the Union’s certification application.

The Employer argues that because the Indian Act included certain provisions related to the medical and health services for the First Nation, then Parliament had made “provision” for the subject of medical and health services for the First Nation. The Employer said the duty of Canada to provide medical and health services to the First Nation could in part be derived from the “medicine chest” reference in Treaty No 6. That concept has evidently been accepted by Canada as influencing the promises to “take care of you” in the development of Treaty No 7 governing the lands in Alberta where this First Nation is located. The Employer referred to the language of Treaty No 7, which attracts a liberal reading in relation to the promises made to Aboriginal people as re-affirmed by s 35 of the Constitution Act, 1982.

The Court’s role on this appeal of a judicial review decision is restricted to determining whether the chambers judge erred and whether the Board erred in taking jurisdiction to the extent that it did so. This Court will not express any opinion beyond a legality determination respecting what the Board did, let alone express any policy perspective on any aspect of the ongoing effort to achieve social and legal reconciliation of Canadian society with Indigenous peoples.

The Court found no error in the chambers judge conclusion that the Employer’s position was without merit after applying the functional analysis in NIL/TU,O. Funding by Canada alone would not constitute direction of the work being done. The Agreement sets standards and links the service to compliance with laws and guidance applicable otherwise to similar medical and health services in Alberta.

Application of the functional test to the facts found here does not lead to the conclusion that SEMS is a federal undertaking under NIL/TU,O. Section 88 of the Indian Act extends provincial laws to Indians ex proprio vigore except to the extent those laws impair “the status and rights of Indians” (NIL/TU,O). The provision of medical and health services to members of the First Nation arises from their position as human beings, not from any specific ethnicity. While the duty of Canada to Aboriginal people is more general, the specific topic of medical and health services for Indigenous peoples is to their benefit as people living in Alberta. The Employer has not shown that the application of provincial labour relations laws to the SEMS work force impairs in any serious sense the “status or rights of Indians”.

R v Kowtak, 2019 NUCJ 03

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Appeal allowed. The Justice of the Peace is required to consider Gladue factors in crafting an appropriate sentence. This was an error in law that justified an appellate intervention. A conditional discharge is a fit sentence for the appellant.

Indigenous Law Centre
Indigenous CaseWatch Blog

The appellant was at home, and while intoxicated and arguing with her spouse, assaulted her 15-year-old-daughter who attempted to intervene. The accused plead guilty and received a suspended sentence with nine months probation and a $100 victim fine surcharge. This is an appeal of that sentence on the grounds that the Justice of the Peace failed to consider Gladue factors, made impermissible statements about the accused, and deferred to the Crown’s position as presumptively reasonable.

It was determined in this appeal that the sentencing Justice of the Peace made an “impermissible speculation” about the accused’s lack of previous criminal record (R v Morrissey, 22 OR (3d) 514). The presumptive reasonableness of the Crown’s position was reviewed, and it was decided that the Justice of the Peace accepted the recommendation without considering the Defence recommendation. Any official deciding on an appropriate sentence must hear and consider both positions before deciding on a sentence. Further, there was no consideration of whether a conditional discharge would be appropriate, and this impacted the sentence. After considering these factors, and the role and value of Community Justices of the Peace, it was determined that the Justice of the Peace made a significant error in law as well as errors in the principle that affected the sentence in the case.

In deciding the sentence, the circumstances of the offender, and the applicable sentencing principles, including aggravating and mitigating factors, were considered. The Court followed s 718.1, which requires that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. The charge of assault is statutorily aggravated under ss 718.2(a)(ii.1) and (iii) because it was committed on a person under the age of 18, to whom the appellant was in a position of authority, as her mother. The mitigating factors of the case included the fact that the appellant demonstrated remorse by pleading guilty early on and stated she was sorry for what she had done; she was 35 with no prior record; her future employment would be put at risk with a criminal record; the assault was relatively minor and no injuries resulted; as well the Gladue factors of overcrowding and victimization of Indigenous offenders were also taken into account.

The Court determined that it would be in the best interests of the community of Rankin Inlet to see that a history of employment and good behaviour be given substantial weight, as this is a guilty plea to a single, one-time breach of the law. It was determined that the Inuk first offender should be given a chance to show that it was an isolated incident from which she learned an important lesson, and also to avoid a criminal record which could significantly impact her ability to find future employment. The appeal is allowed and she is sentenced to a conditional discharge which will not result in a criminal record. This appeal was held after the Supreme Court of Canada declared victim fine surcharges unconstitutional with immediate effect, therefore, the appellant shall have the victim fine surcharge removed from her sentence (R v Boudreault, 2018 SCC 58).

R v Overby, 2019 MBQB 102

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Due to the violent nature of the offence and lack of mitigating factors, the Indigenous offender, convicted of second degree murder, is sentenced to life in prison with no possibility of parole for 15 years.

Indigenous Law Centre
Indigenous CaseWatch Blog

Mr. Overby, an Indigenous man, has been found guilty of second-degree murder for the brutal killing of Christine Wood, a young Indigenous woman he had met on a dating app the same day he had murdered her. After engaging in sexual relations, he proceeded to murder her in the basement of his house. After the killing, he attempted to cover up the murder, until Ms. Wood’s body was found months later by chance.

