Indigenous Legal Issues - ONCJ

An Indigenous child came into the care of a child protection agency shortly after birth due to maternal drug addiction and prenatal substance exposure.

The agency sought an extension of statutory timelines under section 122(5) of the provincial Child, Youth and Family Services Act to maintain the child in interim care for an additional three months beyond the one-year limit applicable to children under six.

The extension was sought to allow the child to remain in a placement within the child's First Nation community on Christian Island, thereby facilitating the development of relationships with family and community members and increasing the likelihood of a permanent kinship or community-based placement.

The court granted the extension, applying the enhanced best interests test under the federal An Act Respecting First Nations, Inuit and Metis Children, Youth and Families.

This motion for summary judgment concerned the placement of A.M., an Indigenous child, in extended society care.

The Children's Aid Society sought an order for extended care, while the biological mother opposed it, advocating for A.M.'s return to her care.

The court emphasized the "last resort" nature of extended care, particularly for Indigenous children, and the statutory priority for family and community placements under federal legislation.

The Society failed to demonstrate that there was no genuine issue for trial, specifically lacking evidence of exhaustive efforts to find permanent family or community placements.

The motion was dismissed, preserving the possibility of A.M.'s return to her mother's care after a full trial.

The respondent mother, A.D., brought a motion to vary a previous statutory finding under subsection 90(2) of the Child, Youth and Family Services Act, 2017, to include a finding that her children, K.Re. and A.Re., are Métis persons.

The court considered its jurisdiction to revisit prior findings, interpreting the CYFSA remedially to allow for such variations in the children's best interests, especially given the Act's emphasis on Indigenous children's cultural identity and community connection.

Based on the uncontroverted evidence of the parents' self-identification and engagement with Métis community services, the court found sufficient credible and reliable evidence to support the Métis identification.

The motion was granted, vacating the previous finding and declaring the children Métis.

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.

A child protection application under the Child, Youth and Family Services Act where the society sought extended society care with no access, and the respondent mother sought return of the child with supervision.

The court found the child in need of protection due to risk of physical and emotional harm arising from the mother's untreated mental health issues (severe PTSD, anxiety, depression, emotional dysregulation), ongoing substance abuse (crystal methamphetamine and marijuana), inability to follow professional direction, and lack of reliable family support.

The court determined the child was not a First Nations, Inuk or Métis child and made an order for extended society care without access, with the foster parents approved for adoption.

The respondent father sought to change the access provisions of a 2009 custody and access order, requesting either a 45/55 shared parenting schedule (as recommended by the Office of the Children's Lawyer in 2013) or a 50/50 equal time-sharing arrangement.

The applicant mother opposed the motion and sought to maintain the status quo with discretionary overnight access contingent on the father providing proof of stable accommodation.

The court found a material change in circumstances since 2009, including the child's aging, ongoing parental conflict, the child's special needs (ADHD diagnosis), and changes in the father's living situation.

However, the court determined that a shared parenting arrangement was not feasible due to the father's unstable housing and employment history, the high level of parental conflict, and the lack of cooperation necessary for shared custody to function effectively.

The court reinstated overnight alternating weekend access conditioned on the father maintaining stable living accommodation with his partner, Ms. Dubin, while maintaining the mother's sole custody.

The accused, a member of the Walpole Island First Nation and former Canadian Armed Forces member, was convicted of gun trafficking in 2015 and received a 10-year firearms prohibition.

He subsequently pled guilty to transporting a firearm in a careless manner while hunting.

He applied for a Section 113 exemption to permit hunting for sustenance purposes.

The court granted the exemption, finding that sustenance hunting for Indigenous persons must be interpreted broadly to recognize cultural and traditional significance, and that the accused had demonstrated a genuine need to hunt as part of his cultural identity and role as a family provider.

The court imposed conditions on the exemption and sentenced the accused to a suspended sentence with probation.

The accused pleaded guilty to breaching a long-term supervision order by consuming cocaine on June 2, 2016.

