Learn more about the new Summary Offence and Order Review laws

We held KFN Law Community Information sessions in September and October of 2023 – hosted by Carol McColl, our KFN Lands Manager, and supported by Amy-Jo Scherman, our Legal Council – to help members understand how these two new laws will work, as well as to answer any questions about Land Code and KFN laws in general.

Check out the link for a recording of the Zoom info session:

Zoom Recording Link | Passcode: $sJ!n3fc

The presentation shared across information sessions:

K’ómoks First Nation: Introducing the Summary Offence Law

What is the Summary Offence Law?

This law is a structural law, which creates the framework for the Nation to charge, prosecute and enforce offences established in our other KFN Land Code laws. We need this law to set a solid legal foundation for enforcing existing or new laws, and to set out the process to be followed when doing so.

Background

The previous draft of this law was called the Notice of Enforcement Law. The law was first drafted in 2018, and has been under legal review and refinement since then. In preparation for tabling the law at a Chief and Council meeting, it was important for us to start assembling the personnel we will need, under the law.

This includes:

• A Justice of the Peace (JP), who will hear legal arguments, determine whether a person is guilty of an offence, and issuing penalties where needed
• KFN Law Enforcement representatives, who will enforce offences on KFN lands, including by issuing tickets and requiring persons to attend hearings (note: KFN Law Enforcement representatives may include RCMP members)
• A Prosecutor, responsible for prosecuting offences under any KFN law
• An Administrator, responsible for administrating the Law

Once we identified the personnel to perform these functions, this law was tabled at the Thursday August 3, 2023 Chief & Council meeting, to come into effect on October 19, 2023.

How does this law work?

This law sets out the legal process that will govern the enforcement of all KFN laws on KFN lands. It applies to anyone on KFN Reserve lands (our Land Code lands), whether they are a member or not.

Under this Law, if a KFN Law Enforcement representative has reasonable and probable grounds to believe that a person has committed an offence under a KFN Land Code Law, the representative may issue one of the following notices to the person:

• A warning notice – which provides a warning that the person committed an offence;
• A notice of fine – which requires that the person pay a fine; or
• A notice of hearing, only If the person poses a threat to KFN lands, community or values – which requires that the person attend a hearing where the Justice of the Peace decides whether they are guilty of the offence and, if guilty, can impose penalties.

A person who is issued a notice is considered a defendant under the Law.

How do the notices work?

Warning Notice

A warning notice is simply a warning, so it doesn’t trigger any prosecution or penalty. Administration may document warnings as a record of a person’s activities on KFN lands.

Notice of Fine

This notice sets out the fine for breaching KFN law. A defendant must take one of the following actions within 14 days of receiving a notice of fine:

1. plead guilty and pay the fine;
2. plead guilty and submit a fine review application (if they are seeking a change to the fine amount, the deadline to pay or method of payment); or
3. plead not guilty and submit a fine review application, to challenge the alleged offence(s).

If the defendant does not take action within 14 days, the defendant is presumed to plead guilty and the fine will become due and payable. Fines are discounted if paid within 7 days of the notice. Surcharges are applicable after 14 days. Fine amounts will be set out in the Fine Regulation schedule.

Notice of Hearing

A notice of hearing requires a defendant to attend a hearing, where the Justice of the Peace decides whether the defendant is guilty of an offence under a KFN law, and can impose penalties if they are guilty. A KFN Law Enforcement representative or the Council may issue a notice of hearing if they have reasonable and probable grounds to believe that a defendant committed an offence and that the person’s actions could pose a threat to persons on KFN lands, to KFN lands, or to KFN values.

The term “KFN values” is defined as “the traditional and modern KFN community values related to the preservation and management of KFN Land, or related to the maintenance of order, peace and safety in the community.” This definition is broad, and we will engage with our membership to better define and describe these values.

Once the notice of hearing is issued, the hearing process is as follows:

Step 1: The prosecutor reviews the charges and either confirms or cancels the notice. If it’s confirmed, then a hearing will be scheduled.

