B.C. man banished from First Nation argues jail sentence amounts to 'double jeopardy'

The lobby of B.C. Supreme Court in downtown Vancouver is seen in a CTV News file image.

A Vancouver Island man who burned down a home on the Wei Wai Kum First Nation will be allowed to appeal his jail sentence on the principle of "double jeopardy" after arguing he had already been punished for the crime when the First Nation banished him from the reserve.

Eddy Walter Cliffe was sentenced to 21 months in jail and 18 months of probation after pleading guilty to arson on the reserve near Campbell River, B.C.

But before entering his guilty plea, the Wei Wai Kum First Nation issued a banishment order barring him from entering the nation's reserve lands for six months as punishment for the crime.

Earlier this month, Cliffe petitioned the B.C. Court of Appeal, asking the province's highest court to appoint a lawyer for him to overturn both his conviction and his sentence.

On Feb. 16, Justice John Hunter dismissed Cliffe's conviction appeal but granted his sentence appeal, appointing a lawyer to argue the case on his behalf.

Home doused with gasoline

At trial, the court heard how Cliffe and his mother set fire to the house he lived in on June 25, 2019.

Cliffe owned the house, with a mortgage secured by the First Nation. However, when he defaulted on the mortgage, and efforts to settle the debt were unsuccessful, the nation served Cliffe an eviction notice.

More negotiations to resolve the debt ensued but Cliffe did not pay his mortgage debt and the eviction proceeded.

Cliffe's mother sent an email to the nation expressing her frustration over the eviction, "which amounted to a veiled threat to burn the house down," the judge wrote in his decision.

At a meeting the next day, the First Nation told Cliffe and his mother the house would be sold.

"The day before the nation was set to take control of the house, the appellant called the chief and confirmed that the nation was going to follow through with that plan," the judge wrote. "Shortly after that call, the appellant purchased gasoline."

Cliffe phoned a friend, asking if he should let his mother be the one to burn down the home to take the blame for him. He also told the friend that she should not come to the house because it would be "going up" in the next 15 minutes, the judge wrote.

Cliffe and his mother met on the morning of the fire, discussed their plan and removed some belongings from the house before dousing it in gasoline.

The pair then recorded a video in which Cliffe claims to be trying to prevent his mother from lighting the house on fire. Later, Cliffe handed a burning Q-tip to his mother, who set the fire, the court heard.

Once the blaze was set, Cliffe warned his neighbour about the fire and then called the Wei Wai Kum First Nation chief to say he tried unsuccessfully to stop his mother from starting the fire.

Double jeopardy argument

The two were subsequently arrested and charged with arson, to which they pleaded guilty.

"The unusual feature of the case that Mr. Cliffe wishes to raise is that some time in July 2019, the nation issued an order against Mr. Cliffe banishing him from the reserve for six months," the judge wrote.

"Mr. Cliffe argues that his conviction for arson after the banishment order constitutes double jeopardy."

While the judge granted the appointment of a lawyer to argue the appeal, he expressed "grave doubts" about the merits of the double jeopardy defence in the case, saying Cliffe would have to prove that the Wei Wai Kum banishment was imposed under criminal law or that it provided "true penal consequences."

"Mr. Cliffe argues that both the banishment and the arson charge arose from the same conduct, and accordingly once he was punished by way of banishment, he cannot be punished again through the criminal law," the judge wrote.

"The consequence of this argument is that a serious crime could not be prosecuted against an Indigenous offender if, before charges could be brought, the offender received a banishment order authorized by an internal rule of the nation."

The appellate court judge ruled that although the lower court judge was aware of the banishment order, she may have failed to take the banishment fully into account when imposing the sentence.

"The relationship between a First Nation's banishment order and a sentence under the Criminal Code raises issues of sufficient complexity to support the appointment of publicly funded counsel to assist Mr. Cliffe in presenting his argument," the judge concluded.