The Crown sought a 12-month sentence, while defence counsel sought six months with immediate release given time served.

The court imposed a sentence of seven months incarceration with a 1.3:1 credit for pre-sentence custody, resulting in one day's custody remaining.

The decision emphasizes the principles established in R. v. Ipeelee regarding sentencing for breaches of long-term supervision orders, with particular attention to Gladue factors and the offender's Aboriginal background.

The court found that while the breach was serious given the offender's history of violence linked to cocaine use, the context of the relapse, his significant rehabilitation progress over eight years, strong community support, and diminished moral culpability warranted a substantially lower sentence than the Crown sought.

The accused, a 31-year-old First Nations woman, pleaded guilty to breaching a long-term offender supervision order by testing positive for cocaine metabolites.

The Crown sought 18 months imprisonment.

The court imposed a sentence of 1 day, taking into account the accused's Gladue factors, including her status as a Residential School survivor, her history of trauma, her addiction issues rooted in systemic discrimination against Indigenous peoples, and her rehabilitation potential.

The court emphasized the importance of restraint in sentencing Indigenous offenders and the principle of rehabilitation.

A First Nations woman pleaded guilty to multiple drinking and driving offences and related charges.

The court found that Ontario's failure to proclaim the curative discharge provision violated the equality rights of Indigenous offenders under the Charter.

The court applied a remedial approach under s. 24(1) of the Charter and granted curative discharges on the impaired driving counts, finding that intensive culturally-based treatment through an accredited NNADAP facility was in the public interest.

The decision emphasizes the intergenerational trauma stemming from residential schools and the need for a realistic, progressive approach to assessing treatment success for Indigenous offenders.

The applicant, an Aboriginal woman from the Mississauga First Nation, entered guilty pleas to drinking and driving offences and sought a curative discharge as a remedy for alleged Charter violations.

She argued that Ontario's failure to proclaim section 255(5) of the Criminal Code—which permits curative discharges for impaired driving offences—violated her equality rights under section 15 of the Charter.

The court found that the provincial policy created differential treatment of Aboriginal offenders by denying them access to restorative sentencing options mandated by section 718.2(e) of the Criminal Code.

The court held that the non-proclamation constituted systemic discrimination against Indigenous persons and violated their equality rights, which were not saved by section 1 of the Charter.

The court granted a remedy permitting consideration of a curative discharge.

The accused was convicted of possessing hydromorphone and oxycodone for the purpose of trafficking, and simple possession of ecstasy.

The Crown sought a two-year penitentiary sentence while the defence sought twelve months.

The court imposed a twenty-two month sentence for the hydromorphone trafficking count, concurrent fourteen-month sentence for oxycodone trafficking, and concurrent forty-five day sentence for ecstasy possession.

The court applied Gladue principles while recognizing that heroin and its equivalents attract penitentiary sentences absent exceptional circumstances.

The court balanced the serious nature of the offence against the offender's rehabilitation prospects and aboriginal ancestry.

An Aboriginal offender with a lengthy history of property crimes and breaches of court orders was sentenced in the Gladue court.

The offender had demonstrated a pattern of minor criminality spanning several months, committing thefts from businesses and repeatedly breaching probation and bail conditions.

Despite previous sentences including jail time, probation, and conditional sentences, the offender showed no signs of rehabilitation or deterrence.

The court imposed a 14-month conditional sentence to be served in the community, emphasizing the application of Gladue principles while balancing public protection and the need for accountability.

The offender subsequently breached the conditional sentence but later voluntarily requested incarceration to access mental health treatment at a specialized facility.

The defendant, an Aboriginal member of the Lac Des Milles Lac First Nation, was found guilty of driving while suspended contrary to s. 53(1) of the Highway Traffic Act.

With 20 prior convictions for the same offence, the Crown sought 30 to 60 days in custody.

The defence argued that Gladue principles should apply to preclude incarceration.

