Monthly Archives: December 2020

R v Angnatuk, 2020 QCCS 3650

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The Court sentenced an Inuk man to life imprisonment and ordered him ineligible for parole for 18 years for the second-degree murder of his Inuk partner. His Gladue factors were considered in setting the period of ineligibility for parole but they were the only mitigating factor.

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Jimmy Angnatuk, was found guilty by jury of the second degree murder of Elisabeth Novalinga. By law, Mr. Angnatuk faces a mandatory sentence of life imprisonment. Access to the appropriate tools and programs to address his issues is paramount, and that Mr. Angnatuk will take steps towards rehabilitation. Domestic violence, in an Indigenous context or not, is a scourge on society. Mr. Angnatuk is to be sentenced to life imprisonment without eligibility for parole for 18 years.

Mr. Angnatuk and Ms. Novalinga lived in Kuujjuarapik and were in a relationship. On the day of her murder, both consumed alcohol and had an argument. Later that evening, the police received an emergency call. They arrived at the house shortly after, where the accused remained on the premises, and told the officers that he had killed Ms. Novalinga. She was found deceased with multiple blunt force injuries and knife wounds on her body.

Ms. Novalinga’s two children are now left without a mother. Mr. Angnatuk murdered Ms. Novalinga while he was bound by an undertaking, and he has a pending case of assault causing bodily harm. He has a history of abuse against his partners and has multiple prior convictions for violent offences against his partners but also against strangers. He is impulsive and extremely dangerous, has not shown a real possibility of rehabilitation, and has been in and out of prison without it being a deterrent.

Fixing an extended period of parole ineligibility is a very fact-sensitive process (R v Shropshire, [1995] 4 SCR 227). Sentencing is an individualized process. The sanction must be adapted to the nature of the offence and the situation of the offender (R v Nasogaluak, [2010] 1 SCR 206). The Court has to weigh the objectives listed in s 718 of the Criminal Code and against the facts and the relevant aggravating or mitigating factors, consider the ranges of sentences for similar circumstances, as well as the needs of the community in which the offence occurred.

Although the Court did not have a contemporary pre-sentence report that could help assess his risk of reoffending, Mr. Angnatuk has, by his own admission, serious anger and emotional issues that have been left largely unaddressed over the years. Mr. Angnatuk mentioned to his Gladue Report Writer that he is aware that he has a lot of anger inside, and that he understands that he needs help with his feelings and his anger in order not to reoffend. He shows an interest for programs or counselling sessions tailored to Inuit or that are culturally relevant and in his own language or that offer traditional activities.

Ms. Novalinga was, as Mr. Angnatuk is, Inuk, and suffered a horrible fate at the hands of her partner, who prevented her from getting help in extricating herself from a violent situation because he did not want to go to jail. The aggravating factors are numerous in the present case. The Court also has to take into account Gladue factors in determining Mr. Angnatuk’s sentence. The Court analyzed the factors documented in the Gladue Report that pertain to Mr. Angnatuk, his family, the community of Kuujjuaq, and the lasting impact of assimilation policies on Inuit People. However, were it not for these elements, the Court would have found no substantive mitigating factor in Mr. Angnatuk’s favour.

Okanagan Indian Band v Johnston, 2020 BCSC 1749

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The Court granted a one-year stay against the Band’s application for summary trial against a former member in relation to an interest in reserve land her late aunt bequeathed to her. The stay will give the defendant time to appeal the rejection of her membership application in another proceeding, although she will have other hurdles to surmount beyond membership before she can obtain a legal interest in the lot.

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The defendant, Marilyn Johnston, was a former member of the plaintiff, Okanagan Indian Band [“OKIB”] but is not a present member. Currently, she is a registered Indian of the Nak’azdli Whut’en Indian Band in Fort St. James, B.C. Ms. Johnston was bequeathed property on the reserve from her aunt who died in 2013. The plaintiff, the OKIB, is a band within the meaning of the Indian Act, and is the beneficiary of six reserves set aside for its use and benefit by the federal Crown pursuant to s 18 of the Indian Act. Okanagan Reserve No. 1 is one of the reserves set aside for the OKIB. Section 50 of the Indian Act prevents Ms. Johnston from inheriting her aunt’s property. The OKIB says that she must therefore vacate the property and Okanagan Reserve No. 1 [“Reserve”].

