Saskatchewan judge’s stop at teepee camp could raise perception of bias, expert says

REGINA—An experienced defence lawyer says a Saskatchewan judge’s attendance at an Indigenous demonstration after he ruled on it could expose the court to potential allegations of bias.

Michael Spratt says it’s unusual for judges to have contact with one of the parties in a case that either could end up before them, or has already. Judges act as independent arbitrators and a perception of bias may undermine a court decision and the principle of impartiality, which forms trust in the system, he said.

Court of Queen’s Bench Justice Graeme Mitchell appeared Sunday at a closing ceremony for a 24-year-old Métis man, whom he ruled was allowed to stay on the provincial legislature’s lawn to finish a hunger strike over high suicide rates.

Mitchell dismissed the government’s bid to remove Tristen Durocher’s teepee and found the bylaws that prohibit overnight camping on the Regina grounds infringed on his charter rights as an Indigenous man.

During his stop at the camp, the judge spoke to the Durocher and accepted a Métis sash from a supporter. Some people there praised Mitchell for his appearance and celebrated his decision.

While issues of reconciliation are important and judges are trained to put their personal views aside before making decisions, Spratt said Mitchell’s presence at the camp could serve as grounds for an appeal by the province.

“These actions, although potentially not inappropriate, may leave the court open to allegations of bias or an appearance of bias,” the Ottawa-based lawyer said in an interview Monday.

“If this was not an Indigenous issue, but if this was a police violence issue and the judge went to a pro-police march after, or if it was a criminal case that dealt with an allegation of sexual assault and the judge went to a #MeToo conference and spoke with the complainant after, would we be as comfortable in those cases?”

The Saskatchewan branch of the Canadian Bar Association declined to comment, saying the issue is still before the courts.

Mitchell released his decision last Friday, two days before Durocher’s fast was to conclude. He told those in court that he planned to release a longer ruling later.

In his decision, Mitchell wrote Durocher’s fast “represents an admittedly small and personal attempt to encourage all of us to move a little further along in our national journey” towards reconciliation.

He also gave the provincial commission operating the Regina grounds six month to craft new bylaws, because the current ones don’t allow for “constitutionally protected political and spiritual expression.”

A spokeswoman for the Saskatchewan courts said it would not be appropriate for Chief Justice Robert Richards to comment on Mitchell’s visit to the camp, as Richards presides over the Court of Appeal and there is the possibility of an appeal.

Saskatchewan Ministry of Justice spokeswoman Marieka Andrew said in a statement that the office is reviewing the ruling and it has 30 days to decide whether to appeal.

“The issue of some concern here is the fact that these parties were just before the judge and he still has yet to release … a full written ruling,” Spratt said.

But it could be tough, he said, if the government chooses to appeal solely on because of Mitchell’s visit to the site. Lawyers could also look at the decision and find other grounds for appeal, depending on what else was said in court, he said.

Spratt added that it would be a disservice to exclude judges from having a position or showing support for an issue.

“This is an issue of reconciliation of Indigenous protest and a very important conversation that needs to happen in Canadian society.”

By Stephanie Taylor, posted in The Canadian Press on Sept. 14, 2020

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In Saskatchewan, Indigenous people are worried that a new trespassing plan may stoke racial tensions

Debbie Baptiste, mother of Colten Boushie, holds a photo of her son during a press conference on Parliament Hill in Ottawa on February 14, 2018.THE CANADIAN PRESS/Justin Tang

• The Saskatchewan throne speech last month included a reference to changing trespassing laws to ‘better address the appropriate balance between the rights of rural landowners and members of the public’

A Saskatchewan grandmother who was confronted by a farmer with a gun says changing trespassing laws probably won’t stop crime but could increase racial tension.

Angela Bishop, a Metis lawyer, was driving on a rural road in Alberta in September with her two grandchildren who are visibly Indigenous. They were looking for a place to get out, stretch and go for a short walk during a long drive to Edmonton.

She noticed a vehicle driving up behind her, so she stopped.

A man got out and started to yell at her to get off his road, she said, despite her attempts to explain why she was there. She said she spotted a gun inside his vehicle.

Terrified for her grandchildren, Bishop said she tried to drive away — but the man pursued her.

She eventually pulled over, called law enforcement and requested a police escort. Officers told her that, in fact, it was a public road and she could be there.

As a rural land owner in Saskatchewan, Bishop said she can sympathize with frustration about property crime, but a life is more important.

“My concern would be that they believe they are legally entitled to take the law into their own hands,” she said from Quintana Roo state in Mexico.

The Saskatchewan throne speech last month included a reference to changing trespassing laws to “better address the appropriate balance between the rights of rural landowners and members of the public.”

The government said in an emailed statement that Justice Minister Don Morgan is prepared to meet with Indigenous people to discuss their concerns.

The province has already sought public input on whether access to rural property should require prior permission from a landowner, regardless of the activity, and if not doing so should be illegal.

A lawyer representing the family of Colten Boushie, an Indigenous man fatally shot by farmer Gerald Stanley in August 2016, said she is worried the Saskatchewan Party government is engaged in political posturing which could stoke racial fear.

