Case Watch for October 2016

FROM OUR PUBLICATIONS DESK

Case Watch

The following decisions came across our desk over the past month:

Jurisdiction of superior courts over transboundary Aboriginal rights

Uashaunnuat (Innus of Uashat and Mani-utenam) c Iron Ore Company of Canada, 2016 QCCS 5133 (in French only): The Superior Court of Quebec dismissed an application from the defendants to strike portions of the plaintiffs’ claims. The Innu plaintiffs are suing the defendants, a mining company and a railway company, for $900M in damages for alleged harms to their section 35 rights within their traditional territory, the Nitassinan, which covers a large portion of the Quebec-Labrador peninsula. The defendants argued that to the extent the plaintiffs’ claims relate to land outside Quebec’s borders, those claims are outside the jurisdictional competence of the Quebec Superior Court, as per the Quebec Civil Code. The claims are premised on asserted Aboriginal rights and title, as well as treaty rights. In determining this application, the Court noted the need to consider the Aboriginal perspective when addressing section 35 rights, the sui generis nature of these rights, and the fact that recognition of these rights is ancillary to the primary focus of this litigation, which is on damages. The Court also rejected forum non conveniens and Crown immunity arguments. It noted in the latter case that the section 35 rights of the Innu are existing rights, not rights created by the courts, and should therefore not differ as between Quebec and Labrador.

Freedom of expression in context to injunction application for blockade

Siksika Nation v Crowchief, 2016 ABQB 596: The Alberta Court of Queen’s Bench granted the Siksika Nation an interlocutory injunction against a group of its members to prevent them from interfering with its contractor’s efforts to rebuild homes in an on reserve development. The respondent stated that his purpose for initiating the blockade was to draw attention to alleged issues of oversight, accountability and transparency with respect to the applicant’s use of financial resources on this project, among other things. The respondent invoked his Charter right to freedom of expression in defence of the protest and blockade. The Court found that the applicant was able to meet the test for an interlocutory injunction. The Court also held that the Charter did not apply in the circumstances, since the injunction was aimed at ensuring the applicant and its contractor could fulfill the terms of a private agreement, and the applicant was not seeking to prevent the respondents from pursuing legal avenues to express their dissent. The Court further concluded that the injunction would be a justifiable infringement of the respondents’ Charter rights even if the Charter had applied.

Annuity claims and the unique context of each Numbered Treaty –

Horseman v Canada, 2016 FCA 238: The Federal Court of Appeal dismissed an appeal from a Federal Court decision that declined to certify a proposed class proceeding for treaty annuities owed under each of the Numbered Treaties. The Federal Court had concluded that there was insufficient commonality between the circumstances of each treaty’s annuity clause for the purposes of a class action. The Court of Appeal upheld the decision and substantially agreed with the Federal Court’s analysis. It held that treaty interpretation requires an intensive inquiry into the mutual intent of the parties and the purposes for which they entered treaty. Due to the unique historical, cultural, and economic context surrounding each treaty, class proceedings would likely not have issues of commonality unless they were limited to a particular Numbered Treaty.

Admission of extrinsic evidence re: duty to consult on judicial review –

Sipekne’katik v Nova Scotia (Minister of Environment), 2016 NSSC 260: The Supreme Court of Nova Scotia allowed the admission of affidavit evidence beyond the record in a statutory appeal from ministerial approvals under Nova Scotia’s Environment Act. The approvals were for the development of an underground natural gas storage facility. Sipekne’katik claim Aboriginal and treaty rights to hunt and fish in the area where the project will be developed. The Court held that evidence beyond the record would only be admissible in exceptional circumstances, such as breaches of natural justice and procedural fairness. All parties relied on the Crown’s duty to consult falling within the broad heading of a “breach of procedural fairness” in order to argue that their respective affidavits were admissible. The Court noted that affidavit evidence would not be admissible merely because the honour of the Crown was raised as an issue. They must relate to the scope and content of the duty to consult and whether that duty has been fulfilled. Under this test the Court accepted all the affidavits, subject to the striking of some argumentative portions.