Step 2: The Justice of the Peace, prosecutor, and defendant will attend the hearing. Both the prosecutor and defendant can make submissions, present evidence, and call witnesses.

Step 3: At the end of the hearing, the Justice of the Peace will decide whether the defendant is guilty. If they are found guilty, the Justice of the Peace may impose penalties (i.e. community service, restitution, a fine up to $5,000, imprisonment up to 6 months, banishment, etc.) under a sanction order.

Step 4: A defendant can appeal the Justice of the Peace’s decision to the British Columbia Supreme Court. In very limited cases, a defendant may also be able to apply for a review of the Justice of the Peace’s order under the Order Review Law.

READ THE FULL SUMMARY OFFENCE LAW HERE.

K’ómoks First Nation: Introducing the Order Review Law

What is the Order Review Law?

This law is another structural law, which provides a dispute mechanism in limited cases, where an order has been issued under the Summary Offence Law. It outlines how a person (who is subject to an order issued under the Summary Offence Law) can apply for a review of an order in some cases.

Background

The law was first drafted in 2018, and has been under legal review and refinement. Given the interdependent relationship between this law and the Summary Offence Law, the two laws must be enacted together. This law was tabled at the Thursday August 3, 2023 Chief & Council meeting, to come into effect on October 19, 2023.

How does this law work?

Under this law, a person who is found guilty of an offence and is subject to an order (issued by a Justice of the Peace under the Summary Offence Law) can apply for a review of all or part of that order within 30 days of the order being issued.

A person can only apply for such a review in the following cases: 1) they were unable to attend the sanction hearing due to extenuating circumstances, or 2) if they have new and relevant evidence that was not available at the time of the sanction hearing held under the Summary Offence Law. (Note: Even if a review is not available under this Order Review Law, a person can still appeal an order issued under the Summary Offence Law to the British Columbia Supreme Court.)

After the application is made, a Justice of the Peace conducts a review hearing where the defendant can make submissions. After that, the Justice of the will decide to either reject or accept the application, in whole or in part. If it is accepted, a new hearing under the Summary Offence Law may be ordered. If it is rejected, the order that was issues under the Summary Offence Law will stay in place.

READ THE FULL ORDER REVIEW LAW HERE

Do you have a question you would like answered? Please email carol.mccoll@komoks.ca or nicole.gavac@gmail.com with your question.

Frequently Asked Questions – consolidated on October 4, 2023

Why are we enacting these two laws (the Summary Offence Law and the Order Review Law)? Why didn’t we focus on other laws we’ve had lots of community engagement on?

• When we were working on Animal Control, Illegal Dumping and Noise Laws, we realized that there would be no way to enforce those laws without actual enforcement laws in place first.
• That’s when we really prioritized these two enforcement laws.
• Enacting these laws means we establish the enforcement process for future laws.

As of October 19, what actually changes?

• The new enforcement laws come into effect.
• We prioritized these two laws, so that we could establish the enforcement process for future KFN laws.
• So, we’re not anticipating much to change on October 20, or immediately after that, because there aren’t many K’ómoks laws yet.
• However, if we did get a complaint about someone committing an offence under our existing Land Code or laws (like the CP and Allotment Law or the Unauthorized Residential Dwelling Law), we would investigate the claim.
• Then the enforcement process would unfold as designed.

How does the role of our new Community Safety Coordinator fit into this enforcement process?

• Our new Community Safety Coordinator role was created in response to community feedback.
• It is a new role, so it will take some time for our new coordinator to listen and learn, getting to know our community and understand how things work.
• The main purpose of the role is to support community safety by creating programs and policies that support education, community engagement, and building relationships around community safety initiatives (i.e., preventative measures for addictions, criminal activity, youth at risk, suicide and trauma).
• The position supports, facilitates, and coordinates engagement in the community regarding community complaints and concerns, while also liaising with a wide variety of stakeholders who KFN may need to partner or engage with for support in our safety initiatives.

