R v Matchee, 2019 ABCA 251

There were errors of law present in the sentencing judge’s assessment of the offender’s Gladue factors and moral blameworthiness. The sentence has been reassessed.

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Mr. Matchee appealed his seven-year custodial sentence on the basis that the sentencing judge erred by not giving effect to Gladue factors. The sentencing judge’s desire to avoid the appearance of a “race-based discount” was demonstrated by an error of law that Gladue factors do not apply to serious offences – Gladue factors apply to all offences. There was a failure to recognize a connection between the offender’s mother and grandmother’s attendance at residential schools and his current circumstances. In turn, Mr. Matchee’s mother’s substance abuse led to his eventual placement in foster care and abuses suffered there during the first 10 years of his life. The sentencing judge made an error to deny the link. Lastly, the view of any community on what is an appropriate sentence is not an animating principle of sentencing law in Canada – to the extent these comments impacted the sentence, this was an error. Due to these reasons, sentencing must be assessed again.

The harm to society in the undermining of people’s security and safety in their homes, as well as the harm to the victim, is significant in assessing the gravity of the offence. Mr. Matchee had many opportunities to leave but chose not to. He was on probation at the time of the offense and has a long-related record. The pre-sentencing report indicated a failure to take responsibility for his actions or has not taken any positive steps to try to address the underlying issues that have been identified. The factors identified above, in particular the lack of any stable home until 10 years of age, sexual and physical abuse, no meaningful connection with his mother or father, an interrupted connection with his Aboriginal culture, lack of education and employment, diminish his blameworthiness for the current offences.

Taking into account the errors in the application of Gladue factors and the inadequate assessment of Mr. Matchee’s moral blameworthiness, a fit sentence for this offender and these offences is a period of six years incarceration. The other sentences and ancillary orders are unchanged. The net sentence, after the deduction of three years 7.5 months credit for pre-sentence custody, is two years 4.5 months.

 

R v Georgekish, 2019 QCCQ 2341

After weighing the sentencing principles with information provided by a Pre-Sentence Report and a Gladue Report, it was determined that deterrence and denunciation should heavily shape a fit sentence due to the gravity of the offence.

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The offender was intercepted by police on the highway in possession of a large quantity of cocaine she was sent to purchase with money from her sister, before she got back to her home community where she intended to sell it. The offender plead guilty and at the time of the offence, she only had a few prior convictions. She is a member of the Cree Nation and a mother of six children. The Court ordered a Gladue Report to be written in which it was determined that both her parents attended residential schools, and was the victim of years of neglect, violence and abuse. The offender suffered with addictions throughout her life starting at a young age, and she was placed in a youth protection program for multiple years away from her family. She had lost a child the year prior to the offence and had not received any grievance support or services.

The Court considered multiple aggravating factors such as the quantity of drugs the accused had in possession, the nature of the drugs, the risk of reoffending, past convictions, the lack of empathy and to take responsibility, but also the vulnerability of the community where the drugs were to be sold. The Court also considered the mitigating circumstances such as the guilty plea, the offender’s collaboration with the police, the crime being one transaction, and the historical and systemic factors as an Aboriginal offender. With these considerations in mind, the Court sentenced the offender to a 20-month detention sentence and a 3-year supervised probation.

Peepeetch v R, 2019 SKQB 132

Application granted for a publicly-funded Gladue report. A Gladue report, however, is not required on every occasion on which an Indigenous offender is being sentenced and a full Gladue report is not the only possible or appropriate source of such information.

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The applicant was convicted after a trial on charges of impaired driving and refusing to provide a breath sample. During the trial, he also pled guilty to a charge of possession of brass knuckles, a prohibited weapon. Following the trial, sentencing was adjourned so that a Pre-Sentence Report [PSR] could be prepared. Since the applicant is of Aboriginal heritage, the court directed that the report should contain information, such as Gladue factors (R v Gladue, [1999] 2 CNLR 252; R v Ipeelee, [2012] 2 CNLR 218), particular to Mr. Peepeetch’s circumstances as the Gladue analysis is mandated by the Criminal Code. The applicant’s counsel submitted an application for a publicly-funded Gladue report as the applicant did not have the resources to cover the costs himself.

