Indigenous Legal Issues

The applicant, having pleaded guilty to manslaughter, sought interim release pending sentencing.

The court considered the release plan, including electronic monitoring and cultural supports, against the applicant's lengthy criminal record, history of non-compliance, and the serious nature of the offence.

Despite the principles favouring release for Aboriginal accused and the impact of the COVID-19 pandemic, the court found that detention was justified on both secondary (public safety) and tertiary (maintaining confidence in the administration of justice) grounds.

The court endorsed previous findings that the applicant's history of re-offending and non-compliance outweighed the proposed supervision plan.

This is a joint direction from the Eastern and Western Administrative Judges concerning the administration of the Indian Residential Schools Settlement Agreement (IRSSA).

The direction assigns Justice Brown of the British Columbia Supreme Court to hear the "Metatawabin RFD #2" (Request for Direction #2), following Justice Perell's recusal as the Ontario Supervising Judge due to prior costs awards against the Requestors' counsel.

The decision emphasizes judicial economy and the urgency of resolving the RFD before the IRSSA's Independent Assessment Process (IAP) Secretariat ceases operations.

It also directs that the hearing be conducted virtually to address the safety concerns of St. Anne's Indian Residential School survivors during the Covid-19 pandemic.

This endorsement settles the form of an order following a Request for Direction (RFD) brought by the Chief Adjudicator of the Independent Assessment Process (IAP) concerning the disposition of "Non-Claim Records" from the Indian Residential Schools Settlement Agreement (IRSSA).

The court had previously dismissed the Chief Adjudicator's RFD but directed Canada to bring a proposal for archiving copies of Non-Claim Records with the National Centre for Truth and Reconciliation (NCTR).

The parties disagreed on the wording of the resulting order.

The court resolved these disagreements, largely upholding the Chief Adjudicator's draft order regarding the treatment of privileged documents, the default regime for record retention, and the sealing of certain court exhibits, while rejecting proposed elaborations by the NCTR and Assembly of First Nations.

The Children's Aid Society of Algoma brought a motion to determine whether a child born in 2018 is a First Nations child and, if so, whether the child identifies with the Batchewana First Nation.

The motion also sought orders to add the Batchewana First Nation as a party respondent and to transfer conduct of the proceeding to Nogdawindamin Family and Community Services.

The court found that the child is a First Nations child based on the father's self-identification as an Aboriginal person with Batchewana First Nation heritage and his maternal grandfather's Aboriginal ancestry.

The court granted the motion, adding Batchewana First Nation as a respondent party and substituting Nogdawindamin Family and Community Services as the applicant.

A child protection application brought by the Catholic Children's Aid Society of Toronto seeking to find an 8-month-old child in need of protection.

The central issue was whether the child qualified as a First Nations, Inuk or Métis child under the Child, Youth and Family Services Act, 2017.

The court determined that the child met the threshold for identification as a Métis child based on information from the maternal grandmother and great-grandmother, despite the lack of identified Métis communities in provincial regulations.

The court found the child in need of protection and ordered interim society care with a kinship assessment to proceed.

The respondent, Mr. McMurter, brought a motion for the recusal of the trial judge, alleging a reasonable apprehension of bias based on adverse credibility findings made in the original trial judgment.

The applicant, Mrs. McMurter, brought a cross-motion to dismiss the recusal motion.

Concurrently, both parties brought motions concerning the security ordered over four properties for future spousal support payments.

The court dismissed Mr. McMurter's recusal motion, finding no reasonable apprehension of bias, and allowed Mrs. McMurter's cross-motion.

The court also dismissed Mrs. McMurter's motion to prevent the sale of a property and for the transfer of all secured properties, as well as Mr. McMurter's motion for the removal of security, thereby maintaining the existing security arrangements.

Costs were reserved.

The offender pleaded guilty to conspiracy to traffic in Fentanyl, trafficking in Fentanyl, and failing to comply with probation.

The offender was a member of a conspiracy that sold approximately 375 patches of Fentanyl over a six-month period from January to June 2017.

