Court Challenges

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.

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17800/index.do

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.

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

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.

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?

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.

https://theconversation.com/let-indigenous-treaties-not-the-duty-to-consult-lead-us-to-reconciliation-105473

Arthur Masse was charged last year in alleged incident at Fort Alexander dating back more than 50 years

WARNING: This story contains distressing details.

CBC News: A retired priest accused of assaulting a First Nations girl at a Manitoba residential school more than 50 years ago has been acquitted. Victoria McIntosh alleged she was assaulted by Arthur Masse, now 93, in a bathroom of the Fort Alexander Residential School in eastern Manitoba’s Sagkeeng First Nation sometime between 1968 and 1970, when she was around the age of 10.

Loved ones, some wearing orange Every Child Matters shirts, hugged McIntosh in court in Winnipeg as Manitoba Court of King’s Bench Justice Candace Grammond read her decision on Thursday acquitting Masse.

Grammond said she believes McIntosh was assaulted, but she wasn’t persuaded that Masse in particular was necessarily the one who did it. “I have concluded when taken as a whole her identification of the accused was not sufficiently reliable to convince me beyond a reasonable doubt that he perpetrated an assault,” Justice Grammond told court on Thursday.

McIntosh and Masse were the only witnesses who testified in the two-day judge-alone trial earlier this month. The Anishinaabe woman told court the alleged assault lasted about a minute and Masse told her afterward not to tell anyone.

Masse testified that he did not assault McIntosh and said he had no recollection of interacting with her when she was a student. McIntosh first reported the assault allegation to police in 2015 and has said it took her several years to feel she could speak about what happened. Masse was charged in June 2022, following a years-long RCMP investigation into allegations of abuse at the residential school.

• Trial of priest accused of assault at Manitoba residential school closes
• Woman says priest attacked her inside bathroom at Manitoba residential school when she was 10

Court heard that in 2013, McIntosh participated in settlement discussions with the federal government as part of compensation processes for residential school survivors. At no time during that process did McIntosh allege Masse in particular assaulted her, Grammond said.

At trial, McIntosh suggested it wasn’t until after 2013 that she remembered his name. She also said a cartoon character she saw sometime in the past decade or more reminded her of him.  But McIntosh also suggested she never forgot about the incident itself, which court heard happened when she was nine or 10 years old.

‘Credible witness’: judge

At trial, McIntosh said the assault lasted a minute or less. She said her attacker pushed her against a wall in the bathroom with his forearm and used one hand to fondle her above her clothing. She said he kissed her and said “don’t say nothing” when it was over.

When she was initially interviewed by police in 2013, she did not mention the kiss and said she was able to get away before anything happened, court heard. She also did not mention to police that her attacker told her to stay quiet. However, while some details weren’t recounted “with absolute precision,” Grammond found “the inconsistencies do not impact her credibility.” “I found her to be a credible witness,” she said Thursday.

• Woman speaking out to shed burden after priest charged with sexually assaulting her 50 years ago
• Retired priest accused of sexual assault at Manitoba residential school pleads not guilty

McIntosh also recalled seeing a priest collar on the man who attacked her, a detail Grammond pointed to in explaining her decision.  There were several priests working at the school during the time of the alleged assault who could’ve been wearing similar collars, according to Grammond.

At trial, Masse’s lawyer George Green challenged McIntosh over apparent inconsistencies in details she shared with police in 2015 and in court earlier this month. He suggested her memory was unreliable and could include distortions. Crown attorney Danielle Simard argued McIntosh’s memory “was quite good” compared to Masse’s, including her description of the layout of the school campus and her memories of Masse as a “boss” at the school, clothing he may have worn and other elements of his appearance.

‘Self-serving’ evidence from accused

Grammond found elements of Masse’s memory to be unreliable, including his account of how the school’s in-house complaints process worked at the time. He suggested he received hardly any complaints in his time at the school.

Masse also said he couldn’t remember what kind of uniforms students wore at the time and suggested that school policy allowed students to go to the bathroom without asking permission, court heard.  Grammond found his recollection of the complaint process and bathroom policy to be “disingenuous.” “This was a … school in the 1960s,” she said. “Certain aspects of the accused’s evidence were self-serving and intended to distance himself from the complainant’s allegations and to downplay the rigid school structure described by the complainant.”

While she believes McIntosh was assaulted, Grammond said the timing and and nature of her identification of Masse as her attacker are relevant in the case, alluding to the lack of discussion about the incident in McIntosh’s 2013 settlement discussions and her 2015 interview with police.

That left her not convinced beyond a reasonable doubt the person who assaulted her was Masse, said Grammond. McIntosh left court without speaking with reporters after the decision.

Supporter Melissa Morrisseau said she was disappointed with the outcome. “I am very angry,” she said. “There’s no justice for our survivors.”

A national Indian Residential School Crisis Line is available to provide support for survivors and those affected. People can access emotional and crisis referral services by calling the 24-hour service at 1-866-925-4419.

Mental health counselling and crisis support is also available 24 hours a day, seven days a week through the Hope for Wellness hotline at 1-855-242-3310 or by online chat.

ABOUT THE AUTHOR

Bryce Hoye, Journalist

Bryce Hoye is a multi-platform Manitoba journalist covering news, science, justice, health, 2SLGBTQ issues and other community stories. He has a background in wildlife biology and occasionally works for CBC’s Quirks & Quarks and Front Burner. He won a national Radio Television Digital News Association award for a 2017 feature on the history of the fur trade. He is also Prairie rep for outCBC.

The Globe and Mail: The Chief of a tiny Fraser Valley First Nation is refusing to leave the job her father appointed her to 30 years ago, saying the band’s oral laws mean she is its legitimate leader.

But a group of opponents within the Kwantlen First Nation are escalating their four-year fight to fire Chief Marilyn Gabriel and bring in a new elected government. They have held two votes to oust her and add three new councillors in recent months. And the leaders of this breakaway movement are asking nearby municipalities and First Nations to cease contact with the Chief until the dispute is resolved.

There have been no elections within the band since Ms. Gabriel came to power in 1993, after the 25 years her father spent as hereditary chief and, before him, the three decades her grandfather led the Kwantlen.

On Thursday, the hereditary council – Ms. Gabriel and the two councillors that she appointed in 1994 – filed an application for a judicial review in Federal Court that would declare the breakaway councillors to have no authority and to force its three members and two organizers to immediately stop representing themselves as leaders of the Kwantlen First Nation.

The leaders of the group pushing to overhaul the Kwantlen’s system of governmentsay they welcome any input from the Federal Court after failing to get meaningful intervention from Ottawa in resolving this dispute over this unelected representation, which is also how more than a dozen nearby First Nations are run.

Ms. Gabriel and Councillor Tumia Knott declined interview requests. Ms. Knott sent two statements saying the two votes on their rule in the past four months are invalid and illegitimate because the Kwantlen have no traditional custom of referendum. However, the statement said, they support a dialogue about reform, but any changes to their law would require a “broad consensus” among members, an approach adopted by past Federal Court cases.

“Certainly they are entitled to advocate for a new system of governance and new leadership,” the statement said. “But they have no right to attempt to take over Kwantlen’s government unilaterally to force a result of their own choosing.”