The court found the pre-sentence report with Gladue considerations to be insufficient and deficient in addressing the unique systemic and background factors affecting the Aboriginal offender and the impact of those factors on the defendant.

The court ordered that a stand-alone Gladue report or supplementary report be provided before sentencing could proceed.

The accused pleaded guilty to the kidnapping and sexual assault of two young children in Big Trout Lake, Ontario.

The offences occurred on September 26, 2012, when the accused, in a state of emotional distress following a relationship breakdown, lured four children to his trailer, locked one in the bathroom, and sexually assaulted two young girls both digitally and with his penis, causing significant physical and emotional harm.

The accused was sentenced to six years imprisonment for kidnapping with three years consecutive for sexual assault and three years concurrent for sexual touching, with a lifetime SOIRA order, DNA order, and lifetime weapons prohibition.

The accused was convicted of six offences arising from a home invasion robbery committed with a co-accused, including robbery while armed with a shotgun, forcible confinement, possessing a firearm while prohibited, and using a firearm while committing an indictable offence.

The accused also was convicted of uttering threats to a corrections officer while in custody.

The accused pleaded guilty to all charges and accepted responsibility.

The sentencing court imposed a 49-month federal penitentiary sentence on the main charges and a concurrent five-month jail sentence on the threatening charge, with a lifetime firearms prohibition and DNA order.

The court applied Gladue principles and granted enhanced pre-sentence custody credit at a 1.5:1 ratio.

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

The court considered whether to order a full Gladue report to assist in sentencing an Aboriginal offender.

The court held that while a full Gladue report is not absolutely required, the sentencing judge must have sufficient materials before it to meet the requirement of special attention to the circumstances of Aboriginal offenders under s. 718.2(e) of the Criminal Code.

The court found that the pre-sentence report with Gladue content, combined with evidence from probation services and anticipated submissions from community elders and family, provided sufficient information to proceed to sentencing.

In this child protection proceeding under the Child and Family Services Act, the court determined that two Native children were in need of protection and made orders regarding their placement.

The Children's Aid Society sought Crown wardship with placement in a non-Native foster family (the S.D. family), while the maternal grandmother and the Algonquin Nation sought placement with the grandmother with CAS supervision.

The court found that the children had been in need of protection due to the grandmother's inability to protect them from unsupervised contact with their mother, who had a significant criminal history, and the grandmother's ongoing struggles with alcohol and dishonesty with authorities.

Despite the importance of cultural connection for Native children, the court prioritized the children's established attachment to their foster family, their expressed wishes to remain in that home, and their emotional security and stability.

The court ordered Crown wardship with the children remaining in the S.D. family's care, with reasonable access for the grandmother twice per year while the foster family resided in the United Kingdom.

The defendant was charged with unlawfully hunting big game (moose) without a licence contrary to section 6(1)(a) of the Fish and Wildlife Conservation Act, 1997.

The defendant admitted to shooting a cow moose without a licence but claimed he had constitutional rights to hunt as a Métis person under section 35 of the Constitution Act, 1982, and that his section 15 Charter rights to equality had been violated.

The court found that the defendant failed to establish the existence of a historic Métis community in the area where he was hunting as of the time of effective European control (1850), and that his ancestors did not arrive in the region until after that date.

The court also found that the defendant's section 15 claim was directed at the Métis Nation of Ontario, which was not a party to the proceedings.

The defendant was found guilty.

The accused pleaded guilty to two counts of robbery and two counts of attempting to commit an indictable offence while having his face masked.

The robberies occurred on January 1 and January 3, 2012, at a variety store and a Bank of Montreal branch respectively.

The accused had an extensive criminal history including six prior robbery convictions.

The court imposed a sentence of 48 months imprisonment, with enhanced credit for 184 days of pre-sentence custody at a 1.5:1 ratio (276 days credited), resulting in an effective sentence of 4 years and 9 months.

The court applied Gladue principles in sentencing an Aboriginal offender while balancing denunciation and deterrence as paramount sentencing objectives.