Tag Archives: Inuit

R v A(M), 2020 NUCJ 04

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An Inuk woman received absolute discharge for breaching no-alcohol bail condition when she had called RCMP for help in domestic violence situation. The Justice of the Peace noted systemic issues Inuit women face as victims, including disproportionate rates of victimization, distrust of police and lack of social services; a disturbingly similar case one year prior, and did not want to send a message to Inuit women to “call at your own peril”.

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In 2018, A(M), an Inuk woman, who was placed on no-alcohol bail conditions, called police as she was facing a domestic violence situation. When police arrived, however, she was arrested for breaching her bail condition because she was found intoxicated.

Despite entering a guilty plea to the charge, she was sentenced to an absolute discharge for this offence. This case troubling, especially because it is nearly identical to another case, R v K(M), exactly one year prior, where K, also an Inuk woman who had pleaded guilty to breaching her bail for drinking when she was not supposed to. K called the police because she was being assaulted by her boyfriend, and was severely beaten and then held in custody to appear before the court.

In considering both cases of these women who are victims of violence, A(M)’s significant Gladue factors and the Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, the work of Pauktuutit, the Qulliq status of women, among other reports, there cannot be “institutional indifference”. Inuit women should never feel like they must hesitate to call the police for assistance in Nunavut.

Baffinland Iron Mines Corporation v Inuavak et al, 2021 NUCJ 11

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Interlocutory injunction granted. The RCMP have been authorized to enforce an injunction against community protestors, including removing and detaining to the extent necessary, persons who have knowledge of the injunction, and are obstructing or impeding access to the mine site. The mining corporation has approval for its operations and has complied with the necessary requirements under The Nunavut Land Claims Agreement and with any regulatory and legislative requirements.

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Baffinland Iron Mines Corporation [“BIM”] is granted an injunction prohibiting the Defendants, and others, from blockading or obstructing its mining operations at the Mary River site on northern Baffin Island. To get to this mine site, it is a fly in and out with an airstrip. Iron ore is mined and crushed at the mine site, and then trucked to where it can be loaded on to ships at Milne Port, and shipped out during open water season. The mine site and the port are connected by a road approximately 100 km long. The airstrip and accommodation for most of the employees is at the mine site but with some at Milne Port. Shipping of iron ore can occur only during the open water season. However, during the rest of the year iron ore is still trucked to Milne Port and is stockpiled to await the shipping season.

BIM has applied to significantly expand its operations at the mine. It is unknown if the application will be approved or not. The current approvals for the mine are controversial and there are strongly held views and opinions on all sides. The north Baffin communities of Pond Inlet, Arctic Bay, Clyde River, Igloolik, and Sanirajuk are the communities closest to and most affected by the mining operations. Residents from the local communities set up protests at the BIM site. Although these protests were not large, a camp was set up on the runway and road, approximately 3-4 km from the mine site. Although there were approximately 5 protesters at the mine site and 2 on the road, it prevented the plane to land normally at the airstrip and iron ore could not be trucked from the mine site to the port. The protest shut down mining operations and stopped the movement of people and supplies to and from the mine.

Counsel for three of the Defendants appeared in court. At that time the concern of the was the 700 employees at the project site and if they were unable to leave due to the blockade on the airstrip. The Defendants were not opposed to the departure of the employees that were on site. An interim order was issued to ensure that occurred. A short time later the Defendants left the project site and carried on to their respective communities. However, the Plaintiff maintained its application for an interlocutory injunction and brought an action against the Defendants for trespass, unlawful interference with economic interests, and mischief.

The Defendants asserted their Aboriginal rights pursuant to s 35 of the Constitution Act, 1982. They submit that injunctive relief is no longer required as the Defendants have left the project site. The test for injunctive relief have three factors that the court must consider: 1) is there a serious issue to be tried; 2) will irreparable harm result if the relief is not granted; and 3) where does the balance of convenience lie (RJR MacDonald Inc v Canada (AG), [1994] 1 SCR 311).