It was determined that when evaluating whether a publicly-funded Gladue report should be ordered, the following parameters must be met: i) the assistance of the Gladue report must be essential to the judge discharging their judicial function in the case at hand; and (ii) the authority to order for the preparation of Gladue reports should be used sparingly and with caution, in response to specific and exceptional circumstances (Ontario v Criminal Lawyers’ Association of Ontario, 2013 SCC 43; R v Sand, 2019 SKQB 18). Such circumstances exist where a PSR prepared by a probation officer is not capable of providing the information necessary to conduct the proper analysis under ss. 718.2(e), and there is no other effective method of obtaining the necessary information and bringing it before the court in a timely fashion.

When deciding if a publicly-funded Gladue report was appropriate in this case, the court considered a number of factors including the nature of the analysis called for by ss 718.2(e), the sufficiency of the information provided in the current PSR, and if that report is lacking the availability and likely effectiveness of other measures that may be taken to address the deficiencies. Further, the court decided that a Gladue report is not required on every occasion on which an Indigenous offender is being sentenced and a full Gladue report is not the only possible, nor the only appropriate source of such information. Whether or not such a report is required is based on the context of the situation. It is the duty of the sentencing judge to ensure that the information they receive is relevant and necessary for such analysis. Overall, it was determined that the information contained in the PSR report was not sufficient for the court to carry out its judicial function in sentencing the applicant and thus, a publicly-funded Gladue report was ordered.

R v McGinn, 2019 ONSC 4499

Joint submission for sentencing granted. After considering the Gladue report and at the offender’s request, part of the sentence will be spent in the penitentiary to take advantage of programming specific to Aboriginal offenders.

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After a search of his vehicle, the offender was arrested for drugs and weapons offences. The nature of the drugs involved in this case, are highly addictive substances and this was an aggravating factor. The offender also had a lengthy criminal record, which is reflective of an individual with a substance abuse problem.

The mitigating factors included a guilty plea, as well he expressed insight into his problems. Drug and alcohol abuse, as well as suicide and mistreatment within his family were present in his experiences as a child. His childhood and adolescence were traumatic for reasons that were not of his making. The drug abuse that he fell into has contributed to his involvement within the criminal justice system. The offender recognized that drug addiction had led him down a bad path. His paternal grandparents remain supportive of him and are willing to have him live with them on his release from jail.

The offender’s Aboriginal background no doubt had an impact on him but he appears to have benefitted from involvement in programs for Aboriginal offenders while in custody. The joint submission was accepted, modified slightly to accord with the offender’s request to be housed in the penitentiary to take advantage of programming. The offender was sentenced to three years and nine months in jail, less days spent in presentence custody.

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.

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.

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.

R v Luke, 2019 ONCJ 514

Conditional discharge granted. In this matter involving an Indigenous first time female offender, the mandatory minimum sentence in s 255(1) is inconsistent with s 12 of the Charter.

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The accused was arrested for impaired driving after she took her mother’s car without consent. She assumed control of the vehicle in an extremely intoxicated state, out of reaction to her boyfriend’s infidelity with her own cousin. A monetary penalty in response to the creation of a serious risk, such as with impaired driving, will not be a grossly disproportionate punishment. The central issue is whether the criminal record which necessarily flows from the imposition of that mandatory minimum fine results in a s 12 Charter violation for an offender, such as with accused in this matter. The result of the mandatory minimum sentence demanded by s 255(1) of the Criminal Code [“CC”], the discretion afforded by s 730 of the CC was unavailable. As well, when Parliament enacted s 255(5), Ontario never opted into the application of a discharge provision.

A discharge should only be granted if the court “considers it to be in the best interests of the accused and not contrary to the public interest”. This must be answered having regard to the accused’s moral blameworthiness and to the gravity of the offence. As well, all sentencing determinations “must respect the fundamental principle of proportionality”. Taking into account s 718.2(e), a different method of analysis must also be used when determining a fit sentence for Aboriginal offenders.

