Arnouse v. August-Sjodin

2020 BCSC 983 Arnouse v. August-Sjodin

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Arnouse v. August-Sjodin, 2020 BCSC 983 Date: 20200630 Docket: S140640 Registry: Vancouver Between: Felix Bevar Arnouse for himself and for and on behalf of the Little Shuswap Lake Indian Band and the Little Shuswap Lake Indian Band Petitioners And Peter Allan August-Sjodin, also known as ":SP17UW-SQALEMC" and the same :SP17UW-SQALEMC, and also known as Peter Braun, Rain-Maker Penner August-Sjodin, Jonah-Raven Penner August-Sjodin, :SP17UW-SQALEMC: Sewepemc Tribal People, Whea-Hey-Ukt-Chuk, Nuu-Cha-Nulth People, Michael Dean Fraser, also known as "Whea-Hey-Ukt-Chuk" and the same Whea-Hey-Ukt-Chuk, the Registrar of the Personal Property Registry and the Attorney General for Canada representing Her Majesty the Queen in Right of Canada Respondents - and - Docket: S52560 Registry: Kamloops Between: Little Shuswap Lake Indian Band Plaintiff And Peter Allan August-Sjodin Defendant Before: The Honourable Madam Justice Donegan Oral Reasons for Sentence Counsel for the Petitioners (appearing by teleconference): A.M. Grant R. McLennan Appearing on his own behalf (by teleconference): P.A. August-Sjodin Place and Date of Hearing: Kamloops, B.C. June 11, 2020 Place and Date of Judgment: Kamloops, B.C. June 30, 2020 Introduction [1] These Reasons for Sentence pertain to two proceedings and should be read in conjunction with my Reasons for

Judgment given in Little Shuswap Lake Indian Band v. August-Sjodin, 2020 BCSC 607 (the "Restraining Order Proceeding") and Arnouse v. August-Sjodin, 2020 BCSC 609 (the "PPSA Proceeding"). [2] In the Restraining Order Proceeding, I found Mr. August-Sjodin guilty of civil contempt for breaching an order of this court on two occasions in December 2016. I ruled that the applicants had proven beyond a reasonable doubt that on July 4, 2016, Justice Hyslop ordered that Mr. August-Sjodin be restrained from entering the Quaaout Resort and Conference Centre (among other places). He had actual knowledge of this order, yet he intentionally entered the Quaaout Resort and Conference Centre on December 20 and 22, 2016 and used the pool. I found Mr. August-Sjodin had not only wilfully breached the order on both occasions, but that he did so openly and brazenly. [3] In the PPSA Proceeding, I found Mr. August-Sjodin guilty of civil contempt for breaching an order of this court on five occasions between April 2017 and October 2019. I ruled that the applicants had proven beyond a reasonable doubt that on June 5, 2014, Justice Bowden ordered that Mr. August-Sjodin be restrained from filing any further registrations in the Personal Property Security Act [PPSA] Registry without prior leave of the court. He had actual knowledge of this order, yet he intentionally filed five registrations in the PPSA

Registry on five separate occasions between April 2017 and October 2019. I found that not only did Mr. August-Sjodin file these registrations without leave of the court, but they were based upon fictitious trust indentures or other fictitious agreements and that the filings deliberately targeted those he felt had wronged him in some fashion. [4] The parties made submissions on sentence on June 11, 2020. The applicants submit that 60 to 90 days imprisonment is the appropriate global penalty. Mr. August-Sjodin, a person who maintains his own set of beliefs about the rule of law and the role of the court in society, submits that no penalty ought to be imposed and that the appropriate outcome should be a mutual "dropping of grievances" between the parties. If the court does not accede to his view, he submits that community service would be appropriate.

LEGAL PRINCIPLES [5] In Carey v. Laiken, 2015 SCC 17, Cromwell J. summarized the purpose of contempt of court as follows: [30] Contempt of court "rest[s] on the power of the court to uphold its dignity and process. The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect": United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901, at p.

