R v Aklok, 2020 NUCJ 37

The Court accepted a joint submission on sentence of 45 days of imprisonment followed by nine months of probation for two counts of assault by an Inuk man against his Inuk intimate partner. While the Court found the test for departure from a joint submission had not been met, it expressed concerns with counsel’s failure to justify this lenient sentence, particularly given the prevalence of intimate partner violence in Nunavut.

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Mr. Aklok is a 39-year-old Inuk from Kugluktuk. Mr. Aklok is a repeat offender with a criminal record that contains 13 entries between 2000 and 2012. Mr. Aklok was sentenced for assaulting his intimate partner according to the terms of a joint submission in which the Court found troubling. The joint recommendation was imposed because of the constraints from rejecting it (R v Anthony-Cook, 2016 SCC 43 [“Anthony-Cook”]).

Cases of alcohol-fueled intimate partner violence against Inuit women and girls consistently dominate the Court dockets across the Territory. Far too often, the same intimate partners in crisis are involved in cases before the Court, as in this matter.

There are Gladue factors that need to be taken into account in the sentencing, and in this context, the effects of historic and systemic colonialism and inter-generational trauma experienced by Inuit. Mr. Aklok experienced significant violence all through his childhood. His memories include as a young child watching his father beat up and choke his mother, leaving her bruised, swollen, and helpless on the floor. Mr. Aklok also experienced physical abuse from his father. He was often bullied and ostracised at school and has struggled to find housing and a full-time job and has spent time in homeless shelters.

The joint submission imposed by the Court was unduly lenient, and counsel failed to justify their leniency as the joint submission did nothing to help dispel the perception that the justice system devalues the lives of Inuit victims of crime. However, in Anthony-Cook, the Supreme Court of Canada established a “stringent” public interest test to guide front-line judges when they consider a “contentious” joint submission. Although troubled, the Court was bound to follow appellate direction, and impose the joint submission.

Inuit women, and all Nunavummiut, deserve a justice system that meaningfully addresses gendered violence. Earlier this year, gender-based intimate partner violence was addressed in a report released by Pauktuutit Inuit Women of Canada: “Gendered violence against Inuit women is a problem of massive proportions. Women in Nunavut are the victims of violent crime at a rate more than 13 times higher than the rate for women in Canada as a whole. The risk of women being sexually assaulted in Nunavut is 12 times greater than the provincial/territorial average. In 2016, Nunavut had the highest rate of female victims of police-reported family violence in Canada” (Addressing Gendered Violence against Inuit Women: A review of police policies and practices in Inuit Nunangat, Pauktuutit Inuit Women of Canada and Dr. Elizabeth Comack, January 31, 2020). There is a need and a role for Parliament to reopen debate on this vitally important aspect of the criminal justice system.

R v Racette, 2020 BCPC 219

The Court accepted a joint submission on sentence of two years and 77 days for a Cree Métis man’s aggravated assault against an intimate partner who was also Indigenous. The Court would have imposed a longer sentence in the absence of the joint submission, but the strict test for departure from a joint submission on sentence was not met. 

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Johnathan Troy Racette, a Cree Métis of the Cowessess First Nation in Saskatchewan, has consented to remain in custody, ultimately entering a guilty plea that at or near Masset, in the Province of British Columbia, did commit aggravated assault of Kyla Fraser, an Indigenous woman, contrary to Section 268(2) of the Criminal Code.

This is a joint submission on sentence. The Court must apply the “public interest test” in deciding whether to agree to the joint submission or depart from it. It may only depart from the joint submission if the proposed sentence would bring the administration of justice into disrepute or if the proposed sentence is otherwise contrary to the public interest (R v Anthony-Cook, 2016 SCC 43 [“Anthony-Cook”].

Mr. Racette and Ms. Fraser were in an intimate partner relationship described as “on-again/off-again” from approximately 2018 until the offence in 2020. The relationship had episodes of drug abuse and violence. Despite court-ordered conditions on remand which prohibited Mr. Racette from contacting Ms. Fraser directly or indirectly, she claims he routinely contacted her. Mr. Racette acknowledged communicating or attempting to communicate with Ms. Fraser during the early period of his incarceration in this matter. He is unclear of the frequency of such alleged contact and was unaware of some of the other individual messages given to Ms. Fraser.

