R v JP, 2020 SKCA 52: Case Commentary by Glen Luther and Hilary Peterson

Indigenous Law Centre – CaseWatch Blog

On April 30, 2020 The Saskatchewan Court of Appeal released the judgement of R v JP,[1] in a case where the sentencing trial judge had failed to account for the proven mitigating factors (relating to the accused’s Indigenous background and to the accused’s Fetal Alcohol Spectrum Disorder [FASD]) in favour of “denunciation, deterrence and public protection”.[2] This appeal therefore considered the proper sentencing of an accused who suffers with FASD and whose personal circumstances require application of section 718.2(e) of the Criminal Code and the principles set out in R v Gladue.[3] In result, the Court of Appeal reduced the sentence for two robberies from the original sentence of seven years each, consecutive, to 5 years each, concurrent.[4]

The judgment of the Court of Appeal is highly significant with respect to, at least, the following four points:

  1. The recognition of proven FASD as reducing the “degree of responsibility of the offender”;
  2. The recognition that Gladue factors affect one’s “moral culpability” and as a logical consequence one’s “degree of responsibility” is lessened” even where a penitentiary term is called for;
  3. The presence of the word “rehabilitation” in s 718 as a purpose of sentence should be given a wide definition to include management and supervision in the community in relation to FASD;and
  4. That it is not the role of the Gladue report writer to suggest a fit sentence, as such is the province of the sentencing Judge.

At trial the circumstances of JP’s life as they relate to Gladue considerations were provided in detail and a Gladue report was completed, which included detail about his mother’s use of alcohol and drugs while pregnant with him and that she did not know she was pregnant until the seventh month.[5] The Court of Appeal provided the following summary of the Trial Judge’s conclusions regarding FASD and Gladue considerations:

… The judge began his analysis of these matters by stating that he was “satisfied that there are systemic and background factors that have contributed significantly to J.P.’s circumstances, and to his appearances before the criminal courts of this province”. He described these as “largely intergenerational” and stated that “[i]t is likely that these systemic and background factors have a bearing on J.P.’s lifestyle and attitude” (at para 87). The judge also said he had “no doubt” as to the accuracy of the diagnosis of FASD, which he said was supported by assessments which were “thorough and complete, including recommendations for intervention” (at para 92)…[6]

It is a finding of fact that JP suffers from FASD and Gladue circumstances which have contributed to JP’s involvement with the criminal justice system. The Court of Appeal analyzed the sentencing principles considered by the Trial Judge and ultimately found that the “The judge did not otherwise determine or consider the extent to which J.P’s level of reduced culpability arising from his FASD and other Gladue consideration should weigh in determining a fit sentence.”[7] However, as quoted above in paragraph 87 of the trial decision, the Trial Judge recognized JP’s reduced moral culpability.[8]

The Court of Appeal’s judgment is authored by Leurer JA and concurred in by Justices Schwann and Kalmakoff. The judgment is like a breath of fresh air in a Province that has often been seen as resistant to confronting the Indigenous over-incarceration epidemic. In doing so, the Court of Appeal builds on the now four-year-old decision of Richards CJS for the Court in R v Chanalquay, 2015 SKCA 141, in attempting to breath real life into the Gladue principles. Those principles have continued to confuse and, in some sense, be resisted by lower court judges. JP, who the sentencing Judge, Elson J of the Saskatchewan Court of Queen’s Bench, convicted after a trial, had been found to have “encouraged and directed” his nephew to commit the two convenience store robberies, had also been introduced himself at a young age to criminality by his step-father. As such, it is easy to see the inter-generational nature of this Indigenous family’s offending.

The sentencing Judge had criticized defence counsel and the Gladue writer for a failure to address the “extent to which the identified systemic and background factors, may or may not, influence” the objectives of denunciation, deterrence and public protection.[9]Justice Leuer relying on R v Okimaw,[10] suggests that Elson J was wrongly seeking for the Gladue factors and the presence of FASD to have “impacted or influenced” the named objectives of sentencing. The Court of Appeal was also of the view that JP’s FASD, which damage occurred to JP’s brain when he was being carried by his then fifteen year old mother, (who was at the time living in a circumstance of “family dysfunction, substance and alcohol abuse and violence”) had a “direct connection” to other systemic and background (Gladue) factors. Indeed, the Court of Appeal found that JP’s FASD was an “intergenerational consequence of residential schools”.[11]

These findings then lead the Court to ask an important rhetorical question: “how can a person who received the different sort of education JP was given by his stepfather not be less morally culpable than someone who was raised in a stable environment uninfluenced by the mentorship of a criminal?”[12] The Court’s point is a good one. If we are looking for examples of reduced moral culpability we have it in JP, without even considering his FASD. To the Court of Appeal his reduced moral culpability is evident and when taken with his FASD the evidence points more directly to JP’s reduced moral culpability.