Injunction granted against logging blockade –

D.N.T. Contracting Ltd v Abraham, 2016 BCSC 1917: The Supreme Court of British Columbia granted a logging company’s application for an injunction prohibiting members of the Takla Lake First Nation (TLFN) from blocking, physically impeding, or delaying access to harvesting sites under a timber licence. Members of the TLFN stated that their burial sites and traditional territory were within the cut block boundaries of the licence. They also stated that TLFN receives a larger number of consultation referrals than they can manage due to their small size and financial management issues from previous administrators. TLFN indicated it was willing to negotiate with the applicant and allow the logging if accommodation could be reached. The Court held that the blockade constituted irreparable harm as further delays would threaten the economic standing of the company’s operations and harm it significantly. The Court held that TLFN should have brought its issues forward during the consultation process before the licences were approved, rather than threatening the administration of justice by blocking access to the harvesting sites long after the time for consultation had passed.

Appraisal of lease rates for on reserve recreational properties –

Schnurr v Canada, 2016 FC 1079: The Federal Court resolved three common issues in a class action lawsuit filed by a group of on reserve cottagers. The plaintiffs are disputing a rental increase proposal of up to 700% for each year of a five-year rental term. The primary issue was the appropriate methodology for determining the fair market rental value of the leased properties. The Court determined that the appropriate method was to consider comparable lease rates on comparable property. The Court sided with the plaintiffs’ real estate appraiser because of his greater knowledge of the subject property, and familiarity with the Saskatchewan market and the recreational lands in the province. It did not accept the argument that provincial park rates should be excluded from the calculation due to policy constraints on those rates.

Public interest standing on judicial review of Chief Coroner’s decision –

Blackjack v Yukon (Chief Coroner), 2016 YKSC 53: The Yukon Supreme Court dismissed an application to strike the Little Salmon Carmarks First Nation (LSCFN) from an application for judicial review on the basis that it had no standing. Theresa Blackjack and LSCFN jointly filed a petition for judicial review of the Chief Coroner’s decision to close an investigation into the death of Theresa’s daughter, Cynthia Blackjack, without ordering an inquest. The Chief Coroner asserted that LSCFN had no standing in relation to the subject matter of the petition. The Court concluded that LSCFN had public interest standing to proceed with the petition because LSCFN raised a serious justiciable issue, had a real stake or genuine interest in that issue, and the proposed suit was a reasonable and effective way to bring the issue before the courts.

Limitations period for negligence claim based on sexual assault:

Fox v Narine, 2016 ONSC 6499: The Ontario Superior Court of Justice dismissed an application to strike a statement of claim alleging that a shelter was negligently operated when the late plaintiff was sexually assaulted there. The plaintiff was subsequently murdered. The Court held that there was a sufficiently proximate relationship between the late plaintiff and the shelter where she was staying at the time of her assault. There was also no reason to override or limit the scope of the duty of care. The statutory provision that would allow this action to proceed was created to improve the protection that the law offers to victims of sexual violence. While a limitation period under the Trustee Act, 2002 would ordinarily have barred the claim from being brought more than two years after the plaintiff was killed, there is no limitation period under the Limitations Act, 2002 where an action is based on sexual assault. The more general statute must yield to the more specific one, which was the limitations legislation in this case.

Canada not estopped from estoppel argument in Treaty 8 tax litigation –

Tuccaro v Canada, 2016 FCA 259: The Federal Court of Appeal dismissed an appeal from an interlocutory order of the Tax Court of Canada. Mr. Tuccaro unsuccessfully sought to strike portions of Canada’s reply where it was asserted that he was estopped from asserting a treaty right to tax exemption under Treaty 8. Mr. Tuccaro argued that this issue was definitively addressed in a past Federal Court of Appeal decision in this litigation with respect to an appeal from another motion to strike, and Canada was therefore estopped from raising its estoppel argument. Both the Tax Court and the Federal Court of Appeal disagreed. The Court of Appeal did not find it plain and obvious that Canada would be estopped from raising its estoppel argument, especially considering the discretion that a trial judge maintains over whether it accepts such an argument. The Court of Appeal also suggested that Mr. Tuccaro’s argument could have grave consequences if it were accepted. It could force litigants to raise grounds that they know have no chance of meeting the stringent test for motions to strike in order to avoid potential issue estoppel arguments on those unpleaded grounds.

