R v Grandinetti, 2020 ABQB 416

Experiences of racism is a Gladue factor, and there is relevance of credible employment opportunities for the Aboriginal accused that has informed the design of a fit and proper sentence in this matter.

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Mr. Grandinetti was closely involved in the process of creating fraudulent documentation which he used to effect registration of six stolen trailers in his own name in order to facilitate the transfer of the trailers to others, including at least one innocent purchaser. He also physically possessed each of the stolen travel trailers, and knew each was stolen. He was not charged with a “possession offence” in respect of two of the trailers. He trafficked two of the travel trailers he knew were stolen. As well, he possessed two of them for the purpose of trafficking them.

Mr. Grandinetti’s crimes are not accurately described as sophisticated or involving a high degree of planning, at least not on his part. He was not charged with the theft of any of the six travel trailers with which he was involved and the evidence presented did not suggest he was involved in any theft. The actual mechanism of the deception in which he participated was relatively simple. He did not invent or design it.

Even before the sentencing principle established by s 718.2(2)(e) of the Criminal Code and considering Gladue factors, the circumstances of Mr. Grandinetti’s offences do not require that priority be given to deterrence, denunciation and separation over the other purposes of sentencing, rehabilitation, reparation and promotion of a sense of responsibility.

Mr. Grandinetti is the child of an Italian father and a Cree mother. He has a younger brother and an older half brother. As a child Mr. Grandinetti witnessed his father being physically abusive to his mother. His parents divorced when he was 15. When Mr. Grandinetti was 17 years old and in high school, his mother was murdered by his cousin. Evidence at the murder trial indicated that the cousin had been paid by Mr. Grandinetti’s father to murder his mother. There was an ongoing child support arrears dispute between Mr. Grandinetti’s parents at the time.

The Gladue Report indicates that Mr. Grandinetti’s brothers reported that their grandmother attended residential school and that the experience caused her to be “a mean and angry person at times”. She struggled with alcohol. But Mr. Grandinetti’s younger brother credits the grandmother with keeping the family together.

Mr. Grandinetti’s father forbade him from participating in Cree cultural activities and tradition, and not even to reveal his Cree heritage to anyone. He learned to attach shame to that heritage. The Gladue report writer noted that Mr. Grandinetti has strong and positive support from his brother and his brother’s family. There are culturally relevant and mainstream healing resources available to him which he has never attempted to access, in part, due to the shame of his Cree heritage instilled in him by his father.

Mr. Grandinetti is sentenced to a global 18 months of that includes 4-6 months incarceration, with the rest to be served in the community pursuant to a conditional sentence order, followed by a three year probation order. Upon his employment, he is to pay restitution.

 

Cunningham v Alberta (Métis Settlements Land Registrar), 2020 ABQB 301

Appeal dismissed. The Métis Settlements Act establishes membership requirements for the purpose for establishing a Métis land base. Although unfortunate, the appellant is not eligible to have Indian status and be a member of his Métis Settlement.

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Mr. Cunningham spent almost his entire life on the Peavine Métis Settlement, including having a home and raising a family. However, he applied for Indian status in 1988. Although regretting the decision, he was unable to get his Indian status revoked. Mr. Cunningham has requested a judicial review of a 2018 decision of the Registrar of the Métis Settlements Land Registry [“Registrar’s Decision”].

The reasons for this decision is the conflict of Mr. Cunningham’s Indian status membership made 27 years ago. The Registrar did confirm that when the Peavine Métis Settlement approved Mr. Cunningham’s application for membership in 1991, the council acted contrary to s 78(2)(c) of the Métis Settlements Actbecause Mr. Cunningham was ineligible to become a member under s 75.

The Métis Settlement Act establishes membership requirements for Métis Settlements for the purpose of establishing a Métis land base, as reflected in the Membership List maintained and updated by the Registrar. The legislation was held to be constitutional by the Supreme Court of Canada (Alberta (AAND) v Cunningham, [2011] 2 SCR 670). The Métis Settlements Act does not does not establish eligibility or membership criteria for other purposes (L’Hirondelle v Alberta (Minister of Sustainable Resource Development), 2013 ABCA 12).