The Gladue report submitted for Mr. Overby does not highlight any mitigating factors for the offender. He had an unremarkable childhood and the violence committed was considered “out of character”. The Court does not accept his version of events, including having no memory of what occurred.

In considering an appropriate parole ineligibility period, the Court must keep in mind that it must not be less than 10 years or more than 25 years according to s 745(b) of the Criminal Code. Balancing various caselaw with the sentencing principles, the aggravating factors that surrounded Ms. Wood’s unfortunate and violent death, required a more stringent parole ineligibility period (R v Shropshire, [1995] 4 SCR 227).

There were minimal mitigating factors other than the fact that alcohol was consumed by both parties and that Mr. Overby may have been depressed about his relationship situation. At the time of the offence, Mr. Overby had no criminal record at the age of 29 but his moral culpability in this case is very high. 15 years of parole ineligibility is deemed appropriate, but regardless, he remains under the supervision and control of correctional authorities for the rest of his life, including being subject to re-incarceration from parole should he breach any conditions or pose a threat to public safety.

R v Pijogge, 2019 NLSC 15

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An Indigenous offender has shown rehabilitative potential through community ties and strong family connections, however, incarceration is an appropriate sentence.

Indigenous Law Centre – CaseWatch Blog

The offender, while heavily intoxicated, had sexual intercourse with the victim, a close friend. Both the offender and victim were of Indigenous descent. The offence happened in her own home while she was also heavily intoxicated and unconscious. The offender was convicted of sexual assault contrary to section 271(1)(a) of the Criminal Code.

Balancing the sentencing principles with the Pre-Sentence Report and Gladue factors regarding the history of the offender, it was noted that he suffered sexual abuse at the hands of an unrelated male when he was a child, and also witnessed a suicide. Although he has never received counselling for these traumatic events, the offender enjoyed a relatively stable upbringing, with caring parents. He achieved his Grade 12 education, and generally maintained employment. The offender has the support of his family and a long-term partner, along with ties to his Indigenous community, which shows rehabilitative potential in addressing his issues with alcohol.

The presence of a criminal record is an aggravating factor on sentence. The commission of this offence showed an escalation in seriousness as compared to the other kinds of offences the accused committed in the past. Alcohol likely played a role in how the offence came to be committed, however, it may explain but does not excuse the behaviour.

The offence was at the serious end of the spectrum in regards of the gravity of conduct. Taking into account the above circumstances, with an emphasis on deterrence, the fit sentence is incarceration for 30 months, along with other conditions.

R v Gloade, 2019 NSPC 55

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Although a first offender, it is proportionate to the gravity of the fraudulent offences committed, that the Indigenous accused serve a custodial sentence and pay restitution and a fine in lieu of forfeiture.

Indigenous Law Centre – CaseWatch Blog

Ms. Gloade committed two serious criminal fraudulent offences against the Elizabeth Fry Society of Mainland Nova Scotia [“Society”] in her capacity as the Executive Director. The Society is a non-profit, charitable organization that engages with vulnerable women and girls to foster reintegration, rehabilitation, personal empowerment and addresses the root causes of criminalization. The organization is dependant, in part, on donations from the community in its effort to fulfill its mandate of providing programs that support some of society’s most vulnerable women.

Ms. Gloade committed the offences while she herself was in a vulnerable state, as her marriage was failing and she was emotionally and financially stressed. The first offender principle requires that the sentencing judge exhaust all other dispositions, before imposing a custodial disposition (R v Stein, [1974] OJ No 93). The first offender principle has been codified in sections 718 and 718.2 of the Criminal Code.

As well, the Court in this matter considered the “sad life” principle. There is an evidentiary basis for its consideration, including the Pre-Sentence Report, the Gladue Report and the sentencing proposal report arising from Ms. Gloade’s Sentencing Circle. This principle also involves an offender to demonstrate a genuine interest in rehabilitation, for example successfully engaging in counselling or treatment. Cases that consider this principle often involve offenders who are victims of sexual or physical abuse, or have experienced a horrific upbringing.

There appears to be a very low risk for Ms. Gloade to re-offend as she has and continues to take the necessary steps to address the underlying causes of her emotional and financial stresses. Although this Court recognizes that rehabilitation is an important objective in the sentencing calculus, it must not be over-emphasized, as there is a real pressing need in this case for a denunciatory sentence as well as one directed at both specific and general deterrence.

All the relevant purposes and principles of sentencing have been considered by the Court in this matter, including the aggravating and mitigating factors, the Gladue factors, and that the sentence must be proportionate to the gravity of Ms. Gloade’s crimes and her degree of responsibility for having committed them. Ordering both restitution and a fine in lieu of forfeiture fulfills the Parliamentary intention of “giving teeth” to the sentencing provisions. She is also sentenced to 60 days to be served at the Central Nova Scotia Correctional Facility with a significant period of probation. As well, a Prohibition Order under s 380.2 is ordered that Ms. Gloade not seek, obtain or continue any employment, or become or be a volunteer in any capacity, that involves having authority over the real property, money or valuable security of another person for a period of ten years.