Anderson v Alberta (AG), 2020 ABCA 238

Applications to admit fresh evidence allowed. The advance costs order was based on an error of law in applying the legal test to the facts regarding Beaver Lake Cree Nation’s award for funding an underlying claim. Given the resources available to the First Nation, the award was unreasonable and is set aside.

Indigenous Law Centre CaseWatch Blog

In these two appeals the Government of Canada and the Government of Alberta appeal an order requiring them each to contribute $300,000 a year to the plaintiffs to fund underlying litigation (Anderson v Alberta (AG), 2019 ABQB 746). Beaver Lake Cree Nation [“BLCN”] has about 1,200 members, and is a signatory to Treaty 6. The underlying claim is lengthy and nuanced, but the essence of the claim is that the Crown appellants have improperly allowed lands traditionally used by BLCN to be “taken up” for industrial and resource development. Declarations of rights, injunctions and damages are claimed.

The original statement of claim was issued in 2008. Since that time there have been various interlocutory steps taken in preparation for trial, such as closing the pleadings and some disclosure of documents. Questioning has not yet started but BLCN has spent approximately $3 million on legal fees to date, about one-half from its own funds, and presently pays $25,000 in fees per month ($300,000 per year). The 120 day trial is presently scheduled for January 2024.

The 2017 annual financial review by Indigenous Services Canada concluded that there are no concerns in regard to the financial health of BLCN. The case management judge did note that BLCN has operated in a surplus position in the last few years, and that its financial situation is improving. The test for advance funding was quoted at length from the leading cases (British Columbia (Minister of Forests) v Okanagan Indian Band, 2003 SCC 71 [“Okanagan”]; Little Sisters Book and Art Emporium v Canada (Commissioner of Customs and Revenue), 2007 SCC 2, [“Little Sisters”]). It was concluded that BLCN had sufficient resources to fund the litigation, but was entitled to allocate it to other community priorities. While acknowledging the extraordinary nature of an advance costs order, the case management judge directed that each of the appellants contribute per year towards the costs of the litigation, with BLCN continuing to pay a like amount.

The test for ordering a defendant to fund public litigation against it through an advance costs order was set in Okanagan: 1) the party seeking interim costs genuinely cannot afford to pay for the litigation, and no other realistic option exists for bringing the issues to trial; 2) the claim to be adjudicated is prima facie meritorious; and 3) the issues raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolved in previous cases (Okanagan; Little Sisters). In this appeal, the appellants only argue that the respondents have failed to meet the “impecuniosity” branch of the test. The test is that the applicant must be impecunious (Okanagan).

BLCN created the Beaver Lake Cree Nation Heritage Trust in 2014, after this litigation was well underway. It now argues that there are “strict restrictions” on these funds. A plaintiff cannot voluntarily tie up its assets in a trust, and then argue it is impecunious and in need of litigation funding. The limits on how much can be taken out every year were self-imposed, and could be changed. BLCN also has access to other funds, subject to a request or approval. A plaintiff cannot fail to seek access to its own assets, and then argue it is impecunious (Little Sisters). It was an error of principle to disregard these assets in the analysis.

The finding that “more than $3 million is available” demonstrates that the order should not have been granted, based on the record as it then existed. If circumstances have changed to the extent that BLCN has now become entitled to advance costs, it is incumbent on it to reapply. The presumption is still that public interest litigation must be funded by those advancing it.

R v LR, 2021 BCPC 7

Although the sentencing judge still views a new joint submission of 180 days jail plus probation and mandatory ancillary orders as unduly lenient for an Indigenous man’s public and violent attack on his spouse at an elementary school in front of their child, it does not meet the threshold to reject the joint submission.

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L.R. is before the Court for sentencing a second time after having pleaded guilty in 2020, to three offences charged as a result of a violent altercation with his former spouse and the investigating RCMP officers. Joint submission by counsel was rejected for being unduly lenient (R v LR, 2020 BCPC 80 (CanLII)). Counsel has returned to Court with a new joint submission for a global sentence of 180 days jail plus probation and mandatory ancillary orders.

L.R. and C.L. met in highschool and cohabitated for ten years from 2008 to 2018 and are the biological parents of two children, one aged eight years old, the other three years old. L.R. came to an elementary school with his son to attend a birthday party where he encountered C.L. in the school parking lot. L.R. says C.L. showed him nude or “near nude” photographs of herself she had sent a number of friends and relatives. He became angry and began arguing with her. C.L. then picked up her son and ran to the school office and asked the receptionist to call the police. Enraged, L.R. chased after C.L. When he caught up with her in the school office, he grabbed her hair and began punching her in the head, even though at the time she was holding their child. He then threw C.L. on the floor and began kicking her in the ribs. Throughout this assault, L.R. was yelling at and threatening to kill C.L.

