R v Kishayinew, 2021 SKCA 32

Appeal allowed against sentence. A substitution of four years minus pre-sentence custody and removal of a victim surcharge is given to an Indigenous man who sexually assaulted an intoxicated woman after luring her to his home under the guise of safety.

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This matter deals with a sentence appeal for Mr. Monty Kishayinew, an Indigenous man from Yellow Quill First Nation. He was convicted of sexually assaulting an intoxicated and vulnerable woman who he encountered in an alley in Saskatoon, where under the pretence of offering her help, he took her to his home. There, he sexually assaulted her in his basement, and until she feigned needing to use the bathroom and was able to escape (R v Kishayinew, 2017 SKQB 177).

Mr. Kishayinew was sentenced to four-and-a-half years in prison, minus credit for pre-sentence custody but has appealed both conviction and sentence. Appeal for his conviction was granted and a new trial was ordered. As a result, his sentence appeal was not addressed. The conviction was restored by a subsequent appeal to the Supreme Court of Canada, which remanded the matter to this Court to determine the sentence appeal.

After conviction, the trial judge adjourned sentencing and ultimately ordered the preparation of a pre-sentence report. Mr. Kishayinew was sentenced to 54 months of incarceration, minus a pre-sentence credit of 17 months and 2 days, and for Mr. Kishayinew to pay a victim surcharge in the amount of $200 within 30 days, with 2 consecutive days in default of payment (R v Kishayinew, 2017 SKQB 340).

Mr. Kishayinew appeals his sentence pursuant to s 675(1)(b) of the Criminal Code. A sentencing decision is entitled to considerable deference upon appeal (R v LV, 2016 SKCA 74, [2017] 1 WWR 439 ). This Court concluded, however, that the trial judge committed errors in principle by erroneously relying on the absence of remorse as an aggravating factor and by misstating Mr. Kishayinew’s position on sentencing in a material manner. The combination of the errors shows that there was an impact on sentence and appellate intervention is required.

The circumstances of this offence are extremely grave and Mr. Kishayinew’s lengthy criminal record is an aggravating factor with convictions of at least sixty-three prior offences dating back to 1996. At the time he committed the current offence, Mr. Kishayinew was on bail with an undertaking to keep the peace and be of good behaviour. Mr. Kishayinew’s high risk to reoffend, generally and sexually, is also a relevant factor. Mr. Kishayinew’s actions in relation to this matter were reprehensible. He knew the woman was distraught, intoxicated and vulnerable and he took advantage of this situation to convince her that she was not safe but would be safe with him. Using this deception, he took her to his house where he sexually assaulted her. These actions speak to a high level of moral culpability.

Mr. Kishayinew, however, has considerable Gladue factors and these principles must be applied even in serious cases involving sexual violence (R v Friesen, 2020 SCC 9). Even when the circumstances of a case unquestionably call for a penitentiary sentence, these factors remain relevant (R v Ratt, 2021 SKCA 7). He suffered extensive abuse from family members who suffered significant intergenerational trauma. Mr. Kishayinew has issues with substance abuse, but has completed grade 11 while incarcerated, and continues towards his GED. His personal supports and relationships are limited along with his employment history.

The gravity of the offence is severe and Mr. Kishayinew’s moral blameworthiness is high, although his moral culpability is somewhat tempered by Gladue factors. The appropriate sentence for this offence, for this offender, for the harm caused to this victim is four years with pre-sentence custody credit. The victim surcharge of $200, and the two days in default of payment for the victim surcharge, is set aside (R v Boudreault, 2018 SCC 58).

Baffinland Iron Mines Corporation v Inuavak et al, 2021 NUCJ 11

Interlocutory injunction granted. The RCMP have been authorized to enforce an injunction against community protestors, including removing and detaining to the extent necessary, persons who have knowledge of the injunction, and are obstructing or impeding access to the mine site. The mining corporation has approval for its operations and has complied with the necessary requirements under The Nunavut Land Claims Agreement and with any regulatory and legislative requirements.

