New Directions - New Complications
Culture Advocacy, New Direction, New Complications
The Honourable R John Harper
November 2024
The introduction and admission of cultural evidence in a proceeding can be a complicated task.
This type of evidence is becoming more and more prevalent in all lines of court work.
Child Protection
Child protection legislation requires an assessment of the native/indigenous relationships in order to determine if a child is native or identifies as native or is a member of or identifies with any particular band. The continuation of a child’s native culture is one of the important stated purposes of child protection legislation.
Criminal Law
In criminal law, courts must consider the cultural history, heritage and the impact of systemic racism of a native offender. Gladue describing the impact on the offender have become an important part of the factors that must be taken into account for native offenders in sentencing.
Enhanced Pre-Sentence Reports (PSRs) are becoming more prevalent when a court is considering the sentencing of a black person. The impact of the cultural and systemic racism on the offender are also considered when presented in the EPSR for sentencing.
Parenting
When courts are dealing with the parenting issues of decision making and parenting time, (what use to be referred to as custody and access), cultural evidence is also becoming more prevalent.
Complicated Evidentiary Issues
There are multiple factors that must be considered when asked to admit cultural evidence, some of which are as follows:
1. Is it mandated by legislation?
2. Is it relevant to the issues to be decided?
3. Can it be introduced without the necessity of calling expert witnesses?
4. Is it the proper subject matter that meets the necessity component of the test for expert testimony.
5. Who would qualify as an expert?
6. How does a judge integrate cultural evidence into his or her reasoning?
Conflicting versions of Culture, Traditions and History
In the case of 9646035 Canada Limited et al. v. Kristine Jill Hill et al., 2017 ONSC 5453 (CanLII), one of the presenting issues was the impact of two conflicting versions of the traditions, culture and history of Six Nations of the Grand River community. There was contrasting evidence presented by member of the Haudenosaunee Confederacy Chiefs and the Elected Council of the Six Nations of the Grand River.
The Respondent (K. Hill) gave evidence that the Haudenosaunee Hereditary Chiefs were the traditional governing council that the majority of the Six Nations People accepted and followed. She stated that she believes that largely based on what she knows from traditional teaching and her own observations.
This belief formed part of her argument that the property that was the subject of the dispute in that case, the Burtch Road property, was intended to be returned to the Haudenosaunee Hereditary Chiefs by the Ontario Government.
Her evidence was a recitation of stories that were related to her in the traditional manner of storytelling by her parents and grandparents. She did not go into any details in her evidence with respect to the history that she relied on. The only detail she relates is in her cross examination of July 26, 2017. The transcript of that cross examination revealed that she stated that it was her understanding that less than 10 per cent of the Haudenosaunee people recognize the Elected Band Council as their governing body. When asked how she came to that belief, she stated, commencing at p. 29 question 15 of her cross examination:
A. …the other part is how I grew up how I was taught and what I learned. I remember talking with… I remember as a child and as a young person growing up the things that were taught to me by my parents and by my grandparents and when people like politicians or whoever would come to the door and my dad would send them on his way and he would explain to us… and my mom as well would explain to us that that is not our way, that that is not our belief, that we don’t participate in that system because it is not part of who we are. And that … and I am well aware that is a general feeling within the community. We don’t participate in voting-type activities, government-type activities like census … and those are well documented, that low turnout, even within Statistics Canada themselves, that low turnout of Aboriginal,
Indigenous voter turnout is dismal at best because of the recognition of those systems.
The example given of K Hill’s testimony highlights the difficulty when the court is considering “oral history and story telling” as the evidence of the culture and traditions. In that case, there were also unsuccessful attempts to qualify certain individuals as experts on the traditions and culture that formed part of the issues.
Chief Justice McLachlin set out a concise and useful review of some of the general principles to consider in the case of R. v. Vanderpeet, 1996 CanLII 216 (SCC), [1996] 2 S.C.R. 507 (S.C.C) and Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC), [1997] 3 S.C.R. 1010 (S.C.C.) in Mitchell v. Minister of National Revenue, 2001 SCC 33 (CanLII), [2001] 1 S.C.R. 911 (S.C.C.). The Chief Justice, as she then was, gave guidance with respect to the assessment of oral history evidence in Aboriginal claims cases. Reiterating the general guideline provided in Vanderpeet, she stated that “a court should approach the rules of evidence, and interpret the evidence that exists, with a consciousness of the special nature of Aboriginal claims, and the evidentiary difficulties in proving a right which originates in times where there were no written records of the practices, customs and traditions engaged in”. (my emphasis) (See para. 27.)
