R v Boysis, 2019 ABQB 437

An Indigenous man may have propensity for recidivist violence, but the Gladue factors support a reduced moral culpability.

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The accused was convicted by a jury for manslaughter and aggravated assault. The accused has a criminal record which included a prior conviction for manslaughter and other crimes of violence. A high risk of violent recidivism is present which requires intensive supervision and active management if he is to be released in the community. Concerns about the accused’s potential for recidivist violence and the safety of the public must be borne in mind during the proportionality analysis.

The accused is an Indigenous male of Cree descent and the Gladue factors in this case point to impacts of intergenerational trauma from the accused’s mother and maternal grandmother’s residential school experience. The impacts include alcohol and drug abuse, violence, low educational achievement, criminal involvement, loss of language, culture, and traditions. Gang activity is common in the accused’s home community, as well as family violence, extended periods of poverty and homelessness, childhood neglect, chronic unemployment, low income, suicide among immediate family members, and physical and sexual abuse.

The accused was remorseful and had made efforts to disengage from the previous gang connections and lifestyle. He also understands he needs help with his emotional and mental wellness. The reduced moral culpability played a significant role in determining a fit and proper sentence.

Taking into account all the circumstances, including the aggravating and mitigating factors, the accused’s reduced moral culpability, the range of sentence indicated by the authorities and the principles of sentencing set out in the Criminal Code, a fit and appropriate sentence for the manslaughter conviction is 9 years and aggravated assault is 4 years.

R v Newborn, 2019 ABCA 123

Appeal dismissed. An accused is entitled to a fairly chosen representative jury, not to one with a particular composition. As well, the jury is entitled to have competing evidence on a critical issue before them.

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The Appellant was charged with murder for physically beating a man so severely that he died from the injuries two days later. The offence occurred on a train in front of other passengers, and was recorded by security cameras. The Appellant argued that the Crown could not prove the intent necessary for murder as the accused had a limited intellectual capacity with an IQ of 59 and a moderate cognitive impairment. The Appellant also challenged the jury selection process arguing that his right to a trial by an independent and impartial jury selection under s 11 (d) and (f) of the Charter had been violated, arguing that s 4(h)(i) of the Jury Act excludes persons who have been convicted of a criminal offence. This according to the Appellant is unconstitutional because it disproportionately excluded Aboriginal persons.

An accused is entitled to a fairly chosen representative jury, not to one with a particular composition (R v Kokopenance, 2015 SCC 28). The focus is on the process to select the jury, which must include the delivery of notices to citizens randomly selected from broadly based sources and the deliberate or systemic exclusion of segments of the population is not acceptable. Some limits on jury eligibility, however, are permissible.

It was concluded that the Appellant did not offer any satisfactory rational while his expert witness opinion would be admissible and beneficial to the jury, but the Crown’s rebuttal evidence on the same topic would not. While the Crown and defence experts approached the issue from slightly different perspectives, that does not reflect any error. Neither the Crown nor the defence is required to approach an issue in the way the other side frames it (R v DD, 2000 SCC 43). All of the evidence was relevant and admissible, despite its different assumptions and approaches. ­­The jury was given acceptable instructions regarding expert evidence from the trial judge.

R v GD, 2019 BCPC 179

After balancing sentencing objectives with the gravity of the violent and sexual offences committed, the offender’s Indigenous heritage was minorly influential in determining a fit sentence. 

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The accused was convicted of five offences relating to the confinment and repeated sexual abuse of a 16-year-old friend of her son’s over a two-day period. The offences were committed with her husband who pled guilty to four of the five offences and received a 15-year sentence.

There was an extensive list of aggravating features in this case. There was an element of planning to the offences. The offender was a co-perpetrator, primarily assisting in the execution of the plan once aware of it, although, did act independently at times. There was repeated violent, cruel and degrading acts over that period of two days. The assaults involved gratuitous and excessive violence for perverse reasons that went beyond what was necessary to gain the victim’s compliance. There was a power imbalance between the offender and victim by virtue of their age difference. The victim suffered multiple physical injuries.

