May 7

Upon invitation by Dr. Daniel Alati, Hon. B.A., L.L.M., D.Phil (Oxford), Mr. Oliver presents keynote “Indigenous Justice: Paths to Reconciliation” at MacEwan University’s Alternative Justice Conference in Amiskwaciwâskahikan (Beaver Hills House/Edmonton), Treaty 6 territory.

March 26

R v AB, Alberta Provincial Court of Justice, Edmonton, 220240477P1 (publication ban in effect)

Our firm is retained to investigate and advance a post-conviction/pre-sentence application to set aside a sexual assault conviction, and to seek either the re-opening of trial evidence or a mistrial declaration to remedy the miscarriage of justice resulting from incompetent and ineffective representation by our client’s former counsel at trial.

Our compelling efforts to reveal what went wrong and how it directly impacted our client’s right to a fair trial resulted in the Crown consenting to our client’s application and, following the Court’s decision below, exercising its discretion to withdraw the criminal charge.

In the Court’s decision on the deficient counsel application, the trial judge stated (not verbatim):

[Our client] was convicted of sexual assault on August 24, 2023. Prior to sentencing, he applied to re-open trial or for the Court to declare a mistrial. Significant material was provided by Defence in support of the application.

After review of materials by Defence including 2 affidavits and written materials on April 2, 2024, I have determined a mistrial must be declared. Trial counsel deficiencies cannot be remedied by re-opening trial. In my view there is a real danger of prejudice to [our client] and the real possibility of a miscarriage of justice. I’m looking at that new evidence before the Court. Not for the purpose of re-opening trial to call that evidence.

[Our client] was not made aware of the [civilian witnesses] police statements. Those portions of the police statements were not put to [the civilian witnesses] or used to challenge them on inconsistencies at trial. There was certain CCTV footage that was not put to the witnesses to challenge them on their sobriety and recollection of events.

The right to a fair trial is a sacred principle in law: R v CG at para 48, and sections 7 and 11(d) of the Charter. An accused person must receive effective assistance at trial. The fairness of trial references both the reliability of verdict and fairness of the adjudicative process as presenting potential for a miscarriage of justice. Courts must quash convictions that are the result of a miscarriage of justice. An accused who is a victim is entitled at least to a new trial.

February 16

Upon invitation by Edmonton Public Schools, Mr. Oliver returns for a 3^rd year to speak with high school students about the Legal Profession at Virtual Career Day. His presentation this year is titled “Practicing Law – Challenges and Rewards”.

January 26

R v AB, Saskatchewan Court of King’s Bench, Battleford, CRM-BF-00046-2022 (publication ban in effect)

Following a 5-day trial, the Jury found our client not guilty of sexual assault, showing recognition for our client’s uncontroverted evidence regarding the significant steps taken to obtain consent to the specific sexual activity at issue, and through precise cross-examination the complainant’s credibility issues, most notably a well-established motive to fabricate non-consensual sexual activity.

Our firm’s advocacy for our client began in 2022 when we successfully applied to rescind our client’s previous election to be tried by a judge alone in favour of exercising his right to be tried by a judge and jury.

Thanks to our client’s honesty, candour and transparency, the former counsel (who had entered our client’s plea) advised the Crown before our application was heard that our client indeed had not been properly advised of his right to choose, nor had he been informed of the differences therein, between a trial by judge alone or by judge and jury.

September 8

Mr. Oliver completes 6-month pilot project for Legal Aid Alberta, focusing on meaningful consultations with the sovereign Nêhiyawak (Cree) Nations at Maskwacis, to develop a flexible and restorative framework consistent with s. 35(1) of the Constitution Act, 1982, R v Gladue, the TRC’s Calls-to-Action 30-43, Parliament’s United Nations Declaration on the Rights of Indigenous Peoples Act, articles 1-46, and Alberta’s Indigenous Justice Strategy, which collectively prioritize a culturally relevant, restorative, and holistic system of traditional (healing) justice for accused persons, offenders, complainants, victims, children, youth, families, and communities affected by intergenerational trauma. 

Mr. Oliver’s report “Finding the Sacred” can be found here.

