Court File and Parties
COURT FILE NO.: CV-22-00682044-0000 DATE: 20240725 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Raymond Bocchini (in his capacity as Trustee of the Estate of Sharon Bocchini) AND: Attorney General of Canada
BEFORE: J. T. Akbarali J.
COUNSEL: Lucas E. Lung and Miranda Brar, for the appellant Madeline Torrie, for the respondent
HEARD: July 4, 2024
Endorsement
Overview
1The appellant appeals pursuant to s. 14.3 of the Indian Act, R.S.C. 1985, c. I-5 (the “Indian Act”), from a decision by Indian Registrar denying the late Sharon Bocchini, and her late mother, Bertha Isbister, registered Indian status.
A Note about Language
2In this decision, I use language from documents and law from the 1880s, and from current legislation (for example, the Indian Act). This language includes words I would not otherwise use, like “Indian”, which has a particular statutory meaning. It also includes offensive language like “half-breed” to describe the Métis. I do not intend any disrespect through the use of this language in my reasons. I use the language because it is historically accurate, and because understanding our history requires us to face the parts of it that are shameful, including the derogatory words that the Canadian government of the day chose to use to refer to Indigenous peoples.
The Impact of Delay
3Before I turn to the factual background and the merits of the appeal, there is a preliminary matter that I must address.
4The procedural history of this matter began in 1998, when Ms. Bocchini first applied for Indian status. Ms. Isbister applied for Indian status in 2005. There were various decisions, protests, and reconsiderations that took place between 1998 and today. For a short period of time commencing in 2007, Ms. Bocchini and Ms. Isbister were registered, and received the benefits that come with Indian status, including health benefits. However, in April 2009, the Registrar, on his own initiative, deregistered them without notice. Ms. Bocchini and Ms. Isbister protested that decision. Ms. Isbister died in 2011 while waiting for a decision on that protest.
5Some 26 years since Ms. Bocchini’s original application, after various decisions, protests, a statutory appeal, a consent order directing the Registrar to reconsider the issues, a further protest decision, and another statutory appeal, the matter came before me for resolution. At the outset of the hearing, appellant’s counsel advised me that Ms. Bocchini had just been diagnosed with terminal cancer, with a very poor prognosis. Counsel asked that I release a decision as quickly as possible, with reasons to follow if need be. Among other things, the result of this appeal would determine whether Ms. Bocchini was eligible for certain health benefits.
6Tragically, following the lunch break on the day of the hearing, appellant’s counsel advised me that he had learned that Ms. Bocchini passed away that very morning. Both parties agreed that the appeal should continue, and is not moot, as its result will impact Ms. Bocchini’s descendants.
7I cannot help but express my dismay at a system that kept two women in limbo with respect to their Indian status, and related benefits, until after they both died. A system that cannot finally determine whether someone is entitled to Indian status until some 26 years has elapsed is not a working, relevant system. I suspect that it is not a properly resourced system. Certainly, to the extent that delays in obtaining a court date added to the length of time to bring this appeal to a hearing, lack of resourcing is the reason.
8Whatever the cause for the delay, Ms. Isbister and Ms. Bocchini deserved better. The costs of delay are measured in real, human impact. The delay in this case is not acceptable.
Background
9As I have noted, Ms. Bocchini applied for Indian status in 1998. Ms. Isbister applied for Indian status in 2005. Their applications were based on the fact that they are descendants of Sandy Bay Indians, through their ancestor, St. Pierre Cook, who was Ms. Bocchini’s grandfather, and Ms. Isbister’s father.
10Their applications were denied in 2006 on the basis that Mr. Cook took what is known as “half-breed scrip” in exchange for the extinguishment of his Indian rights in the 1880s, when he was a teenager.
11Half-breed scrip has its historical origins in the Red River Resistance which took place in 1869 and 1870 near Lake Manitoba. The Dominion government responded to demands by Louis Riel’s provisional government in Red River through the Manitoba Act, 1870 (the “Manitoba Act”). Pursuant to s. 31 of the Manitoba Act, all of the children of the “half-breed heads of family” residing in Manitoba on July 15, 1870, were promised 240 acres of land. The parties agree that the reference to children in this context refers, not to age, but to family lineage.
12The Dominion Government underestimated the amount of land that would be required to satisfy the claims of the eligible persons. By 1885, the land it had set aside for the purpose had been exhausted. In a 2013 decision of the Supreme Court of Canada respecting this allotment process, the Court concluded that the federal Crown failed to implement the land grant provisions set out in s. 31 of the Manitoba Act in accordance with the honour of the Crown: Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623 (“MMF SCC”).
13In 1885, an Order in Council established the Manitoba Supplementary Commission which was empowered to issue $240 scrip to the remaining eligible claimants. “Half-breed scrip” was issued in the form of a scrip note, or a certificate, redeemable for a one-time payment in land or money. The understanding was that the recipient’s Indian rights would be extinguished in exchange for scrip. Obtaining scrip was a two-stage process. First, one had to withdraw from treaty. Second, one applied for scrip.