Eventually the staff succeeded in separating L.R. from C.L. L.R. took their son and left the school. The staff complained to the RCMP, who came to the school where they found C.L. L.R. left the school with his son and drove to his parents’ residence and asked his parents to keep his son safe. L.R. picked up a collapsible baton and a hunting knife at his residence and then drove to the house of his friend. In an attempt to locate him, the police called L.R.’s cell phone where he answered and uttered threats. The constables attended the friend’s residence where they believed L.R. might be hiding. L.R. was caught inside a smoke shack with the weapons. He continued to utter threats, then eventually held his weapons up and took a half step forward and was pepper sprayed.

While in custody, L.R. wrote apology letters to C.L., his son, and his parents. L.R. says he did not deny making threats to the officers or swinging the baton, but did not recall his interaction with the police, other than being pepper sprayed. L.R.’s present circumstances and antecedents are well documented in the presentence reports. L.R. is a member of a First Nation and was 27 years old at the time of the offence and 28 at sentencing. Until his banishment as a result of the offences, L.R. lived most of his life in the First Nation, as did most of his extended family. L.R. did work sporadically for the First Nation’s village government as a labourer, however, he was unable to sustain steady employment. Nevertheless, L.R. actively harvested fish and game to provide for his family, community and Elders.

C.L. and L.R.’s relationship was discordant. A social worker of the respective Child & Family Services Society, blames their problems on L.R.’s abusive behaviour. She depicts C.L. as the victim of the worst case of battered wife syndrome she has ever worked with. L.R. and C.L. separated permanently as a result of the school incident. After L.R. and C.L. separated, the children now live with C.L. At the hearing, the Court was not aware L.R. had issues of substance misuse. The presentence reports prepared for this continuation of the sentencing hearing tell a very different story. L.R. admitted to “selling and using cocaine” daily up to the time of his arrest.

While on remand at the Kamloops Regional Correction Centre, L.R. completed the 12-session Substance Abuse Management program and the 10-session Respectful Relationships programs. Since his release, L.R. sought and participated in individualized addictions and anger management counselling with an addiction specialist with the Terrace and District Counselling Services Society. L.R. does not speak or understand his Indigenous language nor does he participate in the spiritual or cultural activities to any significant degree. The Presentence Report and Gladue Report reference a number of support letters from Elders acknowledging L.R. as a skilled and generous hunter and fisher who provided sustenance fish and game to the community.

Although his grandparents attended residential school, L.R.’s upbringing was free of any trauma, physical or emotional abuse, neglect, abandonment, substance misuse, domestic discord or violence. L.R. grew up hunting and fishing with his father and extended family. L.R. remains close to his parents and siblings who have supported him throughout these legal proceedings. As a result of L.R.’s charges, his First Nation’s village government banished L.R. The village sent a letter to the RCMP and Terrace Crown Counsel advising that out of concern for the well-being of their citizens, the village government banished L.R. indefinitely from attending until he seeks medical or therapeutic attention for his actions and proves he is fit to return to their community.

While they are not immutable or sacrosanct, joint submissions should only be rejected in exceptional circumstances (R v Anthony-Cook, 2016 SCC 43 [“Anthony-Cook”]; R v Spencer-Wilson, 2020 BCPC 140 (CanLII)). There are exceptional circumstances in this case to justify a lesser period of incarceration than might otherwise be imposed. Still, L.R.’s assault on C.L. at the elementary school was outrageous. The sentence that counsel now propose is still not one, absent a joint submission that the Court would otherwise impose. Although the Court believes the joint submission for 180 days jail sentence is unfit, perhaps even demonstrably unfit, it is unable to conclude its acceptance would cause a reasonable person to conclude “the proper functioning of the justice system had broken down” (Anthony-Cook). L.R. has 204 days of pre-detention credit, and has served the 180 day jail sentence. He is subject to an 18 month Probation Order with terms and conditions.

R v SR, 2020 BCPC 227

The Court considered the frequency of sexual abuse perpetrated by a father of a child that took place over the course of a year in 1982. From balancing of the competing sentencing principles and objectives, a period of jail is warranted as the daughter’s emotional, spiritual and physical integrity has been scarred through her lifetime. The father is sentenced to a period of one year jail, without probation after a pre-sentence report and Gladue factors were also considered.

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Over a number of months in 1982, S.R. did indecently assault his daughter J.R. contrary to s 149 of the Criminal Code. The charge is dated, as the offence took place 38 years ago when S.R. was 28 years old and J.R. was 6 years old. She is now 43 years old. In 2018, J.R. reported to the police that her father sexually abused her. The charge is indictable, the accused elected to proceed in Provincial Court, and he pled guilty in 2019. S.R. does not remember any specifics of the sexual abuse but does not deny any of the acts, and told the Court he was drinking alcohol excessively during this time of his life.