Although there are Gladue factors to consider in regards to Mr. Racette, including a diagnosis of various mental disorders, experience of sexual abuse that he suffered quite young in an upbringing rife with poverty and substance abuse, but there is additional consideration as per s 718.201 of the Criminal Code. It states that a court in imposing a sentence in respect of an offence that involved the abuse of an intimate partner shall consider the increased vulnerability of female persons who are victims, giving particular attention to the circumstances of Aboriginal female victims.

Mr. Racette has been working on his Grade 12 equivalency, but has not yet completed it. His employment history consists of mainly general labour jobs and drug trafficking at various times in his life. He currently has no source of income and is reliant upon income assistance and money that his mother provides to him. In discussing his anger, Mr. Racette describes that “he is ‘short-fused.’” According to an RCMP constable, a comprehensive threat assessment was completed by the Behavioural Sciences Group in relation to Mr. Racette which assessed him to be high risk to commit an act of violence against Kyla Fraser or any future intimate partner; and any person he associates with.

But for the joint submission, the Court would have incarcerated Mr. Racette for a significantly longer period of time than two years and 77 days. However, as per Anthony-Cook, the Court must agree to the joint submission, as it does not meet the “public interest” test.

R v Paquette, 2020 ABPC 173

The Court here sought to impose a tailor-made sentence that considered the circumstances of the offence and of the Indigenous offender. In doing this, the Court weighed these factors to balance maintaining the protection of society by mitigating the risk of further violence while also arriving at a sentence that adopts rehabilitative measures to provide some prospects for reducing the risk of the accused to re-offend.

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Mr. Paquette entered a guilty plea to four charges emerging from two separate incidents. The first incident involved his girlfriend at the time. The two were drinking together when Mr. Paquette became angry and accused his girlfriend of lying. He then proceeded to beat and choke her severely. Shortly after, Mr. Paquette attempted to phone his cousin, and when they did not answer, he told his girlfriend that she was lucky, as his cousin was going to place her in the trunk of his car and bury her alive. In relation to this incident, Mr. Paquette entered guilty pleas to threats causing death, intimidation through threats of violence, and assault, causing bodily harm. Five months after this incident, Mr. Paquette was involved in an altercation with a stranger. Mr. Paquette and the stranger were standing on a train station platform when Mr. Paquette, unprompted, pushed the stranger off the platform. The victim was assisted by two other men back onto the station platform and was subsequently pushed off again by Mr. Paquette. After the victim fell to the ground, Mr. Paquette stomped on his head and rendered him unconscious. Regarding his involvement in this incident, Mr. Paquette pleaded guilty to aggravated assault.

This decision deals with setting a fit and appropriate sentence for Mr. Paquette for these crimes and in these circumstances. He is a status member of the Skatin Nation located in the lower mainland of British Columbia. Mr. Paquette’s mother, is a member of the Skookumchuk First Nation. In considering Mr. Paquette’s circumstances, the Court had the benefit of referring to three documents: a Gladue Report; a Pre-sentence Report; and a Pre-Sentence Psychiatry Assessment. These reports revealed that his childhood was complex and riddled with instability and trauma. He does not have a relationship with his father, and both his mother and grandmother (who acted as his primary caregivers) had issues with alcohol. Mr. Paquette says alcohol use has affected his life in many ways, and he too has dependency issues with it. Throughout his childhood, he experienced continuous physical, sexual and emotional abuse. The reports also revealed that Mr. Paquette has some cognitive difficulties, that were in part caused by a brutal assault that occurred when he was 11 or 12 years old.

The Court found that in balancing Gladue factors, and all of the principles of sentencing applicable here, 18 months for the aggravated assault, and six months consecutive for the assault and threats involving Mr. Paquette’s girlfriend, as well as a two-year term of probation would constitute as a fit sentence here. In providing further insight into this decision, the Court stated that the custodial sentence of 24 months gives effect to denunciation, deterrence, and concern for public safety. Whereas a period of two years of probation with conditions is intended to address the rehabilitative purposes of sentencing.

