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.

 

Peepeetch v R, 2019 SKQB 132

Application granted for a publicly-funded Gladue report. A Gladue report, however, is not required on every occasion on which an Indigenous offender is being sentenced and a full Gladue report is not the only possible or appropriate source of such information.

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The applicant was convicted after a trial on charges of impaired driving and refusing to provide a breath sample. During the trial, he also pled guilty to a charge of possession of brass knuckles, a prohibited weapon. Following the trial, sentencing was adjourned so that a Pre-Sentence Report [PSR] could be prepared. Since the applicant is of Aboriginal heritage, the court directed that the report should contain information, such as Gladue factors (R v Gladue, [1999] 2 CNLR 252; R v Ipeelee, [2012] 2 CNLR 218), particular to Mr. Peepeetch’s circumstances as the Gladue analysis is mandated by the Criminal Code. The applicant’s counsel submitted an application for a publicly-funded Gladue report as the applicant did not have the resources to cover the costs himself.

It was determined that when evaluating whether a publicly-funded Gladue report should be ordered, the following parameters must be met: i) the assistance of the Gladue report must be essential to the judge discharging their judicial function in the case at hand; and (ii) the authority to order for the preparation of Gladue reports should be used sparingly and with caution, in response to specific and exceptional circumstances (Ontario v Criminal Lawyers’ Association of Ontario, 2013 SCC 43; R v Sand, 2019 SKQB 18). Such circumstances exist where a PSR prepared by a probation officer is not capable of providing the information necessary to conduct the proper analysis under ss. 718.2(e), and there is no other effective method of obtaining the necessary information and bringing it before the court in a timely fashion.

When deciding if a publicly-funded Gladue report was appropriate in this case, the court considered a number of factors including the nature of the analysis called for by ss 718.2(e), the sufficiency of the information provided in the current PSR, and if that report is lacking the availability and likely effectiveness of other measures that may be taken to address the deficiencies. Further, the court decided that a Gladue report is not required on every occasion on which an Indigenous offender is being sentenced and a full Gladue report is not the only possible, nor the only appropriate source of such information. Whether or not such a report is required is based on the context of the situation. It is the duty of the sentencing judge to ensure that the information they receive is relevant and necessary for such analysis. Overall, it was determined that the information contained in the PSR report was not sufficient for the court to carry out its judicial function in sentencing the applicant and thus, a publicly-funded Gladue report was ordered.

R v McGinn, 2019 ONSC 4499

Joint submission for sentencing granted. After considering the Gladue report and at the offender’s request, part of the sentence will be spent in the penitentiary to take advantage of programming specific to Aboriginal offenders.

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After a search of his vehicle, the offender was arrested for drugs and weapons offences. The nature of the drugs involved in this case, are highly addictive substances and this was an aggravating factor. The offender also had a lengthy criminal record, which is reflective of an individual with a substance abuse problem.

The mitigating factors included a guilty plea, as well he expressed insight into his problems. Drug and alcohol abuse, as well as suicide and mistreatment within his family were present in his experiences as a child. His childhood and adolescence were traumatic for reasons that were not of his making. The drug abuse that he fell into has contributed to his involvement within the criminal justice system. The offender recognized that drug addiction had led him down a bad path. His paternal grandparents remain supportive of him and are willing to have him live with them on his release from jail.

The offender’s Aboriginal background no doubt had an impact on him but he appears to have benefitted from involvement in programs for Aboriginal offenders while in custody. The joint submission was accepted, modified slightly to accord with the offender’s request to be housed in the penitentiary to take advantage of programming. The offender was sentenced to three years and nine months in jail, less days spent in presentence custody.

Maliseet Grand Council et al v New Brunswick et al, 2019 NBQB 198

Motion granted. The two applications for judicial review are dismissed. The applicants have not established standing. Judicial reviews are not an appropriate forum for how the dispute regarding s 35 Aboriginal rights is framed.

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In a bid to enhance winter tourism in northern New Brunswick, the Province decided to improve the snowmobile trail system, by proceeding with the development of a snowmobile grooming hub in 2015 at Mount Carleton Park. The two judicial review applications arose in the context of this decision made by the Province. The initial judicial review focused on whether the Province’s decision to develop the grooming hub was in violation of the Province’s Parks Act and to first conduct an environmental impact assessment. The second judicial review application challenged the Province’s decision to exempt work on, and the replacement of, two bridges from a subsequently conducted environmental impact assessment. In addition, all of the judicial review applicants alleged a breach of Aboriginal and Treaty rights. These lands were, according to the judicial review applicants, never ceded by treaty.

