ONTARIO COURT OF JUSTICE DATE: 2020-10-02 COURT FILE No.: BETWEEN: HER MAJESTY THE QUEEN — AND — Sherry Turtle, Audrey TURTLE, Loretta TURTLE, Cherilee TURTLE, Rocelyn R. MOOSE, Tracy STRANG Before Justice D. Gibson Heard on May 7, July 30, November 26, November 29, 2019, May 20, June 23, 2020 Reasons for Judgment released on October 2, 2020 Rebecca Senior ..........................................................................counsel for the Crown Daniel Guttman, Estee Garfin………………………..……….counsel for the Attorney General of Ontario – Civil Law Division – Constitutional Law Branch Jonathan Rudin…………………………………...counsel for Aboriginal Legal Services Luke Hildebrand…………………………………….counsel for Pikangikum First Nation John Bilton…………………counsel for Sherry TURTLE, Audrey TURTLE, Loretta TURTLE, Rocelyn R. Moose Karen Seeley………………………………………………………….counsel for Cherilee TURTLE, Tracy STRANG Gibson, D.: 1. Sherry Turtle, Audrey Turtle, Loretta Turtle, Cherilee Turtle, Rocelyn R Moose and Tracey Strang are all band members of the Pikangikum First Nation and each of them live, together with their young children, on the First Nation Territory of Pikangikum. 2. Each of these accused has pled guilty to a drinking and driving offense that, in their circumstances, carries with it a mandatory minimum jail sentence of not more than ninety days. — 2 — 3. The parties to these proceedings agree it would be open to each of these accused, in the normal course, to request an order of this Court allowing them to serve their sentences intermittently. Indeed, the Crown has acknowledged they would not oppose such requests. 4. The challenge for these defendants is that the Pikangikum First Nation Territory is an isolated fly in community hundreds of kilometers from the nearest district jail in the City of Kenora and it is financially and logistically prohibitive for them to travel to and from there, from weekend to weekend, at their own expense, to serve out their sentences. These are agreed facts for the purposes of these proceedings. 5. Faced with this obstacle, the defendants each brought applications alleging that their inability to mitigate the effect of a mandatory jail sentence because of the practical unavailability of an intermittent sentence violates their right to equal protection under the law, constitutes cruel and unusual punishment and an abuse of the court's process. 6. Given the common ground of these applications, the desirability of using resources efficiently and with the consent of the parties, this Court has directed these applications be heard in one joined proceeding. 7. As the issues in this proceeding began to crystalize, counsel representing the Pikangikum First Nation and Aboriginal Legal Services requested and were granted, on consent, leave to intervene and assist the Court to receive evidence and submissions on the constitutional questions. 8. In preparation for the hearing of the Application, at the case management stage, counsel were asked to be prepared to assist the Court to understand how the position of the Applicants, as members of a First Nation community, differed, if at all, from the position of rural Canadians also located great distances from the closest correctional facility. 9. To respond to this request, counsel have provided me with voluminous materials and valuable viva voce evidence. That evidence includes, among much else, the testimony of then Chief of the Pikangikum First Nation, Amanda Sainnawap, affidavit evidence from the current Chief of Pikangikum, Dean Owen, Mr. Lloyd Comber the testimony of Denis Gauthier, Deputy Regional Director for Northern Institutions at the Ministry of the Solicitor General, testimony from Katherine Curkan, then the Superintendent of the Kenora District Jail, OPP Staff Sargent Matt Norlock, detachment commander in the Pikangikum First Nation community and Dr. Janet Armstrong, historian and expert in Crown-Indigenous history and treaty making. 10. I would like to thank counsel for their comprehensive presentations and through submissions. I have found them extremely helpful in navigating this very challenging litigation. I would also like to extend my gratitude to Chief Dean Owen and Mr. Lloyd Comber for agreeing to share personal details of their lives to assist the Court to understand the history of the Pikangikum First Nation. — 3 — 11. The Crown opposes this Application, broadly speaking, on two grounds. The first is that the onus is on the Applicants to prove their claims and that they have not done so. The second is that offers they have made to accommodate the defendants that would allow them to serve intermittent sentences have rendered their claims moot and it is no longer necessary to consider them. 12. I have considered the Crown’s arguments carefully. It is my view that the issues underlying the Applicants’ claims are of significant public importance beyond the individual circumstances of these defendants and it is appropriate they be adjudicated in these proceedings. 