The problem is that the different existing legislative schemes exclude an Indian, except for certain exceptions which are not applicable to Mr. Cunningham, from membership in a Métis settlement (Gift Lake Métis Settlement v Alberta (Aboriginal Relations), 2019 ABCA 134). The Registrar is neither required to address each and every piece of evidence nor to address each and every aspect of Mr. Cunningham’s history and relationship with the Peavine Métis Settlement.

As for the 27 years from when Mr. Cunningham applied for Indian status to the 2018 Registrar’s Decision, if the doctrine of laches applied in this matter, the previous error in the 1991 Registrar’s Decision would be perpetuated into the future and the administrative error would override the will of the legislature in the Métis Settlements Act. As long as a statute is in effect, it is no defence that it has not been enforced or correctly applied for many years (Château-Gai Wines Ltd v Institut national des appellations d’origine des vins, [1975] 1 SCR 190).

Laliberte v Day, 2020 FCA 119

Appeal dismissed. The motion judge made no reviewable error in granting the carriage of a proposed class proceeding to a representative plaintiff on behalf of Métis and Non-Status Indian groups affected by the Sixties Scoop.

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The Sixties Scoop was a federal program under which Status Indian, Inuit, Métis, and Non-Status Indian children were taken from their parents and placed in non-Indigenous foster homes or put up for adoption. This appeal concerned the carriage of a proposed class proceeding on behalf of Métis and Non-Status Indians affected by the Sixties Scoop. In the settlement of the Sixties Scoop litigation approved in Riddle v Canada, 2018 FC 901, and Brown v Canada (AG), 2018 ONSC 3429, Status Indian and Inuit Sixties Scoop survivors were only included.

Two motions were brought and heard together in the Federal Court seeking carriage. One motion sought carriage for a proposed representative plaintiff in Day v AG of Canada, represented by two law firms based in Toronto [“Day action”]. In the order under appeal, the Federal Court granted carriage to the plaintiff in the Day action, and stayed the other three actions [collectively as the “LMO action”]. The order was the first contested carriage order issued by the Federal Court. Counsel for the LMO action submit that the motion judge committed both errors of law and palpable and overriding errors of fact in granting carriage to the plaintiff in the Day action.

The motion judge found Mr. Day to be a better representative plaintiff because he reflected the type of circumstances and damage that is common to both the Métis and Non-Status Indian groups and was a textbook claimant and a mirror for both Indigenous components of the litigation. Counsel for the LMO action submits that the motion judge’s treatment of this factor amounted instead to imposing a requirement that the representative plaintiff be typical of the class (Western Canadian Shopping Centres Inc v Dutton, 2001 SCC 46).

The Court does not agree that in going on to consider Mr. Day’s circumstances and the nature of the damage that he claims, the motion judge improperly imposed a typicality requirement. The motion judge instead treated the dispute as one that would be litigated to its conclusion, and recognized that Mr. Day personified some of the worst consequences of the Sixties Scoop. His circumstances and the damage he claims was an advantageous platform for a claim on behalf of the class.

The factors that may be considered in a carriage motion are not ends in themselves. Rather, they are means of assisting the court, in the unique context of each case, to determine the best interests of the class (Mancinelli v Barrick Gold Corporation, 2016 ONCA 571; Strohmaier v KS, 2019 BCCA 388; and McSherry v Zimmer GMBH, 2012 ONSC 4113). Not only are these factors not exhaustive; they are also not watertight compartments (Quenneville v Audi AG, 2018 ONSC 1530; Winder v Marriott International Inc, 2019 ONSC 5766; and Rogers v Aphria Inc, 2019 ONSC 3698).

One of the comparisons the motion judge drew was between the litigation experience of the two sets of counsel. He found that both have extensive class action experience, both have experience in the Sixties Scoop and residential schools class actions, and both have experience acting for Métis people, but counsel in the Day action have experience acting for Non-Status Indians as well.