The offender expressed a lack of genuine remorse. The offender’s criminal record was given marginal bearing, as most were unrelated offences and had lack of proximity in time. The offender’s psychological profile, however, presented a high risk to engage in future sexual offences with the accomplice, or another male offender, while in the community. Even with intensive interventions, the accused’s rehabilitative prospects are guarded.

At times, the offender showed kindness to the victim and attempted at times to reduce suffering. The offender cooperated to a limited extent with police (treated marginally given its limited nature). The offender had taken concrete and positive steps towards rehabilitation while in custody. She has engaged in individual therapy sessions and numerous programs. There was no ascertainable evidence that the offender had been affected by racism, lower educational attainment, unemployment, low income or lack of employment opportunities as a result of her Métis heritage. The proportionate sentence to the gravity of the offence and degree of responsibility is a sentence of 12 years.

Brake v Canada (AG), 2019 FCA 274

Appeal allowed in part. Action is certified as a class proceeding that will determine important common questions affecting over 80,000 people regarding the Qalipu Mi’kmaq First Nation Band’s stringent membership criteria.

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This is an application to overturn an order by the Federal Court that refused to convert Mr. Brake’s application for judicial review into an action under ss 18.4(2) of the Federal Courts Act [“Act”] and certify it as a class proceeding under Rule 334.16(1) of the Federal Courts Rules [“FCR”]. Mr. Brake passed away just before this Court rendered judgment, but his application for judicial review continues. This Court grants the appeal in part, sets aside the order that denies certification under Rule 334.16(1), and grants the motion for certification.

The Qalipu Mi’kmaq First Nation Band [“Band”] was recognized as a Band under the Indian Act. Under a 2008 Agreement, there was higher than expected enrollment. Canada, along with the Federation of Newfoundland Indians, made it more difficult for people to qualify as members of the Band through changes under a 2013 Supplemental Agreement. Using a paragraph in the 2008 Agreement to authorize making these changes, many like Mr. Brake no longer qualified for Band membership. He had applied for judicial review of the rejection of his application, and others, under the new criteria. Alleging procedural unfairness, substantive unreasonableness and lack of good faith, he seeks, among other things, a redetermination of the membership applications under the original 2008 Agreement.

Mr. Brake followed what is described as the “Tihomirovs approach” (Tihomirovs v Canada (Minister of Citizenship and Immigration), 2005 FCA 308 [“Tihomirovs”]) procedurally in the Federal Court. This approach would transform his proceeding from an individual proceeding into a class proceeding. The goal was to seek both administrative law remedies against the decision and damages caused by the decision. The Federal Court declined to certify Mr. Brake’s proceeding as a class proceeding, reasoning that the issues raised in the proposed class proceeding be determined through a test case: Wells v Canada (AG), [2019] 2 CNLR 321 [“Wells”]. It cited Tihomirovs for the proposition that if the reason for conversion was to support an application for certification as a class proceeding and if certification were denied, then conversion should also be denied. Not only is the Federal Court’s decision in Wells only persuasive, not binding (Apotex Inc v Allergan Inc, 2012 FCA 308), but Mr. Brake did not consent to his claims being decided in Wells as a “lead case”, nor was there opportunity to make submissions or present evidence.

To seek both administrative law remedies and damages simultaneously, one must launch two separate proceedings. For example, an application for judicial review started by a notice of application and an action for damages started by a statement of claim. This has obvious ramifications for access to justice because it is difficult to prosecute one proceeding all the way through to judgment. Having more than one proceeding compounds that difficulty and can also result in unnecessary expenditure of judicial resources and conflicting results.

Rule 105 of the FCR permits the consolidation of multiple proceedings of any sort, allowing them to progress as if they were one proceeding governed by one set of procedures. Therefore, an application for judicial review can be consolidated with an action for damages. At the end of the consolidated proceeding, the Court issues two judgments, one for the application for judicial review and one for the action. Where appropriate, each judgment will give the relief available in each proceeding. The judgment in the application for judicial review will give administrative law relief and the judgment in the action will give damages. Rule 334.16(1) provides that a “proceeding” can be certified as a “class proceeding”. An application for judicial review that has been consolidated with an action can be a “proceeding” that can become a class proceeding under Rule 334.16(1).

