R c Awashish, 2020 QCCQ 3614

The Court rejected a joint submission on sentence of 34.7 months of imprisonment for aggravated assault, theft, and various administration of justice offences. The sentence was found to be excessive and likely to bring the administration of justice into disrepute as it failed to comply with the Gladue principles and perpetuated Indigenous over-incarceration, both individually and as a precedent. 

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An Indigenous accused, a member of the Cree First Nation and the Mistissini community, pleaded guilty to charges of aggravated assault against his sister, theft, a breach of probation related to failing to perform community work, and two breaches of recognizance, that is, consuming alcohol and failing to observe a curfew.

The Court ordered a presentence report and a Gladue report, but it was not prepared due circumstances surrounding the pandemic. The presentence report in this case states that the accused has very bad memories of his childhood. His parents consumed alcohol repeatedly and there was violence almost every day, which was experienced by the accused. As he grew older, he used drugs and alcohol heavily. He attempted suicide and has been heavily medicated to treat his depressive episodes and panic attacks.

The accused remains fragile psychologically. If he returns to the community without first working on his vulnerabilities, the risk of relapse is significant. Several traumas related to his childhood remain unresolved to this day. However, he is able to work well when he is in a safe environment. The accused acknowledges that he needs help and that he is not able to resolve his problems on his own. He is willing to go to therapy at the Waseskun Center, a healing center.

During submissions on sentencing, counsels proposed a sentence totaling 34.7 months of imprisonment, less presentence custody, leaving a residual sentence of two years, as well as 24 months’ supervised probation. Counsels took steps to verify whether the accused could take part in therapy at the Waseskun Center. The Court, however, informed the parties that it questioned compliance with the public interest test established in R v Anthony-Cook, [2016] 2 SCR 204 [“Anthony-Cook”] and asked them to make additional submissions on the reasons and circumstances underlying the joint submission.

A trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest (Anthony-Cook). This Court is of the view that the rejection of the joint submission in this case meets this high threshold. This joint submission for an Aboriginal offender viewed by reasonable and informed persons would be seen as representing a breakdown in the proper functioning of the justice system (R v LaForge, 2020 BCSC 1269).

The sentence proposed in this case is not only excessive, but also likely to bring the administration of justice into disrepute and contrary to the public interest because it does not comply with the obligations set out in s. 718.2(e) of the Criminal Code and Gladue factors (R v Gladue, [1999] 1 SCR 688; R v Ipeelee, 2012 SCC 13; R c Diabo, 2018 QCCA 1631; and Denis-Damée c R, 2018 QCCA 1251). Specifically, it does not take into account the accused’s actual moral blameworthiness and fails to consider the other reasonable sanctions available. Because both counsel are experienced and that ratifying their submission would carry weight, it would set a precedent from which the Court finds it important to depart.

Recently, the Court of Appeal for Ontario emphasized the importance of conditional sentences as other available sanctions under s. 718.2(e) with respect to Aboriginal offenders (R v Sharma, 2020 ONCA 478).  The Court determined a more appropriate sentence, and along with a conditional sentence order and probation order, there is included the condition that the accused complete six months of therapy at the Waseskun Center to heal his inner wounds, his violence issues, and his alcohol and drug abuse problems.

R v Penunsi, 2020 NLSC 101

Appeal dismissed. Newfoundland’s failure to enact the option of curative discharges does not result in a breach of the Constitution.

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The Appellant, an Innu woman who resides in the community of Sheshatsiu, Newfoundland and Labrador, was convicted of driving while her blood alcohol was in excess of the legal limit. The conviction was her third for such an offence. Notwithstanding that she faced mandatory imprisonment, she advised the sentencing court that she wished to seek a curative discharge. The option was not available in Newfoundland and Labrador.

The Appellant challenged the constitutionality of legislation affording the Provinces the discretion whether to enact the curative discharge provision in the Criminal Code. She asserted that the failure to be able to take advantage of a curative discharge disadvantaged her as an Aboriginal offender. The sentencing judge dismissed her application and the Appellant was sentenced to the mandatory minimum of 120 days imprisonment.