Of particular importance in this case is the provision of s 718.01 which deals with offences against children. The Court gives primary consideration to deterrence and denunciation when sentencing for any offence involving abuse of a person under 18. The applicable sentencing principles for child abuse, both statutorily and in the common law, are well established (R v D(D), 2002 CanLII 44915 (ONCA); R v Woodward, 2011 ONCA 610 (CanLII)). The harm is enduring, intergenerational, and well recognized. J.R. is now an adult and has told the Court, through the Crown, that her life has been devastated by this crime. J.R. is an Indigenous woman. With that comes a greater chance that she will be emotionally, physically or sexually abused than if she were not Indigenous.

S.R. is now a 65 year old First Nations’ man. S.R. states he and his cousins witnessed countless acts of sexual violence on a regular basis. He described watching his uncles sexually assaulting women on countless occasions. S.R. saw this so often he states he believed this to be normal behaviour. He was six years old when he was exposed to sexual behaviour and pornographic images. As for alcohol, he spoke of the normalization of excessive alcohol consumption. He grew up believing it was normal to drink non-stop all weekend long and partying until all hours of the night.

When she was 14, J.R. told family members what had happened. Family members and a social worker became involved and some sort of community intervention took place. However, the social worker that became involved was S.R.’s sister-in-law and turned to S.R.’s oldest brother for advice. Subsequently the family decided to deal with the offending in a traditional way and not involve law enforcement. The Court would have welcomed input from Elders as to what the ‘traditional way’ meant. Without a better cultural understanding, the approach taken might leave one with the impression that the issue was simply ‘swept under the rug.’

As for Indigenous background, many of S.R.’s family members went to residential school where they were physically, emotionally and sexually abused. The Court acknowledges the systemic horrors that have taken place on S.R.’s First Nations community as a result of the residential school system. As the Gladue report confirmed, the majority of S.R.’s family was mandated to attend there where for over a decade the school performed horrid nutrition experiments on the children without anyone’s knowledge.

Despite the cultural cuts that residential schools scarred his community with, S.R. is involved with cultural practices such as singing, drumming and other cultural events, including language classes. There is a long list of culturally appropriate supports provided, such as clinical counselling, support groups and relapse recovery options in the community. There is also a Men’s Group that is offered to men who have sexually offended and cultural healing retreats. The Court hopes S.R. can use his position as an Elder in his community and work with others to help support a restorative healing event that can help bring his community together. I hope J.R. is able to have supports in place that make her feel welcome to participate in any community apology.

Tallcree First Nation v Rath & Company, 2020 ABCA 433

Permission to appeal is not needed for a chambers judge reserved decision regarding an appeal by an Applicant law firm that entered into a contingency fee with a First Nation for 20% that resulted in around $11 million dollars for a relatively small amount of work. The decision under appeal is not a decision “as to costs alone.” However, the decision under appeal is interlocutory in nature because the chambers judge’s final order on the amount of recoverable fees has not yet been issued. Appeals of interlocutory decisions are generally discouraged. Interlocutory appeals may turn out to be unnecessary and are normally contrary to the Court of Appeal’s policy against litigation by installment.

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Rath & Company and Jeffrey Rath [“Applicants”] apply for confirmation by way of declaration that they have a right to appeal a decision of a chambers judge overturning a Review Officer’s decision that a contingency fee agreement was reasonable. In the alternative, they seek permission to appeal, if their appeal is of a decision “as to costs alone.”

In 2015, Tallcree First Nation [“Tallcree”] entered into a contingency fee agreement with the Applicants, who were retained to settle certain agricultural benefits claims under Treaty 8 made by Tallcree against the federal government. The initial contingency fee agreed to was 20%. The Applicants resolved the agricultural claims quickly, although Tallcree did not receive the payment of $57,590,375 from the federal government until 2018. The 20% contingency amounted to $11,518,075. Tallcree subsequently applied for a review of the contingency fee agreement under the Alberta Rules of Court. The Review Officer was asked to determine whether the 20% contingency fee was reasonable. It appears that all the Applicants did on this matter was file a formal claim, send a three-page settlement letter, and engage in “minor negotiations”.

The Review Officer found that the contingency fee was “not … clearly unreasonable” based on a comparison with personal injury lawsuits in which a 20% contingency fee is commonly charged in clear cases where liability is not in issue. Tallcree appealed the Review Officer’s decision to the chambers judge who revoked the Review Officer’s decision because the wrong test was applied (“clearly unreasonable” as opposed to “reasonable”). The finding that the 20% contingency was the minimum percentage for cases taken on a contingency basis was unsupported by evidence or authority as it failed to account for other considerations relevant to the reasonableness of the contingency fee. The chambers judge the asked for further written submissions on what the Applicant’s recoverable fees should be. A further hearing took place before the chambers judge in 2020, but the chambers judge has reserved his decision.