There are three recognized ways in case law to certify consolidated judicial reviews and actions as class proceedings: 1) the Hinton approach is when an application for judicial review seeking administrative law remedies is started. A separate action for damages for the administrative misconduct is also started and the two are consolidated. If desired, certification of the consolidated proceeding as a class proceeding can be sought under Rule 334.16(1) (Canada (Citizenship and Immigration) v Hinton, 2008 FCA 215 [“Hinton”]); 2) the Paradis Honey approach where an action is started. In the statement of claim starting the action, both administrative law remedies and damages for the administrative misconduct are sought. But the entitlement to damages is pleaded as a public law cause of action for unreasonable or invalid decision-making (Paradis Honey Ltd v Canada (Attorney General), 2015 FCA 89 [“Paradis Honey”]); and 3) the Tihomirovs approach where an application for judicial review seeking administrative law remedies is started. A motion for an order permitting the judicial review to be prosecuted as an action under ss 18.4(2) of the Act is brought. Then the litigant brings a motion for certification as a class proceeding under Rule 334.16(1). In support of the certification motion, a proposed statement of claim is filed that simultaneously seeks administrative law remedies and damages. The Court determines the motions together.

Under the Tihomirovs approach, the draft, unissued statement of claim becomes the subject of a certification motion which is contrary to the text of Rule 334.16(1). It speaks of certifying an existing proceeding, not a proposed proceeding. Tihomirovs, however, remains good law (Miller v Canada (AG), 2002 FCA 370). Yet Tihomirovs sits uncomfortably within the Act, the FCR and associated jurisprudence. Tihomirovs needs to be tweaked to address these concerns so that it can fit more comfortably into the FCR. The Court should consider the proposed statement of claim as if it were finalized and filed, then assess whether the action and the application for judicial review, if they were consolidated, would meet the certification requirements under Rule 334.16. It should require that within a short period of time the proposed statement of claim be filed as the statement of claim, the action be consolidated with the application, and the consolidated proceeding be prosecuted as if it were an action. Under this revised approach, nothing is being converted to an action under ss 18.4(2) of the Act, consistent with the jurisprudence of this Court (Canada (Human Rights Commission) v Saddle Lake Cree Nation, 2018 FCA 228). Instead, the Court is attaching a term to its certification order allowing the consolidated proceeding to be prosecuted as if it were an action.

The revised Tihomirovs approach places the litigants in substantially the same position they would have been in if they followed the Hinton or the Paradis Honey approaches. It would be wise for parties in the future to follow these latter approaches, the Paradis Honey approach being the simplest of all, when applying to certify a class proceeding where they seek simultaneously the invalidation of administrative decision-making and damages for wrongful administrative decision-making as in this matter.

R v Lagrelle, 2019 ABQB 702

A non-carceral sentence is unavailable for an Indigenous woman who pled guilty to causing an accident that resulted in a death and bodily harm to others while driving intoxicated.

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The offender, Ms. Lagrelle, had a previous impaired driving offence but still made the decision to drive intoxicated and was travelling at a high speed when a collision occurred. The alcohol content was almost twice the legal limit, and she had occupants in the vehicle. An aggravating aspect was that the offender denied driving the vehicle and only admitted to police that she was indeed the driver two weeks after the accident. Because of these actions, Ms. Lagrelle’s moral blameworthiness is high for causing an accident that resulted in a person’s death as well as bodily harm to others.

One of the challenges facing this Court is that Ms. Lagrelle, and Idigenous woman who has suffered substantial abuse in her life, will be facing a carceral sentence. A non-carceral sentence, such as a conditional sentence order, is simply not available for the offence. Ms. Lagrelle, however, shows prospects for rehabilitation. Although the gravity of the offences for which she has been convicted are high, her moral culpability was lessened through the various Gladue factors stated in a Gladue report that assisted with determining the length of the sentence that is imposed (R v Abraham, 2000 ABCA 159).

The Court determined that the fit and proper sentences for Ms. Lagrelle’s offences for causing an accident resulting in death was three years and six months imprisonment and for causing an accident resulting in bodily harm was two years and six months imprisonment. The sentences are to be served concurrently. Further, it was recommended that the sentence be served in the Okimaw Ohci Healing Lodge in Maple Creek, Saskatchewan.

