R v Sabattis, 2020 ONCJ 242

Application dismissed. The applicant, a young Indigenous first offender, has not established that the mandatory minimum sentence results in a grossly disproportionate sentence for either herself or for other persons in reasonably foreseeable cases.

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A young Indigenous first offender was found guilty of impaired driving and operating a motor vehicle while her blood alcohol concentration exceeded 80 mg/100 ml of blood, contrary to s 253(1)(a) and s 253(1)(b) of the Criminal Code.

In this matter, the applicant submits that a curative discharge is most appropriate, but this remedy is not available because the Criminal Law Amendment Act allows Ontario to decline to proclaim the Criminal Code provision for a curative discharge into force. As a mandatory minimum sentence for a first offence, the applicant must pay a $1000 fine, and receive a one-year driving prohibition. The applicant alleges that the Criminal Law Amendment Act, violates the applicant’s s 15 Charter rights by allowing the provinces to opt out of the curative discharge provisions. This disregards Gladue principles, causing “differential treatment” of Aboriginal offenders and other members of society in the sentencing process. As well, she submits that the mandatory minimum sentence subjects the applicant to cruel and unusual punishment contrary to s 12 of the Charter. In respect of both alleged breaches, the applicant submits that the provisions are not saved by s 1 of the Charter and therefore seeks the imposition of a curative discharge as a remedy.

The Court finds that the applicant has not established that the mandatory minimum sentence results in a grossly disproportionate sentence for either the offender or for other persons in reasonably foreseeable cases. Similarly, the applicant has not established that the non-proclamation of the curative discharge provisions results in a grossly disproportionate sentence contrary to s 12 of the Charter. Given the finding that there is no violation of s 12 or s 15 of the Charter, the Court is bound by the mandatory minimum sentence. Using the relevant sentencing principles including Gladue principles, and having regard to the circumstances of the offence and of the offender, it is the Court’s view an appropriate sentence is a $1200 fine, a 15-month driving prohibition, and probation for a period of two years with the requirement that the offender attend counselling as directed by her probation officer related to her consumption of alcohol and other counselling as directed.

The fine and prohibition imposed is greater than the statutory minimums to recognize the need for denunciation and deterrence, the aggravating factors of the case, and to give effect to s 255.1, which provides that evidence of a blood alcohol concentration in excess of 160 mg/100 ml of blood is a statutorily aggravating factor. This non-custodial sentence, which includes two years probation with a requirement for alcohol counselling, recognizes the importance of rehabilitation for this youthful first offender and takes into account the restorative Gladue principles. The Court is satisfied that alcohol counselling is a necessary rehabilitative component of the sentence. This sentence is still at the lowest end of the range of what is appropriate given the aggravating features of the offence, but also reflects the significant mitigating personal circumstances of the offender.

R v JP, 2020 SKCA 52

Leave to appeal granted and appeal allowed from sentence. Pursuant to s 687(1)(a) of the Criminal Code, the sentence of an Indigenous offender for two robberies is varied. It is ordered he serve concurrent sentences of five years in relation to each of these two crimes, with a global sentence of eight years less credit for time spent on remand.

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This appeal concerns the proper sentencing of an accused who suffers from Fetal Alcohol Spectrum Disorder [“FASD”] and whose personal circumstances called for application of the principles set out in R v Gladue,  [1999] 2 CNLR 252 [“Gladue”]. The offender, who is of Indigenous ancestry, was convicted of being a party to two armed robberies. He also pleaded guilty to several other offences. For all of these crimes, he was sentenced to 17 years’ imprisonment, which was reduced by the sentencing judge to a global sentence of ten years less credit for time spent on remand.

The offender had an extensive criminal record with over 70 convictions that pre-dated these matters. A Gladue report was prepared that recounted the history of his family and community. The extreme poverty, minimal educational opportunities, and overcrowded and deficient housing experienced by the offender’s parents cannot be captured in a few words, but the outcome was a life of family dysfunction, substance and alcohol abuse, and violence.

The offender’s grounds of appeal must be examined in light of the applicable standard of review. He took the position in this Court, that the judge committed several errors in principle and, in any event, that the global sentence is demonstrably unfit.