14Claims of scrip fraud are very common. One common scheme involved a land speculator compensating a script applicant by paying a fraction of the value of their scrip up-front in cash, and then redeeming the full value of the scrip once issued.
15In the case of the Sandy Bay Band, it appears that scrip fraud was notorious. On August 6, 1886, a letter was sent on behalf of Band members by Baptiste Metwaywenind and Kokonsonse petitioning the Inspector of Indian Agencies for relief following their withdrawal from treaty. The Band members claimed to have been deceived and misled in order to induce them to make application for scrip and withdraw from treaty. Mr. Cook’s grandfather, Baptiste Spence Sr., was the chief spokesperson for the Band members on this issue.
16The letter made particular reference to a Crown employee named Agent Martineau, who was the Indian Agent for Sandy Bay. According to the letter, Agent Martineau told the Band members they should take scrip, and when they refused, Agent Martineau told them that if they did not leave the treaty, everyone “who had a drop of white blood” would lose everything, including the reserve and treaty money. The letter claimed that Agent Martineau struck the names of many of the Sandy Bay Indians off the books without their consent.
17The letter alleged that Agent Martineau, together with a Wm. Sifton, coerced Band members to withdraw from Treaty and sell their scrips to Sifton, who bought a large number of scrips from the Sandy Bay Indians for a fraction of their value.
18Agent Martineau’s actions were referenced in the debates in the House of Commons on April 26, 1888. The suggestion is made that Agent Martineau received $10 a piece on every Indian that he could advise to get out of the treaty and to take scrip, and that he misled the Sandy Bay Indians in order to get them to take scrip. The question of Martineau’s behaviour prompted then-Prime Minister Sir John A. MacDonald to promise to enquire into the matter three times during the debate on April 26, 1888.
19Among those said to be led astray by Agent Martineau in the August 6 letter is Mr. Cook’s grandfather, Baptiste Spence Sr. The Band members asked to get back to the reserve as it was, and re-enter treaty. Band members, including Baptiste Spence Sr., signed a petition to that effect.
20The August 6 letter made reference to the “schoolteacher” who had also pressured the Sandy Bay Indians to leave treaty, telling them that if they did, they would be well off and have a good name, but if they did not, they “would be nothing and would not have the reserve.” This schoolteacher was Robert Tweddell, who wrote his own letter to the Inspector of Indian Agencies on August 29, 1886, offering a different version of events, denying allegations of fraud and dishonesty, and claiming that Baptiste Spence Sr. was glad to have left treaty.
21The Sandy Bay Indians received no response to the August 6 letter, and nearly all of them completed scrip declarations in the following months.
22However, in 1891, the Dominion government made the decision to allow Sandy Bay Indians to return to treaty if they agreed to the repayment of the scrip from their annuities. The majority of those who left treaty in 1886 re-entered treaty. The appellant suggests that the decision to allow the Sandy Bay Indians to re-enter treaty must have been in response to the widespread scrip fraud. As I will come to, the Registrar does not agree.
23In any event, there is evidence that Mr. Spence Sr. had died by the time the decision to allow the Sandy Bay Indians to re-enter treaty was made. Mr. Cook had moved to Ste. Rose du Lac, about 100 km away from the reserve. There is no evidence that the government proactively tried to contact Band members to advise them of the right to return to treaty. There is no evidence that Mr. Cook had actual knowledge of the opportunity to re-enter treaty.
24After the initial denial of Ms. Bocchini and Ms. Isbister’s applications in 2006, they corresponded further with the Registrar, who subsequently determined that Mr. Cook was incapable of receiving scrip because he was a minor at the time. (At the relevant time, a minor was anyone under 21 years of age unless a statutory provision provided otherwise.) As a result of this determination, Ms. Bocchini and Ms. Isbister were added to the Indian register in December 2007, and enjoyed the benefits thereof, including health benefits.
25In 2009, for reasons that have not been disclosed, the Registrar, on his own initiative, re-opened investigations into their entitlement and deleted both of them from the register, again on the basis that Mr. Cook took scrip. They were deleted from the register and their benefits cancelled even though the time to protest and appeal the decision had not yet run; they remained deleted from the register throughout these proceedings. As a result, they permanently lost the benefits to which registration entitled them, including health care benefits, as they are both now deceased.
26In 2011, Ms. Bocchini and Ms. Isbister protested the Registrar’s decision under s. 14.2 of the Indian Act. As I have noted, Ms. Isbister died while waiting for a decision.
27The Registrar eventually issued a decision denying their protests in 2014. Ms. Bocchini commenced a statutory appeal. In resolution of that appeal, the parties consented to an order, dated May 4, 2021, directing the matter back to the Registrar for reconsideration. The court order specifically directed the Registrar to take into account all available documentation, including evidence of scrip fraud, and a lengthy affidavit prepared by a historian, Rarihokwats.
28In November 2021, the Registrar issued a new protest decision, and again declined to restore Ms. Bocchini’s name to the register. It is this decision that is under appeal.
