In addition to providing poverty law services and representation at administrative tribunals, ALS does appeal litigation, law reform and inquest work. Below are some of the larger cases and advocacy we did this past year.
R v Cope
ALS intervened at the Nova Scotia Court of Appeal in February 2024. ALS was represented by Jonathan Rudin and Emily Hill. The case was an appeal brought by Mr. Cope, a member of the Millbrook First Nation, about his sentence in a criminal matter. ALS was pleased with the decision, released in June, that recognized the important role of Gladue factors in sentencing, provided guidance about the recommendations of sentencing circles and highlighted that sentencing judges need to consider how Indigenous women continue to be over-represented as victims of violence.
The majority decision concluded that the judge who had first sentenced Mr. Cope failed to properly consider the connections between his mental health and addictions and his experiences as an Indigenous person. The appeal decision also addressed the importance of the sentencing circle that had been facilitated by Mi’kmaw Legal Support Network and had provided recommendations that were not followed by the sentencing judge. The two appeal judges explained that often established sentencing principles are not in “alignment with traditional Indigenous approaches to criminal offending” and that courts can do better by ensuring they discuss the circle’s recommendations in their written decisions. The decision says that be doing so, courts demonstrate respect toward the community that produced the report and enhance confidence in the justice system.
Another important part of the decision was its discussion of the failure of the Canadian justice system to protect Indigenous women and girls from violence. As a result of changes to the Criminal Code made following the final report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, judges are required to give primary consideration to the sentencing principles of denunciation and deterrence. In R. v. Cope, the majority made clear that this is not intended to undermine Gladue principles. The majority decision quoted from ALS’ written submissions and said that judges instead need to balance, “two aspects of the ongoing legacy of colonialism in the Canadian criminal justice system: the mass incarceration of Indigenous people and the failure to protect Indigenous women and girls from violence.”
The decision is available here: https://decisia.lexum.com/nsc/nsca/en/item/522462/index.do
Safe Streets Act
This case was a Charter challenge started by Fair Change Clinic – which is a student run clinic that helps people who are experiencing homelessness deal with provincial offences tickets. The case was a challenge to the constitutionality of legislation – the Safe Streets Act – that was enacted in 1999 to criminalize panhandling and squeegeeing. Aboriginal Legal Services has been working on this case since 2017 so many different staff members have worked on it.
When the case was finally heard at the Ontario Superior Court this year, Emily Hill and Christa Big Canoe represented ALS. We argued that since the evidence is clear that Indigenous people disproportionally live in poverty and experience homelessness, which are direct consequences of colonialism and displacement from land and there is evidence of wide-spread stereotyping of Indigenous people which relate to the kinds of behaviours prohibited by the law, the equality provision of the Charter is engaged in the constitutional analysis.
One of the people who provided evidence in the case was a man from a Northern Ontario First Nation. His affidavit explained how his experience of homelessness related to direct and intergenerational trauma at residential and day school. He also described how the thousands of dollars in fines he received under the Safe Streets Act became a barrier when he began healing, found housing and was ready to start working again.
The outcome of the case was positive, even though the judge did not give weight to the affidavit of this witness or agree with ALS’ arguments, or the arguments of the other interveners focused on equality rights. Instead, the judge ruled that most of the law violated other parts of the Charter, with the result that almost all of it was struck down. The Ontario government decided not to appeal the decision, which means that now Indigenous community members who need to panhandle to survive will no longer face the added burden of tickets and fines.
John Howard Society of Saskatchewan v. Government of Saskatchewan
We participated as interveners in this case heard at the Supreme Court of Canada in September 2024. The case is about how the Charter operates inside prison walls, where Indigenous people are vastly over-represented and experience discrimination. The lawyers for ALS were Emily Hill and Maxwell Hill.
When an inmate is charged with a disciplinary offence in a provincial jail, they may be placed in segregation or lose their earned remission (which means they stay in jail longer.) Prison discipline records also affect decisions in other proceedings, such as parole. The Supreme Court was asked to decide if this infringement on liberty means that such discipline decisions should be made on a “balance of probabilities “or the higher standard of “beyond a reasonable doubt”.
Aboriginal Legal Services intervened to ensure that the Supreme Court considered the real consequences the decision will have for Indigenous people in the correctional system. The court reserved its decision so we won’t know the outcome until the end of 2024 or the beginning of 2025.
R v Wesley
In September, Jonathan Rudin and Maxwell Hill appeared in person at the Ontario Court of Appeal intervening on behalf of ALS in R v Wesley. Wesley was a conviction and sentence appeal. ALS intervened on one aspect of the sentence appeal.
Austin Wesley was 18 years old and living in a remote Ontario First Nation when he shot and killed his father and his best friend while very intoxicated. He did not dispute that he was responsible for the deaths. He was tried for first-degree murder and convicted of second-degree murder. At the sentencing hearing both the crown and the defence presented a joint submission to the court for an 18-year period of parole ineligibility. The judge approved the joint submission citing the Supreme Court decision in Anthony-Cook that said that judges should not interfere with a joint submission unless it is would bring the administration of justice into disrepute.
ALS’ intervention focused on the question of how Anthony-Cook should be interpreted where the offender is an Indigenous person. We argued that different considerations apply in such cases and that, in particular, judges should be able to undercut (or go below) the proposed joint submission if it did not fully include Gladue considerations.
The Court of Appeal reserved its decision and we anticipate it may be released in early 2025.
J.W. v The King
The SCC case J.W. v The King is case involving sentencing of Indigenous offenders. The appeal will consider in what circumstances sentencing judges may consider the time required to complete institutional programming in fixing the length of a custodial sentence. It will also consider whether it is appropriate to compare the generalized living conditions of a specific Indigenous offender to the conditions of their confinement in pre-trial custody to determine whether enhanced credit should be granted. It will be heard on December 2, 2024 but will be closed to the public unfortunately, due to the sensitive nature of the facts as regarding an offence sexual in nature.
Inquests
John Paul George
From: May 27 To: June 5, 2024
13 recommendations: 2024 coroner’s inquests’ verdicts and recommendations | ontario.ca