Central to this dispute is the Mascarene Treaty of 1725/26, the so-called Peace and Friendship Treaty. The Mascarene Treaty represented a negotiated end to the Dummer’s War between the British and the Wabanaki Confederacy. The Eastern Wabanaki Confederacy are a confederation of First Nation and Native American people from (present day) Eastern Canada and the State of Maine, USA. The Mascarene Treaty of 1725/26 was signed by the numerous traditional chiefs of the Eastern Wabanaki Confederacy. This included traditional chiefs of the Wolastoqewiyik (Maliseet) peoples located in present day New Brunswick. The Wabanaki Confederacy is said to also be in the process of “being rebuilt”.

Having carefully considered the substantive submissions of the parties and having reviewed all of the numerous authorities in the context of both Aboriginal and Treaty rights litigation across Canada, the Court concluded that the Province’s motion to dismiss the two applications for judicial review will succeed. It was determined the applicants on judicial review have not established standing, which is fatal to both judicial reviews. As well, judicial reviews are not an appropriate forum to determine the existence of an Aboriginal section 35 rights-bearing collective.

Counsel for the judicial review applicants acknowledges these to be unique circumstances, however, it does not require this Court to adopt unique and novel legal constructs. “Aboriginal rights exist within the general legal system of Canada” (R v Van der Peet, [1996] 4 CNLR 177 [R v Van der Peet]). There is ample and longstanding authoritative support for the notion that both Aboriginal and Treaty rights are collective or communal in nature (Haida Nation v British Columbia (Minister of Forests), [2005] 1 CNLR 72). While such rights may be exercised, in certain circumstances, by individual members of the community, these rights remain collective or communal (R v Powley, [2003] 4 CNLR 321). While the judicial review applicants initially based their claims against the Province over its failure to consult them, to a great degree, on “Aboriginal rights”, they now premise their relief on a breach of the Mascarene Treaty of 1725/26.

In the matter before this Court, the judicial review applicants believe a fair interpretation of the wording of the Mascarene Treaty allows for them to seek relief by way of judicial review for a breach of the Maliseets people’s rights. While they do not seek any declaratory relief specifically recognizing them as an authorized Aboriginal or Treaty rights holder for the Maliseet Nation, they do seek an order against the Province requiring it to fulfill a duty to consult prior to further work on the project continuing. Ostensibly, the judicial review applicants rely on the wording “any Indian” found in the Mascarene Treaty of 1725/26 so as to suggest they have “constitutional standing” to proceed. While creative, there is no merit to this argument. Even if this Court were satisfied with the specific interpretation of the wording found in the Mascarene Treaty of 1725/26, and in the manner now espoused by the judicial review applicants, there is an absence of evidence any of the judicial review applicants actually or actively pursued the very rights alleged to have been impacted and at the allegedly affected parts of Mount Carleton Park.

Even if the Court is in error with respect to standing, this dispute, as framed, is not appropriate for judicial review. A judicial review application should not be turned into a hearing de novo or an appeal. The Court’s role on judicial review is not to consider the matter anew or adjudicate conflicting expert opinions based on new evidence, but to review the decision on the basis of the material before the decision-maker. Aboriginal rights must be proven by tested evidence; they cannot be established as an incident of administrative law proceedings that centre on the adequacy of consultation and accommodation. To permit this would invite uncertainty and discourage final settlement of alleged rights through the proper processes. Aboriginal rights claims require that proper evidence be marshalled to meet specific legal tests in the context of a trial (R v Van der Peet; Delgamuukw v British Columbia, [1998] 1 CNLR 14; and Mitchell v MNR, [2001] 3 CNLR 122).

There are a few cases where standing was made an issue. In those few cases, it was held that the Aboriginal party must show it, in fact, has recognized authority to represent an Aboriginal collective, or portions thereof, for purposes of section 35 constitutional reconciliation or litigation. In this matter, the judicial review applicants argue that they need not do so as the Mascarene Treaty of 1725/26 expressly provides for their standing. Any Treaty interpretation, especially cases with such potentially broad application as in this case, must take into account all of the Aboriginal parties to the Treaty and the government(s). The judicial review applicants have chosen to proceed, not only without evidence of current representational authority for the collective Maliseet Nation, but they have done so in a forum to the exclusion of numerous recognized Maliseet entities, such as the First Nations communities in New Brunswick who quite likely may be affected by this proceeding and the relief sought.

Brake v Canada (AG), 2019 FCA 274

Appeal allowed in part. Action is certified as a class proceeding that will determine important common questions affecting over 80,000 people regarding the Qalipu Mi’kmaq First Nation Band’s stringent membership criteria.