The application to Federal Court, which Ms. Knott shared with The Globe and Mail, notes only 68 of the nation’s 375 members participated in Tuesday’s assembly. About 100 people live on one of the Kwantlen First Nation’s seven reserves, her statement said. Asked why her council has never held elections, Ms. Knott, a practising lawyer, said the Kwantlen First Nation is maintaining its precontact Indigenous traditions of hereditary leadership.

“These traditions cannot be reduced or equated to colonial models of governance,” she said.

The Federal Court application states that the council retained a consultancy in 2019 to survey the nation, but participation was “relatively low, and significantly less than a majority of adult Kwantlen members participated in the surveys.” So no broad consensus was reached on whether to reform their government.

Robert Jago, a Kwantlen First Nation member and spokesperson for the dissenting group who is also targeted in the application, said it is ironic that the council is concerned about consensus given the historic lack of opportunities for members to express themselves at a ballot box. “Every decision in our nation is decided by one vote from our hereditary chief,” said Mr. Jago, who is a writer and journalist for the online Canadaland outlet.

Mr. Jago said there are only 214 adult members of the Kwantlen, with more than half of these people “completely disconnected” from life on the reserves, the largest of which is 191-hectare McMillan Island on the Fraser River. In the recent vote, 32 per cent of eligible voters participated, which he admits “sounds low” but is still well within the customary rule of thumb of 12 per cent of all adults that local First Nations use to reach quorum.

Under the Indian Act, First Nations can opt out of regulations to follow a custom or hereditary leadership selection system. While most of those “custom bands” have developed procedures to handle elections, about 100 were brought under that process without having rules in place, and 19 still have no elected positions of any kind, according to Mr. Jago. Without written policies, it’s difficult to challenge alleged abuses in court, he added.

Under federal legislation, the minister for Indigenous services can order a First Nation operating under a custom system to hold an election. In 2010, Ottawa brought the Algonquins of Barriere Lake First Nation in Quebec under the Indian Act election system after a dispute over a custom code. It is unclear if another such order has been brought more recently. Indigenous Services Canada said Thursday it could take days to respond to a request for comment on the Kwantlen matter.

After the November general assembly vote to scrap the Kwantlen’s hereditary governance, Mr. Jago wrote to Indigenous Services Minister Patty Hajdu to recognize their effort at democratic reform. In a Dec. 28 response letter he shared with The Globe, Allyson Rowe, a regional director-general in the ministry, said the federal government will not step into the dispute and will recognize the current chief and two councillors until an internal resolution is achieved or a court rules on the matter.

Meanwhile, Mr. Jago said, the “extremely successful nations” nearby continue to offer a stark contrast to the Kwantlen, citing the Musqueam Indian Band sitting on more than $200-million in cash reserves. “We compare it to ours, where the big controversy last year was what to do with our failed café,” Mr. Jago said of his nation, which he said has an annual budget of $10-million. “We’ve gone backward.”

With research from Rick Cash in Toronto

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.

NationTalk: SIX NATIONS OF GRAND RIVER, ON, Dec. 21, 2022 – Legal action has been launched against the federal government over a class action Settlement Agreement (The Agreement) providing compensation for systemic abuse suffered by First Nations children attending government-run IDS.

The Six Nations of the Grand River Elected Council (Six Nations) and class member Audrey Hill (Ms. Hill) assert that The Agreement’s timeline, notification and support process for survivors to seek compensation is unrealistically short, culturally insensitive and retraumatizing. In addition, the process took place almost entirely within the COVID-19 pandemic.

To give class members a true opportunity to seek compensation, Six Nations and Ms. Hill filed a Notice of Motion today, arguing that The Agreement’s deadline should be extended to December 31, 2025.

“IDS survivors endured physical, sexual, and emotional abuse at the day schools, and were separated from their culture and identity. Many IDS survivors continue to suffer from intergenerational trauma as a result of the abuse experienced in these schools,” said Chief of Six Nations of the Grand River, Mark Hill. “The class action settlement has favoured speed and cost efficiency over providing the trauma-informed and culturally appropriate assistance that our people needed.”

The Agreement’s claim process opened January 2020 and almost immediately afterwards, the pandemic hit. This exacerbated challenges with the short timeline and the plan for notifying and assisting class members, which needed to be done in-person given two-thirds of households in First Nations communities do not have access to high-speed internet. Since the pandemic began, approximately only 28 community sessions have been held in 26 of the approximately 700 affected communities (less than 4%).

“To this day, a significant number of class members have not yet made a claim because of limited claims assistance, a lack of cultural sensitivity and unfair timelines,” said Ms. Hill. “We know that trauma survivors are often only able to recall or disclose trauma in stages, and most importantly, with time. Because of the lack of reasonable and culturally sensitive assistance provided, I felt compelled to voluntarily assist others with their claims. It should not have come to this.”

“The Government of Canada has ignored public statements from First Nations communities noting that their members will be unable to make a claim within the Claims Period,” said Chief Hill. “As Six Nations of the Grand River, we support other IDS actions and are watching closely to see the outcomes. It is disheartening that we now must file another motion with the courts to move towards reconciliation.”

Through the courts, Six Nations and Ms. Hill are seeking an extension of the settlement deadline to December 31, 2025.Background

• Systemic abuse was suffered by generations of First Nations children attending IDS run by the Government of Canada for over a century.
• IDS survivors launched a class action lawsuit against the federal government. In 2019 a settlement agreement was established to compensate class members.
• The claims period was arbitrarily set at two and a half years, compared to five years for the Indian Residential School Settlement Agreement.
• The claims period began on January 13, 2020, and was quickly derailed by the COVID-19 pandemic, which had a disproportionate impact on First Nations communities.
• The agreement specifically called for cultural sensitivity to minimize the risk that class members would be retraumatized when claiming compensation. This did not happen.
• Since 2019 when The Agreement was approved, class members have not received the necessary notice and assistance to complete their claims; and
• The process did not account for First Nations cultural sensitivities and the claims period was too short for a trauma-based case, particularly in light of the pandemic.

For further information: Media Contact: Katie Montour, Communications Officer, Six Nations of the Grand River, (226) 387-0826, commsofficer@sixnations.ca

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
https://policyoptions.irpp.org/magazines/august-2019/canada-must-respect-indigenous-cannabis-laws/

Book explores convictions where accused entered false guilty plea

EXCERPTED FROM “WRONGFULLY CONVICTED: GUILTY PLEAS, IMAGINED CRIMES, AND WHAT CANADA MUST DO TO SAFEGUARD JUSTICE” BY KENT ROACH. PUBLISHED BY SIMON AND SCHUSTER CANADA. COPYRIGHT © 2023. ALL RIGHTS RESERVED

Toronto Star: Beyond the infamous cases, Canada has a major problem with wrongful convictions, argues Kent Roach. The co-founder of the Canadian Registry of Wrongful Convictions and an author University of Toronto law professor lays out solutions in “Wrongfully Convicted: Guilty Pleas, Imagined Crimes and What Canada Must Do to Safeguard Justice.” In this excerpt, he looks at convictions where the accused has entered a false guilty plea.

The Canadian Registry of Wrongful Convictions shows that 15 of the 83 entered a guilty plea. Moreover, 73 per cent of these false guilty pleas in Canada (11 of 15) were made by women, Indigenous or racialized persons, or by those who suffered from a mental disability.

Why would anyone who is innocent or who has a valid defence plead guilty?

