A man banished from his First Nation community until 2029 is now challenging the decision to cast him out in federal court.
Terry Francois, 53, pleaded guilty to two counts of resisting a peace officer in May. He was charged after driving away from a checkstop by his home community of Nisichawayasihk Cree Nation (NCN) on New Year’s Eve, a federal application for a judicial review filed Thursday says.
NCN has its own permanent checkstop at the Highway 391 junction. First Nations safety officers enforce a bylaw allowing residents to bring limited amounts of alcohol into the community — the equivalent of a 26 oz (700 ml bottle) of liquor, a case of beer, a box of wine. Cannabis is allowed in limited quantities.
While Francois had previously undergone the community’s checkstop process numerous times, he refused to let safety officers use a drug sniffing dog to search his vehicle in that instance because he felt it was “not authorized by law,” the application says.
Francois later resisted three RCMP officers who went to his home the next morning, after they told him he would be charged with assaulting a peace officer with a weapon because he drove past the checkstop, according to the application. He eventually went with the Mounties.
RCMP officers told Francois he could not live in NCN with pending criminal charges. He was forced to move to the city of Thompson — about 80 kilometres east of NCN — where he’s lived on his own dime since December, the application says.
He was ultimately fined $600 for charges involving resisting a peace officer, but other charges were stayed.
Francois, who’s lived in NCN over the last decade with his four daughters and young grandchild, returned to the community for his daughter’s graduation in June.
That’s when he received a formal letter of banishment from NCN, which said he was banned from the community until the end of 2029, the court document says.
“It’s crazy. It just baffles me,” Francois told CBC News on Monday. “It made me feel like an alien, you know, I’m like no longer allowed anywhere near anybody from my reserve, and I grew up there as a kid.”
‘No hearing, no opportunity to be heard’
CBC News reached out to NCN Chief Angela Levasseur for comment on Monday but has not yet heard back.
Marty Moore, a lawyer representing Francois, says the five-year banishment is an “incredibly extreme punishment.”
“The idea that you can be banished from your home, and your family, without notice or an opportunity to be heard, is just an egregious violation of basic principles of fundamental justice,” he told CBC News on Monday.
“He has a 16-year-old daughter, he’s got a two-year-old granddaughter there on the reserve, so this is talking about a very serious interference with someone’s ability to be part of their family and part of their community as well.”
Francois’s application argues that the checkstop infringed his Charter right to be secure against unreasonable search or seizure and the right not to be arbitrarily detained. These allegations have not yet been tested in court.
Moore says NCN’s banishment rules say that while a hearing on an eviction order can be requested within seven days, a person subject to a banishment order can request a hearing “no earlier than five years from the date of the banishment order.”
“It literally provides no hearing, no opportunity to be heard for at least five years — once a banishment order is issued — and so there’s a problem here with this decision, absolutely,” said Moore.
NCN’s own legal framework recognizes its members’ rights under the Constitution, he said.
“Indigenous Canadians have rights under the Charter of Rights and Freedoms just like other Canadians, and those must be respected, including by their own First Nation’s government.”
Marc Kruse, director of Indigenous legal learning and services at the University of Manitoba’s Robson Hall law school, says there’s a long history of First Nations using band council resolutions to check what’s coming into their communities — an authority that stems from the Indian Act.
While First Nations have their own sovereignty and should be able to write their own laws, Kruse says all law in Canada needs to follow the Charter and the Constitution.
“The issue here is, I don’t think they’re following common law or Indigenous law when it comes to exile orders,” he said.
“They don’t have a process, and the process can’t be just people in a backroom signing a piece of paper. That’s not law from the common law side or from the Indigenous legal order side.”
Most Canadian provinces have seen First Nations banishments overturned because courts found there was no due process, he said.
“If there is no due process, then the federal court’s going to side with the person who was exiled,” he said. “They have to be given notice, a chance to hear the evidence, present evidence and have a decision in writing.”
Francois’s case shows the need for Indigenous courts in Manitoba, he said.
“We need a system and structure where we can develop our own laws and have those laws heard in a place.”