29In the protest decision under appeal, the Registrar made the following findings and conclusions (errors in original):
a. Mr. Cook always lived with his grandfather, Baptiste Spence Sr. Treaty paylists indicate that “treaty annuities were paid to Baptiste Spence Sr. of two grandchildren with parental consent.” b. Mr. Spence Sr. was issued scrip on July 21, 1887. c. The Baptiste Spence Sr. family grouping, including Mr. Cook, withdrew from treaty on April 2, 1886. d. Mr. Cook was withdrawn from treaty in accordance with s. 13 of the Indian Act of 1886, as the minor, unmarried child of the head of the family grouping, Baptiste Spence Sr. The Indian Act provided that unmarried minors would be withdrawn from treaty along with the head of the family. e. Mr. Cook made a scrip declaration where he asserted that he had been withdrawn from treaty and lived with his grandfather on reserve. f. Mr. Cook was issued scrip on March 8, 1888. “Scrip certificates are weighted very heavily and are relied upon as proof of receiving scrip when rendering entitlement decisions; their validity is not questionable.” g. The issuance of scrip to Mr. Cook was lawful. Mr. Cook was 18 years old when he completed a scrip declaration. Children over or under 18 years of age could provide affidavits in support of their scrip applications under certain circumstances. h. There is a lack of evidence to suggest that the scrip was issued unlawfully or that individuals were unable to return their scrip. There is insufficient evidence of scrip fraud. i. When reviewing whether scrip was fraudulently administered to members of the Sandy Bay Band, the Registrar had regard to correspondence located in the government’s files. The correspondence revealed that the Sandy Bay Indians had wanted to receive their scrip without signing an agreement to leave the reserve. They were told they would have to sign the agreement, and ultimately did. But since the land was unoccupied and only three Indian families were living in the homes and receiving treaty, the individuals who had taken scrip continued to stay despite the agreement. A petition signed by 49 individuals, including Baptiste Spence, sought to be allowed to return to treaty. j. On January 8, 1891, a decision was made to re-admit these individuals to treaty and allow them to remain in occupation of the lands, on the condition that they allow the value of the land scrip received by them to be deducted from the annuity which would be payable to them as treaty Indians. k. Based on the correspondence, the Registrar concluded that “it is evident that following receipt of scrip, the Sandy Bay Indians had wished to remain on the reserve and return to treaty. Merely on this correspondence, however, it cannot be determined whether the issuance of scrip was fraudulent in and of itself. Instead, it is more likely that individuals were granted the opportunity to return to treaty, which some members chose while others did not.” l. Of the August 6, 1886 letter, and the response from Mr. Tweddell, the Registrar found that one letter indicates Baptiste Spence Sr. was the spokesperson of individuals who wanted to return to treaty, and he wished to return. Another letter suggests that he was glad to have received scrip. The Registrar concluded that the second letter, “would support why he may have chosen to not return his scrip allowance in order to be returned to treaty”. This second letter “could be inferred as a clarification to the first”. m. Some evidence suggests Baptiste Spence Sr. died three years after he was issued scrip, which would have been in 1890, a year before the decision to allow the Sandy Bay Indians to re-enter treaty. However, “[a] death certificate would be required in order to properly assess when Baptiste Spence died.” n. There is no evidence to suggest that there was a proactive effort to advise the former Sandy Bay Band members of the ability to return to treaty. “It is evident that many of these individuals became aware and chose to return to their scrip allowances”. “In the balance of probabilities, if these individuals remained in the area following scrip issuance, as correspondence suggests they did, then it would be probable that they would have been aware of the ability to return to treaty. …[O]ther families were aware of the option to return scrip allowances in order to return treaty and were provided the opportunity to do so.” o. In the result, the Registrar upheld the decision to remove Ms. Bocchini and Ms. Isbister from the register.
30Ms. Bocchini commenced an appeal to this court pursuant to s. 14.3 of the Indian Act. The appellant asks this court to set aside the Registrar’s decision and restore her status, which will impact the rights of her descendants.
Issues
31The appellant’s challenge of the Registrar’s decision raises the following issues:
a. Did the Registrar err in concluding that Mr. Cook was automatically and lawfully withdrawn from treaty along with his grandfather, Baptiste Spence Sr.? b. Did the Registrar err in concluding that Mr. Cook received scrip and withdrew from treaty? c. Did the Registrar err in failing to recognize an enduring right to re-enter treaty conferred on Mr. Cook’s descendants? d. Did the Registrar err in his interpretation of s. 5(3) of the Indian Act, when he decided to strip Ms. Bocchini and Ms. Isbister of their status without prior notice or a satisfactory explanation, and in so doing, did he incorrectly interpret his power and exceed the scope of his jurisdiction?
Standard of Review
32The parties agree that, as a statutory appeal under s. 14.3(1) and (5) of the Indian Act, this appeal is subject to the usual standards of review for appeals. Questions of fact are reviewed on a palpable and overriding error standard. Questions of law are reviewed on a correctness standard: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 37.
33A palpable error is an error that is obvious. It is not in the nature of a needle in a haystack but of a beam in the eye: Benhaim v. St-Germain, 2016 SCC 48, [2016] 2 S.C.R. 353, at paras. 38-39.