The Appellant has now appealed arguing that the sentencing judge erred in dismissing the application. Her application seeks to have the Court find that the legislation that affords the provinces the discretion whether to enact the curative provision, s 209(2)1 of the Criminal Law Amendment Act [“CLA”] violates her rights to equal treatment under s 15 of the Canadian Charter of Rights and Freedoms [“Charter”], in that it permits the Province to decline enacting the curative sentencing section. As an Aboriginal offender, she submits she is entitled to a restorative approach to sentencing, relying on s. 718.2(e) of the Criminal Code and the interpretation that section has received (R v Gladue, [1999] 2 CNLR 252; R v Ipeelee, [2012] 2 CNLR 218).

At the hearing of the appeal in this Court, the Appellant was afforded the opportunity to present her argument not solely as to how the sentencing judge erred in the manner in which the application was heard, but also as to why section 209(2) was unconstitutional.

The Applicant relied on the reasoning in R v Daybutch, 2015 ONCJ 302 for support that her rights under s 15 were violated. The Court, however, does not find the reasoning in R v Daybutch persuasive as it fails to consider the legitimate differences in treatment of persons under the criminal law as part of the administration of criminal law in a federal system. In contrast, a recent and thorough examination of the same issue was conducted in R v Sabbatis, 2020 ONCJ 242. Like the Applicant in this matter, and the accused in R v Daybutch, the accused in R v Sabbatis is Aboriginal. In assessing whether the accused’s rights under s 15 were violated, the court declined to follow the reasoning in R v Daybutch, but instead came to the opposite conclusion. There is no basis to find that the discretion of the Province, as permitted by s 209(2) of the CLA, namely whether to enact the curative provision under the Criminal Code, violates the Appellant’s right to not be discriminated against under s 15, on the basis of her being an Aboriginal person.

The Court determined there was no error committed by the sentencing judge reasoning in dismissing the application and holding that s 209(2) of the CLA does not discriminate against the Applicant under s 15 of theCharter. This appeal from sentence is dismissed. The stay of the Appellant’s sentence is set aside, and the Appellant is to surrender herself into custody at the police detachment nearest to her current place of residence.

Alberta (CYFEA, Director) v NL, 2020 ABPC 118

This is a decision with respect to ordering costs against the Director of child and family services in Alberta, which is relatively unusual and difficult to obtain. While it is not per se an “Aboriginal law” case, the Court considered the overrepresentation of Indigenous children in protection as a factor in favour of issuing an order for costs under s. 24(1) of the Charter

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A Permanent Guardianship Order was determined as not warranted for a child apprehended by the Director of child and family services in Alberta. The Court orders the child to be returned to the mother [“NL”] over a period of three months pursuant to a Supervision Order. This was necessary because the child had been in the custody of the Director for a period of almost 2 years, and not because of any concern about the mother’s ability to care for the child. Counsel for the mother asks the Court for costs against the Director.

As background, concerns were enough for the Director to properly apply for an apprehension order in 2017 due to numerous medical difficulties that caused concern for health and medical professionals. As well, NL at the time did not seem to be taking the appropriate measures that were suggested. Although there had been previous concerns with respect to NL’s care of her other children in the past, none of the children had been apprehended and issues with respect to drinking, partnership issues and so on, always seem to be resolved and did not appear to be an insurmountable situation. Another issue regarding NL’s care for the child was that medical appointments were located in Red Deer, approximately one hour away from her residence by car. NL does not have a car or driver’s license.

There does not appear to have been any investigation into whether NL was suffering from postpartum depression or at least the anxiety brought on by having the child’s medical problems added on to the fact that she was caring for another child, age three, who had her own medical difficulties. It appears that the medical and psychological experts assumed that what they termed as NL’s passivity or lack of affect, was a personality defect rather than a situational reaction to the stressful situation she found herself in.

The foster mother gave evidence to the child’s present circumstances. She has been the foster parent for the child since he was apprehended at approximately four months of age. The child is a typical energetic, curious, active two-year-old and does not appear to have any difficulty eating, sleeping or anything else out of the ordinary. She is regularly in contact with NL and they share information on the child’s progress and any changes that are necessary with respect to his sleeping eating or activity patterns. This evidence exposes the Director’s evidence as being out of date, yet still having been used to pursue a permanent guardianship order. There was also no evidence before the Court of the child having FASD, nor did the Director provide any evidence that this concern was pursued at all since apprehension.