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This is an application to overturn an order by the Federal Court that refused to convert Mr. Brake’s application for judicial review into an action under ss 18.4(2) of the Federal Courts Act [“Act”] and certify it as a class proceeding under Rule 334.16(1) of the Federal Courts Rules [“FCR”]. Mr. Brake passed away just before this Court rendered judgment, but his application for judicial review continues. This Court grants the appeal in part, sets aside the order that denies certification under Rule 334.16(1), and grants the motion for certification.

The Qalipu Mi’kmaq First Nation Band [“Band”] was recognized as a Band under the Indian Act. Under a 2008 Agreement, there was higher than expected enrollment. Canada, along with the Federation of Newfoundland Indians, made it more difficult for people to qualify as members of the Band through changes under a 2013 Supplemental Agreement. Using a paragraph in the 2008 Agreement to authorize making these changes, many like Mr. Brake no longer qualified for Band membership. He had applied for judicial review of the rejection of his application, and others, under the new criteria. Alleging procedural unfairness, substantive unreasonableness and lack of good faith, he seeks, among other things, a redetermination of the membership applications under the original 2008 Agreement.

Mr. Brake followed what is described as the “Tihomirovs approach” (Tihomirovs v Canada (Minister of Citizenship and Immigration), 2005 FCA 308 [“Tihomirovs”]) procedurally in the Federal Court. This approach would transform his proceeding from an individual proceeding into a class proceeding. The goal was to seek both administrative law remedies against the decision and damages caused by the decision. The Federal Court declined to certify Mr. Brake’s proceeding as a class proceeding, reasoning that the issues raised in the proposed class proceeding be determined through a test case: Wells v Canada (AG), [2019] 2 CNLR 321 [“Wells”]. It cited Tihomirovs for the proposition that if the reason for conversion was to support an application for certification as a class proceeding and if certification were denied, then conversion should also be denied. Not only is the Federal Court’s decision in Wells only persuasive, not binding (Apotex Inc v Allergan Inc, 2012 FCA 308), but Mr. Brake did not consent to his claims being decided in Wells as a “lead case”, nor was there opportunity to make submissions or present evidence.

To seek both administrative law remedies and damages simultaneously, one must launch two separate proceedings. For example, an application for judicial review started by a notice of application and an action for damages started by a statement of claim. This has obvious ramifications for access to justice because it is difficult to prosecute one proceeding all the way through to judgment. Having more than one proceeding compounds that difficulty and can also result in unnecessary expenditure of judicial resources and conflicting results.

Rule 105 of the FCR permits the consolidation of multiple proceedings of any sort, allowing them to progress as if they were one proceeding governed by one set of procedures. Therefore, an application for judicial review can be consolidated with an action for damages. At the end of the consolidated proceeding, the Court issues two judgments, one for the application for judicial review and one for the action. Where appropriate, each judgment will give the relief available in each proceeding. The judgment in the application for judicial review will give administrative law relief and the judgment in the action will give damages. Rule 334.16(1) provides that a “proceeding” can be certified as a “class proceeding”. An application for judicial review that has been consolidated with an action can be a “proceeding” that can become a class proceeding under Rule 334.16(1).

There are three recognized ways in case law to certify consolidated judicial reviews and actions as class proceedings: 1) the Hinton approach is when an application for judicial review seeking administrative law remedies is started. A separate action for damages for the administrative misconduct is also started and the two are consolidated. If desired, certification of the consolidated proceeding as a class proceeding can be sought under Rule 334.16(1) (Canada (Citizenship and Immigration) v Hinton, 2008 FCA 215 [“Hinton”]); 2) the Paradis Honey approach where an action is started. In the statement of claim starting the action, both administrative law remedies and damages for the administrative misconduct are sought. But the entitlement to damages is pleaded as a public law cause of action for unreasonable or invalid decision-making (Paradis Honey Ltd v Canada (Attorney General), 2015 FCA 89 [“Paradis Honey”]); and 3) the Tihomirovs approach where an application for judicial review seeking administrative law remedies is started. A motion for an order permitting the judicial review to be prosecuted as an action under ss 18.4(2) of the Act is brought. Then the litigant brings a motion for certification as a class proceeding under Rule 334.16(1). In support of the certification motion, a proposed statement of claim is filed that simultaneously seeks administrative law remedies and damages. The Court determines the motions together.