The factors indicated the offender has reduced moral blameworthiness. These factors were overwhelming and their connection to the offences cannot be credibly denied. This is not a case where the connection between the “systemic and background factors that have contributed significantly to [the offender’s] circumstances, and to his appearances before the criminal courts of this province” is elusive. It is impossible not to see a direct connection between these factors and the specific crimes for which the offender was being sentenced. Cause and effect are not required, but the facts of this case come as close as most any situation could (R v Ipeelee, [2012] 2 CNLR 218). The Court determined the judge erred in principle by failing to account for the systemic and background factors (including FASD) that was earlier identified as having contributed significantly to the offender’s circumstances and his commission of these offences.

This Court cannot interfere with a sentence simply because a judge has committed an error in principle. It must also conclude that the error had an impact on sentence (R v Lacasse, 2015 SCC 64). In this matter, the impact of the judge’s error is evident from his treatment of the precedent he relied upon to identify a fit sentence. This Court has no hesitation in concluding that the failure to account for the offender’s reduced moral culpability had a decisive impact on the sentence the judge imposed in this case.

The judge determined that a fit sentence for each robbery was seven years’ imprisonment, running consecutively. In connection with a housebreaking offence, it was determined that a fit sentence to be two years’ imprisonment, consecutive to the sentences for the two robberies. It was determined that a fit sentence for the remaining crimes was 12 months, concurrent on all those offences, but consecutive to the robbery and housebreaking offences. All of this would result in a combined sentence of 17 years, which the judge reduced to a global sentence of 10 years’ imprisonment. This was achieved by directing that the robbery sentences be served concurrently, not consecutively.

Although this Court is to sentence afresh, the only point of criticism that can be offered to the judge’s sentencing decision is the failure to account for the offender’s reduced moral culpability when it came time to fix a sentence. Considering the guidance provided by the case law, and given the offender’s reduced moral culpability through the appropriate assessment of his FASD and other Gladue considerations, a fit sentence in this case should remain within the range identified in previous case law, but at its low end. A sentence of five years’ imprisonment on each robbery conviction will fall at the low end of the range (R v Kirklon, 2015 SKCA 67), properly denounce the offender’s unlawful conduct, and not separate him from society for longer than necessary. Expert evidence suggests that there are ways the public could be protected by managing the offender in the community once he has served his sentence.

R v Irngaut, 2020 NUCA 4

Application to strike appeal granted. It was determined that the Government of Nunavut did not have standing to launch an appeal for the summary conviction of a respondent who shot a caribou during a harvesting ban.

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The underlying issue in this summary conviction appeal is whether the respondent was entitled to a stay of a charge of unlawfully harvesting a caribou as a result of “officially induced error”. It was determined that the Government of Nunavut did not have standing to launch this appeal as a question of statutory interpretation. Appeals are created by statute and there is no right to appeal unless provided by statute. Although the determination of lack of standing sufficed to strike the appeal, the Court found it necessary to further discuss the substantive issue of what warrants an “officially induced error”, as it is not a defence.

The respondent is a resident of Igloolik, an avid hunter, and a member of the Canadian Rangers. During patrol with other Canadian Rangers, he stopped to camp for the night where Sgt. George Qattalik telephoned his father, Daniel Qattalik, who was an elder and a member of the local Hunters and Trappers Organization. Daniel Qattalik told his son that there was no ban on harvesting caribou in effect who then relayed this to the respondent. The respondent knew that there was a caribou hunting ban in place when he left Igloolik, and was surprised when he was told by the sergeant that his father said that there was no ban in place.

The next day the patrol spotted a herd of caribou. The respondent took at face value the information passed on to him, and shot one of the caribou. The trial judge found that the respondent had acted honestly and reasonably on the erroneous information received, entitling the respondent to raise “officially induced erroras a defence. The trial judge accordingly found that the offence had been proven, but entered a stay (R v Irngaut, 2019 NUCJ 4).

The finding of fact discloses no reviewable error, but the excuse of officially induced error fails on the reasonableness of the reliance on that advice and the official status of the source of the advice. Daniel Qattalik was an elder, which would give his advice social credibility, but that is not the equivalent of “official” status making his advice binding on the government. The Moratorium against caribou hunting was issued by the Minister of Wildlife under the Wildlife Act. Daniel Qattalik had no position with, or authority from, the Department or the Nunavut Wildlife Management Board. There is no evidence that Daniel Qattalik was even asked to provide advice in any official capacity.