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Baffinland Iron Mines Corporation [“BIM”] is granted an injunction prohibiting the Defendants, and others, from blockading or obstructing its mining operations at the Mary River site on northern Baffin Island. To get to this mine site, it is a fly in and out with an airstrip. Iron ore is mined and crushed at the mine site, and then trucked to where it can be loaded on to ships at Milne Port, and shipped out during open water season. The mine site and the port are connected by a road approximately 100 km long. The airstrip and accommodation for most of the employees is at the mine site but with some at Milne Port. Shipping of iron ore can occur only during the open water season. However, during the rest of the year iron ore is still trucked to Milne Port and is stockpiled to await the shipping season.

BIM has applied to significantly expand its operations at the mine. It is unknown if the application will be approved or not. The current approvals for the mine are controversial and there are strongly held views and opinions on all sides. The north Baffin communities of Pond Inlet, Arctic Bay, Clyde River, Igloolik, and Sanirajuk are the communities closest to and most affected by the mining operations. Residents from the local communities set up protests at the BIM site. Although these protests were not large, a camp was set up on the runway and road, approximately 3-4 km from the mine site. Although there were approximately 5 protesters at the mine site and 2 on the road, it prevented the plane to land normally at the airstrip and iron ore could not be trucked from the mine site to the port. The protest shut down mining operations and stopped the movement of people and supplies to and from the mine.

Counsel for three of the Defendants appeared in court. At that time the concern of the was the 700 employees at the project site and if they were unable to leave due to the blockade on the airstrip. The Defendants were not opposed to the departure of the employees that were on site. An interim order was issued to ensure that occurred. A short time later the Defendants left the project site and carried on to their respective communities. However, the Plaintiff maintained its application for an interlocutory injunction and brought an action against the Defendants for trespass, unlawful interference with economic interests, and mischief.

The Defendants asserted their Aboriginal rights pursuant to s 35 of the Constitution Act, 1982. They submit that injunctive relief is no longer required as the Defendants have left the project site. The test for injunctive relief have three factors that the court must consider: 1) is there a serious issue to be tried; 2) will irreparable harm result if the relief is not granted; and 3) where does the balance of convenience lie (RJR MacDonald Inc v Canada (AG), [1994] 1 SCR 311).

The Plaintiff’s legal action is a serious issue to be tried. The Defendants’ argument that the need for injunctive relief has lapsed because the protesters have left the project site. While this may be true, their counsel was not able to confirm that they have agreed to not return and continue the protest. As well, counsel is only for three Defendants of the seven protestors. The protest and its reasons have been the topic of discussion in the media. There may be more than one reason for the protest, and individual protesters are there for different reasons.

In response to the protest, Inuit leadership reached out to the Defendants to arrange meetings to reach a resolution. The Defendants have agreed to the meetings, but not much more is known at this junction. The business operations that are at risk continue as a going concern and the protesters’ concerns remain unresolved. Although the protesters may no longer be at the project site, their reasons for being there in the first place remain. As for the s 35 Aboriginal rights argument, asserted Aboriginal rights are rights that are asserted but not yet proven. This is not the Nunavut context. The Nunavut Land Claims Agreement [“NLCA”] is a modern treaty that encompasses the largest land claims settlement in Canada. The processes for resource development are set out in the Agreement. The Plaintiff has complied with the necessary requirements under the NLCA and any regulatory and legislative requirements.

The Plaintiff has loss of revenue because of the inability to transport iron ore from the mine site to the port. The court stated that the complete blockade of a lawful business strongly suggests irreparable harm for the purposes of an injunction (Hudson Bay Mining & Smelting Co Limited v Dumas et al, 2014 MBCA 6). The balance of convenience favours the granting of injunctive relief.

Toutsaint v Correctional Service Canada and West Coast Prison Justice Society v Correctional Service Canada, 2021 CHRT 3 (CanLII)

Motion granted. Correctional Service of Canada requested that an Indigenous federal inmate that is currently serving an indeterminate sentence as a dangerous offender, have his complaints heard the same time as another harassment complaint, as the allegations and issues are substantially similar in fact and law.

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Mr. Joey Toutsaint is Indigenous and is a federal inmate currently serving an indeterminate sentence as a dangerous offender and is classified a maximum security inmate. He alleges that Correctional Service of Canada [“CSC”] has discriminated against him on the grounds of disability, national or ethnic origin, race and/or religion and that individual CSC employees have mistreated and harassed him.