She went on to state that this guideline applies to both admissibility of evidence and weighing of aboriginal oral history.
At paragraph 30 of that decision, she stated that three “simple ideas” provide the foundation for the diverse rules on the admissibility of evidence generally. The evidence must be useful in the sense of tending to prove a fact relevant to issues in the case; the evidence must be reasonably reliable; and even useful and reliable evidence may be excluded in the discretion of the trial judge if its probative value is overshadowed by its potential for prejudice.
McLachlin C.J. made clear that common sense must be applied to achieve the appropriate balance in each case such that “…a consciousness of the special nature of aboriginal claims does not negate the operation of general evidentiary principles”. (See para. 38).
She pointed out that there is a boundary between a sensitive application and a complete abandonment of the rules of evidence which must not be crossed. While care must be taken not to undervalue oral history evidence presented by Aboriginal claimants, such evidence should not be “…artificially strained to carry more weight than it can reasonably support”. (See para. 39).
In the majority of cases which considered the admissibility and weighing of oral histories, such as Alderville Indian Band v. R., 2015 FC 920; R. v. Marshall, 2005 SCC 43; Couchiching First Nation v. Canada (Attorney General), 2014 ONSC 1076; and White Bear First Nations Chief & Council v. Saskatchwan (Minister of Environment), 2009 SKQB 151, the oral histories that were provided came from authoritative sources such as Chiefs or elders, or from multiple witnesses. In instances where an oral history was provided by a claimant, it was corroborated with other academic sources or other archival oral history recordings that were available for comparison evidence.
Oral History is Replete with Hearsay Most Certainly at the Interim Motion
In the recent case of University of Toronto (Governing Council) v. Doe et al., 2024 ONSC 3755 (CanLII), Koehnen J. was dealing with whether and interlocutory injunction should be granted removing Gaza protestors from the University of Toronto. His comments with respect to the challenges of considering hearsay evidence on interim/interlocutory motions is applicable to the consideration of oral history of culture and traditions. He stated commencing at Para 58:
[58] The Respondents accept that the University has included examples of incidents that are highly troubling and antisemitic. However, in a large number of instances, the evidence on these points is hearsay, sometimes double or triple hearsay. That is to say, it is evidence not from someone who saw the events but is evidence from a witness who heard about an event from someone else. In some cases, the “someone else” did not see the event either but heard about it from yet another person. The law treats such evidence with suspicion because there are dangers that the evidence becomes distorted with each retelling.
It is often difficult to take a sensitive common-sense approach in order to determine whether the cultural and historical evidence being submitted is sufficiently reliable. The rules of evidence are not cast by the wayside, they require a reasoned and rational balancing of whether the proposed evidence is relevant, reliable, credible and sufficiently corroborated. This is especially true when dealing with interim or interlocutory motions. What often happens is that the court is faced with the type of evidence that Justice Koehnen J. referenced in the University of Toronto case.
It is incumbent upon counsel to ensure that they put their best foot forward. They must make every effort to provide to the court sufficient evidence in order for the court to has relevant, reliable, credible evidence that is corroborated when it can be corroborated.
In Ontario, look to the either the Rules of Civil Procedure or the Family Law Rules, if applicable in order to be guided as to what evidence is permissible. Ensure that all of the necessary requirements have been met with respect to Litigation Experts and Participant Experts.
Regardless of how challenging in may be, Oral History and Story Telling is an essential part of the evidence relating to aboriginal history and culture. Chief Justice Lamer drew from the Report of the Royal Commission on Aboriginal Peoples (1996) Vol. I (Looking Froward, Looking Back)) and p. 133:
The aboriginal tradition in the recording of history is neither linear nor steeped in the same notions of social progress and evolution [as in non-aboriginal tradition].
…
In the Aboriginal traditions the purpose of repeating oral accounts from the past is broader than the role of written history in Western societies. It may be to educate the listener, to communicate aspects of the culture, to socialize people into a culture tradition, or validate the claims of a particular family to authority and prestige. …
Oral accounts of the past included good deal of subjective experience. They are not simply in a detached recounting of the factual events but, rather, are “facts enmeshed in the stories of a lifetime.” …
Child Protection Legislation
Child Youth and Family Services Act (CYFSA) (Ontario)
Preamble
With respect to First Nations, Inuit and Métis children, the Government of Ontario acknowledges the following:
The Province of Ontario has unique and evolving relationships with First Nations, Inuit and Métis peoples.
First Nations, Inuit and Métis peoples are constitutionally recognized peoples in
Canada, with their own laws, and distinct cultural, political and historical ties to the Province of Ontario.