In order to make out the excuse of officially induced error, the erroneous advice must usually come from the government agency directly involved in the relevant area of regulation. Further, in order to be “official”, the representation must generally have a level of formality to it. It will rarely be reasonable to rely on casual conversations with officials, particularly those made in an informal social setting (R v Jorgensen, [1995] 4 SCR 55; R v Ralph (2002), 220 Nfld & PEIR 351).

Manitoba Metis Federation Inc v Brian Pallister et al, 2020 MBQB 49

Application for judicial review dismissed. The honour of the Crown does not entitle the Manitoba Métis Federation to any special procedural rights in relation to a Lieutenant Governor in Council’s policy decision in the circumstances of this case.

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This is an application for judicial review of the Lieutenant Governor in Council’s [“Cabinet”] decision to issue an Order in Council [“OIC”]. The Manitoba Métis Federation Inc [“MMF”] reasons for this application are that fundamental legal and constitutional issues and principles are at risk, including the honour of the Crown. The MMF contends that this is a case of first instance that is of significant importance to the MMF, Manitoba’s Crown corporations, as well as all Indigenous Peoples in Manitoba.

The OIC authorized the Minister of Crown Services to issue “A Directive to Manitoba Hydro Electric Board Respecting Agreements with Indigenous Groups and Communities” [“Directive”]. The Directive purports to seek to align the Government of Manitoba’s policies with the Manitoba Hydro Electric Board’s [“Hydro”] practices regarding all relationship and benefit agreements with Indigenous communities. It requires that any such agreements, including those being developed, either obtain ministerial approval or provide legally required mitigation or compensation measures that address thoroughly defined impacts.

The Court has determined that the honour of the Crown does not apply to the Directive. The Directive requires that relationship and benefit agreements with Indigenous groups provide legally required mitigation or compensation that will address thoroughly defined adverse impacts. If such is not provided, ministerial approval is needed. The Directive in question is a lawful exercise of Cabinet’s power to enforce its stewardship role over Hydro. The Cabinet’s authorization of the Directive and its involvement in, or effect on, the MMF’s negotiations with Hydro, does not engage or trigger the honour of the Crown and by extension, any of the duties that flow therefrom.

The Directive is a lawful and reasonable exercise of Cabinet’s statutory power to enforce its stewardship role over Hydro. Cabinet’s authorization of the Directive and any consequent involvement in or effect on the MMF’s negotiations with Hydro, do not engage the honour of the Crown. Neither the honour of the Crown nor the common law entitled the MMF to any special procedural rights in relation to a Cabinet policy decision in the circumstances of this case.

R c Neeposh, 2020 QCCQ 1235

After careful consideration of sentencing principles and Gladue factors, the mandatory minimum sentence of four years for discharging a firearm while being reckless as to the life or safety of another person, is declared unconstitutional and inoperative with respect to the accused.

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 The accused discharged a firearm while being reckless as to the life or safety of another person as he was walking in the streets of Mistissini, an Aboriginal community. The accused acknowledges the facts but challenges the constitutional validity of the mandatory minimum sentence of four years.

The accused had a difficult childhood, and was also at the time of the offences having personal difficulties with his ex-girlfriend. After a night of heavy drinking, the accused got a hold of a firearm and discharged several shots. The most serious charge is of having intentionally discharged a firearm while being reckless as to the life or safety of another person.

This Court took into consideration the proportionate sentence in comparison to the minimum mandatory punishment, along with other principles of sentencing, including Gladue factors of the accused. It declares that the minimum mandatory punishment of imprisonment for a term of four years provided under section 244.2(3)(b) of the Criminal Code is unconstitutional and inoperative with respect to the accused.

The accused is to serve a sentence of imprisonment for a term of 571 days of imprisonment with a probation order for two years beginning upon release of the accused from custody, under further ancillary conditions including writing a letter of apology to the victims.

 

R v Hartling, 2020 ONCA 243

Conviction appeal dismissed. Sentence appeal allowed in part along with a stay of a second breach of probation charge. The Crown tried to rely on the delays involved in obtaining a Gladue report to justify the post-verdict delay.