Under the Tihomirovs approach, the draft, unissued statement of claim becomes the subject of a certification motion which is contrary to the text of Rule 334.16(1). It speaks of certifying an existing proceeding, not a proposed proceeding. Tihomirovs, however, remains good law (Miller v Canada (AG), 2002 FCA 370). Yet Tihomirovs sits uncomfortably within the Act, the FCR and associated jurisprudence. Tihomirovs needs to be tweaked to address these concerns so that it can fit more comfortably into the FCR. The Court should consider the proposed statement of claim as if it were finalized and filed, then assess whether the action and the application for judicial review, if they were consolidated, would meet the certification requirements under Rule 334.16. It should require that within a short period of time the proposed statement of claim be filed as the statement of claim, the action be consolidated with the application, and the consolidated proceeding be prosecuted as if it were an action. Under this revised approach, nothing is being converted to an action under ss 18.4(2) of the Act, consistent with the jurisprudence of this Court (Canada (Human Rights Commission) v Saddle Lake Cree Nation, 2018 FCA 228). Instead, the Court is attaching a term to its certification order allowing the consolidated proceeding to be prosecuted as if it were an action.

The revised Tihomirovs approach places the litigants in substantially the same position they would have been in if they followed the Hinton or the Paradis Honey approaches. It would be wise for parties in the future to follow these latter approaches, the Paradis Honey approach being the simplest of all, when applying to certify a class proceeding where they seek simultaneously the invalidation of administrative decision-making and damages for wrongful administrative decision-making as in this matter.

R v Terris, 2019 NSPC 11

Courts must give special consideration to restorative approaches to sentencing, particularly in cases involving Aboriginal persons, but not scrutinize minutely a person’s Aboriginal status for the purposes of applying the provisions of 718.2 (e) of the Criminal Code.

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The accused pled guilty to a single count of possession of cocaine for the purpose of trafficking. This case follows soon after the sentencing decisions which this court rendered in R v AL, 2018 NSPC 61 and R v Livingstone, 2018 NSPC 62 that are currently under appeal. There are some differences between these cases and this matter such as the circumstances of the offences and the biographies of the accused. The court, however, imposes the same sentence upon the accused in this matter as in R v AL and R v Livingstone because the seriousness of the offences and levels of moral culpability are similar.

The accused is only 28 years old, has no record and enjoys abundant family support. He did well in school, is in a common-law relationship and has children that he is involved with. He is also employed and described as a reliable worker. The presentence report informed the court that the accused holds a status card from the Confederacy of Nova Scotia Métis. He has never resided in an Aboriginal community, does not speak an Aboriginal language or is connected to an Aboriginal culture.

It is not for the court, however, to scrutinise minutely the Aboriginal status of a person for sentencing and applying appropriately the provisions of 718.2(e) of the Code (R v McInnis, 2019 PECA 3). Sentencing courts must give special consideration to restorative approaches to sentencing, particularly in cases involving Aboriginal persons (R v Gladue, [1999] 2 CNLR 252; R v Ipeelee, [2012] 2 CNLR 218). A person’s Aboriginal status, however, depends on more than producing a card (Daniels v Canada (Indian Affairs and Northern Development), [2016] 3 CNLR 56, [“Daniels”]). Daniels makes clear that Aboriginal rights are community-held rights inherent in a distinct, rights-bearing collective. It is unclear if the accused self identifies as Aboriginal. The accused’s status was not argued or advanced by his defence counsel, and it is not necessary for the court to decide the validity of it.

The accused’s conduct might be seen as more voluntary and calculated for profit and less driven by dependency or need. The accused had no aggravating factors under the statute, nor was there evidence of weapons or violence, and he cooperated with police. This combined with an early guilty plea, bail compliance and good prospects for rehabilitation, is why the court suspends the passing of sentence, and places the accused on probation for three years with conditions.

NC v Kunuwanimano CFS and Fort Albany First Nation, 2019 CFSRB 7

The decision of the Respondent to refuse the adoption of three Indigenous children placed in the Applicant’s care is confirmed under s 192 of the Child, Youth and Family Services Act.

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The Applicant requested a review pursuant to s 192 of the Child, Youth and Family Services Act, [“Act”]. This application refers to a decision made in favour of the Respondent, Kunuwanimano Child and Family Services, [“KCFS”] who refused the Applicant’s application to adopt three children who were placed in her care for two years. The children were apprehended from the care of their parents by the North Eastern Ontario Child and Family Services and made Crown Wards without access for the purpose of adoption. The children’s mother, who is deceased, and their father have membership with the Fort Albany First Nation [“FAFN”]. The children’s files were transferred to the KCFS, an Indigenous child welfare agency and were subsequently placed in a foster home. After three years the foster home could no longer care for the children due to uncontrollable circumstances. The children were then placed in the care of the Applicant and remained in her care for almost two years until their abrupt removal.