Before moving to how this should have affected the sentence given, the Court then moves to address FASD directly. A first for this Court, Leurer JA adopts a broader definition of rehabilitation than originally accepted by the sentencing Judge. The Court quotes from R v Friesen,[13] where the Manitoba Court of Appeal accepted that rehabilitation includes “finding a way to control and modify the behavior…”[14] in question. Therefore, finding that FASD is a “life-long” condition does not equate with it not being amenable to rehabilitation (or treatment).  Leuer JA says that “…when the risk of reoffending is reduced through structured support that control, modifies or manages behavior”[15] rehabilitation can be an important aim of a criminal sentence. This is a highly significant step and provides much scope for the use by the criminal courts of recent research into the management of those with FASD as showing pathways to effective rehabilitation. Can FASD researchers, including Dr. Jacquie Pie (and others), have been doing important work on this topic.[16] Indeed, when one stops to think about the issue it is clear that many conditions are in fact life-long and yet can be subjected to effective “treatment” that can lessen their adverse effects (including diabetes, for example).

Lastly, the Court of Appeal is very clear in their judgment in JP that when an offence requires a penitentiary sentence it remains significant to consider Gladue factors when arriving at the precise sentence that is to be imposed. The Court focuses on the principle of proportionality [in s.718.1] as requiring the sentencing judge to “put into the balance” the “impact …systemic and background factors have on an individual’s moral blameworthiness.”[17] Therefore, “A combination of Gladue factors and FASD will often serve to reduce an offender’s moral culpability in the context of consideration of the proportionality principle”[18] which “must be accounted for when determining a proportionate sentence.”[19] This, of course, is highly significant as one often gets the impression that sentencing judges are giving only lip service to Gladue principles. Leurer JA is clear that such factors must be “weighed when fixing a proportionate sentence”[20]. The Court is critical of the Crown’s argument that Gladue has less effect where the primary goal identified in the case law is deterrence as s718.2(e), (citing Gladue itself at para 44), “has a remedial purpose for all offenders… [with] a particular remedial role for aboriginal peoples.”[21] In a case involving FASD, the Judge must look for evidence as to whether the accused’s moral culpability is reduced by their FASD. Further, Gladue factors that reduce moral culpability remain in play when determining the ultimate sentence relying on R v Jensen [22]. In the end, the Court finds that the factors that reduce JP’s culpability were on the facts of the case “overwhelming” and “cannot be credibly denied”[23] and the Judge erred in principle by failing to account for those factors in setting the sentence.

It seems that courts continue to adapt their application of Gladue in order to fulfill the intended purpose of the Supreme Court of Canada’s interpretation of section 718.2(e) of the Criminal Code. Part of this picture is answered by this decision. It cannot be clearer: in Saskatchewan either proven FASD or significant Gladue factors affect one’s “moral culpability” and as a logical consequence one’s “degree of responsibility” is lessened. JP is a disabled person whose life circumstances are a consequence of colonial trauma and learned criminality. He will spend the next five years in a federal penitentiary. How are those five years of separation from society going to assist in supporting him in ways that recognize both his disability and his strengths and thus his future risk? One of the foundational statements from the Supreme Court in Gladue is that prison and the justice system in general is not working for Indigenous peoples [24]. While the search for the right balance of the proportionality equation is necessary, it is also important to remember that it is only through the creation of alternatives to incarceration, through the creation of Indigenous justice programs and the continued and increased reliance on organizations such as the FASD Network, that will we really make significant change to the lives of people involved in criminality, while making our society safer. Until then Indigenous people are being sent to prisons that won’t rehabilitate them. What kind of a society do we want to live in? One in which says it is making us safer or one that is actually safe?

Read R v JP, 2020 SKCA 52 on CanLii

About the contributors: 

Glen Luther: “Professor Luther joined the faculty of the College of Law, University of Saskatchewan in 2003, having previously held teaching positions at Osgoode Hall Law School, Victoria University in Wellington, New Zealand, and the University of Calgary. He has extensive practice experience as a criminal lawyer, having practiced in Lloydminster (his hometown) from 1981-1984 and Calgary, Alberta from 1989-2003. He has argued cases throughout Alberta and Saskatchewan at all levels of courts including the Supreme Court of Canada. Currently his practice is limited to consulting with other counsel and assisting them in the presentation of cases before the courts.”

Hilary Peterson: “Sessional lecturer and lawyer, Ms. Peterson teaches at the College of Law, specifically the seminars Youth Criminal Justice and the Indigenous People and the Criminal Justice System.” 

Citations:

[1] 2020 SKCA 52 [JP].

[2] Ibid, para 89.

[3] [1999] 1 SCR 688, [Gladue].

[4] At trial the accused was sentenced on a number of offences for a total global sentence of 17 years, which was reduced, based on the totality principle, to 10 years. The Appellate Court dealt predominately with the issue of sentence for two robbery convictions. The original sentence for the two robberies was seven years’ imprisonment, running consecutively, although the Trial Judge reduced the overall sentence of 17 years he would have imposed to 10 years based on the totality principle, [para 86] The Appellate Court modified the sentence for the two robberies to five years to run concurrently; resulting in a global sentence of eight years less time served on remand, [para 3].

[5] JP, supra note 1, see paras 9-15.

[6] Ibid, at para 21. [emphasis added]

[7]  Ibid, at para 38.

[8] Ibid at para 46.

[9] Ibid at para 89.

[10] 2016 ABCA 246, at para 76.

[11] JP, supra note 1, at para 45.

[12] Ibid, at para 47, [emphasis in original].

[13] 2016 MBCA 50.

