R c Kanatewat, 2020 QCCQ 3293

Posted on January 5, 2021 by thp151

A jail sentence is warranted for the offender who committed a sexual assault on the victim after entering a private residence. Gladue factors were considered, along with other competing sentencing principles, in crafting a restorative sentence that includes probation and community service.

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In 2019, Mr. Kevin Kanatewat, the offender, entered very early in the morning the residence rented by the victim, a male of 30 years old, and sexually assaulted him. The attack lasted approximately one hour and was for the victim intimidating, intrusive, humiliating and a painful experience. The offender was found guilty of sexual assault committed on the victim under s 271 a) of the Criminal Code; two counts of breach of his conditions under s 145; resisting or wilfully obstructing a peace officer in the execution of his duty, s 129 a); and with assaulting a peace officer engaged in the execution of his duties, 270 (1) a). The offender pleaded guilty to failing to comply with a conditions of an undertaking not to drink alcoholic beverages and to not completing all of the 150 hours of community work services he had to execute on a probation.

The Presentence Report mentioned a number of Gladue factors, including an upbringing marked by negligence and violence induced by consumption problems. The offender ceased school in Grade 9 and did not return to any scholastic or vocational program. He has an unstable history of employment where he worked various jobs, some which he lost or quit because of his consumption difficulties. The offender suffers from drug and alcohol abuse but would not participate in any services offered in the correctional facility, nor has he made any therapy demands. There are a number of priors regarding breaches and offenses against persons where the offender got short sentences of jail, generally suspended sentences and probations and even community work. The offender has a low level of maturity and a mitigated sense of responsibility with an elastic capacity for empathy.

This intrusive and forceful sexual assault has seriously harmed the victim, a pharmacy technician, as he suffered a very humiliating and destructive harm on his sense of dignity and security. The subjective gravity of the sexual assault warrants a sentence of jail that symbolizes strong denunciation and deterrence but also calls for weighing appropriately the historic and systemic community background factors as well as the personal background factors in a restorative and individualized fit sentence. This sentence has to be proportionate without trivializing or condoning the violent course of behavior.

The offender’s risk of reoffending is considered high, but could be reduced through the healing process under judicial surveillance. The Court is of the opinion that a sentence of imprisonment of 18 months would be a fit sentence, and probation of 24 months with a long healing and compelling process, along with 240 hours of community work to be performed. The probation and the community work are more likely to get the offender on the right track after a significant term of jail and an involvement in the healing programs.

R v SR, 2020 BCPC 227

Posted on January 4, 2021 by thp151

The Court considered the frequency of sexual abuse perpetrated by a father of a child that took place over the course of a year in 1982. From balancing of the competing sentencing principles and objectives, a period of jail is warranted as the daughter’s emotional, spiritual and physical integrity has been scarred through her lifetime. The father is sentenced to a period of one year jail, without probation after a pre-sentence report and Gladue factors were also considered.

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Over a number of months in 1982, S.R. did indecently assault his daughter J.R. contrary to s 149 of the Criminal Code. The charge is dated, as the offence took place 38 years ago when S.R. was 28 years old and J.R. was 6 years old. She is now 43 years old. In 2018, J.R. reported to the police that her father sexually abused her. The charge is indictable, the accused elected to proceed in Provincial Court, and he pled guilty in 2019. S.R. does not remember any specifics of the sexual abuse but does not deny any of the acts, and told the Court he was drinking alcohol excessively during this time of his life.

Of particular importance in this case is the provision of s 718.01 which deals with offences against children. The Court gives primary consideration to deterrence and denunciation when sentencing for any offence involving abuse of a person under 18. The applicable sentencing principles for child abuse, both statutorily and in the common law, are well established (R v D(D), 2002 CanLII 44915 (ONCA); R v Woodward, 2011 ONCA 610 (CanLII)). The harm is enduring, intergenerational, and well recognized. J.R. is now an adult and has told the Court, through the Crown, that her life has been devastated by this crime. J.R. is an Indigenous woman. With that comes a greater chance that she will be emotionally, physically or sexually abused than if she were not Indigenous.

