Docket: T-1790-18
Citation: 2019 FC 1505
Ottawa, Ontario, November 25, 2019
PRESENT: Madam Justice McDonald
| BETWEEN:
|
| KODY JOHN WILLIAM SOLOMON,
RALPH JUSTIN ROMANO AND
PATRICIA KELLY SOLOMON
|
| Applicants
|
| and
|
| GARDEN RIVER FIRST NATION
|
| Respondent
|
JUDGMENT AND REASONS
Introduction
[1]
The Chief and Council of Garden River First Nation issued a series of Band Council Resolutions banning Kody John William Solomon and Ralph Justin Romano from Garden River First Nation (GRFN) territory. On this application, the Applicants seek judicial review of the Band Council Resolutions (BCRs) and the process undertaken by the Chief and Council.
[2]
For the reasons that follow this judicial review is granted. I have concluded that there was a breach of procedural fairness in the process followed by GRFN’s Chief and Council which led to Mr. Solomon and Mr. Romano being banished from GRFN.
Background
[3]
The Applicant, Kody Solomon, is a member of Garden River First Nation where he resided all his life until he was banished in August 2018. The Applicant, Ralph Romano, is the common law spouse of Kody’s mother, the Applicant, Patricia Kelly Solomon. Mr. Romano has resided at GRFN with Ms. Solomon for 19 years before his banishment. Mr. Romano and Ms. Solomon have a teenage daughter. Until August 2018, the family resided together at GRFN.
[4]
GRFN is located near Sault St. Marie. It is governed by an elected Chief and Council who are responsible for the governance of the Nation and its approximately 3,000 members.
[5]
On August 27, 2018, GRFN issued two Band Council Resolutions, No. 2017-2018-46 and No. 2017-2018-47 pursuant to By-Law 13, which read as follows:
WHEREAS, the First Nation Council is responsible for ensuring the health and safety of its citizens; and
WHEREAS, there exists a health and safety situation, involving Ralph Justin Romano; and
WHEREAS, Ralph Justin Romano is a non-member of the Garden River First Nation who has been charged with drug trafficking and possession.
THEREFORE BE IT RESOLVED, that Garden River First Nation Chief and Council BAN Ralph Justin Romano from Garden River First Nation territory, from this day forward.
FURTHERMORE BE IT RESOLVED, that the business known as D&R Plumbing of whom Ralph Justin Romano is a partner – is also banned from operations on Garden River First Nation Territory.
FINALLY BE IT RESOLVED, that this resolution shall be presented to Garden River First Nation Anishinabek Police Services for enforcement.
[and]
WHEREAS, the First Nation Council is responsible for ensuring the health and safety of its citizens; and
WHEREAS, there exists a health and safety situation, involving Kody Solomon; and
WHEREAS, Kody Solomon is a member of Garden River First Nation who has been charged with drug trafficking and possession.
THEREFORE BE IT RESOLVED, that Garden River First Nation Chief and Council BAN Kody Solomon from Garden River First Nation territory, from this day forward.
FINALLY BE IT RESOLVED that this resolution shall be presented to Garden River First Nation Anishinabek Police Services for enforcement.
[6]
The Applicants’ motion for an injunction to stay the August 2018 BCRs was denied on December 19, 2018, by Justice Strickland (Solomon v Garden River First Nation, 2018 FC 1284).
[7]
In the meantime, on September 25, 2018, GRFN Council replaced By-Law 13 with By-Law 20. By-Law 20 authorized Council to declare band members and their spouses and children to be trespassers. This language was not contained in By-Law 13.
[8]
On March 26 2019, GRFN issued BCR No. 2018-2019-63 which states:
THEREFORE BE IT RESOLVED THAT:
1. Band Council Resolutions 2017-2018-46 and 2017-2018-47 shall be repealed as of a date to be determined at the mutual convenience of the Council and Mr. Romano and Mr. Solomon, but the repeal shall not be effective later than April 30, 2019. Once the date is decided, the Council will pass a BCR at the next council meeting repealing the BCRs as of the determined date.
