R c Adams, 2020 QCCQ 9127

Posted on January 13, 2021 by thp151

An 11 month consecutive sentence is reasonable for an Indigenous accused, who is serving a sentence for unrelated offences. He shall, for the next 2 years, respect conditions in a probation order, and is prohibited from operating any motor vehicle in Canada for a period of 5 years.

Indigenous Law Centre – CaseWatch Blog

The accused, Mr. Adams, is a 36 years old Indigenous male registered as a member of the Mohawks of Akwesasne. In 2011, he was spotted by police operating a motor vehicle while disqualified, but decided to flee the police officers. He pleaded guilty to charges of flight from police, of driving while disqualified and of breaching a valid recognizance binding him not to drive any motor vehicle. Subsequently in the same year, the accused stole his grandmother’s vehicle and was later involved in an accident. He pleaded guilty to charges of vehicle theft, driving while disqualified, and one count of breaching his recognizance by operating a motor vehicle while he was bound not to.

In 2019, the accused was spotted operating a boat full of bags containing tobacco. The accused was enroute to offload the cargo, but the RCMP marine patrol blocked him, whereby the accused rammed the RCMP vessel, capsizing his own boat. He pleaded guilty to charges of possession of unstamped tobacco and obstructing police officers. The last event happened in 2020. Police observed and tried to intercept two snowmobiles with sleds they thought were transporting illegal tobacco. One of the snowmobiles rammed the police while the other, operated by the accused, got away. The accused was charged and pleaded guilty to the possession of this unstamped tobacco, as well as to charges of breaching his recognizance for not showing up in Court, and for possessing illegal tobacco while it was prohibited by the recognizance. The accused is charged by both the provincial and federal Crown. The provincial crown is prosecuting for the 2011 events, while the federal crown is prosecuting for the 2019 and 2020 events.

Further investigation revealed he did not spent the 8 year period avoiding the law while staying out of trouble. He was in fact detained in the United States for an offence of conspiracy to possess with intent to distribute and distribution of controlled substances committed in 2012. In coming to Canada and in committing the 2019 and 2020 crimes, he breached his supervision order.

According to the Gladue report issued, as a child Mr. Adams experienced different forms of abuse and neglect, abandonment, lower level of education, and the normalizing of substance abuse and smuggling. He also endured separate traumatic events that included the death of his father and a very close uncle. As an adult, he has been living in a hopeless state of mind, dealing with a dependence on alcohol and drugs and is currently incarcerated. Mr. Adams has two children he has not been present to see grow up, because of time spent in jail since their birth. The only mitigating factor for Mr. Adams, however, seems to be the plea of guilt. The quantities seized in each file of unstamped tobacco is important (1274 kg in the 1st file, and 773 kg in the second file). Both these crimes were committed recently, after being released from the United States.

Considering the priors convictions, the gravity of these offences, the need for deterrence, the passage of time, the Court finds a lower sentence would be unreasonable, given the accused is not to this day rehabilitated, as can be seen from the facts in the smuggling files. Because the 2011 events have nothing to do with the 2019-2020 events, these sentences need to be served consecutively. The 11 month sentence should be served consecutively to the sentence being currently served.

R v Ingram, 2020 BCPC 168

Posted on January 12, 2021 by thp151

The Court concluded that the joint submission put forth by counsel is appropriate given the unique circumstances of the Indigenous offender who committed intimate partner violence against his late Indigenous partner. The sentence imposed is 60 days’ new jail to be served in the community in the form of a conditional sentence with conditions, followed by a 12 months probationary term.

Indigenous Law Centre
Indigenous CaseWatch Blog

Mr. Ingram has admitted, through his guilty plea, that he assaulted his intimate partner contrary to s 266 of the Criminal Code. Counsel gave a joint submission on sentence, in which the Court may only depart if the proposed sentence would bring the administration of justice into disrepute or if the proposed sentence is otherwise contrary to the public interest (R v Anthony Cook, 2016 SCC 43). The Court must also consider what impact, if any, the COVID 19 pandemic has had on the sentencing process (R v Stevens, 2020 BCPC 104).

