Indigenous Legal Issues - ONCJ

The Anishinaabe Abinooji Family Services (AAFS) brought a motion for temporary care and custody of a 12-year-old Indigenous child, M.P., who was apprehended after threatening self-harm if forced to return to the care of Traci Lockman, a non-Indigenous former caregiver.

The child's biological father, N.J., and the G.N. First Nation (GNFN) supported the AAFS's position to place M.P. with her elder sister, S.P., in the First Nation community.

Ms. Lockman sought the child's return to her care.

The court applied the Child, Youth and Family Services Act, 2017 (CYFSA) and the paramount federal An Act Respecting the First Nations, Inuit and Metis Children Youth and Families (Federal Act).

The court found that AAFS discharged its onus, establishing reasonable and probable grounds of risk of harm if the child returned to Ms. Lockman.

Emphasizing the Federal Act's priority of placement scheme and the child's best interests, including cultural continuity and connection to the Indigenous community, the court determined that S.P., as an adult family member, had priority over Ms. Lockman, who was not considered family by the First Nation or the father.

The court dismissed Ms. Lockman's request and ordered M.P. to remain in the temporary care and custody of S.P. under AAFS and GNFN supervision, with structured access for Ms. Lockman.

The Children's Aid Society of Algoma brought a motion to sever the case involving the child Z.O. from an existing child protection application and transfer the matter to Nogdawindamin Family and Community Services, an Indigenous child welfare agency.

Z.O.'s father (J.K.) and Serpent River First Nation, along with Nogdawindamin, consented to the motion.

The mother (A.B.) and step-father (M.O.) opposed the transfer, arguing that Z.O.'s half-sibling (A.O.) should also be transferred to keep the siblings together, or that the severance should be denied if A.O. was not included.

The court granted the severance and transfer of Z.O. to Nogdawindamin, emphasizing the legislative purpose of the Child, Youth and Family Services Act and An Act respecting First Nations, Inuit and Métis children, youth and families, which support Indigenous child welfare agencies providing culturally appropriate services.

The court declined to transfer A.O., as she was not identified as First Nations, Inuit, or Métis, but noted the importance of reciprocating sibling access.

This decision concerns the sentencing of an Indigenous offender, Evan Buswa, who pleaded guilty to multiple charges including theft, break and enter, and breaches of court orders, primarily involving the theft of donation and tip boxes.

The court considered significant mitigating factors such as the offender's Indigenous heritage, chronic homelessness, mental health challenges (schizophrenia), and substance addiction, applying Gladue principles.

Despite the Crown seeking a one-year jail sentence, the court emphasized the disproportionate impact of incarceration on vulnerable Indigenous individuals and the systemic factors contributing to their over-representation in the criminal justice system.

The judge ultimately imposed a suspended sentence with one year of probation, highlighting that jails are not a solution for issues rooted in poverty, mental health, and addiction.

Peter Burrill pleaded guilty to ten criminal charges, including theft, possession of break-in instruments, assault, possession of a weapon for a dangerous purpose, and robbery.

The Crown sought an 11-month sentence, while the defence proposed a 90-day intermittent sentence.

The court considered the gravity of the offences, the offender's significant criminal record, and the Gladue principles, noting his displacement from Indigenous heritage due to the Sixties Scoop.

The court also addressed the impact of punitive pre-trial detention conditions and the Ministry's policy allowing intermittent sentences to be served at home via temporary absence permits (TAP).

The court ultimately imposed a 90-day intermittent sentence for robbery and suspended sentences with two years' probation for the other counts, along with a lifetime section 109 order and a DNA order.

The Children's Aid Society of Brant brought a motion for summary judgment seeking continued protection findings for the child T.E.H., an order for deemed custody to the paternal aunt L.H., specific access orders for the mother and siblings, no access for the mother's partner, and discretionary access for the father.

The court found T.E.H. to be in continuing need of protection due to risk of emotional harm.

It granted deemed custody to the paternal aunt, L.H., prioritizing the child's best interests and Indigenous cultural identity.

