Welcome to “Cases That Should Have Gone to the Supreme Court of Canada, But Didn’t!”
In this episode, Kyla Lee from Acumen Law Corporation discusses the case of Angela Davidson, an Indigenous woman and former deputy leader of the Green Party, who was arrested twelve times during protests against development projects in British Columbia. After pleading guilty to breaching court orders, Davidson argued that her actions as a land defender should be viewed through the lens of her Indigenous identity—and that her obligation to the land should mitigate her sentence. The court disagreed. Leave to appeal to the Supreme Court of Canada was denied, leaving unresolved how Indigenous legal perspectives and obligations to land should be treated in sentencing.
Key Points Discussed
– Angela Davidson, an Indigenous protester, was arrested repeatedly for breaching injunctions against protesting near development sites.
– She pled guilty and argued at sentencing that her actions were rooted in Indigenous law and her obligation to protect the land.
– The sentencing judge rejected this argument, and the decision was upheld on appeal.
– The Supreme Court of Canada declined to hear the case.
Why This Case Matters
Canada’s justice system has made commitments to truth and reconciliation, including through the Truth and Reconciliation Commission’s Calls to Action. Courts are being urged to integrate Indigenous perspectives—not only at sentencing, but throughout the legal process.
This case raised the fundamental question: when Indigenous people act in accordance with their traditional laws and responsibilities but in defiance of Canadian law, how should courts reconcile that tension? Should Indigenous law and worldviews mitigate punishment in these contexts?
Missed Opportunity for a National Standard
The Supreme Court could have used this case to create a national framework for incorporating Indigenous perspectives into sentencing in protest-related cases. This would have helped courts:
– Recognize the role of traditional Indigenous obligations in protest conduct
– Distinguish these cases from other criminal contempt or mischief matters
– Go beyond the Gladue framework to address Indigenous legal orders and land-based responsibilities
– Provide clear guidance for reconciling common law with Indigenous law during sentencing
Need for Clarity and Accountability
As resource extraction and development projects continue across Canada, more Indigenous land defenders are being brought before the courts. Without guidance from the Supreme Court, trial judges are left without a roadmap for how to meaningfully incorporate Indigenous perspectives in these cases.
Reconciliation requires more than acknowledgment—it requires systemic legal adaptation. This case presented a powerful opportunity for the courts to move toward that goal.
Topics Covered
– Indigenous protest and civil disobedience
– Sentencing and the role of Indigenous legal traditions
– Reconciliation in the Canadian justice system
– The limits of the Gladue framework
– Resource development and Indigenous resistance