2. The Council of Garden River intends to convene a meeting, to be held no later than April 30, 2019 to determine whether Kody Solomon and / or Ralph Romano should be banished from the Garden River Reserve. The specific resolutions which will be before Council for decision are attached to this resolution as Schedule ‘A’ and Schedule ‘B’.
3. In addition to the members of Council, three elders held in high esteem in the community and knowledgeable of Anishinaabe traditional laws and practices of Garden River shall be present and entitled to provide advice to Council on Council’s decision on the proposal to banish Kody Solomon and / or Ralph Romano.
4. The meeting shall take place at the Dan Pine Healing Lodge, at a date and time no later than April 30, 2019 which is mutually agreeable to the Council, Kody Solomon and Ralph Romano. However, if no mutually agreeable time can be found within 15 days of this resolution, the Chief shall designate a date and time and shall notify Kody Solomon and/or Ralph Romano of the designated date and time.
5. Kody Solomon and Ralph Romano are entitled to speak, or have someone else speak on their behalf, for up to one and a half hours each, to the proposed resolutions attached at schedules “A” and “B”, or more time at the Council’s discretion.
6. If Kody Solomon and / or Ralph or Romano or their representative(s) do not attend the meeting, Council may (but is not required to) appoint an Elder to speak on their behalf.
7. The meeting shall be held ‘in-camera’ according to the normal practice of Garden River, unless Kody Solomon and Ralph Romano, or either of them, requests for the meeting to be held in public, in which case Council shall conduct the meeting in a regular public session.
8. After Kody Solomon and Ralph Romano (or their representatives) are finished speaking, the members of Council and Elders present shall discuss, debate and deliberate. When the Council is ready to make a decision, the Council shall decide on the resolutions detailed at Schedule “A” and “B”. Separate votes shall be taken for each of Kody Solomon and Ralph Romano.
9. If Kody Solomon and/or Ralph Romano or their Representative(s) do not attend the meeting, Council may make a decision in their absence.
10. Council may make a decision immediately following the meeting, or it may reserve its decision for no more than 30 days. In either case, the Chief shall prepare a summary of the reasons for Council’s decision, and shall provide the summary to Kody Solomon and Ralph Romano.
11. If council decides to pass the resolutions at Schedule “A” and “B” Council shall issue to the affected individual(s) a Trespass Notice and Order to Vacate pursuant to By-Law #20 and a Declaration of Banishment pursuant to Anishinaabe law.
12. Pursuant to sections 15-25 of By-Law #20 Kody Solomon and/or Ralph Romano are entitled to request a hearing before Council to appeal the Trespass Notice and Order to Vacate by notifying the Band Manager in writing, within fourteen (14) days of the decision coming into effect. A notice of appeal delivered according to this part shall also be taken to be a request to reconsider the Declaration of Banishment.
13. As part of its decision, if Council decides to pass the resolution at Schedule “A” and “B”, Council may also set out terms for how and when they may request permission from Council to have their banishment rescinded.
[9]
On April 16 2019, the GRFN Council held a meeting that included the Applicants and other family members. Both Mr. Solomon and Mr. Romano spoke at the meeting and apologized. At the end of the meeting, the Applicants agreed to submit a proposal for their return to the community.
[10]
On April 23, 2019, Ms. Solomon sent a proposal to GRFN’s Chief via a text message on behalf of her son and her husband which states in part:
…Kody would be willing hire few guys to help him with his fishing and both he and Ralph could donate moose/deer to food bank. Ralph does fireworks every new years over at play ground that the neighbourhood enjoys….Kody could be asked to show youth or whom ever how to skin moose/deer. Filet fish etc. He has lots skills he can share with community. Ralph always gives people deals on his plumbing as well. Let us known when to meet again and I ask that the same Elders be invited thank you [sic throughout]
[11]
On April 29, 2019, BCRs No. 2019-2020-02 and 2019-2020-03 were issued banishing Mr. Solomon and Mr. Romano again. The resolutions state that Mr. Solomon and Mr. Romano were banished as they had been charged with offences under the Controlled Drugs and Substances Act SC 1996 c 19, that “illegal drugs have caused great harm to Garden River and its members,”
and “allowing Kody Solomon [and Ralph Romano] to remain in Garden River may cause harm to Garden River and its members or endanger public safety.”
