R v Marr, 2019 NSSC 327

Trial adjournment in order for the Respondent’s to make a Rowbotham application for state-funded counsel quashed and remitted back to the trial judge. It is insufficient to simply assert a complex constitutional defence, when the charge itself is not serious.

Indigenous Law Centre
Indigenous CaseWatch Blog

The Respondents are members of the Sipekne’katik First Nation and designated to partake in the Food, Social and Ceremonial fishery for lobster, which permits the fishing of 60 lobsters per day per fisher. The Respondents were charged with two sets of offences pertaining to catching and retaining more than 60 lobsters per day, contrary to s 7 of the Aboriginal Communal Fishing Licenses Regulations. The central issue was whether the trial judge erred in finding that a Rowbotham order was necessary to ensure a fair trial in the circumstances.

The complexity arised from the proposed constitutional defence. As per the air of reality to the defence put forward by the Respondents, there had been no indication of the substance of the defence, only a bare assertion of an Aboriginal or treaty right. There was no direction of how the Aboriginal or treaty rights are allegedly violated by the charges, and therefore impossible to say there was a proposed defence that is factually and legally relevant to the charges. The court on a Rowbotham application cannot simply assume that an Aboriginal person charged with a fisheries offence might have a treaty or Aboriginal rights defence as a basis to order state-funded counsel.

Further, with the bare assertion of an Aboriginal or treaty right, the court would have no way to assess the seriousness or complexity of the proposed defence. The charges were neither serious nor complex. They were straightforward, and there was no prospect of a sentence of imprisonment upon conviction. The only source of complexity was the potential defence to charges that are not, in themselves, serious or complex. Thus, the Respondents did not meet the Rowbotham test, and as such, the trial judge erred in law in finding that a Rowbotham order was necessary to ensure a fair trial.

The Respondents submit the application must be viewed through the prism of the United Nations Declaration on the Rights of Indigenous Peoples [“Declaration”]. As the Respondents provided no argument as to why the Declaration would mandate any particular result, as well as the Declaration is not legally binding, it is therefore not relevant on a Rowbotham application. The last argument raised by the Respondents pointed to sections 7 and 11(d) Charter violations. They did not provide authority for their argument that s 7 is engaged by an alleged violation of an Aboriginal or treaty right. As the court in Rowbotham effectively treated sections 7 and 11(d) as a joint guarantee of fair trial rights, the Respondents argument that a Rowbotham order can rest on a violation of section 11(d) alone, misconstrues the language of the decision.

Environmental Challenges on Indigenous Lands: A CIGI Essay Series

Wiyasiwewin Mikiwahp Native Law Centre

“Indigenous lands are under ever-increasing pressure from governments and extractive sector corporations that are eager to encourage economic development and foreign investment. Against a backdrop of colonialism and dominant societies’ disregard for Indigenous peoples’ own laws, these lands have become the site of conflict and environmental degradation. When Indigenous communities find themselves dispossessed by the government’s approach to extraction licensing, infrastructure development and the establishment of environmental processes and protections, trust can erode quickly.

In November 2018, Indigenous leaders, environmental activists, human rights lawyers, academics, advocates and extractive industry participants came together at a conference in Banff, Alberta to discuss the ongoing efforts to hold industry and government accountable for legacy environmental damage. The discussions provided an opportunity for Indigenous peoples’ own laws to be brought to the foreground in finding solutions to today’s most difficult environmental challenges — and provided inspiration for this essay series. Environmental Challenges on Indigenous Lands explores the complex conflicts between international, domestic and Indigenous law when it comes to addressing a global environmental crisis, supporting economic development and making steps toward meaningful reconciliation.”

View essay publications of the Environmental Challenges of Indigenous Lands: A CIGI Essay Series here.

Bill C-262 Letter from Experts to Canada’s Honourable Senators

Wiyasiwewin Mikiwahp Native Law Centre

A letter, submitted by 101 various experts and academics in the fields of Indigenous, human rights, constitutional law and/or international law, urges Canada’s Honourable Senators for the swift proceeding of Bill C-262 before the current session of Parliament ends.

Summary of Bill C-262 Letter from Experts:

Bill C-262, formally titled, “An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples” was passed on May 30, 2018, in the House of Commons. Indigenous peoples and individuals, leaders, and human rights experts hailed this historic event as a victory for the human rights of Indigenous peoples in Canada.