The motion judge saw as leap-frogging the addition of Non-Status Indians to the class definition in the LMO action after the carriage motions had been scheduled. In the carriage motion context, “leap-frogging” refers to an attempt by one contender for carriage to improve its position after the motion has been scheduled by taking the benefit of the work of another contender; for example, by a copycat amendment to pleadings (Mancinelli et al v Barrick Gold Corporation et al, 2015 ONSC 2717, affirmed 2016 ONCA 571 [“Mancinelli”]). A rule has been rejected that carriage motions be decided based on a “freeze frame” as of the date the motion is filed, however, the court should be suspicious of conspicuous new activity after the filing of a carriage motion or of any attempts to ‘leapfrog’ a lagging action ahead of a more advanced one (Mancinelli).

R v Lemieux, 2020 ONCJ 54

The Court did not believe the offender’s late, uncorroborated and inconsistent claim that he is a person of First Nations heritage. He is sentenced to 26 months for the possession of child pornography contrary to s 163(4) of the Criminal Code.

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Just over a year prior, the offender entered a guilty plea to a single count that he did, without lawful excuse, possess child pornography in the form of videos and images contrary to section 163(4) of the Criminal Code. The Crown elected to proceed by way of indictment. Leading up to sentencing, there was preparation of a pre-sentence report, a Sexual Behaviours Assessment and a Gladue report.

The Ottawa Police Service initiated an investigation into the possession and sharing of suspected child pornography by following the information of an IP address that identified and led them to locate the offender’s home address. A search warrant was executed on the residence and the offender was placed under arrest. A desktop computer was seized as well as an external hard drive. There were 6617 images of child pornography and 611 videos of child pornography.

Although Gladue factors could be relevant to a sentencing for possession of child pornography, the offender brought this claim forward especially late in the proceedings after he was expressly provided opportunity to claim First Nations heritage. He was adopted at six months into a Franco-Ontarian family and therefore the source of ethnicity would be his birth parents. He could only recall his mother’s first name. The Court did not ultimately believe the offender’s late, uncorroborated and inconsistent claim that he is a person of First Nations heritage.

Overall, in the circumstances in this case, the record did not reflect a situation where credit should be given due to the restrictive nature of the bail conditions. Further, the court was not convinced on a balance of probabilities that the offender had been making serious and consistent efforts towards rehabilitation and thus not able to receive any credit.

An important case in Ontario involving sentencing for the possession of child pornography is R v Inksetter, 2018 ONCA 474 [“Inksetter“], and in the present matter the offender’s collection was nowhere near as large and while vile, did not seem to have been of the same level of depravity as that in Inksetter. He was cooperative with police while arrested, he plead guilty, complied with the conditions of his bail and had been a model resident at the John Howard Bail Bed Program. However, there was no clear indication the offender was truly remorseful. His cavalier attitude towards treatment lead the court to believe he had no true insight into his pedophilia. The age of children, size of collection and nature of acts depicted were aggravating. The most aggravating was his prior criminal record which consisted entirely of sexual assaults against children. This single factor alone would make a reformatory sentence inappropriate. Based on the foregoing, a sentence of twenty-six months was appropriate with the ancillary orders put forward by the Crown granted.

R v HO, 2020 ONCJ

Gladue factors were asserted, but due to very little information beyond the assertion of Aboriginal status, it had limited weight in this case. The offender was sentenced to a global jail sentence of 8 months, following a period of probation for 18 months.

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The offender was found guilty after trial of five sexual offences contrary to the Criminal Code. The sexual assault conviction was stayed when the parties made submissions on sentencing pursuant to the rule in R v Kienapple, [1975] 1 SCR 729. Defence counsel challenged the constitutionality of the remaining four conviction’s mandatory minimum sentences arguing a sentence involving a mandatory minimum would be grossly disproportionate and sought an order declaring their unconstitutionality under s12 of the Charter based on the offender’s learning disability.