Taseko Mines Limited v Tsilhqot’in National Government, 2019 BCSC 1507

Interlocutory injunction granted in favour of the Tsilhqot’in Nation against Taseko Mines Limited work permit, on the basis that it infringes their Aboriginal rights.

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Taseko Mines Limited [“Taseko”] applied to prohibit members of the Tsilhqot’in Nation [“Tsilhqot’in”] from blockading its access to an area where the mining company wants to carry out an exploratory drilling program [“NOW program”]. Taseko has access pursuant to a notice of work permit [“NOW permit”] issued under the Mines Act. That application is now moot since the Court decided Tsilhqot’in’s application will succeed for an injunction prohibiting Taseko from carrying out its NOW program until the Tsilqot’in’s underlying claim to quash the NOW permit is heard.

In this matter, the issue is whether granting Tsilqot’in the interim injunction prohibiting Taseko from undertaking the NOW program would amount to a final determination of the action, which would effectively remove any benefit of proceeding to trial. The NOW permit will expire in July 2020, and if Taseko is enjoined until the action is heard, it is very unlikely the trial could be completed in time to for the 4-6 weeks required to complete the NOW program. In the Court’s view, the extension is essentially mechanical and concludes that Taseko will have until July 2022 to complete the NOW program, because Taseko can extend the NOW permit by two years under s 5(1) of the Permit Regulation.

Issues pertaining to infringement and justification, which will be the focus of the trial, are not new to the parties. Because some of the factual and legal elements have been argued before different courts for years, the discovery process will not be as time consuming as it would be if the issues were new to the parties. Based on the evidence and submissions before the Court, if the parties prioritize the matter, the timeline should be adequate to prepare for trial. The injunction is not tantamount to granting relief nor is it bound to impose a hardship removing any benefit of trial. The threshold merits test is the serious question to be tried standard (R v Canadian Broadcasting Corp, 2018 SCC 5). This threshold is relatively low as a prolonged examination of the merits is generally neither necessary nor desirable (RJR-MacDonald Inc  v Canada, [1944] 1 SCR 311).

It was determined that given the nature of the harm to the Tsilhqot’in, and the waiving of the undertaking as to damages, there was a material risk of irreparable harm to both parties. When there is a risk of both parties suffering a material risk of irreparable harm, the court should favor the status quo (AG British Columbia v Wale (1986), 9 BCLR (2d) 333 (CA)). It was determined that the NOW program would change the status quo as it would disturb the land. The Tsilhqot’in stand to suffer greater irreparable harm if the injunction is not granted. Despite that the Tsilhqot’in pursued a self-help remedy of a blockade outside the courts, the imperative of reconciliation was such that the balance of convenience was in the Tsilhqot’in’s favour.

FB v RB, 2019 ABPC 204

Application denied. Considering the history of the family, the grandparents of child are granted daily care. The child’s mother has restricted parenting time. The father is allowed no contact unless via a safe visitation facility.

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This action involved the guardianship and parenting of a child. The grandparents of the child obtained court orders for guardianship. The parents were granted a Parenting Order in 2016, giving them daily care of their child, all decision-making powers, and gave the mother parenting time with the child at the discretion of the grandparents. The mother, however, applied under s 34(2) of the Family Law Act [“Act”], to vary the 2016 Parenting Order, asking that the child be transitioned to her day to day care.

The issues before this Court was whether it had the jurisdiction to make a variation order of the 2016 Parenting Order. If so, what allocation of parenting time, guardianship powers, entitlements, and responsibilities were in the best interests of this child. S 34(3) of the Act determines that the Court can only make a variation order if there has been a material change in the needs or circumstances of a child since the making of a Parenting Order. Additionally, the Court can only consider the best interests of a child as set out in s 18 of the Act, as determined by reference to any change in a child’s needs or circumstances. An existing custody order may be varied on an interim basis in emergent circumstances, but it should not be lightly disturbed as stability and certainty are primary considerations for a child’s best interests (Carey v Hanlon, 2007 ABCA 391).