Mr. Ingram got into an altercation with Ms. Ryan and the police were called. During the course of that altercation, Mr. Ingram would not allow Ms. Ryan to leave. He pushed Ms. Ryan and then bit her on the face. The police arrived soon thereafter and took a statement from Ms. Ryan. They saw physical swelling to her face where she had been bitten. Ultimately charges were approved and a warrant was issued for the arrest of Mr. Ingram. Ms. Ryan, did not deserve what happened to her and needs to be recognized for the vulnerable person that she was. Ms. Ryan, has passed, having died of a drug overdose. She was a First Nations woman. It is often difficult to reconcile the reality of giving meaning to the principles of sentencing applicable to Aboriginal offenders when the victim, as per s 718.201 of the Criminal Code, is herself an Aboriginal female victim.

Mr. Ingram is a member of the Haida Nation, identifying with the Old Masset Band. When it comes to Gladue factors, Mr. Ingram’s parents are residential school survivors. The ill effects that have followed down through the years have resulted in him accumulating a seven page criminal record at the age of 47. Mr. Ingram has some 11 convictions for breach of undertaking or recognizances of bail and some 12 convictions for breach of probation, four assaults with a weapon, one assault causing bodily harm, and six uttering threats. Many of the convictions are designated as K files, which in British Columbia is a designation that the offence involves domestic violence, now more commonly known as intimate partner violence. However, Mr. Ingram has accumulated zero breaches since the offence date while being on very strict bail conditions, including a curfew. It has included Mr. Ingram becoming, perhaps for the first time in his adult life, a sober and drug free individual who has sought out and taken counselling.

R v BTL, 2020 BCPC 185

Posted on January 8, 2021 by thp151

The Court imposed a custodial sentence on a young Indigenous first time offender that sexually assaulted his young cousin. A 90-day custody and supervision order served concurrent with a two-year intensive support and supervision program is determined to be best suited to promote his rehabilitation and is in harmony with all the Youth Criminal Justice Act’s principles and purpose.

Indigenous Law Centre – CaseWatch Blog

An Indigenous youth, BTL, at the age of 14, invited his then 13 year old cousin, SP over to his residence for a visit where he forced unprotected sexual intercourse on her. SP disclosed the assault to her mother who then reported it to police. BTL claimed that he had no memory of the event but his DNA was found in the victim’s underwear. He subsequently pleaded guilty to the offence of sexual assault.

BTL is now 16 years old. He is Carrier and a registered status member of a First Nation. His Pre-Sentence Report described the adverse impact of colonization on the Carrier people and his Nation, that included the legacy of residential schools, child apprehension, poverty, poor health, unemployment and substance abuse. BTL experienced a difficult and chaotic childhood rife with domestic violence, drug and alcohol misuse, criminality, instability and dysfunction. The Ministry of Child and Family Development became involved with BTL’s family due to violence, alcohol and drug intoxication, neglect and parental inability to care for the children.

BTL has a number of developmental, cognitive and psychological issues as a result of his prenatal exposure to alcohol and unstable childhood. He suffers from unspecified seizures and displayed extreme behavioural issues in school, leaving without completing Grade 8. Presently, he lives an empty, solitary life at home devoid of any community, prosocial or cultural activity and has succumbed to intergenerational substance misuse. He has no prior criminal record, however, he does have a poor history of reporting to his Youth Worker and attending appointments. As is his right, BTL refuses to discuss with anyone the circumstances of the offence.

