Indigenous Legal Issues

The applicants sought an assessment of a $510 million partial contingency fee paid to the lawyer respondents by the Robinson Huron Treaty Litigation Fund (RHTLF) and a determination of whether the $10 billion settlement proceeds were assets of the RHTLF Trust.

The court directed an assessment of the legal fees under the Solicitors Act, finding that the First Nations were liable to pay the bills and that special circumstances warranted assessment.

The court also confirmed that the settlement proceeds are assets of the Trust.

The appellant, designated a dangerous offender and sentenced to indeterminate imprisonment for sexual assault and other offences, appealed his sentence and sought to introduce fresh evidence.

He argued the trial judge erred in applying Gladue principles by requiring a causal link between his Indigenous ancestry and offending behaviour.

The Court of Appeal dismissed the fresh evidence motion, finding it unreliable and insufficient to undermine the sentencing decision.

The court also dismissed the sentence appeal, affirming that the trial judge correctly applied Gladue principles, finding no direct link between the appellant's Indigenous background (discovered later in life) and his moral culpability, and that public protection remained the paramount objective justifying an indeterminate sentence.

This case management conference endorsement addresses the timetable for a complex action, primarily focusing on the delivery of expert reports and amended pleadings.

The court resolved disagreements between the plaintiff, defendants, and intervener regarding deadlines for expert reports, particularly those from the Mississaugas of the Credit First Nation (MCFN) and experts who had been ill.

The court also set a deadline for Ontario's defence to Canada's cross-claim, prioritizing realistic timelines and efficiency over the plaintiff's desire for earlier closures.

The Children's Aid Society of Algoma brought a motion to sever the case involving the child Z.O. from an existing child protection application and transfer the matter to Nogdawindamin Family and Community Services, an Indigenous child welfare agency.

Z.O.'s father (J.K.) and Serpent River First Nation, along with Nogdawindamin, consented to the motion.

The mother (A.B.) and step-father (M.O.) opposed the transfer, arguing that Z.O.'s half-sibling (A.O.) should also be transferred to keep the siblings together, or that the severance should be denied if A.O. was not included.

The court granted the severance and transfer of Z.O. to Nogdawindamin, emphasizing the legislative purpose of the Child, Youth and Family Services Act and An Act respecting First Nations, Inuit and Métis children, youth and families, which support Indigenous child welfare agencies providing culturally appropriate services.

The court declined to transfer A.O., as she was not identified as First Nations, Inuit, or Métis, but noted the importance of reciprocating sibling access.

This decision concerns the sentencing of an Indigenous offender, Evan Buswa, who pleaded guilty to multiple charges including theft, break and enter, and breaches of court orders, primarily involving the theft of donation and tip boxes.

The court considered significant mitigating factors such as the offender's Indigenous heritage, chronic homelessness, mental health challenges (schizophrenia), and substance addiction, applying Gladue principles.

Despite the Crown seeking a one-year jail sentence, the court emphasized the disproportionate impact of incarceration on vulnerable Indigenous individuals and the systemic factors contributing to their over-representation in the criminal justice system.

The judge ultimately imposed a suspended sentence with one year of probation, highlighting that jails are not a solution for issues rooted in poverty, mental health, and addiction.

This appeal concerned the interpretation of s. 89 of the Indian Act and whether a court could place an on-reserve business into receivership at the instance of a non-Indian creditor.

The Superior Court had found a "commercial mainstream" exception to s. 89, allowing a receiver to recoup profits from the appellant's on-reserve businesses to satisfy a debt owed to a non-Indian lawyer.

The Court of Appeal overturned this, clarifying that the "commercial mainstream" exception applies only to s. 90(1) of the Indian Act (personal property deemed on-reserve) and not to s. 89, which protects all real and personal property of an Indian or band situated on a reserve from seizure by non-Indians, regardless of its commercial nature.

The appeal was allowed, holding that the receiver could not seize on-reserve business profits but could seize off-reserve assets.