[12]
The April 2019 BCRs state that GRFN Council will arrange for a meeting of a justice circle to determine a process for Mr. Solomon’s re-entry to the community.
[13]
In the case of both Mr. Solomon and Mr. Romano, the BCRs allow them to reapply for reconsideration.
[14]
On May 1, 2019, after the issuance of the April BCRs, GRFN’s Chief provided additional reasons for the BCRs, stating that Mr. Solomon and Mr. Romano had not “clearly and publicly committed to repairing the harm they had caused to the community”
and that the Council considered them to be a threat to public safety.
[15]
In the May 1, 2019 letter, GRFN’s Chief states:
1. Kody Solomon is to continue to participate in a justice circle process consistent with Anishinaabe law, with the eventual goal of his full return to the community. Until that process is completed, Kody Solomon is banished from the Garden River Reserve, subject to the exceptions contained in the Resolution which give effect to this decision.
2. Ralph Romano was a guest who was previously given the privilege of living on the Garden River Reserve. In light of all of the factors considered by the Council, Ralph Romano is banished from the Garden River reserve indefinitely, subject to the conditions and possibility of the resolution being repealed as set out in section 5 of the Resolution which gives effect to this decision.
[16]
On May 2, 2019, the Applicants disputed their banishment. The GRFN Council conducted a meeting on May 28, 2019; eight Council Members and all three Applicants attended this videotaped meeting. Mr. Solomon and Mr. Romano spoke on their own behalf again, as did Ms. Solomon.
[17]
The Council did not have a quorum at the May 28, 2019 meeting. Further, Councillor Karen Bell chaired the meeting, in spite of having declared a conflict of interest and acknowledging that she could not cast a vote on the matter.
[18]
On June 11, 2019, the Council met and passed two more resolutions upholding the banishments of Mr. Solomon and Mr. Romano.
[19]
In their judicial review application, the Applicants seek:
o
an order quashing ss. 15-25 of By-Law 20;
o
an order setting aside the April BCRs (2019-2020-02 and 2019-2020-03) and the June BCRs (2019-2020-04 and 2019-2020-05);
o
a writ of prohibition restraining the Chief and members of he Band Council from making any further decisions with respect to the banishment of the Applicants as long as they remain Chief and/or members of Band Council;
o
in the alternative, an order permanently staying any proceedings before the Band Council regarding the banishment of the Applicants; and
o
costs of their application.
Affidavit Evidence
[20]
In support of this judicial review application, the Applicants rely upon the following evidence:
o
The affidavit of Kayleigh Davidson.
o
The affidavit of Patricia Kelly Solomon.
o
The BCRs and statements of the Garden River First Nation Council.
[21]
The Respondent relies upon the following evidence:
o
The BCRs.
o
Video footage of the May 28, 2019 Council meeting.
o
Video footage of the June 11, 2019 Council meeting.
o
Minutes of the June 11, 2019 Council meeting.
o
The cross-examination of Kayleigh Davidson.
o
The cross-examination of Patricia Kelly Solomon.
Issues
[22]
The following issues arise on this judicial review:
Should the Kayleigh Davidson affidavit be considered?
What is the decision under review?
What is the applicable standard of review?
Were the Applicants denied procedural fairness?
Was the decision to banish the Applicants reasonable?
Analysis
1. Should the Kayleigh Davidson affidavit be considered?
[23]
The Respondent objects to the Court considering the Affidavit of Kayleigh Davidson sworn to on June 13, 2019, on this judicial review. The Davidson Affidavit attaches 34 exhibits largely comprised of email correspondence between the lawyers for the parties between the December 2018 dismissal of the Applicants’ injunction motion and the June 2019 BCRs.
[24]
The Respondent argues that the Affidavit is not in compliance Rule 81(1) of the Federal Courts Rules as it is not confined to Ms. Davidson’s personal knowledge. As well, GRFN argues that the Affidavit expands the scope of the judicial review as it contains information beyond the June 11, 2019 BCRs.