No appeal is allowed to this Court from a decision as to costs only unless permission to appeal has first been obtained. It is doubtful that the decision under appeal is a decision “as to costs only”. It concerns a dispute about the recovery of lawyers’ fees between a lawyer and his or her client, not the payment of costs between parties to litigation. Even if a Review Officer’s review of a lawyer’s charges to his or her client amounts to “a decision as to costs alone”, a review of a contingency fee agreement does not. A review of lawyers’ accounts is a largely discretionary exercise but a review of a contingency fee agreement for reasonableness raises issues of principle about whether (and when) clients who enter into such an agreement and allow the lawyer to fulfil the contingency can decline to pay the contractually-agreed contingency fee.

The policy behind the rule requiring permission to appeal for “a decision as to costs alone” does not apply to an appeal of a review of a contingency fee agreement. No previous decision of this Court has held that such an appeal requires permission to appeal its predecessors. The decision under appeal is not a decision “as to costs alone.” However, the decision under appeal is interlocutory in nature because the chambers judge’s final order on the amount of recoverable fees has not yet been issued. Appeals of interlocutory decisions are generally discouraged. Interlocutory appeals may turn out to be unnecessary and are normally contrary to this Court’s policy against litigation by installment.

Blueberry River First Nation v Laird, 2020 BCSC 1615

The Court dismissed various claims against members of two past governments of the First Nation who were also directors of the trustee for a trust for its members. The plaintiffs alleged breach of fiduciary duty, breach of trust, and negligence regarding roughly $11 million of transfers made from the trust to the First Nation over a four-year period. They also sued the former Band administrator for alleged breach of contract and fiduciary duty, negligence, knowing assistance, and knowing receipt. All claims were dismissed and the evidence failed to show impropriety or dysfunction.

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The Plaintiffs sue members of two past governments of the Blueberry River First Nation [“BRFN”], a band as defined in the Indian Act. Against those Defendants, the Plaintiffs allege a breach of fiduciary duty, breach of trust and negligence. The BRFN includes approximately 500 members, about half of whom live on the BRFN reserve. The reserve is located about an hour and a half by car north of Fort St. John, in northeast British Columbia.

The Blueberry Trust [“Trust”], and predecessor trusts, were established to hold and manage $76 million that the BRFN received in 1998 from its claim against Canada for damages arising out of the surrender of reserve land in 1945, and Canada’s disposition of the underlying mineral rights. The central dispute is to do with the transfer of approximately $11 million from the Trust to the First Nation and related entities, in a number of transfers over a four-year period.

The Defendants believe the claims against them in this action are politically motivated, and not based on bona fide legal grievances. There is another defendant, Mr. Laird, who was brought into this case as a defendant at the time when the operating minds of the Plaintiffs appear to have decided that the Defendants were taking money from the Trust for their own purposes. The Court believes the Plaintiffs kept Mr. Laird as a defendant on the theory that the other Defendants would have needed his help in implementing their wrongful plans. The same people who are suing Mr. Laird, however, asked him to come back in 2014, to assist the new government of the Nation for the 10 weeks Mr. Laird had available in his schedule. Mr. Laird had the misfortune to be joined in this action, along with several others against whom the Plaintiffs eventually discontinued their claims, simply because he happened to be one of those who had contracted to work with the Defendants-lead governments. Mr. Laird did excellent work for the Band throughout his employment as Band administrator. It was a difficult role for anyone at any time in the Band’s recent history, given the numerous and serious social problems the Band faces.

The current leadership of the Band points to the value of the Trust dropping substantially while the Defendants were the Chief or on Council, which in itself raised flags of suspicion about possible breaches of fiduciary duty and other wrongs. All of the members of the two Councils in the four year period testified that they considered financial issues within the BRFN as they arose, particularly when such matters were brought before them for consideration and decisions.

Documents in evidence showed during this period, the Chief and Council taking a number of steps to address the BRFN’s financial procedures and financial issues that were of concern at the time. Chief and Council did not have the skills to reform the financial department themselves. All they could do was obtain skilled advice, try to retain skilled employees, and support the reform proposals that were recommended. That is what they did. It was not an easy task, in part because it is difficult to retain skilled employees to work for the BRFN due, at least in part, to the isolation of the reserve. In the circumstances, they generally took appropriate steps, and improved the financial department’s performance while maintaining what they believed was an appropriate balance as between curbing overspending and maintaining needed social and health support programs.