R v Amaaq, 2020 NUCA 11

The Court of Appeal overturned a conditional sentence order of two years less a day and a consecutive three year suspended sentence for aggravated assault against an Inuk mother found guilty of committing these offences against her five-year-old child. The Court of Appeal varied the sentence for aggravated assault by imposing a term of imprisonment of two years less a day followed by a three year period of probation to be served consecutively to the two year conditional sentence for failure to provide the necessaries of life. At the joint request of the Crown and defence counsel, Ms. Amaaq’s obligation to serve jail time was stayed to avoid jeopardizing the future welfare of another child who would likely be placed in foster care if she were imprisoned. 

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The Crown appeals sentences imposed by the Nunavut Court of Justice on December 12, 2019 for two offences the respondent committed against her five-year-old child over an approximately ten-week period – a two-years-less-a-day conditional sentence order for failing to provide the necessaries of life and a consecutive three-year suspended sentence for aggravated assault. The Crown requests that this Court set aside the sentence for aggravated assault and impose a jail term “in the range of 2 years less a day”, as this is the second time the respondent has been convicted of assaulting this child.

The five-year old’s body was covered in bruises and bite marks. He suffered severe internal injuries – a lacerated liver and spleen, a kidney contusion, a fractured rib and an obstructed bowel. The youngster told the examining nurse he could not recall the last time he ate. The child’s height and weight was in the fifteenth percentile for his age.

The sentencing judge tried to produce a sentence faithful to Gladue factors. However, a noncustodial sentence for the aggravated assault conviction fails to take into account Parliament’s direction in section 718.01 of the Criminal Code to “give primary consideration to the objectives of denunciation and deterrence” if the offender abused a person under eighteen years of age. The Court grants leave to appeal and varies the sentence for the aggravated assault conviction by imposing a term of imprisonment of two years less a day followed by a three-year probation period to be served consecutively to the two-year-conditional sentence for the failure to provide the necessaries of life.

The Crown and the respondent asked to stay any custodial sentence that may be imposed to allow the offender to discharge her parental obligations to her four-year-old daughter. The offender has shown no signs that she is a danger to this child or the community. The offender’s daughter would most likely be placed in foster care if the offender was incarcerated. Foster care, would be a poor second choice in these circumstances and would jeopardize the future welfare of yet another of the offender’s children. Had only the respondent’s counsel made this request, the Court most likely would not have granted it, as the Court would be extremely reluctant to dilute, in any way, the message that those who imperil the physical and mental welfare of their offspring are guilty of a grievous breach of trust and merit a term of imprisonment. The youngster’s grandmother has adopted the young boy and assumed the duties and responsibilities of parenthood late in life.

R v CP, 2020 MBPC 45

The Court sentenced an Indigenous youth to a three-year period of supervised probation with community work, strict conditions, and directive rehabilitative measures for robbery, carrying a concealed weapon, theft, and failure to comply with a curfew imposed upon release on previous charges. His moral blameworthiness was attenuated by a constellation of mitigating factors, including impacts from FASD, ADHD, and Gladue circumstances. A jail sentence would not be meaningful for this youth. At best it would engender cynicism and hopelessness, at worst it would reconnect him with the negative influences that led to the offences and he would be released more of a danger to the community. 

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An Indigenous youth, C.P., pleaded guilty to robbery, carrying a concealed weapon, theft, and failure to comply with a curfew which was a condition of his release on previous charges. He was 17 years old when he committed the offences. The robbery and weapon offence involved an armed robbery of a convenience store by pointing an imitation handgun at the owner.

C.P. has suffered many of the sequelae of colonialism and residential schools in his family. He has a history of mental health problems, including bipolar disorder, a history of substance abuse, a low I.Q., and diagnoses of Fetal Alcohol Spectrum Disorder (FASD) and Attention Deficit Hyperactivity Disorder (ADHD). At the time of the sentencing hearing, there had not been a single breach of his conditions.

The maximum adult sentence for robbery is life in prison. The maximum youth sentence is three years. A deferred custody order is not available, because of the psychological harm caused to the victim, Mr. Kwon, as outlined in the Victim Impact Statement (VIS) (R v VJT et al, 2007 MBCA 45). Pointing a firearm, even an imitation firearm, at a lone worker in a convenience store is a serious offence which has been the subject of considerable jurisprudence that recognizes the particular vulnerability of such victims.

