Stephen Ford

Timothy Barnhart, having been found guilty of Fisheries Act offences, brought a constitutional application seeking a declaration that sections 35 and 40 of the Fisheries Act infringed his Aboriginal and treaty rights, specifically a right to clean drinking water and a right to modify his land without interference.

The Crown moved to dismiss this constitutional application.

The Ontario Court of Justice dismissed Barnhart's application, finding that he failed to provide sufficient evidentiary basis to establish the existence of the claimed treaty or Aboriginal rights under the Simcoe Deed (Treaty 3 ½) or to demonstrate a prima facie breach of such rights.

The court emphasized the need for cogent evidence regarding pre-contact practices for Aboriginal rights and common intention for treaty rights, and noted the conflict between the individual's actions and the community's interests.

The accused, an Indigenous woman, applied for bail on 23 charges, including multiple counts of theft under $5000 from LCBO stores, possession of property obtained by crime, and several firearms offences.

The bail hearing was a reverse onus situation due to the accused allegedly committing indictable offences while on release and possessing firearms while under a prohibition order.

The court considered the Gladue factors but found the proposed release plan and surety inadequate.

The court ordered the accused's detention on both the secondary ground, citing a substantial likelihood of reoffending, and the tertiary ground, emphasizing the gravity of the firearms offences and the need to maintain public confidence in the administration of justice.

The appellant, an Aboriginal offender, appealed his 8-month sentence for sexual interference against a child and challenged the constitutionality of the 14-day mandatory minimum sentence under s. 15(1) and s. 7 of the Charter.

The court dismissed the constitutional challenges, finding that the mandatory minimum did not disproportionately disadvantage Aboriginal offenders in a discriminatory manner and did not create institutional bias.

However, the court allowed the sentence appeal, reducing the sentence to 90 days intermittent custody followed by three years' probation, citing fresh evidence of the appellant's remorse and the significant delay in the proceedings.