May 2

R v AB, Alberta Court of Queen’s Bench, Edmonton, 160492138Q1 (publication ban in effect)

Our firm was retained to defend a client who had previously pleaded guilty to one count of possession of a narcotic for the purpose of trafficking (cocaine and marihuana), contrary to section 5(2) of the Controlled Drugs and Substances Act, and one count of possessing a loaded restricted firearm contrary to section 95(1) of the Criminal Code of Canada.

The Crown initially sought a penitentiary sentence of 6 years; however, after receiving our client’s sentencing materials, including a privately funded risk assessment prepared by Dr. Marc Nesca, a clinical forensic psychologist and associate professor in the Criminal Justice program at Athabasca University, the Crown changed its position and requested 5-years’ incarceration (3 years for the narcotics and 2 years consecutive for the firearm offence).

Our firm took the position that a fit and appropriate sentence in the unique circumstances of this case was a global Conditional Sentence Order of 2-years less one day, followed by a lengthy Probation Order.

Our advocacy required the making of an application under the Charter, ss. 7, 12, and 15, in which our client challenged the constitutionality of the (then) mandatory minimum sentence of 3 years’ incarceration for the weapons offence.

That application was ultimately abandoned as result of the coming into force and effect of An Act to amend the Criminal Code and the Controlled Drugs and Substances Act which repealed the impugned mandatory minimum penalty, allowing for a greater use of conditional sentences and establish diversion measures.

Mr. Oliver efficiently used that application’s research to differentiate the recent Supreme Court of Canada decisions of R v Hilbach, 2023 SCC 3 and R v Hills, 2023 SCC 2, where the Supreme Court considered whether the mandatory minimums prescribed in s. 344(1)(a)(i) and (a.1) of the Criminal Code infringe s. 12 of the Charter.

Mr. Oliver argued that, as with Sharma, which dealt with ss. 7 and 15 of the Charter, the Supreme Court expressly purported, at paras 31 and 7 respectively, to not address the coming into force and effect of An Act to amend the Criminal Code and the Controlled Drugs and Substances Act.

That integral legislation, which Mr. Oliver coins the Restorative Justice Act, shows Parliament’s refocusing and congruency with its 1996 sentencing reform embodied in Part XXIII, particularly the jurisprudence of R v Gladue (see our firm’s written argument on Gladue here).

In the sentencing decision, the judge stated:  

At the January 2023 hearing before me, [our client] amplified his actual role in the crimes to which he had pled. He testified and I accept that he was lost, had no guidance or mentorship, and was in a black place and vulnerable to poor choices in order to gain a sense of belonging provided by his new criminal friend.

As a result, [our client] basically did as he was asked by his friend. He delivered and held onto the things found in his home at the behest of his friend. He was not a mastermind, never handled the gun except to take it to his home and had nothing to do with his friend’s connections to suppliers of narcotics. Therefore, while the facts certainly support categorization of [our client] as a wholesaler, the additional context speaks to his particular moral culpability in comparison to others convicted of the same type of offence.

[Our client] is Aboriginal. His mother […] was scooped in the 60s from the Tahltan First Nation in Telegraph Creek, British Columbia. [Our client] was aware of that fact but knew nothing about his heritage as his mother, who would have otherwise been the source of that information, had disconnected from her culture and had been raised by a non-Aboriginal family.

[Our client’s] father was a black Caribbean from Grenada. [Our client] is also black. [Our client’s] mother left the family while he was in his teens and effectively, he and his siblings had to raise and fend for themselves.

[Our client] experienced considerable racial discrimination associated with his colour, which he dealt with by being a class clown and involving himself in sports. He had little mentorship and no real support or community. While football gave him purpose, inevitably, injury and life circumstances repeatedly pulled him into darkness and drug consumption. That is where he was at the age of 26 when he met and was befriended by his [co-accused].

[Dr. Marc Nesca] assessed [our client]. His findings support the notion that [our client’s] criminal behaviour was motivated by his lack of connection and community. Specifically, Dr. Nesca offered this: (as read)

[Our client’s] test results include evidence of anxiety related difficulties accompanied by a history of substance abuse and anti-social behaviour. The latter is remarkable for the absence of underlying anti-social personality traits.

In other words, despite his history of anti-social behaviour, [our client] lacks the personality traits commonly associated with persistent criminality, more specifically, his test results rule out the presence of manipulativeness, deceitfulness, grandiosity, callousness, impulsivity, and risk-taking tendencies.

