Indigenous Legal Issues

This decision addresses two Applications for Openness brought by the Office of the Children's Lawyer on behalf of two Metis children placed for adoption with their younger siblings.

The court considered the best interests of the children, the meaningfulness and benefit of ongoing contact with birth parents, and the importance of cultural connection under both the Child, Youth and Family Services Act (CYFSA) and the Federal Act respecting First Nations, Inuit and Métis children.

The court balanced the children's strong desire for contact and cultural connection against the risks posed by the birth parents' aggressive and disruptive behavior, particularly the father's history of threats and criminal charges.

The final openness order permits indirect contact through annual updates and messages, with strict conditions to protect the adoptive placement's stability and safety.

John Nanibush, an Indigenous man facing multiple Criminal Code and CDSA charges, including weapon and drug offences, and with a history of non-compliance with court orders, applied for judicial interim release.

The Crown sought his detention, citing secondary ground concerns.

The court, acknowledging the reverse onus, considered Mr. Nanibush's traumatic background, Indigenous identity (Gladue principles), and the inhumane conditions at the Toronto South Detention Centre (TSDC).

The judge found that the proposed community support plan, including culturally appropriate programming and mental health/addiction support, adequately addressed the secondary ground concerns, and released Mr. Nanibush on his own recognizance without a surety.

Richard Trudeau pleaded guilty to sexual assault.

The Crown sought the maximum jail sentence, while the defence argued for a Conditional Sentence Order (CSO) due to the accused's Indigenous background and cognitive disability.

The court, applying Gladue principles and considering the victim's impact statement and the accused's personal circumstances, including his sincere remorse and commitment to sobriety, determined that an 18-month CSO followed by 24 months probation was appropriate.

The judge emphasized that incarceration would disproportionately harm the Indigenous offender and impede rehabilitation, aligning with the remedial purpose of s. 718.2(e) of the Criminal Code.

This endorsement addresses the temporary care and custody of a First Nation child, Z.O., who was removed from M.O.'s care and subsequently placed with his biological father, J.K. The court considered the Child, Youth and Family Services Act, 2017 (CYFSA) and the federal An Act respecting First Nations, Inuit and Metis children, youth and families.

The court emphasized the priority of placement with a biological parent under the federal legislation, finding that Z.O.'s best interests were met by remaining with J.K., given no protection concerns and J.K.'s ability to provide cultural connection.

The "without prejudice" term of a previous interim order placing the child with J.K. was removed.

The offender, Connor Madison, was found guilty of second-degree murder for the fatal stabbing of Stephon Knight-Roberts.

The court was tasked with determining the period of parole ineligibility, which is statutorily set at a minimum of 10 years for second-degree murder.

Considering the brutal and prolonged nature of the offence, the offender's armed presence despite recognizances, and the devastating impact on the victim's family, balanced against the offender's Indigenous background, difficult upbringing, mental health issues, and genuine remorse, the court fixed the parole ineligibility period at 13 years.

Namaygoosisagagun Ojibway Nation sought leave to intervene in the Robinson Superior Treaty action under Rule 13.01(1) of the Rules of Civil Procedure.

The plaintiffs and Gull Bay First Nation opposed the intervention, arguing that Namaygoosisagagun was not a recognized band and lacked a collective interest.

The Crown defendants consented with provisos to prevent litigation of Namaygoosisagagun's band status or s. 35 rights within this proceeding.

The court granted leave to intervene, finding that Namaygoosisagagun had a contingent collective interest that met the low threshold for intervention, but imposed strict conditions prohibiting them from seeking to prove or determine issues related to their band status, s. 35 rights, or beneficiary status under the Treaty, and from making submissions conflicting with the plaintiffs' position on distribution.

The Catholic Children's Aid Society brought a summary judgment motion seeking a final order that the child, D.B., was in need of protection, placement in extended society care with no access for adoption planning, and statutory findings regarding identity.

The respondent mother opposed, arguing for a trial and the child's return.

The court found overwhelming evidence of risk to the child due to the mother's untreated mental health issues, anger, and unstable living situation, and her inability to engage with services.

The motion was granted, finding the child in need of protection and ordering extended society care with limited, non-physical access for the mother.

Six band members of Pikangikum First Nation challenged the unavailability of intermittent sentences for mandatory minimum drinking and driving offences, arguing the practical impossibility of compliance due to geographic isolation violated their Charter rights to equality, freedom from cruel and unusual punishment, and constituted an abuse of process.

The court found the provision violated section 15 of the Charter as it discriminated against on-reserve members of the First Nation based on an analogous ground.

The Crown's undertaking to finance transportation to the jail rendered the applications moot, but the court addressed the constitutional issues given their public importance and impact on future cases.

The defendant pleaded guilty to careless driving causing death under s. 130(3) of the Highway Traffic Act following a fatal motor vehicle collision on May 16, 2019.

The defendant failed to stop at a stop sign while traveling at approximately 60 km/h and struck a vehicle with the right of way, resulting in the death of the other driver.

The court accepted a joint submission on sentence that imposed a $2,000 fine, a four-year driving prohibition, and two years of probation with conditions including 50 hours of community service.

The court considered the defendant's remorse, community contributions, Indigenous heritage, and the impacts of residential school trauma on her family as mitigating factors.

A child protection society brought a motion to place four children in the care of their paternal grandparents, subject to society supervision.

The mother opposed the motion and sought return of the children to her custody.

The court found that the mother had proactively addressed the addiction issues that originally prompted the society's intervention, had completed treatment, and was meaningfully engaged in ongoing services.