S 18(2)(b) provides a non-exhaustive list of the needs and circumstances of a child that the Court must consider. Accordingly, for s 34(3) of the Act, a change in the needs or circumstances of a child has occurred if there has been a material change in any of the needs or circumstances listed in s 18(2)(b). The Court determined that there was a material change in the needs or circumstances of the child in this matter concerning the ability and willingness of the mother to care and meet the needs of the child. There was, however, a pending criminal proceeding regarding an allegation of sexual assault against the father, which is a circumstance affecting the safety and well-being of the child, which was afforded greater weight.

R v Paul, 2019 SKQB 142

Offender is to be sentenced as an adult, even after consideration of Gladue factors. She is to serve, concurrently, nine years imprisonment for manslaughter and two years imprisonment for unlawful confinement.

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The accused was found guilty of a lesser charge of manslaughter as well as unlawful confinement. The offender was just shy of her 18th birthday at the time of the offences; as such, these proceedings fell under the Youth Criminal Justice Act, SC 2002, c 1 [“Act”]. However, the offender was to be sentenced as an adult as the Crown filed a notice and the offender had consented to that process under s 67 of the Act.

Proportionality, the fundamental principle of sentencing, the individualistic nature of sentencing, deterrence and denunciation, and rehabilitation as the offender is a young person were all taken into account. Further, sentencing must consider the Gladue factors when considering a person of Indigenous ancestry.

While on remand, the offender took advantage of some available programming but her time in remand could not be characterized as positive. The pre-sentence report ranked the offender in the highest level of risk to reoffend, and the psychological assessment report concluded she was at a high risk for future violent offending. The offender informed the court that she does understand she needs assistance and that was the primary reason she consented to an adult sentence to take advantage of the programming. She has been connected with her family since being incarcerated. She oscillates between expressions of remorse and pride at her capacity for violence and defiance, but stated she was sorry at the sentencing hearing which was taken as sincere.

Counsel agreed that the sentencing range for manslaughter is 4 to 11 years, with a starting point of 7 years. In some circumstances, a suitable sentence will fall outside the range. Two cases were relied on, R v Whitehead, 2016 SKCA 165 and R v Littlewolfe, 2002 SKCA 143. The prolonged nature of the attack and extent of physical violence inflicted on the victim were aggravating circumstances in this case. As for mitigating factors, her youth was a mitigating factor as well as not initially being the leader in the attack. The offender was sentenced to nine years imprisonment for manslaughter and two years imprisonment for unlawful confinement, to be served concurrently.

Ross River Dena Council v Yukon, 2019 YKSC 26

Application dismissed. Yukon has engaged in “deep consultation” with the RRDC in respect to wildlife matters. There has been no breach of the duty to consult, and where appropriate, to accommodate.

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Ross River Dena Council [“RRDC”] applied pursuant to Rule 31(6) of the Rules of Court, for the following order: 1) A declaration that the issuance of hunting licences and seals might adversely affect the Aboriginal title of the RRDC members in and to the Ross River Area by permitting conduct in that Area inconsistent with Aboriginal title; 2) A declaration that the Government of Yukon has a duty to consult with, and where indicated, accommodate the RRDC prior to issuing hunting licences and seals; and 3) A declaration that, in respect of each of the 2016/2017, 2017/2018 and 2018/2019 hunting seasons, the Government of Yukon failed to consult with and, where indicated, accommodate the RRDC prior to issuing hunting licences and seals. The Government of Yukon [“Yukon”] opposed the application and relied on RRDC v Yukon, 2015 YKSC 45 [“RRDC 2015 wildlife case”], where this court refused to grant a declaration of a constitutional duty to consult on wildlife matters as it was unnecessary when Yukon was ready, willing, and able to negotiate and consult on wildlife matters as set out in Haida Nation v British Columbia (Minister of Forests), [2005] 1 CNLR 72 [“Haida Nation“].

The context and content of Yukon’s duty to consult with RRDC in wildlife matters required a consideration of the previous decisions. In Ross River Dena Council v Yukon, 2012 YKCA 14 the Court of Appeal recognized that the Yukon had a duty to consult with RRDC in determining whether mineral rights on Crown land within lands compromising the Ross River Area are to be made available to third parties. Further, that Yukon has a duty to notify, and where appropriate, consult with and accommodate RRDC before allowing any mining exploration activities to take place within the Ross River Area. In the RRDC 2015 wildlife case, it was concluded that the Haida Nation test for the duty to consult, had been met.

