Indigenous Legal Issues - OCA

On a statutory appeal under the Indian Act, the Registrar had removed the appellant's predecessors from the Indian Register on the basis that their 19th-century ancestor was lawfully withdrawn from treaty by the head of his family and validly received Metis scrip, disqualifying his descendants from registration.

The appeal judge reversed the Registrar, holding that the pre-1888 version of s. 13 did not permit a minor to be withdrawn from treaty along with the family head, and that the Registrar made palpable and overriding errors regarding the ancestor's age and an alleged scrip fraud.

A majority of the Court of Appeal allowed the Crown's appeal, holding that the text, context, and purpose of the 1886 withdrawal provision showed Parliament intended minor children to be withdrawn automatically when the family head withdrew, and that the factual findings on fraud and age were not affected by palpable and overriding error.

The majority restored the Registrar's decision.

One judge dissented, concluding that the formalities requirements in the 1886 provision connoted legal capacity, barred withdrawal of minors, and that any ambiguity should be resolved in favour of the descendant.

Case management direction on scheduling intervention motions and the hearing date for an appeal from the dismissal of a certification motion in a proposed class proceeding alleging systemic failures in the child welfare system respecting Indigenous children in out-of-home care off-reserve, including over-representation in care and gaps in essential services such as health and education.

The case management judge directed that intervention motion materials be filed by March 5, 2026, responding materials by April 10, 2026, and intervention motions be heard May 8, 2026.

The appeal was scheduled for two days in June or early fall 2026.

The applicants, appealing their convictions, sought disclosure or production of band lists used by the Court Services Division to prepare jury rolls in the Kenora District and Simcoe County.

They argued the lists were necessary to demonstrate systemic underrepresentation of First Nations persons on the jury rolls, which violated their Charter rights.

The Court of Appeal granted the application, finding that the requested records met the 'likely relevant' test for third-party production under O'Connor, as they could be used to test the statements of Crown deponents and understand the jury roll preparation process.

The applicants sought directions on how to proceed with their applications for disclosure of certain First Nation Band lists in furtherance of a constitutional challenge to their criminal convictions.

The Crown argued that the issue of public interest privilege should be heard and decided before determining the disclosure process (Stinchcombe or O'Connor) and whether disclosure is required.

The Court of Appeal directed that all three issues be argued at a single hearing to proceed expeditiously.

The Court also ordered that notice encompassing all three issues be given to the affected Bands to ensure transparency and allow them to make submissions.

The appellant appealed her custodial sentence.

The Court of Appeal allowed the appeal, finding the trial judge erred in principle by failing to obtain Gladue information for the Aboriginal offender and by incorrectly characterizing the offence as a breach of trust.

The court admitted fresh evidence regarding the impact of residential schools and pervasive oxycontin use in the appellant's community.

The sentence of imprisonment was reduced to time served, with the 18-month probation order remaining in place.

The Crown appealed the sentence imposed on the respondent.

The Court of Appeal found no basis to interfere with the trial judge's disposition, noting the trial judge considered all relevant principles, the seriousness of the offence, a Gladue report, and the respondent's substantial progress in addressing his alcohol problem prior to sentencing.

The respondent's post-sentence progress further confirmed the wisdom of the sentence.

The appeal was dismissed.

The appellant, an Aboriginal woman with a history of trauma including residential school attendance, pleaded guilty to aggravated assault after causing permanent brain damage to her two-year-old child.

She was sentenced to two years less a day in custody.

On appeal, she argued the sentencing judge failed to adequately consider her circumstances as an Aboriginal offender under the Gladue framework and erred in assessing aggravating factors.

The Court of Appeal dismissed the appeal, finding that the sentencing judge properly applied the Gladue methodology and that a custodial sentence was appropriate given the gravity of the offence and the need for denunciation and deterrence.

The appellants were successful on their appeal and sought costs.

The Court of Appeal awarded the appellants costs fixed at $50,000 inclusive of disbursements and GST.

The respondent Frontenac Ventures Corporation was ordered to pay $40,000, and the respondent Her Majesty the Queen in Right of Ontario was ordered to pay $10,000, as its position during the original contempt and sentencing hearings was instrumental in leading to the appeal.

The appellant, an Aboriginal offender, appealed his sentence.

The Crown conceded that the trial judge erred in law by failing to consider section 718.2(e) of the Criminal Code, which requires a different methodology for assessing a fit sentence for an Aboriginal offender.

The Court of Appeal, having reviewed a full Gladue report, granted leave to appeal and varied the sentence to time served (approximately 5 months) followed by probation.

The Attorney General of Ontario and the Ontario Provincial Police appealed a motions judge's order refusing to dissolve an injunction against Aboriginal protestors occupying a residential development, and requiring the Attorney General to take carriage of criminal contempt proceedings while reporting back to the court.

The Court of Appeal allowed the appeal in part.

It held that the motions judge erred in refusing to dissolve the injunction after the Ontario government purchased the property and consented to the occupation.

The Court maintained the referral of the contempt matters to the Attorney General, but imposed strict conditions, finding that the motions judge's previous contempt process was fundamentally flawed for denying procedural fairness and improperly interfering with police and prosecutorial discretion.

The appellant appealed his conviction and sentence for aggravated assault.

The Court of Appeal reserved its decision and determined that it required further evidence to properly decide the sentence appeal.

Pursuant to s. 687(1) of the Criminal Code and R. v. Gladue, the court ordered the preparation of a further pre-sentence report addressing the systemic and background factors relevant to the Aboriginal offender.

The appellants, members of various First Nations, sought to bring a class proceeding against the federal government and church entities for harms suffered at the Mohawk Institute Residential School between 1922 and 1969.

The motion judge and Divisional Court denied certification.

The Court of Appeal allowed the appeal, finding that the criteria for certification under s. 5(1) of the Class Proceedings Act, 1992 were met, including identifiable classes, common issues such as systemic negligence and breach of fiduciary duty, and the preferability of a class action.

The appellants, the chief and band council of the Wasauksing First Nation, appealed a decision dismissing their application to rectify the corporate records of Wasausink Lands Inc. (WLI) to reflect that all band members were members of WLI and the band council were its directors.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's conclusion that the factual basis for rectification was not established and that s. 309(1) of the Corporations Act is not intended for fundamental corporate restructuring.

The Court also declined to impose a constructive trust as it was raised for the first time on appeal, and rejected the claim for a constitutional exemption based on aboriginal rights.

The Attorney General of Canada brought an application to determine which Indian Bands were the beneficial owners of the Agency One Reserve, created in 1875 pursuant to Treaty 3.

The applications judge found that the reserve was set apart solely for the use and benefit of the Rainy Lake Bands, based on historical evidence including a 1908 surrender of land.

The Rainy River Bands appealed.

The Court of Appeal upheld the applications judge's decision on entitlement, finding it supported by the evidence.

However, the Court allowed the appeal and cross-appeal regarding costs, ordering the Crown to pay the bands' costs of the application on a substantial-indemnity basis due to its fiduciary role and its responsibility for the historical uncertainty.