B.C. judge warns of 'tsunami' of Indigenous identity fraud cases

WARNING: This story contains details of child sexual exploitation and pornography.

After he was charged with possessing child pornography, Nathan Allen Joseph Legault discovered a figure from his past he hoped might help with his future.

The Prince Rupert, B.C., man — a former Baptist associate pastor — learned that a great-great-grandmother had been Métis, and based on that distant connection he asked for the special consideration Canada's highest court mandates for sentencing Indigenous offenders.

The judge who heard the case ultimately found that Legault had nothing in his life experience as a newly self-identified Indigenous person to lessen the "moral blameworthiness" he bore for sending graphic images of himself to teenage girls.

Judge David Patterson didn't rule on whether Legault is or is not actually Métis — that's not his job. But in reluctantly ordering a sentence that will see the 30-year-old avoid hard jail time, he warned that courts need to deal with non-Indigenous offenders trying to game the system.

"A tsunami is coming; driven by the desire of non-Indigenous people to get what they perceive to be the benefits of identifying as Indigenous," Patterson said as he handed Legault a conditional sentence of two years less a day.

"I am of the view that the only way to give meaning to the Supreme Court of Canada's teaching ... is for judges to be alive to the issue of Indigenous identity fraud and require some proof that satisfies the court that the person being sentenced is entitled to be sentenced as an Indigenous person."

'Unduly lenient'

Patterson sentenced Legault at the end of January, but the judgment was only recently posted online.

The lengthy ruling is notable both for the judge's deep dive into questions of Indigenous identity and his misgivings about a deal between defence and the Crown he feared was "not only unduly lenient but also has the potential to bring the administration of justice into disrepute."

Legault's crimes centred around communication with two girls he met while serving first as a youth camp director in Saskatchewan and next as a pastoral intern in Windsor, Ont.

He sent his victims altered pictures of their faces cropped onto the nude bodies of children. He also sent a video of himself masturbating to one of the girls and sent graphic pictures and videos of himself to friends of both girls.

Legault pleaded guilty to two counts of making and possessing child pornography. He also co-operated with police, expressed remorse and garnered the support of his wife, parents, siblings and former church members.

Still, Patterson said he was "uncomfortable" with the sentence, which sees Legault adhere to a curfew during the week and house arrest on weekends.

But the judge said he felt he had no choice but to "reluctantly endorse" the joint submission because it wasn't "a certainty" that the sentence would be contrary to the public interest.

'He is relying on ... family lore'

Patterson's concerns around Indigenous identity fraud arise from a Supreme Court of Canada decision known as Gladue — which requires judges to pay "particular attention" to the circumstances of Indigenous offenders to achieve a "truly fit and proper sentence."

The top court calls on judges to consider restorative justice — "the needs of the victims, and the community as well as the offender" — as well as "traditional Aboriginal sentencing approaches" as alternatives to incarceration.

"The existing overemphasis on incarceration in Canada may be partly due to the perception that a restorative approach is a more lenient approach to crime and that imprisonment constitutes the ultimate punishment," the Supreme Court said in Gladue.

"Yet in our view a sentence focused on restorative justice is not necessarily a 'lighter' punishment."

According to the decision, Legault only recently self-identified as Métis — because of "a paternal great-great-grandmother who was a member of the Haudenosaunee Confederacy, also known as Six Nations (Iroquois) of Montreal."

"Mr. Legault has not pursued a DNA test or investigated his family tree through genealogy research," Patterson wrote.

"Instead, he is relying on what I call 'family lore' he recently learned and what he says was a telephone call by a relative to the Ontario Métis Family Record Center that apparently confirmed the family's Métis ancestors and heritage."

'There has to be evidence'

Patterson called the problem of "trying to define who is entitled to self-identity as Métis in criminal court" a "quagmire" — quoting extensively from a report on Indigenous identity fraud drawn up for the University of Saskatchewan.

The author of the report, Métis lawyer Jean Teillet, told CBC Patterson is "quite right."

"I think the tsunami isn't just coming, I think it's actually here already and it's showing up everywhere across the country in all of our institutions and I think we ignore it at our peril," she said.

Teillet says no one was thinking about identity fraud when the Supreme Court ruled on Gladue in 1999. But times have changed.

She says judges shouldn't decide who is Indigenous — but they can determine if offenders are providing the kind of evidence demanded in every other part of the criminal process. And an "old family" story or a membership card obtained for a fee don't meet the bar.

"Judges don't take anything without proof. There has to be evidence," she said.

"They're asking the wrong questions. It's not about determining whether they are Indigenous or not. It's determining whether there's proof before the judge that this person is being honest."

'I constantly ask myself, why me?'

Legault's Métis self-identification meant he was entitled to ask for a Gladue report. 

Patterson said he was required to look "deeper into the realities" of Legault's life experience to consider factors like poverty and the impact of residential schools, colonialism, racism and loss of connection with Indigenous heritage.

He came up blank.

"There is no evidence that Mr. Legault having a paternal great‑great‑grandmother who was a member of the Haudenosaunee Confederacy in any way, shape, or form ... contributed to his child pornography addiction," Patterson wrote.

"Simply put, there is nothing to equate Mr. Legault's life experience with that of the Métis people specifically or Indigenous peoples in Canada generally."

The judge chose instead to give voice to the life experience of someone with whom Legault has a more direct, very recent connection — one of his young victims.

"This has destroyed my physical and mental well-being. I am disgusted by the actions," the girl wrote in an impact statement provided to the court.

"I constantly ask myself, why me? This is something that can't be erased and it will and has hurt me forever."

For anyone who has been sexually exploited or sexually abused, there is support available through crisis lines and local support services via this Government of Canada website or the Ending Violence Association of Canada database. ​​If you're in immediate danger or fear for your safety or that of others around you, please call 911.