Heroin, guns and a bullet proof vest –but not “morally blameworthy”

There are many cases that come before the courts, almost all receiving little attention or public mention, but once in awhile there are some that make you take note. From Provincial courts to Supreme Courts to Appeals courts one can almost always find a case or two that will make you scratch your head, or possibly get a little agitated.

The case that recently had me perk up and get a higher blood pressure reading is the case of Robert Mero.

He is a 34 year old male, whose father was Metis and his mother was non-indigenous; making him one fourth of Indigenous heritage. Why are we mentioning this, because it was this 25% of his heritage which was enough to keep Mr. Mero from going to jail.

In the eyes of the learned Justice Len Marchand of the BC Court of Appeal, his “moral blameworthiness” necessitated that the 40 month sentence to which he was originally sentenced (by the Supreme Court of Vancouver Judge Joel Groves )–be reduced, more accurately eliminated. Mr. Mero should not go to jail in the view of the Appeals Court as he should not be held accountable due to his Metis heritage. The sentencing was wrong according to Justice Marchand because “neither the Crown or Judge addressed his Indigenous background”.

The unwieldy terminology of “moral blameworthiness”, clearly something only lawyers could come up with, stems from the Supreme Court of Canada and what is now referenced as the Gladue decision.

Regina vs Gladue was a decision by the Supreme Court specifically dealt with sentencing principles that had been layed out in Section 718.2 (e) of the Criminal Code of Canada and had been enacted by Parliament in 1995. This section directed that the courts need to consider “all available sanctions, other than imprisonment” for all offenders. However, it needed to pay “particular attention to the circumstances of Aboriginal offenders”. (It should also be noted that these provisions were put into the Criminal Code under Prime Minister Jean Chretien and the Liberals who ironically have been recently criticized for not understanding the problems in the residential schools.)

Gladue was the first case where the Supreme Court considered these provisions and set out to try and define what factors should be taken into consideration under this newly defined law. In the Gladue case, a young Indigenous woman had appealed her manslaughter sentence of three years for stabbing her boyfriend to death (life was cheap even back then). The pitiful sentence of three years was upheld despite the appeal, but the Supreme court ruled that they should have at least considered her Indigenous background.

The changes to the Code were orchestrated and passed because of the “over representation” of the Indigenous in the Canadian judicial system. The term “over representation” is a bit of a misnomer, they were not going to jail in disproportionate numbers because they were being picked to “represent”, they were going to jail due to the massive criminal problems existing in the Indigenous populations.

This was an attempt by the Liberals of that time to solve the abnormally high criminal activity amongst the Indigenous– from the top down. Too many in jail, simple solution, just don’t send them to jail.

No need to address the actual criminal activity at its origin, which is a much more complicated set of social ills. The overall affect of course was the diminishment of personal responsibility, and broadly, it also had the affect of creating different laws or at least very different treatment before those laws according to race.

In the years since this has morphed into Judges now automatically asking for a pre-sentence report which formalize these considerations for Indigenous offenders. This sociological based report is termed a Gladue report. This report, or lack of a report was a central factor which played out in the case of Mr. Mero.

Mr. Mero’s crime in this case was not a minor crime and he would be unlikely to have received any nominations for citizen of the year in Prince George, where this matter began. A search warrant was conducted of Mr Mero’s residence by the police in Prince George in 2016. It led to the seizure of a .38 calibre pistol, ammunition, 23 grams of heroin, and a bullet proof vest. Clearly, Mr. Mero was exhibiting all the characteristics of a drug dealer.

Mr. Mero had previously served two other jail times, in 2005 and 2006. It was what the Appeals Court called a “dated criminal record”.

Mr. Mero and his defence council (he went through two defence counsels) went through all the motions that are tried in this day and age. A motion of too long to get to trial (Jordan decision) was first tried. The Judge ruled that the delays were due to defence counsel scheduling and the fact that his 1st defence lawyer had gotten suddenly sick. The court chastised the defence counsel: “Mr. Mero’s trial counsel has shown, effectively, since the beginning of the trial, an ability to delay matters on behalf of his client”.

Then the defence argued that Mr Mero who suffers from a lung disease should not go to jail because of the high rate of Covid in the jails which could prove to be detrimental to his health. Worth a try, considering the panic which has pervaded Canadian society over Covid, but this too didn’t work.

The defence counsel then argued that no Gladue report had been prepared. It turns out that they had six months to produce a pre-sentence report but failed to get one before the courts in time. So the sentencing went ahead without a Gladue report.

Justice Marchand of the BC Appeals Court felt that this was a massive oversight.

