HIS MAJESTY THE KING - v. -, 2023 SKKB 67

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 67 Date: 20 23 03 30 Docket: CRM-YT-00011-2022 Judicial Centre: Yorkton BETWEEN: HIS MAJESTY THE KING - and - NERISSA QUEWEZANCE and ODELIA QUEWEZANCE CORRECTED JUDGMENT: The text of the original judgment has been changed per the corrigendums released March 30, 2023 and April 12, 2023. (A copy of the corrigendums is appended to this corrected judgment.) Counsel: Kelly L. Kaip for the Crown Deanna P. Harris, James Lockyer and Jerome Kennedy, K.C. for the accused REASONS FOR ORAL DECISION DATED MARCH 27, 2023 LAYH J.

WRITTEN REASONS: March 30, 202 3 Outline PARAS. 1. Procedural Background.......................................................................................... 1 2. The Mechanics of Ministerial Review and Applications for Release.............. 6 3. Observations from Phillion and Subsequent Decisions..................................... 14 4. The Issues................................................................................................................. 22 5. Analysis.................................................................................................................... 24 (

a) Nuanced

Interpretation of ss. 679(3) in Release Applications Pending Ministerial Review

......................................................................................................... 24 (

b) Is the Quewezance Sisters’ Application to the Minister “Frivolous”?................................................................................................ 27 (

c) Will the Quewezance Sisters Surrender into Custody?......................... 32 (

i) The Quewezance Sisters’ Parole History..................................... 32 (ii) Are the Quewezance Sisters a Flight Risk?................................. 40 (

d) Is the Quewezance Sisters’ Detention Necessary in the Public Interest.......................................................................................................... 49 (

i) The Decision in R v Oland............................................................. 49 (ii) Applying Oland in Applications for Release Pending Ministerial Review.......................................................................... 53 (iii) Strength of the Quewezance Sisters’ Application ..................... 58 (iv) Gladue Factors................................................................................ 72 6. Conclusion and Conditions of Release................................................................ 79 1.

Procedural Background [ 1 ] Sisters, Odelia Quewezance and Nerissa Quewezance, seek interim release pending the conclusion of the ministerial review of their now nearly 30 year old convictions.

Background facts respecting their original convictions for the second- degree murder of Joseph Dolff in 1993, their life sentence with parole eligibility in 10 years and their application in December 2021 for ministerial review of their convictions under s. 696.1 of the Criminal Code , RSC 1985, c C-46 can be found in my decision in R v Quewezance , 2022 SKKB 260 [ Quewezance 2022 ]. [ 2 ] Quewezance 2022 was in response to the Crown’s application on November 25, 2022, when it sought a publication ban respecting the pending release proceedings, an application opposed by the Quewezance sisters as well as certain media outlets.

In Quewezance 2022 I refused the Crown’s application and set the release hearing for January 18, 2023. [ 3 ] At the release hearing I found that counsel for the Quewezance sisters had not prepared a release plan other than stating proposed places of residence and rather broad offerings from various agencies that would support the sisters upon their release. A similar situation faced Justice Lanchbery of the Manitoba Court of King’s Bench in an application for release pending ministerial review in R v Sanderson (24 October 2018) Winnipeg, CR96-01-18105 (Man QB) [ Sanderson ]. Mr.

Sanderson, represented by the same counsel as the Quewezance sisters, had not prepared “a satisfactory bail plan,” occasioning Justice Lanchbery to state that he “was not prepared to proceed with the application as it would have the effect of bifurcating the hearing to a question of detention and then a review of the bail plan.” I, too, was unprepared to bifurcate the hearing. I asked defence counsel to present to the court a detailed plan of release, to be spoken to on February 23, 2023.

In part, I wrote: [4] I see no inconsistency in the Court’s expectation of specific, concrete, accountable, measurable conditions to their release that satisfy public safety and public interest, but more importantly their own personal interests. If, as defence counsel argues, the sisters have experienced the trauma of institutionalization for nearly 30 years, then for their own benefit they should have a structured plan, a set of goals, for their own recovery and benefit. Release without concrete plans for engagement in the community or the workforce neither favour the Quewezance sisters nor protect the public.

[ 4 ] My sentiments paralleled those expressed by Justice Watt in the seminal decision of R v Phillion, [2003] OJ No 3422 (QL) (Ont Sup Ct) [ Phillion ] where he wrote: 119…it would be unfair, in my mind unthinkable, to simply turn loose and leave to his own devices in the community a person who has been in prison for over three decades. Strict control and supervision, at least as I see it, are essential. [ 5 ] On February 23, 2023, defence counsel presented a more detailed release plan. Crown counsel responded, suggesting that the release plan was deficient in several respects.

Furthermore, the Crown remains opposed to any release. 2. The Mechanics of Ministerial Review and Applications for Release [ 6 ] As explained in Quewezance 2022 , the Criminal Code provides a specific role to the Minister of Justice [Minister] to review alleged miscarriages of justice, a role not to be confused or conflated with the role of the court.

Section 696.1(1) provides rights to persons who maintain they have been subject to a miscarriage of justice respecting an offence for which they have been convicted and after they have exhausted all appeals. [ 7 ] Pursuant to ss. 696.1(2), on December 21, 2021, the Quewezance sisters applied to the Minister for a review of their conviction.

After a “Preliminary Investigation,” the Minister replied on June 2, 2022, stating that “there may be a reasonable basis to conclude that a miscarriage of justice likely occurred.” [ 8 ] Sections 696.2 and 696.3(1) and (2) provide the mechanics of the Minister’s review, giving the Minister the powers of a commissioner under the Inquiries Act, RSC 1985, c I-11 including the power to delegate to members of the province’s bar and retired judges to conduct an investigation, take evidence, issue subpoenas and enforce the attendance of witnesses. [ 9 ] Following receipt of an application, ss. 696.3(3) (

a) of the Criminal Code sets out what the Minister must look for to determine whether “there is a reasonable basis to conclude that a miscarriage of justice likely occurred.” The Minister must consider (s. 696.4): (

a) whether the application is supported by new matters of significance that were not considered by the courts or previously considered by the Minister in an application in relation to the same conviction or finding under

Part XXIV; (

b) the relevance and reliability of information that is presented in connection with the application; and (

c) the fact that an application under this

Part is not intended to serve as a further appeal and any remedy available on such an application is an extraordinary remedy. (Section 696.4) [ 10 ] The Quewezance sisters are now between the Minister’s preliminary conclusion that there may be a reasonable basis that a miscarriage of justice has occurred and the Minister’s final determination (as the Quewezance sisters hope) that there is a reasonable basis that a miscarriage of justice has occurred, thereby obliging the Minister to either order a new trial or refer the matter to the Court of Appeal.

This second stage of the two-stage process can take several years.