The Youth Criminal Justice Act [“YCJA”] provides a detailed sentencing regime governing the sentencing of youth offenders. The focus of sentencing under the YCJA is balancing conflicting principles to arrive at a sentence tailored to the individual circumstances (R v Okemow, 2017 MBCA 59). Sentencing youth pursuant to the YCJA is a context-specific approach unlike the sentencing regime for adult offenders set out in s 718 of the Criminal Code. The YCJA places mandatory restrictions on the use of custodial sentences. The Court concludes, however, that the serious and violent nature of the offence BTL committed against SP precludes them from imposing an alternative to a custodial sentence.

R v TK, 2020 SKQB 262

Posted on January 7, 2021 by thp151

The Court allowed an Indigenous youth’s application for judicial interim release pending trial for first-degree murder. The Court accepted that the Gladue principles were relevant to his application for bail under the Youth Criminal Justice Act, SC 2002, c 1, particularly as they pertain to the secondary and tertiary grounds. The strength of the Crown’s case was not strong, the youth would be in pre-trial detention for a considerable length of time before trial, and a release plan with extensive conditions was proposed by defence counsel.

Indigenous Law Centre – CaseWatch Blog

T.K. is a 16-year-old male who stands charged with first-degree murder in the death of D.D. contrary to s 235 of the Criminal Code. He attended a house party in Regina, Saskatchewan in which it is alleged he brought the suspected murder weapon, a machete. An altercation broke out, and when police were called the next day, D.D. was found dead in the house from severe lacerations to his skull, similar to what would be from a machete. T.K. is one of four young persons charged with first-degree murder in D.D.’s death. Two adults also face first-degree murder charges in respect of his death. Counsel for the Crown served notice that it will be seeking an adult sentence in the event T.K. is convicted of this alleged crime, in which he has elected to be tried by a judge and jury.

T.K. has applied for judicial interim release pending his trial pursuant to s 28 of the Youth Criminal Justice Act [“YCJA”]. He asks that he be allowed to reside with his mother at her home in Regina pending his trial on the murder charge. The YCJA commends judges to release young persons from detention pending trial, even in cases where the young person is charged with an extremely serious criminal offence for which the Crown will be seeking an adult sentence upon conviction.

T.K. is an Indigenous person of Cree descent. Consequently, Gladue factors are relevant and must be taken into consideration on this bail application (R v Gladue, [1999] 1 SCR 688 [“Gladue”]). T.K. had been in the care of the Ministry of Social Services from age 11 to 15. T.K.’s youth record is lengthy, commencing when he was only 14 years of age. At present, T.K. is detained at the Paul Dojack Youth Centre [PDYC], where he has Level 4 status. This status offers T.K. the greatest flexibility at that centre. T.K. is actively pursuing his Grade 10 education and is apparently doing well in his studies. He proposes to continue with his education if he is released. The Crown has not proved on a balance of probabilities that if released from PDYC, there is a “substantial likelihood” T.K. will commit a serious offence.

The Court analysed the strength of the Crown’s case against T.K. on first-degree murder. It is not strong. Apart from T.K. being present at the scene, there is no evidence currently which physically links T.K. to the commission of the offence or to its aftermath. If T.K.’s detention continues, he will be detained for a considerable length of time before he is tried on this offence. No preliminary inquiry has yet taken place, and none is scheduled until March or April 2021, at the earliest, approximately one year after the date of the offence. Once it is concluded, and if T.K. is committed to stand trial on this offence, it will be many more months before his trial would commence.

Taking all considerations into account and mindful that T.K. is a young person, his detention pending trial should be the very last resort and ordered only where no other alternative is available. The Court is satisfied that his application for judicial interim release should be granted and orders that T.K. be released from the PDYC with terms and conditions.

R v Reddick, 2020 ONCA 786

Posted on January 6, 2021 by thp151

Appeal dismissed. There is no error on the sentencing judge’s imposed sentence of an Indigenous offender who committed a robbery with an imitation firearm. Gladue principles was given appropriate consideration, along with hardships arising from the Covid-19 pandemic related lockdowns in determining a fit sentence.