S.R. is now a 65 year old First Nations’ man. S.R. states he and his cousins witnessed countless acts of sexual violence on a regular basis. He described watching his uncles sexually assaulting women on countless occasions. S.R. saw this so often he states he believed this to be normal behaviour. He was six years old when he was exposed to sexual behaviour and pornographic images. As for alcohol, he spoke of the normalization of excessive alcohol consumption. He grew up believing it was normal to drink non-stop all weekend long and partying until all hours of the night.

When she was 14, J.R. told family members what had happened. Family members and a social worker became involved and some sort of community intervention took place. However, the social worker that became involved was S.R.’s sister-in-law and turned to S.R.’s oldest brother for advice. Subsequently the family decided to deal with the offending in a traditional way and not involve law enforcement. The Court would have welcomed input from Elders as to what the ‘traditional way’ meant. Without a better cultural understanding, the approach taken might leave one with the impression that the issue was simply ‘swept under the rug.’

As for Indigenous background, many of S.R.’s family members went to residential school where they were physically, emotionally and sexually abused. The Court acknowledges the systemic horrors that have taken place on S.R.’s First Nations community as a result of the residential school system. As the Gladue report confirmed, the majority of S.R.’s family was mandated to attend there where for over a decade the school performed horrid nutrition experiments on the children without anyone’s knowledge.

Despite the cultural cuts that residential schools scarred his community with, S.R. is involved with cultural practices such as singing, drumming and other cultural events, including language classes. There is a long list of culturally appropriate supports provided, such as clinical counselling, support groups and relapse recovery options in the community. There is also a Men’s Group that is offered to men who have sexually offended and cultural healing retreats. The Court hopes S.R. can use his position as an Elder in his community and work with others to help support a restorative healing event that can help bring his community together. I hope J.R. is able to have supports in place that make her feel welcome to participate in any community apology.

R v Alphonse, 2020 BCSC 1882

Posted on December 18, 2020 by thp151

A Gladue report and pre-sentence report helped inform the sentence of 44 months incarceration, with credit for 81 days pre-trial detention for an Indigenous man who shot an Indigenous woman, who now suffers from lifelong debilitating injuries from the bullet wound.

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Kelvin Alphonse was with a small group of friends and family at a home, having some drinks and sharing time with one another. Things took a turn and Mr. Alphonse was asked to leave the gathering. He complied but returned a few moments later with a gun and shot Janet Paul as she was walking down the road, having left the party with her nephew. Ms. Paul now suffers lifelong debilitating injuries as a result of the bullet wound. Mr. Alphonse was convicted of that shooting and various firearms offences connected to it. Two of the offences for which he stands convicted carry mandatory minimum sentences of four years.

Mr. Alphonse is a 53 years old Tsilhqot’in First Nation man registered with the Lhtako (Red Bluff) Dene band and a residential school survivor. He has provided the Court with substantial information about his background and about his current circumstances, medically and otherwise in a Gladue Report and a Pre-Sentence Report. His criminal record is indicative of a person experiencing alcoholism. His early record contains convictions for property related offences and impaired driving.

Parliament insists that certain firearms offences must be punished by a prescribed minimum jail sentence. The prescribed minimum sentences at issue here have withstood prior constitutional scrutiny. Parliament also directs sentencing judges to recognize the systemic racism that plagues the criminal justice system and which has caused the disproportionate incarceration of Indigenous peoples (Section 718.2(e) of the Criminal Code; R v Gladue, [1999] 1 SCR 688). At the same time, s 718.2(e), as now constituted, directs sentencing judges to account for harm done to the victim and to the community. In this case, the harm done to Ms. Paul is grave and any sentence must properly reflect that harm. To that end, account is to be taken of Ms. Paul, her pain and suffering and her status as an Indigenous woman.