Duty to reference Gladue factors in reasons for sentence –

R v Wheatley, 2016 BCCA 397: The British Columbia Court of Appeal allowed an appeal from a sentence of 18 months imprisonment for breach of a residency requirement in a long-term supervision order. The sentencing judge made no mention at all of Mr. Wheatley’s Aboriginal background or his traumatic upbringing, although this was established during the sentencing hearing and the subject of submissions. The judge was clearly aware of the law, having been the sentencing judge for one of the sentences on appeal in the Supreme Court’s Ipeelee decision. However, the importance of Mr. Wheatley’s Aboriginal background and the traumas he suffered growing up appear to have been “lost in the shuffle” when it came to the imposition of a sentence. The Court of Appeal held that “[t]oday, reference to an Aboriginal offender’s circumstances should be seen as mandatory”. The sentencing judge erred in failing to particularly consider Mr. Wheatley’s Aboriginal circumstances and Gladue factors, resulting in an unfit sentence.

Gladue factors applied in determining whether s 24(1) of Charter supported curative discharge –

R v Daybutch, 2016 ONCJ 595: The Ontario Court of Justice ordered a curative discharge for Ms. Daybutch with respect to her convictions for impaired driving offences, finding it to be both appropriate for the defendant and in the public interest. Earlier in these proceedings the Court had concluded that Ontario was in violation of the s 15 equality rights of Indigenous people in Ontario by failing to request the proclamation into force of a curative discharge option for impaired driving offences. This decision on sentence adopted a remedial approach under s 24(1) of the Charter. The Court had before it a Gladue report on Ms. Daybutch that indicated how her offences related to the systemic and background factors she faced as an Aboriginal woman. The Court took the view that the use of a curative discharge where warranted for Aboriginal offenders would permit sentencing judges to act in a Charter-compliant manner in accordance with the Supreme Court’s directions in Gladue and Ipeelee.

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This Case Watch blog post has been brought to you by the Native Law Centre in partnership with Pro Bono Students Canada – University of Saskatchewan

Case Watch for June 2016

 FROM OUR PUBLICATIONS DESK

Case Watch

The following decisions came across our desk over the past month:

R v TJD, 2016 MBCA 67: Leave to appeal was granted by the Manitoba Court of Appeal in the sentencing of a young person under Manitoba’s Youth Criminal Justice Act (YCJA), the appeal was allowed and the sentence was varied. The Crown candidly conceded that various aspects of the sentence were illegal, or that the sentencing judge otherwise erred in principle, including with respect to the judge’s failure to consider relevant Gladue factors in imposing a sentence on this young person, who was of either Métis or Cree ancestry.

Calaheson v Gift Lake Metis Settlement, 2016 ABCA 185: The Alberta Court of Appeal allowed an appeal from part of an order of the Court of Queen’s Bench declaring the Gift Lake Metis Settlement General Election held in October 2013 invalid and vacating the election of three councillors. The appellant challenged the Order’s failure to declare a further position vacant, that of the respondent Dave Lamouche. The Court of Appeal held that this position should have also been vacated in the complex and unique circumstances of the contentious election at issue.

Re Gray, 2016 CanLII 38311 (ON OCCO): The Office of the Chief Coroner for Ontario released a verdict explanation for the inquest into the death of Brian Gray. Mr. Gray died in the custody of police during an armed stand off on Lac Seul First Nation in 2010, making an inquest mandatory. The jury’s recommendations from the inquest included: more funding and training for mental health and addictions services for Lac Seul, a review of the resourcing for the Lac Seul Police Service with a view to increasing police services for Lac Seul, funding for a certified mental health counsellor, additional mental health workers and training for existing workers in Lac Seul, among others.