34Examples of a palpable error include illogic in the reasons, such as factual findings that cannot sit together, findings made without any admissible evidence, findings based on improper inferences or logical error, and the failure to make findings due to a complete or near-complete disregard of evidence: Lill v. Canada, 2023 FC 1364, at para. 11.
35“Overriding” means an error that affects the outcome of a case. There may be situations where a palpable error by itself is not overriding but when seen together with other palpable errors, the outcome of the case can no longer be left to stand: Lill, at para. 11.
36In the statutory appeal, the court has jurisdiction to affirm, vary or reverse the decision of the Registrar, or to refer the matter back to the Registrar for reconsideration or further investigation: Indian Act, s. 14(3) and (5).
Did the Registrar err in concluding that Mr. Cook was automatically and lawfully withdrawn from treaty along with his grandfather?
37The first alleged error relates to the Registrar’s conclusion that Ms. Bocchini was not entitled to Indian status because Mr. Cook was withdrawn from treaty as an unmarried minor when Mr. Spence Sr., as head of his household, withdrew from treaty on April 2, 1886. (The parties agree that Mr. Cook was born on October 3, 1869. He was thus 16 at the time Mr. Spence Sr. was withdrawn from treaty, although the Registrar wrongly calculated his age to be 17.)
38In reaching his conclusion, the Registrar found that Mr. Cook’s withdrawal from treaty was in accordance with s. 13 of the Indian Act of 1886. The appellant points out that the Protest Research Record indicates that that “the Indian Act was amended in 1886 to include the unmarried minor children when a metis [sic] head of a family withdrew from treaty.” Presumably it is upon this record that the Registrar relied in reaching his conclusion.
39This is a clear error. Section 13 of the Indian Act in force in 1886 provided:
No half-breed in Manitoba who has shared in the distribution of half-breed lands shall be accounted an Indian; and no half-breed head of a family, except, the widow of an Indian, or a half-breed who has already been admitted into a treaty, shall, unless under very special circumstances, which shall be determined by the Superintendent General of his agent, be accounted an Indian, or entitled to be admitted into any Indian treaty; and any half-breed who has been admitted into a treaty shall be allowed to withdraw therefrom on signifying in writing his desire so to do, - which signification in writing shall be signed by him in the presence of two witnesses, who shall certify the same on oath before some person authorized by law to administer the same.
40The wording referred to in the Registrar’s reasons and is that referenced in the Protest Research Record, from the amended provision from 1888, two years after Mr. Spence Sr. withdrew from treaty. The amended s. 13 is almost the same as the 1886 version. Two additions were made to the provision. I underline the second amendment in the 1888 version of s. 13 below, which is the relevant amendment for purposes of this appeal:
No half-breed in Manitoba who has shared in the distribution of half-breed lands shall be accounted an Indian; and no half-breed head of a family, except, the widow of an Indian or a half-breed who has already been admitted into a treaty, shall, unless under very special circumstances, which shall be determined by the Superintendent General or his agent, be accounted an Indian, or entitled to be admitted into any Indian treaty; and any half-breed who has been admitted into a treaty shall, on obtaining the consent in writing of the Indian Commissioner or in his absence the Assistant Indian Commission, be allowed to withdraw therefrom on signifying in writing his desire so to do, - which signification in writing shall be signed by him in the presence of two witnesses, who shall certify the same on oath before some person authorized by law to administer the same; and such withdrawal shall include the minor unmarried children of such half-breed.
41The respondent agrees that there is an error in the Protest Research Record with respect to the date of the amendment, but it argues that the Registrar did not rely on the 1888 amendment; rather, the respondent claims, he made his determination in accordance with the 1886 provision. The Registrar stated:
The Indian Act provided that unmarried minors would be withdrawn from treaty along with the head of the family….
St. Pierre Cook was withdrawn from treaty in accordance with Section 13 of the Indian Act of 1886, as the minor unmarried child of the head of the family grouping.
42I reject the respondent’s argument. The Indian Act of 1886 did not provide that unmarried minors would be withdrawn from treaty along with “such half-breed.” It was not until 1888 that the words “minor unmarried children” were added to s. 13. The only logical reading of the Registrar’s decision is that he considered the provision of the Indian Act that the Protest Research Record indicated was in force in 1886, but was not, and determined that Mr. Cook’s withdrawal from treaty was authorized by the section. If he had been considering the actual version in place in 1886, he would not have used the words from the 1888 amendment when considering whether Mr. Cook’s withdrawal from treaty in 1886 was lawful.
43The respondent’s argument also assumes that the Registrar did not rely on the Protest Research Record without any indication in the reasons that the Registrar had in front of him the correct version of s. 13. It is an argument without any air of reality.
44The Registrar thus made a clear error of law in determining that Mr. Cook was lawfully withdrawn from treaty as the unmarried minor child of his grandfather because he applied the wrong statutory provision; the result is that I must consider the question applying a correctness standard of review.
45The appellant argues that the addition of the words in the 1888 amendment indicating that the withdrawal from treaty shall include minor children means that minor children were not withdrawn from treaty under the provision as it stood in 1886. It relies on the presumption against tautology.
