Supreme Court to Hear Case Regarding Métis and Non-Status Indians

On Thursday, the Supreme Court of Canada granted leave to appeal in the case Harry Daniels v Canada (Minister of Indian Affairs and Northern Development). The court will be asked to consider whether Métis and non-status Indians are “Indians” for the purposes of the Constitution, and whether they are owed a fiduciary duty and have the right to be consulted by the Canadian government.

The case was initiated by the Congress of Aboriginal peoples, Métis leader Harry Daniels and several others in 1999. The Federal Court ruled in their favour, and on appeal the court partially upheld that ruling, finding that Métis are Indians for the purposes of the Constitution, but non-status Indians would be subject to a case-by-case determination.

In a comment on the importance of this case, Congress of Aboriginal Peoples National Chief Betty Ann Lavallee stated that “[s]elf-determination is fundamental to the exercise of the aboriginal rights recognized in section 35 of Canada’s Constitution. CAP wholeheartedly supports that right and is working toward its recognition on behalf of all Aboriginal Peoples in Canada.”

 

The StoneChild Inquiry Ten Years Later

It has been 10 years since the Stonechild Inquiry casting a dark pall on the city of Saskatoon from Mr. Justice David Wright. The inquiry stemmed from the freezing death of a 17 year-old adolescent Neil Stonechild and the infamous “Starlight Tours” which cast an even darker shadow on the Saskatoon Police Service serving to strain relations with Aboriginal groups.

Since his scathing report in 2004 from Justice David Wright relations between the SPS and the Aboriginal community appear on the mend. Central to Justice Wright’s report was an approach on how to fix the damage that had been done. As of today there are 51 members who identify themselves as First Nations on the Saskatoon Police Service. Recently, Lawrence Joseph, the former chief of the Federation of Saskatchewan Indian Nations was quoted by the Star Phoenix that “the process has brought down walls and that it has built bridges in our society”

Given that Saskatoon is known as the bridge city this recollection is a powerful metaphor for the reconciliation process between the Saskatoon Police Service and First Nations group. In fact there is now a movement to name the new North Commuter bridge the “Neil Stonechild Memorial Bridge.” Perhaps this is the sort of symbolic gesture that will aid in the healing process.

Budget Cuts, User Fees Threaten Access to Information

Canada’s federal information watchdog, Suzanne Legault, is warning that budget cuts are impeding her ability to carry out her mandate of ensuring Canadians’ right of access to information.

The Office of the Information Commissioner of Canada is tasked with investigating complaints regarding freedom of information requests under the Access to Information Act.  The Office serves a vital role in government transparency, giving Canadians recourse to an independent body if a government agency denies or unduly delays a request for information.

However, the Office has been squeezed over the past few years by budget cuts and increased user access requests. Read the rest of this entry »

Sentencing for Multiple Murders

There is a certain kind of anger and pain we feel as citizens when there is an act of senseless violence perpetrated against the persons who take on the role of protecting us. The truthfulness of these statements resonates with all Canadians these past few weeks. It resonated in New Brunswick and across Canada this past June when three RCMP officers where gunned down in Moncton, New Brunswick. On Friday of last week, Justin Bourque was sentenced to life in prison with no eligibility of parole for 75 years for the murders of RCMP Constables Fabrice Gevaudan, Douglas Larche and Dave Ross.

This is an unprecedented sentence in Canada and was the second time the Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act was used in sentencing. It has been described in the media as the harshest sentence since death penalty was abolished. The characterization as a death sentence is accurate because Justine Bourque will be 99 years olds before he is eligible for parole. After Canada abolished the death penalty persons who committed first-degree murder were sentenced to life in prison with eligibility for parole after 25 years. This 2011 Criminal Code amendment grants judges the discretion to sentence persons who have committed multiple murders to serve the periods they are ineligible for parole consecutively.

Read the rest of this entry »

Class action plaintiffs lose at Nova Scotia’s highest court, ordered to pay costs to government defendants

The Nova Scotia Court of Appeal delivered its decision on costs in a major class action lawsuit last week. The class action, which was first initiated about a decade ago, sought redress for environmental contamination allegedly caused by the governments’ decades long operation of the Sydney Steel plant.

Last year, the provincial and federal governments successfully appealed the class action’s certification. The Nova Scotia Court of Appeal decertified the class action in December 2013. Just last week, the Court of Appeal released its decision respecting costs.

The Court ordered that the plaintiffs, who were unsuccessful on appeal, pay part of the federal and provincial governments’ costs. The costs order amounted to over $700,000.

When asked what the costs award meant for her, Neila MacQueen, a plaintiff in the case, explained “I thought it was intolerable for us to be charged $700,000. We can’t afford it. We would go bankrupt. We would lose our homes.”

Critics worry the award sets a troubling precedent.  Significant cost awards against class action plaintiffs undermine access to justice, critics say.  Those who might otherwise pursue a class action may feel deterred from doing so given the cost implications.

The Court explained at paragraph 56 of its decision that, while it considered access to justice concerns in rendering its decision, these factors must be weighed against others and, in this case, the Court believed that it “would not be fair and reasonable” to order no or nominal costs “given the complexity of the certification hearing, the amount at stake in the litigation and the success of Canada and Nova Scotia.”

Ultimately, Ray Wagner, who acted for the plaintiffs, explained that his law firm will pay the award.  The firm had taken out the equivalent of an insurance policy that, in the event of a defeat, would cover a large portion of the costs.

Nonetheless, Wager explained that, “$733,000 would chill any plaintiff or any lawyer from participating in a class proceeding in this province.”

For more on this story, click here.  To read the Nova Scotia Court of Appeal’s decision, click here.