The Child and Family Services Review Board’s [“CFSRB”] determination is made in accordance with the expanded definition of the test for the best interests of the child set out in s 179(2) of the Act. In addition to giving prominence to the child’s views and wishes, as well as the recognition of Indigenous cultures and connections to their community, the preamble of the Act also acknowledges that children are individuals with rights to be respected and voices to be heard.

SV, who is the most recent placement for the children, is a member of the Moose Cree First Nation and grew up alongside the children’s father. The evidence is clear that SV has strong connections to the children’s community and cultural heritage. Her practices are traditional in her home where the children are introduced to hunting and fishing and that this was consistent with a way of life, rather than simply an activity. She has taken significant measures to connect the children to their extended family with whom she is well acquainted.

In contrast, the Applicant has no significant ties to the children’s First Nations community or extended family. The Applicant knows very little about the cultural practices of the children’s Indigenous community, or the Illilu people. It was clear that she cares deeply for the children and wishes to adopt all three of them. Her evidence, supported by report cards and the agency’s own documents, was that they were well-cared for in her home and had developed a bond with her and her family. The views and wishes of the children also confirmed the strong bond that the children have with the Applicant. The abrupt removal of the children from her care was traumatic for her and also for the children.

The CFSRB, however, is also mindful of the view of family and community that is expressed by the FAFN and the emphasis on customary care alternatives for Indigenous children under the Act. It is also through the current placement that the children are reconnecting with their father, albeit not as a primary caregiver. While SV is not a direct relation to the children, it is clear that she has strong historical and current connections to the children’s extended family and is committed to facilitating their relationships with family as much as possible. The Applicant simply cannot offer the same commitment and ease of connection to family as SV.

Of considerable importance to our determination is the connection between the siblings. They have always been together and expressed a wish to remain that way. The CFSRB finds that to separate the Children at this time would not be in their best interests and along with all the above factors, favours confirmation of the Respondents’ position. The CFSRB, however, is also of the view the children were not given the opportunity to properly say good-bye to the Applicant and suggested that the KCFS facilitate an acknowledgement and contact to bring some finality to these unresolved feelings.

Children’s Aid Society of Algoma v AW, 2019 ONCJ 242

Motion granted. A child in temporary custody with a Children’s Aid Society is determined to be First Nations. Although the father is not eligible for membership, the First Nation believes that the father, and therefore the child, is affiliated with that community.

The Children’s Aid Society of Algoma [“Society”] has brought a motion regarding a less than one year old child identification as a First Nations child and if the child identifies with the Batchewana First Nation [“BFN”]. Relief sought also includes an order that adds the BFN as a party respondent to this proceeding and an order that transfers the conduct of the application to the Nogdawindamin Family and Community Services [“NFCS”] as applicant. Thus, the proceeding shall continue as though commenced by NFCS in replacement of the Society, with an order transferring the interim care of the child from the Society to the NFCS. The band representative of the BFN, with consent of all parties, made submissions that they be heard given the potential ramifications of the outcome of the motion.

The Society brought a protection application before the Court and an interim without prejudice order was made that placed the child in its temporary care and custody. The parents have access to the child that is subject to a mandatory minimum number of hours along with multiple terms and conditions applicable to the parents during the exercise of any access. Initially the parents did not claim to be Indigenous to the Society upon its involvement. The Society, at that time, understood that the child was not eligible for registration or identified with any First Nations, Métis or Inuit band or community. The mother filed an addendum to the plan of care that stated the father found out he has some family with Indigenous connections, including an association with the BFN. The mother indicated that she herself practices various traditional Indigenous teachings and self-identifies with the BFN on that basis. The BFN Representative for Child Welfare [“Band Rep.”], however, did not find a community connection for the father and he is not eligible for membership with the BFN. However, that does not exclude the possibility of affiliation as the BFN believes that the father is affiliated with that First Nation.

The preamble of the Child and Youth Family Services Act [“CYFSA”] is intended to be inclusive and to facilitate broad interpretations in order to recognize cultural, hereditary and traditional connections. The intent of the legislation, as read by this Court, is to avoid creating rigid barriers that would discourage persons from self-identifying. It is to promote self-identification and pride in being a First Nations person, even if this did not occur for one or more generations in the past. Under the CYFSA, it is possible for a child to identify as First Nations and not be a member of an Indigenous band or community (Children’s Aid Society of Ottawa v NP). A child’s identification as First Nations, regardless of membership, is important as there are many considerations under the CYFSA for Indigenous children.