46The Supreme Court of Canada discussed the presumption against tautology in Placer Dome Canada Ltd. v. Ontario (Minister of Finance), 2006 SCC 20. It held that, under the presumption, “every word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose”, citing R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) at p. 159.
47More recently, the presumption was described in a decision involving the respondent in Landry c. Procureur general du Canada (Registraire du registre des Indiens), 2017 QCCS 433, at para. 176 as « [un] principe d’interprétation suivant lequel le législateur est présumé ne pas utiliser de mots superflus ou dénués de sens (présomption d’absence de tautologie). »
48In Placer Dome, the Supreme Court recognized that the presumption against tautology is rebuttable “where it can be shown that the words do serve a function, or that the words were added for greater certainty”: at para. 46.
49In R. Sullivan, The Construction of Statutes, (7th ed.), §8.03 the governing principle of the presumption against tautology is described having regard to the language of Viscount Simons in Hill v. William Hill (Park Lane) Ltd.:
…When the legislature enacts a particular phrase in a statute the presumption is that it is saying something which has not been said immediately before.
50Sullivan also states that subsequent legislative evolution at most reveals the interpretation that the present Parliament places upon the work of a predecessor. It is for judges to determine what the intention of the enacting Parliament was: R. Sullivan, The Construction of Statutes, (7th ed.) §23.02.
51The respondent argues that the appellant overstates the significance of the 1888 amendments, because they do not mean that the state of the law prior to 1888 did not permit the withdrawal of unmarried minor children. The respondent submits that, “[r]ather, these amendments codified the existing state of law, in which an adult head of household could make legal decisions on behalf of their children.” According to the respondent, the effect of the unamended s. 13 is the same as the effect of the amended s. 13.
52The respondent refers to the trial decision in Manitoba Métis Foundation Inc. et al. v. Attorney General of Canada et al., 2007 MBQB 293, at para. 714, where the court noted that sales of interest in respect of land grants under s. 31 (the grants later replaced by scrip) began, and was a cause for concern for at least some in the community. The trial judge notes that the Métis had rights including “the right to enter into contracts pursuant to the common law. One’s right of claim in the section 31 grant was a saleable asset and but for statutory provisions all of the ordinary laws of contract would apply to any agreement respecting the sale and purchase of such an asset, including sale by an infant which was permissible at common law.”
53The respondent states that its interpretation of the legislation better takes into account the scheme of the Act, and the object and intent of Parliament. It argues that one had to withdraw from treaty to take scrip, and since those who were minors had the right to take scrip at 18, and to sell it, they must have legally been able to be withdrawn from treaty. From a common-sense perspective, this argument is attractive. The question is where the lawful withdrawal from treaty of a minor may be found.
54I note that in the debates dealing with the 1888 amendments, Sir John A. MacDonald is recorded as stating:
There is also, at the end of the clause, a provision that such withdrawal shall include the minor or unmarried children of such half-breeds – the children shall go with the parents.
55Sir John A. MacDonald’s brief discussion of the amendment in question in this appeal, as with the other mentions of the amendment in the debate, does not suggest that the amendment is codifying anything. The language used to describe the withdrawal of children with “such half-breed” is forward-looking, not reflective of an ongoing law or practice.
56At the very least, the amendment and the contemporaneous debates in the House of Commons indicate that the 1888 Parliament was of the view that the 1886 provision did not permit the automatic removal of a minor.
57The plain wording of s. 13 in the 1886 statute does not include the withdrawal of the minor, unmarried children of “such half-breed” on that half-breed’s withdrawal.
58Both parties referred me to s. 88 of the Indian Act of 1886, which deals with enfranchisement of Indians. The provision provides that where an Indian man was enfranchised and withdrawn from treaty, his wife and minor unmarried children shall also be held to be enfranchised. Considering the words of the legislation as a whole, I note that the Parliament that enacted the Indian Act in force in 1886 was apparently capable of providing expressly for the family to be treated as a unit in terms of withdrawal from treaty. It did so for Indians. It did not do so for half-breeds. That distinction, too, must be for a reason. As Sullivan puts it, “Different words, different meaning. Given the presumption of consistent expression, it is possible to infer from the use of different words or a different form of expression that a different meaning was intended (emphasis in original)”: R. Sullivan, Sullivan and Driedger on the Construction of Statutes (Butterworth Canada Ltd: Vancouver, 2002) 4th ed., p. 216.
59I accept the appellant’s argument that the presumption against tautology means we must ascribe some meaning to the amendment in 1888.
60Considering the plain language of the amended and unamended versions of s. 13, the language in s. 88, and the presumption against tautology, I reject the respondent’s argument that the 1886 provision permitted the automatic withdrawal from treaty of a minor, unmarried child of “such half-breed.” Rather, I conclude that it was not until 1888 that s. 13 applied to a minor unmarried child.
61I note that the respondent made arguments that certain after-arising facts support the conclusion that Mr. Cook was lawfully withdrawn from treaty in 1886. In particular, it refers to an Order-in-Council extending the time for certain half-breeds to apply for scrip.
