‘Tsunami’ of Indigenous identity fraud cases heading to courts, warns B.C. judge

OTTAWA — A British Columbia judge is warning that what he calls a “tsunami” of Indigenous identity fraud cases is coming to Canadian courts. 

Provincial Court Judge David Patterson says it’s driven by the “desire” of non-Indigenous people to access what they deem to be benefits of identifying as Indigenous.

He said in a recent ruling that judges must be “alive to the issue” and require proof that ensures an offender is entitled to be sentenced as an Indigenous person. 

A set of guidelines known as Gladue factors requires courts to consider an Indigenous person’s background during sentencing. 

Those principles could include family trauma, poverty and whether being separated from their culture could have contributed to their offence. 

In this case, pastor Nathan Allen Joseph Legault was convicted on charges related to child pornography. 

The crimes revolved around communication with two minors he met while serving as a youth camp director and as a pastoral intern in Saskatchewan and Windsor, Ont.

Patterson found in the ruling that Legault provided questionable and inadequate claims to Métis identity based on “family lore” that his great-great-grandmother was Indigenous. 

Legault argued that he understood himself to be Métis because his ancestor was part of the Haudenosaunee Confederacy.

Patterson said in the ruling that the self-identification from Legault meant Gladue factors should be considered.

The factors are named after a 1999 Supreme Court of Canada decision in R. v. Gladue. The top court reaffirmed the principles in 2012 in another case, R. v. Ipeelee, which said that the failure to consider them is a legal error.

In his ruling, Patterson stressed that it would not be appropriate for a sentencing judge or counsel to determine whether or not someone has Indigenous ancestry. 

But he nonetheless decided that Legault did not meet the criteria for the Gladue factors to apply in his case, stating his family history did not “negatively” affect him in a way that would be legally meaningful. 

“Simply put, there is nothing to equate Mr. Legault’s life experience with that of the Métis people specifically or Indigenous Peoples in Canada generally,” he wrote.

“I am of the view that the only way to give meaning to the Supreme Court of Canada’s teaching in Gladue and Ipeelee is for judges to be alive to the issue of Indigenous identity fraud and require some proof that satisfies the court that the person being sentenced is entitled to be sentenced as an Indigenous person.”

Patterson cited the Gladue report prepared for Legault’s case, which argued that “Métis is the most controversial and ethnically diverse” Indigenous identity in Canada.

It went on: “While the Métis as a people have been recognized by the Canadian government as separate from the Inuit and First Nations peoples, the definition of Métis, and thus who is and who is not Métis remains a source of often contention.”

Métis, generally, are defined as a distinct Indigenous group whose homelands originate with the Red River in Manitoba. 

Scholars including author Chelsea Vowel have described the group as having been born of mixed European and Indigenous ancestry and having formed a distinct, new culture by the mid-18th century. 

Critics have raised concerns about people who label themselves as Métis if they simply have a distant Indigenous ancestor and no present community connections. 

In his ruling, the judge cited the case of author Joseph Boyden, who held the same Ontario Woodlands Métis Tribe membership card that Legault procured.

Patterson quoted from a University of Saskatchewan report that Métis lawyer Jean Teillet wrote on the subject. 

“Fraudsters often claim membership in an Indigenous organization as proof of their Indigenous identity,” Teillet said in the report. 

“This is not what Indigenous people mean when they refer to community.”

Nipissing First Nation Chief Scott McLeod says Indigenous self-identification has become problematic in all aspects of public life. 

McLeod has been an outspoken voice in the Assembly of First Nation’s opposition to Métis self-government legislation making its way through Parliament.

“We have a judge that is now being conscientious about how to apply that rule, and being critical of it,” he said, referring to self-identification. 

“And he’s rightfully blowing the warning signal that this isn’t right, and it’s only going to get worse.”

People who aren’t Indigenous or only have distant Indigenous ancestry don’t understand the “harsh reality” of having that identity in Canada, said McLeod.

Yet now that “the sun is shining a little bit” on reconciliation — and more Canadians are becoming aware of the “true history and treatment of Indigenous Peoples” — some of those same people are now looking to cash in.

“We have people trying to take advantage of it,” McLeod asserted.

A report last year from Canada’s corrections watchdog found 32 per cent of all federal inmates in Canada — and 50 per cent of incarcerated women — are now Indigenous, compared to 25 per cent in 2013.

The report described the country’s penitentiary system as “disturbingly and unconscionably Indigenized,” and said it features many lingering hallmarks of colonialism.

McLeod said that as more false claims of Indigenous identity are used in the court system, actual Indigenous offenders may face the consequences.

“It’s going to make it that much harder for people who actually should be given the leniency of the Gladue application in the decision-making in court.” 

This report by The Canadian Press was first published March. 15, 2024.

Alessia Passafiume, The Canadian Press