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.

R v James, 2020 YKTC 7

Although the Court did not have a Gladue Report, it recognized that the accused faced a history of abuse and neglect, often associated with systemic discrimination against Indigenous peoples. All other reasonable options to incarceration were considered in weighing the harm done to the victim and the community.

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The accused pled guilty to five offences contrary to ss 334(b), 430(4), 266, 267(b), and 129(a) of the Criminal Code. A Gladue Report and Pre-Sentence Report were ordered. However, the accused decided not to participate in the preparation of the two Reports, so neither Report was available. The author, who was to have prepared the Gladue Report, suggested to the Court that the accused’s declination to be interviewed was due to the childhood difficulties that he had endured. Such challenges included his father abandoning him when he was ten years old and his mother passing away within the same year. His family had their struggles and addictions, so he lacked support and was faced with low self-esteem. He made it to grade 8 but could not read or write. The accused expressed remorse for his actions, and he acknowledged that he needed help through counselling to learn to love himself.

Following the sentencing principles of s 718 of the Criminal Code, the Court analyzed the mitigating and aggravating factors surrounding the accused and his offences. The aggravating factors included his criminal record and his intimate relationship with the victim. The mitigating factors included his guilty pleas, acceptance of responsibility, and the positive and rehabilitative steps he had taken since the last offence was committed, including his compliance with his strict bail conditions. The Court did not have a Gladue Report. Still, the sentencing judge recognized that the accused faced a history of abuse and neglect, which is often associated with systemic discrimination against Indigenous peoples. Since the accused was an Indigenous offender, the Court was required to consider all other reasonable options to incarceration while weighing the harm done to the victim and the community.

The accused is the father of a young child, and he had been working with the mother of his child to create a secure and stable home environment. He was supported by the community, and he had the support to allow him to serve his sentence in the community. After analyzing these factors in combination with the accused’s potential risk of reoffending, the Court sentenced him to four months served conditionally in the community, a probation order of two months, and a recognition of his time served.

R v Awasis, 2020 BCCA 23

Appeal dismissed. Public safety must be heavily weighed when sentencing a dangerous offender. Despite the consideration of Gladue factors of the Indigenous offender, his patterns of conduct and the factual findings of treatment would have made a finding of dangerousness inevitable.

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The offender was designated to be a dangerous offender and was sentenced to an indeterminate term of imprisonment after being convicted of two sexual offences. He is Indigenous and had an “unfortunate, tragic background.” He became involved with the criminal justice system when he was 13 years old, and he has continued to violently and sexually reoffended in the community. He has severe addictions to alcohol and drugs and has suffered from a lot of trauma, including sexual assault. The offender also has been diagnosed with a severe personality disorder which has contributed to the risk he poses to public safety.

Since the appellant was designated as a dangerous offender, indeterminate detention was available as a sentencing option under s 753(4) of the Criminal Code. To properly exercise discretion under that section, the Court must impose the least intrusive sentence required to reduce the public threat posed by the offender to an acceptable level (R v Boutilier, 2017 SCC 64). To do so, the sentencing judge must conduct an individual assessment of all relevant circumstances and consider the sentencing objectives set out in ss 753(4), (4.1) and 718–718.2, including those developed for Indigenous offenders. An offender who is found to be a dangerous offender has the right to appeal his designation and sentence on any ground of law or fact or mixed law and fact as per s 759(1). The offender applied to submit fresh evidence on appeal, but it was denied due to the credibility and lack of perceived effect on the outcome.

The offender argued that the trial judge failed to take into account evidence of his treatability at the designation stage, which would constitute a reversible error. Consideration of treatability is relevant at both the designation and sentencing stage. When it came to the trial judge’s analysis at the designation stage, the Court found that treatability was not considered. Nonetheless, the offender’s patterns of conduct and the factual findings of treatment would have made a finding of dangerousness inevitable. At the sentencing stage, the trial judge found a lack of evidence that the offender’s risk to the community could not be managed which was upheld by the appellant court.