R v Halkett, 2016 SKPC 65: The Saskatchewan Provincial Court applied Gladue factors in sentencing an Aboriginal man who was found guilty of sexual assault against a cellmate in an RCMP station “drunk tank” to an 18-month conditional sentence followed by a two-year term of probation. The Court noted that in Saskatchewan, where Aboriginal people represent roughly 16% of the population, they account for roughly 77% of the province’s 2014-2015 admissions into adult correctional centres. After reviewing the individual’s Gladue factors, the Court held that the accused would be “apt to find more success in his home community than he would in jail”.

Rice c Agence du revenu du Québec, 2016 QCCA 1077: The Quebec Court of Appeal dismissed a petition for an order to stay the execution of its April 2016 judgment in this matter while the petitioners seek leave to appeal to the Supreme Court of Canada. The petitioners are Mohawks of Kahnawake with status under the Indian Act that reside and carry on business on reserve operating gas stations and retail outlets. They are challenging tax assessments for having failed to charge taxes against their customers, regardless of whether these customers had “Indian” status or not. They have so far been unsuccessful. The Court of Appeal accepted that their arguments for challenging their tax collection and remittance obligations, which are now largely based on the Royal Proclamation of 1763, are serious questions to be tried. However, the petitioners failed to establish serious or irreparable harm in the absence of a stay.

Malcolm v Fort McMurray First Nation, 2016 FC 672: The Federal Court dismissed an application for judicial review of three decisions on applications for membership in the Fort McMurray First Nation. At issue was whether the applicants needed to register for status under the Indian Act before their membership applications could proceed. The Court interpreted Fort McMurray’s Membership Code as requiring confirmation of registration under the Indian Act before the applications could be processed and upheld the Membership Clerk’s decision.

R v Rich, NLTD(G) 87: The Newfoundland and Labrador Supreme Court allowed an application from the Crown for review of an order granting judicial interim release to Mr. Rich. Among other things, the Supreme Court held that the Provincial Court judge erred in his application of the Supreme Court of Canada’s Gladue and Ipeelee decisions. The Supreme Court found no reference to either decision or the fact that Mr. Rich was Aboriginal in the interim release decision. The Supreme Court found that the court below had incorrectly held that being an Aboriginal person was a factor in favour of judicial interim release without any evidence of the particular Aboriginal background of Mr. Rich. The Court stated that “case-specific information regarding the particular Aboriginal offender” is essential in order to apply Gladue and Ipeelee; they cannot be applied “in a vacuum”.

R v Menicoche, 2016 YKCA 7: The Yukon Court of Appeal allowed an appeal from a sentence of 23 months’ imprisonment for sexual assault. The Court of Appeal held that the sentencing judge failed to give genuine effect to the Aboriginal status of the appellant. It found that the sentencing judge failed to consider any alternative to a lengthy territorial jail term despite being familiar with the appellant’s compelling Gladue factors that were set out in the pre-sentence report. The sentence was reduced by six months.

2403177 Ontario Inc v Bending Lake Iron Group Ltd, 2016 ONCA 485: The Ontario Court of Appeal rejected an application for leave to appeal from an Approval and Vesting Order in relation to the moving party’s receivership. Among other things, the moving party argued that the Court of Appeal judge who made that order failed to consider whether the receiver discharged its obligation to consult with “affected Aboriginal communities” in approving a sale agreement arising from the receivership. This duty to consult argument was rejected on the basis that it should have been fully canvassed earlier in the proceedings.

Sarrazin c Canada (AG), 2016 QCCS 2458: The Quebec Superior Court certified a class action on behalf of a group of approximately 45,000 people who were deprived of status under the Indian Act based on discriminatory provisions. In its 2009 McIvor decision the BC Court of Appeal held that section 6 of the Indian Act infringed upon certain individuals’ right to equality under section 15 of the Charter. As a result of this decision, section 6 of the Indian Act was amended through Bill C-3 in 2010. This class action seeks compensation for the individuals who gained status under Bill C-3 on the basis that they were deprived of various forms of financial support under the Indian Act between 1985 and 2011 that they would have otherwise been entitled to were it not for the discriminatory provisions struck down in McIvor and removed through Bill C-3.