Financial matters were not all that the Chief and Council had to deal with. Of significant importance were the many health and social issues that members of the BRFN faced, and in some cases, struggled with. Drug addition, domestic violence, mental health and the health and safety of the BRFN’s children were all important issues for the Chief and Council to address. The health and wellbeing of the members was a priority for the Chief and Council during this time period. In addition to supporting the health department, school, and working with the RCMP in relation to gang issues, they retained professionals to deliver workshops to the members and provide consulting services, and supported implementing an action plan to address social challenges. The Chief and Council during the four year period also took positive steps toward improving governance by retaining a former Chief, and Calgary lawyer, to prepare a Governance Manual.

The evidence elicited at trial showed a governing group that worked together, did its best to address the many issues and challenges that the BRFN faced during that time, and performed its duties satisfactorily. The claims against the Defendants, for knowing assistance, breach of fiduciary duty and negligence, as well as for breach of trust, are dismissed.

Big River First Nation v Agency of Chiefs Tribal Council Inc, 2020 SKQB 273

The Court allowed the First Nation’s application for an oppression remedy against the incorporated Tribal Council in relation to the First Nation’s notice of an intention to resign membership in the Tribal Council in the future. Among other things, the Court considered a Convention Act enacted by the member First Nations to govern their relationship, which was grounded in traditional Cree values and customs. Likewise, Cree principles of respect, cooperation, consensus, and equal representation informed the First Nation’s reasonable expectations.

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Big River First Nation [“BRFN”], brought this application pursuant to the oppression remedy provided under The Non-profit Corporations Act [“NPCA”] for what it alleges is the oppressive conduct of the respondent, Agency Chiefs Tribal Council Inc. [“ACTC”]. ACTC is a non-profit membership corporation under the NPCA, and was created to conduct business and deliver programs to members of the corporation. BRFN, Pelican Lake First Nation and Witchekan Lake First Nation [“Member Nations”] formed a new tribal council in 1991 called the Agency Chiefs Tribal Council [“Tribal Council”]. The Tribal Council was constituted to promote cooperation among the Member Nations and to develop capacity for self-determination.

In 1991, representatives from the Member Nations signed the Agency Chiefs’ Tribal Council Convention Act [“Convention Act”] which contains a number of provisions purporting to govern the relationship between the Member Nations. It is grounded in traditional Cree values and customs and represents the setting down of some of the signatory First Nations’ customs in written form. In 2019, BRFN decided it would take steps to resign from the Tribal Council in order to have exclusive control over its funding, businesses and community services.

The Cree custom or law upon which the Convention Act is derived must inform the Court’s interpretation of the NPCA, as well as the parties’ reasonable expectations relevant to this application. Courts have recognized the existence of a rule of Indigenous law when it is shown that it reflects the broad consensus of the membership of a First Nation (Whalen v Fort McMurray No 468 First Nation, [2019] 4 FCR 217 (FC)). It is uncontroverted that the Convention Act is based in traditional Cree custom and that members of the Member Nations collectively developed and drafted the document

ACTC takes the position that BRFN’s resignation from ACTC was effective on the date it received notice of a first resignation in the form of a BRFN Band Council Resolution, as two resignations similar in wording were sent, one before and one after a BRFN Chief and Council election. It is ACTC’s view that BRFN is not entitled to make its resignation from membership in ACTC subject to conditions. Consequently, ACTC has filed a Notice of Change of Directors with Information Services Corporation, and removed BRFN’s two representatives from ACTC’s board of directors.

Section 5 of the Convention Act provides that before a Member Nations can withdraw from the Tribal Council, the Member Nations must hold a referendum on withdrawal and receive approval from the membership of the Member Nations, after which the Member Nations may pass a band council resolution. The withdrawal of membership from the Tribal Council is therefore conditional upon the majority support of the Member Nations’ community. BRFN is entitled to make its resignation from ACTC conditional and effective when conditions are met. This is clear because a resignation can be effective at a date in the future specified by the party tendering the resignation (Morin v Saskatchewan (Métis Nation Legislative Assembly), 2020 SKQB 63).

It is the Court’s determination that BRFN did not resign its membership in ACTC when it issued either of its resignations as BRFN’s resignation is properly subject to conditions and its resignation is not effective until those conditions are met. ACTC engaged in oppressive conduct when it treated BRFN’s notice that it would resign its membership in the future as an immediate resignation. It also engaged in oppressive conduct when it unilaterally removed BRFN’s directors from its board. BRFN had not intended to give up its portion of control of ACTC until it had appropriate measures in place to protect funding for its members, businesses and community services. Among other relief, ACTC shall amend its corporate records to restore BRFN’s membership in the corporation and shall replace two of its current directors with named BRFN directors. This will put BRFN in a fair position to negotiate the consequences of its future resignation from ACTC.