Justice Tammen in R v Skiffington, 2019 BCSC 178 [ Skiffington ] wrote that “From the limited data available…the time to completion of the investigation is likely better measured in years than months.” (para. 62). [ 11 ] While the Criminal Code does not address the court’s ability to release an applicant after the Minister has completed the initial step, ss. 679(7) expressly allows an applicant to apply for release after the Minister has completed the final step and has directed a new trial or referred the matter to the Court of Appeal, “as though that person were an appellant in an appeal…” Before the court can release a convicted person pending an appeal, the court must be satisfied, under ss. 679(3) that: (

a) the application is not frivolous; (

b) the applicant will surrender himself into custody according to the terms of the order; and (

c) the applicant's detention is not necessary in the public interest. [ 12 ] What happens, though, in the statutory lacuna between the Minister’s initial and final decision? B oth the Crown and the Quewezance sisters look to Phillion and accept that after the Minister’s preliminary determination, applicants have a right under the Canadian Charter of Rights and Freedoms [ Charter ] and common law principles to apply for release.

Phillion holds that the considerations for release during this gap are the same as either after an ordinary appeal following conviction or after the Minister has determined that there is a reasonable basis that a miscarriage of justice has occurred, namely the three criteria stated above. [ 13 ] In applying the three criteria under ss. 679(3), I am not deciding whether the Quewezance sisters have been subject to a miscarriage of justice or have been wrongfully convicted. I am deciding whether they should be released pending the ministerial review.

The burden to prove the merits of their application lies with the Quewezance sisters. 3. Observations from Phillion and Subsequent Decisions [ 14 ] Phillion has been the go-to decision since 2003 in every published interim release decision from any Canadian court when an applicant has applied to be released prior to the Minister’s final determination. Chronologically, Phillion has been mentioned in the following decisions: R v Driskell , 2004 MBQB 3 , [2004] 4 WWR 182 [ Driskell ] (Release granted)

R v Unger , 2005 MBQB 238 , 196 Man R (2d) 280 [ Unger ] (Release granted) R v Ostrowski , 2009 MBQB 327 , 250 CCC (3d) 123 [ Ostrowski ] (Release granted) R v Assoun , 2014 NSSC 419 , 351 NSR (2d) 323 [ Assoun ] (Release granted) R v Delisle, 2016 QCCS 6299 (Release denied) Sanderson (Release denied) Skiffington (Release granted) R v Purdy , 2019 BCSC 2285 [ Purdy ] (Release denied) R v KIassen, 2020 BCSC 2288 [ Klassen ] (Release granted) [ 15 ] These decisions, although helpful to the court, must be considered with appropriate latitude before being applied to the Quewezance sisters’ application.

No appellate court in Canada has dealt with interim judicial release pending completion of a ministerial review. Accordingly, although highly informative, none of the decisions is binding upon this Court. As well, several differences among the cases and between the cases and the Quewezance sisters’ application inform the analysis in this case. [ 16 ] For example, seeking release immediately after applying to the Minister without an initial ministerial response will not gain judicial favour as Mr. Purdy found in Purdy . There Justice Holmes wrote that Mr.

Purdy’s “application for bail at this stage must be denied…because nothing in the materials filed to date suggests that the appeal is not frivolous.” (para. 11). By contrast, the Quewezance sisters’ application, like all other applications for release, was after the Minister’s initial assessment. [ 17 ] In some instances, the Crown has not opposed the release but only the proposed conditions of release as in Klassen . In most cases, though, as in the Quewezance application, the Crown has opposed both the applicants’ release and the proposed terms of release. In Unger , although the Crown opposed Mr.

Unger’s release, the Deputy Minister of Justice in Manitoba recommended that the Federal Minister of Justice refer the case back to the Court of Appeal. [ 18 ] Another difference among the cases is the nature of the new evidence that the applicant has brought before the Minister and, in turn, before the court seeking release.

Sometimes the applicant’s proposed new evidence is supported by the force of highly accurate DNA science, as in Driskell or new pathology evidence as in Klassen . [ 19 ] In other release applications, the new evidence does not relate to substantive or scientific evidence relevant to the elements of the offence but to the way the evidence was obtained and admitted at trial. In both Unger and Skiffington the applicants gave confessions after Mr. Big undercover operations. As explained in Skiffington , changes in the law of interrogation and confession that developed after Mr.

Skiffington’s conviction were valid considerations in deciding the merits of his release application. Mr. Skiffington’s confession was admitted at trial “without any contest, in keeping with the state of the law at that time.” (para. 34). R v Hart , 2014 SCC 52 , [2014] 2 SCR 544 [ Hart ] had intervened and fundamentally altered the legal landscape of Mr. Big confessions.

Justice Tammen in Skiffington wrote, at para. 34 , that such statements “went from being presumptively admissible to being presumptively inadmissible, requiring the Crown to prove on a balance of probabilities that probative value outweighs prejudicial effect.” The Quewezance sisters’ application for ministerial review is similarly structured.

They state that the way much of the evidence gathered against them in 1993 was questionable then but would be impermissible now. [ 20 ] Unlike the Quewezance sisters’ position, in several instances the applicants for release have steadfastly maintained throughout their trial, appeals and subsequent incarceration that they are innocent of any crime, as the applicants in Phillion , Assoun , Ostrowski , Driskell and Klassen . Indeed, some applicants, although otherwise good inmates, have refused to participate in programming for sexual violence because of their consistent denial of guilt ( Klassen ).

Others have either been denied or have not applied for parole because they have maintained their innocence and have refused to admit guilt. For example, Mr. Phillion had been eligible to apply for parole for a remarkable 25 years, but, as Justice Watt wrote, “He refuses to apply. Parole, he says, is for the guilty. He does not count himself amongst their number.” (para. 25). [ 21 ] By contrast, the Quewezance sisters have never said, and do not say now, that they are “innocent” in the absolute sense. In fact, prior to their application to the Minister, Mr.

Lockyer asked Saskatchewan Justice to join the Quewezance sisters in an application to the Minister to refer the murder convictions to the Court of Appeal with a request to quash the convictions and substitute verdicts of manslaughter, hopeful that their life sentences would be set aside, and sentences of time served would be imposed for manslaughter with immediate release. Saskatchewan Justice did not accept the request. 4. The Issues [ 22 ] The three criteria of ss. 679(3) drive the issues in the Quewezance sisters’ application, namely, am I satisfied that: (

a) their application to the Minister is not frivolous; (

b) they will surrender themselves into custody according to the terms of the order; and (

c) their detention is not necessary in the public interest? [ 23 ] And, if the court is prepared to release the Quewezance sisters, upon what conditions? 5. Analysis

(

a) Nuanced

Interpretation of ss. 679(3) in Release Applications Pending Ministerial Review [ 24 ] The three criteria set out in ss. 679(3) specifically address an offender’s application for release pending an appeal of a lower court’s decision, whether the conviction, the sentence, or both. These criteria for release have been statutorily co-opted by ss. 679(7) to also apply in the case of a ministerial review after the Minister completes an investigation and directs a new trial or refers the matter to an appellate court.