As a result he imposed a “conditional sentence” of 2 years less a day– the 1st year to be served under house arrest, to be followed by a curfew. He was placed under probation for the drug offences. This decision by Marchand was concurred with and signed off by two other Justices; Mary Saunders and Bruce Butler.

So what would have been in a Gladue report that could alter an outcome to such a degree? Usually, there is general information about the Metis “nation”, the intergenerational aspects of “colonialism” and “displacement”, racism and systemic discrimination, forced attendance at Residential schools and the “over representation” of the Indigenous in the jails of this country.

This is not to deny that Mr. Mero clearly had a troubled life. Most criminals can point to historic family issues. In his defence argument he pointed to the fact that he was “unable to complete school”, his “childhood was traumatic”, his “life was marred with addictions” and that he had “come into conflict with the law”. Mr. Mero’s father was not believed to have been at fault but he was often “away at work” and this left him with a mother who had significant mental health issues. He had runaway from home at 12 years old and got caught up in the street level drug trade, an all too common story.

However, it would be difficult for Mero to argue that these issues were directly related to his Indigenous upbringing. One need not worry because the courts have ruled that “it is not necessary to establish a direct causal link between systemic and background factors and the offence at issue”, as it may be “impossible to establish” a link. In other words you don’t have to prove a causal relationship.

The other aspect of this case which gave me pause was that this was a verdict by Justice Marchand. There are 26 Justices in the Appeals court, but in this instance Mr. Marchand was assigned the case.

Mr. Marchand is the son of Len Marchand Sr, the first Indigenous cabinet minister who once served under Pierre Trudeau. Len Marchand Jr. is a member of the Okanagan Indian Band having grown up in Kamloops, B.C. He articled and practised law in Kamloops with Fulton and Company. While there he spent a substantial part of his career working on “reconciliation for Indigenous people”, was pursuing historic civil claims of child abuse and represented residential school “survivors” and also served on the selection committee for the Truth and Reconciliation Committee.

There is no evidence here that Mr. Marchand had a clear bias in favour of Indigenous claims of “systemic racism”. Also, this is not to claim that all Indigenous cases need to be assigned based on their cultural background. But in this instance the appeal revolved around a Gladue application, central to which is the belief that there should be judicial favourable considerations granted to the Indigenous that are not available to others. That the application of the laws should be different because of their culture and background.

It is difficult to determine whether justice was served in Mr. Mero’s case, but I suspect he was merely a player of the system.Whether justice was served in this case we can leave to others, but does justice also need to be seen as having been done?

Should this case have been handled by someone who had spent the majority of his working life on Indigenous causes or is there a definite taint to this case.

Gladue is just one of the many pronouncements coming from the benches of the Supreme Court of Canada, the BC Supreme Court and in this case the Appeals Courts. They are germinated from the left leaning political dominance in British Columbia. It leads to favourable judicial appointments. Maybe well intentioned, but clearly with very pronounced political leanings. A left propensity to believe that government must protect all and everyone from the evils that society put upon us. Personal responsibility replaced by societal responsibility.

Maybe it is time for a return to the centre, where the vast majority of Canadians actually live. Not necessarily to the right or the left, but where common sense is the prevailing ethos.

The laws of this country are being diminished, watered down, leaving a large class of people now feeling disenfranchised. Many would not be o.k with rules and laws being applied differently depending on your cultural background. It is a difficult issue, but the current judicial climate seems destined to lead to trouble.

Photo Courtesy of Paul Sableman via Flickr Commons – Some Rights Reserved

A personal note

I apologize for the delay in the publication of this blog.

I have recently moved– swimming against the prevailing current and have moved back to the heart of the City of Vancouver leaving the quiet countryside. I have been surrounded by cardboard and the joys of re-connecting with life in the supposedly faster lane.

Thanks for your patience and your continuing support.

Pete

Collision Course

In a ruling this month by Justice Margeurite Church of the B.C. Supreme Court, it was decided that Coastal Gas Link, the company constructing the LNG pipeline from north eastern British Columbia to Kitimat British Columbia, had satisfied the requirements for an interlocutory injunction against the protestors of the natural gas pipeline.

Listen closely….can you hear the echo?

The year before in December 2018 the court had granted an interim injunction against these same protestors. That time the RCMP eventually moved in and 14 of the protestors were arrested and the encampment taken down. All of it much to the chagrin of a small sect of the Indigenous who were being supported and prompted by the usual wagon jumpers of the enlightened liberal left.

