Indigenous Legal Issues - ONCA

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.

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.

The appellant, convicted of two counts of break and enter, appealed his 3-year sentence, arguing the trial judge erred by incorrectly applying Gladue principles.

Specifically, the appellant contended the trial judge failed in her duty to fill evidentiary gaps regarding rehabilitation options.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's approach.

The court held that the trial judge was not obligated to grant further adjournments, as defence counsel had provided significant information about the appellant's Indigenous background, and the judge had inquired about rehabilitation programs, which the appellant declined.

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.

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 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.

This is an appeal concerning the disposition of statistical reports and records arising from the Indian Residential Schools Settlement Agreement (IRSSA) and the Independent Assessment Process (IAP).

The National Centre for Truth and Reconciliation (NCTR) appealed a lower court order that dismissed a request to generate and archive "proposed Static Reports" and excluded certain "Non-Claim Records." The Court of Appeal found that the Supervising Judge erred in dismissing the request for proposed Static Reports due to insufficient evidentiary foundation regarding confidentiality risks, reliability, and utility for truth and reconciliation.

The court remitted this issue for rehearing and ordered a stay on the destruction of the SADRE database.

The appeal regarding the exclusion of specific Non-Claim Records was dismissed, as the Supervising Judge properly balanced privacy and historical preservation interests.

The appellant appealed his designation as a dangerous offender and his indeterminate sentence following guilty pleas to two counts of aggravated sexual assault.

The offences involved failing to disclose his HIV-positive status to two women before having unprotected sex with them, resulting in both women contracting HIV.

The appellant had a lengthy criminal record including convictions for sexual assault causing bodily harm, counselling the murder of a police officer, uttering threats, and possession of a weapon for a dangerous purpose.

Both Crown and defence psychiatrists assessed him as having antisocial personality disorder with psychopathic traits and marijuana dependence disorder, presenting moderate to high risk for sexual and violent recidivism.

The sentencing judge designated him as a dangerous offender and imposed an indeterminate sentence.

The Crown conceded two errors: failure to conduct prospective risk assessment at the designation stage and failure to consider Gladue factors.

The appeal was dismissed as there was no reasonable possibility the errors affected the outcome.

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 appellant sought leave to appeal from a global sentence of six years imposed for multiple offences including dangerous driving, attempted robbery, attempted theft, possession of stolen property, possession of instruments for breaking and entering, and driving while disqualified.

The Court of Appeal found that the sentencing judge erred in failing to give adequate weight to Gladue factors relating to the appellant's Aboriginal background, intergenerational trauma, and systemic disadvantage.

The court reduced the sentence to four years, emphasizing that Gladue principles apply to serious offences and that consideration of such factors does not constitute a race-based discount but rather recognizes reduced moral blameworthiness and the disproportionate representation of Aboriginal peoples in the prison system.

Two members of the Haudenosaunee (Six Nations of the Grand River) brought a family law dispute regarding custody, child support, and spousal support.

The respondent raised a constitutional claim under s. 35 of the Constitution Act, 1982, asserting an Aboriginal right to have the dispute resolved through Haudenosaunee governance processes and laws rather than Ontario family law.

The motion judge struck the constitutional claim without leave to amend and dismissed it as lacking standing and justiciability.

The appellant appealed.

The Court of Appeal allowed the appeal in part, setting aside the dismissal of the constitutional claim and permitting the appellant to seek leave to amend his pleading.

The court held that while the constitutional claim faced serious obstacles, it was premature to dismiss it summarily at an early stage of proceedings.

The court also refused to stay the family law proceedings and permitted interim support orders to continue pending resolution of the constitutional claim.

The appellant appealed her convictions for possession of morphine and possession of morphine for the purpose of trafficking, as well as an eight-month sentence imposed by the trial judge.

The appellant argued that the trial judge erred in assessing the credibility of a key defence witness and failed to properly apply Gladue principles in sentencing.

The Court of Appeal dismissed both the conviction and sentence appeals, finding that the trial judge properly rejected the defence evidence and adequately considered the appellant's Aboriginal background and personal circumstances in imposing a fit sentence.

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 appellants, towing companies owned by members of the Six Nations of Grand River Indian Reserve, sought to retain vehicles towed and stored at their facilities pending payment of towing and storage fees.

The respondent insurance company, which had acquired ownership of the vehicles following accidents or thefts, brought applications under the Repair and Storage Liens Act to retrieve the vehicles.

The appellants claimed exemption from the provincial lien regime under section 89(1) of the Indian Act, arguing that the vehicles constituted personal property of Indians located on a reserve and therefore could not be seized by non-Indian parties.

The Court of Appeal dismissed the appeal, holding that section 89(1) of the Indian Act only protects against seizure by creditors or the Crown, not by debtors.

Since the respondent was a debtor rather than a creditor, the appellants could not claim the protection of section 89(1).

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 respondents, a corporation and four individual shareholders, sued the Crown for damages arising from two theories of liability: forced incorporation and failure to enforce.

Under the forced incorporation theory, the respondents alleged that Crown misconduct forced them to incorporate their partnership, resulting in tax liability they would have avoided as Indians under section 87 of the Indian Act.

Under the failure to enforce theory, they alleged the Crown failed to properly implement an anti-smuggling initiative, causing them to compete unfairly against unlicensed contraband manufacturers.

The Crown appealed a motion judge's decision refusing to strike the claims.

The Court of Appeal dismissed the forced incorporation appeal, allowing it to proceed to trial, but allowed the failure to enforce appeal in part by striking the fiduciary duty claims while permitting the negligence and misfeasance claims to proceed.

The appellant appealed his convictions for sexual interference, sexual assault, and failing to comply with a recognizance, as well as his indeterminate sentence as a dangerous offender.

The trial judge found the appellant guilty based on the complainant's evidence, which was corroborated by medical findings and DNA evidence.

The appellant argued the trial judge applied uneven scrutiny to the evidence and failed to properly apply the principles from R. v. W. (R.) regarding assessment of child witness testimony.

On sentencing, the appellant argued the trial judge failed to consider Gladue factors and section 718.2(e) of the Criminal Code.

The Court of Appeal dismissed both appeals, finding no error in the trial judge's credibility assessments, proper application of the legal principles, and that Gladue considerations would not have altered the dangerous offender designation given the appellant's incurable personality disorder and paraphilias.

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.