Ms. Johnston applied to transfer her membership back to the OKIB, and has been taking steps since then to reinstate her membership in the OKIB. She originally transferred her band membership from the OKIB in 1988 to enhance her credibility and trust with the community members she worked with in the victim services program. She had moved to that area in approximately 1976 and worked there in the social service sector. It was always the defendant’s intention to return from the Nak’azdli Whut’en Indian Band to the OKIB, as she has extensive ties to the Reserve.

When the defendant first contacted the OKIB in 2002 to transfer her membership, she was advised that the OKIB was in the process of adopting a new band membership transfer policy. OKIB said that it would process her application and she would be registered as a member. An internal band memo in 2012 stated that the defendant “has fulfilled all the requirements to apply for transfer to” the OKIB. It resolved that the defendant “has been accepted into the membership” of the OKIB, however, the transfer was not processed.

There is an issue between the parties as to whether the membership requirement in s 50 should be interpreted as being a member of the band at the date of the testator’s death, or whether it is retrospective and can be cured by membership granted after the date of death of the testator. The usual process under s 50(2) of the Indian Act where a beneficiary is unable to inherit the lands is for the lands to be sold to a band member and the proceeds of the sale provided to the beneficiary. Should the lands not sell, the lands would revert to the OKIB pursuant to s 50(3).

In 2019, the OKIB reconsidered the defendant’s application, but denied the defendant’s application for membership on the basis that she displayed aggressive and threatening behaviour to the OKIB staff and guests and that she would not make a positive contribution to the community. The defendant says she did not commit the behaviour or acts alleged and that there is no reasonable basis to deny her membership. The defendant appealed the OKIB Band Council decision to deny her membership with a formal application to the Protest Unit of ISC pursuant to the OKIB’s Band Membership Transfer Policy and s 14.2(1) of the Indian Act [“Protest”].

The Protest was sent by registered mail and accepted. The defendant has not yet received a reply. The basis for the Protest is that the decision to deny the transfer of membership to the OKIB was made without proper consultation and was significantly delayed. Subsequently, the plaintiff filed this Notice of Application. The defendant filed her application seeking a stay of proceedings to permit the membership process to complete, by way of appeal if necessary.

The Court has inherent jurisdiction to grant a temporary stay in a proceeding before it (Law and Equity Act, s 8(2); RJR-MacDonald Inc v Canada (AG), [1994] 1 SCR 311 [“RJR-MacDonald”]. There is a serious question to be determined (RJR-MacDonald). In the Court’s view, there is an intrinsic link between the membership application issue and the plaintiff’s claims against the defendant. In the event that she becomes a member, there will likely be the two hurdles identified by the plaintiff, the retrospectivity of the operation of s 50, and the permission of the Minister pursuant to s 49. Irreparable harm would be occasioned to Ms. Johnston if the stay was refused. The second branch of the test is met by the defendant (Dixon v Morgan, 2020 BCCA 200).

In considering the balance of convenience, it is important to note that the defendant first applied to OKIB for a transfer back of her membership in 2002. The decision denying the application was made in 2019. In the intervening time, Ms. Johnston returned to live with her aunt in 2009, and her aunt died in 2013. Internal band documents indicate that in 2012 there was no impediment to approving the membership application. There were many attempts made by Ms. Johnston to communicate with OKIB and further her application throughout the years from 2002 to 2019. The lack of certainty of the future of the Lots lies at the feet of OKIB as a result of their delays. The prejudice to the defendant is far greater than that to the OKIB (RJR-MacDonald). The stay is granted with the length of one year.

R v Head, 2020 ABPC 211

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The Court sentenced an Indigenous man to 245 days in prison (time served) followed by three years of probation for various offences including robbery of a convenience store. Counsel initially agreed to a joint submission on sentence for 30 months in prison but this position was abandoned once counsel investigated Gladue factors and the legal relevance of Fetal Alcohol Spectrum Disorder to moral blameworthiness.

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Simon Peter Head, a 26-year-old Aboriginal man pleaded guilty to 12 separate charges. A joint submission was presented of 30 months of jail, less 5 months time served, leaving 25 months left to be served in a federal institution where he had never been before. Gladue factors were read in superficially. The Crown’s position was that Mr. Head had an aggravating record with regard to breaches and failings to appear, as well as a history of assault and property offences.

