Indigenous Legal Issues - ONCJ

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.

A child protection application brought by the Catholic Children's Aid Society of Toronto seeking to find an 8-month-old child in need of protection.

The central issue was whether the child qualified as a First Nations, Inuk or Métis child under the Child, Youth and Family Services Act, 2017.

The court determined that the child met the threshold for identification as a Métis child based on information from the maternal grandmother and great-grandmother, despite the lack of identified Métis communities in provincial regulations.

The court found the child in need of protection and ordered interim society care with a kinship assessment to proceed.

The accused, an Indigenous member of the Oneida Nation of the Thames, was sentenced for possessing methamphetamine and fentanyl for the purpose of trafficking.

The offences occurred while the accused was being processed for admission to a detention centre following a prior sentencing for assault.

The Crown sought 4 years custody while the defence sought 2 years.

The court imposed a sentence of 3½ years (42 months), with 15 months pre-sentence custody credited on a 1.5:1 basis, resulting in an additional 27 months custody.

The court applied Gladue principles recognizing the accused's Indigenous heritage and systemic background factors, including intergenerational trauma from residential schools, while maintaining that the serious nature of trafficking fentanyl in a custodial setting warranted a significant penitentiary sentence for denunciation and deterrence.

The Children's Aid Society of Algoma brought a motion seeking a determination under s.90(2)(b) and s.2(4) of the Child, Youth and Family Services Act (CYFSA) as to whether a one-year-old child (L.A.) is a First Nation child and, if so, whether Batchewana First Nation should be added as a party respondent.

The child's mother stated the child was not Native and not eligible for band registration.

The father indicated he was pursuing Native Status for himself and had a paternal grandfather who was a member of Batchewana band.

The court initially found the child was not a First Nation child but reopened the motion for additional evidence.

The court ultimately found the child was a First Nation child under the CYFSA based on information demonstrating a connection to Batchewana band through the father's eligibility for membership and the paternal grandfather's band membership.

Batchewana First Nation band representative was added as a party respondent.

This is a decision on the identification of a child under section 90(2) of the Child, Youth and Family Services Act (CYFSA).

The child was previously identified under the former Child and Family Services Act (CFSA), but re-identification was necessary under the new CYFSA framework.

The court examined the statutory requirements for identifying a child as a First Nations, Inuk, or Métis child, including membership in a band and identification with a band or community.

The court found that the child was not a First Nations child, as the child was not on any band membership list and neither parent had indicated the band with which the child identifies.

A child protection trial involving three children (AB, AM, and MM) brought by the Halton Children's Aid Society.

The mother (MM) and father of two of the children (DJ) were convicted of sexual crimes against the mother's oldest child (JB).

The court found all three children in need of protection under the Child and Family Services Act based on risk of sexual molestation or exploitation and, for two children, parental unavailability.

AB was placed with her biological father under a supervision order; AM and MM were placed with their maternal aunt and uncle under a supervision order.

The mother was granted minimal access (one weekly phone call and one monthly letter) with no in-person access ordered at the time of judgment.

The accused pleaded guilty to one count of sexual interference with a 14-year-old victim.

The offence occurred between September 2015 and June 2016 while the accused was living with her father and stepmother.

The sexual activity included intercourse, oral sex, and masturbation occurring between three and six times.

The accused admitted to the conduct and provided an inculpatory statement to police.

The court imposed a sentence of 18 months' imprisonment followed by 18 months' probation, along with ancillary orders including DNA sampling, SOIRA registration for 20 years, and a section 161 prohibition order for five years.

This is a ruling on whether the definitions of "Indian" and "Native" person in the Child and Family Services Act violate equality rights under section 15(1) of the Canadian Charter of Rights and Freedoms.

The applicant society sought summary judgment in a child protection application, requesting that the child be found not to be an Indian or Native person under the Act.

The child's mother is Indigenous and the maternal grandmother is a registered member of the Qalipu Mi'kmak First Nations Band.

However, the child does not have Indian status under the Indian Act because the mother has not applied for membership in the Band.

The court found that the statutory definitions create a distinction based on an analogous ground and perpetuate disadvantage to Indigenous children who do not fall within the narrow definitions, thereby violating section 15(1) of the Charter.

The court granted the child an individual remedy under section 24(1) of the Charter, ordering that the child be treated as if he were an Indian, Native person or Native child for all purposes of the protection application and any related proceedings.

The Children's Aid Society of Toronto brought a motion to transfer a child protection case involving four children to Native Child and Family Services (NCFS) based on the grandmother's claim of Metis heritage.

The court found that while it had implied jurisdiction to order such a transfer to accomplish the statutory purpose of recognizing Aboriginal heritage in child protection proceedings, the motion was dismissed because the transfer would cause unacceptable delay and disruption at an advanced stage of the case.

The court treated the children as Aboriginal for purposes of the proceeding and noted that the Society could still provide culturally appropriate services while retaining the case.

The Children's Aid Society of Algoma brought a motion to transfer carriage of child protection proceedings to Nogdawindamin Family and Community Services, a newly designated native children's aid society.

The court examined the ministerial designation of Nogdawindamin CAS and determined that it had jurisdiction only over children who were members of the seven specified First Nations bands residing on reserves or who met specific criteria under the designation.

The court granted the transfer motion with respect to one child (A.M.) who was an identified Indian child entitled to membership in one of the designated bands and residing on reserve.

The court dismissed the transfer motion with respect to three other children (N.M., P.F., and M.M.) who had no connection to the designated First Nations or aboriginal status.

The decision addresses the complexities of jurisdictional issues arising from the creation of native children's aid societies and the interplay between geographical and personal designations.