This proceeding has had a protracted history, impacted by a change of counsel, a constitutional challenge complicated by intersecting sentencing provisions and by a pandemic restricting access to the court. In this case, it is significant that Mr. Alphonse experienced residential schools both first hand and generationally. His experience at the St. Joseph’s Indian Residential School was “formally documented” and is described the horrendous history of the school in the Gladue report. Mr. Alphonse’s teenage years were similarly difficult.

Mr. Alphonse is remorseful and acknowledges the magnitude of the pain and suffering his actions caused Ms. Paul. He recognized the destructive role alcohol was playing in his life and the impact it had on others, most significantly, Ms. Paul. Also mitigating factors are his lengthy attendance at VisionQuest and ongoing involvement in alcohol treatment demonstrates his commitment to ongoing recovery, which includes abstinence for over four years. The Court imposes the sentence of 44 months incarceration, with credit for 81 days pre-trial detention.

* Read “Case highlights ‘tension’ in sentencing Indigenous offenders” here to read Ben Bulmer’s article that discusses complex issues in regards to this case.

Tallcree First Nation v Rath & Company, 2020 ABCA 433

Posted on December 17, 2020 by thp151

Permission to appeal is not needed for a chambers judge reserved decision regarding an appeal by an Applicant law firm that entered into a contingency fee with a First Nation for 20% that resulted in around $11 million dollars for a relatively small amount of work. The decision under appeal is not a decision “as to costs alone.” However, the decision under appeal is interlocutory in nature because the chambers judge’s final order on the amount of recoverable fees has not yet been issued. Appeals of interlocutory decisions are generally discouraged. Interlocutory appeals may turn out to be unnecessary and are normally contrary to the Court of Appeal’s policy against litigation by installment.

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Rath & Company and Jeffrey Rath [“Applicants”] apply for confirmation by way of declaration that they have a right to appeal a decision of a chambers judge overturning a Review Officer’s decision that a contingency fee agreement was reasonable. In the alternative, they seek permission to appeal, if their appeal is of a decision “as to costs alone.”

In 2015, Tallcree First Nation [“Tallcree”] entered into a contingency fee agreement with the Applicants, who were retained to settle certain agricultural benefits claims under Treaty 8 made by Tallcree against the federal government. The initial contingency fee agreed to was 20%. The Applicants resolved the agricultural claims quickly, although Tallcree did not receive the payment of $57,590,375 from the federal government until 2018. The 20% contingency amounted to $11,518,075. Tallcree subsequently applied for a review of the contingency fee agreement under the Alberta Rules of Court. The Review Officer was asked to determine whether the 20% contingency fee was reasonable. It appears that all the Applicants did on this matter was file a formal claim, send a three-page settlement letter, and engage in “minor negotiations”.

The Review Officer found that the contingency fee was “not … clearly unreasonable” based on a comparison with personal injury lawsuits in which a 20% contingency fee is commonly charged in clear cases where liability is not in issue. Tallcree appealed the Review Officer’s decision to the chambers judge who revoked the Review Officer’s decision because the wrong test was applied (“clearly unreasonable” as opposed to “reasonable”). The finding that the 20% contingency was the minimum percentage for cases taken on a contingency basis was unsupported by evidence or authority as it failed to account for other considerations relevant to the reasonableness of the contingency fee. The chambers judge the asked for further written submissions on what the Applicant’s recoverable fees should be. A further hearing took place before the chambers judge in 2020, but the chambers judge has reserved his decision.

No appeal is allowed to this Court from a decision as to costs only unless permission to appeal has first been obtained. It is doubtful that the decision under appeal is a decision “as to costs only”. It concerns a dispute about the recovery of lawyers’ fees between a lawyer and his or her client, not the payment of costs between parties to litigation. Even if a Review Officer’s review of a lawyer’s charges to his or her client amounts to “a decision as to costs alone”, a review of a contingency fee agreement does not. A review of lawyers’ accounts is a largely discretionary exercise but a review of a contingency fee agreement for reasonableness raises issues of principle about whether (and when) clients who enter into such an agreement and allow the lawyer to fulfil the contingency can decline to pay the contractually-agreed contingency fee.