In March 2017, a Gladue report was prepared. Mr. Head at the time of the report was almost 23 years of age. This report was prepared for 2 robbery charges that he was facing in 2017. Mr. Head dropped out of school, and in respect to Child Welfare system, he had been fostered. He had two different group homes between the ages of 12 and 16. Upon leaving, he did not have any means of employment and has not maintained any type of employment since then. When he was young, he started using alcohol. When he was 19, he then switched to crystal meth, which is his current addiction, and he struggles with now.

In 2017, he was hopeful to get out of his criminal life. He was interested in his Aboriginal heritage. He wanted to work with an Elder and learn how to make drums. He recognized that he needed help to manage, was remorseful for what he had done, particularly to the victims. He wanted to try and go back to do some schooling, particularly in computers. Although not formally diagnosed with FASD, he does have indicators. Although the Court found that Mr. Head’s moral culpability is at the lower end, it does not to detract from the fact that he caused harm to individuals.

The Court advised that counsel must understand that before bringing joint submissions before the court involving Aboriginal persons, they must do a careful analysis of the intersections of the Gladue factors related to this accused and what is a fit and proper sentence. Coming before a court and expecting a sentencing judge to rubberstamp a joint submission is not what Gladue says what the judge’s function is.

Although joint submissions are important to the administration of justice, they should not be accepted where the joint submission has failed to properly consider Gladue factors including FASD and other cultural circumstances. Judges should not be adding to the overrepresentation of Aboriginal persons in prisons where alternative approaches are available and which would meet the principles and objectives of sentencing. Counsel must be prepared to come to court with the proper information. This was not the case in the matter before this Court as demonstrated in its history.

R v Aklok, 2020 NUCJ 37

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The Court accepted a joint submission on sentence of 45 days of imprisonment followed by nine months of probation for two counts of assault by an Inuk man against his Inuk intimate partner. While the Court found the test for departure from a joint submission had not been met, it expressed concerns with counsel’s failure to justify this lenient sentence, particularly given the prevalence of intimate partner violence in Nunavut.

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Mr. Aklok is a 39-year-old Inuk from Kugluktuk. Mr. Aklok is a repeat offender with a criminal record that contains 13 entries between 2000 and 2012. Mr. Aklok was sentenced for assaulting his intimate partner according to the terms of a joint submission in which the Court found troubling. The joint recommendation was imposed because of the constraints from rejecting it (R v Anthony-Cook, 2016 SCC 43 [“Anthony-Cook”]).

Cases of alcohol-fueled intimate partner violence against Inuit women and girls consistently dominate the Court dockets across the Territory. Far too often, the same intimate partners in crisis are involved in cases before the Court, as in this matter.

There are Gladue factors that need to be taken into account in the sentencing, and in this context, the effects of historic and systemic colonialism and inter-generational trauma experienced by Inuit. Mr. Aklok experienced significant violence all through his childhood. His memories include as a young child watching his father beat up and choke his mother, leaving her bruised, swollen, and helpless on the floor. Mr. Aklok also experienced physical abuse from his father. He was often bullied and ostracised at school and has struggled to find housing and a full-time job and has spent time in homeless shelters.

The joint submission imposed by the Court was unduly lenient, and counsel failed to justify their leniency as the joint submission did nothing to help dispel the perception that the justice system devalues the lives of Inuit victims of crime. However, in Anthony-Cook, the Supreme Court of Canada established a “stringent” public interest test to guide front-line judges when they consider a “contentious” joint submission. Although troubled, the Court was bound to follow appellate direction, and impose the joint submission.

Inuit women, and all Nunavummiut, deserve a justice system that meaningfully addresses gendered violence. Earlier this year, gender-based intimate partner violence was addressed in a report released by Pauktuutit Inuit Women of Canada: “Gendered violence against Inuit women is a problem of massive proportions. Women in Nunavut are the victims of violent crime at a rate more than 13 times higher than the rate for women in Canada as a whole. The risk of women being sexually assaulted in Nunavut is 12 times greater than the provincial/territorial average. In 2016, Nunavut had the highest rate of female victims of police-reported family violence in Canada” (Addressing Gendered Violence against Inuit Women: A review of police policies and practices in Inuit Nunangat, Pauktuutit Inuit Women of Canada and Dr. Elizabeth Comack, January 31, 2020). There is a need and a role for Parliament to reopen debate on this vitally important aspect of the criminal justice system.