Early in my career, I may have unwittingly played a small role in condoning a guilty-plea wrongful conviction. Along with Kimberly Murray and Jonathan Rudin, I represented Aboriginal Legal Services in a high-profile 1999 case when we intervened in the Supreme Court in support of Jamie Gladue, a Cree and Métis woman who was appealing a three-year prison sentence for killing her 20-year-old partner, Reuben Beaver, in 1995.

The case recognized that the overrepresentation of Indigenous people — 12 per cent at the time — was a “crisis” that required judges to sentence Indigenous people in a different way.

Unfortunately, sentencing under the Gladue precedent, which was reaffirmed by the Supreme Court in 2012 with added recognition of the intergenerational harms caused by residential schools, has not worked. Indigenous people now constitute over 30 per cent of those in Canadian prisons, and Indigenous women are close to 50 per cent of the women in federal penitentiaries. Indigenous people constitute five per cent of Canada’s population.

On the day of the killing, Jamie Gladue, five months pregnant, was celebrating her 19th birthday. The previous year, Reuben Beaver had been convicted of assaulting her when she was pregnant with their first child. He received a 15-day sentence and probation for that attack. Gladue believed Beaver had slept with her sister after she caught him leaving her sister’s apartment. A neighbour heard “a fight” in their apartment which “lasted five to 10 minutes … like a wrestling match.” It ended when Gladue stabbed Beaver in the heart.

Her lawyers had an expert prepare a battered woman’s self-defence report, and they had photos of bruises on Gladue’s arm and collarbone that the courts said were “consistent with her having been in a physical altercation.” If the jury had a reasonable doubt that Gladue acted in self-defence, she would be acquitted. But Gladue was charged with second-degree murder: if the jury convicted her, she faced a mandatory sentence of life imprisonment — the same sentence that had been imposed on Donald Marshall Jr. (victim of an infamous wrongfulconviction in Nova Scotia). That is still the law today.

In her review of women’s self-defence cases in 1997, Justice Lynn Ratushny recognized that the mandatory life imprisonment sentence for murder placed undue pressure on women who might have valid self-defence claims to plead guilty to manslaughter, simply to avoid mandatory life imprisonment.

Like many women with children in such difficult no-win positions, Jamie Gladue decided to plead guilty to manslaughter when the prosecutor agreed, in exchange, to drop the murder charge. She did not appear eager to make this deal. She only pled after a preliminary inquiry had decided that a jury could convict her of murder and a jury (unlikely to contain many, if any, Indigenous people) had been selected for her murder trial.

When Gladue pled guilty to manslaughter, her second child, named Reuben after his father, was almost two years old, and her first child, Tanita, was almost four years old. Gladue received a sentence of three years even though her lawyer had asked for a sentence to be served in the community: she was remorseful and not a danger, she had no criminal record, and she was being treated for addictions and a hyperthyroid condition that caused her to overreact to emotional situations.

The trial judge stressed that Gladue was not living in an Indigenous community and, moreover, he thought prison would deprive her of access to alcohol. He sentenced Jamie Gladue to three years in prison, which at the time could have sent her to the infamous Prison for Women in Kingston. As things turned out, Gladue served six months in prison, in British Columbia, and another 12 months under electronic monitoring, which she paid for.

The Supreme Court did not alter Gladue’s sentence. It found three years to be reasonable for what it called a “near murder” even though the trial judge had made legal errors in dismissing the need to consider Gladue’s circumstances as an Indigenous offender.

But was Gladue even guilty of manslaughter? The Court did not examine her guilty plea. It also did not look at the trial judge’s conclusion when sentencing Gladue that she was not a “battered or fearful wife,” or the B.C. Court of Appeal’s decision not to admit new evidence relating to battered woman’s selfdefence. Perhaps Gladue’s lawyers, the prosecutor or the group I represented, Aboriginal Legal Services, should have forced the issue of whether Gladue was even guilty of manslaughter.

In hindsight, I think the Supreme Court would have shut down any attempt to reopen the manslaughter guilty plea. Regrettably, the Court continues to have a blind spot about recognizing guilty-plea wrongful convictions or the injustice of the mandatory sentence of life imprisonment.

Even if the Court had overturned Gladue’s plea to manslaughter, the result could have been a new trial where she would again face the downside risk of a murder conviction and an automatic life sentence. I would never blame Jamie Gladue for taking the manslaughter plea, given the impossible choice she faced. Nevertheless, the prospect that she might have had a valid defence haunts me.

I had success in arguing the law in her case, but wrongful convictions are almost never about the law. They are about humans making mistakes about the facts. They are sometimes about people cutting their risks in order to receive a lesser sentence, even if they are not guilty or have a valid defence.

Gladue’s case is not counted in the Canadian Registry of Wrongful Convictions because her guilty plea to manslaughter still stands as the official record of her case. Her case reveals how guilty-plea wrongful convictions will always be with us so long as plea bargains and lesser sentences for pleading guilty are offered.

Accused people will be scared, as they should be, by the worst-case scenarios of long prison terms or, in the case of murder, automatic life imprisonment.

KENT ROACH EXCERPT FROM “WRONGFULLY CONVICTED: GUILTY PLEAS, IMAGINED CRIMES, AND WHAT CANADA MUST DO TO SAFEGUARD JUSTICE” BY KENT ROACH. PUBLISHED BY SIMON AND SCHUSTER CANADA. COPYRIGHT © 2023. ALL RIGHTS RESERVED

Class-action suit launched over the Île-à-la-Crosse school in northern Saskatchewan after Métis were left out of previous settlements.

Toronto Star: For survivors of one of the oldest residential schools in Canada, it’s been a long time coming.

Métis survivors who attended the Île-à-la-Crosse residential school in northern Saskatchewan have launched a class-action lawsuit against the Saskatchewan and Canadian governments, after having been left out of separate settlements for First Nations and Inuit peoples. 

The lawsuit is on behalf of survivors of the Île-à-la-Crosse residential school and includes students who lived at the school and those who attended the day school. It also includes claims on behalf of family members and surviving spouses. 

For survivors like Louis Gardiner, whom the lawsuit is named after, a settlement would be a long-needed recognition that Métis people suffered the same abuses as others who attended the schools but have not received the same compensation or acknowledgment.

“The survivors who are not with us today, they never had a chance to tell their story. We suffered the same trauma as all residential schools … we couldn’t speak our language. They separated the survivors (by gender) … we couldn’t even go see our sisters,” he said.

According to Michelle LeClair, vice-president of Métis Nation-Saskatchewan, Île-à-la-Crosse is the second oldest community in Western Canada and will turn 250 years old in 2026. The school itself opened in the 1820s and operated for more than 100 years. It’s believed that about 1,500 children attended.

“We see the fact that people have not been acknowledged, but nor has the harm, the generations of harm,” LeClair said.  “Multiple governments, both at the federal and provincial level have been pressed on this issue. And we hear a lot of ‘Ýes, we need to deal with this. They need to be acknowledged.’ But nothing ever seems to happen until we take it to the courts,” she added.

The Métis Nation-Saskatchewan is assisting with the class-action lawsuit financially and also morally, ethically and emotionally, LeClair said. 

Gardiner, who first attended the school at age five, spoke of how he would be punished with “the strap” if he was caught speaking Michif, his first language, and how he was not referred to by his name, but by a number. He also told of how he ran away from the school as a child and was eventually discovered by a search team.  “We lost everything, we lost our language, our culture, our identity,” he said. “And all we ask for is to be treated fairly as survivors.”