The offender also argued that the trial judge failed to give a tangible effect to Gladue factors when determining his sentence, which resulted in a disproportionate sentence. The Court acknowledged that it is necessary to look at the whole picture (including Gladue considerations). Still, the sentencing lens for a dangerous offender is constrained as there is an emphasis on public safety which narrows the options available to a sentencing judge. The trial judge recognized that the offender’s Gladue factors reduced his moral blameworthiness; however, his repeated history of reoffending and failure to address the issues that contributed to his criminal conduct made the need to protect the public paramount. It was decided that the trial judge adequately considered the offender’s Gladue factors and overall, the indeterminant sentence that was imposed was acceptable to the Court.

Dumais et al v Kehewin Band Council et al, 2020 FC 25

Motion dismissed. The reasons for dismissal is not the merits of the Plaintiffs’ grievances against Kehewin Band Council et al for refusing them memberships under Bill C-31, but rather this Court has no jurisdiction to entertain them.

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The Plaintiffs have asked for default judgement against the Kehewin Band and Band Council [“Kehewin”]. Due to the historical gender discrimination that existed against women with registered Indian status under the enfranchisement, or “marrying out”, provisions of the Indian Act, SC 1956. In 1985, however, the Indian Act was amended, also known as Bill C-31, to be consistent with s 15 of the Charter. Bill C-31 automatically restored band membership to the women who had lost their Indian status directly through enfranchisement.

Kehewin refused to recognize Bill C-31 or accept any of its eligible individuals or their children as band members. As a result, the Plaintiffs commenced the underlying action in 2000 seeking declaratory relief and damages against Kehewin and Her Majesty the Queen in Right of Canada, as represented by the Minister of Indian Affairs and Northern Development [“Canada”]. The Plaintiffs claim there was a fiduciary duty owed towards them and there was a breach of that duty.

In this matter, the Plaintiffs seek default judgment for damages resulting from Kehewin’s discrimination and associated denial of all tangible and intangible benefits of band membership. The action against Canada has been held in abeyance pending disposition of the present motion. The action moved forward by fits and bounds for almost a decade. Throughout this period, Kehewin engaged in a deliberate and systematic pattern of delay, using all possible means to frustrate the Plaintiffs’ efforts to conduct an orderly and complete discovery.

Kehewin never formally took control of its membership lists. Kehewin rebuffed all attempts to restore membership to the Plaintiffs, refusing to comply with Bill C-31 or recognize Canada’s authority. Kehewin also failed to file an action or application to challenge the constitutionality of Bill C-31. Kehewin simply ignored Bill C-31. Kehewin refused to recognize any Bill C-31 eligible individuals as Kehewin Band members. Kehewin’s adoption and application of their Kehewin Law #1 made it impossible for individuals reinstated to registered Indian status or Kehewin Band membership under Bill C-31 to qualify for Kehewin Band membership.

The applicable test to establish if this Court has jurisdiction is set out by the Supreme Court of Canada: 1) there must be a statutory grant of jurisdiction by the federal Parliament; 2) there must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction; and 3) the law on which the case is based must be “a law of Canada” as the phrase is used in s 101 of the Constitution Act, 1867 (ITO-Int’l Terminal Operators v Miida Electronics, [1986] 1 SCR 752 [“ITO”]).

The Plaintiffs rely on the provisions of ss 17(4) and paragraph 17(5)(b) of the Federal Courts Act [“FCA”] to find jurisdiction. First, the nature of the proceeding generally contemplated by ss 17(4) is an interpleader. To the extent any obligation may be owed by Kehewin or Canada to the Plaintiffs, are concurrent, not conflicting. The obligation can only be owed to one. It is the claims as against Canada by other parties which must be in conflict to fulfill the requirements of ss 17(4) (Roberts v Canada, [1989] 1 SCR 322). While Kehewin takes a different legal position regarding the Plaintiffs’ status as band members, this does not create a conflicting claim as against Canada. Therefore, this Court does not have jurisdiction to entertain the Plaintiffs’ action against Kehewin under ss 17(4) of the FCA.