Indigenous Law Centre – CaseWatch Blog

Mr. Chad Reddick entered a guilty plea to robbery and using an imitation firearm while committing an indictable offence. This was an extremely serious offence committed by a 33-year-old man with a significant, albeit largely non-violent, criminal record. The sentencing judge imposed a two-year sentence for the robbery, to be followed by the one-year mandatory minimum sentence for the firearm offence. The sentencing judge also granted the Crown a 12-month non-reporting probation order.

Mr. Reddick appeals the sentence imposed, claiming that the sentencing judge erred in applying Gladue principles and failed to pay attention to the sentencing objective of rehabilitation. He argued that there has been a change in the law that makes a conditional sentence possible for the robbery conviction, and that there has been a high frequency of lockdowns Mr. Reddick has experienced related to the Covid-19 pandemic since the sentence was imposed (R v Sharma, 2020 ONCA 478 [“Sharma”]).

Mr. Reddick is remorseful and has commited to change, however, his appeal is dismissed. Despite the fact that Aboriginal Legal Services declined to provide a Gladue report because he and his family members lacked specific information about his Aboriginal ancestry, the sentencing judge accepted that Mr. Reddick was Indigenous and drew on relevant information in the presentence report in order to comply with s 718.2(e). She applied the Gladue principles appropriately and sensitively, as well as considered rehabilitation.

Even if this Court was to accept that after the Sharma decision a conditional sentence may be imposed on a robbery conviction where a weapon is involved, there is no error by the sentencing judge that would permit resentencing Mr. Reddick using this “new” sentencing tool. As well, pursuant to s 742.1 of the Criminal Code, a conditional sentence cannot be imposed unless the accused is being sentenced to less than two years of imprisonment. The trial judge determined that the least restrictive sentence she could impose was two years. Despite hardship arising from lockdowns which can qualify as a collateral consequence that warrants consideration during sentencing (R v Morgan, 2020 ONCA 279), the sentencing judge already took the current Covid-19 pandemic into account on the hardship of the sentence imposed. The Court is not satisfied on the evidence that circumstances have changed to the point where additional credit should be given.

R c Kanatewat, 2020 QCCQ 3293

Posted on January 5, 2021 by thp151

A jail sentence is warranted for the offender who committed a sexual assault on the victim after entering a private residence. Gladue factors were considered, along with other competing sentencing principles, in crafting a restorative sentence that includes probation and community service.

Indigenous Law Centre – CaseWatch Blog

In 2019, Mr. Kevin Kanatewat, the offender, entered very early in the morning the residence rented by the victim, a male of 30 years old, and sexually assaulted him. The attack lasted approximately one hour and was for the victim intimidating, intrusive, humiliating and a painful experience. The offender was found guilty of sexual assault committed on the victim under s 271 a) of the Criminal Code; two counts of breach of his conditions under s 145; resisting or wilfully obstructing a peace officer in the execution of his duty, s 129 a); and with assaulting a peace officer engaged in the execution of his duties, 270 (1) a). The offender pleaded guilty to failing to comply with a conditions of an undertaking not to drink alcoholic beverages and to not completing all of the 150 hours of community work services he had to execute on a probation.

The Presentence Report mentioned a number of Gladue factors, including an upbringing marked by negligence and violence induced by consumption problems. The offender ceased school in Grade 9 and did not return to any scholastic or vocational program. He has an unstable history of employment where he worked various jobs, some which he lost or quit because of his consumption difficulties. The offender suffers from drug and alcohol abuse but would not participate in any services offered in the correctional facility, nor has he made any therapy demands. There are a number of priors regarding breaches and offenses against persons where the offender got short sentences of jail, generally suspended sentences and probations and even community work. The offender has a low level of maturity and a mitigated sense of responsibility with an elastic capacity for empathy.