 C.P.’s extensive pre-sentence report and forensic report describe that he is an Indigenous person, now 18 years old, from Lake Manitoba First Nation who grew up without a biological father and a mother who suffered from substance abuse and was physically violent towards him. He remembers a lot of alcohol, pills, cocaine and violence as a very young child. When he was nine years old, his mother tragically died in a motor vehicle accident. Due to behavioural difficulties, C.P. was placed in foster care and then the Knowles Centre where he attempted suicide. He suffered physical and sexual abuse by family members. Between 2016 and 2019, C.P. was in 29 placements. He was using methamphetamine daily for the three months before these offences, committing thefts to get money to buy more methamphetamine. C.P.’s education has been limited. There is a direct link between the disruption in his home life and the commencement of his offending behavior.

The principles and objectives of sentencing for young people are very different from adults. Section 50 of the YCJA explicitly states that section 718 of the Criminal Code does not apply to youth sentencing. Read in its totality, the YCJA emphasizes the use of non-custodial sentences rather than custody to hold young people accountable. Although treatment and rehabilitative services are usually available in custody, the negative influences of other youths with a history of offending and the fact that the youth’s problems cannot be addressed in their own environment result in it being more difficult to rehabilitate youths in custody than in community-based treatment and therapy. This is even more so during COVID-19.

A sentence that promotes deterrence but does not promote the rehabilitation of the young person would not be in accordance with the purpose of sentencing under the YCJA. In considering his circumstances as an Indigenous young person, C.P. has experienced in his young life and that of his ancestors every feature of post-colonial life. The provision in the YCJA that requires proceedings to occur in a timely fashion are in recognition of the fact that reduced moral culpability and development in young people mean that for consequences to be meaningful, they have to be close in time to the offending behavior. That is more so when the young person suffers from one or more diagnoses that affect their working memory, as is the case for C.P.

Sending him into a jail after being in the community on strict conditions for a year is not a meaningful sentence. At best, it could engender cynicism and hopelessness in the young person. At worst, housing him in a jail would reconnect him with the negative influences that caused these offences and he would be released more of a danger to the community. He is now 18 years of age. At some point during his custodial sentence, corrections officials could bring an application to have him transferred to an adult facility. Indeed, he recently spent two days in an adult jail.

C.P.’s prospects for rehabilitation are good. It will be a long path, but he has shown remorse and insight into his offences. He has consented to remain in care, acknowledging that with the support of the agency, he is better equipped to stay on a positive path. He is finally in a placement that is suitable to his needs, outside of the troubled places and people in Winnipeg that allowed and supported his criminal behavior. He has a Level 5 placement in a foster home, and all the resources. There is 24-hour staffed supervision and care in the home. He is enrolled in school. A non-custodial sentence and community work with strict conditions and directive rehabilitative measures properly balances the seriousness of the offence with C.P.’s degree of responsibility in committing it.

R v Lerat, 2020 SKPC 30

The Court sentenced Mr. Lerat to four years imprisonment for unlawful confinement and aggravated assault. His moral blameworthiness was impacted by a number of Gladue factors, but a penitentiary term of imprisonment was nevertheless warranted. A careful and merciful balancing of the constellation of relevant sentencing principles and factors in this case favoured a custodial disposition at the low end of the range.

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Wade Morris Lerat entered a guilty plea to aggravated assault contrary to section 268(1) of the Criminal Code and unlawful confinement contrary to section 279(2) of the Criminal Code. With accomplices, Mr. Lerat drove to a residence, where he attacked his uncle, Kevin Gambler, and severely beat him. Mr. Gambler was then loaded into Mr. Lerat’s vehicle, where they drove towards the “Gambler Graveyard” on Muscowpetung First Nation, approximately two miles from the residence. There is nothing else in that area. Mr. Gambler was then told he was going to be killed and buried in the graveyard. Mr. Gambler feared for his life and tried escaping the vehicle multiple times, only to be caught, restrained and further beaten, eventually with a metal bar. Mr. Gambler was then abandoned in the vehicle when it became stuck in mud. Mr. Gambler remained in the vehicle for an hour before walking to a residence to seek help.

