Indigenous Legal Issues

Ralph King was sentenced after being found guilty of sexual assault against three women during private healing ceremonies where he acted as a spiritual healer.

The offences involved inappropriate physical contact under the guise of healing.

The court considered aggravating factors, including abuse of a position of trust, significant impact on victims (two of whom were Indigenous and had prior trauma), multiple victims, and fraud.

Mitigating factors included his compliance with release conditions, prosocial lifestyle, and health issues.

The court emphasized the interplay between s. 718.04 (vulnerable victims, particularly Indigenous women, mandating primary consideration of denunciation and deterrence) and s. 718.2(e) (Gladue principles for Indigenous offenders).

The court found that the harm done to the victims and the Indigenous community, coupled with the lack of remorse, necessitated a significant custodial sentence.

The appellant, an Indigenous individual found not criminally responsible on account of mental disorder (NCRMD), appealed the Ontario Review Board's refusal to order a Gladue Report for his next annual review.

The Board had deemed the report premature, suggesting it would be more beneficial after further treatment stability.

The Court of Appeal found the Board's refusal unreasonable, emphasizing its duty to gather all relevant evidence, including Gladue information, for Indigenous NCR accused persons.

The court reiterated that Gladue principles apply to Board proceedings and require a distinct analytical approach.

The appeal was allowed, and the Board was ordered to ensure a Gladue Report is prepared before the appellant's next hearing.

This temporary care and custody hearing involved three Indigenous children affiliated with Caldwell First Nations.

The Family & Children’s Services of St. Thomas and Elgin sought to place the eldest child (L.A.) with the father and the two younger children (M.W. and H.W.) with the mother, subject to supervision.

The father opposed, seeking custody of all three.

The court, applying the Child, Youth and Family Services Act and the paramount An Act respecting First Nations, Inuit and Métis children, youth and families, found that L.A. could remain with the father under terms.

However, M.W. and H.W. were at risk of physical and emotional harm with the father due to ongoing verbal and physical abuse, neglect, and the father's non-compliance with previous court orders.

The court ordered M.W. and H.W. into the temporary care of the mother, with terms to ensure their safety and cultural connection.

This case concerns a temporary care and custody motion for an Indigenous child, L.L.C., who had been residing with a maternal aunt under a Customary Care Agreement (CCA).

Following the CCA's termination, the child was placed with the father.

Kina Gbezhgomi Child and Family Services initiated a protection application seeking a protection finding and a supervision order with the father.

The court determined that the federal An Act respecting First Nations, Inuit and Métis children, youth and families (Federal Act) applies and has paramountcy over provincial legislation (CYFSA), altering the method of analysis for Indigenous children's placements.

Applying the Federal Act's national standards, the court found it was in the child's best interests to be placed with the father, without the need for society supervision, as there were no protection concerns.

The court also ordered continued contact with the maternal aunt and suggested the matter be transitioned to a Children's Law Reform Act application.

James Faichney, found not criminally responsible (NCR) for an assault, appealed the Ontario Review Board's (ORB) decision to continue his conditional discharge.

He argued the ORB erred by failing to consider a Gladue report and principles, and that its finding of a "significant threat" to public safety was unreasonable.

The Court of Appeal dismissed the appeal, finding that the ORB implicitly considered Gladue factors relevant to the threat assessment by addressing the availability of culturally appropriate care, and that the "significant threat" finding was reasonable given evidence of medication non-compliance and unrealistic expectations for independent care.

The plaintiff, Marcel Guibord, initiated a new action against the National Bank of Canada, its officers, a lawyer, and the federal and provincial governments, alleging fraud, conversion, and land claims related to a property previously subject to a mortgage enforcement action.

The defendants sought dismissal under Rule 2.1.01 of the Rules of Civil Procedure.

The court found the action to be frivolous, vexatious, and an abuse of process, as it constituted an attempt to re-litigate issues already adjudicated in prior proceedings, including a summary judgment motion and appeals.

The court noted the plaintiff's claims were largely unintelligible and nonsensical, and that adding the Crown as a party did not legitimize the collateral attack on previous decisions.

The action was dismissed.