931. It is well established that the purpose of a contempt order is "first and foremost a declaration that a party has acted in defiance of a court order": Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52, [2006] 2 S.C.R. 612, at para. 35, cited in Bell ExpressVu Limited Partnership v. Torroni, 2009 ONCA 85, 94 O.R. (3d) 614, at para. 20. [6] In Langford (City) v. dos Reis, 2016 BCCA 460, Donald J.A. outlined the objectives in sentencing for civil contempt as follows: [12] In my decision finding Ms. dos Reis in contempt, I confirmed the jurisdiction of this Court to exercise the power of contempt to enforce its orders based on s. 9(7) of the Court of Appeal Act, R.S.B.C. 1996, c.

77. This provision gives this Court the same powers as the Supreme Court in matters of contempt. Rule 22-8(1) of the Supreme Court Civil Rules, B.C. Reg. 168/2009, states that the power to punish contempt of court must be exercised by an order of committal or by imposition of a fine or both. [13] The objectives in sentencing for civil contempt were identified in Carey v. Laiken, 2015 SCC 17: [31] The common law has developed to recognize two forms of contempt of court: criminal contempt and civil contempt. The distinction, which the parties to this appeal accept, rests on the element of public defiance accompanying criminal contempt: see, e.g., United Nurses [United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901], at p. 931; Poje v. Attorney General for British Columbia, [1953] 1 S.C.R. 516, at p.

522. With civil contempt, where there is no element of public defiance, the matter is generally seen "primarily as coercive rather than punitive": R. J. Sharpe, Injunctions and Specific Performance (2nd ed. (loose-leaf)), at ¶ 6.100. However, one purpose of sentencing for civil contempt is punishment for breaching a court order: Chiang (Trustee of) v. Chiang, 2009 ONCA 3, 305 D.L.R. (4th) 655, at para.

117. Courts sometimes impose substantial fines to match the gravity of the contempt, to deter the contemnor's continuing conduct and to deter others from comparable conduct: Sharpe, at ¶ 6.100. [Emphasis added.] [14] In a general commentary, Mr. Justice Chiasson for this Court in Larkin v. Glase, 2009 BCCA 321, referred to authority for the view that compliance, not punishment, is the primary goal of sentencing, although deterrence is relevant to compliance: [48] A very useful discussion of the criteria applicable to sentencing for contempt of court was provided by Burnyeat J. in Transportaction Lease Systems Inc. v. Virdi, 2009 BCSC 695 [(Chambers)]. [49] Sentencing for contempt of court is not governed by the sentencing purposes and principles in s. 781 of the Criminal Code, R.S.C. 1985, c. C-46, although these criteria provide a useful backdrop. As observed by McEwan J. in British Columbia (Attorney General) v. Perry Ridge Water Users Assn. (1997), 43 B.C.L.R. (3d) 258 at 266 (S.C.), "[t]he primary objective of the civil law sanction for contempt is to secure compliance with the courts' orders rather than punishment". [50] While concern for the administration of justice is not, per se, a factor in sentencing for civil contempt (Interfor v. Simm, 2000 BCCA 500, at para. 17; Continuing Care Employers' Bargaining Association v. A.U.P.E., 2002 ABCA 148, at para. 113), deterrence

and rehabilitation are factors relevant to securing compliance with court orders. [51] In my view, deterrence is of more importance than rehabilitation, although the latter must not be ignored. Remorse is relevant to deterrence. A party who recognizes the error of disobedience and acts on it signals to society at large respect for court orders. Lack of remorse conveys the opposite message. [15] The Ontario Court of Appeal in Boily v. Carleton Condominium Corporation 145, 2014 ONCA 574, made explicit the objective of ensuring respect for court processes in this passage: [79] The purpose of a penalty for civil contempt is to enforce compliance with a court order and to ensure societal respect for the courts: Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., [1992] 2 S.C.R. 1065, at 1075. The remedy for civil contempt is designed not only to enforce the rights of a private party (See: Poje v. Attorney General (B.C.), [1953] 1 S.C.R. 516 at 517; Frontenac Ventures Corp. v. Ardoch Algonquin First Nation, 2008 ONCA 534, 91 O.R. (3d) 1, at para. 37), but also to enforce the efficacy of the process of the court itself. Justice McLachlin powerfully expressed this broader purpose in United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901 at 931, stating: [t]he rule of law is directly dependent on the ability of the courts to enforce their process and

