Solomon v Garden River First Nation, 2019 FC 1505

Judicial review granted. There was a breach of procedural fairness in the process followed by the Chief and Council that led to the Applicants being banished from Garden River First Nation. The matter is remitted for reconsideration.

Indigenous Law Centre – CaseWatch Blog

The Chief and Council of Garden River First Nation [“GRFN”] issued a series of Band Council Resolutions [“BCRs”] banning Kody John William Solomon and Ralph Justin Romano [“the Applicants”] from GRFN territory. On this application, the Applicants seek judicial review of these BCRs and the process undertaken by the Chief and Council.

GRFN is governed by an elected Chief and Council who are responsible for the governance of the Nation and its approximately 3,000 members. One of the applicants have resided there his whole life, another non-member has lived on GRFN for 19 years with his member spouse and teenage daughter. The Applicants were banished as they had been charged with offences under the Controlled Drugs and Substances Act, and that “illegal drugs have caused great harm to Garden River and its members,” and “allowing [the Applicants] to remain in Garden River may cause harm to Garden River and its members or endanger public safety.”

There is no dispute that the initial 2018 BCRs were issued by GRFN’s Chief and Council without the opportunity for any input from the Applicants, nor did they have notice. The right to a fair hearing requires that the Applicants have adequate notice of the case against them and sufficient opportunity to respond before a decision adverse to their interests was made (Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9). Given the serious consequences of the banishment decisions, the degree of procedural fairness owned to the Applicants is heightened.

It appears GRFN’s Council itself recognized flaws in the process undertaken. By-Law 20 was adopted subsequently after the BCRs in 2018. The major differences from By-Law 13 are that it allows the Band Council to banish members of GRFN and persons deemed to be threats to the peace and safety of the Band or other people lawfully on the reserve. By-Law 20 provides a process that is clearly tailored to address the particular circumstances of the Applicants, a member and a non-member of GRFN who were charged with a criminal offence. However, there was still no reconsideration of the original decision to banish the Applicants in the BCRs issued in 2019. Rather it appears the GRFN Council simply passed the new By-Law and considered it to have rectified any issues with the previous BCRs from 2018.

The case law is clear that issues of procedural fairness are considered on a correctness standard (Canadian Pacific Railway Company v Canada (AG), 2018 FCA 69). The test for assessing if the process was fair, is to ask whether a right-minded person, applying themselves to the question and obtaining the required information, would think it is more likely than not that the decision-maker did not decide fairly (Baker v Canada (Minister of Citizenship and Immigration), 1999 SCC 699 [“Baker”]). The factors outlined in Baker for assessing procedural fairness include: 1) the nature of the decision and the process followed in making it; the nature of the statutory scheme; 2) the importance of the decision to the individuals affected; 3) the legitimate expectations of the person challenging the decision; and 4) the choice of procedure made by the agency itself.

Considering that By-Law 20 appears to have been crafted to address the specific circumstances of the Applicants, they had a legitimate expectation that the process laid out in By-Law 20 would be followed. When the Baker factors are considered in conjunction with the reasonable apprehension of bias, it is clear that there was a breach of the Applicants’ right to procedural fairness. The evidence demonstrates a continuing course of conduct on the part of GRFN’s Council who never undertook the promised reconsideration of the original banishment decision. The 2019 BCRs were simply a reissue of the original 2018 banishments under the new By-Law. The decision-making process that led to the Council’s 2019 decision was procedurally unfair because the Council made up its mind in 2018. From that point, GRFN Council defended its original decision rather than engage in a true reconsideration.

Conseil des Atikamekw d’Opitciwan c Weizineau, 2018 QCCS 4170

Wiyasiwewin Mikiwahp Native Law Centre

Judicial authorization granted to banish a defendant from the Opitciwan First Nation in accordance with a Band Council by-law.

The Opitciwan First Nation is an Aboriginal people of Canada who benefit from the rights arising from s. 35 of the Constitution Act, 1982, including the right to self-government. Under this principle of self-government and in accordance with the power conferred by s. 81 of the Indian Act, the Band Council adopted a by-law “respecting the expulsion of persons found guilty of trafficking certain drugs and other substances”, that allows the Band to banish any person found guilty of such offences by a court from their reserve for a period of sixty months. This by-law came into effect on January 1, 2017.

The defendant was found guilty of trafficking narcotics on March 22, 2017, by the Court of Quebec. On August 1, 2017, the Band Council adopted a resolution in accordance with the above by-law to expel her from the community until March 22, 2022. Despite the various attempts to apply the by-law and resulting resolution, the plaintiff ignored these requests by hiding in private homes in the Opitciwan community. Consequently, the Band Council has failed to expel her.

The Court ordered the defendant to leave the borders of the Opitciwan Indian Reserve and to remain outside these borders until such time as sanctioned by the Band Council. Any peace officer or bailiff is authorized to assist the plaintiff in the execution of this judgment, the whole at the plaintiff’s mere verbal request and regardless of the premises in which the defendant is to be found, such that they may be entered and the defendant escorted to the border of the Opitciwan Indian Reserve. As well, the Court acknowledges the plaintiff’s undertaking to execute the expulsion measures in such a way that the defendant will not be left alone or without support at the borders of the Opitciwan Indian Reserve.