The court made temporary access orders for the mother and siblings, but declined to make a "no access" order for the mother's partner or a discretionary access order for the father, emphasizing the court's obligation to impose specific terms and conditions for access.

The defendants sought to qualify Dr. Sidney Harring as an expert on the existence and territory of the Amikwa Nation to support their Section 35(1) aboriginal rights claim.

The Crown opposed.

The court applied the two-stage test for expert evidence admissibility from White Burgess and R. v. Abbey (Abbey #2).

The court found Dr. Harring's evidence failed the threshold requirement for proper qualification due to lack of impartiality, independence, and bias, stemming from his reliance on secondary sources, unverified information from an interested party (Stacey McQuabbie), and contradictions with source documents.

The court also found the evidence would be excluded at the gatekeeper stage due to unreliability.

Consequently, Dr. Harring was not qualified as an expert.

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.

The applicant Ogwadeni:deo sought to withdraw an amended child protection application and replace it with a formal customary care agreement, despite the biological parents not having signed the agreement.

The Six Nations Band argued that its governing resolution, enabled by the new federal legislation (Bill C-92), authorized the Band to sign the customary care agreement on behalf of the parents.

The court denied the motion to withdraw the protection application, finding insufficient evidence regarding the child's welfare and best interests, and noting the lack of court oversight since the initial temporary order in 2018.

The defendant pleaded guilty to owning and driving a motor vehicle without automobile insurance contrary to the Compulsory Automobile Insurance Act.

The Crown sought the minimum fine of $5,000, while the defence argued for $500 based on Gladue principles and financial hardship.

The court found that Gladue principles apply to sentencing under s. 59(2) of the Provincial Offences Act, and that the defendant's circumstances as a grandchild of residential school survivors, single mother of two children, and participant in the Indigenous Mother's Gateway Program constituted exceptional circumstances warranting relief from the minimum fine.

The court imposed a fine of $1,500 payable over 15 months and placed the defendant on probation for 15 months.

The accused, an Indigenous woman with a history of trauma, abuse, and substance addiction, was sentenced following guilty pleas to impaired driving causing bodily harm, possession of cocaine, failing to comply with bail conditions, and theft.

The court imposed a blended sentence consisting of 24 days intermittent custody on weekends for impaired driving, a four-month conditional sentence for drug possession, concurrent probation orders, a three-year driving prohibition, a DNA order, and a ten-year firearms prohibition.

The sentencing decision applied Gladue principles, recognizing systemic disadvantages and the offender's efforts toward rehabilitation while balancing denunciation and deterrence.

An aboriginal first-time offender was sentenced for trafficking in marijuana over 3 kg, possession of marijuana over 3 kg for the purpose of trafficking, and possession of cannabis resin for the purpose of trafficking.

The offender operated a marijuana dispensary and later supplied other dispensaries during a period of uncertain law enforcement.

The court imposed a 45-day intermittent sentence, considering the evolving social attitudes toward marijuana, the offender's benevolent intentions, his aboriginal status and family background, his lack of prior record, and his strong rehabilitation prospects since arrest.

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.

The offender pleaded guilty to robbing Jonathan Pavkovic in Orangeville on July 31, 2016.

The offence involved a vicious unprovoked sucker punch that rendered the victim unconscious, followed by theft of his wallet, house keys, and cell phone while he lay bleeding and defenceless.

The offender was intoxicated, driving with a suspended licence in violation of an alcohol-free condition, and ignored pleas from his companion to desist.

The offender has an extensive criminal history including twelve violent convictions over fourteen years and demonstrated poor institutional behaviour during 372 days of pre-trial custody.

The court imposed an 18-month custodial sentence with 1:1 credit for pre-trial custody, resulting in 170 days remaining, followed by three years probation with strict conditions including restitution, DNA order, lifetime firearms prohibition, and communication prohibition.

Two Indigenous men from Pikangikum First Nation were sentenced following their guilty pleas to charges arising from a riot at the police detachment on June 27, 2015.