maintain their dignity and respect. To maintain their process and respect, courts since the 12th century have exercised the power to punish for contempt of court. [7] Donald J.A. then discussed the factors relevant to a determination of the appropriate penalty for civil contempt: [16] Turning to the relevant factors in sentencing for civil contempt, they are set out compendiously by Chief Justice Green (then Chief Justice of the Trial Division) in Health Care Corp. of St. John's v. Newfoundland and Labrador Assn. of Public and Private Employees, [2001] N.J. No. 17 (Nfld. T.D.) (cited in Transportaction Lease Systems Inc. v. Virdi, 2009 BCSC 695): 1. The inherent jurisdiction of the court, as a superior court, allows for the imposition of a wide range of penalties for civil and criminal contempt; 2. Deterrence, both general and specific, but especially general deterrence, as well as denunciation, are the most important factors to be considered in the imposition of penalties for civil, as well as criminal, contempt; 3. The impact that the contemptuous act has had on the general public, particularly in relation to health and safety matters, is a relevant consideration in determining the level of penalty; 4. It is the defiance of the court order, and not the illegality of any actions which led to the granting of the court order in the first place, which must be the focus of the

contempt penalty; 5. Imprisonment is normally not an appropriate penalty for a civil contempt where there is no evidence of active public defiance (such as public declarations of contempt; obstructive picketing; and violence) and no repeated unrepentant acts of contempt; 6. Where a fine is to be imposed, the level of the fine may appropriately be graduated to reflect the degree of seriousness of the failure to comply with the court order; 7. Where the defiance of the order is related to continuance of an unlawful strike resulting in failure to report for work when normally scheduled to do so, the number of times when the contemnor was presented with a clear and visible opportunity to demonstrate his or her intention to comply with the order and does not avail of that opportunity can be used as a rough measure of the degree of defiance; 8. Because the symbolism of continuance of collective defiance in the face of the court order is often significant in encouraging continuance of the contempt by others, and conversely, the symbolism of individuals acting, in the face of group pressure, to comply with the law is also often significant in encouraging others to do likewise, those with a special visible position of leadership within the group, such as shop stewards or union officers who are also members of the unlawfully striking bargaining unit may be regarded as committing a more

serious contempt if they refuse to comply with the order, and thereby may appropriately receive a greater penalty; 9. In setting the overall level of penalty, the court may take account of the level of penalty imposed in similar cases in the past and may adjust the penalty upwards or downwards, depending on the court's assessment as to whether previous levels of penalty have had an effective general deterrent effect; 10. In ordering payment of a fine, the court may permit, by imposition of appropriate conditions, the contemnor to satisfy the fine in alternative ways, such as payment to a charity or the provision of free services to the persons harmed by the continuance of the contemptuous behaviour. [17] In Boily, the Ontario Court of Appeal clarified that factors such as ensuring the proportionality of the sentence to the wrongdoing, the presence or absence of any aggravating or mitigating circumstance, and reasonableness are to be considered in determining the appropriate sentence: para.

90. In addition, the contemnor's ability to pay is relevant to ensure the penalty is neither trivial nor unduly punitive: para. 133. [8] In addition to the above, the principles outlined in R. v. Gladue, [1999] 1 S.C.R. 688 and R. v. Ipeelee, 2012 SCC 13 are applicable in a case of civil contempt where the contemnor is an Indigenous person: Frontenac Ventures Corp. v. Ardoch Algonquin First Nation, 2008 ONCA 534 at paras. 57-59 and St.-Onge v. Conseil des Innus de Pessamit, 2019 FC 794 at paras. 88-89. In arriving at a fit and proper sentence, it is necessary for the court to consider the unique background factors that brought the offender before the court and the types of sentences that may be appropriate because of his or her Indigenous heritage or connection: R. v. Peters, 2014 BCSC 1009 at para. 22. [9] It is with these principles in mind that I approach my task in this case.