Mr. Toutsaint further alleges that a number of CSC policies and practices disproportionately and adversely impact inmates with mental health disabilities generally, and Indigenous inmates with mental health disabilities specifically. This includes access to therapy, Indigenous cultural and spiritual practices and culturally appropriate treatment, placement in administrative segregation and prolonged periods of isolation, and the use of force. Mr. Toutsaint also filed a separate retaliation complaint.

The West Coast Prison Justice Society [“WCPJS”] operates a legal aid clinic for federal and provincial inmates under the name Prisoners’ Legal Services, who are also counsel for Mr. Toutsaint. The WCPJS complaint was filed on behalf of prisoners “with mental disabilities under the control of CSC” and alleges that CSC discriminates against prisoners on the grounds of disability, race, national or ethnic origin, and religion in the areas of security classification, access to treatment, the use of administrative segregation and the use of force.. The complaint relies heavily on Mr. Toutsaint’s experiences while incarcerated, along with those of two other federal inmates.

Along with other remedies, Mr. Toutsaint, the WCPJS, and the Canadian Human Rights Commission [“Commission”] seek a number of systemic remedies involving changes to CSC policies and practices that affect inmates with mental health disabilities generally and Indigenous inmates with mental health disabilities specifically.

The Tribunal may order that complaints be heard together if it determines it is appropriate to do so on the facts and law (Lattey v Canadian Pacific Railway, 2002 CanLii 45928 [“Lattey”]) In deciding whether to hear complaints together, the Tribunal should consider: 1) the public interest in avoiding a multiplicity of proceedings, including considerations of expense, delay, the convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results; 2) the potential prejudice to the respondents that could result from a single hearing, including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result from the introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and 3) whether there are common issues of fact or law.

The application of the Lattey factors to these complaints favours holding a single hearing on the basis of a joint record. The remedies sought by Mr. Toutsaint and the Commission are broad and may potentially lead to a lengthy and complex disclosure process in both cases. The Commission has confirmed that Mr. Toutsaint and the Commission have refined and narrowed their disclosure requests with a view to the matter proceeding as expeditiously as possible and to avoid voluminous production of documents that are not arguably relevant to the complaint.

R v RO, 2021 BCPC 29

An Indigenous offender, after consideration of Gladue factors, was sentenced to 4 years for indecently assaulting a child between the years of 1974 and 1977 inclusive. The victim suffered lifelong impacts from the years of incidents that continues to effect his quality of life.

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R.O. was found guilty at trial for indecently assaulting M.L. from 1974 to 1977 inclusive, contrary to Section 156 of the Criminal Code. M.L. was almost 7 years of age at the start of the timeframe and nearly 11 years old at the end of it. The offender was in his early 20s and had been placed or adopted into M.L.’s wider family as an infant.

When he was 7, M.L. was looked after by his grandmother at her home and the offender would often be there for M.L.’s dinner and bath time. His grandmother ran the routine like clockwork, and the offender would often come in to the bathroom and sexually assault him in various disturbing acts. M.L. felt he had no choice but to go to his grandmother’s, and felt forced to cooperate. The acts were frequent, two to three times a week, and escalated in becoming more aggressive and intrusive over time. Eventually, M.L. discovered extracurricular activities which kept him away from his offender when he was near the age of 11. However, the impact of the abuse inflicted by the accused on M.L. has been profound and has lasted many years. He has trust issues and difficulties with personal relationships. As well, he has issues with substance abuse and suffers poor mental health.

The offender has a record of sexual offences involving young boys, with criminal convictions recorded against him in 1981, 1992, and 2014. The offender started professional counselling, but R.O.’s Community Corrections file indicates on past supervision that he maintained denial on all convictions, minimized his sexual offending and was highly resistant to attending or participating in any interventions targeted at his sexual offending. He continues to believe any interventions aimed at his sexual offending are not beneficial to him.