Where a First Nations, Inuit or Métis child is otherwise eligible to receive a
service under this Act, an inter-jurisdictional or intra-jurisdictional dispute
should not prevent the timely provision of that service, in accordance with
Jordan’s Principle.
The United Nations Declaration on the Rights of Indigenous Peoples recognizes
the importance of belonging to a community or nation, in accordance
with the traditions and customs of the community or nation concerned.
Further, the Government of Ontario believes the following:
First Nations, Inuit and Métis children should be happy, healthy, resilient, grounded in their cultures and languages and thriving as individuals and as members of their families, communities and nations.
Honouring the connection between First Nations, Inuit and Métis children and
their distinct political and cultural communities is essential to helping them
thrive and fostering their well-being.
For these reasons, the Government of Ontario is committed, in the spirit of
reconciliation, to working with First Nations, Inuit and Métis peoples to help
ensure that wherever possible, they care for their children in accordance with
their distinct cultures, heritages and traditions.
Receiving care in accordance with their culture heritage and traditions.
The statutory directive is clear. What is more difficult is the need to receive evidence of a child’s connection to a native community and what that community’s culture, heritage and tradition are in order to ensure that child receives care in accordance with that culture.
As Pazaratz J. stated in Children’s Aid Society of Hamilton v K.C., N.B. and A.A., 2016 ONSC 2751, at paragraph 257:
More broadly, while I am aware of the prevalence of K.C.’s issues within the native community, it is of little assistance to the court –and of no assistance to the children – to wait until the end of a Crown wardship trial and then raise the native issue with no evidentiary foundation.
a. Parenting issues are complex.
b. Child protection issues are complex.
c. An overlay of native or aboriginal issues only serves to add to the complexity.
d. The Child & Family Services Act specifically mandates certain requirements, approaches, and considerations in relation to native children and native families.
e. As a judicial system we try our best to be attuned to all of this.
f. But ultimately judges have to decide each case based upon evidence. And– native or not– the evidence against this mother was overwhelming. The evidence presented by the mother amounted to little more than a promise to get control of her life in the future.
g. K.C. had every opportunity to immerse herself in native community services to address her many problems, to try to get her children back. She chose not to do so.
h. K.C. could have presented evidence at trial addressing the relevance of her self-identified native status with respect to her past. And with respect to her future plans or proposals for these children. She elected not to do so.
i. K.C. could have presented people from the native community to identify real proposals to care for and protect these children. She was apparently unable to do so.
j. Our compassion toward and recognition of the importance of native heritage and families remains unwavering. But special status does not equate to a blanket exemption from legislation carefully crafted to protect vulnerable and often damaged children.
There must be evidence to allow the court to determine what native community is connected to the child in order to determine what services are in the best interest of that child that are a part of that culture tradition and history.
The court must always consider the best interest of the child as the primary consideration.
Coming Soon
The Implications of:
The United Nations Declaration on the Rights of Indigenous Peoples
The last case I want to share is one in which I see to be a foreshadowing of things to come.
The case that came before me when I was sitting on motions in Brantford Ontario. In LeFort v. VanEvery-LeFort, 2022 ONSC 3032 (CanLII) in that case, the mother brought an urgent motion for an Order allowing her to take the child on a long-planned trip to England. The father countered with, among other claims for the following:
In addition, he seeks to have the Court make Declaration that all parenting decision-making and parenting time decisions concerning indigenous children must be made in accordance with the United Nations Declaration on the Rights of Indigenous Peoples Act. R.S.C. 2021. He further seeks an Order that Act shall supersede and prevail over the law of the Divorce Act. (my emphasis)
I adjourned the part of the father’s motion that sought a Declaration with respect to the United Nations Declaration of the Rights of Indigenous Peoples Act RSC. 2021 in order for father’s counsel to notify the Attorney’s General of Canada and Ontario given the potential impact of such a motion. I am not aware of whether any further steps were taken in that case. Nevertheless, the issue of the incorporation of the United Nations Declaration has been taken up by the Supreme Court of Canada.
The United Nations Declaration of the Rights of Indigenous Peoples Act was federal legislation enacted in 2021. Some of the relevant provisions are as follows:
Preamble
Whereas the Declaration emphasizes the urgent need to respect and promote the inherent rights of Indigenous peoples of the world which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories, philosophies and legal systems, especially their rights to their lands, territories and resources.
Whereas the Declaration is affirmed as a source for the interpretation of Canadian law.