[14] JP, supra note 1, at para 58.

[15] Ibid, at para 61.

[16] See for example: Pei J et al, “Interventions for Fetal Alcohol Spectrum Disorder: Meeting Needs Across the Lifespan” (2016) 3 Int. J. Neurorehabilitation 1 and www.canfasd.ca.

[17] JP, supra note 1, at para 63.

[18] Ibid, at para 65.

[19] Ibid, at para 66.

[20] Ibid, at para 66.

[21] Ibid, at para 67.

[22] 74 OR (3d) 561 (2005) (CA).

[23] JP, supra note 1, at para 73.

[24] Gladue, supra note 3, at paras 64 and 65.

Snaw-Naw-As First Nation v Canada (AG), 2020 BCSC 979

Claim dismissed. It is understandable the First Nation no longer wants their reserve lands bifurcated by a railway functioning under limited use, but it is not so abandoned that “inefficient” use triggers the right of reversion.

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The plaintiff, Snaw-Naw-As First Nation, wants a maintained railway that has bifurcated its reserve lands for decades, no longer alienated from them. The railway is located on Vancouver Island runs from Victoria to Courtenay and transects 1.3 km of the plaintiff’s reserve lands in Nanoose. The right of way is in favour of the defendant, Island Corridor Foundation [“ICF”], that currently owns and operates the railway. It is self-evident that the bifurcation of the plaintiff’s lands imposes limitations on each side and impedes access and development.

At issue is whether this 1.3 km strip of railway should remain alienated from the plaintiff as the infrastructure has deteriorated and rail service has been discontinued except for freight traffic on the Nanaimo spur line. There are circumstances where a court will find that lands held for railway purposes have ceased to be so held and as a result ownership of the right of way ends. However, no authorities have been located that holds a right of way be set aside where the owner holds the lands expressly for railway purposes, uses them for alleged railway purposes, even if in a limited way, and intends to continue to do so. Nor have authorities been found that a right of way may be set aside on the basis of something that may happen in the future.

A formal process must be undertaken to declare or designate the railway “inactive” and to apply for its closure, and there is no intention on the part of the defendant to do so. The entire railway is treated under all laws and regulations as an active railway, although such do not require that actual freight and passenger services be provided. The defendant and its stakeholders operate on the basis that the railway is open and remains active and they continue to conduct business, undertake activities, satisfy all safety regulations, and incur expenses on this basis. Therefore, the claim must be dismissed.

JB v Ontario (Child and Youth Services), 2020 ONCA 198

Appeals dismissed. Although the performed hair follicle testing for suspected drug and alcohol abuse was flawed, and were used in child protection proceedings, it is plain and obvious that the appellants’ claims cannot succeed against the various Children’s Aid Societies and Ontario for failure to disclose a reasonable cause of action.

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The Motherisk Drug Testing Laboratory [“MDTL”], housed in the Hospital for Sick Children [“SickKids”] in Toronto, performed hair follicle testing for suspected drug and alcohol abuse. These results were used in family and criminal cases as well as in child welfare investigations and proceedings. It became evident that some of the test results, used in child protection proceedings, were flawed. At issue in this appeal is the potential liability of various Children’s Aid Societies [collectively “CAS”], the Ontario government [“Ontario”] and certain named workers arising from the unreliable test results.

Family members of children who were the subject of protection proceedings, sued the CAS and Ontario for damages, as a result of the faulty test results, for negligence, negligent investigation and supervision, negligent and/or intentional infliction of mental distress, bad faith, breach of fiduciary duty of care, misfeasance in public office and breaches of s 7 of the Charter. Six of those claims are the subject of this appeal.

The motions judge determined that the family members’ claims disclosed no reasonable cause of action and were bound to fail, because the CAS owed a duty of care to the children, not to the parents or family members (Syl Apps Secure Treatment Centre v BD, 2007 SCC 38). While Ontario owes a duty to the public at large, there is no relationship of proximity that would ground a duty of care to the appellants in these cases.

The Court agrees with the decision of the motions judge that it is plain and obvious that the appellants’ claims against the CASs and against Ontario cannot succeed for failure to disclose a reasonable cause of action.

R v Sabattis, 2020 ONCJ 242

Application dismissed. The applicant, a young Indigenous first offender, has not established that the mandatory minimum sentence results in a grossly disproportionate sentence for either herself or for other persons in reasonably foreseeable cases.

Indigenous Law Centre – CaseWatch Blog

A young Indigenous first offender was found guilty of impaired driving and operating a motor vehicle while her blood alcohol concentration exceeded 80 mg/100 ml of blood, contrary to s 253(1)(a) and s 253(1)(b) of the Criminal Code.

In this matter, the applicant submits that a curative discharge is most appropriate, but this remedy is not available because the Criminal Law Amendment Act allows Ontario to decline to proclaim the Criminal Code provision for a curative discharge into force. As a mandatory minimum sentence for a first offence, the applicant must pay a $1000 fine, and receive a one-year driving prohibition. The applicant alleges that the Criminal Law Amendment Act, violates the applicant’s s 15 Charter rights by allowing the provinces to opt out of the curative discharge provisions. This disregards Gladue principles, causing “differential treatment” of Aboriginal offenders and other members of society in the sentencing process. As well, she submits that the mandatory minimum sentence subjects the applicant to cruel and unusual punishment contrary to s 12 of the Charter. In respect of both alleged breaches, the applicant submits that the provisions are not saved by s 1 of the Charter and therefore seeks the imposition of a curative discharge as a remedy.