A Saskatchewan farmer was acquitted in the fatal shooting of a 22-year old Indigenous man. THE CANADIAN PRESS/Liam Richards

“Indigenous people aren’t feeling safe that the authorities or the police are going to protect them or that they are not going to be shot at,” Eleanore Sunchild said from Battleford, Sask.

“It seems like there’s more of an approval to take vigilante justice in your hands, and if you are an Indigenous victim, nothing is going to happen to the non-native that shot you.”

Stanley was acquitted of second-degree murder after testifying that his gun went off accidentally. He said he was trying to scare away young people he thought were stealing from him. The Crown decided not to appeal.

Sunchild said the throne speech sends the message that the farmer was right to shoot the Indigenous man and that trespassing fears are justified.

Sunchild wonders what advice she would give her own children if they have car trouble or need help on a rural road.

“Do I tell them to go ask a farmer? I don’t think so.”

Heather Bear, vice-chief of the Federation of Sovereign Indigenous Nations, said the Boushie trial and provincial response have many Indigenous people feeling afraid.

The Canadian Press

[SOURCE]

Crown says it won’t appeal not-guilty verdict in Gerald Stanley trial

Gerald Stanley enters the Court of Queen’s Bench for the fifth day of his trial in Battleford, Sask., on Feb. 5, 2018.

The Crown says it won’t appeal the acquittal of a Saskatchewan farmer who was accused of fatally shooting a young Indigenous man in the head.

Last month, a jury found Gerald Stanley not guilty of second-degree murder in the death of Colten Boushie, who was 22 and from Red Pheasant First Nation.

The Crown says a verdict can’t be appealed because people don’t agree with it or because there may be questions about the investigation.

“The Crown can only appeal legal errors in the course of the trial,” senior prosecutor Anthony Gerein said Wednesday at a news conference.

The trial heard that Boushie was one of five young people who drove an SUV into Stanley’s farmyard near Biggar, Sask., in August 2016. Those in the SUV testified they were looking for help for a flat tire while Stanley told the trial he thought the youths were trying to steal an all-terrain vehicle.

Stanley testified he fired warning shots to scare them away and the gun accidentally went off again when he reached for the keys in the SUV’s ignition.

The case was filled with racial tension from the beginning and the verdict was met with outrage from Boushie’s relatives and their supporters.

Family members met with federal ministers along with Prime Minister Justin Trudeau to ask for changes to the justice system and to how juries are selected to better reflect Indigenous people.

Protests were also held around Canada to voice displeasure with the outcome of the case.

“I know there is much sadness about the decision not to appeal, but there can be no appeal because the law does not allow it,” Gerein said.

He said the Crown did not consult with the Boushie family about the legal decision. But Gerein spoke to lawyers on both sides and they informed their clients, he said.

Boushie’s cousin, Jade Tootoosis, has said that the family felt excluded and ignored by the justice system following the shooting.

“I urge no one to be discouraged or distrust the system. We are all in this together and must be united against crime and in the search for justice,” Gerein said.

“Complainants need to come forward when they have been wronged. Witnesses need to come to court and testify, sharing the truth. Good men and women will convict where they are sure it is right.”

On Tuesday, the Civilian Review and Complaints Commission launched a review into the RCMP’s investigation into the shooting.

The Canadian Press

[SOURCE]

Calls for Child Welfare overhaul filter into Sask. after Tina Fontaine’s death in Man.

Manitoba’s child welfare system has been criticized since Tina Fontaine’s body was found in the Red River in 2014. (CBC)

81% of 5,000 children in care in Sask. are Indigenous

As the death of Tina Fontaine leads to calls for an overhaul of the child welfare system in Manitoba, a similar push is gaining momentum in Saskatchewan.

On Aug 17, 2014, Fontaine was found dead in Winnipeg’s Red River. Fontaine was originally from Sagkeeng First Nation, but had been in the care of Manitoba’s child welfare system at the time of her death.

Calls for drastic change in Manitoba’s child welfare system have been consistent and loud since Fontaine’s body was discovered. In Saskatchewan, similar whispers are getting louder.

There are approximately 5,000 children in care in Saskatchewan, and about 4,000 of them are Indigenous.

The Federation of Sovereign Indigenous Nations has been in talks with the Ministry of Social Services in Saskatchewan since October — when Second Vice-Chief David Pratt was elected to improve the situation for young Indigenous people in the care of the province. The collaboration is in its infancy, according to Pratt.

David Pratt is the second vice-chief of the Federation of Sovereign Indigenous Nations and manages the child welfare file. (Brad Bellegarde/CBC News)

“There’s a lot of receiving homes open in Saskatchewan and we want greater accountability in terms of what’s going on in those homes, who’s staffing those homes, if there’s any cultural component happening in those homes,” he said.

“I think we need to work together as partners.”

Pratt has been encouraged by the readiness of federal ministers Jane Philpott, of Indigenous Services, and Carolyn Bennett, of Indigenous Relations and Northern Affairs, to focus on prevention of children having to go into care, rather than band-aid solutions.

