Justice (25-42): Current Problems

Court Challenges

May 24, 2019


Cindy Gladue murder trial: Background

Background Context – Assembly of First Nations – AFN was an intervenor in Supreme Court R vs Barton 2019 SCC 33 in support of justice for missing and murdered Indigenous women and girls, and for more respectful treatment of Indigenous women in the justice system. Bradley Barton was charged with first-degree murder in the death of Cindy Gladue in June 2011 and a jury acquitted him following a month-long trial in 2015. In its submissions, the AFN argued the importance of the mandatory requirements of s. 276 of the Criminal Code to protect the equality and privacy rights of a victim, and the necessity for fair and balanced instructions to the juries regarding racial biases. The AFN also argued that the characterizations of Cindy Gladue during the trial perpetuated myths and stereotypes about Indigenous women that should not form any part of Canadian law.


February 12, 2021


Cindy Gladue murder trial: manslaughter conviction

Edmonton Journal – Bradley Barton convicted of manslaughter in his second trial for killing Cindy Gladue in an Edmonton hotel room in 2011. Unlike in his first trail, the repeated references to Cindy Gladue as a native girl, a native woman and a prostitute were not allowed since they promoted “discriminatory beliefs or biases about the sexual availability of Indigenous women and especially those who engage in sexual activity for payment.

The case became a flashpoint and encapsulation of the issues sexual assault complainants and Indigenous people face in the criminal justice system. In the first trial, Gladue was repeatedly referred to as “Native” and a “prostitute,” and in an unprecedented step, the Crown entered as evidence part of Gladue’s preserved vaginal tissue. The Crown hoped the tissue — which was admitted over the protests of the defence — would illustrate the extent of the injury. Critics argued the move “completely dehumanized” Gladue in the eyes of jurors.

The Crown appealed Barton’s acquittal, and in 2017 the Alberta Court of Appeal overturned it and ordered a new murder trial. The Supreme Court of Canada weighed in after Barton filed his own appeal, deciding there should be a new trial, but only on a charge of manslaughter.

January 12, 2021

Fed. Govt.

Custody Rating Scale lawsuit

Globe and Mail – A class-action lawsuit filed in federal court challenges the Custody Rating Scale, a 12-question risk assessment tool developed by Correctional Services Canada in the 1980s and in widespread use. The suite is file on behalf of tens of thousands of inmates over systemic bias in its security classifications which affect inmates’ living arrangements, access to treatment programs and likelihood of getting parole. Last year, a Globe and Mail investigation found the scores derived from some of Correctional Service Canada’s most important risk tools, including the Custody Rating Scale, were systemically biased against racialized and female inmates resulting in harsher security ratings than they would have otherwise received.

“1CSC’s ongoing use of [the Custody Rating Scale] on Indigenous inmates must be recognized as the product of deliberate and conscious race-based discriminatory treatment of Indigenous inmates that resulted in and continues to result in, longer and harsher prison sentences for indigenous people, especially Indigenous women,” the statement of claim reads in part. Depending on their score, inmates can expect decreased movement privileges, less access to treatment programs and difficulty getting paroled/

  • Indigenous women were 65% more likely than white women to end up with a maximum-security level at admission and 42% more likely to have the poorest reintegration scores
  • Indigenous men were 30% more likely than white men to receive the worst reintegration potential score at any point during their sentence

December 14, 2020


Death of Barbara Kentner: manslaughter conviction

Brayden Bushby found guilty of manslaughter. “I find that the Crown has proven beyond a reasonable doubt that Mr. Bushby’s dangerous and unlawful act accelerated and caused Ms. Kentner’s death,” Justice Helen Pierce told the court.

September 18, 2020


Death of Barbara Kentner: murder charges reduced to manslaughter

CBC – Second degree murder charges have been reduced to manslaughter and aggravated assault against Brayden Bushby for the death of 34-year old Barbara Kentner. Bushby threw a trailer hitch from a moving car, yelling “I got one” after he hit the Indigenous women in the stomach. His originally scheduled judge and jury trial has been reduced to a jury only trial. “It is difficult for us to believe there is not a racial component to this decision,” Grand Council Treaty 3 Ogichidaa Francis Kavanaugh said in a news release on Friday. “For our people, it is easy to see that had the situation been reversed — had an Indigenous person struck and killed a non-Indigenous person — the accused would already be in jail facing a murder charge.”

The Missing and Murdered Indigenous Women and Girls Inquiry submitted their Final Report on June 3, 2019 labelling the ongoing violence against Indigenous people and especially women as “genocide”. Among their findings:

  • Indigenous women and girls are 2.7 times more likely to experience violence than non-Indigenous women.
  • Homicide rates for Indigenous women were nearly seven times higher than for non- Indigenous women.