The aggravating factors in this case included the fact the victim was 13 years of age. There were numerous offences including kissing, touching of her breast, request for sexual acts, sharing graphic sexual videos and the ultimate request for intercourse. The offender had a related youth record for engaging in similar conduct with a child victim. He knew right from the outset the victim was 13 years old. His acts could not be considered “grooming”, as they escalated in severity. A potential aggravating factor that was missing from the proceedings, was the impact on the victim as she chose not to provide a victim impact statement. His moral blameworthiness remained high based on his conscious decision to engage with a 13-year-old for two weeks and engaging in conduct after completing a program where he would have known about the moral boundaries of intimacy with partners.

The offender is an adult, but is still young and inexperienced. These are his first adult convictions. The offender had the full support of his family and community as evidenced by many letters of support. He had taken positive steps towards rehabilitation by addressing his learning disability, but the learning disability itself was not a mitigating factor. There are many collateral consequences for the offender. Gladue factors were asserted, but due to very little information beyond the assertion of Aboriginal status, it had limited weight in this case.

Balancing the aggravating and mitigating factors, and having regard to an undue sentence having a disproportionate impact on the offender’s learning disability, a sentence of imprisonment of 8 months was warranted for the child luring offence. Having arrived at this conclusion, the Court did not have to consider a s12 Charter analysis of the 6-month mandatory minimum, as the sentence imposed was not grossly disproportionate in the circumstances of the offender and this case. Accordingly, the s12 Charter challenge as framed on this record was dismissed.

 

Engstrom and Ragan v Peters First Nation Band Council, 2020 FC 286

Application allowed. Peters First Nation Band Council is ordered to take all steps necessary to grant full Band memberships to the Applicants.

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The Peters First Nation Band Council [“Council”] rejected the Applicants’ respective applications for band membership. This matter is the second application for judicial review seeking relief in connection with the denial of their memberships.

The first application was granted, but the Court declined to express an opinion about the merits of the Council’s decision in denying membership to the Applicants. However, it was found that the Council had acted unfairly by failing to inform them in advance of the factors that would be taken into account in deciding their applications. There was also concern regarding the Council’s failure to provide substantive reasons for its decision. The matter was accordingly remitted to Council for reconsideration, but once again, the applications were refused.

The Court was not able to ascertain the exact motives of the Council for denying Band memberships to the Applicants. It can assess, however, the Council’s stated reasons for denying those memberships to determine whether those reasons had the mark of rationality, intelligibility and justification. The focus of judicial review is on the reasons provided by the decision-maker in support of its decision. According to the Supreme Court of Canada, reasonableness review “must be on the decision actually made”, not the reasons that could have been made (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [“Vavilov”]). Robust judicial review is about outcomes and a decision-maker’s reasoning process in getting to an outcome. Both must be reasonable in light of the legal and factual constraints that bear on the decision. A primary legal constraint is the governing statutory scheme. It is not open to a decision-maker to disregard the applicable rules. There is no such thing as absolute or untrammelled discretion (Roncarelli v Duplessis, [1959] SCR 121).

A decision-maker may have some room to interpret the rules that apply to a matter before it but that exercise must be consistent with the text, context and purpose of the provision (Vavilov). Where the words employed are precise and unequivocal, their ordinary meaning will usually be determinative. It is not open to the decision-maker to adopt an “inferior” interpretation merely because it is plausibly available and expedient; or to “reverse-engineer” to get to a desired outcome (Vavilov). The express governing rules that apply to the Council’s membership decisions are contained in the Peters Indian Band Membership Code [“Code”]. The Code was adopted by the Band in 1990 and replaced the band membership provisions that had been previously contained in the Indian Act.