This intrusive and forceful sexual assault has seriously harmed the victim, a pharmacy technician, as he suffered a very humiliating and destructive harm on his sense of dignity and security. The subjective gravity of the sexual assault warrants a sentence of jail that symbolizes strong denunciation and deterrence but also calls for weighing appropriately the historic and systemic community background factors as well as the personal background factors in a restorative and individualized fit sentence. This sentence has to be proportionate without trivializing or condoning the violent course of behavior.

The offender’s risk of reoffending is considered high, but could be reduced through the healing process under judicial surveillance. The Court is of the opinion that a sentence of imprisonment of 18 months would be a fit sentence, and probation of 24 months with a long healing and compelling process, along with 240 hours of community work to be performed. The probation and the community work are more likely to get the offender on the right track after a significant term of jail and an involvement in the healing programs.

R v SR, 2020 BCPC 227

Posted on January 4, 2021 by thp151

The Court considered the frequency of sexual abuse perpetrated by a father of a child that took place over the course of a year in 1982. From balancing of the competing sentencing principles and objectives, a period of jail is warranted as the daughter’s emotional, spiritual and physical integrity has been scarred through her lifetime. The father is sentenced to a period of one year jail, without probation after a pre-sentence report and Gladue factors were also considered.

Indigenous Law Centre – CaseWatch Blog

Over a number of months in 1982, S.R. did indecently assault his daughter J.R. contrary to s 149 of the Criminal Code. The charge is dated, as the offence took place 38 years ago when S.R. was 28 years old and J.R. was 6 years old. She is now 43 years old. In 2018, J.R. reported to the police that her father sexually abused her. The charge is indictable, the accused elected to proceed in Provincial Court, and he pled guilty in 2019. S.R. does not remember any specifics of the sexual abuse but does not deny any of the acts, and told the Court he was drinking alcohol excessively during this time of his life.

Of particular importance in this case is the provision of s 718.01 which deals with offences against children. The Court gives primary consideration to deterrence and denunciation when sentencing for any offence involving abuse of a person under 18. The applicable sentencing principles for child abuse, both statutorily and in the common law, are well established (R v D(D), 2002 CanLII 44915 (ONCA); R v Woodward, 2011 ONCA 610 (CanLII)). The harm is enduring, intergenerational, and well recognized. J.R. is now an adult and has told the Court, through the Crown, that her life has been devastated by this crime. J.R. is an Indigenous woman. With that comes a greater chance that she will be emotionally, physically or sexually abused than if she were not Indigenous.

S.R. is now a 65 year old First Nations’ man. S.R. states he and his cousins witnessed countless acts of sexual violence on a regular basis. He described watching his uncles sexually assaulting women on countless occasions. S.R. saw this so often he states he believed this to be normal behaviour. He was six years old when he was exposed to sexual behaviour and pornographic images. As for alcohol, he spoke of the normalization of excessive alcohol consumption. He grew up believing it was normal to drink non-stop all weekend long and partying until all hours of the night.

When she was 14, J.R. told family members what had happened. Family members and a social worker became involved and some sort of community intervention took place. However, the social worker that became involved was S.R.’s sister-in-law and turned to S.R.’s oldest brother for advice. Subsequently the family decided to deal with the offending in a traditional way and not involve law enforcement. The Court would have welcomed input from Elders as to what the ‘traditional way’ meant. Without a better cultural understanding, the approach taken might leave one with the impression that the issue was simply ‘swept under the rug.’

As for Indigenous background, many of S.R.’s family members went to residential school where they were physically, emotionally and sexually abused. The Court acknowledges the systemic horrors that have taken place on S.R.’s First Nations community as a result of the residential school system. As the Gladue report confirmed, the majority of S.R.’s family was mandated to attend there where for over a decade the school performed horrid nutrition experiments on the children without anyone’s knowledge.

Despite the cultural cuts that residential schools scarred his community with, S.R. is involved with cultural practices such as singing, drumming and other cultural events, including language classes. There is a long list of culturally appropriate supports provided, such as clinical counselling, support groups and relapse recovery options in the community. There is also a Men’s Group that is offered to men who have sexually offended and cultural healing retreats. The Court hopes S.R. can use his position as an Elder in his community and work with others to help support a restorative healing event that can help bring his community together. I hope J.R. is able to have supports in place that make her feel welcome to participate in any community apology.