Phillion and subsequent decisions have adopted the same criteria in an application for release before the Minister’s final determination. Consequently, on its face, the statutory provisions in ss. 679(3) govern release in three different situations. [ 25 ] However, in my view, the criteria for release pending appeal described in ss. 679(3) must be applied with nuanced sensitivity when considering an application for release in the ministerial review process.

As with all legislative provisions, ss. 679(3) must be interpreted within the context of the unique circumstances that are before the court and within the purposes of the entire statute.

Obvious and profound differences are apparent between a person applying for release after being recently convicted of a criminal offence and a person who has been incarcerated for 25 years (as in Klassen ), has maintained his innocence throughout (as in Unger ), has received a preliminary ministerial finding that there may be a miscarriage of justice (all cases except Purdy ), and hopes the Minister will direct a new trial or refer the matter to an appellate court. [ 26 ] With this sensitivity in mind, each of the three criteria under ss. 679(3), although at first blush seemingly equally applicable to all release applications, whether following a recent conviction or during a ministerial review, may attract different

interpretations. Decisions which have considered the criteria under ss. 679(3) when release is sought pending an ordinary appeal of a conviction must be carefully applied with attention to the fundamental differences those applications have from applications for release pending a ministerial review. (

b) Is the Quewezance Sisters’ Application to the Minister “Frivolous”? [ 27 ] Beginning with the test of “frivolousness,” a glaring difference presents itself between a person seeking release pending an appeal of a recent conviction and persons like Odelia and Nerissa Quewezance who have engaged a ministerial review. [ 28 ] Many appeals of a criminal conviction undoubtedly lack merit, therefore the need to weed out frivolous appeals. After all, little is at risk in seeking an appeal of a criminal conviction.

On the other hand, initiating a ministerial review of a decades’ old criminal conviction and seeking release pending the Minister’s final determination is an incomparably onerous procedure. Robert Mason, in “Wrongful Convictions in Canada,” online:

(2021) Library of Parliament: Background Paper, <https://publications.gc.ca/collections/collection_2021/bdp-lop/bp/YM32-2-2020-77-eng.pdf> (29 March 2023) at page 1, in his report to the Senate and House of Commons stated that establishing “that a wrongful conviction has occurred often requires extraordinary persistence as well as luck…” Invariably outside agencies representing the interests of persons considered wrongfully convicted bring the detailed application before the Minister. Mr.

Lockyer, defence counsel associated with Innocence Canada, has been legal counsel in Phillion, Driskell, Unger, Ostrowski, Assuoun, Sanderson and Skiffington. The organization carefully considers the merits of an alleged wrongful conviction before undertaking the detailed and lengthy procedure which now engages the Quewezance sisters. Innocence Canada was founded in 1993 as the successor of the Justice for Guy Paul Morin Committee, which successfully had Mr. Morin’s conviction for first degree murder set aside based on new DNA evidence.

Innocence Canada’s willingness to take cases like the Quewezance sisters’ application speaks to the inherent absence of frivolous applications for release during ministerial review as compared to an ordinary appeal of a criminal conviction. [ 29 ] But most significantly, unlike a release application in an ordinary appeal, in a release application pending a ministerial decision the court must appreciate there exists a major intervening factor absent in an ordinary criminal appeal: a clear opinion from an unhurried, statutorily created, significantly resourced, independent agency – the Ministry of Justice – that there may be a reasonable basis to conclude that a miscarriage of justice occurred.

In arriving at this preliminary conclusion, the Minister is statutorily obliged to have considered “the relevance and reliability” of the information in the application and whether the application “is supported by new matters of significance that were not considered by the courts.” ( Unger at para 7 ). In the Quewezance sisters’ case, the Minister’s preliminary assessment took six months. Although Mr.

Lockyer calls this a “lightning speed response,” six months to review the Quewezances sisters’ application afforded the Minister ample opportunity to assess the merits of their application, as he must according to the Criminal Code . Given this reality, for this Court to find that the Quewezance sisters’ application to the Minister is frivolous would be an audacious disregard for the Minister’s findings.

I agree that deference must be given to the Minister’s finding as Justice Suche stated in Ostrowski at para 21 : [21] I also agree with the view expressed in Phillion , that the very fact that the Minister has determined at the preliminary assessment that there may be a reasonable basis to conclude that a miscarriage of justice likely occurred, suggests that there is an arguable case. [ 30 ] Similarly, in Unger at para 10 , Justice Beard wrote: [10] … where the Minister has concluded, after the preliminary assessment, that there may be a reasonable basis to conclude that a miscarriage of justice likely occurred and ordered an investigation, that is indicative that the application is not frivolous… [ 31 ] The Quewezance sisters’ application to the Minister is not frivolous or, more to the point, the inquiry is essentially superfluous given the Minister’s initial assessment that there may exist a reasonable basis to conclude that the Quewezance sisters have been subjected to a miscarriage of justice. (

c) Will the Quewezance Sisters Surrender into Custody ? (

i) The Quewezance Sisters’ Parole History [ 32 ] In an appeal from a criminal conviction, ss. 679(3)(

b) requires that the court be satisfied that the applicant will surrender into custody. In release applications pending ministerial review, some judges have looked to an applicant’s parole record as an

indication of flight risk, as Justice Wedge in Klassen noted, writing: [15] With respect to the second factor, risk of escape, in my view, there can be little doubt that Mr. Klassen will surrender himself into custody should the Minister deny his application. Mr. Klassen was on bail for a full year before his trial in 1995 with no breaches and returned to custody thereafter. I will not go into the various reports filed by Corrections officials during Mr.

Klassen's 25-plus years' incarceration, except to say that, on the basis of those reports, I am satisfied that he is not a flight risk and that, in fact, and in the words of the Corrections official who testified in this application, he was a "good inmate." [ 33 ] Unlike Mr. Klassen, the Quewezance sisters have a history of failing to abide by parole conditions. [ 34 ] Odelia was granted day parole in 2001 and full parole in 2004. She lived with her husband and their daughter in Maple Creek, Saskatchewan.

Over the next six years, her parole was suspended several times for drug violations and for failing to report to her parole officer. She became pregnant with twin daughters while on parole. In 2010 her parole was revoked after she left the family home. She was denied day and full parole at her next hearing in May 2017. In September 2019 she was authorized to go on Unescorted Temporary Absences [UTA] but this privilege was cancelled two months later when she tested positive for drugs used to treat opioid addiction. Since September 2020, Odelia has lived at Eagle Women’s Lodge in Winnipeg, Manitoba.

After pandemic restrictions were eased in 2021, Odelia was approved for a six-month UTA program to live with her family in Rhein, Saskatchewan for three days each month. In April 2022, Odelia was granted day parole, allowing her into the community from 6:00 a.m. to 9:00 p.m. on weekdays and until 10:00 p.m. on weekends. [ 35 ] Nerissa was granted day parole in 2003 but was arrested in Saskatoon, Saskatchewan for being under the influence of alcohol when she gave her sister’s name and spat on an officer for which she received a 30-day sentence.