Four of the plaintiffs are survivors and two are family members of survivors. The statement of claim was filed on Dec. 27 against both the Saskatchewan and Canadian governments.  So far, no statements of defence have been filed. In November, the Saskatchewan government declined to meet with Métis Nation-Saskatchewan, citing ongoing litigation in relation to the school.

A previous lawsuit on behalf of Île-à-la-Crosse School survivors was filed in 2005 but has not moved forward over the last 17 years, a spokesperson said at a media availability on Tuesday. As part of the new lawsuit, one of the first actions will be to request for the previous lawsuit to be stayed.

Nearly all of the surviving plaintiffs have fired legal representation for the previous lawsuit and are on board with the new one, according to a website set up for the class action. 

The website notes that when the Indian Residential Schools Settlement Agreement was signed in 2006, people could request to add schools to the list of those to receive compensation. But the request to add the Île-à-la-Crosse school was denied because the government said the school was run by the Catholic mission, not the government. 

One of the reasons a new class-action lawsuit is moving forward is because the survivors are getting old, stakeholders said. The youngest surviving students are now in their 50s, said Duane Favel, mayor of Île-à-la-Crosse. And it’s believed about 20 survivors died in the last year alone, LeClair said. 

“Time is of the essence,” Favel said.

Favel, who attended the day school, said it seems Métis people are often included in those affected by the legacy of the residential school system, but not in a meaningful way. “We seem to be invited to participate in all the ceremonies in Canada that recognize survivors … My late uncle, Don Favel, was invited to the Harper apology with several other Métis survivors. They still don’t have closure,” Favel said.

Gardiner said he hopes this class-action suit will be more fruitful than the last and that it will succeed in time for survivors to see justice. “I think it’s very important that we need to tackle this together, as one Métis family,” he said.  “We hope that the file can move forward aggressively because a lot of our survivors are getting up there in age and there’s not many of us left. And we need to tell our story.”

Omar Mosleh is an Edmonton-based reporter for the Star. Follow him on Twitter: @OmarMoslehSHARE:

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.

Quewezance, convicted with her sister in a killing her cousin confessed to, may be on the cusp of freedom. Why a visit to her home stirred old emotions.

The Toronto Star: RHEIN, Sask.—Odelia Quewezance knew she had to stay strong, at least for a few more weeks. The slender 51- year-old Salteaux woman smiled often at her family and at me as she spoke. But reaching across the table to touch her 15-year-old daughter Katelyn’s cascading hair — which she has not been able to do for most of her child’s life — Odelia’s smile faded. 

“My twins are all grown up. It is so unfair.”

Odelia oscillated between hope and despair as she shared her life story with me in interviews over three days, with her “spiritual mother,” Indigenous activist Rose Henry, 64, by her side. I had long wanted to meet Odelia, a woman who had kept her family together in the face of fierce judicial resistance, crippling trauma and unbearable distance. So, as her potential freedom approached, I made my first visit to the unforgiving Prairie once farmed by my English ancestors, not realizing the amount of baggage I had taken with me.

Tall and still strikingly youthful, despite lines of worry on her face, Odelia showed us photos of the halfway houses she has called home in Regina, over the past few months, rife with waste, insects and drugs. One night, she awoke to find an addict rummaging through a garbage can in the hallway, and another night, a woman overdosing. For family visits, Odelia needs to find a ride for 230 kilometres over rural roads to see her partner and children who live in Rhein.

“I don’t understand why I have to live with criminals.” 

Weekend leaves are a lifeline for Odelia. She and her sister Nerissa have spent 30 years in custody for a crime they say they didn’t commit. Nerissa remains behind bars in B.C.’s Fraser Valley, but Odelia lives in transitional custody in Regina. Time with her family fosters her hope and strength for the day when she can be the woman she longs to be. 

“I just want to be a real mother to my children,” she said.

In a court on Monday in Yorkton, Sask., Odelia and Nerissa will hear whether they will be released on bail after decades in prison for a murder that someone else has confessed to.

But that evening as I hugged Odelia tight, I wondered how Canada could ever reconcile with the thousands of Indigenous women who have suffered the unimaginable pain of residential schools, poverty, racism and wrongful incarceration. How could I, whose ancestors had lived alongside hers, ever reconcile with Odelia? 

A life sentence for murder

Odelia and her sister Nerissa were sentenced to life in prison in 1994 for second-degree murder in the killing of Joseph Dolff near their home in Keeseekoose First Nation, a Saulteaux Nation in rural Saskatchewan, even though a younger cousin has admitted multiple times that he — not the sisters — killed the 70-year-old.

The cousin, who was 14 at the time, confessed at his trial and in an investigation by Indigenous broadcaster APTN that he killed Dolff after the older man sexually propositioned them. The cousin admitted stabbing him 17 times, strangling him with a phone cord and throwing a television set onto his head. The federal Justice Department now sees the women’s convictions as a likely miscarriage of justice and is reviewing their cases. 

Defence lawyers are asking for a conditional release with limited conditions for Odelia and Nerissa while the federal reviews proceed. High-profile advocates have supported the sisters, including Kim Beaudin, vice-chief of the Congress of Aboriginal Peoples, Ontario Sen. Kim Pate and the late justice advocate David Milgaard, who spent 23 years in prison for a murder he didn’t commit.

As snow brushed against the windows of the family home, Odelia spoke of her lifetime of tragedy and injustice and her hopes for a future as an advocate against racism, sexism and wrongful conviction. Rose Henry held Odelia close and flipped the bird at the camera, her usual pose. “She’s a real warrior,” said Henry. “Her biggest crime is being an Indigenous woman and being exposed to a predator.” 

Henry knew well that Odelia’s torment started generations earlier and pointed to wider injustice that filled me with shame. Indigenous women make up 50 per cent of women in federal prisons, despite making up less than five per cent of the female population, according to a 2021 report from the office of Canada’s correctional investigator. Indigenous people routinely serve longer sentences than non-Indigenous people, under much harsher conditions of confinement.

What all-white jury didn’t hear

Odelia and I were born just months apart in the tumultuous early 1970s. It was a time of activism and hope for the equality of women and Indigenous people. But by the winter of 1993, while I was living glorious and free as a student, Odelia was being held in a concrete cell for four days of questioning by white men at a local RCMP detachment, without a lawyer present. She was just 21.

“I was shy. I couldn’t speak … I couldn’t respond to anger,” Odelia said of herself as a youth.

Our ancestors lived side by side in the late 19th century. My great-grandfather Richard Lake rode an “Indian pony” to acquire a parcel of the Prairie that had been home to Odelia’s Salteaux people. Later family photographs show Odelia’s ancestors posing with my great-grandfather, then Saskatchewan’s third lieutenant-governor. I wonder if he ever asked about their hopes for their great-grandchildren.

The details of Odelia’s family and childhood were not presented to her all-white jury. 

After generations of residential school, Odelia’s parents were too traumatized to parent well. While I walked a block to a school in our tree-lined neighbourhood, Odelia and her sisters were sent to the Le Bret and Marieval residential schools, where more than 750 unmarked graves were found in 2021. Odelia remembers being physically abused and sexually assaulted by a Catholic nun when she was seven. But she didn’t tell anyone about it back then.

“She was a child-care worker,” Odelia said. “I didn’t understand it at all.”