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Following an afternoon of heavy drinking with her adult son and boyfriend, the complainant was seriously assaulted. She told first responders that her son was responsible. The son was charged. The mother testified for the Crown that her son attacked her and her boyfriend following an argument. Months later the trial resumed. This time the mother testified for the defence. She changed her testimony and said that it was her boyfriend, not her son, who attacked her.

The trial judge convicted her son for aggravated assault against his mother, assault causing bodily harm against the boyfriend and two counts of breach of probation. He was given a global sentenced of 30 months in custody. After considerable delays, the trial judge found the appellant guilty of aggravated assault against his mother, her boyfriend along with resisting arrest and two counts of breach of probation. Following 8.2 months of pretrial custody, he was sentenced to 21.8 months of incarceration.

The son appealed his convictions and sentence. However, the post-verdict delay was determined unacceptable to this Court. It took 14 months after conviction for the sentence to be imposed. This delay was not caused by ineffective judicial management. It was not caused by the appellant, nor was it caused directly by the actions of the prosecutor. It was caused by the lack of institutional resources to obtain a Gladue report. Immediately upon conviction, trial counsel obtained an order for a Gladue report from the trial judge. However, court administration services denied funding. Ultimately, the appellant, with the assistance of his counsel, chose to pay privately. The issue of post-verdict delay was addressed by this Court in R V Charley, 2019 ONCA 726 [“Charley”], where a presumptive ceiling of five months was set for the time from verdict to sentence.

In an attempt to justify the delay, the Crown alleged extraordinary circumstances because of the issues with the Gladue report and because the case was already in the system when Charley was decided. The Court does not accept that the circumstances are exceptional. It cannot be said that it is exceptional to require a Gladue report in the Algoma district where there is a large Indigenous population. Gladue reports were created in order to address systemic injustice that uniquely affects Indigenous offenders, and which leads to overrepresentation in the criminal justice system. A long delay undermines the purpose of the Gladue report by creating another level of unfairness. Moreover, to submit that the preparation of such a report is exceptional is untenable.

The appellant was entitled to a Gladue report, the trial judge ordered it, and subsequently relied on it. According to R v Jordan, 2016 SCC 27, the new framework, including the presumptive ceiling, applies to cases currently in the system, subject to qualifications but these qualifications do not apply in this matter. A 14-month delay was unreasonable and breached the appellant’s s 11(b) Charter rights.

A stay of a valid conviction would impact public confidence in the administration of justice. The possibility of vacating a valid conviction based on sentencing delay is “an unjustified windfall” for the accused (Betterman v Montana, 578 US, 136 S. Ct. 1609). The appropriate and just remedy here should target the sentence, not the conviction. The appellant was convicted of a violent offence against his mother in her home. It would bring the administration of justice into disrepute to stay the conviction. For the remedy to target the sentence, it must be based on and align with sentencing principles. The sentence is reduced by five months.

British Columbia (Child, Family and Community Service) v MJK, 2020 BCPC 39

Application dismissed. It is in the best interests of the child to remain in the custody of her foster parents than with her biological father, as she is connected to the biological mother’s First Nations cultures and is fluent in their language.

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The Director of Child, Family & Community Service [“Director”] has a continuing custody order made by this Court for a 6 year old child. The biological father, applies to set aside that order. However, there is no application before the Court to appoint him or anyone else to be the child’s guardian, and it is not clear who would be.

A biological parent is a guardian if and only if the biological parent “regularly cared for the child” (Family Law Act). The father has never had day-to-day care of the child, and so is not her guardian. The father’s application was opposed by the biological mother. Sadly, however, she recently died of a drug overdose and was unable to participate in the hearing. As well, the Director opposes the application. Three First Nations participated in the hearing, the Homalco and Klahoose First Nations, of which the mother was a member, and the Wuikinuxv First Nation, of which the father is a member.

The Federal Statute recognizes and affirms the right of First Nations to enact their own laws in relation to child custody and protection. None of the Wuikinuxv, Klahoose and Homalco First Nations have exercised that right. On an application to set aside a continuing custody order, the issue is not whether the child is in need of protection. Rather, the issues are: 1) whether there has been a significant change in the relevant circumstances since the continuing custody order was made; and 2) if so, whether cancellation of the continuing custody order is in the child’s best interest (Director of Child, Family & Community Service v AI, 2005 BCPC 620).