After reviewing the principles set out in Haida Nation, there were a number of reasons why deep consultation was required by Yukon. First, in Ross River Dena Council v Canada (Attorney General), 2019 YKCA 3, the Court of Appeal confirmed the constitutional obligation in the Rupert’s Land and North-Western Territory Order (UK) which was important for the case at bar to recognize the historic and legal nature of the RRDC claim to title and its application to Yukon. Second, there have been significant impacts on the RRDC traditional territory ongoing for at least 50 years. Third, Yukon and the RRDC have been negotiating land claims on and off from 1973 to 2002 which supports the strength of the claim as negotiations would only proceed on the understanding that there was an asserted but as yet undefined underlying claim to title. Fourth, the strength of the claim was enhanced by the lands set aside, on an interim basis, for settlement purposes. Last, the comprehensive nature of the Framework for a Government-to-Government Agreement between representatives of the Kaska Nation, including RRDC.

RRDC was at the claim stage of asserting Aboriginal title. Yukon had consulted extensively with RRDC representatives through sharing the harvest results, the population surveys, and discussing wildlife management issues. Yukon had further provided RRDC with notification of planned wildlife initiatives; shared specific wildlife data and information; and provided funding to RRDC to participate in discussions and negotiations. RRDC had acknowledged the correspondence. While RRDC believes that the entire Ross River Area should be a permit hunt area, Yukon saw this as a way to limit hunting access rather than a useful wildlife management tool. It must be remembered that failure to agree does not necessarily result in a breach of the duty to consult. Yukon was also prepared to continue discussing the proposal. After responding to concerns from RRDC indicating a decline in the Finlayson Caribou Herd, Yukon closed the permit hunt for the Finlayson Caribou Herd and set the outfitter quota to zero for the 2019/2020 hunting season which was seen as significant accommodation. For these reasons, there had been “deep consultation” with RRDC with respect to wildlife matters and no breach of the duty to consult, and where appropriate, to accommodate. RRDC’s application was dismissed.

Alton Natural Gas Storage Inc v Poulette, 2019 NSSC 94

Permanent injunction order granted. The Applicant company may make a place on its lands where protestors could gather and be seen by the public. The Respondents and their belongings are confined to this permitted area.

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Alton Natural Gas Storage Inc [“Alton”] was seeking a permanent injunction against Respondents who oppose Alton’s plan to use hydro technology to construct a vast underground cavern system. Discharge construction water would flow as a result into the Sipekne’katik River [“River”]. The Mi’kmaq people have used the waterway for over 4,000 years. The Sipekne’katik First Nation and other First Nations have significant interests in the River. Alton was proposing to construct a system of caverns in the land beside the River to store natural gas and had acquired over 40 acres of land bordering the River. To do so, Alton planned on creating the caverns by pumping the River water into salt deposits underground. Alton expressed that the brine was to be injected into a mixing channel adjacent to the River, diffused, diluted, and returned to the River at a salinity level within the natural range.

Numerous First Nations, however, expressed their fears that the brine would pollute the River. A camp was built near the front entrance to Alton’s land and its guardhouse. Alton alleged that the camp prevented the heavy equipment needed to create a pump system. Protestors continued to impede access to Alton’s property at various times after 2016. The court determined that for Alton to receive a motion for an interlocutory injunction it must show three things: 1) that its claim raises a serious issue to be determined on the hearing of the application for a final injunction; 2) it will suffer irreparable harm if there is no temporary injunction before the hearing of the application; and 3) the balance of inconvenience must favour Alton over the Respondents (RJR MacDonald v Canada, [1995] 3 SCR 199 [“RJR”]).

Alton proved title and occupation to the land along the River where the protestors were camped and had established a serious issue to be tried. Evidence of threats from Youtube was sufficient to establish irreparable harm (RJR). Assessing the balance of convenience involved “determining which of the parties will suffer the greater harm from the granting or refusing of an interlocutory injunction, pending trial” (Maxwell Properties Ltd V Mosaik Property Management Ltd, 2017 NSCA 76).  The Court expected something more than an assertion of Aboriginal or treaty rights to establish a balance of inconvenience favouring the Respondents. Therefore, the balance of convenience was determined to be with Alton.