From a young age, Odelia mothered her scrawny, curly-haired younger sisters, Nerissa and Zerlina, finding them food when they were hungry and taking beatings so they wouldn’t have to, she said. From age 16, she worked the streets in Edmonton to provide for 14-year-old Nerissa and prevent her from prostituting herself. Odelia can’t shake the memories of the trauma she witnessed when she was home from residential school and a ward of the child welfare system. She saw one uncle shoot his head off; and she heard the blast as another relative shot himself in the house she was living in, she said.  “I wanted to die sometimes.”

Despite their mother’s trauma, Odelia’s 15-year-old daughters, Katelyn and Kursten, are bright, beautiful and full of love for Odelia and their father, Jay Koch, 62, who has stayed with Odelia through decades of heartbreak. Smiles flickering in the firelight of the family’s cosy living room, the girls chimed in as Odelia and Jay spoke with pride of their 23-year-old “brainy” daughter Haley, who attended the University of Regina and now works in Saskatoon.

“Children need love, that’s what it takes,” Odelia said, gazing at Haley’s smiling photo. Odelia and Jay conceived their children during his visits to prison, and she was able to live several years with her daughters at healing lodges when they were babies.

As the adults talk about plans to get Odelia back to her halfway house the next day, the twins speak of their worries about their parents. Their father has been under immense strain raising them mostly on his own, they said. And their parents argue a lot when they are together.

“I hope my mom can get out,” Katelyn said. “I hope my auntie gets out, too.” It was scary to visit their mother in the jail, Kursten said, so they have spent time together mostly on the phone. “I love how she tries really hard for everyone,” she said, taking a sip from her frappuccino. “She wants the best for everyone.”

Odelia was good company over the weekend and trusted me with her hopes and her hurts. Perhaps she took comfort in my friendship with Rose Henry or the story of my opening my home last year to another convicted Indigenous woman.

“You are the only reporter who has come to our house,” she said. I can’t bear to tell her that photos of this land, more than 100 years old, hang in our family gallery.

Along with the horrendous details of her life and time in custody, Odelia spoke of her forgiveness for her cousin and her empathy for Dolff and his family.  “God rest his soul.”

She stood up to hug her daughters, who had changed into black hoodies and were leaving for a party. Like me, also a mother of teenagers, Odelia worried about peer pressure.  “Be safe and call if you want to come home,” she told them. 

Odelia herself drank heavily as a teenager, but it was only in prison that she got into drugs and became an addict, she said. Her prison addictions led her to breach bail conditions and be sent back to jail, she said. “I don’t understand how they think we can get better around all these sick people. “Prison is not rehabilitative. It’s a place that turns people hard.”

Lifting the sleeve of her sweater, she showed the dozens of scars on her forearm where she had slashed herself while in prison: “It took the pain away.” She was taken several times to hospital, she said.

But prison wasn’t all bad, Odelia said. Sen. Kim Pate has been a long-time source of friendship, and Indigenous elders visited and gave her the mother love she had missed.  “The thing that helped me in there was the elders, ceremonies, the sweats and smudging. That’s what got me to where I am today.”

Odelia Quewezance says goodbye, again

I left Odelia’s home filled with sorrow and worry about Odelia and her Indigenous community. I hoped my ancestors would never have imagined the torment of the Saulteaux more than a century after razing the land once shared with buffalo.

The next morning, Odelia sat in the back of my rented 4×4 pickup and sobbed. She had just said goodbye to Jay, Kursten and Katelyn and wasn’t sure when she would see them next. As the miles spread between Odelia and her family, she began to tremble and whimper. She shouted at me to stop the truck and stepped out to catch her breath in the frigid air, snow gusting through her hair as her tears fell. 

Katharine Lake Berz is a writer on Vancouver Island and in Toronto. www.lakeberz.comSHARE:

Reporting by APTN News helped inspire new Canadian Registry of Wrongful Convictions

APTN News: A team of Indigenous law students have built Canada’s first registry of wrongful convictions. Their database, which went live this week, confirms that mostly white, middle-class men have been exonerated so far.

“It does not reflect the most vulnerable people in the prison population,” said Amanda Carling, a Métis lawyer and member of the registry team from the University of Toronto Faculty of Law. “We hope this generates conversation around who is being exonerated and who isn’t.”

The team said it took five years and dozens of volunteer researchers to collect, clean and collate the data used to create The Canadian Registry of Wrongful Convictions.

The registry identifies 83 wrongful convictions, 16 of which represent Indigenous Peoples.

“That’s why the logo for the registry is a mountaintop,” explained law professor Kent Roach, “because we’re trying to reveal a little bit more of the tip of that iceberg.”

The registry was built using publicly available court information and includes cases that received a remedy such as being freed by a court or the federal minister of justice. The names Canadians commonly associate with wrongful convictions are there – Guy Paul Morin, David Milgaard, Donald Marshall and Steven Truscott – along with 79 others.

But, added Roach, “…We’re under no illusions that there are lots more people below the surface who are literally trying to get out from under water and start this long climb to having their wrongful convictions corrected.” The team said it was inspired to build the registry by reporting on Indigenous exonerees Connie Oakes and Clayton Boucher by APTN News.

Oakes, a Cree woman from Nekaneet First Nation in Saskatchewan, was on her way to prison before APTN started looking into her case. Medicine Hat police had zeroed in on Oakes and despite the Crown having no evidence, took her case to trial. The Alberta Court of Queen’s Bench eventually exonerated Oakes and her co-accused Wendy Scott.

Boucher, a Métis man from Alberta, was arrested without the police having the evidence to charge him. APTN revealed he spent 90 days in jail despite the Crown having evidence to clear him of the crime of dealing drugs.

Carling, who co-taught a wrongful conviction class with Roach and is now CEO of the BC First Nations Justice Council, said APTN’s stories raised questions about wrongful convictions. “Our system is just as racist [as the Americans’],” she said, “that’s why we needed to make this database.”

Indigenous Peoples in Canada represent approximately four per cent of the general population and 37 per cent of most provincial, territorial, and federal institutional populations. “Part of the problem, and we’ve seen this in the Connie Oakes’ case, is that [society has] created this kind of myth that the victim of wrongful convictions has to be someone who is an idealized version,” said Roach. “That there’s nothing in their past that might have attracted suspicion. And that’s a very unrealistic thing.”

Milgaard, a wrongful conviction advocate who died last year, wanted a faster and easier system for innocent people to get their applications reviewed and their release approved. On Feb. 16, federal Justice Minister David Lametti announced David and Joyce Milgaard’s Law [Bill C-40] to create an independent commission to review wrongful convictions and replace the lengthy ministerial review process.

While the reform is important, Carling said it reflects what went wrong in a white man’s case and won’t necessarily help racialized people who pleaded guilty to crimes they didn’t commit unless they are able to vacate their plea and exhaust all appeals.

The team hopes its database, while modelled on the U.S. and U.K. databases, will draw attention to access to justice issues in the Canadian innocence movement. “Our data set has shed light on many cases that have received little or no media attention. Cases of Indigenous and other racialized people, of people living with cognitive disabilities, of women and more,” added Carling.

“We have also created a timeline of miscarriages of justice to capture issues and cases that fall outside the database but are equally worthy of the public and lawmakers’ attention: the Supreme Court of Canada’s 1969 decision in the case of Lawrence Brosseau, the 1928 conviction of Chief Syilliboy for hunting muskrat, and the 1864 hanging of the Tsilhqot’in Chiefs, among others.”