The absence of these criminal propensities necessarily identify that [our client’s] anti-social behaviour as the product of sociological variables.

These are likely to include the negative influences mentioned in the character references that I reviewed. [Our client] is in a much different place today. He is fully employed and has been for a long time. He is in a stable, long-term relationship, and acts as a mentor to his partner’s son, who is now in his 20s and in a committed relationship of his own. [Our client] has, with the assistance of his sister and his mother, in the last two years met with his mother’s family and is establishing reconnection with his relatives and the First Nation community.

In the course of the proceeding, I have heard from [our client’s] relatives and representatives of the First Nation. It is plain that all welcome [our client] and his intention to obtain recognition of his status is fully supported by the First Nation.

The First Nation can accommodate [our client] if and when he chooses to visit the Nation, and the community has developed a plan to integrate [our client] into the community when he visits for however long that may be. There is also an Edmonton-based community of his First Nation which he is connecting with. He is embracing the Tahltan teachings and their code of conduct. That he is on this path with his mother and his sister is, in my view, a view I think Dr. Nesca would share, exactly the right thing to help [our client] fill that sociological void which led him to criminality.

[Our client] is a success story. He is proof that with the right supports and self-discipline one can truly, completely change one’s life. I commend him. However, the process has not been without hiccup. [Our client] lost part of a finger in an industrial accident which serious impacted his emotional well-bring. During that period, despite counselling, he struggled. Also during that period, he was often the subject of harassment by particular police officers who took it on themselves to remove [our client] from any premises which served alcohol and to generally make his life miserable.

He had a record related to drugs before the present matters, and on one occasion in early 2017 he possessed a small quantity of cocaine and a cellphone in violation of his release terms. However, he has been completely sober since and recognizing that he needed help to deal with the loss of his finger, his outstanding charges, and the police harassment, he has been receiving counselling from a psychologist. It is also worth noting that [our client] has many friends and supporters, as evidenced by the many letters of support entered into evidence before me.

This is a very unique case. While sentencing is also any individual process, there are generally features common to most offenders convicted of a particular offence. This case stands on it’s own. While possession of substantial quantities of drugs and a loaded firearm are far too common, this offender’s particular circumstances and the circumstances of his involvement are highly unusual.

[…]

In my view, the exceptional nature of this case requires a completely different, more restorative approach. Not only has [our client] completely turned his life around, that change is longstanding. One can be confident that he will continue to be an upstanding member of the community.

Additionally, the evidence before me completely supports the conclusion that [our client] probably would not be before me on these charges had he not be deprived of the society of this mother and his community, both of which were the result of the infamous Sixties Scoop. The fact that [our client] is black further amplifies the impact of his lost connections. He was racially victimized and has had no healthy way to deal with that fact. He had no supports to call upon.

All of that, in my view, sets this case fundamentally apart from others of a similar ilk. [Our client’s] story is extraordinary.

Finally, and incredibly, [our client] has lived under the threat of this court for seven years. For seven years he has lived under a significant restriction. He had to report periodically to police for the first years of his release, he could not have a cellphone, he could not consume alcohol, he has had to report to a bail supervisor throughout and secure person’s consent to his place of residence. By January 2019 he had decided to plead guilty, which he promptly did. He accepted his responsibility and has not once resiled from having done so. […]

I recognize starting points and the abhorrence society has to drug trafficking and the harm it causes. I recognize that gun violence is particularly frightening and it does not happen without firearms and bullets. It is true as well that drug-related gun violence is far too commonplace, however, the circumstances of this particular case require one to look beyond jail. There are other measures which meet the goals of section 718.2 of the Code and the directions of the Supreme Court of Canada and would, in my view, satisfy society’s needs to denounce the criminal behaviour in which [our client] engaged. 

In my view, the conditional sentence and probation proposed by counsel on behalf of [our client] are fit and appropriate and a proper sentence to [our client].

February 17, 2023

Anthony presents Indigenous Justice: Paths to Reconciliation at the Edmonton Public School Board’s annual Career Day.

February 10, 2023

Anthony invited to speak with University of Alberta law students about his multijural practice of law.