In 2011, Nerissa was given a UTA from the Edmonton Institution but failed to return. She was arrested the next day in Yorkton, Saskatchewan, plead guilty to resisting arrest, and was sentenced to 60 days. In 2013, Nerissa was granted day parole to live in a residential substance abuse treatment program. She left the program and was arrested in February 2014 and her day parole was revoked. In June 2018 Nerissa was again given day parole and released to Anderson Lodge Community Residential Facility in Vancouver, British Columbia. While on day parole, she regularly attended the Friendship Centre.

She also worked as a traffic controller and completed her certificates and training in construction safety, First Aid Level 1 and 2, Workplace Hazardous Materials Information System training, bobcat and forklift training and hydrogen sulfide certification. On March 20, 2019, Nerissa signed out of Anderson Lodge and did not return. She remained at large for more than two years during which time she worked at different jobs and was involved in two local churches in Vancouver. She volunteered with agencies that cared for homeless persons.

Nerissa was living in the Lower Mainland when she was apprehended and charged on July 10, 2021. On December 23, 2021, her parole suspension was cancelled, and she was re-released on day parole for the holiday season. She was apprehended a week later for going at large and her parole was suspended. She is currently in custody at the Fraser Valley Institution for Women in Abbotsford, British Columbia with no current prospect of parole. [ 36 ] The Crown states that the Quewezance sisters should remain subject to the regime or parole under the Corrections and Conditional Release Act, SC 1992, c 20 [ CCR Act ].

The CCR Act provides authority to the Parole Board of Canada to grant parole under different types of releases, including temporary absences, escorted temporary absence, UTA, work release, day parole and full parole. Correctional Service of Canada supervises offenders on parole or on statutory release to ensure that they adhere to the conditions of release set by the Parole Board.

The CCR Act includes an appeal procedure, which has been available to the Quewezance sisters. [ 37 ] Although one might reasonably ask why this Court should interfere with the parole system, more importantly, one might ask if this Court can interfere with the current decisions of the Parole Board. This question arose in R v Wood , 1999 NSCA 124 , 124 CCC (3d) 468 where Mr. Wood was sentenced for theft and immediately appealed his conviction. The application for bail was twice adjourned because trial transcripts were not available.

His appeal was finally heard approximately 17 months after the sentence was imposed. By that time, he had been granted day parole but subject to return to a community-based residential facility in the evening. The Crown opposed Mr. Wood’s release, saying the court lacked jurisdiction to grant release because he was on day parole and, therefore, not in “custody” as required by s. 679 of the Criminal Code , which only allowed the court to release an appellant from “custody” pending his appeal.

Justice Cromwell (as he then was) did not accept that “custody” meant detained in a penal institution and that a person on day parole was in custody within the meaning of s. 679 . After a thorough analysis, Justice Cromwell concluded at para. 20: [20] The practical effect of making a release order is to suspend the running of the sentence imposed on the appellant until his appeal has been dealt with by the Court. This does not, in my view, constitute interference with the exclusive jurisdiction of the National Parole Board to grant or refuse parole.

It simply suspends the operation of the court-ordered sentence which is the foundation of the Parole Board’s jurisdiction. [ 38 ] I accept Justice Cromwell’s analysis. I see no jurisdictional impediment to the court’s ability to grant a release order in either Nerissa’s or Odelia’s circumstances, even though they are currently within the parole system. [ 39 ] For reasons that follow, notwithstanding the Quewezance sisters’ poor adherence to their terms of parole, I have few concerns that the Quewezance sisters will flee and fail to appear in court given the circumstances of their pending ministerial review.

Whether or not they would be able to abide by the terms of release as might be provided by this Court when they have shown repeated disregard to the terms of release from the Parole Board remains to be seen. (ii) Are the Quewezance Sisters a Flight Risk? [ 40 ] If the Quewezance sisters had followed the conditions of their parole release, they might have been out of incarceration approximately 20 years ago. They are in their current positions, not so much because of the sentence imposed upon them with parole eligibility in 10 years, but because they have been unable to follow conditions of their release.

Frankly, they have put their ability to follow release conditions to the test and have repeatedly failed. I ask, “What is different now?” [ 41 ] Indeed, there are differences. Once an application for ministerial review has been launched and the Minister has

initially determined that there may be a reasonable basis to conclude a miscarriage of justice has occurred, the applicant’s sole hoped-forresult is that the Minister will ultimately send the matter back to court, whether by directing a new trial or referring the matter to anappellate court. That is the singular reason why anyone would apply to the Minister: they want to re-engage a court process, whether byan appeal or a new trial.

This reality underlies and informs the context in which the court must consider the flight risk when anapplication for release is pending ministerial review. [42] Justice Chipman in Assoun, when asking whether Mr. Assoun was a flight risk, recognized the underlyingimpetus for initiating a ministerial review, stating at para. 15, “Mr.

Assoun has a continued interest in the Ministerial review process anda significant stake in its outcome.” [43] One might ask what would happen if the Minister were ultimately to deny the Quewezance sisters’ applications,leaving them subject to their life sentence and their abysmal record with the Parole Board – would they be as willing to surrenderthemselves into custody in such an instance? Joanne McLean, Director of Innocence Canada, has provided statistical information thatmakes this inquiry largely speculative.

Since Innocence Canada was formed in 1993, of 38 applications that have been made to theMinister for review: (

a) two applications, one filed in February 2020 and the other in February 2022, are yet to receive an initial ministerial response; (

b) of the remaining 36 applications, in 6 applications the Minister has moved the applications to the second investigative stageand the applicants await a final ministerial decision; (

c) of the remaining 30 applications, 2 applications to the Minister were dismissed in the first instance with the remaining 28referred either to an appellate court or to a new trial; (

d) of these 28 applications, the Minister, after the preliminary finding that a miscarriage of justice may have occurred,dismissed the application (the case of Leon Walchuk of Saskatchewan), leaving 27 applications; (

e) of these 27 applications, the Minister’s referral to appellate courts in 2 applications resulted in the convictions being upheld:R v Kelly (1999), (ON CA), 135 CCC (3d) 449 (Ont CA) (leave to the Supreme Court denied (2001 SCC 25, [2001] 1SCR 741)) and

Section 690 of the Criminal Code, R.S.C. 1985, c. C-47 (Re) (1998), (MB CA), 131 CCC (3d) 72(Man CA) with the appealed dismissed by the Supreme Court of Canada in Reference re Gruenke, 2000 SCC 32, [2000] 1 SCR 836,leaving 25 applications; (

f) of the remaining 25 applications, in 21 applications the Minister referred the matter either to the Court of Appeal or to a newtrial which has resulted in 1 reduction of conviction from second degree murder to manslaughter and in the other 20 applications either inacquittals, stays of proceedings or withdrawal of charges; (

g) of the remaining four applications, new trials or appeals remain outstanding. [44] In

summary, of the 30 completed ministerial reviews, 3 were dismissed in the first instance. Twenty-seven werereferred to courts of appeal or directed to new trials, respecting which 2 resulted in continued convictions, 1 resulted in a lesserconviction, 20 resulted in acquittals, stays or withdrawal of charges, and 4 are yet to be determined.