A modified sentencing hearing was held for Mr. Lerat in Fort Qu’Appelle. The sentencing hearing included statements from members of the community that spoke to Mr. Lerat and how he has conducted himself since being placed on electronic monitoring. No recommendations were given, thereby determination of a fit sentence falls to the discretion of the sentencing judge. Mr. Lerat is a member of the Muscowpetung First Nation and descends from the Saulteaux people. Given that Mr. Lerat is an Indigenous offender, section 718.2(e) of the Criminal Code must be taken into consideration in determining a fit sentence for him (R v Ipeelee, 2012 SCC 13, 280 CCC (3d) 265).

Mr. Lerat comes from a family upbringing marred with alcohol use and poverty. He has experienced racism and disconnection. Around the age of 16, Mr. Lerat began struggling with drug and alcohol use. He is 36 years old and lives with his wife and nine children. He works for the Muscowpetung First Nation, assisting the Elders. Before the incident, Mr. Lerat was heavily involved with his community, organizing sports teams and tournaments, including hockey and fastball. Since the incident, Mr. Lerat has chosen to embrace his Indigenous heritage and has become more involved through practices such as smudging. He also continues to practice his Christian faith with the help of his Pastor, who is also an Aboriginal Protector. Since being on release, Mr. Lerat has taken treatment at Leading Thunderbird Lodge and with the National Alcohol and Drug Abuse Program worker on Muscowpetung First Nation. He has been sober for the past four years since the incident.

Mr. Lerat has six previous convictions on his criminal record which date back to 2008. However, Mr. Lerat does not have any violent offences on his record, and he has not been incarcerated. While Mr. Lerat may suffer from FASD, there is nothing in the record or evidence that suggested Mr. Lerat was not fully responsible for his actions or that his ability to appreciate or understand his actions was compromised in any way by intellectual or cognitive impairment. This attack happened between family members, many of whom likely are affected by the same systemic issues that affect Mr. Lerat. This is a community where alcohol abuse is the norm and there is a history of intergenerational trauma as a result of residential schools and colonialism. However, the gravity of the offences is serious and Mr. Lerat’s moral culpability remains high. He was highly involved and his actions directly led to a night of physical violence and psychological terror for Mr. Gambler.

These offences carry significant gravity and so the primary sentencing objectives must be denunciation, deterrence and the protection and safety of the public. Aggravated assault is a serious offence, as evidenced by the fact that it carries a maximum term of fourteen years imprisonment. Unlawful confinement is also not to be taken lightly, carrying a maximum term of ten years imprisonment. But it is the combination of the two that raises the gravity (R v Peyachew, 2016 SKCA 21).

Mr. Lerat’s post-offence conduct has demonstrated that he is receptive to rehabilitation and so an appropriate sentence must find a way to give life to that principle through restorative justice. While Mr. Lerat has a number of Gladue factors that impact his degree of responsibility, as a practical reality, the more violent and serious the offence, the more likely it is that the terms of imprisonment for Indigenous and non-Indigenous offenders will be closer to each other or the same, even taking into account their different concepts of sentencing (R v Jensen, (2005) 74 OR (3d) 561 (OCA)). Given the gravity of the offences and Mr. Lerat’s responsibility for them, a penitentiary term of imprisonment is warranted in this case.

R c Esau, 2020 QCCQ 5044

The Court issued a suspended sentence and a three-year probation order for a 54-year-old Cree woman found guilty of trafficking in cocaine and possession of cocaine for the purpose of trafficking. The Court took judicial notice of the increasingly disproportionate numbers of Indigenous women in Canadian prisons. It found the circumstances of Ms. Esau’s life to be harrowing, including recurring experiences of domestic violence, forced marriage to a sexually, physically, and psychologically abusive husband in her Pentecostal community, and periods of homelessness. The Gladue report and the Pre-Sentence Report highlighted the need for participation in treatment and healing programs. 

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Marion Esau, a 54-year-old Indigenous woman from the Cree First Nation, pleaded guilty to charges of having trafficked in cocaine and having had cocaine in her possession for the purpose of trafficking. A Pre-Sentence Report and Gladue report were prepared. Ms. Esau was from a large family from the same biological parents. The family had problems with alcohol, and violence was common in the home. Suicide was rampant, indeed one of her brothers committed suicide at the age of 14. Furthermore, the family followed a traditional lifestyle, placing little emphasis on schooling. Her father and several members of her family attended Indian residential schools.

