R v Reddick, 2020 ONCA 786

Appeal dismissed. There is no error on the sentencing judge’s imposed sentence of an Indigenous offender who committed a robbery with an imitation firearm. Gladue principles was given appropriate consideration, along with hardships arising from the Covid-19 pandemic related lockdowns in determining a fit sentence.

Indigenous Law Centre – CaseWatch Blog

Mr. Chad Reddick entered a guilty plea to robbery and using an imitation firearm while committing an indictable offence. This was an extremely serious offence committed by a 33-year-old man with a significant, albeit largely non-violent, criminal record. The sentencing judge imposed a two-year sentence for the robbery, to be followed by the one-year mandatory minimum sentence for the firearm offence. The sentencing judge also granted the Crown a 12-month non-reporting probation order.

Mr. Reddick appeals the sentence imposed, claiming that the sentencing judge erred in applying Gladue principles and failed to pay attention to the sentencing objective of rehabilitation. He argued that there has been a change in the law that makes a conditional sentence possible for the robbery conviction, and that there has been a high frequency of lockdowns Mr. Reddick has experienced related to the Covid-19 pandemic since the sentence was imposed (R v Sharma, 2020 ONCA 478 [“Sharma”]).

Mr. Reddick is remorseful and has commited to change, however, his appeal is dismissed. Despite the fact that Aboriginal Legal Services declined to provide a Gladue report because he and his family members lacked specific information about his Aboriginal ancestry, the sentencing judge accepted that Mr. Reddick was Indigenous and drew on relevant information in the presentence report in order to comply with s 718.2(e). She applied the Gladue principles appropriately and sensitively, as well as considered rehabilitation.

Even if this Court was to accept that after the Sharma decision a conditional sentence may be imposed on a robbery conviction where a weapon is involved, there is no error by the sentencing judge that would permit resentencing Mr. Reddick using this “new” sentencing tool. As well, pursuant to s 742.1 of the Criminal Code, a conditional sentence cannot be imposed unless the accused is being sentenced to less than two years of imprisonment. The trial judge determined that the least restrictive sentence she could impose was two years. Despite hardship arising from lockdowns which can qualify as a collateral consequence that warrants consideration during sentencing (R v Morgan, 2020 ONCA 279), the sentencing judge already took the current Covid-19 pandemic into account on the hardship of the sentence imposed. The Court is not satisfied on the evidence that circumstances have changed to the point where additional credit should be given.

SL (Re), 2020 ABPC 194

The Court rejected a mother’s application for a hearing on the alleged non-compliance of the Director of Children’s Services with An Act Respecting First Nations, Inuit & Metis Children, Youth and Families, SC 2019, c 24 in context to an application for a Temporary Guardianship Order over her five children. She alleged the Director failed to provide notice of the apprehension to her and the Indigenous governing body of her children. The Court found it impossible to ascertain who or what comprises an Indigenous governing body and held there was no factual basis or statutory authority for the application.

Indigenous Law Centre CaseWatch Blog

The Director of Children’s Services [“Director”] has applied for a Temporary Guardianship Order [“TGO”] with respect to five siblings. There has been a long-standing history between the family and Children’s Services dating back to 2008. Concerns centered around substance abuse and domestic violence.

In 2020, police responded to the family’s home after being alerted to domestic issues between the parents who had engaged in a night of drinking. Ten days after a safety plan was put in place requiring the parents to remain sober, the police once more attended the home. The parents and one of the adult sons were found to be intoxicated and displayed aggressive behaviour towards the officers who responded to complaints. At the time, all five children were present in the home and were apprehended as there was no sober adult who was able to care for them.

Four days after the apprehension took place, the Director served the Dene Tha band designate with formal notice of its application for an Initial Custody Order, as well as a TGO. To date, no one has appeared on behalf of the band designate. The parents consented to an Order for Initial Custody. Both were represented by counsel at the time. The substantive application for a TGO remains outstanding.

The mother has now asked the Court for a hearing to rule on the Director’s alleged non- compliance with An Act Respecting First Nations, Inuit & Metis Children, Youth and Families, SC 2019, c 24 [“Act”]. Her concern relates to the alleged failure of the Director to provide notice prior to the emergency apprehension of the children.

The Child, Youth and Family Enhancement Act [“CYFEA”] is provincial legislation enacted by the Government of Alberta. While large swaths of the legislation confer power to the Provincial Court in granting certain orders, the Provincial Court does not have exclusive jurisdiction over every aspect of the CYFEA. In the case at bar, the Director’s substantive application seeks temporary guardianship of the children, thereby the Court has jurisdiction over this matter.