[25]
The Applicants submit that the Davidson Affidavit provides the necessary factual and procedural background and therefore meets the exceptions identified in Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at para 20 [Access Copyright]. They argue that given the procedural fairness issues raised, the Affidavit is necessary for the Court to have the full background.
[26]
In the circumstances, I am satisfied that the Affidavit meets the exceptions outlined in Access Copyright (at para 20) as it provides general background information and is necessary in light of the procedural fairness issues raised. I am therefore allowing the Affidavit of Ms. Davidson into evidence.
2. What is the decision under review?
[27]
The Respondent submits that pursuant to Rule 302, this judicial review should be confined to a consideration of the June 11, 2019 BCRs only. Rule 302 of the Federal Courts Rules states:
Unless the court orders otherwise, an application for judicial review shall be limited to a single order in respect of which relief is sought.
[28]
The Applicants submit that despite Rule 302 the Court has jurisdiction to go beyond a “single order”
when there is a continuous course of conduct so closely linked as to be properly considered together. They rely upon Shotclose v. Stoney First Nation, 2011 FC 750, and Frank v Blood Tribe, 2018 FC 1016.
[29]
I agree with the Applicants’ position. Although there have been three “banishment”
BCRs issued by the GRFN over an 11 month period, each banishment BCR is directed to the same individuals – Kody Solomon and Ralph Romano. Each BCR is based upon the same set of facts (purported criminal conduct) and each BCR seeks to accomplish the same goal: banishment from GRFN. This is a continuous course of conduct the facts of which are so closely linked that they must be considered as a whole. Therefore, it is my view that it is appropriate for the Court to consider the full context of the events of the 11 month period from the August 2018 BCRs to the June 2019 BCRs.
3. What is the applicable standard of review?
[30]
The parties disagree on the applicable standard of review.
[31]
The Applicants submit that the applicable standard of review is correctness for the procedural fairness issues, and reasonableness would apply to the other issues.
[32]
The Respondent argues that reasonableness is the applicable standard of review for all of the issues raised by the Applicants including the procedural fairness issues. The Respondent argues that GRFN has the authority pursuant to s. 81(1)(c) and (d) of the Indian Act to enact by-laws for the observance of law and order and for the prevention of disorderly conduct. They submit that the By-Laws and BCRs enacted by GRFN are comparable to election laws and arise from the inherent right of First Nations to self-govern. They rely upon Pastion v. Dene Tha’ First Nation, 2018 FC 648 at paras 19-28, and Crowchild v Tsuu T’ina Nation, 2017 FC 861 at paras 25-26 to support this proposition. In these cases, the Federal Court confirmed that reasonableness with a high degree of deference is the appropriate standard of review when the decision under review arises out of the inherent right of First Nations to self-govern.
[33]
The Respondent submits that this Court owes significant deference to GRFN as it was acting within its inherent right to self-govern when it issued the BCRs.
[34]
In my view, the issues that arise on this application are not about the inherent right of GRFN to self-govern. Rather the issues are whether the process undertaken by the GRFN Chief and Council while acting pursuant to the By-Laws and BCRs, was fair to the Applicants. The determinative issue is therefore not about the inherent right of GRFN to order banishment, but rather, was the banishment process undertaken fair to the Applicants.
[35]
The case law is clear that issues of procedural fairness are considered on a correctness standard (Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at paras 34, 40, 41, 49, 54, 55, and 56).
4. Were the Applicants denied procedural fairness?
[36]
The Applicants argue that the process undertaken by GRFN’s Chief and Council in issuing banishment BCRs was unfair. In particular they argue that:
GRFN Council did not follow its own processes;
there was no true reconsideration of the initial banishment decision;
there was bias because Council members who declared a conflict of interest nonetheless participated in the meetings; and
the Council failed to consider the importance of the decision to the Applicants’ rights to reside on GRFN.