The accused pleaded guilty to two counts of trafficking in cocaine contrary to s 5(1) of the Controlled Drugs and Substances Act.

Over a period of months, the accused sold cocaine to undercover officers on ten occasions, progressing from small amounts to a final transaction involving half a kilogram for $28,000.

A search of the accused's residence yielded approximately 193 grams of cocaine, scales, packaging material, and cash.

A Gladue report was prepared and a sentencing circle was held to consider the accused's personal circumstances as an Indigenous person and systemic factors contributing to the offences.

The Crown sought a four-year sentence, while the defence proposed a restorative justice approach with three to six months custody followed by probation, or alternatively, the minimum federal term of two years.

The court imposed a global sentence of three years and six months, reflecting the serious nature of commercial-level cocaine trafficking while considering the accused's rehabilitation efforts, guilty plea, and Indigenous heritage.

The appellant appealed his sentence of 10 years' imprisonment imposed following his guilty plea to two counts of operating a motor vehicle while impaired and causing death, two counts of criminal negligence causing death, two counts of operating a motor vehicle while impaired and causing bodily harm, and two counts of criminal negligence causing bodily harm.

The collision occurred when the appellant, heavily intoxicated and driving at 187 km/hr, ran a red light and struck another vehicle, killing two passengers and seriously injuring two others.

The Court of Appeal allowed the appeal and reduced the sentence to seven years, finding the original sentence demonstrably unfit.

The court also set aside victim surcharges and varied the driving prohibition to eight years commencing at the end of imprisonment.

A dissenting opinion would have reduced the sentence to six years, placing greater weight on Gladue factors relating to intergenerational trauma.

The appellant appealed from an order of the Superior Court dismissing his preliminary motion to challenge the authenticity of a joint venture agreement through forensic document examination.

The Court of Appeal found that the motion judge had mischaracterized the nature of the preliminary motion and made material factual errors in his analysis.

The court allowed the appeal, set aside portions of the October order, and reinstated the April order pending the appellant's opportunity to bring a motion in Superior Court regarding the document's authenticity.

The court also preserved the respondent's right to pursue relief if the appellant failed to bring such motion within 30 days.

The respondent retained its costs award from the application judge, and no costs were awarded on the appeal.

The plaintiff, an Indian Residential School survivor, sued his former lawyers (the Wallbridge defendants) for negligence.

The negligence claim arose after the defendants initially failed to secure him compensation through an IAP claim for sexual abuse, causing him significant psychological harm.

The plaintiff later succeeded in obtaining compensation with new counsel.

The defendants moved to dismiss the negligence action as an abuse of process, arguing it was barred by the 2006 Indian Residential Schools Settlement Agreement (IRSSA) Approval Order.

The court dismissed the motion, holding that the release provisions in the Approval Order did not encompass causes of action that arose after its effective date, nor could claims of solicitor's negligence in the prosecution of an IAP claim have been within the contemplation of the parties to the IRSSA.

Appeals arising from the implementation of the Indian Residential Schools Settlement Agreement (IRSSA).

The appellants sought declarations that Canada breached its disclosure obligations under the IRSSA by refusing to produce transcripts of examinations for discovery from civil actions (Cochrane Transcripts) and sought broad relief for all former students affected by alleged breaches.

The administrative judge dismissed the requests for directions.

The Court of Appeal upheld the dismissal, finding that Canada did not breach its disclosure obligations by refusing to produce the Cochrane Transcripts, that the deemed undertaking rule applied to protect the privacy of examinees, and that the court lacked jurisdiction to grant the broad relief sought.

The appellant appealed his sentence of eight years imprisonment for sexually assaulting his girlfriend's daughter over a period of approximately one year beginning when the victim was 12 years old.

The appellant sought leave to appeal and argued that the sentencing judge erred by failing to adequately consider his guilty plea, rehabilitative potential, and Aboriginal background under the Gladue principles.

The Court of Appeal found that while the sentencing judge erred in requiring a causal connection between the appellant's Aboriginal background and the offences, the sentence remained fit given the gravity of the crimes and their devastating impact on the victim.

The Crown sought leave to withdraw charges against four defendants (three members of Batchewana First Nation and one self-identified Métis individual) for unlawfully harvesting forest resources in Crown forests without proper licenses, contrary to the Crown Forest Sustainability Act.