The Court finds that the applicant has not established that the mandatory minimum sentence results in a grossly disproportionate sentence for either the offender or for other persons in reasonably foreseeable cases. Similarly, the applicant has not established that the non-proclamation of the curative discharge provisions results in a grossly disproportionate sentence contrary to s 12 of the Charter. Given the finding that there is no violation of s 12 or s 15 of the Charter, the Court is bound by the mandatory minimum sentence. Using the relevant sentencing principles including Gladue principles, and having regard to the circumstances of the offence and of the offender, it is the Court’s view an appropriate sentence is a $1200 fine, a 15-month driving prohibition, and probation for a period of two years with the requirement that the offender attend counselling as directed by her probation officer related to her consumption of alcohol and other counselling as directed.

The fine and prohibition imposed is greater than the statutory minimums to recognize the need for denunciation and deterrence, the aggravating factors of the case, and to give effect to s 255.1, which provides that evidence of a blood alcohol concentration in excess of 160 mg/100 ml of blood is a statutorily aggravating factor. This non-custodial sentence, which includes two years probation with a requirement for alcohol counselling, recognizes the importance of rehabilitation for this youthful first offender and takes into account the restorative Gladue principles. The Court is satisfied that alcohol counselling is a necessary rehabilitative component of the sentence. This sentence is still at the lowest end of the range of what is appropriate given the aggravating features of the offence, but also reflects the significant mitigating personal circumstances of the offender.

R v JP, 2020 SKCA 52

Leave to appeal granted and appeal allowed from sentence. Pursuant to s 687(1)(a) of the Criminal Code, the sentence of an Indigenous offender for two robberies is varied. It is ordered he serve concurrent sentences of five years in relation to each of these two crimes, with a global sentence of eight years less credit for time spent on remand.

Indigenous Law Centre – CaseWatch Blog

This appeal concerns the proper sentencing of an accused who suffers from Fetal Alcohol Spectrum Disorder [“FASD”] and whose personal circumstances called for application of the principles set out in R v Gladue,  [1999] 2 CNLR 252 [“Gladue”]. The offender, who is of Indigenous ancestry, was convicted of being a party to two armed robberies. He also pleaded guilty to several other offences. For all of these crimes, he was sentenced to 17 years’ imprisonment, which was reduced by the sentencing judge to a global sentence of ten years less credit for time spent on remand.

The offender had an extensive criminal record with over 70 convictions that pre-dated these matters. A Gladue report was prepared that recounted the history of his family and community. The extreme poverty, minimal educational opportunities, and overcrowded and deficient housing experienced by the offender’s parents cannot be captured in a few words, but the outcome was a life of family dysfunction, substance and alcohol abuse, and violence.

The offender’s grounds of appeal must be examined in light of the applicable standard of review. He took the position in this Court, that the judge committed several errors in principle and, in any event, that the global sentence is demonstrably unfit.

The factors indicated the offender has reduced moral blameworthiness. These factors were overwhelming and their connection to the offences cannot be credibly denied. This is not a case where the connection between the “systemic and background factors that have contributed significantly to [the offender’s] circumstances, and to his appearances before the criminal courts of this province” is elusive. It is impossible not to see a direct connection between these factors and the specific crimes for which the offender was being sentenced. Cause and effect are not required, but the facts of this case come as close as most any situation could (R v Ipeelee, [2012] 2 CNLR 218). The Court determined the judge erred in principle by failing to account for the systemic and background factors (including FASD) that was earlier identified as having contributed significantly to the offender’s circumstances and his commission of these offences.

This Court cannot interfere with a sentence simply because a judge has committed an error in principle. It must also conclude that the error had an impact on sentence (R v Lacasse, 2015 SCC 64). In this matter, the impact of the judge’s error is evident from his treatment of the precedent he relied upon to identify a fit sentence. This Court has no hesitation in concluding that the failure to account for the offender’s reduced moral culpability had a decisive impact on the sentence the judge imposed in this case.

The judge determined that a fit sentence for each robbery was seven years’ imprisonment, running consecutively. In connection with a housebreaking offence, it was determined that a fit sentence to be two years’ imprisonment, consecutive to the sentences for the two robberies. It was determined that a fit sentence for the remaining crimes was 12 months, concurrent on all those offences, but consecutive to the robbery and housebreaking offences. All of this would result in a combined sentence of 17 years, which the judge reduced to a global sentence of 10 years’ imprisonment. This was achieved by directing that the robbery sentences be served concurrently, not consecutively.

Although this Court is to sentence afresh, the only point of criticism that can be offered to the judge’s sentencing decision is the failure to account for the offender’s reduced moral culpability when it came time to fix a sentence. Considering the guidance provided by the case law, and given the offender’s reduced moral culpability through the appropriate assessment of his FASD and other Gladue considerations, a fit sentence in this case should remain within the range identified in previous case law, but at its low end. A sentence of five years’ imprisonment on each robbery conviction will fall at the low end of the range (R v Kirklon, 2015 SKCA 67), properly denounce the offender’s unlawful conduct, and not separate him from society for longer than necessary. Expert evidence suggests that there are ways the public could be protected by managing the offender in the community once he has served his sentence.