POSITIONS OF THE PARTIES [10] The applicants submit that incarceration in the range of 60 to 90 days is appropriate in this case. They emphasize a number of aggravating factors, including: Mr. August-Sjodin's repeated breaches of two court orders; his ongoing demonstrations of disdain for the justice system; his unapologetic stance; his deliberate targeting of justice system participants in the PPSA Proceeding; the harm his conduct has caused to his own community; the serious and criminal nature of his fraudulent filings in the PPSA Proceeding; and his overall lack of remorse. [11] The applicants point to several authorities where the range of sentence has been between 45 and 90 days and submit that a penalty in this range is the court's only option in this case. They submit that a fine is inappropriate as Mr. August-Sjodin is impecunious and has failed to pay an order for costs already. They also say that community service is inappropriate because the terms of Justice Hyslop's order prevent Mr. August-Sjodin from providing such type of service. More importantly, however, the applicants stress that Mr. August-Sjodin's harmful conduct toward his community over several years is what forced them to commence the Restraining Order Proceeding in order to protect other Band members, employees and customers from his conduct. Reluctantly, they submit that incarceration is the only

option to denounce and deter his contemptuous behaviour. [12] Mr. August-Sjodin made lengthy submissions. He is 44 years old and is a member of the Little Shuswap Lake Indian Band ("LSLIB"), one of the applicants. He lives in a home on land set aside for the use and benefit for the LSLIB, with one of his children (a 16-year-old daughter) and his daughter's mother. Mr. August-Sjodin has four other adult children and three grandchildren. He helps his mother and step-father with daily tasks as they are both in ill-health. [13] Mr. August-Sjodin is not currently employed. He has been unable to work as a result of back issues for the last several years. His sole source of income derives from disability benefits from the federal government in the amount of $1,800 a month. [14] Mr. August-Sjodin has his own views about society, the role of government and the role of the court. He does not believe the court has jurisdiction or authority over him. He has a number of grievances against the LSLIB and its members. He told me that his PPSA filings occurred because he decided to "stand up for my rights because my rights were being trampled". He candidly admitted that he did these things as retaliation and out of anger because he was "pushed". Mr. August-Sjodin expressed disappointment with my findings of contempt. He does not consider himself bound by this court's orders, calling other

judges "alleged" judges and their orders "alleged" orders. [15] Mr. August-Sjodin is opposed to any penalty being imposed. He submits that the appropriate outcome here is "peace" between the parties. He said that he is "willing to forgive" the applicants and if the applicants were "willing to wipe the slate clean as well", they could have peace. However, if a penalty were found to be necessary, Mr. August-Sjodin thinks community service would be appropriate. [16] Counsel for the applicants advised that since my Reasons for Judgment in the PPSA Proceeding were released, Mr. August-Sjodin sought to remove the PPSA registrations; however, by the time he did so the applicants had already sent my order for their removal to the PPSA Registry. Mr. August-Sjodin confirmed that he had done this. Unfortunately, he did so only out of misguided self-interest, not out of any desire to purge his contempt. Mr. August-Sjodin told me that he only sought to remove the liens from LSLIB property because he belatedly realized that he also owns this LSLIB property, so the liens would be harmful to his interests. [17] Mr. August-Sjodin has no remorse for any of his contemptuous conduct.

DISCUSSION [18] I agree with the remarks of Justice Davies in a similar case, Law Society of B.C. v. Dempsey, 2007 BCSC 442, where he said: [24] The Court does not wish to incarcerate individuals for breaches of its orders. The power to punish for contempt is a power which must be used most sparingly. Every opportunity must be given in appropriate circumstances for individuals who are found in contempt of court to purge that contempt. Penalties short of incarceration must always be considered. [19] Like Justice Davies, I am also faced with an individual who, regardless of any order I may make or sentence I may impose, will not recognize it as being an order made with jurisdiction over him. [20] In consideration of all of the factors in this case, I am satisfied that incarceration is the only penalty that would adequately reflect the gravity of the offences, the repetitive and flagrant nature of Mr. August-Sjodin's contemptuous conduct and that would adequately demonstrate to him and others that deliberate disobedience of court orders out of a sense of entitlement (the Restraining Order Proceeding) or for retaliation (the PPSA Proceeding) is unacceptable conduct. No other sanction other than imprisonment could hope to ensure Mr. August-Sjodin's compliance with court orders in the future. [21] I am satisfied that a fine or community work service would not meet the objectives and