R.O., who is now 67 years of age, has significant Gladue factors. The report outlines that he is a member of a First Nation, near Lillooet, British Columbia. R.O. was reportedly apprehended by Ministry social workers at the age of two weeks when he was found at home without adequate supervision. The offender said he didn’t remember much of his childhood but had a clear recollection of being sexually assaulted by two teenaged boys at two different times when he was ten years of age. R.O has had limited education and some employment. He suffers from various mental illnesses and disorders.

Although there are significant Gladue factors of the offender, the significant factors and the gravity of the offence, including the profound wrongfulness and harmfulness of sexual offences against children must also be taken into account. There was a life-long impact on this victim who was a child in primary school at the commencement of a period of prolonged offending by the offender. R.O. is sentenced to 4 years, with other ancillary orders.

R v GD, 2020 MBPC 27

The Court sentenced an Indigenous offender to 18 months custody for committing sexual assault and a breach of release order. A Pre-Sentence Report was considered, and the Court determined that the offender lacked insight into how the crime had negatively impacted the victim.

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Mr. GD pleaded guilty to sexual assault that occurred in 2018. At that time, he was 22-years-old and the complainant was 15-years-old. He has also pleaded guilty to a breach of a release order, by having contact with the complainant. The Crown sought a maximum sentence of 18 months for the sexual assault and a consecutive sentence of one month for the breach, followed by a Probation Order of two years. The defence sought an eight month sentence on the sexual assault and a non-custodial sentence on the breach.

The Court looked to the fundamental purpose and principle of sentencing and acknowledged that teenagers under the age of 16 require protection from unwanted, forced and premature sexual activity from adults or people more than five years older than them. Not only was the complainant incapable of consenting to engage in sexual activity because she was under the age of sixteen, but the moral culpability of a 22-year-old committing a sexual offence against someone of her age is high. Further, the complainant became pregnant and gave birth to the offender’s child at the age of sixteen.

The Court considered a Pre-Sentence Report which took into account the offender’s Indigeneity. His family history includes parental alcohol abuse and neglect, child protection intervention, poverty, inadequate food, a lack of a father figure, amongst others. The Report also indicated that he has a lack of insight into his offending behaviour that demonstrates an unsophisticated and dangerous view of women and girls.

It is mitigating that he pleaded guilty, saving the victim from a trial, as weel he has no criminal record and has taken anger management. It is aggravating that he lacks insight, there is a high risk of his reoffending, and the offence has resulted in a child who now has a single mother. The Court was of the view that the best method of deterring him in the future is to take sex offender treatment. However, the recommended program is not currently running due to COVID-19. The offender was sentenced with the hopes of the program running in the near future and to ensure he has enough time to apply and participate. In such a case, he will learn more about premature sexual activity and its negative impacts, the particular vulnerabilities of young, Indigenous girls, his own power and his probably unintentional exploitation of that power over young sexual partners.

The sentence on the sexual assault was one of 18 months custody and one week for the breach of the release order, followed by two years of supervised probation. After applying credit for time served, GD has 286 days remaining of his sentence.

R v Thompson, 2021 SKPC 13

After careful consideration of Gladue and FASD factors, an Indigenous offender found guilty of numerous weapons offences, was given a sentence of 73 months, with 23.5 months for enhanced credit, leaving 49.5 months going forward.

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Mr. Thompson was charged with numerous weapons offences following a single incident in 2019, where he had in his possession a sawed off shotgun and several rounds of ammunition near downtown Regina. He was convicted on all eight of weapons related offences. At trial Mr. Thompson adamantly denied any knowledge of the sawed-off shotgun which he carried in his backpack. His girlfriend Ms. Peresien, who was also in custody on unrelated matters, testified that the gun was hers. None of their testimony was accepted by the Court. The Court found that the Crown proved its case beyond a reasonable doubt and accordingly convicted him. Mr. Thompson’s admission at the sentencing, after two days of trial involving nine witnesses, numerous documents and countless hours of court time, and at which Mr. Thompson and his girlfriend apparently committed perjury, was disconcerting to the Court.