[37]
The test for assessing if the process was fair is to ask whether a right-minded person, applying themselves to the question and obtaining the required information, would think it is more likely than not that the decision-maker did not decide fairly (Baker v Canada (Minister of Citizenship and Immigration, 1999 SCC 699 at para 46). The factors outlined in Baker (at paras 23-27) for assessing procedural fairness include: the nature of the decision and the process followed in making it; the nature of the statutory scheme; the importance of the decision to the individuals affected; the legitimate expectations of the person challenging the decision; and, the choice of procedure made by the agency itself.
[38]
I now turn to a consideration of these factors in the context of the steps and actions taken by GRFN’s Chief and Council in the 11 months between August 27, 2018 and June 11, 2019.
[39]
There is no dispute that the initial August 27, 2018 BCRs (quoted in para 5 above) were issued by GRFN’s Chief and Council without the opportunity for any input from Mr. Solomon or Mr. Romano. There is also no evidence that they had any notice. Considering the substantive rights at issue, and the consequences to the Applicants, a fair process would have afforded them an opportunity to know the case against them and the opportunity to have a say in the process (if they chose to participate). Given the serious consequences of the banishment decisions to the Applicants, the degree of procedural fairness owned to the Applicants is heightened.
[40]
The relevant provisions of By-Law 13 relied upon by GRFN in issuing the August 2018 BCRs stated:
WHEREAS, the Council of the Garden River First Nation desires to establish a by-law to provide for the removal and punishment of persons trespassing on the reserve or frequenting the reserve for prohibited purposes…
…WHEREAS, it is deemed expedient and necessary, for the benefit, comfort and safety of the inhabitants of the Garden River First Nation Indian Reserve, to provide for the removal and punishment of persons trespassing on the reserve or frequenting the reserve for prohibited purposes…
PROBITED PURPOSES
3. (1) A person other than a person referred to in subsection (2), who conducts on the reserves any of the following activities, namely:
a. dumping garbage
b. A person who, without the written permission of the Minister or his duly authorized representative removes or permits anyone to remove from a reserve minerals, stone, sand, gravel, clay or soil, or trees, saplings, shrubs, underbrush, timber, cordwood, hay or fence posts; or has in his possession anything removed from a reserve contrary to this section.
c. hunting, fishing or trapping
d. hawking or peddling or wares or merchandise
e. loitering
f. Soliciting financial assistance
shall be deemed to be frequenting the reserve for a prohibited purpose
(2) Subsection (1) does not apply to
a. a person who is a lawful resident of the reserve; or
b. a person who under a by-law of the Council holds a valid license to conduct any activity referred to [sic] there in, or is otherwise permitted to conduct that activity.
[41]
The right to a fair hearing requires that Mr. Romano and Mr. Solomon have adequate notice of the case against them and sufficient opportunity to respond before a decision adverse to their interests was made (Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9 at para 53).
[42]
The Applicants did not have such notice, and they we not informed of the basis for the Council’s belief that they posed a threat to GRFN before the Council issued the original BCRs in August 2018. The only information provided in the August BCRs was that there was “a health and safety situation”
. They were not told which “prohibited purpose”
activity as listed in By-Law 13 formed the basis of their banishment.
[43]
Following the issuance of the August 2018 banishment BCRs, GRFN Council took the position that it was up to the Applicants to disprove that they posed a “threat”
, even though the basis for this on the part of GRFN was never clearly articulated. As a result, the Applicants were not aware of the information they had to refute, thereby putting them at a disadvantage that contributed to the lack of procedural fairness that then flowed through the follow up steps taken by GRFN Chief and Council.
[44]
In any event, after the issuance of the August 2018 BCRs, it appears GRFN’s Council itself recognized flaws in the process undertaken. By-Law 20 was adopted on September 25, 2018. The major differences from By-Law 13 are that it allows the Band Council to banish members of GRFN and persons deemed to be threats to the peace and safety of the Band or other people lawfully on the reserve. By-Law 20 provides a process that is clearly tailored to address the particular circumstances of the Applicants – a member (Mr. Solomon) and a non-member (Mr. Romano) of GRFN who were charged with a criminal offence.