In rejecting the applications of the Applicants, it is clear that the Council did not consider itself bound by the membership criteria set out in the Code. It was not open to the Council to make up its own membership rules to supplement the explicit criteria that were adopted in 1990 when the Band took control of its memberships. The Council has acted unlawfully, unfairly and in bad faith in rejecting the membership applications of the Applicants. The Council has repeatedly shown itself to be unfit to decide these matters and there is no reasonable expectation that fairness and reason will prevail if this matter is remitted to the Council again. The Council is directed to take all the steps necessary to grant full Band memberships to the Applicants.

MCW v BC (Director of Child, Family and Community Service), 2019 BCPC 289

An Indigenous mother’s application to restrict access visits organized by the Director with community members that are not the foster family is dismissed.

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The Director in this matter has applied for a continuing custody order [“CCO”] with respect to four children of Indigenous heritage, that were placed in the Director’s temporary care. The biological mother seeks to prohibit the Director from permitting persons that are related to the children and are connected to an Indigenous community, from having access to the children, for fear that the children may be traumatized now that they are used to their non-Indigenous foster family.

MCW is the biological mother of five children. All of her children’s lives have been subjected to temporary placement and interim orders, including orders of supervision while in the care of their mother intermittently. The foster parents of the four youngest children have remained supportive of the mother and have provided the children a loving environment. While the mother is supportive of transferring custody of her children to the foster parents, there has been resistance from the Lake Babine Nation, as they are opposed to Indigenous children being placed in non-Indigenous homes. The Ministry, along with assistance from the Lake Babine Nation, attempted to cultivate a relationship between one of the children and her half-sister. The mother described the removal of one of her children to spend time with the half-sister as traumatic, and feared the Ministry was attempting to break up the four youngest children. The Director submitted that facilitating visits between the two siblings did not constitute abuse or harm. Cultivating this connection is part of the Director’s obligation to maintain or facilitate contact with the extended family of a child in care.

Due to the contentions MCW had surrounding these proceedings, she filed an application for an order restricting access to the children. The mother relied on ss 2(a) and 98(1)(c) of the Child, Family and Community Service Act [“CFCSA”]. The Director referenced Bill C-92 to justify the CCO. Bill C-92 establishes that, when determining the best interests of an Indigenous child, primary consideration is given to the child’s physical, emotional and psychological safety, security and well-being and emphasizes Indigenous children’s right to stay with their families and communities and grow up immersed in their cultures.

Facilitating visits between the one child and her half-sister fell squarely within the Director’s legislated rights, duties and responsibilities as her custodian and guardian. While the visits got off to a rocky start, the submissions that the transitions were then trouble-free were accepted. The visits did not constitute the type of explosive, abusive, or intimidating conduct that s 98 of the CFCSA was intended to target. Accordingly, the mother’s application for an order restricting the access to her children was dismissed.

R v Vandal, 2020 BCPC 11

The sentence imposed on the accused, who is of Indigenous heritage, must denounce and deter his and others conduct, as the many offences committed were serious.

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The accused is a 46-year-old Indigenous male with a long-standing drug addiction and has in excess of forty convictions for break and enter and a total of sixty criminal convictions. The court has had the benefit of a Pre-Sentence Report (PSR), a Gladue Report, and to the offender’s credit, he has made repeated efforts to conquer his long standing drug addiction. In addition to accessing Indigenous programming in custody, the accused has established connections with Elders, regularly attends sweats, healing circles and weekly smudges. The Gladue Report summarized his childhood abuse, parental instability, early introduction to drug use and his alienation from his Indigenous background. In mitigation, it is significant that the offender pleaded guilty, which represents some expression of remorse.

However, there are many aggravating factors. His lengthy criminal convictions demonstrates that previous efforts to deter him have been unsuccessful, and his history does not support a finding that he is truly dedicated to his rehabilitation. As well, two of his offences were committed while bound by a recognizance. In the circumstances, the offences combined with his personal circumstances demands a sentence that denounces and deters. A sentence of six years less the time served will adequately denounce and deter while still being proportionate. The sentence imposed will provide an opportunity for the offender to continue with his culinary training while permitting him to engage with Indigenous programs.