The policy behind the rule requiring permission to appeal for “a decision as to costs alone” does not apply to an appeal of a review of a contingency fee agreement. No previous decision of this Court has held that such an appeal requires permission to appeal its predecessors. The decision under appeal is not a decision “as to costs alone.” However, the decision under appeal is interlocutory in nature because the chambers judge’s final order on the amount of recoverable fees has not yet been issued. Appeals of interlocutory decisions are generally discouraged. Interlocutory appeals may turn out to be unnecessary and are normally contrary to this Court’s policy against litigation by installment.

Pruden v Manitoba, 2020 MBHR 6

Posted on December 16, 2020 by thp151

The Human Rights Adjudication Panel allowed in part the complaint of an Anishinaabe child and his mother alleging government departments denied them health care and related services on the basis of ancestry. Various healthcare services made available to other Manitobans were either denied or delayed based on the Government of Manitoba’s position that they were the responsibility of the federal government. This was obvious adverse treatment and concurrent federal jurisdiction over health care for First Nations did not provide a reasonable justification for discriminatory treatment.

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An Anishinaabe child and his mother complain that government departments have denied them health care and related services on the basis of their ancestry. At the time of the hearing, the complainant Alfred Pruden [“Dewey”] was a 16- year-old Anishinaabe boy. Dewey resided in Pinaymootang First Nation with his mother, the complainant Ms Harriet Sumner-Pruden, and his father.

Dewey was born with many disabilities, including a progressive neurological disorder called Sturge-Weber syndrome. He was prone to seizures during the initial years of his life, requiring him to take many medications. Eventually, Dewey underwent brain surgery when he was four in the hope that the procedure would address his seizures. Instead, he developed new problems: he lost his ability to speak even the very few words that he had previously used; glaucoma led to vision loss; his motor skills were impaired; his overall development was significantly delayed; and, he developed an autism spectrum disorder and attention deficit hyperactivity disorder.

The respondent offered health care and related services to Manitobans afflicted with such conditions, and those services even extended to the parents of children like Dewey. However, the respondent did not make those health care and related services available to Dewey and his mother in the same way that many other Manitobans received them. Sometimes, the respondent simply denied some services. In other instances, services were provided but delayed. In yet more circumstances, services were provided but then intermittently withdrawn. The respondent informed Dewey’s parents that its offering of health care and related services reflected the constitutional division of powers, whereby the federal government was responsible for the provision of health care and related services to Aboriginal individuals living in First Nation communities.

As a result, Ms Sumner-Pruden filed a human rights complaint on behalf of Dewey and in her own right. The complaint alleges that the Manitoba Government had discriminated against Dewey and Ms Sumner-Pruden in the provision of health care and related services on the basis of their Anishinaabe ancestry and Dewey’s disability. Moreover, the complaint asserted that the discrimination had occurred without any bona fide and reasonable cause.

The respondent has discriminated against the complainants. There is no dispute among the parties that Dewey and his mother Ms Sumner-Pruden are Anishinaabe. Their ancestry is a characteristic that the Human Rights Code [“Code”] expressly protects at s 9(2)(a). It is equally accepted that Dewey has a physical and mental disability, which falls within s 9(2)(l) of the Code’s protected characteristics. The same problems did not afflict neighbouring non-First Nations communities, and those residents enjoyed health care and related services without denial, delay, or interruption. As a result, the complainants suffered treatment that was obviously adverse.

The complaint is allowed in part. Taking into account the spectrum of Manitoba awards for injury to dignity, feelings, or self-respect, the adjudication panel awards $30,000.00 to Dewey and $12,500.00 to Ms Sumner-Pruden. The respondent shall hereafter provide health care and related services to the complainants without regard to the fact that they are Anishinaabe individuals who reside in a First Nation community.