The question to consider is “Why does a violent crime resulting in the death of an Indigenous women merit a reduction of a second degree murder charge to one of manslaughter?” If throwing a trailer hitch from a moving car at a person is not an “extreme reckless disregard for human life (LegalMatch)” then what is?

October 11, 2018

Fed. Govt.

Duty to Consult vs Indigenous laws and treaties

The Conservation – Mikisew Cree First Nation v. Canada Supreme Court Decision ruling on the application of the Duty to Consult doctrine and if it can be applied to the federal legislation-making process. The case originates from Mikisew Cree First Nation’s challenge of the 2012 Omnibus bills introduced under the previous federal government that made significant changes to environmental, fisheries and waters protection.

The decision negated any meaningful involvement of First Nations in the legislative process, a process that can have deep and lasting impacts on First Nation peoples, lands, waters, and Treaty and Inherent Rights. The Federal Court of Appeal overturned the ruling, saying that including the duty to consult in the legislative process offends the doctrine of the separation of powers and the principle of parliamentary privilege.

Recognizing that the 1764 Treaty of Niagara that had more than 2,000 representatives from Indigenous nations gathered over a month to deliberate how they could share the land with European settlers is a foundational “legal” document. Treaties are also part of the law. Section 35 of the 1982 Constitution Act affirms the recognition of this and other Aboriginal and treaty rights. Internationally, the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, which Canada has adopted, acknowledges the rights of Indigenous nations to have treaties and other agreements recognized by settler governments. If the Treaty of Niagara process had been used as a guide, Indigenous governments would be fully informed of proposed changes in law, with time set aside for representatives to come together in order to discuss, deliberate, debate and decide on the merits of these proposed changes. Indigenous legal orders would be recognized as a foundational source of land-use law.


December 17, 2021

Fed. Govt.

Incarceration rates of Indigenous people

Correctional Investigator – The Correctional Investigator, Dr. Ivan Zinger, released new data that shows that the proportion of incarcerated Indigenous women has continued to increase unabated, and is nearing 50% of all federally-sentenced women. On January 21, 2020, the Office of the Correctional Investigator reported that the proportion of Indigenous men and women in federal custody had reached a new historic high, surpassing 30% of the overall incarcerated population. The combined men and women Indigenous proportion in federal corrections is now 32%, and climbing.

“In the very near future, Canada will reach a sad milestone where half of all federally sentenced women in custody will be of Indigenous ancestry, despite representing less than 5% of the total population of women in Canada,” stated Dr. Zinger. “Surpassing the 50% threshold suggests that current efforts to reverse the Indigenization of Canada’s correctional population are not having the desired effect and that much bolder and swifter reforms are required.”

The statistical trends indicate that the number of Indigenous people in federal custody is increasing at a time when overall numbers of incarcerated people are declining. “On this trajectory, assuming overall declines in new admissions to custody, Canada will reach historic and unconscionable levels of Indigenous concentration in federal penitentiaries,” said Dr. Zinger. In fact, in the last ten years, the overall Indigenous inmate population has increased by 18.1%, whereas the non-Indigenous incarcerated population has decreased over the same period by 28.26%. “Over-representation of Indigenous people in correctional settings remains one of Canada’s most pressing human rights issues, and is evidence of public policy failures over successive decades as no government has been able to stop or reverse this trend,” said the Correctional Investigator.

Dr. Zinger concluded his statement by calling on Government and the Correctional Service of Canada to fully implement recent calls to action from Parliamentary Committees, Commissions of Inquiry, as well as recommendations from his Office – including creating and appointing a Deputy Commissioner for Indigenous corrections – that would significantly reallocate existing resources from the Correctional Service of Canada to Indigenous communities and groups for the care, custody and supervision of Indigenous people. “Healing Lodges and community-based services owned and operated by Indigenous communities can only yield better outcomes for federally sentenced Indigenous people,” stated Dr. Zinger.

July 9, 2019


Indigenous Cannabis Dispensaries

Policy Options – Saskatchewan Justice Minister Don Morgan urged the federal government to shut down cannabis dispensaries opened in Pheasant Rump Nakota Nation and Muscowpetung First Nation because they do not have provincial licences. Morgan’s comments reflect a deeply held belief in a hierarchy of laws that devalues and delegitimizes the law-making capacity of Indigenous groups. What’s more, he argued that the First Nations’ dispensaries represented an unwelcome source of competition.
Instead, federal and provincial governments must create a legislative and regulatory atmosphere that fosters cannabis-related economic development within Indigenous communities.

Today, cannabis presents a new and legitimate economic opportunity. Penalizing Indigenous communities for pursuing it would be unconscionable. Doing so would be repeating the wrongs of the past. For example, by the early 1880s, First Nations had developed innovative farming techniques and successfully planted new test crops. These achievements drew the ire of settlers who bristled at the potential for competition. Canada responded to their concerns by enacting a series of oppressive rules and regulations that suffocated agricultural development on reserves.
Policy Options. Jesse Donovan

September 25, 2020

Fed. Govt.