Roach said to be included in the database, the cases had to be where someone was convicted or pleaded guilty and – on either the first or second appeal – new evidence was introduced that led to an acquittal or order for a new trial [that was never held because the prosecution didn’t see a reasonable prospect of conviction].

Editor’s note: The number of wronful convictions for Indigenous Peoples is 16, not 24. This has been corrected.

By Kathleen Martens

APTN News fighting publication ban on Quewezance sisters’ bail hearing

Crown attorney in Saskatchewan is arguing in a Yorkton courthouse that media shouldn’t be able to report on bail hearing for the sisters. over a bail hearing for Nerissa and Odelia Quewezance. 

APTN News: A Saskatchewan prosecutor has applied to keep the details of a pivotal court hearing for two Saulteaux sisters under wraps.

Sr. Crown attorney Kelly Kaip filed an application to the Court of King’s Bench in Yorkton, Sask., Wednesday for a “discretionary publication ban” on the upcoming bail hearing of Nerissa and Odelia Quewezance.

A publication ban would prevent news media from reporting on evidence shared at the two-day hearing, which is scheduled for Nov. 24 and 25.

APTN News has been covering the case for years and is opposed to the ban.

The Quewezance sisters were 18- and 20-years-old, respectively, when they were sentenced to life in prison in 1994 after being convicted of second-degree murder in the death of 70-year-old white farmer, Joseph Anthony Dolff, of Kamsack, Sask., in 1993.

They have spent three decades in prison. Even after their cousin – a minor at the time – pleaded guilty to killing Dolff in the 1990s and served a five-year sentence.

The plight of the women from Keeseekoose First Nation was championed by social justice advocate David Milgaard, who was wrongfully convicted in Saskatchewan in 1970. Milgaard’s advocacy caught the attention of various high-profile supporters and wrongful conviction lawyer James Lockyer of Toronto.

The bail hearing is scheduled to be heard in Yorkton, located 330 km east of Saskatoon.

Lockyer secured a ministerial review in June when federal Justice Minister David Lametti declared there “may be a reasonable basis to conclude that a miscarriage of justice likely occurred in this matter.”

Lockyer is seeking to free the women on bail – also known as judicial interim release – while the next phase of the review works its way through the courts.

But because the review could result in a new trial, a hearing before the Court of Appeal, or be dismissed outright, Kaip said there should be a lid on publishing anything until the review is concluded.

She also asked for an order sealing the court records.

“Overall, in the interests of trial fairness, the materials and information relating to the judicial interim release hearing should be sealed and a publication ban ordered,” Kaip wrote in her application Wednesday.

APTN has been waiting weeks for the release of some of those public records.

“Under certain conditions,” Kaip continued in her application, “public access to confidential or sensitive information related to court proceedings will endanger and not protect the integrity of our justice system.

“Specifically, the courts have recognized a critical difference between cases where the open court principle enhances public awareness of judicial proceedings and cases where it could distort the ability of the court to achieve justice as between the Crown and the accused.”

Kaip is expected to oppose the women’s release on bail.

“In the case at bar,” she added, “a substantial amount of information has been filed in support of, and in opposition to, the (sisters’) application for a judicial interim release.”

Read More: 

There may have been a miscarriage of justice in case of Quewezance sisters, says federal minister 

Back to Keeseekoose: Odelia Quewezance returns to her past to chart a new future 

Lockyer told APTN he is “100 per cent opposed to the ban.”

Meanwhile, APTN has filed its intent to fight the ban under the “open court principle”, which pre-dates the Canadian Charter of Rights and Freedoms.

The Supreme Court of Canada has said a publication ban should only be ordered “to prevent a serious risk to the proper administration of justice” and when it affects “the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.”

The high court noted it must be “a risk that poses a serious threat to the proper administration of justice. In other words, it is a serious danger sought to be avoided that is required.”

It is up to the Crown to prove the need for a publication ban and that limiting the media’s Charter rights is necessary, noted APTN’s media lawyer Bob Sokalski of Winnipeg.

Sokalski intends to argue, among other things, that “openness is necessary to maintain the independence and impartiality of the courts.”

The Crown’s application for the ban is scheduled to be heard at 10 a.m. on Nov. 24 in Yorkton.

Sask. sisters had been awaiting decision more than 2 months

CBC News: Nerissa Quewezance, 48, and her sister Odelia Quewezance, 51, will be conditionally released while they await results of a ministerial review of their second-degree murder charge and conviction.

People in the Yorkton Court of King’s Bench applauded when court closed just before 11 a.m. CST Monday. m “I’m feeling overwhelmed, I’m relieved that we’re home free and I just want to thank the judge,” Odelia told reporters, while standing hand-in-hand with her sister beside her. She also thanked her family and supporters for being at the courthouse with them.

The Quewezance sisters were convicted of second-degree murder charges in 1994 for the death of Kamsack farmer Anthony Joseph Dolff.

Incarcerated people can apply for a judicial review when all avenues for appeal have been exhausted. When it is over, a report and legal advice will be prepared for the federal justice minister. The minister can then order a new trial or appeal, or dismiss the application if he is not convinced there has been a miscarriage of justice. These reviews can take years, and it’s not clear how long this one will be. 

The sisters will have to abide by several conditions on their release, including having no contact with anyone who was a witness at their 1994 trial, except for their immediate family who they cannot speak about the trial with. Other conditions are not having contact with the Dolff family, and a curfew of 11 p.m. to 6 a.m.

• Judge reserves bail decision for Sask. sisters who claim wrongful conviction after nearly 30 years in prison
• After 30 years of incarceration, bail hearing for sisters who say they were wrongfully convicted begins

Crown prosecutor Kelly Kaip opposed the release of the sisters, and told reporters Monday that the Dolff family is disappointed. She said she will be taking a closer look at Justice Donald Layh’s decision and will determine next steps from there. During the hearing in January, Kaip argued there isn’t enough proof the sisters are innocent in Dolff’s death, and that despite their improvements while incarcerated — including leadership roles in programs and volunteering — their criminal histories and parole violations suggest they shouldn’t be released.

The violations were something Justice Layh spoke at length about in his decision, but ultimately he decided the sisters were not a flight risk, and that he had a reasonable assumption that the sisters would come back into custody willingly.

Kaip retold the story of Dolff’s death during a court hearing in January. Dolff was beaten, stabbed and had a telephone cord wrapped around his neck. Both sisters were present at Dolff’s death and admitted to attacking him during their trial in the 1990s, but maintain they didn’t kill the 70-year-old man.

The sisters’ cousin, who was a minor at the time of the murder, admitted in court to stabbing Dolff and was convicted alongside them in Dolff’s death. He served four years for second-degree murder. 

• Judge spikes request for publication ban on bail hearing for Indigenous sisters claiming wrongful conviction
• New wrongful conviction review commission could reduce delays, but justice experts hope for bigger change

‘It’s obviously very emotional’: sisters’ lawyer

Congress of Aboriginal Peoples vice-chief Kim Beaudin said the sisters are not a risk to the public, and plans to house Nerissa during the release. “It’s a really big deal. The reason I put my name forward too is, I recognize how the courts work and they’ll pretty much use any excuse to make sure that people can’t get home, particularly Indigenous people,” he said.  “I just wanted to ensure that opportunity was there for her.”