Given this statistical information,odds are the Minister will follow an established precedent and, having decided that a miscarriage of justice may have occurred, willdirect the matter to an appellate court or to a new trial, which the Minister has done in 27 of 30 applications that Ms. McLean hasdescribed. That is the result towards which the Quewezance sisters and their supporters are directing the entirety of their efforts.

Animprobable conclusion is that they will not await the Minister’s decision but will, instead, choose flight. [45] Markedly, too, the Quewezance sisters’ quest for a new day in court, whether an appeal or a new trial, hasengaged the support of several persons, many with significant public profiles.

For either Odelia or Nerissa to fail to surrender intocustody would be a betrayal of the immense support they have received from persons who have lobbied in their support to secure a newtrial or a referral to the Court of Appeal, some for several years and many who have sworn affidavits or testified in support of theirrelease, including: Chief Lee Anthony Kitchemonia of Keeseekosse First Nation; Ronald Dalton, Co-President of Innocence Canada andwrongfully convicted in 1989 of his wife’s death; Senator Kim Pate; Win Wahrer, Co-Founder of Innocence Canada; Nicole Porter,Criminal Consultant and Behavior Analyst for N.

A. Porter & Associates; Joanne McLean, Board Member of Innocence Canada; Terri-Ann Lepowich, Director of Justice for the YTC; and Holly Moore, investigative journalist at Aboriginal Peoples Television Network[APTN]. [46] APTN has documented the Quewezance sisters’ quest for ministerial review of their conviction in adocumentary called A Life Sentence, which aired in two parts in October 2020.

Since then, their application to the Minister has gainednational prominence, as was apparent when the Crown applied for a publication ban on November 25, 2022, an application stronglyopposed by media outlets, including the Canadian Broadcasting Corporation and APTN. Ms. Moore states that she has watched theQuewezance sisters’ story grow from being exclusively covered at APTN to national coverage. Ms. Moore and several members of theCongress of Aboriginal Peoples attended Keeseekoose First Nation on May 16, 2022, when Odelia was released on day parole “as a partof preparing her case for the Minister.” Ms.

Moore also joined Odelia Quewezance at the Parliament buildings in Ottawa on June 2, 2022to draw attention to her case. [47] Even in the unlikely event that the Minister were to ultimately dismiss the Quewezance sisters’ application, theimmense public interest in their case, the media attention it has garnered, the support of Innocence Canada, and the engagement ofseveral prominent public figures would make flight by either Odelia or Nerissa highly improbable, virtually impossible. [48] I conclude, given the entirety of the circumstances, that the Quewezance sisters will surrender into custody asordered by the court.

They are not a flight risk. (

d) Is the Quewezance Sisters’ Detention Necessary in the Public Interest?

(

i) The Decision in R v Oland [49] The most engaging of the three issues in the Quewezance sisters’ release application is whether their continueddetention is necessary in the public interest. “Public interest” was the pivotal issue in R v Oland, 2017 SCC 17, [2017] 1 SCR 250[Oland] and has been referred to in every release application pending ministerial review since then: Sanderson in 2018, Skiffington in2019 and Klassen in 2020. [50] In Oland, the Supreme Court agreed with the lower court’s finding that Mr.

Oland’s appeal of his father’smurder was not frivolous, that he would surrender to the court, and that he posed no danger to the public, but disagreed that his continuedincarceration offended the public’s confidence in the administration of justice. (Mr. Oland was eventually found not guilty on retrial.)The court endorsed Justice Arbour’s analysis (as she then was) in R v Farinacci (1993), (ON CA), 86 CCC (3d) 32(Ont CA) when she said that the initial finding whether an appeal is frivolous is a low bar but did not reveal the strength of the proposedappeal.

That analysis necessarily fell under the latter of two components of public interest, which she described as public safety andpublic confidence in the administration of justice. Justice Arbour did not delve into the public safety component.

Instead, under thepublic confidence component, she introduced two competing interests that the court had to balance in release applications:“reviewability” and “enforceability.” Reviewability interest reflects an acknowledgement that our justice system is fallible and thatpersons who challenge the legality of their convictions should be entitled to a meaningful review process so that they do not serve acustodial sentence only to find out on appeal that their conviction was unlawful.

On the other hand, the enforceability interest reflects theneed to respect the general rule that once pronounced, judgments should be immediately enforced. [51] Justice Moldaver, writing for a unanimous court in Oland, admitted that certain earlier judicial statementsquestioned why, having found an appeal was not frivolous, a further inquiry was necessary to determine the strength of the appeal. Heexplained that the “not frivolous” criterion in ss. 679(3)(

a) operated as an initial hurdle that produced “a categorical ‘yes’ or ‘no’ answer,allowing for the immediate rejection of a release in the face of a baseless appeal.” Justice Moldaver offered guidance to ascertain thestrength of an appeal, stating that “appellate judges will examine the grounds identified in the notice of appeal with an eye to theirgeneral legal plausibility and their foundation in the record.” They will “look to see if the grounds of appeal clearly surpass the minimalstandard required to meet the ‘not frivolous’ criterion.” (para. 44). Acknowledging that the release hearing is a

summary application, hestated at para. 45: [45] In the end, appellate judges can be counted on to form their own “preliminary assessment” of the strength of an appeal basedupon their knowledge and experience. … [52] Perhaps most helpfully, Justice Moldaver guided courts in balancing the need to review alleged wrongfulconvictions – the reviewability interest – and the need to uphold lawful convictions – the enforceability interest – stating at para. 47: [47] … When conducting the final balancing of these factors, appellate judges should keep in mind that public confidence is to bemeasured through the eyes of a reasonable member of the public.

This person is someone who is thoughtful, dispassionate, informed ofthe circumstances of the case and respectful of society’s fundamental values. … (ii) Applying Oland in Applications for Release Pending Ministerial Review [53] The principles of reviewability and enforceability set out in Oland apply in an application for release pendingthe Minister’s final determination, as accepted in Sanderson, Skiffington and Klassen. Again, though, as with considerations offrivolousness under ss. 679(

a) and flight risk under ss. 679(b), the consideration of public interest under ss. 679(

c) takes on a nuanced huewhen the application for release follows the Minister’s finding of a possible miscarriage of justice as compared to an ordinary appealfollowing conviction (as in Oland). This nuanced hue colours the analysis in favour of reviewability. I agree with Justice Lanchbery’sassessment in Sanderson: Moldaver, J. went on to discuss the strength of appeal as one of the factors for the court to consider for release. In this instance, theministerial review decision is an important factor that needs to be considered, especially in light of the earlier decisions in Unger,Ostrowski and Driskell.