Blueberry River First Nation v Laird, 2020 BCSC 1615

Posted on December 15, 2020 by thp151

The Court dismissed various claims against members of two past governments of the First Nation who were also directors of the trustee for a trust for its members. The plaintiffs alleged breach of fiduciary duty, breach of trust, and negligence regarding roughly $11 million of transfers made from the trust to the First Nation over a four-year period. They also sued the former Band administrator for alleged breach of contract and fiduciary duty, negligence, knowing assistance, and knowing receipt. All claims were dismissed and the evidence failed to show impropriety or dysfunction.

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The Plaintiffs sue members of two past governments of the Blueberry River First Nation [“BRFN”], a band as defined in the Indian Act. Against those Defendants, the Plaintiffs allege a breach of fiduciary duty, breach of trust and negligence. The BRFN includes approximately 500 members, about half of whom live on the BRFN reserve. The reserve is located about an hour and a half by car north of Fort St. John, in northeast British Columbia.

The Blueberry Trust [“Trust”], and predecessor trusts, were established to hold and manage $76 million that the BRFN received in 1998 from its claim against Canada for damages arising out of the surrender of reserve land in 1945, and Canada’s disposition of the underlying mineral rights. The central dispute is to do with the transfer of approximately $11 million from the Trust to the First Nation and related entities, in a number of transfers over a four-year period.

The Defendants believe the claims against them in this action are politically motivated, and not based on bona fide legal grievances. There is another defendant, Mr. Laird, who was brought into this case as a defendant at the time when the operating minds of the Plaintiffs appear to have decided that the Defendants were taking money from the Trust for their own purposes. The Court believes the Plaintiffs kept Mr. Laird as a defendant on the theory that the other Defendants would have needed his help in implementing their wrongful plans. The same people who are suing Mr. Laird, however, asked him to come back in 2014, to assist the new government of the Nation for the 10 weeks Mr. Laird had available in his schedule. Mr. Laird had the misfortune to be joined in this action, along with several others against whom the Plaintiffs eventually discontinued their claims, simply because he happened to be one of those who had contracted to work with the Defendants-lead governments. Mr. Laird did excellent work for the Band throughout his employment as Band administrator. It was a difficult role for anyone at any time in the Band’s recent history, given the numerous and serious social problems the Band faces.

The current leadership of the Band points to the value of the Trust dropping substantially while the Defendants were the Chief or on Council, which in itself raised flags of suspicion about possible breaches of fiduciary duty and other wrongs. All of the members of the two Councils in the four year period testified that they considered financial issues within the BRFN as they arose, particularly when such matters were brought before them for consideration and decisions.

Documents in evidence showed during this period, the Chief and Council taking a number of steps to address the BRFN’s financial procedures and financial issues that were of concern at the time. Chief and Council did not have the skills to reform the financial department themselves. All they could do was obtain skilled advice, try to retain skilled employees, and support the reform proposals that were recommended. That is what they did. It was not an easy task, in part because it is difficult to retain skilled employees to work for the BRFN due, at least in part, to the isolation of the reserve. In the circumstances, they generally took appropriate steps, and improved the financial department’s performance while maintaining what they believed was an appropriate balance as between curbing overspending and maintaining needed social and health support programs.

Financial matters were not all that the Chief and Council had to deal with. Of significant importance were the many health and social issues that members of the BRFN faced, and in some cases, struggled with. Drug addition, domestic violence, mental health and the health and safety of the BRFN’s children were all important issues for the Chief and Council to address. The health and wellbeing of the members was a priority for the Chief and Council during this time period. In addition to supporting the health department, school, and working with the RCMP in relation to gang issues, they retained professionals to deliver workshops to the members and provide consulting services, and supported implementing an action plan to address social challenges. The Chief and Council during the four year period also took positive steps toward improving governance by retaining a former Chief, and Calgary lawyer, to prepare a Governance Manual.

The evidence elicited at trial showed a governing group that worked together, did its best to address the many issues and challenges that the BRFN faced during that time, and performed its duties satisfactorily. The claims against the Defendants, for knowing assistance, breach of fiduciary duty and negligence, as well as for breach of trust, are dismissed.