Because her parents are Pentecostal, Ms. Esau was forced into marriage at the age of 16. Her mother was the one who chose her husband, an uneducated man who lived primarily in the woods. During her marriage, she had four children, and was subject to extreme domestic violence. Isolated, friendless, and unable to see even her parents, she considered suicide. When she left her husband, she also had to leave her children behind. She went to social services for help, but did not receive any. After leaving her husband, she became involved with another man but also experienced severe violence in that relationship. Her current spousal relationship is not violent, but they were homeless.

Ms. Esau has a criminal record going back to 1999, when she was 34 years old. Her prior offences are related primarily with her periods of homelessness and substance abuse. The offences were mostly assault, threats, and theft, and they resulted in occasionally supervised probationary sentences, community work, and fines. She accepts full responsibility for her actions and has shown a good capacity for introspection and an acceptable degree of empathy, both for her community and individually. In the probation officer’s opinion, Ms. Esau must take part in various treatment and programs to heal the wounds caused by her past life. The author of the Gladue report emphasized that Ms. Esau is worried about her husband and daughter if she is sent to prison. Her daughter sometimes gives her some respite by helping her take care of her son, who is epileptic and an alcoholic.

The Court notes that Ms. Esau, as an Indigenous woman, had been victim of violence as it has been discussed in The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls. Without setting aside the other principles of sentencing, the Court notes the importance of the principle in section 718.2(e) Criminal Code. In cases involving Indigenous offenders, consideration should be given to all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or to the community. The Court finds that a suspended sentence of 36 months with restorative justice measures to be an appropriate sentence.

R v Nicholson, 2020 NLSC 41

After considering a Pre-Sentence Report and the offender’s Indigenous background, the Court imposed a sentence of six years incarceration for the combined offences committed.

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Rocky Jed Nicholson was sentenced for break and enter into a dwelling and committing an indictable offence therein, disguise with intent, aggravated assault and assault with a weapon. Following conviction, a date for sentencing was scheduled but later postponed to allow sufficient time for the completion of a Pre-Sentence Report with a Gladue perspective. The Court was tasked with deciding whether the sentences to be imposed should be served concurrently or consecutively, having regard to whether or not any of the offences relate to a single criminal venture. The overall global sentence is six years imprisonment to be served concurrently.

Section 718.1 of the Criminal Code provides that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The Court looked to the Supreme Court of Canada’s consideration of the circumstances of Aboriginal offenders in R v Gladue, (1999), 1SCR 688 [“Gladue”]. Judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case-specific information will have to come from counsel and from a pre-sentence report (Gladue). In the offender’s case, he was noted to have had a “horrendous upbringing” marred by his Cree father’s substance abuse issues, violence, and criminal lifestyle. At a young age, his father was a heroin dealer who often tested his drugs on Mr. Nicholson, which resulted in him becoming addicted to the drug. When the offender was 18-years-old, he shot and killed his father in self-defence. Afterwards, he assumed a role in his father’s drug business and actively used heroin.

The Pre-Sentencing Report indicated that he commenced counselling during prior incarceration, was prescribed Methadone and no longer uses drugs. Since moving to Newfoundland and Labrador, he has been living a productive life with his family. The offender claimed to be fluent in the Carrier language and has incorporated native cultural traditions into his daily family and community life.

Crown counsel noted that the offender entered the home with a baseball bat, thereby increasing the odds that the consequences of his actions would be fatal. The Court found that the offender was reckless as to whether the dwelling house was occupied and used violence causing an injury, which is an aggravating factor. The Court considered the offender’s strides towards rehabilitation, but the fact remained that he was before a court having committed a significant, violent offence, fifteen or sixteen years after getting out of prison and with strong family support. There was no true expression of remorse for the harm done to the victims. The Court found a predominance of aggravating circumstances: 1) the dated but serious criminal record; 2) the planned and pre-meditated nature of the home invasion in which the occupants were present; and 3) the use of weapons and force that actually caused injuries and had the potential to inflict life-threatening injuries. Sentences for break and enter and assaults committed in the course thereof were ordered to be served concurrently in all cases presented to the Court. All sentences were ordered to be served concurrently.