Fort McKay First Nation v Prosper Petroleum Ltd, 2020 ABCA 163

Appeal allowed. When administrative tribunals deal with “public interest” in respect to natural resource development, they should be looking at more than the duty to consult, as the honour of the Crown is a far broader doctrine. In this matter, the tribunal should have addressed an unfulfilled promise of a protected area that was being negotiated.

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This appeal arises out of negotiations that began in 2003 between the Government of Alberta and the Fort McKay First Nation [“FMFN”] to develop a Moose Lake Access Management Plan [“MLAMP”] to address the cumulative effects of oil sands development on the First Nation’s Treaty 8 rights. The MLAMP has not yet been finalized. The FMFN is an “[A]boriginal people of Canada” under s 35 of the Constitution Act, 1982 and a “band” within the meaning of the Indian Act, that has treaty rights to hunt, fish and trap within the Moose Lake Area, part of its traditional territory. The Moose Lake Area is of cultural importance to the FMFN.

The Alberta Energy Regulator [“AER”] approved an application by Prosper Petroleum Ltd [“Prosper”] in 2018 for the Rigel bitumen recovery project [“Project”], which would be located within 5 kilometers of the FMFN’s Moose Lake Reserves. The AER approval is subject to authorization by the Lieutenant Governor in Council [“Cabinet”], which has yet to be granted.

The FMFN was granted permission to appeal on the question of whether the AER erred by failing to consider the honour of the Crown and refusing to delay approval of the Project until the FMFN’s negotiations with Alberta on the MLAMP are completed. FMFN is concerned that the ability of its members to pursue their traditional way of life in the Moose Lake Area has been severely and adversely affected by the cumulative effect of oil sands development in the surrounding area. FMFN specifically sought a 10 km buffer zone from oil sands development around the Moose Lake Reserves. Alberta denied this request and in 2013 FMFN applied for a review. In 2014, Alberta’s then Premier, the late Jim Prentice, met with Chief Jim Boucher of FMFN to discuss the MLAMP. In 2015, Premier Prentice and Chief Boucher signed a Letter of Intent to confirm “our mutual commitment and interest in an expedited completion of the [MLAMP]”. Despite the 2015 Letter of Intent, the MLAMP has still not been finalized and is the subject of ongoing negotiations between Alberta and the FMFN.

The Project would be located within the 10-kilometer buffer zone surrounding the Moose Lake Reserves; that is, within the area covered by the MLAMP. After previously suspending the Project, in 2016 the AER resumed the approval process for the Project because “MLAMP is still not finalized, there is no indication that finalization of the MLAMP is imminent and there is no certainty when submission of the plan will occur”. The AER issued its decision in 2018 that found the Project to be in the public interest and approved the Project on conditions, subject to authorization by Cabinet. The panel declined to consider the MLAMP negotiations that contemplated the 10-kilometer buffer zone, the 2015 Letter of Intent, and whether it implicates the honour of the Crown. The AER concluded the status of the MLAMP negotiations was not a valid reason to deny Prosper’s application.

To review this decision, the Court used the standard of correctness. The AER is a public agency which exercises adjudicative functions pursuant to the Alberta Public Agencies Governance Act. As the regulator of energy development in Alberta, the AER is mandated to provide for the efficient, safe, orderly and environmentally responsible development of energy resources in the province. It has final decision-making power over many energy project applications, pending where Cabinet authorization is required.

The AER has broad powers of inquiry to consider the “public interest” in making its decisions. Tribunals have the explicit powers conferred upon them by their constituent statutes. However, where empowered to consider questions of law, tribunals also have the implied jurisdiction to consider issues of constitutional law as they arise, absent a clear demonstration the legislature intended to exclude such jurisdiction (Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, [2010] 4 CNLR 250 [“Rio Tinto”]. This is all the more so where the tribunal is required to consider the “public interest”. In such circumstances, the regulatory agency has a duty to apply the Constitution and ensure its decision complies with s 35 of the Constitution Act, 1982 (Clyde River (Hamlet) v Petroleum Geo-Services Inc, 2017 SCC 40 [“Clyde River”]). As the Supreme Court of Canada [“SCC”] has noted, “[a] project authorization that breaches the constitutionally protected rights of Indigenous peoples cannot serve the public interest” (Clyde River). The tribunal cannot ignore that aspect of its public interest mandate.

The AER therefore has a broad implied jurisdiction to consider issues of constitutional law, including the honour of the Crown, as part of its determination of whether an application is in the “public interest”. The question raised by this appeal is whether the AER should have considered the honour of the Crown in relation to the MLAMP negotiations as part of this assessment. A conclusion that legislation precludes considering certain matters does not relieve the decision-maker of its obligation if that legislative interpretation proves incorrect. Nor can a decision-maker decline to consider issues that fall within its legislative mandate because it feels the matter can be better addressed by another body.