So here we are again, a year later, same issue, different court date. Ms. Church in this latest court verdict went a little further in her ruling saying –that there is evidence to suggest that the protestors had engaged in “deliberate and unlawful conduct” for the purpose of causing harm to the plaintiff and preventing it from constructing the pipeline.

Of added interest may be her comments reflecting on the general state of the laws pertaining to the Indigenous movement reflected in this particular case:
“There is a public interest in upholding the rule of law and in restraining illegal behaviour and protecting the right of the public, including the plaintiff, to access on Crown roads…the defendants may genuinely believe in their rights under indigenous law to prevent the plaintiff from entering into Dark Horse territory, but the law does not recognize any right to blockade and obstruct the plaintiff, to access on Crown roads.

In any event, another court decision, another group of lawyers, all kicking at the peripheral issues and avoiding the central dilemma of defining the role the Indigenous are to play in this country.

One would be hard pressed to imagine a more convoluted, ridiculous, and multi-layered predicament. Often mis- guided policy and vague initiatives have been all wrapped in endless litigation and court interpretation. The politically righteous argument of aboriginal rights, simmering away for the last forty years in a cauldron stirred by hundreds of lawyers. Apparently none able or overly concerned to define the central role of the Indigenous in this country. No one able to say whether the Indigenous are simply Canadians, just like everyone else, with the same rights and benefits, and subject to the laws of this country; or a “Nation” unto themselves, independent in spirit and governance, albeit financially dependent.

The popular view being force fed by the Liberal government Federally and a Provincial NDP government is that there is a 2nd “Nation” in this country. An ill-defined nation to be sure, no central authority, no common economic agenda or engine, old ways versus the new.

Non the less this “Nation” has indeed found a receptive audience in the current government and is grabbing for the ring of political acceptability and political empowerment, with ceaseless demands for increased financial resources and independence. It is demanding its own school system, its own policing and justice system, its own health care, its own social services, all to be run by a disparate range of communities.

A “nation” system made up of 634 different groups or “nations” speaking over than 50 different languages. Varied in language and cultural beliefs and spread throughout a massive geographic and often isolated area it is difficult to see a unified coherent and plausible plan.

As the years tick by this stew of government initiatives have been tendered, milked and prolonged by a legal and political community fuelled by the increasingly politically astute indigenous leadership.

Since 2000 there have been 21 cases involving indigenous rights and claims heard by the BC Supreme Court. There have been 9 cases since 1984 heard by the BC Court of Appeal, 14 cases heard by the Federal Court, and since 1970, 64 cases coming before the Supreme Court of Canada.

The result is layers of court systems all pronouncing their particular spin on what it all means. Supreme Court Constitutional decisions, common law precedents, treaties, Reserved land, “ceded” and “unceded” lands, Canadian law, Indigenous “laws”, hereditary chiefs, elected counsels, and Provincial declarations echoing United Nations Declarations.

The need for “reconciliation” spews forth at every turn, the beauty of the word “reconciliation” being is that it is infinite, there is no end. By very definition the issues can never be “reconciled.” The devil incarnate of course is “colonization”.

The movement has taken down statues, removed names from buildings, re-named Provincial and Federal Parks, and moved to ensure that any business done has to include a portion of the pie for them.

Some Indigenous are living in the most hideous squalid communities, living in poverty, poor education, no drinking water, and out of control birth rates. No hope of economic sustainment on one hand, while others are developing billion dollar city properties.

There are oil-rich Indigenous bands where the average income is $125,000 per year, and only 4% of the income comes from the Federal government, only because they are blessed by the good fortune of sitting on often barren lands but lands where there is black gold running under their feet. There are others that are almost 100% funded by the Federal government, defecating in buckets, no clean water, and no siding on their houses.

In this systemic chaos only the lawyers are winning. No one else.

It is all leading to darkening clouds and a possible storm of discontent on both sides of the two “Nations”. A low pressure system consisting of 96% of the population moving inexorably toward an Indigenous high pressure system made up of 4% of the population.

The latest example is now being played out near Houston, British Columbia. The Unist’ot’en and Wet’suwet’sen “nations” and their “hereditary chiefs” versus the rest. This latest collision to be where there is the proposed site of a natural gas pipeline to be built for a $6.6 billion by Coastal Gas Link. (The pipeline is to link to a $40 billion LNG export plant that is to be built in Kitimat, B.C.)

The NDP government of British Columbia with a straight face, state that they are both anti-pipeline and pro- pipeline. Hereditary chiefs disagree with elected counsels. Some bands are pro development seeing it as a financial windfall and the only hope out of abject poverty; others are just against it.