The Plaintiff’s legal action is a serious issue to be tried. The Defendants’ argument that the need for injunctive relief has lapsed because the protesters have left the project site. While this may be true, their counsel was not able to confirm that they have agreed to not return and continue the protest. As well, counsel is only for three Defendants of the seven protestors. The protest and its reasons have been the topic of discussion in the media. There may be more than one reason for the protest, and individual protesters are there for different reasons.

In response to the protest, Inuit leadership reached out to the Defendants to arrange meetings to reach a resolution. The Defendants have agreed to the meetings, but not much more is known at this junction. The business operations that are at risk continue as a going concern and the protesters’ concerns remain unresolved. Although the protesters may no longer be at the project site, their reasons for being there in the first place remain. As for the s 35 Aboriginal rights argument, asserted Aboriginal rights are rights that are asserted but not yet proven. This is not the Nunavut context. The Nunavut Land Claims Agreement [“NLCA”] is a modern treaty that encompasses the largest land claims settlement in Canada. The processes for resource development are set out in the Agreement. The Plaintiff has complied with the necessary requirements under the NLCA and any regulatory and legislative requirements.

The Plaintiff has loss of revenue because of the inability to transport iron ore from the mine site to the port. The court stated that the complete blockade of a lawful business strongly suggests irreparable harm for the purposes of an injunction (Hudson Bay Mining & Smelting Co Limited v Dumas et al, 2014 MBCA 6). The balance of convenience favours the granting of injunctive relief.

R v Kolola, 2020 NUCJ 38

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In sentencing an Inuit offender, the Court sought to meet the purpose and objectives of sentencing through consideration of the unique circumstances of this case, including competing sentencing principles, Gladue factors, and the frequency of violence against sleeping and unconscious women in Nunavut.

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This case deals with the sentencing of Mr. Kolola, an Inuit offender who committed sexual assault on a sleeping female victim. The Court sought out to ensure that the sentence imposed was fit to the offender and the crime. Given that Mr. Kolola is an Inuit offender, the Court accounted for the effects of historic and systemic colonialism and inter-generational trauma experienced by Inuit people, articulated through Gladue factors.

The aggravating factors included Mr. Kolola’s criminal record, which demonstrated a pattern of violence against women through multiple convictions for serious intimate partner violence. The nature of Mr. Kolola’s sexual assault was quite predatory, as he assaulted the victim while she was asleep and in her own home. It was also noted by the Court that this assault seemed to be premeditated as he sought out his particular victim. There are several mitigating factors including Mr. Kolola’s Gladue factors which revealed his unfavourable childhood riddled with addiction and abuse, and his tangible efforts at rehabilitation through his continued sobriety.

The Court also took into account that sexual offenses involving sleeping women in Nunavut are unfortunately a common occurrence. As a result, there is widespread perception that the Court minimises the nature and severity of sexual violence. Therefore, the Court sought to impose a sentence in which sought to repair this distrust and fear of the criminal justice system by victims of sexual violence, while also holding Mr. Kolola demonstrably responsible for his crime. Through consideration and application of these unique circumstances and the competing sentencing principles, the Court concluded by ordering that Mr. Kolola serve 30 months (900 days) in a federal penitentiary.

R v GH, 2020 NUCJ 21

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The Chief Justice of the Nunavut Court of Justice dismissed an application for a state-funded Gladue report. The Court cautioned that a Gladue report writer from outside the territory may not be adequately familiar with Nunavut’s unique circumstances and resources, and Inuit court workers can provide much of the necessary information, as can the predominately Inuit probation officers working in Nunavut. The Court left it to the Government of Nunavut to determine whether a program for full Gladue reports ought to be created. 

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Indigenous CaseWatch Blog

The Applicant requests that the Court order the production of a Gladue report. He suggests that formal Gladue reports are necessary if this Court is to apply the remedial provisions of section 718.2(e) of the Criminal Code in the manner and spirit directed by the Supreme Court of Canada (R v Gladue, [1999] 2 CNLR 252 [“Gladue”]; R v Ipeelee, [2012] 2 CNLR 218).

In Canada, judges are required to consider the circumstances of Indigenous offenders who are before them to be sentenced. Indigenous offenders have the right (unless it is expressly waived) to the presentation of Gladue information and application of Gladue principles at their sentencing hearing. However, they do not have the right to the production of a publicly funded Gladue report in advance of sentencing.