I find that the distinction outlined by Moldaver, J. in Oland may have lessened the enforceability andreviewability analysis when a ministerial review has been ordered. [Emphasis added] [54] This statement accords with Justice Tammen’s observation in Skiffington that in instances of a possible wrongfulconviction – an assessment the Minister has made in the Quewezance sisters’ case – the public’s reviewability interest is keenlyengaged, surely more than in an ordinary appeal following a conviction.

He wrote: [21] …it is not in the interests of…the general public that someone whose conviction may not be legally correct spend any time inprison. That principle comes into stark relief in all cases of allegedly wrongful conviction.

Such cases, and indeed the entire Canadianexperience with wrongful convictions, highlight the fallibility of our legal system, and mandate a consideration of the fact thatincarceration of someone who is later shown to have been wrongfully convicted tends to undermine public confidence in our legalsystem. [Emphasis added] [55] I might describe the public’s reaction to a discovery of a wrongful conviction in stronger words.

Few failureswithin the criminal justice system will more profoundly shake the public’s confidence in the administration of justice than discoveringthat after years of incarceration a person has been wrongfully convicted, perhaps even factually innocent of any crime. Few Canadianswill not have heard of Donald Marshall Jr.’s wrongful conviction for murder over 50 years ago or Guy Paul Morin’s wrongful convictionfor murder that occurred in 1984.

Saskatchewan has its own tragic experience with David Milgaard, who, convicted as a teenager, spent23 years in prison before DNA exonerated him of the murder of a nurse in Saskatoon.

[56] Another observation augurs in favour of weighing the balance more heavily in favour of reviewability whenrelease is sought pending the Minister’s review. Ordinary appeals before an appellate court may be immediately delivered from thebench or in reasonably proximate time, commonly measured in weeks. On the other hand, as Ms. McLean has calculated and reported inher affidavit, the average time the Minister of Justice takes from the date of application to a final decision is, on average, 4.65 years.

Anyunmerited time in incarceration undermines the public’s confidence in the administration of justice and that risk is considerably higherwhen the Minister of Justice is engaged in a review as compared to an ordinary appeal. [57] In my view, when balancing reviewability and enforceability in applications of release after the Minister hasfound there may be a miscarriage of justice, enforceability is attenuated, and reviewability is pronounced. (iii) Strength of the Quewezance Sisters’ Application [58] Clearly, the strength of an appeal is a relevant consideration in granting release because the test of“frivolousness” is a low bar as stated in Oland.

However, before offering the court’s assessment of the strength of the Quewezancesisters’ application to the Minister, two preliminary considerations animate my finding. [59] First, the Quewezance sisters have repeatedly informed the court that even though they have asked the Crownfor disclosure to support their application before the Minister, the Crown’s response has been that once the Minister uses his statutorypowers, including the powers of subpoena, the Crown will fully comply. Mr.

Lockyer states that without, for example, the statementsthat Odelia and Nerissa provided to the R.C.M.P., they have been hamstrung in exploring the strength of their appeal. As part of theircase, the sisters have retained a former deputy chief of police to examine the R.C.M.P.’s questioning of the Quewezance sisters butwithout the statements they cannot instruct him. [60] Second, the Crown exhibited many pages of transcript to illustrate the thoroughness of the evidence that was ledat trial.

I find that the Crown and defence are somewhat at cross-purposes in looking at the strength of the Quewezance sisters’application. Although a generalization, the Crown questions the strength of the Quewezance sisters’ application to the Minister byemphasizing the soundness and thoroughness of the evidence presented at trial and the absence of new evidence before the Minister. Onthe other hand, the Quewezance sisters look to the way the trial evidence came before the court.

The Crown focuses on theunassailability of the evidence presented at trial; the defence focuses on evidence of what happened prior to the trial, particularly whilethe Quewezance sisters were being held in the R.C.M.P. detachment in Kamsack, Saskatchewan. [61] The Quewezance sisters intend to bring before the Minister their position that although the elements of acriminal offence govern the conduct of persons at the time of their conduct, the methods of gathering evidence that ensure proceduralfairness must be viewed by current standards. They look to Skiffington where the court found that Mr.

Skiffington’s confession after aMr. Big operation was inconsistent with the principles later stated in Hart. [62] They also look to R v O’Brien and others, [2000] All ER (D) 62 [O’Brien]. At trial, “H” pleaded guilty torobbery and offered a plea of manslaughter. The Crown rejected the plea and “H” was convicted of murder. Years later, the reviewingcourt found that if a jury had heard the medical evidence and had evidence of the unsatisfactory way the police interviews had beenconducted, they would have probably taken a different view of “H’s” position.

The court wrote: We turn to the role of this court in this appeal. This court has to decide whether these convictions are safe or unsafe. To do that we mustapply the substantive criminal law that was in force at the time of the trial in 1988.

However, we judge the conduct of the investigationof the case, the conduct of the trial, the directions to the jury and the reliability of the evidence on which the jury acted in accordancewith the standards that this court now applies. [Emphasis added] [63] The Quewezance sisters seek an opportunity to present the above-described principle either at a re-trial or to theSaskatchewan Court of Appeal, namely that the substantive law of murder applies at the time of the offence but that the conduct of policeinterrogation and admission of evidence at trial must be judged according to the standards which a Canadian court would currently applyin any other appeal.

In addition to O’Brien, defence looks to the statement in R v Bentley (Deceased), [1998] EWCA Crim 2516, in adecision that exonerated a deceased offender 50 years after the offence, where the Lord Chief Justice of England wrote: Where, between conviction and appeal, there have been significant changes in the common law (as opposed to changes effected bystatute) or in standards of fairness, the approach indicated requires the court to apply legal rules and procedural criteria which were notand could not reasonably have been applied at the time. … [64] What, then, do the Quewezance sisters suggest are current “legal rules and procedural criteria” which were notapplied in 1993 but would be expected today?

The Quewezance sisters have framed the strength of their application under the followingpoints: 1. Canada’s treatment of Indigenous people has changed since R v Gladue, (SCC), [1999] 1 SCR 688[Gladue]. 2. The impacts of systemic discrimination on Odelia and Nerissa during the police investigation and at their trial. 3. The failure of the Kamsack R.C.M.P. to comply with the judicial order remanding Odelia and Nerissa to the correctionalcentre in Prince Albert, Saskatchewan amounted to a violation of s. 9 of the Charter. 4. The failure of the R.C.M.P. to record Odelia’s and Nerissa’s statements. 5.

The viability of Odelia’s and Nerissa’s defence of intoxication and the failure of the Kamsack R.C.M.P. to secure objectiveevidence of their state of intoxication.

6. The application of R v Oickle, 2000 SCC 38, [2000] 2 SCR 3 [Oickle]. [65] I bear in mind that although I must assess the strength of the Quewezance sisters’ application to the Minister, asJustice Beard stated in Unger, at para 10, “this hearing is not… an investigation of the merits of the applicant’s application forministerial review.” [66] I find that the Quewezance sisters have raised sufficient evidentiary matters that make their application ofappropriate strength to support their release.