As well, s 21 of the Ontario Regulations 156/18 [“O Reg 156/18”] directs the Court to accept hearsay evidence on this issue (Children’s Aid Society of Algoma v CA; CP and the Batchewana First Nation). This does not mean that all rules of evidence and some standard of proof does not apply. There must be evidence in relation to the child as to whether access is beneficial and meaningful to the child (Children’s Aid Society of the Regional Municipality of Waterloo v CT). Subsection 2(3) Article 1 of the CYFSA indicates that the person who has an ethnic, cultural or creedal ties in common with the child or the parent or relative of the child, is a member of the child’s community. Article 2 speaks of a person who has a beneficial and meaningful relationship with the child. The words “beneficial and meaningful” are used nine times in the CYFSA, however, those words are not defined by the CYFSA. While this proceeding is regarding the quality of the care being provided by the parents for the child, the interim without prejudice order provides the parents and the child with access to each other. In its protection application, the Society sought an order that each parent have access with the child. There has been no motion to terminate that access for either parent or that this access has been detrimental to the child. This indicates that there is some beneficial and meaningful relationship between each parent and the child. Accordingly, while it may seem intuitive, this supports a finding that each parent is a member of the child’s community.

Each parent has provided evidence of self-identification as an Indigenous person. The mother has provided evidence that she practices traditional Indigenous teachings and has an “association” with the BFN. There is no evidence, however, that the mother has any link beyond her personal choice and the evidence does not assist in creating an identification link between the child and the BFN (Children’s Aid Society of the Regional Municipality of Waterloo v CT). There is evidence that the father identifies as a First Nations person.

The O Reg 156/18 promotes the acceptance of hearsay evidence. The Court accepts the father’s evidence regarding his maternal grandfather and his own identification as an Indigenous person. Other evidence before this Court does not contradict that evidence and it is proof that meets the standard of being on a balance of probabilities. This is a recent awakening by the father, but it is not contradicted by any other evidence. The BFN intends to be inviting of the father and, in turn, the child. The BFN seeks to be involved in this proceeding and the level of involvement will be determined by the First Nation. It is appropriate that the BFN be added as a responding party in this proceeding and that the NFCS be substituted, in place of the Society, as the applicant. The Court finds the child is a First Nation’s child and the Society’s motion is granted. An order is made that the BFN is made a party to and respondent in this proceeding.

Catholic Children’s Aid Society of Toronto v ST and BF, 2019 ONCJ 207

The inability to name a child’s bands and First Nations, Inuit or Métis communities does not negate the initial determination that a child is a First Nations, Inuk or Métis child.

Wiyasiwewin Mikiwahp Native Law Centre

The Catholic Children’s Aid Society of Toronto [“Society”] has brought a protection application for SF, an 8-month-old child. The child is in need of protection pursuant to the Child, Youth and Family Services Act, 2017 [“the Act”]. At first the child was described as not a First Nations, Inuk or Métis child but the Court was not satisfied that it had sufficient evidence and adjourned the case for the Society to further explore the issue. After the matter returned to court, it was held that the child should be identified as a First Nations, Inuk or Métis child. The court is not precluded from finding that a child is a First Nations, Inuk or Métis child just because the child does not have any bands or First Nations, Inuit or Métis communities.

The child was brought to a place of safety due to concerns surrounding the parent’s mental health and capacity. The court endorsed that the Society must immediately investigate whether the child is a First Nations, Inuk or Métis child, based on information received from the mother. She stated that her mother had told her that she is of Métis background, but also that her mother had lied to her about many things, so she does not know if she is being truthful or not. The Society had not been able to connect with the grandmother, despite multiple efforts. Neither Indigenous Services Canada or any of the Métis organizations that were contacted had been able to confirm the family’s identity. The society did contact the great-grandmother, who confirmed that the family is Métis and that her mother was Indigenous, but that was all the information they had.

Once the court determines that a child is a First Nations, Inuk or Métis child, the second part of the statutory finding that must be made is to identify the child’s Indigenous bands or communities. There may be more than one band or community (Children’s Aid Society of Algoma v CA, 2018 ONCJ 592 [“CAS of Algoma v CA”]). The Act sets out that its paramount purpose is to promote the best interests, protection and well-being of children. First Nations, Inuit and Métis peoples should be entitled to provide, wherever possible, their own child and family services, and all services to such eligible individuals should be provided in a manner that recognizes their cultures, heritages, traditions, connection to their communities, and the concept of the extended family.