Beaudin said he really wants to make sure that Nerissa gets introduced to the right supports, as it’s difficult to adjust to life outside after being in an institution for so long. Odelia is set to reside in Rhein, Sask. 

James Lockyer, the sisters’ lead defence counsel and co-founder of Innocence Canada, argued in January that the sisters’ confessions in the early ’90s were forced and unreliable, and that the sisters should be released pending their case review.

He said the case in the ’90s was a battle of credibility between the two Indigenous girls and the Kamsack Police Department, and “Odelia and Nerissa were bound to lose that contest.” “We’re very happy with the result and it’s great to see Odelia and Nerissa free. It’s been a very long time for them,” Lockyer told reporters Monday. “It’s obviously very emotional. Odelia can go back to living full-time, all the time, with her two twin daughters and her husband, and Nerissa is going to be out of an institution, out of an institutional environment and into a lovely home.”

Lockyer said this is just one step on the journey to the goal of getting the sisters’ convictions quashed. 

Emily Pasiuk, Dayne Patterson 

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.

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.

https://biv.com/article/2020/07/supreme-court-wont-hear-appeal-tmx-decision

NationTalk: Canada’s National Observer: Daphne Young is Ojibwe. But she grew up in Nipigon, Ont., estranged from her culture and people at Red Rock First Nation. Her family was removed from band lists more than a century ago when her great-grandfather, Frank Hardy, joined the Canadian Armed Forces before the First World War. 

Like most Indigenous men, Hardy had to enfranchise to join the army, meaning he gained Canadian citizenship and voting rights but gave up his band affiliation and status under the Indian Act. At the time, that meant his wife gave up her status, and he could not pass down status to his children.

Without status, Young could not live in her hereditary First Nation. Nor could she access non-insured health benefits, sales tax exemptions and education funding available to people with status.  “My family didn’t live on reserve because we were not legal paper Indians — we just looked like them,” Young said. “Even though I always knew I was Native, I never felt like I belonged anywhere.” 

In 1985, Canada amended the Indian Act, allowing women as well as men to pass status down to their children and keep their own status if they married non-status men. But the amendments only let parents pass status down a single generation and Young’s mother died before the law changed, leaving her daughter in limbo.

Canada expanded eligibility to include people like Young in 2011, when the government updated the Indian Act to include the grandchildren of women who gave up status by marrying non-Indigenous men. By then, she had spent most of her life excluded from compensation the government gave to other Indigenous people. 

She is hoping to regain some of those losses through a class-action lawsuit started by Dennis Sarrazin, a member of the Abénakis of Wôlinak First Nation in Quebec. He, too, was excluded from status for most of his life.

Sarrazin filed the suit against Canada seeking compensation for damages resulting from the loss of status. Sarrazin was not granted status until 2012, at age 58. His case — which represents 45,000 Canadians, court documents show — has been winding through the legal system for nearly 11 years and will face a pivotal hearing this year. 

In December, the Superior Court of Quebec is set to determine whether or not Canada had “wilful disregard” for the consequences of excluding people like Sarrazin from gaining status. If the court finds the federal government acted in good faith, Sarrazin’s class action will not continue.

As one woman’s journey to register for status under the Indian Act comes to a head, a lawsuit aims to make Canada pay for the damage the legislation may have caused. 

Sarrazin’s lawyer, Christine Nasraoui of Merchant Law Group, told Canada’s National Observer in an email she advised her client not to comment until the case is resolved.  Sarrazin’s class-action lawsuit was certified in 2016. But courts pointed out when the Indian Act was amended in 2011, a clause said nobody could claim compensation for anything done or omitted by the law “in good faith.” 

The federal attorney general argues this grants the government “immunity” against Sarrazin’s class action. 

Nasraoui and Sarrazin argue Canada’s provisions to the Indian Act were not made in good faith. In an email to Canada’s National Observer, Nasraoui said until 2011, Canada’s changes to status eligibility policy were unconstitutional and discriminated against women. 

Matthew Gutsch, a spokesperson for Indigenous Services Canada, said in an email to Canada’s National Observer the department would not comment because the matter is still before the courts. 

Young is represented by Sarrazin’s class action but has no role in organizing the legal action. She says the denial of her initial application for status made her feel disrespected. “It made me feel like I have no power over my own self or my identity if the government has to make all those decisions,” Young said. “It doesn’t make any sense to me.”

Young went on to work for Indigenous Services Canada. Her work paid for her health benefits, but she could not apply for education funding or reserve housing. For other Indigenous Canadians, though, non-insured health benefits could go a long way.

On Dec. 20, 2022, a representative of Indigenous Services Canada called Young to tell her that her status had been granted. Thirty-seven years after she set out to register with the Indian Act, Young finally got a status card.  “By rights, it should have happened right in 1985. I should not have to wait for all these other little things to happen,” Young said. Not being able to get status was just “one kick in the head after the other.” 

Alison Tedford Seaweed is a ʼNakwaxdaʼxw woman from the Kwakiutl First Nation on Vancouver Island. When Tedford’s son was born in 2007, the Indian Act did not permit her to pass status on to him. While Tedford said status under the Indian Act does not affect her son’s link to his heritage, registration could provide him with better health care and education funding. As a freelance writer, Tedford pays for dental and expanded health care out of pocket.

“This recognition does allow for some opportunities for him, which as a parent I obviously would like him to have,” Tedford said. 

Tedford said she is in the process of registering her son for status under the act.She hopes the declaration Sarrazin seeks in damages will be a step towards making it easier for her siblings and her child to claim status.

The next pivotal court date to determine whether Sarrazin’s class action goes to trial is scheduled for sometime in December.

For Tedford, the case could be a step towards recognizing Canada’s past treatment of Indigenous Peoples; she hopes the court sides with Sarrazin.“I think that acknowledging the truth of what’s happened is really important,” she said. “Legal acknowledgment of status is something that is important when we reflect on how colonization has impacted and interrupted the transmission of culture.”

Case of Shaldon Wabason, who fought and won peace bond attempt, raises concerns involving Indigenous people

CBC News: A man from an Ojibway First Nation in northwestern Ontario says Crown lawyers wrongfully tried to impose unnecessarily strict conditions on his release from jail.

Shaldon Wabason, who’s from Whitesand First Nation, and his lawyers say prosecutors in Thunder Bay attempted to use a little-known legal tool — a peace bond application under Sec. 810.2 of the Criminal Code — to impose those restrictions, despite the fact he had already served his full sentence in 2021.

In March 2023, Wabason arrived at the Thunder Bay Courthouse for what he hoped would be the final time dealing with the justice system, after a decade of fighting for fair judicial proceedings. The attempt to place a peace bond on him was dropped. But now, the case has lawyers and corrections researchers questioning whether provincial attorneys general are using the legal tool disproportionately on Indigenous people. They’re also calling for answers and transparency from Ontario Attorney General Doug Downey.

Wabason, 31, and his lawyers say they’re coming forward now to raise awareness about Sec. 810.2 and its possible repercussions.

Shaldon’s journey is not only a story about Shaldon, but it’s a story of the way Indigenous people are treated by the criminal justice system compared to the way white people are treated.- Devin Bains, lawyer for Shaldon Wabason

In 2015, Wabason was wrongfully convicted of break and enter and manslaughter in the 2011 death of Thunder Bay resident Robert Topping and sentenced to 10 years in jail. He successfully appealed the decision and the sentence, and later pleaded guilty in 2019 to criminal negligence causing death.