Effectively nothing was done with respect to re-uniting this family during the whole time the chlid was in care. This is in direct conflict with the Director’s mandated obligations under the CYFEA. Medical information should have been updated to show the child was still in need or the child should have been returned to the mother.

The difficulty in dealing with the question of costs in child protection matters is that there are a number of cases both in Provincial Court and The Court of Queen’s Bench which take differing views with respect to the Provincial Court’s jurisdiction to award costs against the Director in a child protection matter. One may assume that costs is not an issue for child protection litigants because through Legal Aid they get “free” lawyers. This is not actually the case in Alberta as new clients are required to sign documentation acknowledging that they will repay any amounts billed by counsel, prior to counsel taking on their matter. This Court can see no reason why child protection litigants, a significantly large proportion of whom are Indigenous women and men, should be denied court costs in instances of the Director’s failure to carry out its mandate under the CYFEA.

Having found that there is conflicting case law; and having found that the CYFEA remains silent with respect to this issue and thereby creating an apparent conflict; the Court finds that the Respondent’s rights ensured by the Charter pursuant to section 7 and 15 have been infringed or denied. This in turn leads to the Court to considering an appropriate remedy. Section 24 of the Charter states “(1) Anyone whose rights or freedom’s, as guaranteed by this Charter, have been infringed or denied, may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances”. The Court finds that the appropriate remedy for the respondent in this case is an award of damages against the Director in an amount equal to the legal fees the Respondent is required to repay to Legal Aid Alberta.

RF v Kina Gbezhgomi Child and Family Services, 2020 ONCJ 366

Counsel for a foster parent in a child protection matter was removed from the record based on his prior representation of the child protection agency respondent. The Court took into account the overall negative relationship between Indigenous peoples and the justice system in relation to the need to respect an Indigenous person’s choice of counsel, but held that intervention is necessary in clear cases of conflict in order to mitigate this crisis of confidence. 

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An Anishinaabe child [“NLJ”], a registered band member of Wiikwemkoong Unceded Territory [“Wiikwemkoong”], was removed at birth from the care of her parents by the Children’s Aid Society of Oxford County [“CAS”] and a protection application commenced. The child has significant physical needs that require specialized care both at home and at school. NLJ was placed with the applicant [“RF”] on this protection application proceeding, and who was, at that time, a recognized foster home and the placement was monitored by the CAS. The file was ultimately transferred to Kina Gbezhgomi Child and Family Services [“KGCFS”] and the applicant continued to provide a foster placement for NLJ.

NLJ was made a crown ward under the Child and Family Services Act and remained in RF’s care. Wiikwemkoong passed a Band Council Resolution which provided that NLJ remain in the home of RF pursuant to a Customary Care Agreement. Wiikwemkoong and KGCFS have a “Joint Protocol” [“Protocol”] with respect to the provision of child protection services, which includes Customary Care. The Protocol outlines the relationship between Wiikwemkoong and KGCFS and their inherent right to be involved in decision making on child protection issues.

Mr. Parisé was the primary lawyer retained by the respondent society, KGCFS, for child protection matters when the Customary Care Agreement was finalized. Because of the Protocol, KGCFS is necessarily a party to that agreement. In 2016, the Crown Wardship Order was terminated following a status review application commenced by KGCFS. The existence of the Customary Care Agreement was the basis for the application. Of note, Mr. Parisé was counsel for KGCFS at the time and counsel of record in that proceeding.

The child remained in the home of RF under this Agreement until 2019 when NLJ was removed by KGCFS and placed in another customary care home. The Customary Care Agreement between KF, Wiikwemkoong, KGCFS, and the biological parents of NLJ was terminated sometime thereafter. It was at this time that Mr. Parisé started acting as counsel of record for RF. Mr. Parisé represented RF who filed a status review which was ultimately dismissed without prejudice to the applicant bringing an application under s 81(4) of the Child, Youth and Family Services Act [“CYFSA”]. RF then filed a protection application. KGCFS brought a motion to remove Mr. Parisé as counsel of record a month later, which was the first time the issue of potential conflict was raised with the Court.