But Pratt said the province has some work to do.

‘Here in Saskatchewan, we have a lot of work to get done.’ – FSIN Vice-Chief David Pratt on Saskatchewan’s child welfare system

“A lot of times the government comes to us with the jurisdictional song and dance. We know the constitution. We know what Section 91 states, that responsibility [for] Indians falls under the federal government. But we’ve got to look at what regions like Ontario are doing.”

In Ontario, federal and provincial governments work with Ontario Chiefs as a tripartite to work toward better outcomes for children in care.

“In Nova Scotia, the Mi’kmaq actually helped draft the child welfare legislation. Why can’t we do that in Saskatchewan? Let’s open up that legislation.”

Pratt believes that groups like the FSIN have solutions, if only various levels of government would listen.

Recognizing trauma, heritage

Part of improving outcomes for Indigenous children who are unable to live with their parents is connecting them with their home communities.

“Nine hundred of these children are not registered with their community, so we’d like to work as partners with the ministry to get them back registered,” said Pratt

“It’ll help them with their identity. Learning who they are is part of a healthy young individual.”

A young Indigenous person’s identity, though, can often involve a history linked to residential schools and intergenerational trauma, and the necessity of navigating colonial systems.

“Our treaty partners in Saskatchewan, non-Indigenous people, need to realize our history and that we’re not going to find solutions unless we work together on them,” said Pratt.

Within the province’s social services, there has been a conscious shift over the past few years to be more sensitive to the needs of young Indigenous people, and to connect them with their First Nations and families

Tina Fontaine’s body was pulled from the Red River in Winnipeg on Aug. 17, 2014. It was wrapped in a duvet cover and weighed down with rocks. (Tina Fontaine/Facebook)

“For many Indigenous families we work with, they might identify elders, community leaders, or agencies like community-based organizations that are Indigenous-run, or they might identify their home First Nation, so we’d connect with them in developing the case plan,” said Tobie Eberhardt, executive director of community services at the Ministry of Social Services.

“It would be around the family identifying what their needs are, who they would see as their natural supports.”

Every child is also subject to a strength and needs assessment when they come to the ministry for help.

Most often, children are then placed with a family member, or at the very least, with someone familiar to them.

“Sixty per cent of children in Saskatchewan are placed with extended family, or significant people in their lives,” said Eberhardt.

CBC News Posted: Feb 26, 2018

[SOURCE]

Canada and Whitecap Dakota First Nation sign framework agreement for Treaty

Crown-Indigenous Relations Minister Carolyn Bennett signs a framework agreement for treaty negotiations with Whitecap Dakota Chief Darcy Bear on Jan. 22, 2018. (650 CKOM)

Signing sets the stage for Whitecap Dakota Treaty

A new framework agreement between a Saskatchewan First Nation and the Canadian government sets the stage for what would be the first new treaty signed in the province since the beginning of the 20th century.

A historic agreement between Canada and Whitecap Dakota First Nation was signed earlier this week to negotiate a treaty with the Crown — for what will be known as the Whitecap Dakota Treaty.

Whitecap Dakota First Nation Chief Darcy Bear and Carolyn Bennett, the federal Minister of Crown-Indigenous Relations, signed the agreement Monday at the First Nation.

Whitecap is not part of any of the numbered treaties in Saskatchewan because the Dakota people were viewed as Native Americans rather than British or Canadian.

Bear says the six-page document builds on more than 230 years of shared history, including a military alliance and concurrent promise by British representatives to protect Dakota territory.

The historical relationship between the British and the Dakota is well documented. The Dakota were allies of the British before Confederation and fought alongside the British in the War of 1812.

According to the agreement, the negotiation mandate includes recognition of Whitecap Dakota’s rightful place in Canada, and an acknowledgement of contributions made by the Dakota in the founding and development of the country.

The mandate also includes “appropriate measures to realize equitable treatment and benefits as between (Whitecap Dakota First Nation) and Treaty First Nations,” as well as resources to “support a sustainable community.”

Bear said the main objectives for the First Nation in treaty negotiations are to acquire a larger land base for sustainable growth, money for economic development, capital projects and protecting language and culture and to be recognized as a Treaty First Nation.

Unlike most of Saskatchewan’s First Nations, which were allocated land under six numbered treaties, Whitecap Dakota’s land was provided by a federal order in council issued in 1889. Bear said he hopes to increase that allocation to 128 acres per person from 16 acres.

In the 1870s, Dakota Chief Whitecap was present at both Treaty 4 and 6 discussions, but wasn’t acknowledged as a signatory.

The framework that was signed Monday launches a negotiation process where the Whitecap Dakota will provide a list of issues they want the treaty to address. The finalized mandate will be presented to cabinet by Bennett for approval. Ottawa would then formally offer a treaty to the First Nation.

The Whitecap Dakota First Nation is part of the larger Dakota-Nakata-Lakota Nation whose traditional governance structure was called the Seven Council Fires or Oceti Sakowin, whose lands extended into both Canada and the United States.

Whitecap Dakota First Nation is located 26 kilometres south of Saskatoon.