Wabason also fought in 2014 to have a representative jury, arguing the jury roll in Thunder Bay doesn’t adequately represent First Nations people living on reserve. “Shaldon’s position always was that he never entered the house … that the most he did was kick down a door and not know anything about what happened inside. There was very powerful evidence to show that he was 100 per cent correct,” said lawyer Devin Bains, who represented Wabason for most of the past 10 years.

In 2020, Wabason was denied parole and had to serve the remainder of his sentence, Bains said. 

Notably, a second Indigenous man charged in the same 2011 death also had to serve his entire sentence. However, a white man convicted of the most serious offence related to the murder of Topping was released on parole and bail multiple times over the last few years, despite having committed a number of additional serious offences.

“Shaldon’s journey is not only a story about Shaldon, but it’s a story of the way Indigenous people are treated by the criminal justice system compared to the way white people are treated,” Bains said.

What a Sec. 810.2 peace bond is all about

Just two days before Wabason’s sentence was about to end in February 2021 and he was to be released, he was served with a Criminal Code Sec. 810.2 application filed by a Thunder Bay police officer who identified him as “a potential risk to the public,” Bains said. The legal tool allows a person to request a peace bond in court, if they reasonably fear a dangerous person will seriously injure another person, said Mary Campbell, a retired director general of a federal unit that focused on law reform. Campbell also led a team that created the 810.2 peace bond application in the 1990s.

A peace bond is a court order that lays conditions — such as a curfew, restrictions from owning firearms or requirements to stay a certain distance from some people — on someone to keep the peace. “It’s a pretty heavy tool with a legitimate concern behind it,” Campbell said. “There are people out in the community who clearly pose a threat, but a lot depends on how it’s used and the conditions imposed.” 

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To keep the use of 810.2 peace bonds in check, Campbell said it requires provincial attorneys general to sign off on them. But there is little public data or evidence about how these peace bonds have been used over the past 30 years, she said. Refusing to enter into a peace bond could result in a one-year jail sentence, Campbell said. If someone has a previous offence and they refuse to enter a peace bond, they could be sentenced for up to two years. Breaching peace bond conditions could result in further penalties, including incarceration of up to four years, she said.

The conditions for Wabason’s release were very strict, Bains said, but more importantly, they symbolized he was “too dangerous to be free.”

Peace bonds a ‘slippery slope’ to life in prison

If Wabason had agreed to the 810.2 peace bond, he would have been agreeing that he was dangerous to society, which Bains said is the first step to being labelled a dangerous offender — which carries an indeterminate jail sentence. “The minute you’re on those [810.2] conditions, you are on a slippery slope that threatens to take away your freedom for the rest of your life,” Bains said.

WATCH | Lawyer explains why Shaldon Wabason fought the 810.2 peace bond application:

To see the above video click pin the following link:

https://www.cbc.ca/news/canada/thunder-bay/wabason-section-8102-peace-bond-applications-1.6820804

The lawyer for Shaldon Wabason, Devin Bains, says his client fought the Criminal Code Section 810.2 peace bond application because he found it dehumanizing to be seen as a danger to the community. Instead, Wabason fought the peace bond application and was released on bail in 2021 while the legal process was taking place.

In March, a lawyer with the provincial Crown dropped the 810.2 application, saying “it is no longer in the public interest for us to advance this prosecution.” However, other Indigenous offenders often feel they can’t fight such applications because “they’re desperate to get out [of jail],” Bains said.

Apparent pattern of more bonds on Indigenous people

During that March hearing, lawyer Jonathan Rudin presented data from Legal Aid Ontario that showed a concerning pattern — 810.2 peace bond applications being disproportionately brought against Indigenous people. Rudin also represents Wabason as co-counsel with Bains.

Rudin shared the data with CBC News. It shows that in the last 10 years, Legal Aid Ontario (LAO) helped 83 people in the province fight 810.2 applications. That doesn’t include the number of people who entered the peace bond without fighting the conditions, which happens often, Rudin said.

Roughly 35 per cent of the people who received legal assistance to fight those peace bond applications were Indigenous, according to the LAO data. That’s significantly higher than the proportion of Indigenous people —about 20 to 25 per cent — who receive financial assistance from the LAO, Rudin said.

WATCH | Rudin explains his concerns over use of Sec. 810.2 peace bond applications:

To see the above video click pin the following link:

https://www.cbc.ca/news/canada/thunder-bay/wabason-section-8102-peace-bond-applications-1.6820804

Indigenous people make up just four per cent of the total Canadian population, but represent nearly 30 per cent of the total number of people in federal custody, according to a 2019 report from Statistics Canada. “Indigenous people get the sharpest end of the justice and correctional stick. They get the most punishment, they are the most overrepresented all through the system … and it doesn’t help make for safer communities,” Rudin said.

Howard Sapers, who previously served as the federal correctional investigator from 2004 to 2016, agreed with Rudin’s assessment. In 1999, the Supreme Court recognized Indigenous people were overrepresented in Canadian jails, in large part because of systemic racism that sees Indigenous people treated differently by the justice system. 

The Gladue ruling called for sentencing judges to consider the influence of factors like residential schools, the Sixties Scoop and the child welfare system on Indigenous offenders, in an effort to decrease the disproportionate number of Indigenous people in custody.

But in the more than 20 years since, Sapers said, it’s only become worse. “If there’s been any change, it’s that it’s become more dramatic,” he said.

To turn this tide, Sapers said, decades of commissions, investigations and academic research have offered possible solutions — chief among them is empowering Indigenous communities to control their own justice systems. But Canada needs to do a complete review at how it administers and structures the justice system, Sapers added, including the overuse of pretrial custody and large numbers of people on remand.

“Seven or eight out of 10 people who will sleep in a jail cell tonight have not been convicted of anything, and what we know about those jail populations is that they are overwhelmingly Indigenous.”

Seven or eight out of 10 people who will sleep in a jail cell tonight have not been convicted of anything.- Howard Sapers, former federal correctional investigator

Rudin called on Ontario’s attorney general to conduct a serious review of how 810.2 peace bond applications are being used, and if Gladue principles are employed to evaluate the proposed applications. If the province used Gladue principles when reviewing Wabason’s case, Rudin said he believes they would have determined the 810.2 application was unnecessary, saving the justice system time, money and resources, and allowing “Wabason to move on with his life without this hanging over his head for many years.”

CBC News requested an interview with Downey, but did not receive a response.

A statement from the Ministry of the Attorney General said the power to approve 810.2 peace bond applications has been delegated to the deputy director of high-risk offenders, the director of Crown law office (criminal) and the assistant deputy attorney general (criminal law division).

The ministry could not answer questions about how many 810.2 applications are filed, and said they do not track the ethnicity of people subject to the applications, according to the statement.

ABOUT THE AUTHOR

Logan Turner, Journalist

Logan Turner has been working as a journalist for CBC News, based in Thunder Bay, since graduating from journalism school at UBC in 2020. Born and raised along the north shore of Lake Superior in Robinson-Superior Treaty Territory, Logan covers a range of stories focused on health, justice, Indigenous communities, racism and the environment. You can reach him at logan.turner@cbc.ca.