On March 16, 2020, the Office of the Chief Justice released a Notice to the Public ordering the suspension of normal court operations in light of the COVID-19 pandemic. As a result, RF’s application was adjourned, and with it, KGCFS’s motion. Subsequently, the Customary Care placement was revoked when the respondent mother withdrew her consent but did not seek custody at that time. NLJ no longer had a customary care placement and KGCFS commenced their own protection application without naming RF as a party. After dealing with the initial removal to a place of safety, the court remanded both matters to the same date to be spoken to in order to deal with jurisdictional issues arising out of the fact that there are now two separate child protection applications dealing with the same child, and which do not have all the same parties. The parties on both applications agreed that this motion would need to be heard first before other substantive issues could be addressed.

The jurisdiction to remove counsel is found in the inherent right of the court to determine “to whom it will give an audience” and that the threshold for court intervention should be high (Windsor-Essex Children’s Aid Society v BD, 2013 ONCJ 43). The test that the courts have developed for determining if counsel should be removed is whether the public, represented by the reasonably informed person, would be satisfied that no use of confidential information would occur (MacDonald Estate v Martin, [1990] 3 SCR 1235 [“MacDonald”]).

Counsel of choice is a foundational principle in the Canadian justice system. It is well established that a litigant should not be deprived of their counsel of choice without good cause. However, this principle is not absolute. The issue in this motion is whether a lawyer who acted on behalf of a society on a child protection file can now represent one of the other parties in a subsequent protection application. The Court determines in this case, that the conflict is one which should disqualify the lawyer from continuing to act on the matter and the lawyer be removed from the record. The courts owe a duty to the Indigenous people they serve to intervene in the clear cases of conflict, in order to mitigate this crisis of confidence.

R v Ookowt, 2020 NUCA 5

Appeal allowed. The declaration of unconstitutionality of a mandatory minimum sentence imposed by the sentencing judge is set aside, and a four-year penitentiary term is substituted. Significant time has elapsed since the Indigenous accused was sentenced – and who now has finished that sentence, therefore the sentence of imprisonment is stayed.

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A 19 year old Inuit man, in retaliation for being bullied, fired a bullet into a house, which shattered a window and missed striking a man by inches. The accused entered a guilty plea to intentionally discharging a firearm into a place knowing that or being reckless as to whether another person was present, contrary to s 244.2(1)(a) of the Criminal Code. The mandatory minimum sentence for this offence is four years.

At the sentencing hearing, a Notice of Constitutional Challenge was filed by the Defence arguing that the mandatory minimum sentence was grossly disproportionate to a fit sentence for this offence and this offender, contrary to s 12 of the Charter. The sentencing judge determined that a fit sentence for the accused was two years less one day, plus one year of probation, and the imposition of the mandatory minimum sentence in this case would result in a sentence that is double the appropriate sentence (R v Ookowt, 2017 NUCJ 22). The Crown appeals to this Court, contending the sentencing judge failed to properly assess the gravity of this offence and that the accused’s conduct warranted the four year mandatory minimum sentence.

It is common for those who live in Nunavut’s communities to own rifles. They are used for subsistence hunting, supporting a traditional way of life. Sadly, this also means they are often readily accessible for unlawful and dangerous purposes such as intimidation, revenge, domestic violence, and retaliation.

This Court concludes that the sentencing judge committed errors in principle by imposing a disproportionate and demonstrably unfit sentence. Further, it is concluded that the four year mandatory minimum sentence under s 244.2(3)(b) is not a grossly disproportionate sentence for this offence and this offender. The Court sets aside the sentencing judge’s declaration that the imposition of the four year mandatory minimum sentence would breach the accused’s s 12 Charter rights.

In the Court’s view, the sentencing judge underemphasized the accused’s high moral blameworthiness for this offence, and overemphasized intoxication, bullying and Gladue factors. As a result, the sentencing court failed to give sufficient weight to denunciation and deterrence in reaching a sentence that was ultimately disproportionate and unfit in all of the circumstances. The sentencing judge did not provide any persuasive reasons for imposing a sentence that did not address the well-established seriousness of this firearm offence, and failure to do so was an error (R v Mala, 2018 NUCA 2). In sum, an offender who commits the offence of intentionally discharging a firearm into a place, knowing or being reckless as to whether anyone is in that place, is guilty of significant morally blameworthy conduct.

The accused’s admitted act of “extreme premeditated violence is completely disproportionate to any reasonable and measured response to the bullying he suffered”. It was sheer luck that his bullet did not hit and kill either of the two men in the house, only one being the target of his “warning”. Gladue considerations do not significantly reduce the accused’s moral blameworthiness in this matter (R v Swampy, 2017 ABCA 134).