Mr. Thompson is 36 years of age. A comprehensive Gladue Report was filed with the Court which included details about his mother, who was from Sakimay First Nation, had attended residential schools and passed away in 2015. His father was from Little Pine First Nation and is currently living but in poor health. Mr. Thompson lived in numerous foster care homes periodically due to abuse from his mother, who drank excessively thereby he may suffer from Fetal Alcohol Spectrum Disorder (FASD). He was physically abused at Residential Schools and his parents were drug dealers. He is himself a drug addict and has spent many years of his life in youth facilities, jails and penitentiaries. He has amassed 101 Criminal Code convictions. Nine of those were for violent offences including several assaults, an armed robbery, and an assault causing bodily harm. During his latest period of incarceration Mr. Thompson had started reading self-help books, which he claimed had significantly changed his attitude and perspective on life.

Mr. Thompson’s conduct in this matter clearly falls within the definition of a true crime. This was not an offence which is regulatory in nature such as in the case of a hunting rifle stored close to ammunition (R v Myrie, 2020 ONCJ 430). Sentencing courts must acknowledge the inherent danger of illegal firearms in our communities and send a message that the possession, transportation and use of illegal guns must not be tolerated (R v McKenzie, 2020 SKPC 31).

Mr. Thompson has significant Gladue factors and, although no formal diagnosis of FASD was presented to the Court, it is likely that he suffers from FASD. Enhanced at 1.5 – 1., Mr. Thompson will receive credit on the sentence of 23.5 months. Total time going forward is therefore 49.5 months. All concurrent time is unaffected by the pre-trial credit. Pursuant to the Gladue Report, this Court is recommending that Mr. Thompson be considered for the Willow Cree Healing Lodge and the programming it offers.

R v Blackduck, 2021 NWTSC 8

Sentence appeal granted. An Indigenous accused who pleaded guilty to two counts of uttering threats, at separate times and places, had his sentence reduced to seven months as it appropriately factors in his considerable Gladue factors. The probationary aspect is undisturbed so he can find appropriate supports and services to address his alcoholism, homelessness and illiteracy.

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The Appellant, Mr. Blackduck, a Tłı̨chǫ man, pleaded guilty in Territorial Court to two counts of uttering threats, occurring at separate times and places. This matter is an appeal of his sentence. One incident involved the RCMP in Yellowknife when Mr. Blackduck was being arrested. Mr. Blackduck was subject to a probation order which, among other things, required him to remain a certain distance away from a Yellowknife liquor store. The RCMP officers were conducting a patrol when they saw him near the liquor store and warned him to move away. Mr. Blackduck, who was highly intoxicated at the time, was extremely aggressive and uttered violent threats even after he was subdued in the patrol car. The other incident happened at the Northern Store in Behchokǫ̀, where a store employee asked Mr. Blackduck to leave because he was banned from the location. He threatened to kill her and said he knew where she lived.

Mr. Blackduck has significant Gladue factors, and at the time of the sentencing hearing, he was homeless. When Mr. Blackduck is in Yellowknife, he stays at the men’s shelter and spends considerable time on the streets. When he is in Behchokǫ̀, which is where his family is, he stays either at the shelter or with his sister-in-law. Mr. Blackduck is unable to read and write in English, but has a strong connection to his Indigenous culture and was raised in a traditional background. However, substance abuse and violence were prevalent in his home growing up. Although Mr. Blackduck had made attempts to remedy his illiteracy, his housing instability posed great challenges, as he had no place to shower, wash his clothing or store his school books and supplies. There have been educational programs available to him while he has been in custody in the past, but he found it too embarrassing and did not want other prisoners to know he was illiterate.

With respect to the threat he made to the store clerk in Behchokǫ̀, Mr. Blackduck’s acknowledges that although he was banned from the store at the time, however on the day he made the threat, he needed money for food and the Northern Store was the only place where he could cash his government cheque. The alternative was to hitchhike to Yellowknife. When given his own opportunity to address the sentencing court, Mr. Blackduck expressed remorse for his conduct and spoke of his alcohol addiction.