Next, paragraph 17(5)(b) of the FCA grants concurrent jurisdiction to the Federal Court to entertain claims against persons in relation to the performance of their duties as an officer, servant or agent of the Crown. Band councils have been recognized as legal entities separate and distinct from their membership with the capacity to sue and be sued by courts at all levels. On the one hand, they may act from time to time as an agent of the Crown with respect to carrying out certain departmental directives, orders of the Minister and the regulations passed for the benefit of its members. On the other hand, the band councils do many acts which are done in the name of and which represent the collective will of the band members, all of which is directly related to the elective process provided for in the Indian Act whereby the band members elect its governing body. The element of control is key to a finding of agency (Stoney Band v Stoney Band Council, [1996] FCJ No 1113).

The difficulty with the Plaintiffs’ argument is that no facts have ever been advanced in their pleadings which could support a finding of agency, nor does the notice of motion seek a declaration or finding of agency. It is not open to the Plaintiffs on a motion for default judgment to now assert liability of Kehewin based on agency. The introduction of this new theory of liability at this late stage of the proceeding is problematic. In any event, the facts established by the Plaintiffs on this motion do not support a conclusion that Kehewin was under the control of Canada when it refused to provide benefits to the Plaintiff. Regrettably, the Plaintiffs have failed to satisfy the first branch of the ITO test.

R v BMW, 2020 BCPC 9

After weighing the sentencing principles with the Gladue factors of the offender, a 32-month term of imprisonment was imposed for the guilty plea of two offenses.

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The offender pled guilty to one count of sexual interference and one count of sexual assault under ss 151 and 271 of the Criminal Code. At the time of the first offence, the accused already had a criminal record with 38 convictions, and at the time of the second offence, he had committed an additional 14 offences, that included multiple assaults. The issue for the Court was to determine a proper sentence by taking into account all of the relevant purposes and principles of sentencing, including the circumstances of the offence and the circumstances of the offender.

The offender held Indigenous status and lived in a reserve community that has a legacy surrounding residential schools, intergenerational alcoholism, drug addiction, poverty, family violence, suicide, and unemployment. He attended residential school from grades eight to ten. He had a job but lost it for being late and not getting along with his supervisor, which he attributes to alcohol abuse. In his early twenties, the offender lost both of his parents to alcohol abuse and his brother later passed away from a hit and run motor vehicle accident.

Following s 718.2(e) of the Criminal Code, it was necessary for the sentencing judge to consider the above background factors which may have played a part in bringing the offender to the Court and the types of sentencing procedures and sanctions that may be appropriate because of the offender’s Indigenous heritage. The mitigating factors included the offender’s early guilty pleas, his support from his family and his community, and his Indigenous heritage. The aggravating factors included his criminal record, details surrounding the offences, and the offences’ impact on the victim, a vulnerable Indigenous female. Considering the aggravating and mitigating factors, the Court ordered a term of imprisonment for ten months for the first offence and 22 months for the second offence, for a total of 32 months of imprisonment less time served.

R v Paulson, 2020 ONCJ 86

After weighing the Gladue Report and other sentencing principles with the circumstances of the offender, 338 days of time served plus one day concurrent was imposed for the guilty plea of three offences.

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The 28 year old Indigenous offender pled guilty to three counts of Aggravated Assault, Breach of Recognizance, and Assault. The Court read about the offender’s personal circumstances in a Gladue Report and also had the opportunity to hear from her and her family during a sentencing circle. Following the sentencing principles of s 718 of the Criminal Code, it was necessary for the sentencing judge to analyze the circumstances of the offences and determine the weight of those factors while simultaneously considering the principles of denunciation and deterrence.

The offender is a single mother of four children. Her grandparents attended Residential School, which has had a tremendous impact on her mother, and herself. While growing up, she spent significant periods with relatives and friends before she was placed into foster care where she experienced childhood neglect and sexual abuse. The offender became pregnant at the age of fifteen and began abusing illicit substances while also entering into physically abusive relationships with men. She continued to have three additional children but has lost custody of all four. Losing her children caused the offender to experience Post-Traumatic Stress Disorder [“PTSD”], and she spiralled downward into further drug abuse. She did not have a prior criminal record.