This decision addresses a motion by Children's Aid Society of Algoma (Algoma CAS) seeking to substitute Nogdawindamin Family and Community Services (Nogdawindamin CAS) as the applicant in child protection proceedings.

The motion arises from the recent designation of Nogdawindamin, a native agency, as a children's aid society effective April 1, 2017.

The court examined the Minister's designation of Nogdawindamin CAS, which contains both geographical and personal jurisdictional components, as well as conditions restricting certain functions pending consultation and coordination with other First Nations communities.

The court determined that the children and mother in this case, as registered or eligible members of Batchewana First Nation, fall within Nogdawindamin CAS's jurisdiction under paragraph 1 of its designation.

The motion was granted, and the proceeding was transferred to Nogdawindamin CAS with ancillary orders for change of solicitors and amendment of the title of the proceeding.

The accused, a 53-year-old member of the Couchiching First Nation, pleaded guilty to mischief, possession of a weapon for a purpose dangerous to the public peace, breach of undertaking by possessing a weapon, and assault.

The offences arose from two incidents: first, damage to a kitchen countertop and threats with a baseball bat during a confrontation with his common-law partner; second, a barricaded situation involving a loaded shotgun during a suicidal crisis.

The court imposed a restorative sentence emphasizing Gladue principles, recognizing the intergenerational trauma stemming from residential schools and the unique circumstances of Aboriginal offenders.

The court heard two motions brought by respondent parents in a child protection proceeding.

The respondent mother sought a declaration that she and three youngest children are Native and/or eligible for status as Indians under the Child and Family Services Act, and requested that the Mohawks of the Bay of Quinte be served and permitted to participate in proceedings.

The respondent father D.M.'s motion was dismissed as he did not appear.

The court adjourned the mother's motion to May 6, 2016, and made orders regarding service on the Band, participation at hearings, and case management to address delays caused by the parties' conduct and the voluminous materials filed.

The offender, a 40-year-old Aboriginal man, pleaded guilty to possession of approximately 300 grams of cocaine for the purpose of trafficking.

The Crown sought a maximum reformatory sentence of two years less a day, emphasizing deterrence and denunciation.

The defence sought a maximum intermittent sentence of 90 days followed by probation.

The court imposed a suspended sentence with 30 months of probation, finding that the offender's Indigenous ancestry, significant rehabilitation efforts since arrest, cultural reintegration, and commitment to family, education, and employment warranted a non-custodial disposition consistent with Gladue and Ipeelee principles and restorative justice objectives.

The defendant pleaded guilty to assault causing bodily harm against Raymond King, his step-father.

The Crown sought six months imprisonment while defence counsel sought a suspended sentence or conditional sentence.

The court imposed a conditional sentence of nine months in the community followed by two years probation, with strict conditions including home confinement, no contact with the victim, and mandatory counselling for anger management and substance abuse.

The court applied Gladue principles recognizing the defendant's Aboriginal heritage and difficult background while balancing the serious nature of the assault and the need for denunciation and deterrence.

The accused was charged with two counts of robbery, two counts of robbery with an imitation firearm, and one count of arson arising from incidents on February 19, 2014.

The Crown sought detention on primary and secondary grounds.

The accused, who is of Aboriginal descent, proposed his mother as surety with a house arrest plan.

The court found that the Crown satisfied its onus on both the primary ground (ensuring attendance in court) and the secondary ground (protection of the public).

The accused's extensive criminal history involving violence and weapons, combined with his demonstrated non-compliance with court orders and supervision, established that detention was necessary.

The court ordered the accused detained in custody.

The accused pleaded guilty to two breaches of a section 810.2 recognizance and possession of marijuana.

The recognizance required the accused not to consume or possess drugs or alcohol and to carry a copy of the order.

The accused was arrested with 2.4 grams of marijuana and could not produce the recognizance.

The court imposed a sentence of four months jail, less 78 days pre-plea custody, leaving 42 days to serve, followed by a two-year probation order with conditions including abstinence from alcohol and drugs, reporting to probation, and participation in culturally appropriate counselling and assessment.

The accused pleaded guilty to distributing child pornography and luring a child by means of a computer system.

The Crown proceeded by indictment.

The accused made contact with what he believed was a fifteen-year-old girl over the internet on two occasions, counselling her on masturbation.

He subsequently sent explicit videos depicting young children engaged in sexual acts.

A search of his residence revealed 1,071 photographs and eleven videos of child pornography depicting children as young as three to five years old.

The court imposed a sentence of 15 months imprisonment, balancing the serious nature of the offences against mitigating factors including the accused's Aboriginal status, early guilty plea, genuine remorse, and support from family and community.

A youth charged with sexual assault and criminal negligence causing death pleaded guilty to both offences.

The Crown sought an adult sentence under the Youth Criminal Justice Act, arguing the offences were sufficiently serious.

The court considered psychiatric evidence, a pre-sentence report, victim impact statements, and the youth's background.

The court rejected the Crown's application for an adult sentence, finding that the presumption of diminished moral responsibility had not been rebutted and that a youth sentence was appropriate and sufficient for accountability.

The accused, an Aboriginal woman from Long Lake 58 First Nation, pleaded guilty to trafficking marijuana to three children aged 11 to 14 years.

She was bound by a conditional sentence order at the time of the offence.

The Crown sought six to nine months imprisonment; the defence sought a conditional sentence of six months.

The court imposed four months imprisonment followed by twelve months probation with conditions including abstinence from controlled substances and participation in rehabilitative programs.

A ten-year firearms prohibition was also imposed.

The court balanced the serious nature of trafficking to children with Gladue factors reflecting the accused's history of abuse, neglect, and systemic disadvantage.