Are we going to start banishing members because of these new laws?

• It is highly unlikely, as that is not the focus of the law
• The Summary Offence Law establishes the framework for the legal process to enforce our other KFN Laws.
• The law applies to anyone on our lands (member or not).
• If an offence happens, the most likely course of action would be to provide a warning to the person, or possibly a fine (if, for example, warnings have already been issued previously).
• In exceptional cases where the person is deemed a potential threat to the community, there may be a hearing notice issued.
• As part of the hearing process, if the person is found guilty, the Justice of the Peace may impose penalties.
• Possible penalties that could be explored include: community service, fines, restitution, or in extreme cases, possible jail time or potential banishment.
• An example of an extreme case would be like in the 2018 Thordarson case, where after a long, messy court case, the non-member was banished from KFN Lands.

How would penalties at a hearing be determined?

• The Justice of the Peace would be guided by sentencing principles, including 1) avoiding harsh penalties wherever possible, and 2) ensuring a penalty is proportionate to the gravity of the offence and the degree of responsibility of the offender.
• In addition, the Justice of the Peace may work with the community / Elders to help determine what appropriate penalties might be for offences under K’ómoks law, especially as we enact new laws.
• The Justice of the Peace will also likely rely on community / Elders / knowledge holders, to help inform what is appropriate, when prescribing penalties to an individual at a hearing.
• Restorative justice will likely be a very big part of any penalty that the Justice of the Peace prescribes.
• In some cases, even if an individual is found guilty, the Justice of the Peace may decide not to issue a penalty at all.

What ‘checks and balances’ are included in the Summary Offence Law to ensure that there is no abuse of power by Chief and Council?

The whole legal process, from start to finish under this law, is designed to be fair, fulsome and to be free from inappropriate interference by Chief and Council or Administration.

KFN Law Enforcement Officer:

• This is the person who will issue the notices (warning, fine/ticket, hearing notice).
• They have discretion in each individual case on whether or not to issue a notice, and Chief and Council cannot require them to.
• They will also only issue a notice if they have ‘reasonable and probable grounds’ to think an offence has been committed.

Prosecutor:

• This is the person who will prosecute an offence on the rare occasion a hearing is held.
• They have what is called ‘prosecutorial independence’, and cannot be influenced or interfered with by Chief and Council in deciding whether or not to prosecute an offence.
• When a notice of hearing is issued, they have a right to decide not to prosecute or proceed with a hearing if they believe it is not appropriate to do so.

Justice of the Peace:

• This is the person who will make a decision at a hearing, or when a fine/ticket is challenged.
• They will be hired on contract and are completely independent from Chief and Council and Administration.
• They have what is called ‘judicial independence’ and cannot be influenced in any way by other people or government in making their decisions.
• This role will likely be filled by someone who is a former judge, and who has a very good understanding of judicial independence.
• The Justice of the Peace must ensure that the offence is proven beyond a reasonable doubt (which is a very high standard) before they can find someone guilty of an offence.

The process is designed to comply with the Charter of Right and Freedoms, and to protect the rights of individuals under the Charter (i.e., the right to a fair hearing, reasonable expectation of privacy, innocent until proven guilty). There is always a mechanism to challenge decisions made under this law:

• In some circumstances, a review is available under the KFN Order Review Law
• An appeal is always available from decisions of the Justice of the Peace to the BC Supreme Court.

Note: Chief and Council can also issue a notice of hearing under the law, but only in exceptional circumstances where there is a serious threat to the KFN community or land, and if they have ‘reasonable and probable grounds’ to believe that an offence under KFN law has been committed.

• This was included in the law as a last resort measure, to ensure that Chief and Council still had a mechanism to bring serious community safety threats before a Justice of the Peace, in cases where a KFN Enforcement Officer had not issued a notice of hearing.
• But there are still checks on this power of Chief and Council: 1) the prosecutor still has the ability to decide not to prosecute that offence, and 2) the Justice of the Peace still has to make an independent decision, with respect to the offence.