62I disagree that after-arising facts can impact the lawfulness of Mr. Cook’s withdrawal from treaty in 1886. The Order-in-Council did no more than extend a deadline for the application for scrip. It did not purport to adjudicate the legality of the preceding withdrawal from treaty.
63I need not go further to consider whether Mr. Cook could lawfully have been withdrawn from treaty on the version of s. 13 that existed in 1888 by his grandfather, or whether the provision only applied when a parent withdrew from treaty. I explicitly make no determination on the question of whether s. 13 would apply to a minor child on a guardian’s withdrawal from treaty.
64In the result on this issue, I find that the Registrar committed an error of law when he concluded that Mr. Cook was lawfully withdrawn from treaty under s. 13 of the Indian Act 1886 because he applied the wrong statutory provision in his analysis. Under a correct interpretation of s. 13 of the Indian Act 1886, Mr. Cook was not lawfully withdrawn from treaty in 1886.
65The parties agree that if I make the finding I have just made, whether Mr. Cook received scrip after 1886 cannot render the unlawful withdrawal from treaty lawful. Accordingly, the appeal must resolve in favour of the appellant.
66However, given the focus the respondent places on its contention that Mr. Cook lawfully received scrip, I consider whether the Registrar made palpable and overriding errors of fact in concluding that Mr. Cook lawfully received scrip. I consider this question separate and apart from the issues surrounding Mr. Cook’s withdrawal from treaty.
Did the Registrar err in concluding that Mr. Cook lawfully received scrip?
67The Registrar concluded that Mr. Cook lawfully applied for scrip, and received it on March 8, 1888. This conclusion is despite the fact that one of his predecessors had already determined that Mr. Cook was not legally capable of receiving scrip because he was a minor. As I have noted, at the relevant time, the age of majority was 21. Mr. Cook was 18 years old in March 1888. The predecessor registrar found that Mr. Cook “applied and was approved for scrip in 1887 but was a minor at the time and as such could not have legally been accepted to receive scrip.”
68The fact that two registrars have reached opposite conclusions on the same question, based on the same evidence, is troubling. However, it does not change the standard of review on which I must assess the decision under appeal: palpable and overriding error on questions of fact, and correctness on questions of law.
69First, on the question of Mr. Cook’s age, the scrip declaration in the record indicates that Mr. Cook was 17 years old when he applied for scrip, and 17 years old when the application was approved. The Registrar erred in concluding he was 18 when he applied for scrip. The parties agree he was not legally entitled to scrip at 17.
70The scrip was paid out when he was 18, but to Mr. Sifton, not to Mr. Cook.
71Mr. Sifton is the man who was identified in the August 6, 1886 letter as someone who participated in deceiving the Sandy Bay Indians with Agent Martineau and who bought a large number of scrip. The schoolteacher’s letter of August 29, 1886 also suggests that Wm. Sifton bought a number of scrip. There is thus evidence to conclude that Mr. Sifton was a land speculator. There is also reason to suspect he was a potential fraudster.
72The respondent concurrently maintains that Mr. Sifton likely purchased the scrip from Mr. Cook, and also was acting as his agent. The evidence it relies on in support of an agency relationship is Mr. Sifton’s signature on the scrip receipts. It cannot explain why this is evidence of an agency relationship and not the signature of a purchaser of the scrip. In any event, the Registrar does not make any finding that Mr. Sifton was Mr. Cook’s agent.
73For an infant to sell their scrip, there was a regime to be followed, including obtaining judicial approval: MMF SCC at paras. 1042-1043. There is no indication that any such regime was followed in this case.
74There is no evidence of when Mr. Sifton purchased Mr. Cook’s scrip. On the respondent’s argument, Mr. Sifton (as agent) would have prepared the application for Mr. Cook. This is often what land speculators did because the “half-breeds” from whom they purchased scrip were illiterate.
75The scrip declaration was signed and it was approved when Mr. Cook was 17 years of age. If the respondent’s theory that Mr. Sifton prepared the application is correct, and he purchased the scrip from Mr. Cook, it is most likely that the purchase occurred before Mr. Cook turned 18 around the time the application was being completed, when Mr. Cook was neither legally entitled to receive scrip nor sell it, at least not without following the regime which included some form of judicial authorization: MMF SCC at paras. 1042-1043.
76In his reasons, the Registrar concluded that children “over or under 18 years of age could provide affidavits in support of their scrip applications under certain circumstances.” He references no authority for this statement, nor does he explain under what circumstances children could provide such affidavits. There is no affidavit actually sworn by Mr. Cook in the record, or even any evidence that he signed one. The effect of this conclusion of the Registrar’s is unclear.
77In my view, the Registrar does not address the issue of Mr. Cook’s age, because he miscalculates it, and finds that Mr. Cook was 18 years of age “when his scrip declaration was completed.”
78This is a palpable and overriding error of fact, which caused the Registrar to fail to consider the implication of Mr. Cook’s age. I find that Mr. Cook was 17 when he applied for scrip, when his application was approved, and when he sold it to Mr. Sifton. He never received it legally because it was no longer his by the time he turned 18.