It was accepted by the Court that the offender’s criminal actions were the result of extreme intoxication and that she had no memory of the events in question. Aggravating factors were considered including that the assaults were unprovoked, the assaults involved the use of a knife, the offender was on bail during the time of the attacks and was prohibited from possessing weapons, and the level of violence was significant. The mitigating factors included the fact that the offender pled guilty, she had no prior criminal record, her background as an Indigenous person impacted her life, she had PTSD at the time of the offences, and she was remorseful for her actions. It was decided that an appropriate sentence was one that would reflect the time that she had already served.

Dilico Anishinabek Family Care v Her Majesty the Queen (Ontario), 2020 ONSC 892

Motion for stay dismissed. The applicants have not discharged their burden to show that they, or Indigenous children, will suffer irreparable harm if a stay of the Minister’s Directive and Designations is not granted.

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This motion is for a stay. These proceedings involve a long-standing jurisdictional dispute between two representative Indigenous groups in northwestern Ontario over who should be permitted to provide child and family services in the City and District of Thunder Bay. The Minister of Children, Community and Social Services [“Minister”] issued designations authorizing three children’s aid societies to provide the full range of child and family services in Thunder Bay. At the same time, the Minister issued a directive providing that: a) Dilico Anishinabek Family Care [“Dilico”] will provide services to all Indigenous children and families other than Indigenous children from First Nations affiliated with Tikinagan Child and Family Services; b) Tikinagan will provide services to children and families from Tikinagan-affiliated First Nations; and c) the Children’s Aid Society [“CAS”] of Thunder Bay will provide services to non-Indigenous children and families [“Directive and Designations”].

Dilico was incorporated in 1986 by the Robinson Superior Treaty First Nations and granted authority in 1994 by a group of 12 First Nations to provide child protection services to Indigenous children and families in Thunder Bay. Dilico has operated as a designated CAS since 1995 under what is now the Child, Youth and Family Services Act [“CYFSA”]. Initially, Dilico’s designation restricted it to exercising powers as a CAS only over those members of the Dilico-affiliated First Nations residing in the City and District of Thunder Bay, together with powers over all children residing on specified reserve lands. In 2012, Dilico entered into a memorandum of understanding [“MOU”] with the Thunder Bay CAS. Under the MOU, Dilico assumed child protection jurisdiction over not only Dilico-affiliated First Nation children, but all Indigenous children in Thunder Bay.

Tikinagan Child and Family Services [“Tikinagan”] was incorporated in 1984 through the efforts of the 49 Chiefs of Nishnawbe Aski Nation which represents many First Nations across northwestern Ontario. In 1986, Tikinagan was given approved agency status by the Ministry and, in 1987, received its designation as a CAS. Tikinagan’s geographical area includes most of northwestern Ontario including parts of the District of Kenora and the northwest portion of the District of Thunder Bay. Tikinagan has the authority to offer the full range of child and family services within its territorial jurisdiction.

Dilico and the Fort William First Nation brought applications for judicial review seeking to set aside the Directive and Designations of the Minister on various constitutional and administrative law grounds, which will be heard at a later date. The applicants’ also motioned for a stay of the Directive and Designations; below are the reasons for the dismissal.

The court must consider three cumulative factors in determining whether to grant a stay: 1) whether there is a serious issue to be tried; 2) whether the moving party would suffer irreparable harm in the absence of a stay; and 3) whether the balance of convenience as between the parties favours granting the stay, in the sense that the harm that will be suffered by the moving party if the stay is not granted outweighs the harm that will be suffered by the responding party if it is (RJR-MacDonald Inc v Canada (AG), [1994] 1 SCR 311 [“RJR-MacDonald”]).

Cases involving child welfare or child custody require a modification to this approach to the three-part RJR-MacDonald test. The overriding consideration in such cases is the best interests of the child. In this matter, the Minister, the Thunder Bay CAS and the two Indigenous CASs operate within a statutory framework which makes the best interests of the child paramount. Section 1(1) of the CYFSA provides that the “paramount purpose of this Act is to promote the best interests, protection and well-being of children.” The applicants have, asserted grounds for judicial review of the Directive and Designations which are not frivolous. There are serious issues which can only be resolved in a full hearing. The applicants have, therefore, satisfied the first aspect of the RJR MacDonald test.