The Court of Appeal for Ontario heard motions for leave to intervene from three public interest organizations (1492 Windsor Law Coalition, Aboriginal Legal Services, and Canadian Civil Liberties Association) in an appeal concerning the striking of an Indigenous appellant's pleadings and a substantial costs award in an injunction proceeding related to a land dispute.

The motions judge had found the appellant in contempt of court.

The Court dismissed all motions for intervention, finding that 1492 WLC and ALS's submissions inappropriately expanded the legal issues on appeal by focusing on injunctions, and CCLA's submissions largely overlapped with the appellant's arguments.

The court concluded that the appellant could adequately address the Indigenous perspective.

No costs were awarded against the proposed interveners.

The Children's Aid Society of Brant brought a motion for summary judgment seeking continued protection findings for the child T.E.H., an order for deemed custody to the paternal aunt L.H., specific access orders for the mother and siblings, no access for the mother's partner, and discretionary access for the father.

The court found T.E.H. to be in continuing need of protection due to risk of emotional harm.

It granted deemed custody to the paternal aunt, L.H., prioritizing the child's best interests and Indigenous cultural identity.

The court made temporary access orders for the mother and siblings, but declined to make a "no access" order for the mother's partner or a discretionary access order for the father, emphasizing the court's obligation to impose specific terms and conditions for access.

The defendants sought to qualify Dr. Sidney Harring as an expert on the existence and territory of the Amikwa Nation to support their Section 35(1) aboriginal rights claim.

The Crown opposed.

The court applied the two-stage test for expert evidence admissibility from White Burgess and R. v. Abbey (Abbey #2).

The court found Dr. Harring's evidence failed the threshold requirement for proper qualification due to lack of impartiality, independence, and bias, stemming from his reliance on secondary sources, unverified information from an interested party (Stacey McQuabbie), and contradictions with source documents.

The court also found the evidence would be excluded at the gatekeeper stage due to unreliability.

Consequently, Dr. Harring was not qualified as an expert.

A motion to remove counsel for a foster parent in a child protection application.

The respondent child and family services agency sought to disqualify the applicant's lawyer, who had previously represented the agency in related proceedings involving the same child.

The court applied the test from MacDonald Estate v. Martin to determine whether a conflict of interest existed.

The court found that the lawyer had access to confidential information as counsel of record for the agency in prior proceedings, including the Customary Care Agreement and the termination of the Crown Wardship Order.

The court held that the public, represented by the reasonably informed person, would not be satisfied that no misuse of confidential information would occur.

The lawyer was removed from the record.

The applicant Ogwadeni:deo sought to withdraw an amended child protection application and replace it with a formal customary care agreement, despite the biological parents not having signed the agreement.

The Six Nations Band argued that its governing resolution, enabled by the new federal legislation (Bill C-92), authorized the Band to sign the customary care agreement on behalf of the parents.

The court denied the motion to withdraw the protection application, finding insufficient evidence regarding the child's welfare and best interests, and noting the lack of court oversight since the initial temporary order in 2018.

This endorsement addresses costs arising from Requests for Direction (RFDs) concerning the Indian Residential Schools Settlement Agreement (IRSSA) Notice Program.

The Assembly of First Nations (AFN), Inuit Representatives, National Centre for Truth and Reconciliation (NCTR), and Independent Counsel sought full indemnity costs from Canada for their participation.

The court affirmed its special jurisdiction under IRSSA for costs awards, allowing deviation from standard indemnity principles.

It found Canada to be an appropriate costs payor due to its role as IRSSA administrator, not misconduct.

However, the court denied costs for pre-litigation activities, deeming them voluntary, and found the amounts claimed by NCTR and Independent Counsel excessive and disproportionate.

Ultimately, the court awarded partial indemnity costs to all four parties, significantly less than requested.