January 20, 2023

Anthony presents Indigenous Justice: Paths to Reconciliation at the Alberta Criminal Justice Association’s Webinar Series

January 2, 2023

Anthony speaks with Global’s Chris Chacon about the community interests in the City of Edmonton’s Exhibition Lands Redevelopment Project.

November 24, 2022

Anthony invited by the Alberta Restorative Justice Association to co-present with the Honourable Leonard (Tony) Mandamin at its nationally attended conference on Indigenous Justice: Paths to Reconciliation, highlighting recent community-led initiatives in self-government, criminal law, and child and family services.

October 26, 2022

Anthony invited by Western Cree Tribal Council to present its Child, Youth and Family Enhancement program at its Annual General Meeting for members of Sturgeon Lake Cree Nation, Duncan’s First Nation and Horse Lake Nation.

October 24, 2022

Anthony invited by the Office of the Child Youth Advocate to co-present with Brittiany Sunshine, Director of Child and Family Services for Western Cree Tribal Council, at its nationally attended conference on Practicing Kiskinohamakewin, and how service providers can use Cree relationship mapping to restore the sacred roles and responsibilities associated with good child raising.

June 11, 2022

Anthony lends his voice to the 2022 Lawyers’ Play in support of local theatre companies Concrete and Shadow, both hit hard by the pandemic. 

Click here to watch Anthony and his colleagues performing multiple roles in Joe Landry’s The 39 Steps: A Live Radio Play, directed by Edmonton’s own Reed McColm!

May 27, 2022

Anthony and Irene Morin hosts the Alberta Courts’ 4th annual Indigenous Legal Career Day live from Enoch Cree Nation (Treaty 6).

April 22, 2022

Oliver Litigation successfully defends appeal of MM v Alberta, 2021 ABPC 317, which granted Western Cree Tribal Council, the indigenous governing body for the affected First Nation, intervenor status in a private guardianship application involving children who were disconnected from their First Nation.

Justice J.T. Henderson, in declining to hear the appeal, reaffirmed the interlocutory decision of Judge J. Lloyd, and awarded costs to Western Cree Tribal Council for having to defend the appeal.

February 18, 2022

Return invitation by Edmonton Public Schools for Anthony to speak with high schools students about the Legal Profession at Virtual Career Day.

February 2, 2022

R v AB, Alberta Provincial Court, Edmonton Criminal Division

Two counts of assault with a weapon withdrawn following our client’s completion of programs and counselling, focused on family reunification.

December 13, 2021

MM v Alberta (Child, Youth and Family Enhancement Act, Director), 2021 ABPC 317: child welfare decision of Judge J.C. Lloyd on the law of intervenor status for First Nations in private guardianship applications. The Court writes:

[37]   The obvious conclusion is that where the children are members of a band, the band will be permitted to participate in private guardianship proceedings if it wants to, unless there is a compelling reason to deny that permission. 

          […]

[39]   It is my direction that the Nation is given leave to participate further in these proceedings, and in particular, the band can participate in the trial of this matter and in any further interim hearings or proceedings that might be scheduled in advance of the trial. The Nation is permitted to call two witnesses at the trial […] and the Nation may file affidavits sworn by these two witnesses if it wishes. The Nation is entitled to cross examine witnesses and is permitted to make oral and written argument before the court. 

First Nations, in this case Sturgeon Lake Cree Nation (Treaty 8), are presumptively invited to benefit the Court with the perspective, views, and evidence of the child’s community.

December 7, 2021

Western Cree Tribal Council v SG et al, 2021 ABQB 967, rev’g Western Cree Tribal Council, Child, Youth and Family Enhancement v SG et al (10 February 2021), Grande Prairie CP021000555 (ABPC): unprecedented child welfare decision of Justice D.L. Shelley on Breach of Supervision Orders as least intrusive procedure that reduces court delay and focuses parents on remedying intervention concerns to enable reunification with children.

July 8, 2021 

R v Poucette, 2021 ABPC 192: Gladue sentencing decision of Judge A. Brown on cross-border travel considerations for members of Nakota First Nations in Canada and the United States, and application of Nakota teachings and remedial programs to reduce recidivism and promote healing for affected persons and communities.