Big River First Nation v Agency of Chiefs Tribal Council Inc, 2020 SKQB 273

Posted on December 14, 2020 by thp151

The Court allowed the First Nation’s application for an oppression remedy against the incorporated Tribal Council in relation to the First Nation’s notice of an intention to resign membership in the Tribal Council in the future. Among other things, the Court considered a Convention Act enacted by the member First Nations to govern their relationship, which was grounded in traditional Cree values and customs. Likewise, Cree principles of respect, cooperation, consensus, and equal representation informed the First Nation’s reasonable expectations.

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Big River First Nation [“BRFN”], brought this application pursuant to the oppression remedy provided under The Non-profit Corporations Act [“NPCA”] for what it alleges is the oppressive conduct of the respondent, Agency Chiefs Tribal Council Inc. [“ACTC”]. ACTC is a non-profit membership corporation under the NPCA, and was created to conduct business and deliver programs to members of the corporation. BRFN, Pelican Lake First Nation and Witchekan Lake First Nation [“Member Nations”] formed a new tribal council in 1991 called the Agency Chiefs Tribal Council [“Tribal Council”]. The Tribal Council was constituted to promote cooperation among the Member Nations and to develop capacity for self-determination.

In 1991, representatives from the Member Nations signed the Agency Chiefs’ Tribal Council Convention Act [“Convention Act”] which contains a number of provisions purporting to govern the relationship between the Member Nations. It is grounded in traditional Cree values and customs and represents the setting down of some of the signatory First Nations’ customs in written form. In 2019, BRFN decided it would take steps to resign from the Tribal Council in order to have exclusive control over its funding, businesses and community services.

The Cree custom or law upon which the Convention Act is derived must inform the Court’s interpretation of the NPCA, as well as the parties’ reasonable expectations relevant to this application. Courts have recognized the existence of a rule of Indigenous law when it is shown that it reflects the broad consensus of the membership of a First Nation (Whalen v Fort McMurray No 468 First Nation, [2019] 4 FCR 217 (FC)). It is uncontroverted that the Convention Act is based in traditional Cree custom and that members of the Member Nations collectively developed and drafted the document.

ACTC takes the position that BRFN’s resignation from ACTC was effective on the date it received notice of a first resignation in the form of a BRFN Band Council Resolution, as two resignations similar in wording were sent, one before and one after a BRFN Chief and Council election. It is ACTC’s view that BRFN is not entitled to make its resignation from membership in ACTC subject to conditions. Consequently, ACTC has filed a Notice of Change of Directors with Information Services Corporation, and removed BRFN’s two representatives from ACTC’s board of directors.

Section 5 of the Convention Act provides that before a Member Nations can withdraw from the Tribal Council, the Member Nations must hold a referendum on withdrawal and receive approval from the membership of the Member Nations, after which the Member Nations may pass a band council resolution. The withdrawal of membership from the Tribal Council is therefore conditional upon the majority support of the Member Nations’ community. BRFN is entitled to make its resignation from ACTC conditional and effective when conditions are met. This is clear because a resignation can be effective at a date in the future specified by the party tendering the resignation (Morin v Saskatchewan (Métis Nation Legislative Assembly), 2020 SKQB 63).

It is the Court’s determination that BRFN did not resign its membership in ACTC when it issued either of its resignations as BRFN’s resignation is properly subject to conditions and its resignation is not effective until those conditions are met. ACTC engaged in oppressive conduct when it treated BRFN’s notice that it would resign its membership in the future as an immediate resignation. It also engaged in oppressive conduct when it unilaterally removed BRFN’s directors from its board. BRFN had not intended to give up its portion of control of ACTC until it had appropriate measures in place to protect funding for its members, businesses and community services. Among other relief, ACTC shall amend its corporate records to restore BRFN’s membership in the corporation and shall replace two of its current directors with named BRFN directors. This will put BRFN in a fair position to negotiate the consequences of its future resignation from ACTC.