The father has clearly made significant progress with his substance abuse and anger- management issues, however, there is always a risk of relapse with every recovering addict and there is a history of violent behaviours. The Court is not in a position to quantify the risk of future family violence initiated by the father, but it is considered to be a real risk, which should not be ignored. Each of the governing statutes emphasizes the importance of fostering the child’s connection to, and participation in, the cultures of the First Nations of which she is a member.

The child has been an active participant in the Klahoose and Homalco cultures since she was 13 months old. Those cultures are fully-integrated aspects of her day-to-day life. She is fluent in their common language, and knows many of the traditional songs and dances by which the cultures are transmitted from generation to generation. She visits often with her maternal grandfather, with whom she speaks the language and participates in cultural activities. She engages in traditional food-gathering and preserving activities as part of her day-to-day life. The statutes do not allow the Court to prefer father’s interests at the expense of the child’s. The Court is of the opinion that the child’s best interests are served by remaining in her present placement, and that the application should be dismissed for that reason.

R v Evic, 2020 NUCJ 7

After weighing the sentencing principles with Gladue factors, the circumstances of the Indigenous offender after entering a guilty plea for aggravated assault resulted in an incarceration of 3 years, minus credit for pre-sentence custody. 

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The offender was convicted of aggravated assault pursuant to s 268(2) of the Criminal Code. The details of the offence are that the victim was at his friend’s home having drinks when the offender and his co-accused came over. An argument ensued with the victim before being physically attacked. The victim was punched and kicked until he was rendered unconscious. He did not fight back, and suffered bruising on the left arm and three serious lacerations to his scalp which required 16 staples to his head.

The offender is a 44-year-old Indigenous man who hunts and fishes for his family and donates some of his catch to elders. The offender is a carver for a living. He did not attend Residential School, and he was unsure if his biological mother did either. While the offender lives in a dry community, he reported extensive use of both drugs and alcohol. He has two children who live with their mother, and he provides financial support to them when he has the income. He has lost multiple family members to suicide. The offender has a record which includes offenses of possession of a weapon, assaults, theft, mischief, uttering threats, and failure to comply with an undertaking.

Following the sentencing principles of s 718 of the Criminal Code, the Court was required to ensure that the sentence was proportionate to the gravity of the offense and the degree of responsibility of the offender. The section also outlines other sentencing principles for the sentencing judge to consider in determining aggravating or mitigating circumstances which are supplemented by the analysis required by Gladue. The aggravating factors including the severity of the injuries to the victim, the fact that the attack was unprovoked, the offender’s serious criminal record for similar offenses, and his prior jail sentence. The mitigating factors included that the offender expressed remorse, his co-accused initiated the assault, he expressed a desire to change his ways and return to work, he has a support network and a close connection to the community. After considering these factors, the Court imposed a sentence of incarceration of 3 years minus credit for pre-sentence custody.

R v Komak, 2020 NUCJ 12

Weighing the sentencing principles of deterrence and denunciation with Gladue and other mitigating factors, the Indigenous accused is sentenced to 3 and a half years minus pretrial custody with 3 years of probation, for the manslaughter death of a friend at a party.

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The accused hosted a cribbage game at his home in Cambridge Bay. Some of those present, including the accused, smoked cannabis throughout the evening but none were drinking alcohol. The victim sent a text message to the accused that he was drunk and wanted to go to the accused’s house to drink with him. After coming over, the victim drank and tried throughout the evening to convince the accused to drink with him, who eventually succumbed.

At one point the victim became aggressive with the accused and throughout the night, arguing was witnessed. In the early hours of the morning, the victim was discovered dead from a stab wound, and the accused passed out with no recollection of the offense.

By his guilty plea, the accused admitted responsibility for the stab wound that killed his friend, and that he acted in the heat of passion caused by the accused’s sudden, provocative, intoxicated and aggressive behaviour. He admitted to using excessive force and in those circumstances he is guilty of manslaughter and expressed remorse.

Section 718.1 requires that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Consideration was also given of potential Gladue factors of the unique systemic or background factors on the accused to help shed light on his level of moral blameworthiness. The accused is 45 years old, a husband and a father of three. He suffered through a very difficult childhood, as his parents were alcoholics who often chose excessive drinking over the welfare and safety of their son. There were times when he had to actually sleep outside in the cold. His criminal record of committing property offences were in context with a lack of supervision and the inability to count on three meals a day and a warm bed to sleep in.