13. The question at the heart of this joint application, namely, whether particular Criminal Code provisions of general application have an unconstitutional impact on Pikangikum First Nation residents requires a close look at the history of the people of Pikangikum, their place in Canadian confederation and what it means for them to be equal under the law. 14. In working my way toward an answer to that question, I considered it appropriate to begin with section 15 of the Charter and the relevant decisions of the Supreme Court of Canada concerning its proper interpretation. Charter s. 15 15. Section 15 (1) of the Canadian Charter of Rights and Freedoms (Charter) provides that: "Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability." 16. The law as it has been developed in the Supreme Court is clear that in order to establish discrimination contrary to s.15 (1) of the Charter, the onus is on the Applicants to establish that: 1. A government action, either explicitly or in its effect, creates a distinction on the basis of a ground listed in the Charter or a ground analogous to those listed in the Charter; and 2. the distinction is substantively discriminatory because it imposes a burden or denies a benefit in a way that has the effect of continuing, extending or worsening arbitrary disadvantage. 17. The Crown contends the Applicants have failed to meet their onus on either part of this test. 18. In this Application there is no question that s. 732 of the Criminal Code, which authorizes intermittent sentences, treats everyone equally on its face. Intermittent sentences are available to any accused person facing a sentence of 90 days or less — 4 — regardless of their personal characteristics. The Applicants’ position is rather that, because of where they live, the effect of the law, is to discriminate against them. 19. The case law is clear that not every law that creates distinctions between people or groups of people will be considered to create or perpetuate inequality. The Supreme Court in R v. Andrews [1989] 1 SCR 143 put it this way: “It is not every distinction or differentiation in treatment at law which will transgress the equality guarantees of s. 15 of the Charter . It is, of course, obvious that legislatures may -- and to govern effectively -- must treat different individuals and groups in different ways. Indeed, such distinctions are one of the main preoccupations of legislatures. The classifying of individuals and groups, the making of different provisions respecting such groups, the application of different rules, regulations, requirements and qualifications to different persons is necessary for the governance of modern society.” 20. For a legal regime to be questionable under Charter s. 15 it must be said to make a distinction based on an impermissible ground. An impermissible ground includes all those explicitly set out in s. 15 (1) as well as what the Court defined as ‘analogous grounds.’ 21. If a claimant does not fit within one or more of the characteristics specifically listed in s. 15 of the Charter, the Supreme Court left it open to Applicants to proceed if they could establish their situation was analogous to one of the enumerated grounds. 22. According to Justice Wilson in R v. Turpin [1989] 1 SCR 1296: "... the determination of whether a group falls into an analogous category to those specifically enumerated in s. 15 is "not to be made only in the context of the law which is subject to challenge but rather in the context of the place of the group in the entire social, political and legal fabric of our society" p. 1332. Section 15 Stage One Test Aboriginal Residency as Analogous Ground 23. In this case the Applicants claim they are unfairly discriminated against because their aboriginal residency makes it impossible for them to benefit from a law of general application. 24. Aboriginal residency as an analogous ground was considered by the Supreme Court in Corbiere v. Canada [1999] 2 SCR 203, a case which raised the issue whether the exclusion of off-reserve band members from the right to vote in band elections pursuant to s. 77 of the Indian Act, was inconsistent with s. 15 (1) of the Charter. 25. When discussing the position of off-reserve band members and their off-reserve status as an analogous ground, Justices Mclaughlin and Basterache, in concurring reasons, agreed with the conclusion of the majority that off-reserve aboriginal residency met the definition of an analogous ground, stating: — 5 — “L’HeureuxDubé J. ultimately concludes that “Aboriginality-residence” as it pertains to whether an Aboriginal band member lives on or off the reserve is an analogous ground. We agree. L’HeureuxDubé J.’s discussion makes clear that the distinction goes to a personal characteristic essential to a band member’s personal identity, which is no less constructively immutable than religion or citizenship.