They have raised several questionable circumstances under which they provided inculpatorystatements to the R.C.M.P. in Kamsack. For example, they were young, Indigenous women who had engaged in substantial drug andalcohol consumption within hours of their statements. They were interrogated exclusively by male officers. Their statements were neitheraudio nor video recorded. On arrival at the R.C.M.P. detachment, Odelia and Nerissa spoke to independent legal counsel who told theR.C.M.P. that neither wished to give a statement.

However, within four hours of counsel leaving the detachment, both Quewezancesisters gave lengthy unrecorded interviews to the police. [67] The Quewezance sisters point to another procedural failure that they say would not be accepted under thecurrent lens of procedural propriety. Twenty-four hours after their arrest, shortly after 9:00 a.m., Friday, February 26, 1993, a Justice ofthe Peace ordered Odelia and Nerissa be remanded in the Pine Grove Correctional Centre in Prince Albert.

The R.C.M.P. did not complywith the order, and they continued to hold the Quewezance sisters at the Kamsack detachment where they were available for furtherinterrogation until they were taken to Yorkton early on Tuesday, March 2, 1993. Consequently, they were held at the detachment forfour days. On Friday afternoon, the R.C.M.P. took a second statement from Nerissa and on Friday evening, they took a second statementfrom Odelia. On Monday evening, they took a third statement from Nerissa. The Quewezance sisters wish to challenge the voluntarinessof their statements.

They look to R v Precourt (1976), (ON CA), 39 CCC (2d) 311 (Ont CA) where Justice Martin, in apre-Charter decision, distinguished remand custody from continued investigative police custody. [68] Today, the Quewezance sisters say their improper and illegal continued detention in the face of the order of theJustice of the Peace, falls within the analysis offered by the Supreme Court of Canada in R v Grant, 2009 SCC 32, [2009] 2 SCR 353[Grant] where the court stated at para. 54, “a detention not authorized by law is arbitrary and violates s. 9 [of the Charter].” They saythat s. 9 of the Charter was not raised at their trial, and not surprisingly because neither counsel nor the court could have anticipated theGrant line of jurisprudence. [69] The Quewezance sisters say that the R.C.M.P.’s failure to record their interviews, particularly in face of theircontinued detention and the availability of recording devices at the detachment, would not be tolerated today.

They cite R v Moore-McFarlane (2001), (ON CA), 160 CCC (3d) 493 (Ont CA), where Justice Charron (as she then was) said: [65] …the Crown bears the onus of establishing a sufficient record of the interaction between the suspect and the police. That onusmay be readily satisfied by the use of audio, or better still, video recording.

Indeed, it is my view that where the suspect is in custody,recording facilities are readily available, and the police deliberately set out to interrogate the suspect without giving any thought to themaking of a reliable record, the context inevitably makes the resulting non-recorded interrogation suspect.

In such cases, it will be amatter for the trial judge on the voir dire to determine whether or not a sufficient substitute for an audio or video tape record as beenprovided to satisfy the heavy onus on the Crown to prove voluntariness beyond a reasonable doubt. [70] The sisters also point to the seminal decision in Oickle respecting voluntariness of confessions and, in particular,Justice Iacobucci’s endorsement at para. 42 of the statement offered by Welsh S.

White in “False Confessions and the Constitution:Safeguards Against Untrustworthy Confessions” (1997) 32 Harv CR–CL L Rev 105 at 120: False confessions are particularly likely when the police interrogate particular types of suspects, including suspects who are especiallyvulnerable as a result of their background, special characteristics, or situation, suspects who have compliant personalities, and, in rareinstances, suspects whose personalities make them prone to accept and believe police suggestions made during the course of theinterrogation. [71] The importance of Oickle in Canadian criminal jurisprudence cannot be over-emphasized.

One search site showsthat since 2000, Canadian courts have referred to Oickle over 2,000 times. (iv) Gladue Factors [72] The Quewezance sisters state that their interrogation pre-dates the principles set out in Gladue by several years.Aside from how Gladue factors would have changed their interrogation in 1993, those factors, now in full play, are paramount in thecourt’s consideration of their release. Seemingly, none of the earlier cited decisions have specifically identified whether any of theapplicants for judicial release pending the Minister’s decision were Indigenous.

The Quewezance sisters are the first Indigenous womento apply for ministerial review of their convictions. [73] Nerissa is 48 years old, born on September 14, 1974. Odelia is 51 years old, born on January 18, 1972. Both aremembers of the Keeseekoose First Nation. Both entered St. Philips Day School on the First Nation when they were seven years old andlater were moved to the Qu’Appelle Indian Residential School in Lebret, Saskatchewan, over 200 kilometres away.

Nerissa describes theschool as having “a particularly notorious history of abuse.” She attributes her arthritis and scoliosis to the abuse she experienced,including heavy blows and blunt trauma injuries. When Odelia dropped out of school she moved to Edmonton, Alberta where relativesput her on the street to become a sex worker. Many of their family members have suffered from alcoholism. The maternal side of theirfamily has a history of death by suicide. Their mother and stepmother died from substance overdoses.

Their grandparents, parents, auntsand uncles attended residential schools and have experienced the now well-accepted consequences: intergenerational loss of identity andculture. They were raised in verbally and physically abusive ways. [74] The Criminal Code addresses Indigenous status. In 2019 the Criminal Code was amended to include s. 493.2 tomake Indigenous status a mandatory consideration in pre-trial release, requiring the court to “give particular attention to thecircumstances of…Aboriginal accused… [and those] who belong to a vulnerable population that is overrepresented in the criminal

justice system…” Clearly, the Quewezance sisters are not “accused” persons; they are convicted offenders. Consequently, s. 493.2 does not directly apply but the principle sensibly applies to any judicial release. Similarly, ss. 718.2(

e) of the Criminal Code directs the court in matters of sentencing of Indigenous offenders to give “particular attention to the circumstances of Aboriginal offenders.” [ 75 ] These specific statutory obligations should be considered in light of the broad statements offered by the Supreme Court of Canada in Gladue .

Although Gladue provided guidance to sentencing judges on factors to be considered when sentencing Indigenous offenders, the court, at para. 50, was principally concerned with the “acute problem of the disproportionate incarceration of aboriginal peoples.” But even more broadly, at para. 61, the court noted that “the excessive imprisonment of aboriginal people is only the tip of the iceberg insofar as the estrangement of the aboriginal peoples from the Canadian criminal justice system is concerned.” [ 76 ] Justice Sharpe in United States v Leonard , 2012 ONCA 622 , 291 CCC (3d) 549 picked up the court’s implicit invitation to broadly apply Gladue factors, stating in the context of an extradition application at para. 85, “the Gladue factors are not limited to criminal sentencing but that they should be considered by all ‘decision-makers who have the power to influence the treatment of aboriginal offenders in the justice system’ ( Gladue , at para. 65 ) whenever an Aboriginal person's liberty is at stake in criminal and related proceedings.” [ 77 ] Clearly, the Quewezance sisters’ liberty is in issue.