The riot began as a peaceful protest over an arrest involving tasering but escalated into violence, with the accused breaking into the detachment and attempting to breach the barracks where officers had retreated.

The court imposed conditional sentences with probation, crediting time served and emphasizing reconciliation and Gladue principles, while acknowledging the systemic social crisis affecting the community.

The court determined whether three children are Indian or native persons under the Child and Family Services Act.

The children's aid society argued the children were neither Indian nor native, while the mother sought a declaration that they were Indian with the Mohawks of the Bay of Quinte as their band.

The court found that the children are entitled to be registered as Indians under the Indian Act through their maternal lineage, tracing entitlement through their great-great-grandfather (R.M.), great-grandmother (E.B.), grandfather (R.W.), and mother (M.M.).

The court identified the Mohawks of the Bay of Quinte – Tyendinaga Mohawk Territory as the children's band.

The accused pleaded guilty to manslaughter in the death of Frank Lawson (aka Kwandibens) after initially being charged with second-degree murder.

The incident occurred during a drinking party in a remote First Nations community when the accused, carrying a paring knife for cutting moose meat, stabbed the deceased once in the chest after being pushed to the ground.

The accused immediately expressed remorse, called emergency services, and confessed to police.

The court imposed a sentence of six years imprisonment less time served (approximately twelve months on an enhanced basis), resulting in a net sentence of five years, applying Gladue considerations regarding the accused's history of abuse, substance abuse issues, and the systemic factors affecting Aboriginal offenders in remote communities.

The accused pleaded guilty to assaulting his nine-year-old son contrary to section 266 of the Criminal Code.

The assault involved striking the child with an open hand and a leather strap, causing welts and bruising.

The Crown sought custody, emphasizing the seriousness of violence against children and the breach of trust.

The defence sought a conditional discharge, highlighting the accused's genuine remorse, immediate self-reporting, participation in rehabilitative programs, and his status as an Aboriginal offender.

The court imposed a conditional discharge with 12 months probation, finding this to be a rare case warranting an exception to the general principle that violence against children demands incarceration and criminal conviction.

Following conviction for assault with a weapon and guilty pleas to common assault and breach of undertaking, the court sentenced an Aboriginal offender from Pikangikum First Nation to a global custodial sentence with probation.

The sentencing decision extensively applied Gladue principles, considering the offender's background of family trauma, substance abuse, and systemic disadvantage within an isolated First Nation community.

The court imposed a sentence of nine months pre-sentence custody credited plus six months additional imprisonment for the assault with a weapon, three months consecutive for common assault, and one month consecutive for breach of undertaking, followed by three years probation.

The decision emphasizes that while Gladue factors do not provide automatic sentence reductions, they require a different analytical approach and consideration of restorative justice alternatives.

The accused pleaded guilty to impaired driving and failing to provide a breath sample.

The Crown filed a Notice of Application for Increased Penalty, which would have mandated a minimum four-month custodial sentence.

The court considered whether the Crown's exercise of discretion in filing the Notice violated Section 7 of the Charter by failing to properly consider Gladue principles applicable to Aboriginal offenders.

The court found that the Crown's decision to file the Notice before receiving the Gladue report constituted a violation of Section 7 of the Charter, as it did not demonstrate proper consideration of the offender's unique circumstances as an Aboriginal person.

The Notice was set aside.

The court imposed a 12-month conditional sentence with strict conditions, including a curfew, substance abuse treatment, and participation in rehabilitative programming, along with a 12-month probation order and a three-year driving prohibition.

The accused, a 40-year-old Aboriginal man, pleaded guilty to sexually interfering with a 14-year-old girl who was a close friend of his daughter.

The offence involved multiple sexual acts, emotional manipulation, and a breach of trust.

The Crown sought a penitentiary sentence of two to three years, while the defence sought a lower reformatory sentence or intermittent custody.

The court imposed an eight-month jail sentence, applying Gladue principles while balancing denunciation and general deterrence.

The sentence also included a two-year probation order with conditions, a 20-year SOIRA order, a DNA order, and a 10-year prohibition order under section 161 of the Criminal Code.