R v Ashamock, 2020 ONSC 6774

Posted on December 9, 2020 by thp151

The Court imposed a 12-month conditional sentence on a 50-year old Indigenous man who pleaded guilty to possession of a controlled substance for the purpose of trafficking. Gladue factors, including victimization in residential school, as well as particular vulnerabilities to COVID-19 supported a community-based sentence. The Ontario Court of Appeal’s decision in R v Sharma made a conditional sentence available for this offence.

Indigenous Law Centre CaseWatch Blog

Mr. Ashamock has pleaded guilty to one count of possession for the purpose contrary to s 5(2) of the Controlled Drugs and Substances Act. He was arrested after the RCMP were investigating allegations that drugs were being trafficked to First Nations communities by staff who accompany patients on flights for treatment. A search warrant was issued at the hotel where Mr. Ashamock was residing and a bottle with 52 percocets on a night table was seized along with a paper containing a list of names and phone numbers.

The Court concludes that a conditional sentence of one year is appropriate having regard to the availability of such a sentence now, especially in light of the global COVID-19 pandemic and the increased risk of infection faced by inmates in Canadian jails (R v Sharma, 2020 ONCA 78)

Mr. Ashamock is a 50 year old Indigenous man who is in his fifth year awaiting a kidney transplant. He resides in a hotel in Kingston, leaving only to receive dialysis three times a week. Mr. Ashamock uses a wheelchair, is a large man, weighing about 340 pounds. He developed an addiction to opioid pain killers after having them prescribed for him. His physical condition causes him considerable pain.

The mitigating factors are his plea of guilt. The Court has also given consideration to the relevant Gladue factors. Mr. Ashamock’s family has suffered as a result of residential schools. Unfortunately, a Gladue report was not available at the time of sentencing. Mr. Ashamock provided some information regarding his background when requested that he do so. The aggravating factors includes Mr. Ashamock’s association to an organized trafficking ring that arguably exploited other Aboriginal individuals, and that he has a criminal record, including a prior conviction involving drugs.

In regard to COVID-19, recommended social distancing and frequent hand washing, which are required as protection from transmission of the virus, are not readily available when a person is in custody (R v JS, 2020 ONSC 1710 (Ont SCJ)). All prisoners are at a greater risk of infection when compared to someone who is not incarcerated, due to the inability to physically distance. Mr. Ashamock is at grave risk of dire consequences should he contract the virus while imprisoned (R v Hearns, 2020 ONSC 2365 [“Hearns”]). Fitness is a related concept to proportionality, but not co-extensive with it. While proportionality mandates that a given sentence should be no more than necessary to reflect the gravity of the crime and the moral blameworthiness of the offender, fitness has regard to a broader array of factors (Hearns).

Conditional sentences are intended to assist in reducing society’s reliance on incarceration (R v Proulx, 2000 SCC 5). During a public health crisis such as the one we are currently facing, the availability of a community based sentence is an effective tool where appropriate, for reducing prison population. A conditional sentence would permit Mr. Ashamock to avoid imprisonment, but not punishment (Proulx). In the circumstances of this case, the criteria which would permit the imposition of a conditional sentence have been met: 1) the lack of a minimum term of imprisonment; 2) imprisonment of less than two years; 3) no danger to the community posed by the offender serving sentence in the community; and 4) the imposition of a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss 718 to 718.2.

R v Angnatuk, 2020 QCCS 3650

Posted on December 4, 2020 by thp151

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.

Indigenous Law Centre
Indigenous CaseWatch Blog

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.

R v Aklok, 2020 NUCJ 37

Posted on December 1, 2020 by thp151

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.

Indigenous Law Centre
Indigenous CaseWatch Blog

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.