December 11, 2017

R v Cardinal, 2017 ABPC 309: Anthony represents Provincial Crown in trial decision of Judge J. Sihra that demonstrates context driven, fulsome application of WD to asses credibility of witnesses in a case of domestic violence.

November 14, 2017

R v Norris & Norris, 2017 ABPC 282: Anthony represents Provincial Crown in trial decision of Judge D.R. Shynkar who refines jurisprudence showing why and how medical evidence is unnecessary to establish bodily harm.

November 7, 2017

R v Sydorko, 2017 ABPC 269: Anthony represents Provincial Crown in sentencing decision of Judge J. Sihra who surveys the law of aggravating factors in a case of reckless driving that did not cause physical injuries but jeopardized the lives of police officers and members of the public, resulting in community harm and emotional trauma to police and civilian victims.

November 6, 2017

Anthony represents Provincial Crown and Sturgeon Lake Cree Nation in summary conviction appeal decision of R v Papastesis (6 November 2017) Grande Prairie 160984423S1 (ABQB), rev’g R v Papastesis (6 July 2017) Grande Prairie 160984423P1 (ABPC).

Assistant Chief Justice K.G. Nielsen overturned the lower court decision and endorsed the Trespass and Residency prosecution program developed by Sturgeon Lake Cree Nation and Anthony in his capacity as Crown Counsel with the participation and support Valleyview Detachment Commander Carolin Respet.

Important to the self-determination of the First Nations in their relationship with Alberta Courts and those who found guilty of violating First Nations’ Trespass and Residency laws, ACJ Nielsen endorsed Anthony’s position that fine monies ordered by the Provincial Court as a form of sanction must be paid to the First Nation.

Note: This program can be prosecuted by self-governing First Nations as opposed to the Crown.

Oliver Litigation can assist with developing this program including the use of cultural sanctions for communities.

September 1, 2017

R v Fournier, 2017 ABQB 533, aff’d 2019 ABCA 265: Anthony represents Provincial Crown in summary conviction appeal decision of Justice J. Ross who upholds the lower court’s rejection of the defendant’s claim that the police must prove safety risks on an objective and subjective standard before performing safety searches aka pat-downs or frisk searches.

August 28, 2017

R v SB, Fox Creek Provincial Court docket no. 160218871P1 (J. Sihra, PCJ): Anthony facilitates sentencing circle in home invasion case using procedure endorsed by the Court in R v PD (see March 7, 2017, entry below). Judge Sihra accepted the joint submission for a Conditional Sentence Order.

March 7, 2017

Anthony facilitates sentencing circle in R v PD, Grande Prairie 150449247P1, Wheatley, PCJ (ABPC), a domestic aggravated assault case, using a procedure that relies on Cree teachings and appellate authority.

Former Edmonton Assistant Chief Judge James (Jim) Wheatley, after hearing about the procedure and subsequent outcome (reconciliation within and between immediate and extended family), accepted the joint submission for a Community Sentence Order of 2 year less 1 day, followed by 3 years’ probation.

Circle Procedure 

Overview:

• Relevant factors to consider before using this procedure includes 1) the Offender and the Victim’s agreement to participate following careful review of this procedure, 2) the availability for balanced representation of the Victim and the Offender including their support network (family, friends, Victim Service worker), and the Community (probation, police, community leaders, etc). Nb. The sentencing judge is not excluded but their participation is not required unless s/he wishes to facilitate the circles with agreement that doing so may create a conflict that May require their recusal from deciding the sentence should dispute arise.

• Guilty plea entered and Agreed Statement of Facts (ASF) must be filed before this procedure occurs. The Court should be advised that a sentencing circle may be held prior to sentencing.

• Facilitator explains grounds rules to attendees (without prejudice, one person speaks at a time without exception, respect for the views of others, as many breaks as needed, consensus required for joint position on terms of CSO/probation); parties must agree to abide by these conditions before the circles begin, and agree to leave the room should they fail to abide. 