The offender played a subordinate role as a "runner" or "mule" for the organization, controlled by the conspiracy leader.

The court imposed a sentence of 30 months incarceration less pre-trial custody calculated at 1.5:1, resulting in five months remaining to be served.

The sentencing was informed by a comprehensive Gladue report and a sentencing circle incorporating Indigenous justice principles.

The court emphasized the serious nature of Fentanyl trafficking while recognizing the offender's traumatic childhood, Indigenous heritage, addiction issues, and significant rehabilitative progress.

This is a decision under section 90(2)(b) of the Child, Youth and Family Services Act (CYFSA) regarding the identification of a child's First Nations status and band affiliation in a Status Review Application.

The child, age 6, was previously identified under the Child and Family Services Act (CFSA) as not being an Indian or native child.

The court determined that the child is a First Nations child based on the mother's identification of the child as such, and identified the child's band as Michipicoten Band based on the mother's indication that the child identifies with that band through maternal family ties.

The accused, an Indigenous offender aged 21 at sentencing (19 at the time of the offence), pleaded guilty to aggravated assault.

The offence involved an altercation near a shopping mall where the accused tackled and struck a 14-year-old victim who was pulling out a knife.

The Crown sought 9-12 months custody, emphasizing the victim's age and injuries.

The defence sought a suspended sentence, highlighting the accused's lack of criminal record, positive prospects, Indigenous status, and the precipitating circumstances.

The court imposed a suspended sentence with three years probation, 200 hours community service, and various conditions, finding that custody would inappropriately overemphasize deterrence over rehabilitation and restorative justice principles applicable to Indigenous offenders.

The respondent father brought a motion to change child support provisions, seeking to stay ongoing child support and section 7 expenses and to recalculate arrears based on his claimed inability to pay.

The father argued that Gladue principles should apply to the motion to change, citing his experiences as an Indigenous man and the impact of systemic inequalities on his ability to pay.

The court rejected the application of Gladue principles to child support motions but acknowledged the relevance of considering systemic factors affecting Indigenous persons.

The court found the father had not discharged his onus to establish a material change in circumstances warranting a reduction in the imputed income of $30,000 per annum.

However, the court granted relief regarding section 7 expenses due to lack of disclosure and adjusted arrears accordingly.

The defendant pleaded guilty to trafficking cocaine (crack) involving a small amount.

The Crown sought a sentence in the 6-12 month range, while the defence sought a suspended sentence.

The court imposed a suspended sentence with 24 months probation, including conditions for counselling, assessment for Fetal Alcohol Syndrome Disorder, and 40 hours of community service.

The court considered the defendant's vulnerable circumstances, lack of criminal record, guilty plea, and extensive Gladue report detailing her Indigenous heritage and personal history of trauma and marginalization.

The Children's Aid Society of Algoma brought a motion seeking a determination under s.90(2)(b) and s.2(4) of the Child, Youth and Family Services Act (CYFSA) as to whether a one-year-old child (L.A.) is a First Nation child and, if so, whether Batchewana First Nation should be added as a party respondent.

The child's mother stated the child was not Native and not eligible for band registration.

The father indicated he was pursuing Native Status for himself and had a paternal grandfather who was a member of Batchewana band.

The court initially found the child was not a First Nation child but reopened the motion for additional evidence.

The court ultimately found the child was a First Nation child under the CYFSA based on information demonstrating a connection to Batchewana band through the father's eligibility for membership and the paternal grandfather's band membership.

Batchewana First Nation band representative was added as a party respondent.

The Children's Aid Society brought a motion for summary judgment to dismiss the Mother's status review application, which sought to terminate the Crown ward status of her child, TAK, and return TAK to her custody.

The court reviewed the evidence, including expert reports on TAK's trauma and consistent views against returning to the Mother.

Applying the summary judgment principles and the child's best interests under the Child, Youth and Family Services Act, the court found no genuine issue requiring a trial.