79Second, there is the question of scrip fraud. Despite being specifically directed in the order of this court from May 2021 to consider the evidence regarding scrip fraud, the Registrar stated at the outset of his reasons that “[s]crip certificates are weighted very heavily and are relied upon as proof of receiving scrip when rendering entitlement decisions; their validity is not questionable.” Although the Registrar proceeds thereafter to consider some of the evidence relating to scrip fraud, his analysis is coloured by his starting point: that scrip certificates are not questionable, and they are proof of receiving scrip.
80The Registrar’s own Protest Research Record includes a link to an article in The Canadian Encyclopedia entitled Métis Scrip in Canada, which discusses fraudulent claims, including the underground market for scrip, the debate with respect to the extent to which the state enabled the fraudulent use of scrip through lax administration and regulation, the difficulty in verifying the identity and entitlements of Métis money scrip holders because their names were not printed on the documents, and documented cases of script being mishandled and claims to land being ignored by government officials. Despite this evidence, the Registrar does not grapple with the possibility of fraud in a meaningful way.
81The failure to do so is particularly troubling in this case, because scrip fraud in connection with the Sandy Bay Band was well-known and contemporaneously documented, in the petitions and correspondence from the time, and from the Debates in Parliament, where Agent Martineau was mentioned by name, and the Prime Minister gave his assurance of an enquiry into the issue.
82The evidence before the Registrar of Mr. Cook’s scrip declaration does not include a signature page, although the archived scrip declaration of Mr. Spence Sr. does include a signature page. The signature page also would have included the signatures of two witnesses and the judicial officer as required by the Indian Act, s. 13. All of this is missing for Mr. Cook.
83And, as I have noted, the scrip receipts with respect to Mr. Cook’s scrip are signed by Wm. Sifton.
84The Registrar does not address these obvious issues with the documentation regarding Mr. Cook’s scrip in his reasons. Rather, as I have noted, he concludes that the validity of scrip certificates is not questionable. He does not explain why records that are missing pages, signatures, witness signatures, and judicial authorization, or receipts signed by known land speculators who have been implicated in scrip fraud, are not questionable.
85The Registrar’s review of the August 6, 1886 letter on behalf of the Band and the August 29, 1886 letter from schoolteacher Tweddell is also wanting. I produce below the totality of his discussion on the correspondence below:
In addition to Baptiste Spence’s signature on the petition, two additional correspondences were found that mention Baptiste and the issuance of scrip. In one letter [the August 6, 1886 letter], it is inferred that Baptiste was the spokesperson of individuals who had signed the petition to return to treaty which is in line with the story that he had wished to return. Another letter [the Tweddell letter], however, notes that Baptiste was glad to have received scrip, which would support why he may have chosen to not return his scrip allowance in order to be returned to treaty. The letter indicating that Baptiste had not regretted receiving scrip was received following the other letter which could be inferred as a clarification to the first. Both letters, however, were received prior to the 1891 decision to re-admit.
86I have already described the August 6, 1886 letter alleging that the Indians of Sandy Bay were “altogether deceived and mislead in order to induce [them] to make application for scrip and withdraw from treaty.” This is the letter that implicates the schoolteacher, Mr. Tweddell, in the deceit. This letter recounts that Mr. Spence Sr. had been led astray and deceived, a suggestion consistent with the fact that he signed the petition to return to treaty. It also identifies Mr. Spence Sr. as spokesperson for the Band members seeking to return to treaty. Thus, it identifies concrete actions taken by Mr. Spence Sr. to return to treaty.
87Against this, the evidence the Registrar cites that supports a conclusion that Mr. Spence Sr. was glad to be out of treaty is the August 29, 1886 letter from the schoolteacher indicating that none of the Indians were deceived. Mr. Tweddell agrees that Wm. Sifton as well as others bought scrip from the Indians, but “he paid satisfactorily as I never heard any complaints until after Mr. Brown’s visit to Sandy Bay.” Mr. Tweddell then states that Mr. Spence Sr. told him that he (Mr. Spence Sr.) “was not sorry but that he was glad [to have left treaty] because, said he, I am my own master now and I can go where I like.” Mr. Tweddell goes on to say that majority of the people were “quite satisfied.” He then addresses the apparently contradictory “great dissatisfaction among the natives”, concluding “it is because they are so greedy that they would like to receive Treaty and scrip [both].”
88The Registrar refers to this letter as a “clarification,” which is a baffling characterization of a letter that serves principally to deny the contents of the August 6, 1886 letter. He does not address the internal (quite satisfied/great dissatisfaction) inconsistency in the letter, nor does he address the fact that the letter is written in response to a letter that implicates Mr. Tweddell in the coercion of the Sandy Bay Indians.
89The Registrar does not explain why Mr. Tweddell’s retelling of something he claims Mr. Spence Sr. said to him has equal or more evidentiary value than the evidence of Mr. Spence Sr.’s actions, that is, signing the petition and acting as spokesperson for the Sandy Bay Indians who wanted to return to treaty.