R v Soulier, 2020 MBPC 39

The Court determined that expert evidence should be admitted from a psychologist on the issue of whether and how an Indigenous man’s severe language disorder might have affected his ability to understand and answer questions in an interview with the police. The expert is uniquely positioned and qualified to provide evidence regarding language disorders among Northern Indigenous persons like the accused. 

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The Accused, Mr. Soulier, is from South Indian Lake in northern Manitoba and is a member of the O-Pipon-Na-Piwin First Nations Band. This matter is a follow-up decision regarding the admissibility of expert evidence.The context is a voir dire to determine the voluntariness of the Accused’s police statement. The defence tendered an expert report and viva voce evidence of psychologist, Dr. Ducharme, on the issue of whether and how a severe language disorder might have affected Mr. Soulier’s ability to understand and answer questions in his interview with the police. It was previously determined that Dr. Ducharme’s proposed evidence was logically relevant to the issue of voluntariness of Mr. Soulier’s statement (R v Soulier, 2020 MBPC 4).

Dr. Ducharme’s proposed evidence is that Mr. Soulier has a severe language disorder first diagnosed by a school psychologist in 2015, that the language disorder would have persisted in 2018 at the time he was interviewed by the police, and that it affected his ability to understand and respond to questions in the police interview to the extent that the information he provided in the interview is unreliable.

At the time of the alleged offence on March 18, 2018, he was in an adapted Grade 12 program. He always had difficulty in school and usually had educational assistants working with him. In February 2015 he was referred to a psychologist for an assessment because of the learning challenges he was facing. Through various standardized testing, it was determined that Mr. Soulier’s intelligence was artificially depressed due to his severe deficits in language skills. He was diagnosed with a severe language disorder. Adaptations and remediation can assist a person who has a language disorder, but the language disorder cannot be improved.

Dr. Ducharme has a PhD in Clinical Psychology and has worked as a clinician, supervisor and professor since 1996. Of particular relevance, he has worked with First Nations’ organizations and clients in northern Manitoba for several decades. He has published many papers and publications, presented at conferences and trained many doctors and clinicians. Since 2001 he has worked extensively in First Nations communities in northern Manitoba, especially as additional funding and services have been offered as a result of Jordan’s Principle. He testified that he has conducted cognitive testing approximately 2000 times. Over 70% of the clients have been First Nations people; 50% of the clients have been First Nations people from the north.

Dr. Ducharme testified about the difference between an intellectual disability and a language disorder. It is very common therefore, for people with language disorders to experience depression and anxiety. Dr. Ducharme testified that the severe language disorder would have been present when Mr. Soulier was interviewed by the police in 2018, and it still exists today. Dr. Ducharme opined that the language disorder affects how Mr. Soulier receives and presents information. Mr. Soulier does not have a significant intellectual deficit. Dr. Ducharme testified that Mr. Soulier understands language at a 10-year-old level. He testified that although 10-year-olds can engage in general conversation, if the language becomes “deeper”, or emotion is added to the mix (because emotions impact how we receive and express information) it goes beyond the capability of the average 10-year-old.

To be voluntary, a statement must not be provided in circumstances of oppression and must be the product of an operating mind. The modern rule with respect to voluntariness encompasses the negative right not to be tortured or coerced into making a statement, as well as the requirement that the person have an “operating mind.” Generally, all relevant factors and circumstances should be considered in terms of determining whether a statement is voluntary (R v Oickle, 2000 SCC 38 (“Oikle”)). It is recognized that the determination of oppressiveness has a subjective component. In other words, would a person in the circumstances of the accused experience the conditions as oppressive (Oickle; R v Bohemier, [2002] MJ No 313 (QB))? The Court has watched the police interview with Mr. Soulier and reviewed the transcript. At points in the interview, Mr. Soulier is crying, curled up in the fetal position, banging his head on the wall and appears to be generally distressed. The evidence about Mr. Soulier’s language disorder and whether he understood the police officer and communicated what he wanted to communicate to the officer is legally relevant to whether his statement was voluntary.

The Court will allow Dr. Ducharme’s evidence, however, with the noted exceptions, on the basis that he is not analyzing the police questions so much as providing expert opinion about the likelihood of the subject not understanding. He is not being asked to provide an analysis of the reliability of the statement and whether it is a false confession. The Court is satisfied in considering the legal relevance of the evidence, its necessity, reliability and the absence of bias, and that the benefits of admitting this evidence outweigh its risks.

West Moberly First Nations v BC, 2020 BCSC 1665

With a few exceptions, the Court declined to compel the parties to provide further responses to demands for particulars in West Moberly’s lawsuit challenging the Site C hydro project. Most of their points of contention with respect to the pleadings should be addressed through discovery. 