The motion was granted, dismissing the Mother's application, emphasizing the child's need for permanency and stability.

The Children’s Aid Society of Ottawa brought a motion for summary judgment seeking a final order to place the child, J.Q., in the Extended Care of the Society, with discretionary access for the mother and maternal grandmother.

The mother opposed the motion but failed to file responding material.

The court found no genuine issue requiring a trial, concluding that the child remained in need of protection due to the mother's ongoing substance abuse issues and inconsistent engagement with support services.

The father and paternal grandmother were in default.

The motion was granted, placing the child in the Society's extended care to provide stability and certainty.

Aroland First Nation and Ginoogaming First Nation sought partial summary judgment for a declaration that the Crown's duty to consult under s. 35 of the Constitution Act, 1982, is triggered by ongoing invasive testing (integrity digs and hydrostatic testing) on established natural gas pipelines traversing their traditional territories.

The defendants opposed, arguing no duty to consult or that the matter was unsuitable for partial summary judgment.

The court dismissed the motion, concluding that the issue could not be fairly and justly decided through partial summary judgment due to the need for a careful, incremental approach to Aboriginal law, disputed facts regarding adverse impact, significant overlap with broader issues of duty scope and breach, and the novelty of the case.

A motion concerning the temporary care of three children under the Child and Family Services Act.

The respondent parents sought the return of two children (Charles and Thomas) from Society care, while the Society sought Crown wardship for those children and Society wardship for a third child (Charlotte) born prematurely during the proceedings.

The court applied the test under section 51(2) and (3) of the Act, finding that immediate risks to Charles and Thomas could be managed through intensive Society supervision and imposed conditions.

Charlotte remained in temporary Society care due to her fragility and the parents' inability to manage three young children simultaneously.

A child protection application concerning a First Nations child born prematurely to a 16-year-old mother.

The child was apprehended after the parents failed to follow safety plans.

The applicant society sought Crown wardship for adoption purposes.

The respondent mother proposed placement with her sister, C.A., as a kin placement.

The court found that the child has special physical, mental and emotional needs requiring specialized care.

After assessing the proposed kin placement and considering the best interests of the child under the Child and Family Services Act, including the child's First Nations heritage, the court determined that Crown wardship with placement in the current First Nations foster family was in the child's best interests.

The court made an order for Crown wardship without access for purposes of adoption.

Following conviction for robbery while armed with a handgun and having face masked, the court imposed a sentence of three and a half years in penitentiary plus enhanced credit for pre-trial custody totaling approximately six years.

The court balanced serious aggravating factors including the use of a firearm in a public place, careful planning, and significant victim impact against mitigating factors including the offender's youth, Indigenous heritage, educational achievements, and future prospects.

The court applied Gladue principles while recognizing that denunciation and deterrence remain paramount for firearm-related offences.

The Crown sought a dangerous offender designation for the respondent following his conviction for sexual touching of a 13-year-old girl contrary to section 151 of the Criminal Code.

The court found that the respondent constituted a threat to the physical and mental wellbeing of others based on a pattern of repetitive sexual behaviour showing a failure to restrain and a likelihood to inflict severe psychological damage, as well as a pattern of persistent aggressive behaviour showing substantial indifference to the reasonably foreseeable consequences of his conduct.

The court rejected arguments for lesser measures, finding that community-based supervision and treatment could not adequately protect the public.

The respondent was designated a dangerous offender and sentenced to indeterminate detention in a penitentiary.

The accused pleaded guilty to assaulting his common-law wife by throwing a can at her head and throwing her against a wall, and to breaching a non-contact release condition by being found in her apartment.

The sentencing proceeded through a restorative justice sentencing circle involving the accused, the victim, the accused's mother, an Aboriginal Elder, court personnel, and counsel.

The court imposed a conditional discharge with 12 months probation, including no-contact provisions, counselling requirements for substance abuse and domestic violence, and weapons prohibition.

The sentence reflected principles of restorative justice and the accused's sincere efforts at rehabilitation despite his significant criminal history and substance abuse issues.