90The Registrar also makes reference to the failure of Mr. Spence Sr. to return to treaty as being consistent with Mr. Tweddell’s letter, and the allegation that Mr. Spence Sr. did not want to return to treaty. The evidence from the historian Rarihowkwats indicates that that Mr. Spence Sr. died before the offer to return to treaty was made. The Registrar acknowledges this evidence, although he stops short of accepting it, finding that a death certificate would be required to determine Mr. Spence Sr.’s date of death. There is absolutely no evidence suggesting that Mr. Spence Sr. died after the offer to return to treaty was made. I note that Mr. Spence Sr.’s death also “would support why he may have [not returned] his scrip allowance in order to be returned to treaty.”
91I find that the Registrar commenced his analysis with his conclusion. The tell is his statement at the outset of his decision rationale, to which I have referred several times, that “scrip certificates are weighted very heavily and are relied upon as proof of receiving scrip when rendering entitlement decisions; their validity is not questionable.” The rest of his analysis looks to support this conclusion, rather than test it.
92That approach led him to disregard and minimize evidence, causing him to make palpable errors of fact. The errors are palpable because the Registrar’s analysis proceeded on a near total disregard of evidence. He ignored the problems with Mr. Cook’s scrip declaration and receipt. He was obviously wrong with respect to his conclusion about Mr. Cook’s age at the relevant times. He ignored or minimized the evidence of scrip fraud. He drew illogical conclusions from the Tweddell letter.
93The errors are overriding on the question of whether Mr. Cook lawfully received scrip. He did not. He was too young to lawfully receive scrip. Moreover, more likely than not, he and Baptiste Spence Sr. were victims of scrip fraud.
94Given my conclusions on the issues above, it is not necessary for me to consider whether the Registrar erred in failing to recognize an enduring right to re-enter treaty conferred on Mr. Cook’s descendants, or whether the Registrar erred in his interpretation of s. 5(3) of the Indian Act.
Conclusion
95In the result, having determined that the Registrar erred in concluding that Mr. Cook was lawfully withdrawn from treaty, and lawfully received scrip even though he was a minor, and having determined that the Registrar made palpable and overriding errors in fact in concluding that Mr. Cook was not a victim of scrip fraud, I allow the appellant’s appeal, and reverse the removal of Sharon Bocchini and Bertha Celeste Isbister from the Indian Register.
96For clarity, the respondent has acknowledged that the restoration of Ms. Bocchini and Ms. Isbister is accomplished as follows:
a. St. Pierre Cook would be entitled to be registered under 6(1)(a) of the current Indian Act, as a person registered or entitled to be registered immediately before April 17, 1985; b. Bertha Celeste Isbister would be entitled to be registered under s. 6(1)(a.1) as a person who lost entitlement to be registered due to her marriage to a non-Indian in 1936; and c. Sharon Bucchini would therefore be entitled to be registered under s. 6(1)(a.3), as the direct descendant of a person who would have been entitled to be registered under para. (a.1).
Costs
97The three main purposes of modern costs rules are to indemnify successful litigants for the costs of litigation, to encourage settlement, and to discourage and sanction inappropriate behaviour by litigants: see Fong v. Chan (1999), 46 O.R. (3d) 330 (ON CA), at para. 22.
98Subject to the provisions of an act or the rules of this court, costs are in the discretion of the court, pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The court exercises its discretion considering the factors enumerated in r. 57.01 of the Rules of Civil Procedure, including the principle of indemnity, the reasonable expectations of the unsuccessful party, and the complexity and importance of the issues. Overall, costs must be fair and reasonable: see Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (Ont. C.A.), at para. 38. A costs award should reflect what the court views as a fair and reasonable contribution by the unsuccessful party to the successful party rather than any exact measure of the actual costs to the successful litigant: see Zesta Engineering Ltd. v. Cloutier (2002), 21 C.C.E.L. (3d) 161 (Ont. C.A.), at para. 4.
99The appellant is the successful party on this appeal and it is presumptively entitled to its costs. The respondent filed no bill of costs, as it would not have sought costs were it successful, and indicated it had no comments on the appellant’s costs outline.
100The appellant’s counsel worked pro bono. In 1465778 Ontario Inc. et al. v. 1122077 Ontario Ltd. et al., 82 O.R. (3d) 757 (C.A.) at paras. 34-35, the Court of Appeal found that there is no prohibition on an award of costs in favour of pro bono counsel in appropriate cases. In particular, allowing awards of costs in cases where a party has pro bono representation (i) ensures that all parties know they are not free to abuse the system without fear of the sanction of an award of costs; and (ii) promotes access to justice by enabling and encouraging more lawyers to volunteer to work pro bono in deserving cases. In my view, this is an appropriate case in which to order costs.
101The appellant’s bill of costs supports costs in the amount of $19,945.90. Counsel advises that the actual time spent would yield a much higher bill of costs, but it has limited its request for costs to the amount it submits is fair and reasonable.
102This appeal was complex factually, and moderately complex legally. The effort put in by counsel was substantial, and is reflected in the high quality of the work done. The amount of costs sought is reasonable in the circumstances.
103In the result, I fix costs in the amount of $19,945.90, all-inclusive, to be paid by the respondent to the appellant within thirty days of the release of these reasons.
J.T. Akbarali J.
Date: July 25, 2024