Thread:Proposed Changes to Facts of the Case (1)

The case of Thomas v Norris is a civil case involving the torts of assault, battery, and false imprisonment.

Mr. Thomas, the plaintiff, is an "Indian" within the meaning of the Indian Act,R.S.C. (1985), c.1-5. He is a member of the Lyackson Indian Band. The defendant, Mr. Norris, is also an "Indian" within in the meaning of the Indian Act. Late in the afternoon of February 14, 1988 the plaintiff was unwillingly taken by the defendants to Somenos Long House of the Cowichan Indian Band. He had never been a member of the Cowichan Band. The plaintiff, DavidThomas, is a 35 year old man and a member of the Lyackson Indian Band. The defendants consist of seven men, of which four men belong to the Cowichan Indian Band, one man belonging to the Halalt Indian Band, and one man whom is a non-status Indian and is not a part of any band.

Late in the afternoon of February 14, 1988, the plaintiff was unwillingly taken by the defendants to the Somenos Long House , a community house of the Cowichan Indian Band.There, the defendants forced the plaintiff to participate in an initiation ceremony to become a spirit dancer. The plaintiff claims that he was injured and wrongfully imprisone'd while by being forced to participate in the ceremonies. During which he claims he was assaulted, battered, and wrongfully confined.

The defendants launch presented three defenses against the plaintiff allegations. First, they claim that they did not have sufficient intent to harm the plaintiff. Second, they argue that the plaintiff consented to their actions. Third, they attempt maintain a constitutional argument based on s, 35(1) Constitution Act, 1982 arguing that the Coast Salish Spirit Dance is an aboriginal right and therefore protected under the constitution.

The court frames three issues. The first issue is related to the first and second defense of the defendants and asks whether the defendants assaulted, battered, or falsely imprisoned with the necessary intent and without consent. The second issue relates to the constitutional argument mounted by the defendants, and the third issue is in relation to possible damages. In dealing with the first issue the court states that there was not sufficient evidence to prove the defendants argument. Therefore, the plaintiff is entitled to damages. The courts quickly dismissed the first issue, and with it the first and second defenses. There was simply no evidence to suggest a lack of intent and no evidence to suggest the plaintiff consented in any way. Further, when the plaintiff arrived at the hospital he was notably dehydrated, had multiple contustions and expressed a fear of being taken back to the Long House.

In dealing with the constitutional argument the court sets out to define the nature and the scope of the argued right in s.35(1) of the Constitution Act, 1982. The defendants claim that because the spirit dance is a constitutionally protected right they are immune from civil claims. The court does not uphold this argument. Reviewing the common law, the court found that there is not sufficient evidence to assert an aboriginal right. Though it did acknowledge that an aboriginal right may have existed for some dances, this kind of dance would be extinguished by the English Law as it conflicts with the criminal and common law which protects individuals from this type of abuse. Even with the acceptance that the spirit dance is a constitutionally protected aboriginal right the court holds that these rights are not absolute and are limited by the criminal and civil laws. In its reasoning the court also discusses the nature of rights and freedoms enjoyed by all Canadian citizens. These rights, the court asserts, cannot be reduced because they are “original” freedoms. Therefore, Mr. Thomas enjoys rights that are inviolable and are not subject to the collective rights of others. In conclusion, the defendants defenses of intent and implied consent are insufficiently proved and their constitutional argument is rendered inadmissible.

The descion is for the plaintiff, and Mr. Thomas is awarded damages.