The Court concluded that the applicants have not discharged their burden to show that they, or Indigenous children, will suffer irreparable harm if a stay of the Directive and Designations is not granted. This conclusion is sufficient to dispose of the motion. However, there are other factors which tip the balance against a stay in any event. The public interest also includes a public interest in the legitimacy of public institutions. The public interest therefore includes a high level of respect for the decisions of the legislative and executive branches of government. The courts have limited institutional competence to interfere with those decisions. The courts have a supervisory role to play, but should be wary of usurping legislative and executive roles, particularly where they lie at the policy end of the decision-making spectrum (Hupacasath First Nation v British Columbia (Minister of Forests), 2005 BCSC 345; RJR-MacDonald).

At the end of the day, the balance of convenience weighs in favour of refusing the stay and, pending the disposition of the applications for judicial review, advancing the goal of providing child welfare services to Tikinagan-affiliated children and their families in a culturally appropriate manner. The applicants’ onus of showing that the balance of convenience favours granting the stay has also not been discharged.

 

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

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

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

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

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

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

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

Servatius v Alberni School District No 70, 2020 BCSC 15

The petitioner failed to establish that the demonstrations of Indigenous culture at her children’s school interfered with her or her children’s ability to act in accordance with their religious beliefs. Accordingly there was no infringement of the petitioner’s or her children’s freedom of religion.

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As part of an effort to acquaint students with Indigenous culture and to promote a sense of belonging in Indigenous children, a Nuu-chah-nulth Elder visited a Port Alberni elementary school and demonstrated the practice of smudging. A few months later, at an assembly, the students witnessed an Indigenous dance performance and a prayer. The petitioner’s children witnessed the demonstrations. The petitioner is an evangelical Christian. She submitted that both the smudging and the prayer that accompanied the dance interfered with the religious freedoms of herself and her children guaranteed by the Charter of Rights and Freedoms. The petitioner sought a declaration to this effect and an order in the nature of prohibition enjoining further events of this nature in the school district.

It was conceded that the petitioner’s beliefs were sincere and that they had a nexus with religion. The petitioner, however, had two paths to fulfill a finding that the School District had interfered with their ability to act in accordance with their religious beliefs. First, and principally, the petitioner argued that the School District breached the state’s duty of neutrality. She had to show that (1) the School District professed, adopted, or favoured one belief to the exclusion of all others; and (2) the exclusion resulted in interference with the petitioner’s or her children’s freedom of conscience and religion. The organization of these events reflected a fathering momentum to incorporate the teaching of Indigenous worldview and perspectives. Arranging for students to observe hoop dancing accompanied by an Indigenous prayer, could not reasonably be interpreted as the School District professing, adopting, or promoting religious beliefs. Therefore, the petitioner’s argument failed to clear the first hurdle.

The petitioner’s second argument surrounded the right not to believe in Indigenous spirituality, the ability to refuse to participate in these practices, and the freedom from government coercion to affirm a specific religious belief as protected under s 2(a) of the Charter. She maintained that her children were compelled to participate in Indigenous spiritual practices, or affirm spiritual beliefs associated with those practices and that this constituted non-trivial interference with her and her children’s ability to act in accordance with their religious beliefs. Proof on an objective basis required more than the children being in the presence of an Elder demonstrating a custom with spiritual overtones or being in the presence of a dancer who said a brief prayer. This did not interfere with the ability to act in accordance with one’s religious beliefs.

The demonstrations were admirable and admissible efforts to teach, in a memorable way, about Indigenous beliefs. It was proper and advisable in light of the historical circumstances that the School District organize such events. The petitioner had therefore failed to establish that the Nuu-chah-nulth smudging in her children’s classrooms or the prayer said by the hoop dancer at the school assembly interfered with her or her children’s ability to act in accordance with their religious beliefs. Accordingly, no infringement of the petitioner’s or her children’s freedom of religion had been proved.