The responsibility to ensure the honour of the Crown is upheld remains with the Crown (Chippewas of the Thames First Nation v Enbridge Pipelines Inc, 2017 SCC 41). However, the Crown can determine how, and by whom, it will address its obligations to First Nations, meaning that aspects of its obligations can be delegated to regulatory bodies. Alberta has delegated procedural aspects of the duty to consult and to consider appropriate accommodation arising out of that consultation to the AER. The Government of Alberta has retained the responsibility to assess the adequacy of Crown consultation on AER-regulated projects. Are the matters that FMFN sought to put before the AER in relation to the MLAMP negotiations limited to the “adequacy of Crown consultation”? The Court finds they are not.

The honour of the Crown can give rise to duties beyond the duty to consult. It will give rise to different duties in different circumstances (Haida Nation v British Columbia (Minister of Forests) [2005] 1 CNLR 72; Mikisew Cree First Nation v Canada (Governor General in Council), 2018 SCC 40). In the present case, the honour of the Crown is implicated through treaty implementation (Manitoba Métis Federation Inc v Canada (AG), 2013 SCC 14; Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69). The honour of the Crown infuses the performance of every treaty obligation, and stresses the ongoing relationship between the Crown and First Nations brought on by the need to balance the exercise of treaty rights with development under Treaty 8.

There was no basis for the AER to decline to consider the MLAMP process as part of its assessment of the public interest rather than deferring the issue to Cabinet. The public interest mandate can and should encompass considerations of the effect of a project on [A]boriginal peoples, which in this case will include the state of negotiations between the FMFN and the Crown. To preclude such considerations entirely takes an unreasonably narrow view of what comprises the public interest, particularly given the direction to all government actors to foster reconciliation. The AER is directed to reconsider whether approval of the Project is in the public interest after taking into consideration the honour of the Crown and the MLAMP process.

Ross River Dena Council v Yukon, 2020 YKCA 10

Appeal dismissed. The Ross River Dena Council does not yet have established title, thereby no right to exclusive use and occupation of the claimed lands. It did not identify any adverse effect on its claim other than impacts on wildlife. The fact that hunters might enter the land is not, without more, an adverse effect.

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Ross River Dena Council [“RRDC”] appeals from an order dismissing its claim for declaratory relief. The key point of contention is the assertion that the Yukon’s issuance of hunting licences and seals under the Wildlife Act, adversely affects RRDC’s claim of Aboriginal title.

RRDC is part of the Kaska Nation, who are one of the “[A]boriginal peoples of Canada” referred to in s 35(1) of the Constitution Act, 1982. The land subject to RRDC’s title claim is traditional Kaska territory situated in the Yukon [“Ross River Area”] and it is acknolwledged that RRDC has a strong prima facie case for its claim to Aboriginal title over the Ross River Area. The strength of the claim requires the Yukon to engage in deep consultation with RRDC whenever the Yukon contemplates conduct that might adversely affect the title claimed (Haida Nation v British Columbia (Minister of Forests), [2005] 1 CNLR 72). The parties have been in negotiations for several years. To date, RRDC’s claim has not been resolved by either a treaty or a declaration.

RRDC asked specifically for a declaration that the issuance of hunting licences and seals might adversely affect the claimed Aboriginal title of RRDC’s members in the Ross River Area and that the Yukon must consult with respect to alleged potential adverse impacts on the “incidents of Aboriginal title” (Tsilhqot’in Nation v British Columbia, [2014] 3 CNLR 362).

There is a distinction between Aboriginal title that is established and that which is asserted. Established Aboriginal title confers ownership rights similar to those associated with fee simple. These ownership rights include the right to decide how the land will be used; the right to enjoy and occupy the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage it (Tsilhqot’in Nation; Delgamuukw v British Columbia, [1998] 1 CNLR 14).

A government must demonstrate that non-consensual incursions are undertaken in accordance with the duty to consult; that they are justified on the basis of a compelling and substantial public interest; and that they are consistent with the Crown’s fiduciary duty to the Aboriginal title holders (Tsilhqot’in Nation). RRDC’s title is not yet established. It has only a claimed title, albeit a strong one. Aboriginal title that is claimed, but not established, does not confer ownership rights.

Where title is not established, the duty to consult arises when the Crown has real or constructive knowledge of the potential existence of an Aboriginal right or title and contemplates action which might adversely affect that right or title (Haida Nation). The purpose of the duty to consult is not to provide claimants immediately with what they could be entitled to upon proving or settling their claims. Rather, it is intended as a mechanism to preserve Aboriginal interests while land and resource claims are ongoing, or where the proposed action may interfere with a claimed right or title (Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, [2010] 4 CNLR 250 [“Rio Tinto”]).

The legal test for determining whether the duty to consult arises was broken down into three elements: 1) the Crown’s knowledge, actual or constructive, of a potential Aboriginal claim or right; 2) contemplated Crown conduct; and 3) the potential that the contemplated conduct may adversely affect an Aboriginal claim or right. The third element is at the heart of this appeal. RRDC argues that by issuing hunting licences and seals, the Yukon interferes with its claimed right to exclusive use and occupation of the land which has the potential to adversely affect the claimed title by allowing the land to be used and occupied for hunting by people other than RRDC members. RRDC’s position is not that hunters entering the land cause any cognizable harm to the land (aside from potential wildlife management harm), but that their presence on the land is itself a violation of the incidents of title which RRDC asserts, specifically the exclusive use and occupation of the land. This requires consultation.