[45]
On October 1, 2018, the Council reaffirmed its commitment to the banishment in a letter announcing the passage of By-Law 20. The Council considered the August BCRs to remain in effect. The fact that the banishment decision was not reconsidered is confirmed by the following statement made by the Chief of GRFN on October 1, 2018:
The Council of Garden River First Nation has taken a position against Mr. Solomon and has banned him and his activity from the First Nation. This position has not and will not waiver… [w]e will continue to move forward and send a strong message to any drug dealers that this harm to our community must cease! (emphasis added)
[46]
Despite the measures undertaken by the GRFN Chief and Council in drafting a new By- Law and issuing the October 1, 2018 letter reaffirming its position, at this juncture there was no reconsideration of the original decision to banish Mr. Solomon and Mr. Romano. Rather, it appears the GRFN Council simply passed the new By-Law and considered it to have rectified any issues with the August BCRs.
[47]
There can be no doubt that the BCRs ordering the banishment of Mr. Solomon and Mr. Romano from GRFN had serious and significant consequences for the Applicants. Mr. Solomon was removed from the community where he has lived all his life. Mr. Romano lived on GRFN with his partner for 19 years. The banishment orders broke up the family. There is also evidence that it has affected the Applicants’ ability to run their business and therefore earn a livelihood.
[48]
The BCR issued on March 26, 2019 (at para 8 above) outlines a process for the repeal of the August 2018 BCRs “on a date to be determined”
. To this end, the Applicants participated in the meeting on April 16, 2019 and as agreed, on April 23, 2019, Ms. Solomon, provided a proposal to the Chief (at para 10 above) on behalf of her son and husband for their return to the community.
[49]
The Applicants were of the view that they were providing a proposal for their reintegration into the community on a forward-looking basis, however, based upon the response from the GRFN Council, the Council was looking for an admission of guilt from the male Applicants. The May 1, 2019 reasons provided by the Chief stated:
The Council discussed and considered the circumstances which led to this discussion, the harms which drugs cause in Garden River, the accusations made against Kody Solomon and Ralph Romano, the words of Kody Solomon and Ralph Romano spoken at the justice circle, and the proposal for their return to the community, which was provided by Kelly Solomon to Chief Syrette.
…the Council decided that taking into account all of the circumstances, it is not clear that Kody Solomon and Ralph Romano have taken responsibility for their actions, or clearly and publicly committed to repairing the harm they caused to the community.
[50]
While the March 26, 2019 BCR purports to offer a process for the reconsideration of the BCRs, the GRFN Council failed to follow its own process as outlined in By-Law 20. First, the Council did not have a quorum when it heard the Applicants’ speak on May 28, 2019, as required by s. 15 of By-Law 20. Second, it did not convene a reconsideration hearing within the 14 days as specified in s. 16 of By-Law 20. Third, it did not actually reconsider the decision when it did convene a hearing. Finally, the Council did not issue its decision within the 3 days as stated in s. 19 of By-Law 20, but, rather it took Council two weeks to make a decision.
[51]
Considering that By-Law 20 appears to have been crafted to address the specific circumstances of Mr. Solomon and Mr. Romano, they had a legitimate expectation that the process laid out in By-Law 20 would be followed. However, the changing nature of GRFN’s expectations gave rise to a reasonable apprehension that the process was biased.
[52]
When the Baker factors are considered in conjunction with the reasonable apprehension of bias, it is clear that there was a breach of the Applicants’ right to procedural fairness. The evidence demonstrates a continuing course of conduct on the part of GRFN’s Council who never undertook the promised reconsideration of the original banishment decision. The April 29, 2019 and June 11, 2019 BCRs were simply a reissue of the original August 2018 banishments under the new By-Law. The decision-making process that led to the Council’s June 2019 decision was procedurally unfair because the Council made up its mind in August 2018. From that point, GRFN Council defended its original decision rather than engage in a true reconsideration.
[53]
When considered in its totality, I agree with the Applicants that the process was procedurally unfair.
5. Was the decision to banish the Applicants reasonable?
[54]
As I have concluded that the banishment process undertaken by the GRFN was not procedurally fair to the Applicants, any decision arising from that process is also unreasonable.
Costs
[55]
The applicants are entitled to costs which I fix at $4,000.00.
Email this Content