The defendants opposed the withdrawal, arguing the prosecution was a vehicle to establish aboriginal and treaty rights.

The court granted the Crown leave to withdraw the charges, finding it was in the public interest to resolve such complex aboriginal issues outside the criminal forum.

However, the court awarded substantial costs against the Crown for its delay in withdrawing the charges and for failing to reassess its position when it received the defendants' expert report in May 2014.

The court awarded $90,000 to Clinton Robinson and $300,000 to the three other defendants.

The appellant appealed an order of the Superior Court of Justice granting possession of Lot 15 on the Whitefish River First Nation reserve to the respondent and ordering the appellant's eviction.

The appellant claimed she was denied a fair hearing because the application judge unreasonably refused an adjournment and his conduct gave rise to a reasonable apprehension of bias.

The appellant also sought leave to appeal the substantial indemnity costs award of approximately $24,000.

The Court of Appeal dismissed the main appeal regarding fair hearing but granted leave to appeal costs and reduced the award to $15,000 partial indemnity costs.

An indigenous woman pleaded guilty to importing 347 grams of cocaine into Canada contrary to s. 6(3)(a) of the Controlled Drugs and Substances Act.

The Crown sought a three-month custodial sentence in addition to time served, relying on principles of general deterrence.

The court imposed a suspended sentence with 24 months probation, finding that the offender's circumstances as an indigenous woman, combined with her significant personal trauma, systemic disadvantage, and demonstrated rehabilitation efforts, warranted a departure from the ordinary sentencing range.

The court applied the Gladue and Ipeelee framework, emphasizing that the Gladue principles apply to serious offences and that general deterrence cannot override the requirement to consider the unique circumstances of indigenous offenders.

An appeal from a conviction under provincial motor vehicle legislation.

The appellant, claiming Aboriginal status, argued that the Province of Ontario has no jurisdiction over Indigenous persons and therefore provincial laws do not apply to them.

The appellant was convicted of multiple offences under the Highway Traffic Act and Compulsory Automobile Insurance Act.

The court dismissed the appeal, holding that provincial laws of general application apply to all persons within the province, including Indigenous persons, and that driving a motor vehicle on a public highway does not constitute an Aboriginal right protected under section 35(1) of the Constitution Act, 1982.

A young Aboriginal offender, age 18 at sentencing (17 at the time of offences), was convicted of two counts of discharging a firearm with intent to endanger life and possessing a firearm without a licence.

The offender fired two shots at police officers during an armed confrontation, resulting in the offender being shot four times by police.

The offender sustained severe injuries including loss of sight in one eye, brain injury, and permanent nerve damage.

The court imposed a 24-month probation sentence with strict conditions rather than custody, applying Gladue principles and considering the offender's Aboriginal heritage, background of intergenerational trauma from residential schools, history of bullying, and significant physical and psychological injuries sustained as a result of the incident.

The accused, an aboriginal woman and first-time offender, pleaded guilty to robbery.

While heavily intoxicated and appearing to be in late pregnancy, she entered a variety store, brandished a toy handgun, and demanded money, obtaining $200 before fleeing.

The Crown and defence jointly submitted for 60 days incarceration followed by probation.

The court imposed 30 days jail followed by two years probation, applying Gladue principles to balance denunciation and deterrence with rehabilitation and restorative justice considerations.

The sentence reflected the accused's traumatic background, including residential school legacy, loss of children to CAS care, death of her son, and mental health struggles, while acknowledging the seriousness of the offence and the need for some custodial time given her lack of follow-through on programming while previously at liberty.

A 19-year-old First Nations offender pleaded guilty to robbery after assaulting a victim and stealing a small amount of marijuana.

The victim sustained a broken jaw from a single punch.

The court applied Gladue principles in sentencing, considering the offender's Aboriginal background, criminal history, youth, and genuine remorse.

The Crown sought a mid to upper reformatory range sentence (12 months to 2 years less a day), while the defence sought time served.

The court imposed a sentence of time served (218 days in custody) plus two years probation with conditions including substance abuse counselling and culturally appropriate First Nations-based programming.