Denunciation is a key consideration in drinking and driving offences, especially where the offence was motivated by extreme emotional turmoil such as in this matter. Deterrence of like-minded potential offenders seems futile. It would be more effective if the court imposed a driving prohibition in addition to the two years’ probation. The accused accepted responsibility for the offence by pleading guilty, within weeks began addressing the alcohol addiction, met with a counsellor and a registered psychotherapist, and has the intent of completing high school and becoming a youth worker. In holding it would not be contrary to the public interest to grant this specific accused a curative treatment discharge, it would also be a just sanction given the accused is an Aboriginal offender.

The mandatory minimum sentence in s 255(1) prevented giving effect to several important factors such as: 1) the accused is a first offender with strong rehabilitative potential; 2) the offence was largely motivated by alcohol addiction and there is good reason to believe continued treatment will effectively deal with that issue; and 3) the accused’s offence was connected to their Aboriginal background which also provides for rehabilitative and restorative sentencing options. There is recognition of the stigmatization, stereotyping, and further challenge to the Aboriginal accused in finding future educational and employment opportunities. S 255(1) was stated to result in at least some grossly disproportionate sentences and could not be saved under s1. A Provincial Court’s power to determine constitutional validity of a CC provision is limited to the case that is heard, therefore no formal declaration was made for s 255(1). In this case, the accused was granted a curative treatment discharge for the reasons above.

Bird v Blott, 2019 ABQB 764

Application for certification granted with costs. A class action will go forward to sue an Albertan lawyer who was disbarred for his misconduct in managing IRS files.

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This is an application by the Plaintiffs for certification of a class action pursuant to s 5 of the Class Proceedings Act [“CPA”]. It concerns the alleged mishandling of approximately 5600 residential school claims by former Calgary lawyer, David Blott, on behalf of Aboriginal clients who were signed up to retain Blott by the form filling efforts of Honour Walk Ltd. Mr. Blott was reported to have received 21 million dollars for his firm’s services. The absolute failure of Blott to provide individualized legal services to the Plaintiffs in the Residential School Class Action is well documented in judicial decisions (Fontaine v Canada (AG), 2012 BCSC 839 and 2012 BCSC 1671). He had set up his practice in such a way as to maximize profit and minimize the effort required.

In order for the Court to certify these proceedings, it must be satisfied that the conditions set out in the CPA have been met, but be construed generously. An overly restrictive approach must be avoided in order to realize the benefits, such as judicial economy, access to justice and behavior modification and so on, by those who cause harm at the certification stage (Hollick v Metropolitan Toronto (Municipality), 2001 SCC 68) [“Hollick”]; Cloud v Canada (AG), (2004) 73 OR (3d) 401 (ONCA)).

The statement of claim disclosed a cause of action. The next condition for certification required an identifiable class that should be defined independently of the merits of the action (Western Canadian Shopping Centres Inc v Dutton, 2001 SCC 46). This definition included those who retained the Blott Defendants arising out of the residential school experience and should not be unnecessarily broad (Hollick). The way in which the Blott Defendants arranged Mr. Blott’s practice essentially ruled out the possibility of a solicitor and client relationship, which Mr. Blott’s clients were entitled to expect. The Court is satisfied that there is an identifiable class.

There is a common issue among this identifiable class of an experience of being largely ignored and exploited. It turned what was supposed to provide reconciliation and closure into another traumatic experience. It would appear that most of Mr. Blott’s clients will have had very similar complaints and circumstances. The fact that some of them may have been affected differently does not mean there are no common issues. The Court is satisfied that the condition of a common issue for certification has been met.

Thousands of innocent people retained Blott to seek justice for them, as part of a class of residential school attendees. This class of people are vulnerable and for the most part, impecunious. As with the resolving of the residential school claims through a class proceeding, it is hard to see how justice can ever be obtained for the Blott clients other than through another class proceeding. It is important to proceed with their claims as a class because, like the residential school claims, it will be useful to establish standards and a basis for comparison when one does analyze the quantum of each claim.

The law firm acting on behalf of the Plaintiff class is doing this on a pro-bono basis, and there can be no doubt that the efficiency of dealing with all the claims in this way is far superior to numerous individual claims. The Court is satisfied that a class proceeding is the preferable procedure for this action.