Justice (25-42): Current Problems

Supreme Court

February 17, 2022

Blood Tribe “Big Claim” statute of limitations appeal going to Supreme Court

Feb. 17, 2022: Aboriginal Law ReportLethbridge NewsNow – In an update to the Big Claim appeal, the Blood Tribe will take the matter to the Supreme Court of Canada. The appeal was filed by the Canadian Government from the decision of the Federal Court, finding that the trial judge determined that under the terms of the Blackfoot Treaty, the Blood Tribe was entitled to a reserve of 710 square miles. That area is 162.5 square miles larger than the current reserve.

“Canada appealed on the basis that the claim was barred by Alberta’s Statute of Limitations,” the Blood Tribe release reads. The Court of Appeal sided with Canada, saying the Blood Tribe’s claim for “breach of treaty” was limitation barred.

The Big Claim was set out in three parts as follows:

  1. The Blood Tribe claimed that Canada failed to fulfill its Blackfoot Treaty obligation to provide one square mile of reserve land for each five members of the Blood Tribe (the Treaty Land Entitlement).
  2. The Blood Tribe claimed the lands between the St. Mary and Kootenay Rivers, to the mountains and the International Boundary as its reserve.
  3. The Blood Tribe claimed that its reserve was established by the 1882 Nelson survey, which surveyed the southern boundary of the reserve five miles further south than it is currently, which would add approximately 100 square miles to the reserve.

On June 12, 2019, the Federal Court’s findings agreed with the Blood Tribe’s claim that there was an outstanding Treaty obligation, and that the Tribe is owed a further 162.5 square miles based on the population at the time.

Previously, Justice Zinn, in his decision, found that Canada shortchanged the band when the boundaries were drawn as part of 1877’s Treaty 7. He stated the Blood Tribe was entitled under the Treaty Land Entitlement formula to a reserve of 710 square miles, whereas the current reserve is 547.5 square miles. Canada is liable to the Blood Tribe for this breach of Treaty.

Blood Tribe officials say the next step is to take the matter to the Supreme Court of Canada for an application for “leave to appeal.” The Blood Tribe release states, “Canada acknowledges their past misdeeds and the severe impact on First Nations but then refuse[s] to address their breaches in any meaningful way, shielding themselves with provincial limitations.”

March 26, 2022

Fed. Govt.

Is denial of conditional sentences for Indigenous people systemic racism? The Supreme Court will decide

The Toronto Star (Windspeaker.com) – The Supreme Court of Canada will be weighing the arguments it heard March 23 to determine whether the inability to make conditional sentencing available in some cases amounts to systemic racism for Indigenous offenders, infringing on their Charter rights. 

In 2012, the Criminal Code was amended through the Safe Streets and Communities Act to add mandatory minimum incarceration terms for certain offences. Mandatory minimums do not allow for conditional sentences. The nine justices heard arguments from legal counsels for the federal government and provinces of British Columbia and Saskatchewan about why restrictions on conditional sentences do not infringe on the Charter rights of Indigenous peoples. 

Interveners representing a number of organizations, including Indigenous and women’s groups, argued that the inability of trial judges to fully consider Gladue reports on all charges and thus the inability to use all forms of sentencing – including conditional sentencing – was a restriction that impacted on those Constitutional rights. 

Gladue principles, implemented through Gladue reports, were introduced in the Criminal Code in 1996 in response to the over-representation of Indigenous people in the justice system. When imposing sentences, judges are required to take into consideration the personal impact colonialism has had on Indigenous offenders, which is outlined in the reports.  But Safe Streets made it difficult for judges to implement what they learn through Gladue reports for sentencing and therefore limited the court’s access to remedy the over-incarceration of Indigenous Canadians, said Eva Tache-Green, counsel with Nunavut Legal Aid, first time intervener at the Supreme Court. 

By the time the Ontario Court of Appeal (ONCA) heard Sharma’s appeal and ruled that conditional sentence restrictions infringed upon Sharma’s Charter rights, Sharma had completed her incarceration. The majority of judges said that Sharma should have received an 18-month conditional sentence. 

It is the ONCA’s ruling (one judge dissented) that is being argued at the Supreme Court. 

Legal counsel for the Federation of Indigenous Sovereign Nations (Saskatchewan) and the Assembly of Manitoba Chiefs argued that Indigenous people had their own systems of justice well before colonial courts took over. They said Gladue reports and conditional sentences were an important part of a Canadian system of justice that continued to ignore and undermine First Nations laws. 

“While the Assembly of Manitoba Chiefs does not wish to conflate restorative justice with First Nations legal responses to harm or to suggest that First Nations legal responses to crime must only result in a conditional sentence, the Assembly of Manitoba Chiefs submits that conditional sentences are a very important means of implementing First Nations laws and perspectives as they may assist in restoring peace and equilibrium,” said legal counsel Carly Fox. 

“Without this particular tool of restorative justice to promote healing and reintegration in a culturally appropriate way, the justice system will continue to fail Indigenous people. There will be a continuing gross incarceration of Indigenous people in Canadian jails and correctional centres,” said legal counsel Eleanore Sunchild. 

“FSIN submits that this honourable court has a very real opportunity here to protect and strengthen the ability of sentencing judges to achieve restorative justice because conditional sentence are one of the only alternatives to incarceration to combat high rates of Indigenous people ending up in facilities.” 

The Supreme Court will deliver its decision at a later unspecified date.