The trial judge found the accused did not have a disadvantaged upbringing, nor does there appear to be a history of family violence, displacement, residential schooling or “constrained circumstances” (R v Ipeelee, [2012] 2 CNLR 218). Rather, the accused enjoyed a culture-centred and close family upbringing throughout his life. He is both intelligent and educated, communicating in both English (written and oral) and Inuktitut (oral). He opted to leave formal schooling to pursue his vocation as a traditional hunter, earning a living from the land by selling furs and supporting his family and community with the country food he harvested, and by keeping their machines and dog teams in good order. While a history of colonialism must be taken into account, including substance abuse and suicide in this matter, it is difficult to identify any background factors that greatly diminish the accused’s moral blameworthiness for this serious firearm offence, at least to the extent found by the sentence judge to “temper the usual deterrence sentence” by more than two years.

R v Kapolak, 2020 NWTTC 12

The NWT Territorial Court found a provision for sexual assault against a minor under the Criminal Code to breach s 12 of the Charter and therefore declined to apply it and ordered a conditional sentence for an Inuk offender with FASD.

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This decision bears in mind the cognitive challenges associated with FASD with the Indigenous accused. It had to balance between the protection of Indigenous victims and the need to implement the Gladue principles for Indigenous offenders. Like provincial courts, the territorial court cannot strike down any provisions but it may become a persuasive precedent for other courts in the territories and elsewhere.

This case involved a single incident, and the victim suffered no apparent injury. This was a bold act, committed on a residential street, in the daytime, as opposed to a surreptitious act committed behind closed doors, on a sleeping victim, or in a context where the victim is physically isolated and cannot get away from the perpetrator. The victim initially did not feel threatened by the accused, because she was familiar with him, and likely because of his diminutive size and almost child-like appearance. But the accused then touched the victim’s body many times and in many places, and he failed to disengage when prompted verbally by her. She had to resort to physical violence to make him stop. This was a crime of opportunity, committed on impulse. The victim was in foster care at the time of the incident. She did not file a Victim Impact Statement, but it is inferred that she is from Inuit ancestry from her name.

Because the mandatory minimum sentence of imprisonment for six months applies to all offenders having committed any form of sexual assault on a victim aged anywhere between 1 day and 16 years, it is vulnerable to Charter scrutiny. Imposing a sentence of six months in jail on this accused who is a first offender when there are many mitigating factors and when the circumstances of the offence, while being serious, are not too egregious, is fundamentally unfair and as a result, disproportionate. As a result, the accused’s right to be protected against cruel and unusual treatment or punishment is infringed by the mandatory minimum punishment found at section 271(b) of the Criminal Code. The provision is not saved by section 1 of the Charter, and accordingly the mandatory minimum punishment is declined.

The presence of an intellectual disability that affects the accused’s cognitive functions makes it difficult to assess the risk to reoffend. Although present, and in light of other circumstances, the risk is not viewed as high, or determinative. However, the offence of sexual assault is prevalent in Northern communities, 5.3 times the national ratio in 2017. The accused’s early guilty plea is highly mitigating, as it spared the victim from having to testify in court.

The personal circumstances of the accused, which include the diagnosis of Alcohol-Related Neuro-Developmental Disorder, suggest a reduced moral blameworthiness. For a first offender, sentencing usually focuses on rehabilitation. There is nothing to say that a community-based sentence would not work for this accused. The risk to reoffend that this accused presents because of the impulsivity associated with his condition, as well as his intellectual limitation, is compensated by the fact that he benefits from family support. He has a home in which supervision may occur, and he has shown that he is able to comply with conditions.

For an offender with challenges to his executive functions, repetition of instructions, structure, and professional follow-up, appear to be key. A carefully crafted conditional sentence order can bring the necessary restrictions to a person’s freedom while providing rehabilitative tools, and thus achieve deterrence.

The Supreme Court of Canada determined that the standard for finding that a sentence represents a cruel and unusual punishment is that it be grossly disproportionate. An option to preserve the constitutionality of offences that cast a wide net is to provide for residual judicial discretion to impose a fit and constitutional sentence in exceptional cases (R v Lloyd, 2016 1 RCS 13).