The letter, however, communicates the concern that misguided claims or apprehensions continue to be used by some Senators to justify opposition and slow the progress of the bill in the Senate. This piece of legislation does not create new rights. It establishes a process for the government, in full partnership with Indigenous peoples, to achieve implementation of the Declaration in Canadian law in the three following ways: 1) Bill C-262 affirms the Declaration as a universal international human rights instrument with application in Canadian law. This is consistent with the fact that the UN Declaration already has legal effect in Canada and can be used by Canadian courts and tribunals to interpret Canadian laws; 2) the Bill requires the government to work with Indigenous peoples to review existing laws and bring forward reforms to ensure their consistency with the Declaration and; 3) Bill C-262 creates a legislative framework for the federal government to collaborate with Indigenous peoples to establish a national action plan for the implementation of the Declaration. Bill C-262 has been referred to Committee, 11 months after its adoption by the House of Commons.

Below are the links to the English and French versions of Bill C-262 Letter from Experts.

English Version of Bill C-262 Letter from Experts:
EN_Bill C-262 Letter from Experts

French Version of Bill C-262 Letter from Experts:
FR_Bill C-262 Letter from Experts

 

Alberta (Child, Youth and Family Enhancement Act, Director) v JR, 2018 ABPC 258

United Nations Declaration on the Rights of Indigenous Peoples, the Truth and Reconciliation Commission Calls to Action, and Gladue principles inapplicable to child protection matter.

JR and AL are the parents of seven children ranging in age from nine months to nine years. Both parents have been diagnosed with cognitive and intellectual disabilities. Throughout their time spent together and apart, JR and AL suffered from multiple addictions, which aggravated domestic violence issues between them. All seven children have spent considerable time in state care due to the domestic violence and addictions suffered by their parents. The youngest children even tested positive for methamphetamines post-birth. The oldest children display severe behavioural issues and are likely to struggle in future years, thereby needing a stable and safe environment.

The applicant, Kasohkowew Child Wellness Society (KCWS), exists pursuant to a tripartite agreement between the Province of Alberta, the Government of Canada and the Samson Cree Nation. KCWS brought an application under the Child Youth and Family Enhancement Act RSA 2000 c C-12 (CYFEA), for a permanent guardianship order for all seven children and this was ultimately granted by the Court. Counsel for AL opposed the application, making submissions in favour of less invasive action based on the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), the Truth and Reconciliation Commission (TRC) Calls to Action, and the principles set out in R v Gladue, [1999] 1 SCR 688.

With respect to UNDRIP, counsel for AL pointed to Article 7.2, which states “Indigenous individuals have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence including forcibly removing children of the group to another group (emphasis added)”. In response, the Court pointed out that KCWS is a delegated First Nations authority established under a tripartite agreement to provide child, youth and family services to Samson Cree Nation. The Court found it difficult to assume that such an authority would be at all involved in discriminating against its own people. Instead, the Court assumed that the director would only remove children and place them with non-Aboriginal foster parents as a last resort, and that the director found it in the best interests of the children to do so. The Court held that UNDRIP is aspirational and does not trump the best interests or physical and mental safety of the child.

Counsel for AL quotes several TRC Calls to Action that relate to reducing the number of Aboriginal children in care. She pointed out that some of the child welfare workers directly involved with the family were not Cree or even Aboriginal. However, the TRC Calls to Action she quoted only calls for child welfare workers to be properly educated and trained in the history and subsequent impacts of the residential school system, and about the potential for Aboriginal communities and families to provide more appropriate solutions to family healing. The TRC did not say that all child welfare workers must be Aboriginal.

As for the potential applicability of R v Gladue, submissions of this type are usually in the context of criminal law cases, not child protection matters. The Court noted that the purpose of the CYFEA is not to punish parents, but to protect children and achieve what is in their best interests. In this case that would be stable, permanent and nurturing relationships and continuity of care for all seven children. As far as the negative impacts regarding the transmission of Cree culture, steps had been taken to keep the children together as much as possible. It was necessary to have the two youngest children placed in a group home, but the older five children are all together in one foster home. In terms of the preservation of the uniqueness of the children’s Aboriginal culture, heritage, spirituality and traditions, the Court was convinced that all appropriate steps were taken by KCWS to ensure these needs are met for the children.