Stacy R. Tijerina

This appeal concerned the determination of a child's Indigenous background under section 90 of the Child, Youth and Family Services Act, 2017.

The motions judge had found the child to be a First Nations person based on the father's self-identification and his maternal grandfather's identification.

The appellant, Batchewana First Nation, argued that this evidence was insufficient and that a simple statement of self-identification could not establish band affiliation for the purposes of the Act.

The Superior Court of Justice agreed, finding that the motions judge erred in law by relying solely on self-identification without a sufficient evidentiary foundation connecting the child to the community, and made a palpable and overriding error by overstating the evidence regarding the lack of contradiction.

The appeal was granted, and the matter remitted for a new hearing.

The accused was charged with five offences arising from an incident on March 8, 2012: two counts of aggravated assault against his mother and her boyfriend, one count of resisting arrest, and two counts of breach of probation.

The central issue was the credibility of the mother's testimony, which changed dramatically between her testimony as a Crown witness and her testimony as a defence witness.

The Crown's evidence established that the accused assaulted both victims.

The defence argued that the mother's injuries were caused by the boyfriend slapping her, resulting in her falling against furniture.

The court rejected the mother's defence testimony as internally inconsistent, contradicted by her own earlier statements, and incongruent with physical and forensic evidence.

The court found the accused guilty of aggravated assault against his mother, assault causing bodily harm against the boyfriend, resisting arrest, and both counts of breach of probation.

The court ruled on the admissibility of hearsay evidence consisting of statements made by the victim to first responders immediately following an alleged assault.

The victim's statements were made to paramedics, firefighters, and police officers at the scene and were offered to prove the truth of their contents.

The court admitted the statements under both the classical res gestae exception to the hearsay rule and the principled approach based on necessity and reliability.

The victim testified at trial but could not recall the events, making the hearsay statements necessary to establish what occurred.

The accused brought an application for recusal and declaration of mistrial, alleging that the trial judge's questioning of the complainant (the accused's mother) during trial created a reasonable apprehension of bias.

The judge questioned the witness after examination by both counsel to clarify a narrative gap in her testimony regarding an assault.

The court dismissed the application, finding that the judicial intervention did not meet the high threshold for reasonable apprehension of bias.

The questioning was limited, occurred after counsel had completed their examination, sought clarification of prior testimony, and did not demonstrate excessive intervention or departure from accepted judicial conduct.