principles of sentencing. Mr. August-Sjodin has no ability to pay a fine. Even if he did, I have no confidence that he would comply with any order to pay. He has an outstanding judgment for costs from the PPSA Proceeding that he has not paid for over five years. Community work service is not an option in light of the permanent restraining order in place. Even if the restraining order were not in place, it would be inappropriate. Mr. August-Sjodin suggested community work service as part of his notion for "peace". This fundamentally misconstrues the nature of contempt of court. In any event, I am of the view that if there is to be any type of reconciliation between him and his community, Mr. August-Sjodin would first have to recognize the harm his contemptuous conduct has caused. Given everything he has said and done, this seems unlikely. [22] Mr. August-Sjodin's contemptuous conduct in both proceedings has caused harm not only to the applicants, but to the LSLIB community at large. [23] Mr. August-Sjodin intentionally targeted members of the LSLIB, as well as its counsel and two judges who made orders against him with his PPSA registrations. That these registrations were based on fictitious trust indentures and fictitious agreements is all the more aggravating. That he openly admits that he filed these registrations as retaliation further adds to the aggravating nature of his

contemptuous conduct in the PPSA Proceeding. [24] The fictitious claims of security interests in the PPSA Proceeding came to light when the LSLIB tried to return leased vehicles at the end of their leasing period last year. The liens prevented their return, resulting in the LSLIB incurring additional leasing costs. When counsel for the LSLIB rightly sought removal of them, Mr. August-Sjodin retaliated by filing yet another fictitious claim of a security interest against counsel. [25] In both proceedings, Mr. August-Sjodin's contemptuous conduct has caused ongoing harm to not only the Chief and Council, administrative staff and employees, it has caused harm to all members of the LSLIB community. Mr. August-Sjodin's conduct has forced the LSLIB to spend resources, in both time and money, dealing with all of this, diverting valuable resources that could have been used to help the community. Unfortunately, Mr. August-Sjodin's attitude towards the harm he causes his own community has not changed since Justice Hyslop observed that Mr. August-Sjodin "does not care what damages he causes his Band": Little Shuswap Lake Indian Band v. August-Sjodin, 2016 BCSC 1214 at para. 44. [26] Mr. August-Sjodin has displayed disdain for the court and repeated disobedience of two of its orders. His contemptuous actions in both proceedings were deliberate and extremely serious. He is not apologetic

and has not expressed remorse for his contempt in either proceeding. His last-minute efforts to remove the PPSA registrations was not an attempt to purge his contempt or demonstrate any remorse. It was done out of self-interest. [27] I have considered the principles articulated by the Court in Gladue and Ipeelee. I agree with the position taken by the applicants that the case at bar is far different than cases where these principles were given prominence. This is not a case like St.-Onge, where the Chief and Council were found in contempt for not calling elections as required by court order. There, the contemnors acknowledged their failure to follow the court order and expressed their regret. The Court found that their conduct was motivated by a desire to further the cause of the Band's self-governance. In these circumstances, Justice LaFreniere imposed fines instead of incarceration. He did so noting that this was the contemnors' first offence, their remorse and their belief that they were acting in their community's best interest. The Court also noted the contemnors' efforts to rectify the Council's financial situation and improve the economic development of their community at large. [28] Nor is this a case like Frontenac. There, a private mining company decided to conduct exploratory drilling on certain lands which were subject to an Algonquin land claim, a claim that had

been accepted for negotiation by the federal and provincial governments and in which negotiations had been ongoing for years. The Ardoch Algonquin First Nation (the "AAFN") and its leaders engaged in a peaceful protest and blockade which prevented drilling on that land. An interim injunction was granted and the blockade continued. The AAFN and its leaders were found in civil contempt of court. Two of these leaders, one a former Chief and chief negotiator and the other a current co-Chief and professor, were each sentenced to six months imprisonment and substantial fines. These sentences were overturned on appeal as far too harsh in the circumstances. [29] Writing for the Court, MacPherson J.A. found that although Gladue was focussed primarily on the serious problem of excessive incarceration of Indigenous peoples, the case more broadly "draws attention to the state of the justice system's engagement with Canada's First Nations": para.