The court must apply the definition of First Nations, Inuit or Métis child set out in the Ontario Regulation 155/18 for the purpose of identification under the Act and the criteria is exhaustive. The court should take a broad view in interpreting if the child has a connection to an Indigenous band or community under the regulation. This seems to be in accordance with the spirit of the Act which tends to be more inclusive when it deals with Indigenous peoples. Subparagraph 1(c) of the Ontario Regulation 155/18 uses the words “there is information that demonstrates that”, which sounds like a clear invitation to the person making the s 90(2)(b) determination of identity to rely on information that is not necessarily “evidence”. It says nothing about the standard of such information (CAS of Algoma v CA).

However, to just say that anyone can put forth a claim and have it accepted without question would be an open invitation to abuse the administration of justice. It could cause considerable harm to children by delaying decisions affecting them and would be disrespectful to the First Nations, Inuit and Métis persons the Act is intended to include. While the inability of a person to name specific Indigenous bands or communities might be a factor in assessing the identification issue, it should not be determinative. The reality is that due to the Sixties Scoop, many Indigenous persons now have fractured memories of their Indigenous connections and it is likely that many will not be able to name specific bands or communities. Evidence or information will often come from memories of discussions with relatives and will often lack detail. Many will not be registered with any First Nations band or belong to any First Nations, Inuit or Métis organization. In many cases, neither will their parents. This does not necessarily preclude the court from making a finding that the child is a First Nations, Inuk or Métis child. The new legislative provisions are an opportunity for these children to reignite lost connections with their culture and heritage.

The court should take a broad view in interpreting if a child is a First Nations, Inuk or Métis child (CAS of Algoma v CA). This is an approach that is consistent with the statements made in both the preamble and purposes section of the Act. It is this court’s view that only a low threshold of reliable and credible evidence or information should be sufficient to make a finding that a child is a First Nations, Inuk or Métis child. The Act and regulations set out considerable rights and additional considerations for these children that recognizes their cultures, heritages, traditions, connection to their communities, and the concept of the extended family. It would be contrary to the purposes of the Act to disenfranchise these children. If a child’s Indigenous bands or communities cannot be identified, it is the rights that are set out in the Act that are not activated. However, many other additional considerations still apply to First Nations, Inuit and Métis children in the Act and its regulations that should not be extinguished just because the child’s Indigenous bands or communities cannot be named. The same best interests test applies on an adoption application.

The court received information from the great-grandmother that she identifies as a First Nations, Inuk or Métis person. However, a great-grandmother is not a relative as defined in the Act. The legislature put a limit on how far back the investigation about a child’s family’s First Nations, Inuit or Métis connections would go to two generations before the child. However, the grandmother is a relative, and despite her lack of cooperation with the Society, she provided specific information to the mother that she identified as Métis. The problem the court initially faced was that the mother claimed that the grandmother was not truthful. This is where the subsequent information provided by the great-grandmother became important. Essentially, the great-grandmother corroborated the information provided by the grandmother to the mother, by stating to the Society that the family is Métis and that her mother was Indigenous. The court finds that this evidence and information is sufficient to meet the low threshold required to find that the child is a First Nations, Inuk or Métis child.

Corneau v AG of Québec, 2018 QCCA 1172

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

The test set out in R v Powley for Métis rights requires that a Métis community’s distinct nature be sought out, but does not require that the underlying practices and traditions be distinct.

This case involved an application brought against Mr. Corneau, and other alleged offenders, for occupying sites on public lands without any property right, lease or occupancy permit contrary to s.54 of The Act Respecting the Lands in the Domain of the State (“the Act”). Mr. Courneau contested the application on the basis that he belongs to a Métis community which confers rights to occupy the alleged public lands. It was held at trial that Mr. Corneau did not meet the requirements of the test set out in R v Powley for Métis rights. Mr. Corneau has appealed the decision, calling into question the trial court’s assessment of: (i) the evidence following the identification of the historic Métis community; (ii) the existence of a modern community; (iii) the appellants’ membership in the modern community and (iv) the period of control. In the end, the Québec Court of Appeal (“the Court”) dismissed the appeals and ordered that Mr. Corneau abandon the sites and return the premises to their former condition.

