An Ontario Superior Court judge has dismissed a mid-trial application from a group of ten Indigenous individuals who alleged the justice system holds an institutional bias against them, a claim rooted in the history of the Catholic Church and crystallized, they argued, by a Crown prosecutor’s questions about the Pope1. The decision allows a long running and complex constitutional trial over Indigenous rights and federal cannabis laws to proceed.
The ruling, released on October 9, 2025, by Regional Senior Justice P.J. Boucher, stems from a series of charges laid against David Brennan, Sarah McQuabbie, Harley Hill, Clayton Hill, Chadwick McGregor, Michael Nolan, Dennis Wigmore, Derek Roque, Noble Boucher, and Luke Klink. The individuals face charges under the federal Cannabis Act for offences related to the possession and sale of cannabis. Although the charges originated in several different judicial regions, including Parry Sound, Peterborough, Sault Ste. Marie, and Sudbury, the proceedings were consolidated to address five identical constitutional challenges raised by the accused.
The legal journey to this point has been lengthy. In a 2022 decision, Justice Boucher summarily dismissed four of the five constitutional questions brought by the group. However, he allowed one central question to proceed to a full trial. That question asks whether the Cannabis Act infringes upon the accused persons’ Aboriginal and treaty rights, protected under section 35 of the Constitution, to the traditional use and trade of cannabis and hemp. After the Crown failed in a second attempt to have this remaining challenge dismissed, the trial on the section 35 rights issue finally commenced in January 2024.
The proceedings took a significant turn in June 2024 when the accused filed a new and distinct application. This application alleged that their right to a fair hearing by an independent and impartial tribunal, guaranteed by section 11(d) of the Charter of Rights and Freedoms, was being violated. The basis for this claim was an alleged “reasonable apprehension of institutional bias” linked to the historical involvement of the Jesuits with Indigenous peoples in Canada.
Initially, the application made personal allegations, claiming that both the presiding judge, Justice Boucher, and one of the prosecuting Crown attorneys, J. Plamondon, had Jesuits in their family histories, which they argued contributed to the alleged bias. The application sought significant remedies, including the convening of a traditional Indigenous circle to resolve all matters, or alternatively, a declaration of a mistrial, or the recusal of both the judge and the prosecutor from the case.
However, when the application was argued in court on October 6, the position of the accused had evolved. Their counsel, M. Swinwood, formally abandoned the allegations of personal bias related to the family trees of the judge and the Crown attorney. Instead, the focus shifted entirely to the broader concept of institutional bias, which they argued was inherent in the justice system. The accused also narrowed their requested remedy, dropping the call for a mistrial or recusal and asking only for a traditional Indigenous healing circle to resolve the dispute. They clarified that if the circle was unsuccessful, the court trial could resume.
The lynchpin of their revised argument was a specific exchange that occurred during the Crown’s cross-examination of a witness, Chief Stacy Amikwabi. The accused argued this moment “crystalized” the latent institutional bias they were alleging. The questioning concerned a handwritten document dated March 31, 2018, which Chief Amikwabi had provided to the Ontario Provincial Police. The document, described as a “writ of quo warranto,” challenged the jurisdiction of the OPP on the French River Indian Reserve #13 and made reference to “the Pope in Rome.”
The court’s decision reproduced the trial transcript of the exchange. The Crown attorney asked Chief Amikwabi about the relevance of the Pope. The Chief responded, “The King of England ceded England to the Pope in Rome.” When asked when this occurred, he stated, “1213.” The Crown then asked, “So, in your view the Queen or the Crown reports to the Pope?” Chief Amikwabi replied, “You are a vassal of the Vatican,” clarifying he meant “the entire system.”
According to the accused, this line of questioning was irrelevant and demonstrated a profound lack of appreciation for the painful historical relationship between the Catholic Church and Indigenous peoples, which they argued led to policies such as the Residential School system. In support of their application, they filed a nearly 100 page affidavit from Chief Amikwabi, which noted that his own mother attended a Catholic Residential School and that his family name was unilaterally changed from Amikwabi to McQuabbie by the Church. The questioning, they submitted, amounted to a “routing of Indigenous knowledge” within the colonial court system.
In response, the Crown brought its own application, asking the court to summarily dismiss the institutional bias claim without a full hearing, arguing that it was “manifestly frivolous.”
In his decision, Justice Boucher first outlined the high legal standard required to grant such a dismissal in a criminal context. Citing a recent Supreme Court of Canada case, he noted that an application can only be dismissed this way if it is “manifestly frivolous,” meaning it will “inevitably or necessarily fail” and that this failure is “obvious on the face of the record.”
Justice Boucher then analyzed the equally high standard required to prove institutional bias. The test, established in previous Supreme Court decisions, asks whether a well informed person, viewing the matter realistically, would have a reasonable apprehension of bias “in a substantial number of cases.” The bias must relate to the structure of the judicial system itself, rather than the conduct of a single individual within it.
Applying these tests, Justice Boucher concluded that the accused’s application was indeed manifestly frivolous and could not succeed. He noted the “strong presumption of judicial impartiality that is not easily displaced” and found no evidence that the judiciary was subject to pressure from the state or that the system was structured in a way that creates bias.
He found that, even taking the accused’s evidence at its highest, an allegedly improper and insensitive, but brief, cross-examination does not meet the threshold for institutional bias. “In my view, nothing about the questioning impacted the appearance of a ‘fair adjudicative process’,” Justice Boucher wrote, pointing out that no objection was raised by the defence at the time.
Crucially, he emphasized that the test requires evidence of bias in a “substantial number of cases,” and that “no evidence was tendered regarding this part of the test.” He also found the proposed remedy to be illogical; if the court was truly institutionally biased, it would not make sense for the trial to simply resume before the same court if the proposed Indigenous circle was unsuccessful.
For these reasons, the Crown’s application was granted, and the underlying application from the accused alleging institutional bias was dismissed. Justice Boucher noted, however, that his decision does not prevent the parties from voluntarily engaging in any other mutually acceptable dispute resolution process. The constitutional trial concerning cannabis and Indigenous rights is now set to continue.
Read about more cases involving indigenous matters here.