Circles:  

• Circle 1: Circle begins with Victim, ends with Offender. Each person introduces her/himself and explains his/her relationship to the Offender (break taken);
• Circle 2: If applicable, each person shares their positive experiences with the Offender prior to the offence (break taken) (nb. this portion should focus on humanizing the offender without diminishing trauma to the victim and family resulting from the offence);
• Circle 3: ASF and Exhibits read aloud by facilitator as means of establishing the specific injuries (aggravating factors);
• Circle 4: Each person shares her/his recall of the offences and consequent trauma/injuries (break taken); 
• Circle 5: Offender goes person-to-person ending with the Victim explaining in his/her own words how his/her actions impacted each party and the community (break taken); 
• Circle 6: Starting with the Victim, each person shares his/her views on appropriate sanctions; 
• Conclusion: Offender responds to these views as a whole (this is intended to confirm the offenders buy-in and participation in her/his own sentencing); and, consensus (not required but desirable) is formed on terms of Community Sentence Order or Probation and duration, restitution (consensus outcomes/terms are signed by parties with disputed terms noted by the facilitator for reference by counsel at sentencing hearing)
• Parties must be reminded that the sentencing judge is not bound to the outcome/terms agreed by the parties but that R v Anthony-Cook, 2016 SCC 43 makes it mandatory for the Court to follow a joint proposal on sentence unless the administration of justice would be brought into disrepute. 

Reporting to Court at Sentencing:  

• Start with providing the case of R v BL, 2002 ABCA 44, a memorandum of judgment by a panel of three (Mr Justice Sulatycky, Mdm Justice Conrad, Mdm Justice McFadyen concurring in result), to assist the Court’s consideration of fitness and compliance with CC ss 718 to 718.3 of the proposed sentence.
• First, explain the degree of responsibility the Offender took during the circles for the offence and the background factors that contributed to the offence.
• Second, the perspective of the Victim and the community as it relates to the harm done and appropriate sanctions going forward.
• Third, argument on whether, based in circles outcomes, imprisonment would effectively serve to deter or denounce the crime in a manner that would be significant to the Offender, the Victim and the Community, or whether crime prevention and other goals under 718-718.2 would be better achieved through a sentence focused on rehabilitation with terms of CSO or probation explained to the Court.

Nb. Using this one day procedure saved judicial resources (one week trial), and created a best possible outcome for the victim, the offender, and the community (promoting lasting healing for all parties, which reduces the risk of recidivism and negative outcomes for the complainant)

R v Williams, 2016 ABQB 327, rev’g 2015 ABPC 221: Anthony represents Provincial Crown in unprecedented ruling of Justice P.B. Michalyshyn who confirms that flight from police is a general intent offence that does not require proof of motive to evade.

R v Lofstrom, 2016 ABPC 197, aff’d 2018 ABCA 5: Anthony represents Provincial Crown in trial decision of Judge R.S. Saccomani that strengthens the law of breaching contact conditions in high-conflict domestics.

Judicial Clerkship at the Federal Court of Canada for the Honourable Leonard (Tony) Mandamin, IPC, where his work centred on the Alderville litigation, a longstanding dispute about the making, terms, interpretation and implementation of the 1923 Williams Treaties.

The action was filed in 1992 by the seven Williams Treaties First Nations and went to trial in 2012.

Anthony participated in the trial during a critical phase where historical evidence required modern interpretation and the Court’s balancing of procedural fairness with purposive interpretation consistent with s. 35(1) of the Canada Act 1982.

The Court’s handling of this litigation guided the parties, including the Defendants’ Northern Affairs Canada and the Province of Ontario, and the Plaintiff Williams Treaties First Nations, to reach an out-of-court settlement in 2018, the terms of which included:

– Financial compensation of $1.11 billion ($666 million by Canada and $444 million by Ontario).

-An entitlement for each First Nation to add up to 11,000 acres of land to their reserve land base subject to Canada’s Additions to Reserve/Reserve Creation policy. The First Nations are responsible for acquiring these lands.

-Recognition of the First Nations’ continuing treaty harvesting rights and a commitment to continue to work together to implement these rights.

-A commitment by Canada and Ontario to provide an oral and written statement of apology to the Williams Treaties First Nations.

Achieved through partnership and dialogue, the settlement advances reconciliation and resolves outstanding issues in a way that respects the rights and interests of the seven Williams Treaties First Nations and all Canadians.

Student-at-Law

July 15, 2014

R v Micks, 2014 ABPC 140: Anthony provides written submissions on behalf of Provincial Crown resulting in survey decision by Judge M.G. Allen on justification for use of force by police when dealing with assaultive subjects.