Although rehabilitation is always important, this is a case where the primary goal of sentencing is deterrence and denunciation. The accused is sentenced to three and a half years in jail minus pretrial custody to be followed by three years of probation, along with a number of mandatory orders imposed.

Smith v Mohan (No 2), 2020 BCHRT 52

Remedy granted. An Indigenous woman’s complaint is justified against her landlord that she was discriminated against and harassed connected to her protected characteristics. The landlord is ordered to pay her compensation of lost wages and expenses incurred, as well as $20,000 for injury to her dignity, feelings and self-respect.

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Ms. Smith is an Indigenous person and a member of the Tsimshian and Haisla Nations. Smudging is part of her connection to and expression of her Indigenous identity and, for her, a regular spiritual practice. For roughly the first half of 2017, she lived in an apartment she rented from Mr. Mohan. Ms. Smith says that from the time the parties began discussing entering a tenancy and during it, Mr. Mohan said things to her she found offensive and which she says were discriminatory harassment based on stereotypes about Indigenous people. She also says she was adversely impacted in tenancy by what happened when Mr. Mohan learned she had been smudging in her apartment, which included attempts to evict her and – after his attempts to evict her for cause failed – refusing to accept her rent payments. Ms. Smith filed this complaint in which she says Mr. Mohan discriminated against her on the basis of her race, ancestry, place of origin, and religion in tenancy contrary to s 10 of the Human Rights Code [“Code”].

Mr. Mohan denies discriminating against Ms. Smith, but instead were efforts at inter‐cultural dialogue. He also says Ms. Smith was not adversely impacted in tenancy for reasons connected to her protected characteristics by what happened after he learned she smudged. He says he has a policy for his properties that prohibits nuisances and behaviour that damages his property. He says he attempted to evict Ms. Smith because of this policy, not because of her protected characteristics. He also says that, in the alternative, his conduct was justified because Ms. Smith failed to cooperate in his efforts to accommodate her smudging.

Section 10 of the Code prohibits discrimination regarding a term or condition of a tenancy because of the race, ancestry, place of origin, or religion of a person. For Ms. Smith to succeed in her complaint of discrimination under s 10 of the Code, she must prove, on a balance of probabilities, that she experienced an adverse impact in her tenancy and that her race, ancestry, place of origin, or religion were a factor in that adverse impact (Moore v BC (Education), 2012 SCC 61 [“Moore”]).

There is no dispute that, as an Indigenous person, Ms. Smith has one or more of the “constellation” of protected characteristics under the Code relating to one’s cultural background and identity, or that Ms. Smith’s spiritual practices are protected by religion as a protected characteristic. The overriding issue for this matter is whether Ms. Smith was adversely impacted in tenancy for reasons connected to her protected characteristics and, where a justification defence is available, whether Mr. Mohan’s conduct was justified. There is no dispute a complainant has an obligation to participate in the accommodation process, and to accept solutions that are reasonable, without insisting on perfection (Central Okanagan School District No 23 v Renaud, [1992] 2 SCR 970 [“Renaud”]. If the complainant rejects a reasonable proposal, the respondent’s duty to accommodate is discharged and the complaint is dismissed (Renaud).

Ms. Smith established her case, therefore the burden shifted to Mr. Mohan to justify his conduct (Moore). Mr. Mohan repeatedly accused Ms Smith of smoking marijuana both in messages to her and before the Residential Tenancy Branch, which could be of some significance to a person who is a teacher. He did not pursue this defence at the hearing. Mr. Mohan repeatedly attempted to evict Ms. Smith, both for cause and, when he was unsuccessful, for landlord’s use of property. Mr. Mohan ultimately refused to accept further rent payments from Ms. Smith. Ms. Smith was quite simply denied the right to enjoy her home, especially near the end of her tenancy. The discrimination impacted her ability to meet a fundamental need: a home for herself and her family.

Discrimination in respect of a person’s home can be particularly egregious, and is often marked by a power imbalance between landlord and tenant (Biggings obo Walsh v Pink and others, 2018 BCHRT 174; James obo James v Silver Campsites and another (No 3), 2012 BCHRT 141). Overall, it was found the nature of the discrimination serious and favoured a fairly significant award.