The Court determined in this matter that issuing hunting licences does not, in and of itself, give the holder of the hunting licence the right to enter land that it could not otherwise enter. A right to hunt within a region does not confer a right to enter private property situated within that region. A hunting licence is not a defence to trespass (Wildlife Act). Also, RRDC’s argument is problematic in that it can assert a right, at the present time, to control who enters the claimed land and, therefore, Yukon must consult with RRDC whenever it contemplates action that would allow or encourage others to enter the land.

RRDC has not established Aboriginal title to the Ross River Area; the process is still at the claim stage. Without an established claim, RRDC does not have an exclusive right to control the use and occupation of the land at present, nor does it have a right to veto government action. What RRDC expressed is a concern that individuals to whom licences and seals have been issued will enter the Ross River Area. That is all. It did not identify how this would have an “appreciable adverse effect” on RRDC’s ability to control the use and occupation of the land in the future, or would otherwise adversely affect its rights or interests, other than potential impacts on wildlife.

No specific concerns have been articulated. There is only an argument that the issuance of hunting licences and seals interferes with RRDC’s right to exclusive use and occupancy of the Ross River Area at the present time. As noted, however, this is a right that RRDC does not currently have. Without explaining how the presence of hunters on its claimed territory could potentially adversely affect its claimed title, the duty to consult as a means to preserve interests in the interim is not engaged.

George Gordon First Nation v HMQ in Right of the Province of Saskatchewan and Canada (AG), 2020 SKQB 90

Application dismissed. The Government of Saskatchewan was not subject to a duty to consult with the First Nation regarding further mineral dispositions, as this was satisfied with the processes stipulated in the Treaty Land Entitlement agreement.

Indigenous Law Centre – CaseWatch Blog

George Gordon First Nation [“GGFN”] initiated this action by statement of claim, naming as defendants Her Majesty the Queen in Right of Saskatchewan [“Saskatchewan”] and Her Majesty the Queen in Right of Canada [“Canada”]. It claimed various relief, including an interim and permanent injunction against the defendants from granting further mineral dispositions in the Jansen Area or Evaporite Area, and ten billion dollars in damages. Where an Entitlement Band requests acquisition of Crown minerals, the Ministry places a temporary freeze on the minerals pending its review of the request. If approved, the freeze will continue to allow the Band time to acquire the surface rights. This freeze period can continue for up to three years.

This application had a long and complex history, but it had the benefit of case management by an experienced justice of this Court. The parties involved in this application are sophisticated and represented by experienced and able counsel. To determine if the summary judgement process was suitable to dispose of this matter, the Court answered three questions in the affirmative: 1) can the judge to make the necessary findings of fact; 2) can the judge to apply the law to the facts; and 3) if this is a proportionate, more expeditious and less expensive means to achieve a just result (Hryniak v Mauldin, 2014 SCC 7). This matter was determined suitable for summary judgment. A trial was not required to determine the issues.

The allegation is that both Saskatchewan and Canada had and have a duty to consult with GGFN before Saskatchewan makes any mineral disposition on lands which could be selected by GGFN to satisfy its treaty land entitlement. Canada and Saskatchewan argue there was, and is, no duty to consult. Saskatchewan also argues that the GGFN Treaty Land Entitlement agreement [“TLE”] was intended to conclude the dispute and barred any further claims, including this one.

Canada had a duty to consult with and, where proved, accommodate GGFN and other TLE Bands with respect to land claims under Treaty No. 4. This was done through treaty land entitlement negotiations and agreements, including the GGFN TLE. Saskatchewan had no corresponding duty to consult under Treaty No. 4. Saskatchewan’s obligations under the TLE were to Canada, not GGFN.

Canada and Saskatchewan satisfied any duty to consult through the negotiations leading to the TLE Framework Agreement and, in the case of GGFN, the negotiations resulting in the GGFN TLE. If Saskatchewan had a duty to consult with GGFN about Crown mineral dispositions, that duty was satisfied by its practice of providing information to TLE Bands. GGFN’s claim of a duty to consult that extended to both notice of any applications and a right to supersede those applications went beyond any required consultation and accommodation. This would amount to a veto which the courts have rejected.

Even without a duty to consult, the honour of the Crown would still apply to Saskatchewan’s implementation of the GGFN TLE. Saskatchewan’s practices were fair and balanced. The honour of the Crown, which did apply, was respected. GGFN received the payments to which it was entitled from Canada and was able to obtain within the prescribed period its shortfall acres and other land, with minerals.

The claim of GGFN against Saskatchewan is therefore dismissed. Its claim against Canada was based on a duty of Canada to compel or assist GGFN to enforce its claim against Saskatchewan. The foundation for this claim is lacking. Canada does not exercise supervisory jurisdiction over the provinces with respect to the exercise of their constitutional authority. Nor did the GGFN TLE provide a contractual basis for Canada to compel Saskatchewan to provide GGFN with the requested notice of mineral dispositions and right of first refusal. GGFN’s claim against Canada was premised on a breach of duty by Saskatchewan. Since the claim against Saskatchewan is dismissed, there is no basis for a claim against Canada.