An aboriginal first-time offender was sentenced for trafficking in marijuana over 3 kg, possession of marijuana over 3 kg for the purpose of trafficking, and possession of cannabis resin for the purpose of trafficking.

The offender operated a marijuana dispensary and later supplied other dispensaries during a period of uncertain law enforcement.

The court imposed a 45-day intermittent sentence, considering the evolving social attitudes toward marijuana, the offender's benevolent intentions, his aboriginal status and family background, his lack of prior record, and his strong rehabilitation prospects since arrest.

The appellant was convicted of historic sexual offences against his cousin committed when she was a young girl.

He was sentenced to two years less a day in jail and three years' probation.

The appellant appealed his conviction arguing the trial judge engaged in an unbalanced approach to evidence resulting in a reversal of the burden of proof and failure to give effect to the presumption of innocence.

The Crown sought leave to appeal the sentence, arguing the trial judge improperly applied Gladue principles and underemphasized deterrence and denunciation.

The Court of Appeal dismissed both the conviction appeal and the sentence appeal.

The applicants sought an interlocutory injunction to halt logging, road building, and aerial spraying in the Benny area, asserting a lack of meaningful consultation and consent regarding their Aboriginal and Treaty rights.

The court applied the three-part test for an interlocutory injunction, finding that the Crown's duty to consult with the Atikameksheng Anishnawbek First Nation (AAFN) had been met through extensive engagement, which led to the approval of remedial measures by the AAFN Chief and Council.

The applicants failed to demonstrate a serious issue to be tried or irreparable harm, as their claims were general and the Crown's protective measures were deemed ample.

Furthermore, the balance of convenience favoured the respondents, given the significant economic impact and job losses that an injunction would cause.

The court also clarified that the duty to consult is owed to the collective Aboriginal group, not individual members, and rejected claims of additional hereditary clan leader reserves under the Robinson-Huron Treaty of 1850.

The motion for an interlocutory injunction was dismissed.

Following conviction for assault with a weapon and guilty pleas to common assault and breach of undertaking, the court sentenced an Aboriginal offender from Pikangikum First Nation to a global custodial sentence with probation.

The sentencing decision extensively applied Gladue principles, considering the offender's background of family trauma, substance abuse, and systemic disadvantage within an isolated First Nation community.

The court imposed a sentence of nine months pre-sentence custody credited plus six months additional imprisonment for the assault with a weapon, three months consecutive for common assault, and one month consecutive for breach of undertaking, followed by three years probation.

The decision emphasizes that while Gladue factors do not provide automatic sentence reductions, they require a different analytical approach and consideration of restorative justice alternatives.

The accused pleaded guilty to assaulting his nine-year-old son contrary to section 266 of the Criminal Code.

The assault involved striking the child with an open hand and a leather strap, causing welts and bruising.

The Crown sought custody, emphasizing the seriousness of violence against children and the breach of trust.

The defence sought a conditional discharge, highlighting the accused's genuine remorse, immediate self-reporting, participation in rehabilitative programs, and his status as an Aboriginal offender.

The court imposed a conditional discharge with 12 months probation, finding this to be a rare case warranting an exception to the general principle that violence against children demands incarceration and criminal conviction.

The accused pleaded guilty to impaired driving and failing to provide a breath sample.

The Crown filed a Notice of Application for Increased Penalty, which would have mandated a minimum four-month custodial sentence.

The court considered whether the Crown's exercise of discretion in filing the Notice violated Section 7 of the Charter by failing to properly consider Gladue principles applicable to Aboriginal offenders.

The court found that the Crown's decision to file the Notice before receiving the Gladue report constituted a violation of Section 7 of the Charter, as it did not demonstrate proper consideration of the offender's unique circumstances as an Aboriginal person.

The Notice was set aside.

The court imposed a 12-month conditional sentence with strict conditions, including a curfew, substance abuse treatment, and participation in rehabilitative programming, along with a 12-month probation order and a three-year driving prohibition.