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The plaintiffs, West Moberly First Nations and Roland Willson on his own behalf and on behalf of all other members of West Moberly First Nations who are beneficiaries of Treaty 8 [collectively “West Moberly”] seek, among other things, to prohibit the defendant, the British Columbia Hydro and Power Authority, from building a hydroelectric dam and related facilities along the Peace River in northeastern British Columbia, known as the Site C project [“Project”] on the grounds, among others, that the Project infringes their rights under Treaty 8 (West Moberly First Nations v British Columbia, 2018 BCSC 1835).

The parties have been directed to develop a case management plan that would see the trial completed ahead of reservoir inundation, which was then scheduled for fall 2023. In this matter, out of the most recent round of amendments to the pleadings, there are six separate applications under the Supreme Court Civil Rules by which each of the parties seeks further and better particulars of their opponents’ pleadings [“Amended Notice of Civil Claim” or “NOCC”].

The Amended NOCC advances, among other things, new allegations as to the nature of the infringement of Treaty 8 that is alleged; breaches of various duties alleged to be owed by the defendants under the Canadian Charter of Rights and Freedoms and the United Nations Declaration on the Rights of Indigenous Peoples. The Amended NOCC also advances new private law causes of action based on alleged breaches of fiduciary duty, trespass, nuisance, riparian rights, unjust enrichment, waiver of tort and the tort of conspiracy. The subject matter of the claim has been expanded to include all development activities in West Moberly’s traditional territory, including the previous dams built along the Peace River. The amendments have also expanded the scope of the remedial relief sought, so that West Moberly now seeks, in addition to a prohibitive injunction permanently halting the project, a mandatory injunction to restore the land to its former state and damages, including disgorgement of all revenues that the defendants have received from the operation of the dams from their inception.

Although the parties agree on the general principles of law that must inform the Court’s analysis, they disagree on their application to the many contentious demands that are in issue. They join issue in many cases on the question of whether the applicant party is seeking particularisation of the facts that the pleading party intends to prove at trial, as opposed to the evidence that will be called to prove them. The Court refuses to compel the parties to provide further responses to the outstanding demands for particulars, with a few exceptions, due to that what is sought is evidence that is more properly explored through discovery.

Okanagan Indian Band v Johnston, 2020 BCSC 1749

The Court granted a one-year stay against the Band’s application for summary trial against a former member in relation to an interest in reserve land her late aunt bequeathed to her. The stay will give the defendant time to appeal the rejection of her membership application in another proceeding, although she will have other hurdles to surmount beyond membership before she can obtain a legal interest in the lot.

Indigenous Law Centre – CaseWatch Blog

The defendant, Marilyn Johnston, was a former member of the plaintiff, Okanagan Indian Band [“OKIB”] but is not a present member. Currently, she is a registered Indian of the Nak’azdli Whut’en Indian Band in Fort St. James, B.C. Ms. Johnston was bequeathed property on the reserve from her aunt who died in 2013. The plaintiff, the OKIB, is a band within the meaning of the Indian Act, and is the beneficiary of six reserves set aside for its use and benefit by the federal Crown pursuant to s 18 of the Indian Act. Okanagan Reserve No. 1 is one of the reserves set aside for the OKIB. Section 50 of the Indian Act prevents Ms. Johnston from inheriting her aunt’s property. The OKIB says that she must therefore vacate the property and Okanagan Reserve No. 1 [“Reserve”].

Ms. Johnston applied to transfer her membership back to the OKIB, and has been taking steps since then to reinstate her membership in the OKIB. She originally transferred her band membership from the OKIB in 1988 to enhance her credibility and trust with the community members she worked with in the victim services program. She had moved to that area in approximately 1976 and worked there in the social service sector. It was always the defendant’s intention to return from the Nak’azdli Whut’en Indian Band to the OKIB, as she has extensive ties to the Reserve.

When the defendant first contacted the OKIB in 2002 to transfer her membership, she was advised that the OKIB was in the process of adopting a new band membership transfer policy. OKIB said that it would process her application and she would be registered as a member. An internal band memo in 2012 stated that the defendant “has fulfilled all the requirements to apply for transfer to” the OKIB. It resolved that the defendant “has been accepted into the membership” of the OKIB, however, the transfer was not processed.

There is an issue between the parties as to whether the membership requirement in s 50 should be interpreted as being a member of the band at the date of the testator’s death, or whether it is retrospective and can be cured by membership granted after the date of death of the testator. The usual process under s 50(2) of the Indian Act where a beneficiary is unable to inherit the lands is for the lands to be sold to a band member and the proceeds of the sale provided to the beneficiary. Should the lands not sell, the lands would revert to the OKIB pursuant to s 50(3).

In 2019, the OKIB reconsidered the defendant’s application, but denied the defendant’s application for membership on the basis that she displayed aggressive and threatening behaviour to the OKIB staff and guests and that she would not make a positive contribution to the community. The defendant says she did not commit the behaviour or acts alleged and that there is no reasonable basis to deny her membership. The defendant appealed the OKIB Band Council decision to deny her membership with a formal application to the Protest Unit of ISC pursuant to the OKIB’s Band Membership Transfer Policy and s 14.2(1) of the Indian Act [“Protest”].