And whereas measures to implement the Declaration in Canada must take into account the diversity of Indigenous peoples and, in particular, the diversity of the identities, cultures, languages, customs, practices, rights and legal traditions of First Nations, Inuit and the Métis and of their institutions and governance structures, their relationships to the land and Indigenous knowledge.
The Supreme Court of Canada comments on the Declaration incorporated into Canadian law.
In recent case at the SCC Reference re An Act respecting First Nations, Inuit and
Métis children, youth and families, 2024 SCC 5 (CanLII), the Supreme Court of
Canada noted the incorporation of the Declaration into Canadian Law. The Court
stated, commencing at Paragraph 4:
[4] While the Declaration is not binding as a treaty in Canada, it nonetheless provides that, for the purposes of its implementation, states have an obligation to take, “in consultation and cooperation with indigenous peoples, . . . the appropriate measures, including legislative measures, to achieve the ends” of the Declaration (art. 38). Recognized by Parliament as “a universal international human rights instrument with application in Canadian law”, the Declaration has been incorporated into the country’s positive law by the United Nations Declaration on the Rights of Indigenous Peoples Act S.C. 2021, c. 14 (“UNDRIP Act”), s. 4(a). This statute recognizes that the Declaration “provides a framework for reconciliation” (preamble); s. 5 of the same statute requires the Government of Canada, in consultation and cooperation with Indigenous peoples, to take “all measures necessary to ensure that the laws of Canada are consistent with the Declaration”. The statute’s preamble expressly provides that the implementation of the Declaration in Canada “must include concrete measures to address injustices” facing, among others, Indigenous youth and children.
The Family Justice System
In May 2023 the Department of Justice Canada published a paper on the Indigenous families experience in the family justice system.
(Experiences of Indigenous families in the family justice system: A literature review and perspectives from legal and frontline family justice professionals Nicole Armos Dane Allard Meribeth Deen Sarah Jackson Victoria Perrie Victoria Weir Lindsay Heller Robert Daum Morris J. Wosk Centre for Dialogue, Simon Fraser University May 2023.)
In the introduction to the paper the authors take note of the United Nations Declaration on the Rights of Indigenous Peoples and highlight the fact that Indigenous peoples have the right to access to and prompt decision through just and fair procedures for the resolution of family conflicts consistent with due consideration to their customs, traditions, rules and legal systems.
The authors also emphasise the need to develop processes and programs that can uphold Indigenous laws, heritage, languages and traditions. There needs to be early identification of and understanding of culturally sensitive approaches to resolving family conflicts.
The authors also point out the lack of substantive research that focuses on the indigenous peoples experience in the family justice system. The literature and research that does exist points out the following:
Further, we outline some culture-specific considerations and challenges Indigenous families can face when navigating the colonial FJS, including: • Racism and cultural safety; • Cultural perspectives on family; • Culture and the best interests of the child; • Language barriers; and • Mobility between communities.
…
These barriers include higher rates of interpersonal violence, the question of culture and extended family when establishing the best interests of the child, and financial challenges. Specifically, the changes include: • An expansive definition of family violence that includes non- physical forms of abuse; • Specific factors that judges must consider when determining the best interest of the child, including factors such as “the nature and strength of the child's relationships with parents, grandparents, and other important people in their life” and “the child’s linguistic, cultural and spiritual heritage and upbringing, including Indigenous heritage;” and, • New tools to establish and enforce financial support. While some of these amendments are mirrored in provincial legislation, they are not yet standardized.
…
One of the most significant areas of cultural disconnection and misunderstanding impacting Indigenous families in the FJS is around the definition of family. Whereas family law is typically framed in terms of the immediate, nuclear family (two parents and their children), from an Indigenous perspective the definition of family extends to include relatives, chosen families, and/or the broader community (NIMMIWG, 2019; Guay et al., 2019). In 2021, 17% of First Nations children and 17% of Inuit children lived with a grandparent— almost twice the proportion of non-Indigenous children (9%) (Statistics Canada 2022e). The embeddedness of extended family is reflected in some Indigenous languages; for instance, in Inuktitut, the term qatangutigiit, or “immediate families” includes grandparents (Gallagher-Mackay, 2003, p. 23-4). Guay et al. (2019)
Indigenous processes and services. For Indigenous families, alternative dispute resolution processes that are based in cultural knowledge can further offer a culturally responsive approach to addressing family breakdown.
Expanded knowledge of the culture, traditions, history and laws needs to be passed on to and through the justice system in order to allow for appropriate early resolution and decisions that are rooted in an evidentiary base that is reliable and meaningful. Reliable knowledge of the culture and history cannot wait until the evidence at a trial. That knowledge must inform the process early on in order to provide culturally significant resolution alternatives.
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