 

Impact of Canadian Mining Activities on Latin American Countries Under Scrutiny

This week the Inter American Commission on Human Rights (IACHR) heard the case on the impact of Canadian mining activities on human rights in Latin America. The hearing, which was presented by the Justice and Corporate Accountability Project highlighted the Canadian government’s failure to meet its international obligations to prevent harms related to Canadian mining operations in Latin America and the Caribbean. The evidence comes from a recent report prepared by the Canadian Network on Corporate Accountability (CNCA), which shows that at least 50 people have been killed and some 300 wounded in connection with mining conflicts involving Canadian companies in recent years, for which there has been little to no accountability. Read the rest of this entry »

Suicide, Violence and Over-Crowding Up in UK Prisons

The UK prison system is under fire this month after a comprehensive report was released.

The report details a 69% rise in self-inflicted deaths in prison in just one year, totaling 88. One article cites 125 suicides in 20 months, averaging on 6 suicides a month. The report also details a 14% rise in prisoner-on-prisoner assault, including a 38% rise in serious assault among adult male prisoners. Additionally, it lists a rising problem with drugs.

The report blames overcrowding as the root cause of the problem. The prison system is currently using 99% of “the usable operational capacity”. One group also attributes the problems to massive budget cuts. While the numbers are uncertain, between 27 and 41% of prison jobs have been cut since the election of the Cameron government. Meanwhile, employees who have spoken publicly about the safety implications these job cuts have created are allegedly being reprimanded and may loose their jobs.

For more, see here.

Quebec courts feeling strain of Maple Spring cases

Quebec’s student uprising in the spring and summer of 2012, the Maple Spring, brought new laws and protest response tactics that resulted in hundreds of protestors experiencing fines, detention and arrest. Now, Quebec courts may be feeling the strain.

On October 23, 2014, a municipal court in Montreal dismissed the cases of 75 self-represented litigants who were fined and detained at a protest in April 2012. Judge Gilles Pelletier’s decision rested on the fact that such fines, handed out in large quantities, were creating unreasonable delays in the system. Without a plan provided by the Crown to end the cases within a reasonable time period, Judge Pelletier found the massive resources and time required to process the tickets to be unjustifiable.

The 75 litigants in question had been fined under Montreal bylaw P-6, which was amended during the Maple Spring to allow police to fine protestors wearing masks or people gathering for a protest where the itinerary had not been provided to police.

P-6 continues to be a controversial. In August 2014, the Quebec Superior Court authorized eight class action law suits against the City of Montreal involving police response to protests. The class in question includes over 1600 protestors who were ticketed and claim to have been mistreated by police.

First Nations’ discrimination claim reaching conclusion after 7 years

Arguments on a longstanding human rights complaint, which allege unequal treatment of First Nations children by the Government of Canada, will reach its conclusion in the coming week. First Nations Child and Family Caring Society and Assembly of First Nations filed a case at the Canadian Human Rights Tribunal on February 26th, 2007. The parties began closing arguments over seven years later on October 20th, 2014.

The case alleges that the Federal government does not adequately fund child-welfare services on reserves.  The Winnipeg Free Press reports that services for First Nations children on reserves received 22 per cent less funding than services provided by Provincial governments to children off reserve. Cindy Blackstock, head of the First Nations Child and Family Caring Society, states in the Children and Youth Services Review that the effect of inadequate funding on First Nations children is amplified by their disproportionate representation as recipients of child-welfare services, and further inequity in other critical social services. The Globe and Mail reports that there was an abundance of evidence of underfunding produced throughout the hearing. Whereas child-welfare generally falls under Provincial authority according to the Constitution Act, 1867, the Federal government is responsible for services for First Nations children on reserves. The claimants widely condemned the Federal government for failing to fulfill its obligations.

According to the Winnipeg Free Press, the case experienced serious delays due to questions of jurisdiction. In addition to arguments about jurisdiction, Blackstock said in 2010 that the Federal government contested the claim on the basis that the current funding plan is not discriminatory. The Federal government argued that in order to prove the plan is discriminatory, the claimants must show a differential treatment between claimants’ experience on reserves and the experience of First Nations children on other reserves — the comparison should not be made between First Nations children on reserves and children off reserves, as the claimants argued. Since the Provincial government is responsible for child-welfare services for children that do not reside on reserves, any comparison to the Provincial plan is irrelevant for the purpose of establishing discrimination. Therefore, according to the arguments of the Federal government, since First Nations children receive equally on all reserves, there is no discrimination.

The Globe and Mail reports that the arguments will close on October 24, with a decision expected in 2015. A livestream of the closing arguments can be found here.

 

UK to Increase Maximum Sentence for Internet Trolls

The UK government announced today that it will increase the maximum prison sentence for internet trolls to two years, up from six months. It will also increase the statute of limitations for criminal prosecution from six months from the day of commission to three years. This is in conjunction with the creation of a specific offence to criminalize ‘revenge porn’.

The offence is described as “cover[ing] sending a letter, electronic communication or article of any description to another person, which is in nature, or which conveys a message which is, indecent or grossly offensive, or conveys a threat or false information, with the purpose of causing distress or anxiety to the recipient or to any other person to whom it is intended that its contents should be communicated.”

Chris Grayling, the Minister of Justice, has described the initiative as “a stand against a baying cyber-mob”. Neither Mr Grayling nor the official press release make any comment about the underlying discrimination found in many instances of trolling.

This announcement was made just days after a high profile trolling case was made public. The daughter of Judy Finnegan, a well-known TV presenter, had receive rape threats online because of her mother’s on-air comments regarding a convicted rapists and football player. Finnegan said that Ched Evans should be welcomed back to professional sports because the rape “wasn’t violent and the victim was drunk”. Her comments solicited wide criticisms and she has since apologized, though her daughter was consequently the target of internet trolling.

For more information, see here.

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