R v Soulier, 2020 MBPC 39

Posted on December 11, 2020 by thp151

The Court determined that expert evidence should be admitted from a psychologist on the issue of whether and how an Indigenous man’s severe language disorder might have affected his ability to understand and answer questions in an interview with the police. The expert is uniquely positioned and qualified to provide evidence regarding language disorders among Northern Indigenous persons like the accused.

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The Accused, Mr. Soulier, is from South Indian Lake in northern Manitoba and is a member of the O-Pipon-Na-Piwin First Nations Band. This matter is a follow-up decision regarding the admissibility of expert evidence.The context is a voir dire to determine the voluntariness of the Accused’s police statement. The defence tendered an expert report and viva voce evidence of psychologist, Dr. Ducharme, on the issue of whether and how a severe language disorder might have affected Mr. Soulier’s ability to understand and answer questions in his interview with the police. It was previously determined that Dr. Ducharme’s proposed evidence was logically relevant to the issue of voluntariness of Mr. Soulier’s statement (R v Soulier, 2020 MBPC 4).

Dr. Ducharme’s proposed evidence is that Mr. Soulier has a severe language disorder first diagnosed by a school psychologist in 2015, that the language disorder would have persisted in 2018 at the time he was interviewed by the police, and that it affected his ability to understand and respond to questions in the police interview to the extent that the information he provided in the interview is unreliable.

At the time of the alleged offence on March 18, 2018, he was in an adapted Grade 12 program. He always had difficulty in school and usually had educational assistants working with him. In February 2015 he was referred to a psychologist for an assessment because of the learning challenges he was facing. Through various standardized testing, it was determined that Mr. Soulier’s intelligence was artificially depressed due to his severe deficits in language skills. He was diagnosed with a severe language disorder. Adaptations and remediation can assist a person who has a language disorder, but the language disorder cannot be improved.

Dr. Ducharme has a PhD in Clinical Psychology and has worked as a clinician, supervisor and professor since 1996. Of particular relevance, he has worked with First Nations’ organizations and clients in northern Manitoba for several decades. He has published many papers and publications, presented at conferences and trained many doctors and clinicians. Since 2001 he has worked extensively in First Nations communities in northern Manitoba, especially as additional funding and services have been offered as a result of Jordan’s Principle. He testified that he has conducted cognitive testing approximately 2000 times. Over 70% of the clients have been First Nations people; 50% of the clients have been First Nations people from the north.

Dr. Ducharme testified about the difference between an intellectual disability and a language disorder. It is very common therefore, for people with language disorders to experience depression and anxiety. Dr. Ducharme testified that the severe language disorder would have been present when Mr. Soulier was interviewed by the police in 2018, and it still exists today. Dr. Ducharme opined that the language disorder affects how Mr. Soulier receives and presents information. Mr. Soulier does not have a significant intellectual deficit. Dr. Ducharme testified that Mr. Soulier understands language at a 10-year-old level. He testified that although 10-year-olds can engage in general conversation, if the language becomes “deeper”, or emotion is added to the mix (because emotions impact how we receive and express information) it goes beyond the capability of the average 10-year-old.

To be voluntary, a statement must not be provided in circumstances of oppression and must be the product of an operating mind. The modern rule with respect to voluntariness encompasses the negative right not to be tortured or coerced into making a statement, as well as the requirement that the person have an “operating mind.” Generally, all relevant factors and circumstances should be considered in terms of determining whether a statement is voluntary (R v Oickle, 2000 SCC 38 (“Oikle”)). It is recognized that the determination of oppressiveness has a subjective component. In other words, would a person in the circumstances of the accused experience the conditions as oppressive (Oickle; R v Bohemier, [2002] MJ No 313 (QB))? The Court has watched the police interview with Mr. Soulier and reviewed the transcript. At points in the interview, Mr. Soulier is crying, curled up in the fetal position, banging his head on the wall and appears to be generally distressed. The evidence about Mr. Soulier’s language disorder and whether he understood the police officer and communicated what he wanted to communicate to the officer is legally relevant to whether his statement was voluntary.