The Protest was sent by registered mail and accepted. The defendant has not yet received a reply. The basis for the Protest is that the decision to deny the transfer of membership to the OKIB was made without proper consultation and was significantly delayed. Subsequently, the plaintiff filed this Notice of Application. The defendant filed her application seeking a stay of proceedings to permit the membership process to complete, by way of appeal if necessary.

The Court has inherent jurisdiction to grant a temporary stay in a proceeding before it (Law and Equity Act, s 8(2); RJR-MacDonald Inc v Canada (AG), [1994] 1 SCR 311 [“RJR-MacDonald”]. There is a serious question to be determined (RJR-MacDonald). In the Court’s view, there is an intrinsic link between the membership application issue and the plaintiff’s claims against the defendant. In the event that she becomes a member, there will likely be the two hurdles identified by the plaintiff, the retrospectivity of the operation of s 50, and the permission of the Minister pursuant to s 49. Irreparable harm would be occasioned to Ms. Johnston if the stay was refused. The second branch of the test is met by the defendant (Dixon v Morgan, 2020 BCCA 200).

In considering the balance of convenience, it is important to note that the defendant first applied to OKIB for a transfer back of her membership in 2002. The decision denying the application was made in 2019. In the intervening time, Ms. Johnston returned to live with her aunt in 2009, and her aunt died in 2013. Internal band documents indicate that in 2012 there was no impediment to approving the membership application. There were many attempts made by Ms. Johnston to communicate with OKIB and further her application throughout the years from 2002 to 2019. The lack of certainty of the future of the Lots lies at the feet of OKIB as a result of their delays. The prejudice to the defendant is far greater than that to the OKIB (RJR-MacDonald). The stay is granted with the length of one year.

R c Esau, 2020 QCCQ 5044

The Court issued a suspended sentence and a three-year probation order for a 54-year-old Cree woman found guilty of trafficking in cocaine and possession of cocaine for the purpose of trafficking. The Court took judicial notice of the increasingly disproportionate numbers of Indigenous women in Canadian prisons. It found the circumstances of Ms. Esau’s life to be harrowing, including recurring experiences of domestic violence, forced marriage to a sexually, physically, and psychologically abusive husband in her Pentecostal community, and periods of homelessness. The Gladue report and the Pre-Sentence Report highlighted the need for participation in treatment and healing programs. 

Indigenous Law Centre – CaseWatch Blog

Marion Esau, a 54-year-old Indigenous woman from the Cree First Nation, pleaded guilty to charges of having trafficked in cocaine and having had cocaine in her possession for the purpose of trafficking. A Pre-Sentence Report and Gladue report were prepared. Ms. Esau was from a large family from the same biological parents. The family had problems with alcohol, and violence was common in the home. Suicide was rampant, indeed one of her brothers committed suicide at the age of 14. Furthermore, the family followed a traditional lifestyle, placing little emphasis on schooling. Her father and several members of her family attended Indian residential schools.

Because her parents are Pentecostal, Ms. Esau was forced into marriage at the age of 16. Her mother was the one who chose her husband, an uneducated man who lived primarily in the woods. During her marriage, she had four children, and was subject to extreme domestic violence. Isolated, friendless, and unable to see even her parents, she considered suicide. When she left her husband, she also had to leave her children behind. She went to social services for help, but did not receive any. After leaving her husband, she became involved with another man but also experienced severe violence in that relationship. Her current spousal relationship is not violent, but they were homeless.

Ms. Esau has a criminal record going back to 1999, when she was 34 years old. Her prior offences are related primarily with her periods of homelessness and substance abuse. The offences were mostly assault, threats, and theft, and they resulted in occasionally supervised probationary sentences, community work, and fines. She accepts full responsibility for her actions and has shown a good capacity for introspection and an acceptable degree of empathy, both for her community and individually. In the probation officer’s opinion, Ms. Esau must take part in various treatment and programs to heal the wounds caused by her past life. The author of the Gladue report emphasized that Ms. Esau is worried about her husband and daughter if she is sent to prison. Her daughter sometimes gives her some respite by helping her take care of her son, who is epileptic and an alcoholic.

The Court notes that Ms. Esau, as an Indigenous woman, had been victim of violence as it has been discussed in The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls. Without setting aside the other principles of sentencing, the Court notes the importance of the principle in section 718.2(e) Criminal Code. In cases involving Indigenous offenders, consideration should be given to all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or to the community. The Court finds that a suspended sentence of 36 months with restorative justice measures to be an appropriate sentence.