R v Laboucane, 2016 ABCA 176: The Alberta Court of Appeal dismissed a sentencing appeal brought on various grounds, including the ground that the sentencing judge disregarded the 30-page Gladue report provided on Mr. Laboucane, which the sentencing judge found had failed to disclose any meaningful Gladue factors to consider. The Court of Appeal rejected this argument and found that Mr. Laboucane had a “predominately stable and supportive upbringing and background” that did not mitigate his culpability. The Alberta Court of Appeal also went out of its way to criticize the Ontario Court of Appeal’s recent decision in R v Kreko, addressing an Aboriginal offender who was adopted by a non-Aboriginal family, suggesting that it expanded the level of generality in the application of Gladue factors “almost to a level of pure ethnicity”.

R v Chocolate, 2015 NWTSC 28: The Northwest Territories Supreme Court granted judicial interim release to Mr. Chocolate. The Crown in this case argued that Gladue factors are only relevant to the tertiary ground for detention under section 515(10) of the Criminal Code on the basis that Gladue factors are only relevant to questions of sentencing, and do not extend to questions of whether detention is required to ensure the accused attends at trial or whether the public is protected. The Court rejected this argument and found that Gladue factors were relevant to all three grounds for detention.

Robertson v The Queen, 2015 TCC 219: An official English translation of this 2015 decision of the Tax Court of Canada was released this month in which the Tax Court dismissed an appeal from a reassessment. The appellant is a member of the Mashteuiatsh Montagnais Band (Pointe-Bleu) with status under the Indian Act who operates a fur manufacturing and sales business. In disputing an assessment for GST, penalties and interest against his business, Mr. Robertson asserted an Aboriginal right to the fur trade as well as an Aboriginal self-government right in his defence, among other arguments. The Tax Court found that there was no right to engage in the fur trade in the manner that the appellant was engaged in this industry. It recognized the right of the Montagnais to engage in the fur trade but held that this must be limited to the sale of raw furs of trapped animals, noting that raw fur sales were non-taxable. The Tax Court also recognized the Montagnais du Lac Saint-Jean have an Aboriginal right to management of hunting, fishing and trapping territories within their jurisdiction, but held that this right could not give them exclusive authority over taxation of business transactions in their territory “since this would violate Crown sovereignty”. While the Tax Court recognized these Aboriginal rights it held that they were not prima facie violated by the Excise Tax Act.

First Nation of Nacho Nyak Dun v Yukon (SCC file 36779): The First Nation of Nacho Nyak Dun was granted leave to appeal to the Supreme Court of Canada from the Yukon Court of Appeal decision in relation to a dispute over land use planning for the Peel watershed under the terms of modern treaty agreements for the region.

Hughboy v Oujé-Bougoumou Cree Nation, 2016 QCCQ 4544: The Court of Quebec dismissed an application for advance costs in relation to a challenge to the results of a 2015 election for the Oujé-Bougoumou Cree Nation. The Court held that there was prima facie merit to Mr. Hughboy’s case. However, it found there were no special circumstances of public importance in support of making such an exceptional order and that Mr. Hughboy failed to prove that his financial circumstances were such that he could not proceed with his case without such an order being made.

R v McDonald, 2016 NUCA 4: The Nunavut Court of Appeal allowed an appeal from a sentence for Ms. McDonald’s breach of a Conditional Sentence Order (CSO) that resulted in her being sent back to prison. Among other issues, the Court of Appeal held that the sentencing judge had failed to give meaningful consideration to Ms. McDonald’s Gladue factors. The Court held that Gladue factors must be considered in every case involving an Aboriginal offender unless the offender waives this right. The sentencing judge erred in assuming that Gladue factors were adequately addressed into the original CSO and they ought to have been considered afresh at the CSO breach hearing.

Children’s Aid Society of Halton Region v MM, 2016 ONCJ 323: The Ontario Court of Justice released a decision addressing whether three children are “Indian” or “native persons” for the purposes of the Child and Family Services Act. This determination dictates whether the children have access to unique benefits, special treatment and special considerations not otherwise available under the Act. The Court noted that no previous decision in Ontario directly discussed the facts necessary to support a finding that children meet these definitions and therefore set out to provide such an analytical framework, including guiding principles.