The Court will allow Dr. Ducharme’s evidence, however, with the noted exceptions, on the basis that he is not analyzing the police questions so much as providing expert opinion about the likelihood of the subject not understanding. He is not being asked to provide an analysis of the reliability of the statement and whether it is a false confession. The Court is satisfied in considering the legal relevance of the evidence, its necessity, reliability and the absence of bias, and that the benefits of admitting this evidence outweigh its risks.

R v Ashamock, 2020 ONSC 6774

Posted on December 9, 2020 by thp151

The Court imposed a 12-month conditional sentence on a 50-year old Indigenous man who pleaded guilty to possession of a controlled substance for the purpose of trafficking. Gladue factors, including victimization in residential school, as well as particular vulnerabilities to COVID-19 supported a community-based sentence. The Ontario Court of Appeal’s decision in R v Sharma made a conditional sentence available for this offence.

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Mr. Ashamock has pleaded guilty to one count of possession for the purpose contrary to s 5(2) of the Controlled Drugs and Substances Act. He was arrested after the RCMP were investigating allegations that drugs were being trafficked to First Nations communities by staff who accompany patients on flights for treatment. A search warrant was issued at the hotel where Mr. Ashamock was residing and a bottle with 52 percocets on a night table was seized along with a paper containing a list of names and phone numbers.

The Court concludes that a conditional sentence of one year is appropriate having regard to the availability of such a sentence now, especially in light of the global COVID-19 pandemic and the increased risk of infection faced by inmates in Canadian jails (R v Sharma, 2020 ONCA 78)

Mr. Ashamock is a 50 year old Indigenous man who is in his fifth year awaiting a kidney transplant. He resides in a hotel in Kingston, leaving only to receive dialysis three times a week. Mr. Ashamock uses a wheelchair, is a large man, weighing about 340 pounds. He developed an addiction to opioid pain killers after having them prescribed for him. His physical condition causes him considerable pain.

The mitigating factors are his plea of guilt. The Court has also given consideration to the relevant Gladue factors. Mr. Ashamock’s family has suffered as a result of residential schools. Unfortunately, a Gladue report was not available at the time of sentencing. Mr. Ashamock provided some information regarding his background when requested that he do so. The aggravating factors includes Mr. Ashamock’s association to an organized trafficking ring that arguably exploited other Aboriginal individuals, and that he has a criminal record, including a prior conviction involving drugs.

In regard to COVID-19, recommended social distancing and frequent hand washing, which are required as protection from transmission of the virus, are not readily available when a person is in custody (R v JS, 2020 ONSC 1710 (Ont SCJ)). All prisoners are at a greater risk of infection when compared to someone who is not incarcerated, due to the inability to physically distance. Mr. Ashamock is at grave risk of dire consequences should he contract the virus while imprisoned (R v Hearns, 2020 ONSC 2365 [“Hearns”]). Fitness is a related concept to proportionality, but not co-extensive with it. While proportionality mandates that a given sentence should be no more than necessary to reflect the gravity of the crime and the moral blameworthiness of the offender, fitness has regard to a broader array of factors (Hearns).

Conditional sentences are intended to assist in reducing society’s reliance on incarceration (R v Proulx, 2000 SCC 5). During a public health crisis such as the one we are currently facing, the availability of a community based sentence is an effective tool where appropriate, for reducing prison population. A conditional sentence would permit Mr. Ashamock to avoid imprisonment, but not punishment (Proulx). In the circumstances of this case, the criteria which would permit the imposition of a conditional sentence have been met: 1) the lack of a minimum term of imprisonment; 2) imprisonment of less than two years; 3) no danger to the community posed by the offender serving sentence in the community; and 4) the imposition of a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss 718 to 718.2.

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

Posted on December 8, 2020 by thp151

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

Indigenous Law Centre CaseWatch Blog

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

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

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

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

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