Gladue factors apply. The Quewezance sisters fall squarely within the frequent judicial statements that require the court to consider their experiences as Indigenous women. [ 78 ] I conclude: the Quewezance sisters’ application has raised matters that have convinced me that they have met the threshold of a sufficiently strong case that the public interest does not require their continued detention pending the Minister’s further determination. 6.

Conclusion and Conditions of Release [ 79 ] I am satisfied that the Quewezance sisters have satisfied, on a balance of probabilities, that their application to the Minister is not frivolous, that they will return to court as required and that neither public safety nor confidence in the administration of justice is offended by their release. [ 80 ] The court imposes the following conditions upon Nerissa’s release: 1.

You shall live with Kim Beaudin and his wife, Rhonda Beaudin, at 182 Neatby Crescent, Saskatoon, Saskatchewan and not change your residence without the prior permission of your release supervision officer; 2. Kim Beaudin shall sign a surety in the amount of $5,000.00; 3. You shall report to the bail supervision office at Room 129, 122 Third Avenue North, Saskatoon, Saskatchewan no later than 48 hours after you are released from custody, and thereafter as required; 4. You shall report to court on dates set by the court; 5.

You shall meet with Brandy Johnson of the Federation of Sovereign Indigenous Nations [FSIN] in Saskatoon or her designate, within 72 hours of being released and attend regularly scheduled meetings to review your progress on the release plan; 6. You shall meet with Patti Tait of the Elizabeth Fry Society in Saskatoon within four working days of your release from custody and register for relapse prevention programming; 7.

You shall not contact or communicate either directly or indirectly with any persons who were witnesses at your trial, except direct family members with whom there shall be no discussion of the circumstances of Mr. Dolff’s death; 8. You shall meet with Leigh Wolfe, Indigenous Social Worker and counsellor, and engage in counselling as required; 9. You shall attend cultural activities through FSIN; 10. Within three weeks of your release you shall apply for Social Assistance; 11.

Within three weeks of your release, you shall meet with an Economic Development Officer in Saskatoon through the Yorkton Tribal Council [YTC] to develop an employment strategy either through traditional employment or self-employment strategies; beading, sewing, dog walking and volunteering with animals; 12. Within three weeks of your release, you shall meet the Labour Force Development Officer of YTC and develop a plan to get your driver’s license. Once you are registered you shall attend the courses; 13.

You shall stay within your approved residence from 11:00 p.m. until 6:00 a.m. the next morning, unless you are in the company of your surety, Kim Beaudin, or Rhonda Beaudin, or you have the written permission of your release supervisor. Your surety shall immediately report any breach of this curfew to the local R.C.M.P. detachment and to the release supervisor; 14. You shall remain within Saskatchewan unless you receive permission in writing to leave the jurisdiction from your release supervisor; and 15.

You shall sign authorizations and directions allowing your service providers as above-identified to provide information to their release supervisor about your attendance at and participation in programming. Conditions for Odelia Quewezance

[ 81 ] The court imposes the following conditions upon Odelia’s release: 1. You shall live with Jay Koch in the Village of Rhein, Saskatchewan and not change your residence without the prior permission of your release supervision officer; 2. Jay Koch shall sign a surety in the amount of $5,000.00; 3. You shall report to the bail supervision office at 72 Smith Street East, Yorkton, Saskatchewan no later than 48 hours after you are released from custody, and thereafter as required; 4. You shall report to court on dates set by the court; 5.

Within three weeks of your release, you shall engage with the Adult Reintegration worker of YTC to enrol in the following programs as they become available: (

i) The Healthy Relationships Program, offered through Safe Haven, a 52 session program on communication and conflict resolution in domestic partnership; (ii) Personal counselling through the Society for Involvement in Good Neighbours in Yorkton, or a private counsellor if funding can be secured, to address personal trauma; and (iii) Ongoing Relapse Prevention Programming with the assistance of the YTC Adult Reintegration worker; 6.

You shall not contact or communicate either directly or indirectly with any persons who were witnesses at your trial, except direct family members with whom there shall be no discussion of the circumstances of Mr. Dolff’s death; 7. Within three weeks of your release, you shall: (

i) meet with Nina Wilson, an Elder, and Cuthbert Keshane, an Elder, to assist with culturally relevant counselling; (ii) meet with the Economic Development Officer of YTC to develop an employment strategy through either traditional employment or self-employment; beading, sewing and workshop facilitation through YTC and potentially other organizations; and (iii) meet with the Labour Force Development Officer of YTC and develop a plan to get your driver’s license. Once you are registered, you shall attend the courses. 8.

You shall stay inside your approved residence from 11:00 p.m. to 6:00 a.m. the next morning unless you are in the company of your surety, Jay Koch, or with the written permission of your release supervisor. Your surety shall immediately report any breach of the curfew to the local R.C.M.P. detachment and to the release supervisor; 9. You shall remain within Saskatchewan unless you receive permission in writing to leave the jurisdiction from your release supervisor; and 10.

You shall sign authorizations and directions allowing your service providers as above-identified to provide information to their release supervisor about your attendance at and participation in programming. [ 82 ] The release of Odelia Quewezance and Nerissa Quewezance is effective immediately and shall continue until a further order of this Court and, in any event, until the Minister of Justice has reached a decision whether there will be a dismissal of their application or a referral to the Court of Appeal or retrial.

In the former result, the Quewezance sisters shall surrender to a peace officer within 24 hours. In the latter result, the Quewezance sisters shall bring an application under ss. 679(7) of the Criminal Code to seek their continued release. [ 83 ] Finally, the court expresses its deep appreciation to counsel for the Quewezance sisters and to the Crown for their thorough and able assistance. J. D.H. LAYH KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 67 Date: 2023 03 30 Docket: CRM-YT-00011-2022

Judicial Centre: Yorkton BETWEEN: HIS MAJESTY THE KING - and - NERISSA QUEWEZANCE and ODELIA QUEWEZANCE Counsel: Kelly L. Kaip for the Crown Deanna P. Harris, James Lockyer and Jerome Kennedy, K.C. for the accused March 30, 2023 LAYH J. CORRIGENDUM to JUDGMENT of March 30, 2023 (2023 SKQB 67) [ 84 ] In para. 77 Gladue was incorrectly spelt and has been corrected. J. D.H. LAYH KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 67 Date: 2023 04 12 Docket: CRM-YT-00011-2022

Judicial Centre: Yorkton BETWEEN: HIS MAJESTY THE KING - and - NERISSA QUEWEZANCE and ODELIA QUEWEZANCE Counsel: Kelly L. Kaip for the Crown Deanna P. Harris, James Lockyer and Jerome Kennedy, K.C. for the accused April 12, 2023 LAYH J. CORRIGENDUM to JUDGMENT of March 30, 2023 (2023 SKQB 67) [ 85 ] Paragraph 84 in the corrigendum should read: “In para. 77 Gladue was incorrectly spelt and has been corrected.” J. D.H. LAYH