In this case, the offender presents with cognitive challenges, and is sentenced more than one year after the commission of the offence. The immediate link between consequence and cause may be lost and as a result a sentence of imprisonment may not achieve the necessary deterrence. Reducing the over-incarceration of Aboriginal offenders is as important an objective as that of protecting vulnerable victims, and must be given equal consideration. The accused is to serve a conditional sentence of imprisonment of 120 days, to be followed by a period of probation of 18 months.

Hele c Canada (AG), 2020 QCCS 2406

This is a significant new case on how to approach the provisions for Indian status under s 6 of the Indian Act. Among other things, the Court clarifies how the honour of the Crown applies to the interpretation of the Indian Act to disfavour the legality of enfranchisement. This decision may have significant implications for how applications for Indian status are processed.

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The present statutory appeal is from a final decision of the Indian Registrar of Aboriginal Affairs and Northern Development Canada. That decision refused to recognize a 9 year old child, Annora Daphne Hele as an Indian.

The discriminatory policy known as “enfranchisement”, involved the renouncement personally and on behalf of descendants, living and future, of recognition as an “Indian” including its certain rights and benefits. In return, one gained full Canadian citizenship and the right to hold land in fee simple. The policy used to be the cornerstone of the Canadian federal government’s assimilation blueprint relating to Aboriginal peoples. Enfranchisement was not a policy desired by Indians and was ultimately abolished in 1985. Parliament has since enacted remedial provisions to address some of the consequences of that oppressive process but certain descendants of enfranchised Indians continue to suffer its aftereffects.

The issue at the heart of this appeal is the interpretation of a subsection of a male-centric Indian Act, 1952 [“1952 Act”]. In debate is the meaning of the words, “an Indian” and “the Indian and his wife and minor unmarried children” found in subsection 108 (1), which cannot be understood without taking into consideration the entire section, the 1952 Act in both English and French, and the history of the Indian Act as a whole. The two versions of the Act are authoritative, the words of both English and French (translated verbatim) must be examined to understand the intention of the legislature.

When a court is called upon to interpret a statute, particularly one relating to the Aboriginal peoples, in addition to adopting a straightforward non-technical liberal purposive approach that resolves doubts or ambiguities in their favour, it should not engage in carrying out its task in a vacuum devoid of all realities before it. In interpreting a historic legislation such as the Indian Act that contains oppressive provisions, such as subsection 108 (1) of the 1952 Act, the court should not engage in merely an academic exercise.

Subsection 108 (1) was resorted to in 1965 to voluntarily enfranchise Annora’s paternal grandmother, Margaret Laura Hele. At the time, Margaret was twenty-five years old, educated, self-sufficient, and not yet married. She spent several years teaching in a number of cities in northern and southern Ontario. After she left the reserve, Margaret’s mother began to receive calls and visits from band councillors demanding to know why Margaret was not filing for enfranchisement. These councillors insisted that Indian women who had either married or who were going to marry a non-Indian in any event could no longer retain the right to be a member of the band. Conceding to the pressure, Margaret voluntarily enfranchised. Four years later, Margaret married a non-Indian Canadian. Despite the applicable legislation, this marriage had no effect on Margaret’s Indian status as she was by then already voluntarily enfranchised. Had Margaret not been enfranchised, she would have lost her Indian status by operation of law on the day of her marriage.

In 1985, due to compelling social and political reasons, section 108 of the 1952 Act was repealed and enfranchisement in Canada was abolished. Margaret filed to be registered as an Indian, and for her children living with her. In 1987, as a result of the amendments to the 1985 Act, their Indian status was restored. Shortly after Annora’s birth, the Appellant, filed an application with the Indian Registrar to register her as an Indian. The Indian Registrar refused to register Annora as an Indian based on the provisions of the 1985 Act. The Appellant then filed a protest of the Indian Registrar’s decision pursuant to section 14.2 of the 1985 Act. The main ground of protest was that in 1965 the Governor in Council had no competence under the 1952 Act to enfranchise Margaret, who was an unmarried Indian women.

The Indian Registrar concluded that since Margaret had been enfranchised voluntarily pursuant to section 108 of the 1952 Act, Annora was not entitled to be registered as an Indian. Had Margaret lost her Indian status four years later as a consequence of her marriage to Laurence, there would be no second generation cut-off under the 1985 Act, and the answer would be different.