Hall v Kwikwetlem First Nation, 2020 FC 994

The Court allowed an application for judicial review of a decision of two Kwikwetlem First Nation Councillors to remove the applicant, Chief Hall, from his elected office as Chief. At the core of Chief Hall’s removal was his disclosure of a forensic audit report in relation to mismanagement of resources, fraud, and breach of fiduciary duty. The decision was procedurally unfair due to a failure to provide notice and an opportunity to be heard. It was also unreasonable in various respects, including the harshness of their use of termination as a remedy. 

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The Kwikwetlem First Nation [“KFN”] is the band government of kwikwəƛ̓ əm, a people living in Coquitlam, British Columbia. The KFN adopted, by ratification, a custom election code and governance by its Chief and Council [“Election Code”]. In addition to this Election Code, there is a document in existence approved by Council but yet-unratified entitled Kwikwetlem First Nation Chief and Council Code of Ethics [“Ethics Code”].

This judicial review is for a decision [“Decision”] made by two KFN Councillors to remove the Chief [“Applicant”] from his elected office. The conflict regards the disclosure of certain Band business affairs and whether the Councillors individually or collectively can instruct the Chief on what he sees as his duties as Chief. Pursuant to the Election Code, the Chief is to carry out the business of KFN in accordance with a vision document and is the spokesperson of KFN. The Chief or any Councillor may be removed from office if two Council members vote in favour of a resolution. However, the Court notes that neither the Election Code nor the Ethics Code are models of clarity, as the lines of authority and governance are not clear.

The Applicant had run his 2019 campaign for the position of Chief on a platform of increased transparency and accountability regarding KFN’s governance and business dealings. A key part of his mandate was the engagement of forensic auditors to investigate possible mismanagement by the former Chief and his administration. There was a disclosure by the Applicant of a forensic audit report which revealed questionable conduct of certain officials and employees of the KFN including those of a former chief.

At the same time as the forensic audit, the Applicant was engaged in a dispute with the two KFN Councillors about numerous Band matters, in particular the issue of transparency of the audit results. The same day that the forensic auditors indicated that they would make a presentation reporting on the prior mismanagement of KFN, the Applicant received a letter of suspension of one week without pay alleging dishonesty, disclosure of confidential information, conflict of interest and inappropriate treatment of staff.

Upon a subsequent hearing that the Applicant attended under protest, he addressed each of the allegations in an affidavit with documents in support, answered questions and provided oral and written submissions based on the evidence provided and allegations made. He denied the allegations as being untrue, raised procedural fairness concerns including that the Councillors had predetermined the matter, and that the punishment of removal, in any event, was unjustified. After the hearing was concluded, the Councillors issued their decision to remove the Applicant from office, effective immediately.

The nature and extent of the procedural fairness applicable is dependent on the circumstances and dependent on the factors (Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817). A high standard of justice is required when the right to continue in one’s profession or employment is at stake (Kane v Board of Governors of UBC, [1980] 1 SCR 1105). The Election Code is silent on this aspect of the removal provisions but procedural fairness applies in this situation (Sparvier v Cowessess Indian Band, [1993] 3 FC 142).

Compliance with procedural fairness norms “went off the rails” when the Councillors took a break during the hearing, met secretly with a witness and obtained new evidence, thereby attempting to change the hearing. The conduct of the hearing and the post-hearing do not accord with procedural fairness. On this ground alone this judicial review should be granted.

The standard of review of the Decision in respect of the merits is reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65). Part of the dispute between the Chief and the Councillors is the view held by the Councillors that they can dictate to the Chief, individually or collectively, outside of a Chief and Council meeting and the Band Council Resolution process [“BCR”], what he should do and how he should carry out his functions. There is nothing in the Band Council Mandate of the Election Code that speaks to that kind of control over the Chief.

At no time did the Councillors pass a BCR directing the Chief to do or refrain from doing anything, much less directing the Chief to keep the forensic audit results confidential from the community. In the Decision, the Councillors purportedly found the Applicant’s conduct contrary to s 7.3 of the Election Code. That provision contemplates events of gross misconduct, corrupt practices in connection with Council business, illegal or improper appropriation of KFN funds, corrupt election practices and so on. It is unreasonable to conclude on these facts that the Applicant committed any of these acts.