MMIWG Class Action Lawsuit

Southern Chiefs Organization – Strongly disagrees with the federal government’s arguments that Indigenous women, girls and 2SLGBTQQIA people do not face a “special threat from a special source” and are not unique victims of criminal violence. SCO believes they fly in the face of the findings of the National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG). The National inquiry into MMIWG found that Indigenous women and girls are 12 times more likely to go missing or be murdered than non-Indigenous women and girls. It also revealed that Indigenous women make up twenty-four percent of all female homicide victims in Canada, yet they only made up four percent of the total population.

The federal government made these arguments in a court hearing in Regina this week, arguing against certification of a $600 million class action lawsuit, filed on behalf of Dianne Bigeagle, whose daughter has been missing since 2007. Bigeagle says she went to police no less than 50 times, yet as far she is aware, they never did a proper investigation and never searched beyond Regina’s city limits. Bigeagle’s description of police treatment show how little law enforcement prioritizes cases of missing Indigenous women and girls. Ms. Bigeagle also is seeking $600 million in compensation for families of murdered and missing Indigenous women and girls.

September 21, 2020

Fed. Govt.

Supreme Court on Indigenous laws

Clarification and validation of Indigenous rights and treaty as asserted by the Supreme Court of Canada in Delgamuukw, 1997.

Assembly of Manitoba Chiefs (AMC) – AMC will be intervening at the Supreme Court of Canada…to argue that First Nation constitutional orders are distinct but equal to Euro-Canadian laws. The Court will address the most fundamental constitutional question of our time – the means of addressing climate change. The AMC will propose an analysis, which must recognize the existence of First Nations constitutional orders. The AMC cautions against the incorporation of First Nations laws within the existing Euro-Canadian federalism analysis to address the constitutional question. Instead, the AMC proposes a return to the relationship as it was originally intended by Treaties – one between equal nations with distinct legal traditions. There is confusion on the ground, and as a result Canada has witnessed protests, blockades, and police actions as First Nations, land protectors and corporate interests battle over control of natural resources and development.

On the surface, the case is about the Greenhouse Gas Pollution Pricing Act, the federal government’s carbon tax, and whether it intrudes on provincial jurisdiction. The Act was dealt a blow on Monday, February 24, 2020 when the Court of Appeal of Alberta ruled that the carbon tax is unconstitutional, on the grounds that it intrudes on provincial jurisdiction.

However, neither the federal nor provincial governments acknowledge the existence of First Nations laws. The AMC, represented by the Public Interest Law Centre (PILC), will argue that the Supreme Court has a unique opportunity to address a much deeper reality. AMC Grand Chief Arlen Dumas said, “First Nations people and laws have always been here. These laws continue to govern First Nations’ relationships with the Creator, Mother Earth and all living beings. They are grounded in mutual respect and underpin the Treaty relationship. Our First Nations laws constitute Canada’s first constitutional order, alongside the French Civil Law and English Common Law. This is a constitutional debate that must acknowledge our nation-to-nation relationships and help frame reconciliation.” The AMC contends that this court case exposes an outdated, inaccurate and destructive narrative about Canada. First Nations laws have been recognized by the Supreme Court, however recent lower court decisions have sent contradictory signals about the relationship between Euro-Canadian laws and First Nations laws. This lack of clarity has led to a patchwork of inconsistent decisions.

July 2, 2020

BC, Fed. Govt.

Supreme Court: Trans Mountain Pipeline appeal

BIV – Business in Vancouver – The Supreme Court of Canada has refused to hear an appeal of the federal government’s approval of the $12.6 billion Trans Mountain pipeline expansion, which is already under construction. The Tsleil-Waututh and Squamish First Nations and Coldwater Indian Band had appealed to the Supreme Court of Canada to hear an appeal of an earlier Federal Court of Appeal ruling, which had dismissed an appeal of the project’s approval. First Nations argued that proper consultations had not occurred.

Today’s ruling means First Nations have exhausted all legal avenues to halt the project on the basis of inadequate consultation, although that doesn’t mean the First Nations involved have abandoned all hope of some other legal challenge. “We’re not deterred and are exploring all legal options,” said Tsleil-Waututh Chief Leah George-Wilson. “What I can tell you today is that this not the end of the story.”

Over a period of months, the federal government held additional consultations with First Nations and again approved the expansion. First Nations appealed the decision and lost when the Federal Court of Appeal dismissed their appeal in February 2020. That decision underscored the point that senior governments have a duty to properly consult First Nations, but that that duty has its limits and does not confer upon First Nations veto powers over projects in their traditional claimed territories to which they object. “While the parties challenging cabinet’s decision are fully entitled to oppose the Project, reconciliation and the duty to consult do not provide them with a veto over projects such as this one,” the Federal Court of Appeal wrote in its February decision.