Trial courts have wide discretion in the sentences they impose and that the standard of review on sentence appeals is a deferential one. An appellate court should only interfere with the sentence where: 1) the sentence is demonstrably unfit; 2) there is an error in principle; or 3) there is a failure to consider relevant sentencing factors (R v Shropshire, [1995] 4 SCR 227; R v Proulx, 2000 SCC 5, [2000] 1 SCR 61; and R v Lacasse, 2015 SCC 64 [“Lacasse”]). Where there is an error in principle, a failure to consider a relevant factor or an erroneous consideration of an aggravating or mitigating factor, appellate intervention will only be justified where it appears from the decision that the error had an effect on the sentence (Lacasse).

The Court is unable to conclude from the record that the sentencing judge adequately considered Mr. Blackduck’s Gladue factors in her sentencing analysis, as she did not ignore Mr. Blackduck’s Gladue factors entirely. The sentence imposed was within the acceptable range for uttering threats in the circumstances. Mr. Blackduck is addicted to alcohol. When he uses alcohol, he often engages in behaviours which lead to criminal charges and convictions. That is abundantly clear from his extensive criminal record.

However, Mr. Blackduck is unemployed, illiterate and homeless. He lacks resources to meet his basic needs and has nowhere near the support he needs to get a foothold to try and address his alcohol addiction. He does not even have the basic necessities in life because he has never really had a chance to attain them. He has faced systemic barriers and hardships his entire life, exacerbated by involvement in the criminal justice system. He is busy just surviving. This is a vicious cycle which diminishes his ability to make appropriate decisions about his conduct and to learn from the penal consequences of past conduct. It explains, to a large extent, his lengthy criminal record. All of this, in turn, diminishes his moral culpability that must be reflected in the sentence.

R v Angus, 2021 SKQB 13

The Court determined a global sentence of 19 years for an Indigenous accused who was found guilty of 6 out of 7 counts of indictment that included home invasion, sexual assault of a 14 year old, and discharge of a firearm. He has credit for remand resulting in 15.65 years to be served in a federal penitentiary, to ensure the availability of appropriate programming.

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William David Angus, an Indigenous man from Thunderchild First Nation, was found guilty on six of the seven counts of the indictment, including entering the J. home with a rifle, sexually assaulting A.J., the 14-year-old, fleeing the scene, and shooting at the father, C.J., who was by then in pursuit (R v Angus, 2020 SKQB 32 [“Angus Conviction”]).

Following the conviction, an order was made for a pre-sentence report [“PSR”], with particular consideration of Gladue factors (R v Gladue, [1999] 1 SCR 688 [“Gladue”]; R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433 [“Ipeelee”]). Upon changes of counsel, and lengthy delays in receiving a  Gladue Report, a report on was filed and further information was outlined in a letter from the Report writer. In her submissions, it was emphasized the impact of intergenerational abuse and the tragic circumstances of Mr. Angus’ mother’s life. The supplemental PSR, provided background regarding the day school run by the Anglican Church on Onion Lake First Nation, which Mr. Angus attended as a young child. Mr. Angus also describes a lack of a sense of home or community and a pattern of transiency. Mr. Angus’ history and personal circumstances have been extremely difficult.

The significant harm a child experiences as a result of sexual violence and a high degree of moral blameworthiness attached to sexual violence against children are aggravating factors (R v Friesen, 2020 SCC 9). Adolescent girls, such as the complainant in this case, are at particular risk for victimization. Accordingly, sentences must not be disproportionately low. A.J.’s age and the significant impact on both her and her family are also deemed aggravating factors. Further, the presence of the firearm during the assault coupled with A.J.’s young age bring s. 272(2)(a.2) of the Criminal Code into effect. This makes Mr. Angus liable “to imprisonment for life and to a minimum punishment of imprisonment for a term of five years”. An additional aggravating factor in the context of the home invasion is mandated by s. 348.1 of the Criminal Code.

Mr. Angus would benefit from the programming available in the penitentiary, but the attitude he has exhibited is concerning. In contrast, Mr. Angus was just shy of 43 years of age when the crimes for which he is now being sentenced took place. He is now 45 years old. He also has a criminal record which includes, among other things, prior convictions under s. 348(1)(b) for break and enter and commission of an indictable offence therein. Mr. Angus’ focus over the months since his conviction has been on the pursuit of a Gladue Report, even to the point of being uncooperative with the PSR writer, as noted in Angus Gladue. Mr. Angus’ failure to acknowledge both his responsibility for his actions and his need for help in addressing the underlying issues is of concern. It would be beneficial and rehabilitative for him to avail himself of programming.