The Court began by reviewing the R v Powley decision, which clarified the test for identifying a Métis community’s rights. It first began by observing that the term Métis is not a matter of genetics, but rather of culture and identity. As articulated by the Supreme Court of Canada (“SCC”), the term Métis “does not encompass all individuals with mixed Indian and European heritage; rather it refers to distinctive peoples who, in addition to their mixed ancestry, developed their own customs, way of life and recognizable group identity”. Furthermore, a Métis community are “a group of Métis, with a distinctive collective identity, living together in the same geographic area.” The Court then identified the constitutionally protected Métis rights as those rights subsisting in Métis communities that emerged between first contact and the effective imposition of European control. The focus therefore is on rights that existed “post-contact”, for example after a particular Métis community arose, but also “pre-control”, or before it came under the effective control of European laws and customs.

The Court then reviewed the factual matrix as presented by the trial court. The trial court found the evidence adduced by the appellants to be insufficient to establish an identifiable historic Métis community that would allow mixed individuals to be distinguished from their biological authors. This was decided after consideration of the evidence presented by historians, genealogists and anthropologists. It was also the opinion of the trial judge that even if there was a historic community of Métis tied to the land in question, there was no modern community holding the right being claimed. Finally, in consideration of the personal circumstances of Mr. Corneau, the trial judge found the evidence of self-identification with a Métis community unconvincing. The trial court observed that: (1) Mr. Corneau’s self-identification occurred later in life and was driven by opportunism; (2) that his ancestral connection did not, on the balance of probabilities, belong to an historic Métis community; and that (3) the absence of a cultural tie between the Métis organizations and his ancestral Métis community suggest that there is not, on the balance of probabilities, sufficient evidence of the existence of the right claimed.

The Court then set out the standard of review as requiring a palpable and overriding error standard for questions of mixed fact and law. It noted that, as per R v Van der Peet, courts must not undervalue the evidence of Aboriginal claimants simply because there is no evidence conforming to the evidentiary standards of other areas of law, such as a private law torts case. It also cited Mitchell v MRN, which highlighted that while Aboriginal claims must still be established on the basis of persuasive evidence, their forms of evidence must also be afforded equal and due treatment.

In respect of issue (i) and (ii), the Court agreed with the trial court that there was no historic Métis community, but upheld the appellants’ contention that the trial court applied the test too strictly. The Court observed that the test, as applied by the trial court, takes for granted that the practise and traditions of the community in question must be distinct, while the SCC only required that the distinctive nature be sought out. Nonetheless, this error is not determinative, as it does not change the conclusion of the Court that there was no historic community holding rights to be claimed. Specifically, the Court agreed that the appellants’ expert witnesses failed to meaningfully question the evidence of historian Russel Bouchard. Evidence from Bouchard was relied on to build the claim that the individuals from mixed marriages between Euro-Canadians and Indians defended their diversity as a cultural and identity marker. The respondents, however, presented evidence suggesting that such marriages did not result in a distinct community, but rather integration into the already established Montagnais community and later into Euro Canada. In the end, the practices or traditions must also be proved. While the Court does not directly address the issues of whether there exists a modern Métis community, they are not required to as they have concluded that no historic community existed.

In respect of issue (iii), the Court held that the trial court erred in their comparison of the historic Métis community of Sault Ste Marie with the alleged historic Métis community of Domaine du Roy and Mingan Seignory. In particular, the Court held that the trial court’s strict application of the factors of density and proximity is inappropriate. As stated by the Court, “it is possible to imagine that members of a historic community could settle in several separate locations while forming a single regional unit.”  An historic community can be regional and nomadic.

In respect of issue (iv) the Court agreed with the trial court’s contention that control over the territory in question occurred between 1842 and 1850. Both the appellants and the respondents contest this finding. The appellants argued that the correct time period ought to be after 1856 when Aboriginal people were displaced following the creation of reserves, relying on primitive land surveys between 1843 and 1860, indicated in the installation of a municipal regime and administration of justice, to support this position. The Court found, however, that they failed to submit sufficient evidence to illustrate a palpable and overriding error on the part of the trial court.

The respondents argued that the trial court erred in analyzing the evidence based on the legal criterion for control. The Court dismissed this position on the basis that the expert evidence relied on by the respondents mis-categorized the Domaine du Roi territory as one governed by the seigneurial land grant system, under which control was established between 1733 and 1767. Under cross-examination it was revealed that no primary or secondary sources refer to Domaine du Roi as a secondary estate. Instead, the Domaine du Roi was preserved for the fur trade and no land grants were offered in respect of it and ended in 1842 when the government included a condition in a renewed lease of the Hudson’s Bay Company that the government could have the land surveyed and could settle colonists in any part of the Domaine suitable for agricultural colonization. Thus, the Court found that the evidence supported the approach taken by the trial court.