The only relevant issue before this Court is the correctness of the Indian Registrar’s decision. The question that requires an answer in this appeal is whether subsection 108 (1) of the 1952 Act permits the voluntary enfranchisement of an unmarried Indian woman? The Court’s answer to the above question is no. Subsection 108 (1) of the 1952 Act did not permit in 1965 the enfranchisement of Margaret who was an unmarried Indian woman. The same conclusion holds today when subsection 108 (1) is examined in light of modern interpretive rules and the current socio-political context. There is no ambiguity in the text or language of subsection 108 (1) as they are not reasonably capable of more than one meaning when considered in their entire context.

Enfranchisement was never a right even though historically it was viewed as a privilege. Enfranchisement, which used to be the cornerstone of the Canadian federal government’s assimilation policies towards Aboriginal peoples, was abolished in 1985. The federal government today would not pass a law that would encourage or allow Margaret to enfranchise herself. It would be mistake in law today to interpret subsection 108 (1) of the 1952 Act as allowing Margaret to enfranchise herself voluntarily in 1965.

Sections 108 and 109 of the 1952 Act, as amended in 1956, are the only statutory provisions that existed and applied to Margaret at the time she was enfranchised in 1965. Neither section permitted in 1965, nor does either section permit today, the voluntarily enfranchisement of Annora’s grandmother, Margaret, as an Indian.

The Indian Registrar decided incorrectly when she concluded “that prior to 1952 the Indian Act was amended to allow men or women over the age of twenty-one to enfranchise.” The Indian Registrar therefore erred in law, when she concluded in 2017 that the Governor in Council had the power to enfranchise unmarried Indian women pursuant to subsection 108 (1) of the 1952 Act, and when she rejected the Appellant’s protest application to register Annora as an Indian on that basis. Annora’s request filed through her father is granted and this matter is returned to the Indian Registrar to modify in the appropriate registry records the notation that Margaret Laura Hele was voluntarily enfranchised by Order in Council.

 

Morin v Enoch Cree First Nation, 2020 FC 696

Application granted. Procedural fairness applies even when not directly incorporated into a First Nation’s custom election code.

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This application for judicial review is brought pursuant to s 18.1 of the Federal Courts Act, regarding a decision by an Election Appeal Board, constituted in connection with the Maskekosihk Enoch Cree Nation #440 Election Law [“MECN Election Law”]. The majority of voters of the Maskekosihk Enoch Cree Nation approved the MECN Election Law in 2018. It was enacted and adopted into the laws of that First Nation.

In this matter, the Applicant, Mr. Jared Morin and Respondent, Mr. Shane Peacock are members of the Enoch Cree Nation and both ran for the position of band councillor in the 2019 election. The counting of the ballots for councillors was conducted and there was found that both Mr. Morin and Mr. Peacock had received 319 votes. However, this “tie” is disputed as a councillor’s ballot was found in a ballot box intended for votes for the chief. That councillor’s ballot was for Mr. Morin. As some candidates ran for election as chief or councillor, the outcome of the election for chief had the potential to affect the outcome of the election to the 10th councillor position.

The Electoral Officer declared this tie and, in accordance with s 17.2 of the MECN Election Law, Mr. Morin and Mr. Peacock’s names were placed in a hat. The name drawn from the hat was Applicant. The Election Officer declared him the winner of the 10th councillor position.

Mr. Peacock subsequently submitted a brief to the Election Appeal Board that asserted the Electoral Officer improperly handled the councillor’s ballot found in the ballot box for votes for chief during the counting of the votes for the position of chief. That ballot, according to the brief, should have been considered as spoiled and not counted. In that event, Mr. Peacock would have had 319 votes and Mr. Morin would have had 318 votes, there would not have been a tie vote, and there would have been no need to conduct a tie breaking hat draw. The 10th councillor position in the 2019 election for the Maskekosihk Enoch Cree Nation chief and band council were then overturned and a by-election ordered.

This Court finds that the Election Appeal Board breached the duty of procedural fairness owed to Mr. Morin by failing to give him notice of that appeal, and as a result, deprived him of the opportunity to address the appeal allegations. The Election Appeal Board also erred by failing to notify the Electoral Officer of the appeal and in failing to obtain the Electoral Officer’s written reasons for his decision, in breach of s 20.7 of the MECN Election Law. This was unreasonable and rendered its decision unreasonable.