The Act is federal legislation which applies to Indigenous children in the care of the Director. The federal legislation does not articulate what remedies, if any, are available when a party is non-compliant with or in breach of the statute. Similarly, the CYFEA does not set out what consequences may arise if the Director fails to provide notification of a child’s apprehension. The CYFEA does permit an individual who is affected by a decision of a director to request a review. If the guardian is dissatisfied with the Director’s review, they may appeal to the Appeal Panel and thereafter to the Court of Queen’s Bench (RP v Alberta (Director of Child Youth and Family Enhancement), 2016 ABQB 306).

It would appear that the mother did, in fact, have notice that the children were to be apprehended as she was present at the time that the police made its decision. The federal legislation does not specify how or in what form the notice should be given. As such, oral notice is sufficient given the circumstances of this case. Any requirement of notice pursuant to s 12 of the Act must always consider the best interests of the children. In instances where law enforcement is required to respond in the middle of the night and finds that children are in harm’s way due to the condition of the parents, the primary principal step taken by peace officers must always be to protect the said children. Such a step is consistent with the children’s best interests.

As well, the Court finds it impossible to ascertain who or what comprises an Indigenous governing body. The children belong to the following Indigenous governing bodies: Dene Tha First Nation in Alberta; Frog Lake First Nation in Alberta; Witchewan Lake First Nation in Saskatchewan; and Onion Lake first Nation in Saskatchewan. The term Indigenous governing body is defined in s 1 of the federal legislation as a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982.

Neither legislation provides any guidance on how determination of a child’s band affiliation is made, which is integral to the Director’s ability to identify which Indigenous governing body or bodies should be contacted. The Act does not address instances where a child has hereditary connections to several bands, nor on the required strength of any hereditary connection. In this case, the Dene Tha band designate has not appeared in Court, nor made any representation despite the provision of notice to it. The mother has not provided any additional information, including which children belong to which bands; the manner of the connection; or whether any of the children belong to more than one band. Jurisprudence on this topic provides limited guidance to the case at bar. If the Indigenous governing body wishes to participate, it would need to satisfy the Court that it is in fact authorized to act on behalf of the group, community or people. The mother has failed to establish any nexus between her rights and those of an Indigenous governing body.

Bruno v Samson Cree Nation, 2020 ABQB 504

The Court certified a class action against the Samson Cree Nation for members from whom payment of per capita distributions, special pays, and interest were withheld during litigation and disputes over members added by virtue of Bill C-31 in 1987. The majority of common issues were approved as sought, or as modified by the Court or agreed to by counsel, and can proceed to trial. 

Indigenous Law Centre – CaseWatch Blog

For most of its history, the Indian Act based entitlement to Registered Indian status and band membership on descent through the male parent. This system of eligibility for Indian registration based on descent through the male line was in effect until Bill C-31 was passed in 1985, in response to the equality commands of the Charter. Women who lost their Registered Indian status before 1985 for “marrying out” were restored to status by Bill C-31. These women, and any children they had with their non-Indian husbands, could be registered as Indians pursuant to s 6 of the Indian Act, enacted by Bill C-31.

Before Bill C-31, the Government of Canada maintained all Band lists, and determined Band eligibility on the basis of its statutory and administrative rules about parentage and marriage. After Bill C-31, this dual role for Canada continued with respect to many Bands. However, Bill C-31 also gave Bands the option of taking control of their membership by establishing their own membership codes.

The Plaintiff, Bonnie Lee Bruno [“Bruno”], is a member of the Samson Cree Nation [“Nation”]. Her name was added to the Band List of the Nation maintained by the Minister of Indian Affairs and Northern Development [“Minister”], under the provisions of Bill C-31. Previously enfranchised Indian women and their children became members of Indian Bands on lists administered by the Minister, unless First Nations developed band membership rules approved by the Minister on or before June 28, 1987. The Court found that, on the unchallenged evidence before it, that this was not done in this matter, thus giving primacy to the list maintained by the Minister on which the Plaintiff, and allegedly others in the class, had status effective June 29, 1987. 233 individuals were added as at that date.

Prior to the passage of Bill C-31, there was considerable controversy within many First Nations over, among other things, questions over whether the women who had “married out” should be accepted back into the community and as Band members. After Bill C-31 came into effect, there were numerous challenges before the courts regarding Band membership and the equality rights issues raised by the history of enfranchisement and the attempted solution of Bill C-31.