R v Leis, 2021 ONCJ 86

After Gladue factors were considered, a young Indigenous woman was sentenced to three years in a penitentiary for causing an explosion from colliding into a home while driving under the influence.

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Daniella Leis, pleaded guilty to four counts of impaired driving causing bodily harm contrary to s 320.14(2) of the Criminal Code. Driving with blood alcohol being twice the legal limit, she caused an explosion in the historic East Village of London when she severed a gas line as a result of her vehicle colliding with a home.

The accused is a 24 year old Indigenous woman, and is a registered member of the Six Nations of the Grand River Territory. A Gladue Report was prepared. There was a history of family members who attended residential schools, which resulted in an upbringing wrought with substance abuse and domestic violence.

Despite her Gladue factors, Ms Leis drove from Kitchener to London to attend a concert knowing that she would be consuming alcohol. Given the amount of alcohol consumed, as well as consuming marijuana, it is hard to see how she mistakenly believed she was in any condition to drive. This decision risked the lives and safety of others. Ms. Leis has high moral blameworthiness in this matter, although not as high as it otherwise would be in the absence of Gladue factors. She is fortunate that no one was killed as result of her conduct. Thereby, Ms. Leis is sentenced to three years in the penitentiary, concurrent on all matters.

Interlake Reserves Tribal Council Inc et al v The Government of Manitoba, 2020 MBCA 126

Motions made by the Manitoba Métis Federation and the Assembly of First Nations to intervene in an appeal were dismissed after the Court found that there was insufficient basis to grant the motions. Both parties failed to persuade the Court to find that their submission were useful and different from the immediate parties in a way that wouldn’t unnecessarily expand the appeal. The Manitoba Métis Federation also requested an expansion of time to file supporting documents, which was granted by the Court given its incidental nature.

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By way of background, the defendant, the Government of Manitoba, has appealed an order granting interlocutory injunctive relief preventing it from carrying out further work on a road in order to take action on a proposed flood management system in the Interlake region of Manitoba. This interlocutory injunction relief comes as a response to a motion by the plaintiffs, which consist of the Interlake Reserves Tribal council, as well as several First Nations within the area, who alleged that this development of the land would be an infringement on the exercise of their Indigenous and treaty rights. The defendant denies this infringement of rights. The hearing of this appeal is set for February 2021.

The Manitoba Métis Federation [“MMF”] and the Assembly of First Nations [“AFN”] seek to intervene in this appeal. As well, the MMF also requests an extension of time to file its supporting affidavit and memorandum of submissions on the intervention motion. The plaintiffs consent to the motions, while the defendant is opposed.

The Court dealt first with the MMF’s motion to extend time. The MMF filed its motion to intervene within 30 days after the defendant filed its notice of appeal. However, counsel for the MMF failed to file the supporting affidavit and memorandum of submissions at least four days before the initial hearing date and because of this, the motion to intervene was not done in a timely manner. In assessing whether or not an extension of time should be granted to the MMF, the Court considered that the delay is brief, and does not create prejudice to any party. As a result, the Court required that the extension of time to the MMF be granted.

The relevant case law states that an intervener should have either a direct interest in the outcome of the appeal or a special expertise or unique perspective relating to the subject matter (R v Morgentaler, [1993] 1 SCR 462). In applying this case law with the specifics of AFN’s motion to intervene, the Court found that much of the AFN’s submissions duplicated those of the plaintiffs or were not relevant to the issues before the Court. Given this, the Court was not persuaded that the AFN would provide submissions useful and different from those of the plaintiffs and dismissed the AFN’s intervention motion. Similarly, with regard to the MMF’s motion to intervene, the Court was not persuaded that the MMF’s submissions were useful or different from the immediate parties and would unnecessarily expand the appeal. Further, the Count also stated that the MMF did not have a direct interest in the outcome of the appeal, as language used by the MMF was overly vague and inconsistent in stating their direct interest in the outcome of the appeal. As a result, the Court also dismissed the MMF’s intervention motion.

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