Last week a BC Supreme Court issued an injunction ordering that all obstacles to construction be removed. Pretty simple right?

The problem is that it was one Nation, going through their legal system, that obtained the injunction. The other Nation doesn’t recognize those laws.

Grand Chief Stewart Philip says that it is a very “complicated issue”. It’s complicated mainly because it is difficult for him to argue both for and against.

On the hereditary chief side you have reported comments like;

“It’s our territory. It’s not Canadian land. It is not the Queen’s. It’s not the RCMP’s. Its Wet’ suwet’sen land. “

The builders are “settlers on stolen land”, this is “environmental racism” all part of the “Canadian legacy of colonization”.

Immediately the BC Civil Liberties Association and the Union of BC Indian Chiefs jumped on the practised narrative, led by Grand Chief Stewart Philip who issued a statement saying: “A police exclusion zone smacks of outright racism and the colonial – era pass system sanctioned by the so-called rule of law, which our people survived for far too long”.

And in between these two nations is the politically correct RCMP. Their political masters want them to be gentle, do not offend at any cost. Their legal bosses are telling them to enforce the order and in the past, there was no hesitancy around a court ordered injunction. The Mounties traditionally and constitutionally were there to enforce the laws, not to interpret them.

But this is a different world now. This is the world of appeasement and the Mounties are going to find that they have no friends on either side.

The Mounties, god bless their souls are trying none the less, to be friends to those who can not countenance any meeting of the ways. They have asked the Indigenous protestors to meet and negotiate with the very same company that went to get the court order, the Coastal Gas Link group, who must think that they are is some sort of Twilight zone.

In the meantime the protestors have been cutting down trees and setting up their camp, while the Hereditary chiefs continue to say that the pipeline violates “Indigenous law and does not have consent”.

This is a fundamental collision. This is not going to go away.

It circles around aboriginal title which has been a decades long argument. What “title” or the “duty to confer” or “honour of the Crown” all means, with all its varied interpretations also includes such arguments as to whether treaty’s extinguished those title claims. Some even argue whether Indigenous groups in signing some of these treaties even understood them.

The countless cases which have been brought forward, have all circled around Section 35 of the Constitution Act of 1982 which proscribes to the protection of indigenous and treaty rights. Unfortunately, it didn’t define those rights, but none the less in 1995 the government began to adopt a policy of an “inherent right to self-government”, and the Penner Report to the House of Commons in 1983 spoke of this inherent right.

Adding to the legal and political confusion is the fact that the rights being claimed by the Indigenous do not come from an “external source”–they claim it is a result of Aboriginal people’s own occupation and relationship with their home territories as well as their own ongoing social structures and legal systems.

This would mean that in their view, they control and define aboriginal title.

Today, no political party, Provincial government or Federal government wants to be seen as decisive in terms of defining what these rights will be or how they would integrate with the rest of Canada in terms of self government.

The lawyers drone on in every level of courtroom. They are seemingly content in this ongoing lucrative dark hole of litigation.

The silent majority sit back and wonder where this is all leading. Is Canada prepared to have a separate entity operating within its borders, with its own laws and government, while at the same time supporting them through tax dollars. Are they prepared to let 4% determine what flows through economically to the other 96%. It seems unlikely, but there is no current political party asking that this central issue gets addressed definitively.

At some point the police are going to have to act in Houston. Every police officer involved will be left standing out in the field and roadway and it will an open hunting season for cries of violence and racism the minute they come within a few feet of the protestors.

The journalists stand by at the ready, camera rolling, salivating at the potential for filmed violence. ( the Canadian association of Journalists even jumped into the recent fray— arguing in court the fact that they were worried that the police could use the exclusion zone to prevent media from covering the RCMP enforcement of the injunction.) Maybe this is a sad conclusion but in this age of “breaking news” it is hard to dispute their intent.

None of this is new in terms of the RCMP being the potential fall guy. There have been many times in the past where the enforcement of an injunction has been violent and they have been pilloried for their abuse of power, rightly or wrongly.

The concern is that there is not a lot of confidence or recent evidence in the current RCMP management being behind their operational officers. Will they be supportive of the laws of Canada and the enforcement of those laws, or will they succumb to the un-written laws of a frenzied very vocal political “Nation”. After all it is a management group which has been genuflecting in front of the Indigenous cause in deference and in parallel with their political masters for the last several years.

We will see shortly. Time is running out in their “negotiations”.

A note to those uniform officers. Make sure those body cams are charged up and the audible is working. It may be the only friend you have in this instance.

Photo courtesy of Flickr Commons by Tony Webster