Absent a BCR, it was unreasonable to conclude that the Chief did not have at least a role as the spokesperson for the First Nation in determining what disclosure should have been made of the forensic audit results. The use of the termination remedy is disproportionately harsh and is unreasonable. The Councillors were not protecting the community from an individual engaged in corrupt practices, but instead were attacking a Chief who had a different view from theirs of what was in the best interests of the community. The Decision is quashed, and the Applicant is to be reinstated to his position as Chief and is entitled to costs.

Saskatchewan Polytechnic Faculty Assn v Saskatchewan Polytechnic, 2020 CanLII 78471 (SK LA)

The Arbitrator allowed a grievance filed on behalf of an instructor whose employment was terminated based on his inappropriate racist comments directed towards Indigenous people. While this conduct was found to have warranted a disciplinary response, the Arbitrator concluded termination was too severe in all the circumstances and ordered reinstatement with credit for a six-month unpaid suspension, compensation for lost wages, benefits, and seniority, and arrangements for the grievor to attend Indigenous Awareness Training. 

Indigenous Law Centre – CaseWatch Blog

The Saskatchewan Polytechnic Faculty Association [“SPFA”] filed a grievance on behalf of Wally Derow [“Grievor”] against Saskatchewan Polytechnic [“Employer”]. The Grievor’s employment was terminated in 2018 because of racist comments he had made towards Indigenous peoples.

The Grievor was an Instructor in SaskPoly’s Carpentry Program in Regina, Saskatchewan. An Indigenous student had sent an email to staff asking for donations for the SaskPoly’s Indigenous Student Holiday Hamper Appeal. The Grievor’s reaction including comments such as: “[h]ave we not given enough already. Be like the rest get jobs”; “taxpayers give enough, I work for what I have, they don’t work and get handouts”; “why can’t they get a job”; “we’ve given, all we’ve done is give”; and “you guys get free education – my son goes to university and he paid tuition and he says they don’t have to” and so on.

The Grievor, who at the time was 64 years old, testified that he had not attended SaskPoly’s Indigenous Awareness Training as of November 26, 2018. SPFA had advised the Grievor to expect some sort of discipline, but he did not expect to be terminated. He apologized after he was terminated because he felt remorse and had read further into the Truth and Reconciliation Commission. He explained that previously he thought residential schools were where people “learned our language so they could blend in, our culture, a trade, farming at the time” but realizes he was misinformed.

The Arbitrator determined that the Grievor is not alone in his misconceptions and misunderstandings, in consideration of the social context. Those misconceptions and misunderstandings which can give rise to prejudices on the basis of race have been developed over generations. Generations of non-Indigenous Canadians never received any education about Indigenous history, culture or experience. They know nothing about the Treaties. There is no question that racist attitudes exist because of misconceptions, misunderstanding and stereotyping. Generations of misinformation and lack of understanding cannot be wiped away in a day. The Truth and Reconciliation Commission is having an impact on all aspects of our society, but it is going to take time for society to change attitudes. The way to change those attitudes is not termination of the employment of otherwise good employees.

The Employer should have considered the fact that the Grievor had not yet taken the training as a significant factor to suggest that discipline along with training was the appropriate disciplinary response to the Grievor’s comments. SPFA submits there is no evidence the relationship is irreparable or that it cannot be repaired through education. The Grievor is willing to participate and has already taken steps on his own to educate himself and to make sure that what he says is accurate. The deterrent message in this case is that SaskPoly will not tolerate racism. SaskPoly could have sent a sufficient deterrent message in this case through a significant suspension and imposition of an education requirement.

The Arbitrator found that termination of employment was an excessive employer response to the Grievor’s conduct. SaskPoly is committed to Indigenization and through its Indigenous Awareness Training is attempting to educate all its employees to dispel myths and misconceptions and foster behavioural and attitudinal change towards Indigenous people. Principles of progressive discipline suggest that, especially in a situation like this where education is the best solution, steps short of dismissal would have been more appropriate. The appropriate remedy would have been a six-month unpaid suspension along with appropriate education.