 

 

R v Irngaut, 2020 NUCA 4

Application to strike appeal granted. It was determined that the Government of Nunavut did not have standing to launch an appeal for the summary conviction of a respondent who shot a caribou during a harvesting ban.

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Indigenous CaseWatch Blog

The underlying issue in this summary conviction appeal is whether the respondent was entitled to a stay of a charge of unlawfully harvesting a caribou as a result of “officially induced error”. It was determined that the Government of Nunavut did not have standing to launch this appeal as a question of statutory interpretation. Appeals are created by statute and there is no right to appeal unless provided by statute. Although the determination of lack of standing sufficed to strike the appeal, the Court found it necessary to further discuss the substantive issue of what warrants an “officially induced error”, as it is not a defence.

The respondent is a resident of Igloolik, an avid hunter, and a member of the Canadian Rangers. During patrol with other Canadian Rangers, he stopped to camp for the night where Sgt. George Qattalik telephoned his father, Daniel Qattalik, who was an elder and a member of the local Hunters and Trappers Organization. Daniel Qattalik told his son that there was no ban on harvesting caribou in effect who then relayed this to the respondent. The respondent knew that there was a caribou hunting ban in place when he left Igloolik, and was surprised when he was told by the sergeant that his father said that there was no ban in place.

The next day the patrol spotted a herd of caribou. The respondent took at face value the information passed on to him, and shot one of the caribou. The trial judge found that the respondent had acted honestly and reasonably on the erroneous information received, entitling the respondent to raise “officially induced erroras a defence. The trial judge accordingly found that the offence had been proven, but entered a stay (R v Irngaut, 2019 NUCJ 4).

The finding of fact discloses no reviewable error, but the excuse of officially induced error fails on the reasonableness of the reliance on that advice and the official status of the source of the advice. Daniel Qattalik was an elder, which would give his advice social credibility, but that is not the equivalent of “official” status making his advice binding on the government. The Moratorium against caribou hunting was issued by the Minister of Wildlife under the Wildlife Act. Daniel Qattalik had no position with, or authority from, the Department or the Nunavut Wildlife Management Board. There is no evidence that Daniel Qattalik was even asked to provide advice in any official capacity.

In order to make out the excuse of officially induced error, the erroneous advice must usually come from the government agency directly involved in the relevant area of regulation. Further, in order to be “official”, the representation must generally have a level of formality to it. It will rarely be reasonable to rely on casual conversations with officials, particularly those made in an informal social setting (R v Jorgensen, [1995] 4 SCR 55; R v Ralph (2002), 220 Nfld & PEIR 351).

Kawaskimhon Moot (Opinion Piece)

Kawaskimhon Moot (Opinion Piece)

authored by our Pro Bono student volunteer Taylor Roufosse

Indigenous Law Centre – CaseWatch Blog

 

The Kawaskimhon Aboriginal Rights Moot is a non-competitive, round-table dispute resolution style of discussion designed to incorporate Indigenous values. In teams, we were to prepare a written argument for our client’s position which was presented to the circle, the ultimate goal being consensus on the issues put forward. This year, there was representation from all law schools in Canada – English common law and French civil law included.

The topic was chosen by Robson Hall, Faculty of Law. It surrounded implementing a Crown policy for the application of Gladue in Manitoba. The number of incarcerated Indigenous people have only gone up since the decision in R v Gladue from twenty years ago, which paints a bleak picture for Canada’s criminal justice system. The principles have been reiterated time and time again and yet misapplications and discord are still prevalent. At first, it felt daunting to tackle this question which was broad in scope and had so many complicated nuances attached.

Having access to resources through the Indigenous Law Centre allowed the University of Saskatchewan team to possess a deeper understanding of what Gladue has to offer the criminal justice system. Instead of focusing only on how Gladue can apply to sentencing, we were quick to realize it was more far-reaching than that. Indigenous people face an immense number of social issues due to historical and contemporary realities. Different concerns afflict certain communities. At our specific moot table, most if not all participants shared this opinion. It was uplifting to see so many law students understand how deep-rooted the topic of overincarceration of Indigenous peoples is and have such an acute sense of what it will take to eliminate it.

In law school there is a large focus placed on the competitive, adversarial moots. They are valuable and that should not be diminished, but the Kawaskimhon Moot has something unique and beautiful to offer students. The resident Elder Norman Meade, presented the Seven Grandfather Teachings, which was sensed throughout the experience: Humility in the way the students presented themselves; Bravery in the words spoken; Honesty about the systems shortcomings; Wisdom in the ideas put forward; Truth in the unequitable reality of Indigenous people; Respect for all involved; and Love in providing recognition for our accomplishments.

The Kawaskimhon Moot brings together Indigenous and non-Indigenous students to examine intricate problems surrounding the First Peoples of Canada, therefore advocating for reconciliation. Our adversarial legal system has come alive to the fact that dispute-resolution, consensus, harmony and balance have a meaningful and effective place. It is a hope that a growing number of students will recognize the significance of this moot and the benefit of the skills learned as we move forward into our careers around Canada. We find ourselves in an extremely uncertain and ever-changing time period. To be able to reflect on experiences such as this, while considering the current state of affairs, allows one to appreciate our humanity and willingness to come together.