57. The Court highlighted three facts emphasized in Gladue: "the estrangement of aboriginal peoples from the Canadian justice system, the impact of years of dislocation, and whether imprisonment would be meaningful to the community of which the offender is a member": para. 57, and concluded that all three factors were at stake in the case. [30] MacPherson J.A. identified the unique systemic or background factors that brought the contemnors to be sentenced as the following: 1. The basis for the blockade: There was an existing land claim negotiation between the Algonquin Nation and Ontario, requiring consultation and accommodation: para. 60; and 2. The nature and content of Ontario's Mining Act: Calling it "remarkably sweeping law", the Court found that nothing in the Act considered Aboriginal land claims or interests and the contemnors' response to the mining companies' exploration was grounded in a "respectable interpretation" of s. 35 of the Constitution Act: para. 61. [31] The Court held that the intersection of these two background circumstances was the genesis of the problem at the heart of the case and that the court below should have found the difficult legal context, the contemnors' character and their actual conduct as significantly mitigating. The Court concluded that the circumstances of the offences and the circumstances of those particular offenders, in light of

Gladue principles, were such that imprisonment was inappropriate: para. 62. [32] The case at bar is far different. Mr. August-Sjodin is not seeking to further the cause of the LSLIB's self-governance. He is not involved in a blockade or protest trying to protect or advance the LSLIB's land claims or interests. Instead, his actions are based on his own views of society and the rule of law. As the applicants submit, his actions are to the contrary. They assert, and I find, that his contemptuous actions have harmed "the effective governance of the Band, to impair its use of its resources and to detract from the Band's council's ability to advance the community's interests": paragraph 28 of the applicant's written submissions. It is Mr. August-Sjodin's own community that seeks incarceration as the only meaningful sanction. [33] As I alluded to earlier, Mr. August-Sjodin's position on this matter misunderstands the nature of contempt. In this regard, I repeat the words of Cromwell J. in Carey: [30] Contempt of court "rest[s] on the power of the court to uphold its dignity and process. The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect": United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901, at p.

931. It is well established that the purpose of a contempt order is "first and foremost a declaration that a party has acted in defiance of a court order": Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52, [2006] 2 S.C.R. 612, at para. 35, cited in Bell ExpressVu Limited Partnership v. Torroni, 2009 ONCA 85, 94 O.R. (3d) 614, at para. 20. [Emphasis added.] [34] Mr. August-Sjodin's contemptuous conduct has been a repeated affront to the authority of the court and the administration of justice. It has been repeatedly detrimental to the interests of his own community. He has demonstrated repeated contempt of orders of this court and of the very court itself. In such circumstances, I must conclude that incarceration is the only appropriate sentence that meaningfully and adequately addresses the need for denunciation and deterrence and that considers all of the aggravating factors in this case. [35] In light of all of the foregoing, I find a proportional sentence for the two findings of contempt in the Restraining Order Proceeding is 15 days incarceration. I find a proportional sentence for the five findings of contempt in the PPSA Proceeding is 45 days incarceration. These are to be served consecutively, for a total period of 60 days. [36] I should add that I have considered the possibility of a conditional sentence to allow Mr. August-Sjodin to serve this custodial sentence in his

home. In light of the circumstances of this case and all of the aggravating factors I have outlined, I find that such a sentence would not adequately address the principles of denunciation and general and special deterrence. [37] Mr. August-Sjodin is sentenced to 60 days incarceration. He is ordered to commence serving this sentence at 4:00 p.m. on July 3, 2020 at the Kamloops Regional Correctional Centre in Kamloops, British Columbia. He is ordered to arrive at Kamloops Regional Correctional Centre on time and in a sober condition, without any alcohol, intoxicating substance or drugs in his body except with a medical prescription. [38] For the same reasons I awarded the applicants special costs in the liability phase of these applications, I award the applicants special costs, to be assessed, of this sentencing hearing as well. "S.A. Donegan J." DONEGAN J.