The court determined that the protection concerns could be adequately mitigated through a supervision order and that returning the children to the mother's care was consistent with Anishinaabe cultural traditions and the remedial purposes of the Child, Youth and Family Services Act.

The court ordered the children placed in the mother's custody subject to supervision and specific conditions.

A temporary motion concerning parenting arrangements and relocation of a child.

The applicant, the child's step-grandmother, sought custody and permission to relocate with the child from Toronto to Fonthill, Ontario.

The respondent, the child's biological mother, opposed the relocation and sought expanded access.

The court granted the applicant temporary custody and permission to relocate, finding that the applicant had provided stable care for two years and that the move would not necessarily disrupt the mother's relationship with the child.

The court ordered supervised parenting time for the mother with specific access arrangements adapted to the new location.

A Trial Management Conference was scheduled but did not proceed as planned.

Instead, the court addressed five procedural issues: (1) the withdrawal of constitutional jurisdiction challenges by both the mother and M'Chigeeng First Nation, with the mother now accepting the court's jurisdiction over custody, access, and child support matters; (2) the removal of the amicus curiae appointed to address constitutional issues; (3) the conversion of the Children's Lawyer's role from representation under section 89(3.1) to investigation and reporting under section 112 of the Courts of Justice Act; (4) the scheduling of a Settlement Conference before the trial judge; and (5) procedural orders regarding costs submissions and settlement conference briefs.

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.

This decision addresses a motion by M'Chigeeng First Nation to transfer a family law custody and access case from the Ontario Court of Justice to the Ontario Superior Court of Justice.

The case involves three Indigenous children whose parents are members of different First Nations.

The mother and M'Chigeeng First Nation asserted section 35 constitutional rights regarding jurisdiction over the children.

The court dismissed the transfer motion, finding that the Ontario Court of Justice has jurisdiction to hear constitutional claims and grant meaningful remedies short of declaratory relief.

The court also addressed costs of prior motions, appointed amicus curiae, and provided directions for trial preparation.

The accused pleaded guilty to recklessly causing damage by fire to occupied property and participating in a riot while covering his face, arising from a January 27, 2019 incident at the Algoma Treatment and Remand Centre.

The riot resulted in approximately $50,000 in damages.

The court imposed a sentence of 17 months incarceration followed by two years probation, with a 30-day reduction for lockdown and COVID-19 conditions.

The court rejected the defence's requests for enhanced pre-sentence custody credits for collateral consequences, Duncan credits for lockdowns, and additional COVID-19 credits, finding the sentence already at the low end of the appropriate range.

A status review application concerning four children of Métis heritage who were apprehended due to neglect, domestic violence, parental cognitive limitations, and transiency.

The parents sought return of the two older children to the mother's care subject to a supervision order, with the father residing separately.

The court found the children in continuing need of protection and determined that extended society care was in their best interests.

The court ordered the two older children placed in extended care with the culturally matched Métis foster family, with minimum three face-to-face visits annually with the parents as access holders.

The accused, a young Aboriginal first offender, was convicted of impaired driving and operating a motor vehicle with a blood alcohol concentration exceeding 80 mg/100 ml of blood.

She brought constitutional challenges under sections 15 and 12 of the Canadian Charter of Rights and Freedoms.

The section 15 challenge alleged that Ontario's failure to proclaim curative discharge provisions violated equality rights by discriminating against Aboriginal offenders.

The section 12 challenge alleged that the mandatory minimum sentence was grossly disproportionate, particularly given the requirement to enter a conviction and the applicant's Aboriginal background and Gladue principles.

The court dismissed both constitutional challenges and imposed a sentence of a $1,200 fine, a 15-month driving prohibition, and two years probation with mandatory alcohol counselling.

The accused pleaded guilty to assault of a police officer, breach of probation, uttering threats to kill, attempted theft of a motor vehicle, and mischief.

The offences occurred on October 30, 2019, and involved threatening a homeowner and her family, assaulting a security guard with racial slurs and damaging his phone, and spitting on a police officer's face while in custody.

The Crown sought 15-18 months imprisonment; the defence sought 9-12 months or time served given COVID-19 circumstances.

The court imposed a sentence of 1 day plus 252 days of enhanced presentence custody (8.2 months), effectively time served, along with a 12-month probation order with no-contact conditions and ancillary orders including a DNA order and 10-year weapons prohibition.

The applicant father sought temporary sole custody of two children, an order that they be returned to Toronto from M'Chigeeng First Nation where the respondent mother had unilaterally taken them, and police enforcement of a prior ex parte order.

The respondent mother sought temporary joint custody with the children remaining on M'Chigeeng First Nation, a restraining order, and challenged the court's jurisdiction based on section 35 of the Constitution Act, 1982.

M'Chigeeng First Nation intervened, asserting exclusive jurisdiction over the children and instructing a local First Nations police service not to enforce the court's order.

The court granted temporary joint custody, ordered the children returned to Toronto, dismissed the mother's request for relocation and restraining order, and declined to order police enforcement or find contempt, giving the mother one final opportunity to comply voluntarily.

A property owner sued purchasers for breach of an alleged agreement permitting the return of chattels after the sale of reserve land and buildings.

The court interpreted the written land and chattels agreement and found that ownership of all chattels transferred to the purchasers once the down payment was made.

An alleged later amendment involving waiver of mortgage interest was found unenforceable because the parties lacked consensus ad idem.

The court further found the vendor engaged in a prolonged campaign of harassment, intimidation, and attempts to evict the purchasers after the sale.

General and punitive damages were awarded to the defendants for harassment and mental distress.