Given that Enoch Cree Nation did not challenge Mr. Morin’s allegation that the Election Appeal Board breached procedural fairness, and given that he has been successful in his application for judicial review in that the decision of the Election Appeal Board will be quashed and remitted back for redetermination, it is appropriate that he should be awarded the costs of his application as against the Enoch Cree Nation.

 

R c Charlish, 2020 QCCQ 2438

In keeping with the sentencing principles, including a focus on Gladue factors, the Aboriginal accused has been granted a last chance of a total sentence of 90 days to be served intermittently and supervised probation that includes an essential focus on therapy.

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The accused is an Aboriginal person who is a member of the Mashteuiatsh Innu Nation. Paragraph 718.2(e) of the Criminal Code provides that the court must take into consideration all available sanctions, other than imprisonment with particular attention to the circumstances of Aboriginal offenders.

In 2018, the accused entered a guilty plea to a charge of trafficking cocaine. Presentence and Gladue reports (R v Gladue, [1999] 2 CNLR 252) were ordered. Despite the presence of aggravating factors, such as objective gravity and the scourge of drugs in the community, the court accepted the defence’s position and imposed an intermittent sentence of 60 days with two years’ probation, including 18 months with supervision, and 100 hours of community work.

The accused continued to use cannabis but reduced the quantity and for a time stayed away consumption. During submissions on sentencing in this matter, the Court granted the application of counsel to file the presentence and Gladue reports that were previously prepared because they remained relevant. The reports highlighted that since childhood, the accused has been exposed to instability, violence, and substance use. He is aware of the problem and has consulted an addiction counselor, but has not managed to remain abstinent. The accused has a spouse with substance abuse issues as well, with whom he lives with, along with their two young children in the Mashteuiatsh community.

The Court asked for information on the programs available in the community. There are no justice committees in Mashteuiatsh. The Court refers to the work of the “Viens Commission”, a Public Inquiry Commission on relations between Indigenous Peoples and certain public services in Québec that focus on listening, reconciliation and progress. The Viens Commission describes the roles and responsibilities of justice committees as varying with each community’s needs and priorities. In general, it can be said that their goal is to offer an alternative to or complement the structures of the existing justice system. They take care of a number of things, including diversion, sentencing recommendations, supervised probation, suspended sentences, conditional release, authorized leave, crime prevention and community support such as healing circles, offender reintegration and citizen mediation.

However, there are other resources available in Mashteuiatsh to all types of clients. There is a housing resource that is a community organization that some members of the Mashteuiatsh community attend. It helps those suffering from issues related to substance abuse or addiction. With respect to Aboriginal clients, there is the Centre Kapatakan Gilles-Jourdain in Mani-Utenam, near Sept-Îles. It is an organization accredited by the Ministère de la Sécurité publique whose mission is to provide services adapted to Aboriginal values and traditions to Innu adults and other First Nations members, with the objective of healing and rehabilitation. There is also the Wapan rehabilitation centre in La Tuque. It provides treatment and follow-up services to First Nations adults. Mashteuiatsh social services can also provide support and direct a person to the appropriate resources, to the extent that they are willing and participate in the follow-up required.

In this case, the accused has been noted as open and cooperative. Before his relapse, he had made sincere efforts to change. The accused decided to testify and was transparent and described his drug addiction. He now realizes that he must get to the root of the problem and that long-term therapy is needed even if that causes him to be away from his family. He realizes that he is reproducing for his children the conditions that has led to his own substance use.

Cocaine trafficking is an objectively serious offence, for which the offender is liable to imprisonment for life. What is more, this case concerns a subsequent occurrence of the same offence for which the accused was convicted a few months earlier, along with a breach of probation. However, the Court cannot ignore the unique systemic and background factors that are mitigating in nature in that they have played a part in the Aboriginal offender’s conduct. The Supreme Court of Canada urges sentencing judges to address the sources of the problem rather than reproducing the “revolving door cycle in the courts” (R v Gladue; R v Ipeelee, [2012] 2 CNLR 218).

The accused is granted a last chance with a total sentence of 90 days to be served intermittently and supervised probation including the essential focus on therapy. To prioritize that initiative and taking into consideration the accused’s family obligations, the Court will not add community work.

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.