 

Nogdawindamin and AW, BS and BFN, 2020 ONSC 40

Appeal granted. Findings of Indigenous heritage requires more than a simple statement of self-identification from an applicant. The need for an evidentiary foundation of connection is a prerequisite for any finding under s 90 of the Child, Youth and Family Services Act.

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This is an appeal by the Batchewana First Nation [“Batchewana”] on an order of a motions judge that determined on an interim basis, whether a child in need of protection had an Indigenous background as per s 90 of the Child, Youth and Family Services Act [“Act”].

This Court agrees with Batchewana’s position that the motions judge erred when he decided that, based upon the evidence before him, the child in question had sufficient connection to Batchewana so as to be affiliated with the First Nation for purposes of the Act. Batchewana has not found a community connection of the child to the First Nation. The concern is that the motion judge’s decision could open the floodgates for any claimant to effectively acquire band status or other benefits.

There is considerable precedent to suggest that findings of Indigenous heritage require more than a simple statement from an applicant (Catholic Children’s Aid Society of Toronto v ST, [2019] OJ No 1783; Bruce Grey Child and Family Services v ABC, 2018 ONCJ 516; Children’s Aid Society of the Regional Municipality of Waterloo v CT, [2017] OJ No 6324 (ONCA); Children’s Aid Society of Ottawa v KF, 2015 ONSC 7580). Indigenous membership has expanded to include self-identification, however, there still must be evidence in relation to the child so a determination can be made as to whether access is beneficial and meaningful to them.

In this instance, the evidence relied upon by the motions judge does not meet the necessary threshold. The only evidence is the self-identification of the father, that is found to be insufficient evidence as per the case law. The need for an evidentiary foundation is a prerequisite for any finding under s 90 of the Act. Were this not the case, it is conceivable that numerous people coming before the courts could self-identify as a member of Batchewana, leaving the band with insufficient resources to assist those in need, which constitutes an error in law (Housen v Nikolaisen, 2002 SCC 33). Appeal granted. The matter is remitted to the Ontario Court of Justice for a new hearing.

Beaucage v Métis Nation of Ontario, 2020 ONSC 483

Motions dismissed. Canada has entered into a recent agreement with the Métis Nation of Ontario that brings closer the recognition of it as a government entity. However, this agreement does not retroactively apply to a past decision on membership, nor does the agreement subject it to public law remedies while it was still considered a private law entity.

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The applicant asks for a review of a decision that quashed his application for judicial review. In 2017, he was denied membership in the Métis Nation of Ontario [“MNO”]. He sought judicial review of that decision. The motion judge determined that MNO is a private voluntary organization incorporated without share capital under the Corporations Act. While MNO aspires to be recognized as a government with public law responsibilities to its citizens in Ontario, “that objective has not yet been achieved.”

The motion for fresh evidence concerns the Métis Government Recognition and Self-Government Agreement between MNO and Canada [“2019 Agreement”] that did not exist at the time of the hearing that quashed his application for judicial review. Parties are in agreement that admitting fresh evidence on appeals applies to this motion (Palmer v R, [1980] 1 SCR 759). But because this agreement did not exist at the time of the 2017 hearing, the only question is whether the 2019 Agreement would have likely affected that result.

For the 2019 Agreement to have affected the result, either: 1) it must be seen as confirming that in 2017 MNO was already a government; or 2) the entry into the 2019 Agreement must be seen to have made a change to the status of MNO that retroactively applies to the impugned decision. Neither argument can succeed. The fact that MNO was closer to being a government, but had still not yet arrived at formal recognition could not have affected that outcome. If, on the other hand, the 2019 Agreement made a substantial change in 2019 such that MNO is now a government, there is still not basis that the 2019 Agreement has a retroactive effect on the 2017 decision concerning the applicant.

It is inconsistent for the court to find that MNO is subject to the burden of judicial review under the public law as it if were already a government, while MNO is denied the benefits of governmental recognition under Canadian law. It would be invasive and disrespectful for the public law to subject the MNO to judicial review as if it were a government while at the same time denying recognition of such status.