Indigenous Legal Issues - ONCJ

The defendants, members of the Mohawk Nation of the Grand River, were charged with offences under the Highway Traffic Act.

They brought 18 pre-trial motions, primarily arguing that the Provincial Offences Court lacked jurisdiction because the alleged offences occurred on the sovereign territory of the Mohawk Nation, as granted by the Haldimand Proclamation of 1784.

The court dismissed all 18 motions, finding that it was bound by the Court of Appeal for Ontario's precedent that the Haldimand Proclamation did not grant fee simple ownership or absolute title to the Six Nations Confederacy.

The court also held that as a statutory court, it lacked the jurisdiction to grant the various prerogative writs and equitable remedies sought by the defendants, such as mandamus, injunctive relief, and declaratory relief.

The society brought a child protection application regarding a six-year-old Indigenous child.

The mother repeatedly made false allegations that the father sexually abused the child, alienating the child from the father and subjecting the child to invasive medical exams.

The mother also engaged in pseudo-legal arguments, breached court orders, and absconded with the child.

The court found the child in need of protection due to the risk of emotional harm caused by the mother's conduct.

Custody was granted to the father under s. 102 of the CYFSA, and the mother was limited to supervised virtual access.

The accused, an Indigenous land protector, pled guilty to mischief and failing to comply with an undertaking.

The central issue on sentencing was whether to grant an absolute discharge or a suspended sentence under section 730 of the Criminal Code.

Relying on expert evidence regarding Haudenosaunee legal traditions and the Two Row Wampum, the court interpreted the 'public interest' requirement in section 730 to mean the Haudenosaunee public interest.

Finding that the accused's actions as a land protector were not contrary to the Haudenosaunee public interest, the court granted an absolute discharge.

The offender, an Indigenous man, pled guilty to manslaughter after fatally cutting the victim's throat during an altercation over a drug debt.

The victim had initially attacked the offender with a baton while both were under the influence of fentanyl.

The court conducted a detailed Gladue analysis, noting the offender's significant rehabilitative efforts while on bail, including completing treatment programs and reconnecting with his culture.

Emphasizing restorative justice principles, the court sentenced the offender to 22 months of time served and three years of probation.

The offenders, both Indigenous women, pled guilty to assaulting police officers during an arrest for public intoxication.

One offender also pled guilty to a subsequent breach of undertaking.

The court applied the Gladue framework to determine the appropriate sentences.

The first offender, who had a dated criminal record and was the primary instigator, received a 270-day conditional sentence order.

The second offender, who was on probation at the time of the assault and subsequently breached her undertaking, was deemed unsuitable for a conditional sentence and received a total of 135 days in custody.

The offender pleaded guilty to dangerous operation of a motor vehicle, failure to stop after an accident, and flight from a police officer following a high-speed pursuit where he rammed police vehicles.

The Crown sought a 9-month custodial sentence, while the defence sought an 8-month conditional sentence.

The court considered the offender's Indigenous background, his positive steps toward rehabilitation, and the 17 months he spent on strict bail conditions.

The court imposed a 6-month conditional sentence, followed by two years of probation and a two-year driving prohibition, finding it consistent with the principles of restraint, denunciation, and deterrence.

The applicant Director sought a restraining order against the respondents, who claimed to be the legal guardians of a Métis child by virtue of an Aboriginal custom adoption.

The child was subject to a continuing custody order in British Columbia and had been placed in Ontario.

The respondents had attempted to apprehend the child from her school in Ontario.

The court declined to decide the validity of the custom adoption, recognizing the British Columbia custody order instead.

Finding that the Director had reasonable grounds to fear for the child's safety, the court granted the restraining order.

This is a decision under section 90(2)(b) of the Child, Youth and Family Services Act (CYFSA) regarding the identification of a child's First Nations status and band affiliation in a Status Review Application.

The child, age 6, was previously identified under the Child and Family Services Act (CFSA) as not being an Indian or native child.

The court determined that the child is a First Nations child based on the mother's identification of the child as such, and identified the child's band as Michipicoten Band based on the mother's indication that the child identifies with that band through maternal family ties.

The accused pleaded guilty to common assault contrary to Section 266 of the Criminal Code.

The assault occurred while the accused was in custody at OCDC and involved striking a fellow inmate multiple times in the face following a minor provocation.

The Crown sought a sentence of two years less a day minus pre-sentence custody, while the defence sought probation.

The court imposed a fine of $10 and 24 months of probation, having credited 15 months of pre-sentence custody as sufficient to address deterrence and denunciation.

The sentencing decision applied Gladue principles, considering the accused's Inuit heritage, history of trauma, abuse, and systemic disadvantage.

The accused pleaded guilty to importing approximately 959 grams of cocaine into Canada, contrary to section 6(1) of the Controlled Drugs and Substances Act.

The sentencing court was required to balance the extremely serious nature of cocaine importation with the unique circumstances of the Aboriginal offender, including his traumatic childhood marked by parental alcoholism and violence, his lifelong struggle with substance abuse, and his limited connection to his Aboriginal heritage.

The court applied the principles established in Gladue and Ipeelee, recognizing that while the offence was serious, the offender's level of culpability was sufficiently diminished by his Aboriginal background and circumstances to justify a sentence below the ordinary range of three to five years imprisonment.