(Ottawa) A British Columbia judge warns there will be what he calls a “tsunami” of misrepresentation of Indigenous identity cases in Canadian courts.
Provincial Court Judge David Patterson says this situation is fueled by the “desire” of non-Indigenous people to access what they see as the benefits of identifying as Indigenous when it comes to determination. pain.
He argues judges need to be “aware of the problem” and require evidence to ensure an offender has the right to be sentenced as an Aboriginal person.
A set of guidelines known as the Gladue factors require courts to consider an Indigenous person’s past experiences when sentencing.
This can include family trauma, poverty, and whether being separated from their culture could have contributed to their offending.
Justice Patterson concluded in a ruling regarding Pastor Nathan Allen Joseph Legault that the accused had made questionable and inadequate claims about Métis identity, based on stories circulating within the family that his great-great-grandmother was indigenous.
In this case, Pastor Legault was convicted of charges related to child pornography.
The crimes revolved around communication with two minors he met while he was a youth camp director and pastoral intern in Saskatchewan and Windsor, Ontario.
Mr. Legault argued in this case that he considered himself Métis because his ancestor was part of the Haudenosaunee Confederacy.
Judge Patterson said in the ruling that self-identification meant Gladue factors had to be considered.
The factors are named after a 1999 decision by the Supreme Court of Canada in R. v. Gladue. The highest court reaffirmed these principles in 2012 in another case, R. v. Ipeelee, who said failure to take them into account was an error of law.
In his decision, Justice Patterson noted that it would not be appropriate for a judge or sentencing lawyer to determine whether or not a person has Indigenous ancestry.
But he nevertheless decided that Legault did not meet the criteria for such factors to apply in his case, and that his family history had not affected him “adversely” in a way that would make legal sense.
“In short, there is no basis for equating Mr. Legault’s life experience with that of the Métis people in particular or the Indigenous peoples of Canada in general,” he wrote.
“I am of the opinion that the only way to make sense of the teaching of the Supreme Court of Canada in the Gladue and Ipeelee decisions is for judges to be aware of the issue of misrepresentation of Indigenous identity and require evidence that convinces the court that the convicted person has the right to be sentenced as an Aboriginal person,” he added.
The definition of Métis, a controversial subject
Justice Patterson cited the Gladue report prepared for Mr. Legault’s case, which argued that “the Métis constitute the most controversial and ethnically diverse indigenous identity” in Canada.
It continued: “Although the Canadian government has recognized the Métis as a people distinct from the Inuit and First Nations, the definition of Métis, and therefore who is or is not Métis, often remains a source of controversy. »
The Métis, in general, are defined as a distinct indigenous group whose homelands originate in the Red River, Manitoba.
Scholars, including writer Chelsea Vowel, have described the group as having descended from mixed European and indigenous ancestry and having formed a distinct new culture in the mid-18th century.
Critics have expressed concerns about people who call themselves Métis when they simply have a distant Indigenous ancestor and have no connection to the current community.
In his decision, the judge cited the case of author Joseph Boyden, who held the same membership card for the Ontario Woodlands Métis Tribe as the one presented by Mr. Legault.
Justice Patterson cited a University of Saskatchewan report written by Métis lawyer Jean Teillet on the subject.
“Fraudsters often claim that the membership card of an Indigenous organization is proof of their Indigenous identity,” said Mr. Teillet in the report. This is not what indigenous people mean by community. »