This class proceeding relates to a claim of class members from whom, after they were added to the Band List of the Samson Cree Nation [“Nation”] by virtue of Bill C-31, the Nation withheld payment of per capita distributions and Special Pays, and interest, from 1988 to 1995 per the Plaintiff, and lesser or greater time periods as to other class members. Beginning in June 1987, the Plaintiff and other individuals’ names were entered onto the Samson Nation Band List maintained by the Minister pursuant to Bill C-31, but that the Class Plaintiffs only became members of Samson Nation about 1995 when Samson recognized and admitted them as members of the Samson Nation.

The first criterion for certification is that the plaintiff’s pleading discloses a cause(s) of action. No evidence is required, but rather the facts, as pleaded, are assumed to be true (Hunt v Carey Canada, [1990] 2 SCR 959). The pleading is to be read generously (Cloud v Canada (2004), 73 OR (3d) 401 (CA)). The standard test for unjust enrichment is: an enrichment of the defendant; a corresponding deprivation of the plaintiff; and the absence of a juristic reason for the enrichment (Garland v Consumers’ Gas Co, [2004] 1 SCR 629).

At this stage, the Plaintiff merely needs to allege an arguable cause of action, which she has done. Proof of the allegation is for trial. The Court finds that a cause of action for unjust enrichment has been established for the purpose of certification. It is determined that this is an appropriate case to proceed by way of a class proceeding, and the majority of 16 common issues and 4 subclass common issues are approved as sought, or, in some cases, with modification.

R v Laforge, 2020 BCSC 1269

The Court rejected a joint sentencing proposal of 27 months in prison followed by probation for arson related to the burning of a vehicle and a convenience store. Counsel failed to meaningfully consider the Gladue principles and the sentence itself would contribute to systemic discrimination against Indigenous people rather than amelioration. A sentence of time served in custody was imposed instead, which will now be followed by a probation order. 

Indigenous Law Centre
Indigenous CaseWatch Blog

Mr. Laforge drove his vehicle into the front window of a 7-Eleven convenience store in Salmon Arm, British Columbia. He then exited his vehicle and poured gasoline into the cab. After everyone left the store, Mr. Laforge then lit his vehicle on fire. The fire spread quickly, causing extensive damage.

Mr. Laforge had been in custody for 548 days by the date of his sentencing hearing. Both counsel gave a joint proposal for a 27-month custodial sentence plus three years of probation. Mr. Laforge has Métis heritage and has been diagnosed with a schizophrenic illness. He did not want to hurt anyone or burn the 7-Eleven down, but to bring attention to his struggles, in particular, his delusional belief that he was being interfered with by intrusive brain-altering and perception-altering technologies.

The Court had the benefit of two well prepared reports, namely a pre-sentence report (“PSR”) prepared by a community corrections officer and a forensic psychiatric report, however, a Gladue report was not submitted. Mr. Laforge suffered abuse as a child and bullying in highschool for his Indigenous appearance. He used drugs extensively and eventually dropped out of school. He has only recently learned of his Métis ancestry, as his father was impacted by the “Sixties Scoop”. He has limited work experience and has a history of mental health problems, posing a moderate to high risk to reoffend without assistance from treatment and supports.

Restorative sentences may be more appropriate for Indigenous offenders, but taking a restorative approach will not necessarily lead to a reduced sentence. Generally, the more serious or violent the crime, the more likely it will be, as a practical matter, that the terms of imprisonment will be the same for an Indigenous and a non-Indigenous offender.

Arson is a serious offence. For sentencing purposes, arsonists can generally be divided into four types: pyromaniacs or persons suffering from mental illness; people who burn for no special reason; vandals; and people who burn for revenge or financial gain. Of these, persons who are suffering from mental illness are often considered to have the lowest level of moral blameworthiness while those who commit arson for revenge or financial gain are generally considered to have the highest (R v KH, (1994) 146 NBR (2d) 372 (CA)).

Given Mr. Laforge’s Indigenous heritage, mental health issues and highly reduced level of moral blameworthiness, the joint submission seems overly harsh, in that it would bring the administration of justice into disrepute or would otherwise be contrary to the public interest (R v Anthony-Cook, 2016 SCC 43).

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.

Indigenous Law Centre CaseWatch Blog

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.

Indigenous Law Centre CaseWatch Blog

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.

Indigenous Law Centre – CaseWatch Blog

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.

Indigenous Law Centre
Indigenous CaseWatch Blog

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.

Indigenous Law Centre – CaseWatch Blog

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.

Indigenous Law Centre – CaseWatch Blog

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.