In many jurisdictions across Canada there are Gladue programs in which independent and knowledgeable writers interview offenders and other community members, producing Gladue reports that educate sentencing judges. Nunavut is not one of those jurisdictions. To date, the Government of Nunavut has not implemented a program to connect Indigenous offenders with knowledgeable Gladue writers. Nothing formally prevents an offender in Nunavut from funding the production of a Gladue report privately, but this almost never occurs due to the associated cost.

Because Nunavut lacks a publicly funded Gladue writing program, Gladue information about Indigenous offenders in Nunavut usually comes before the court via Defence submissions, pre-sentence reports, and occasionally comments directly from offenders. Counsel for the Applicant argues that these sources of information are insufficient and that a Gladue writer would provide a qualitatively superior overview of the systemic factors that have played a role in bringing the offender before the court. Gladue writers are typically either members of the Indigenous communities in which they serve or they have strong social and professional connections to those communities. Because there is no Gladue writing program in Nunavut, there are no Gladue writers here with those same community connections that are so key for southern Gladue writers. Pre-sentence reports, however, are prepared by probation officers, many of them Inuit living in communities in which they serve.

Non-Inuit legal professionals in Nunavut are not without access to knowledgeable cultural and community resources. The Court will leave this discussion to more knowledgeable players within the Legal Services Board of Nunavut and the Government of Nunavut. The Court cautions against the assumption that a Gladue writer experienced in serving First Nations and Métis communities will easily translate those skills to an Inuit context. A pan-Indigenous approach to government programming is ineffective and does not meet the specific needs of Inuit. Recommendation 16.28 of the National Inquiry into Missing and Murdered Indigenous Women and Girls Final Report, notes that this failure to provide Inuit-specific services cripples Gladue principles.

When the Government of Nunavut implements a Gladue report writing program employing empathetic peers based in Nunavut communities as writers, the Court will be pleased to trust those report writers to fully enlighten the court. The colonial court system in Nunavut can only benefit from further and better cultural and historic information about the individuals who appear before it and will continue to rely on the expertise of Indigenous Court Workers, Inuit elders, resident counsel, and resident probation officers.

National Aboriginal Day Celebrations

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 BY CHRISTINA GRAY

Photo Credit: Lynda Gray, Ts'msyen Author of First Nations 101.

Photo Credit: Lynda Gray, Ts’msyen author of First Nations 101.

This June 21st, 2016 is significant as it marks 20 years since National Aboriginal Day was instituted as a national holiday in Canada. This is the one day specifically for Aboriginal people (and non-Aboriginal) across Canada to come together and celebrate, share meals, stories, music, and partake in cultural activities ranging from salmon feasts, canoeing to listening to throat singing.

Aside from being National Aboriginal Day, June 21st is also the summer solstice. It’s the longest day of the year and the shortest night of the year. This year we were fortunate enough to see the Strawberry Moon where the moon shone bright pink. It’s naturally a day to spend time in the warmth of the sunshine and celebrate the earth’s rotation in bringing us a renewed wealth of life.

People from all walks of life on June 21st come together to recognize our diverse cultures. In cities it can often feel stifling or invisible to be an Aboriginal person with distinct legal traditions, culture, history, and a distinct past. One that includes a lot of cultural and legal strengths, but that is often fraught with continued difficulties.

This last year the Truth and Reconciliation Commission formally closed in Ottawa with the release of their Final Report and Calls to Action. The closing of the TRC ended their 5-year mandate as part of the “truth telling and reconciliation process” in response to the Indian Residential School legacy.

At the TRC closing there was a lot of good energy shared between people. There was a walk for reconciliation, workshops, musical performances, art exhibits, and informal drumming and dancing that happened in the streets and hotel foyers. That energy will never be forgotten and neither will the residential schools’ dark legacy. This day is part of recognizing the truth-telling that happened through the TRC.

On my way home, I had a conversation with my mom about the good energy that I felt from attending the closing ceremonies. I left Ottawa with a renewed sense of who I am as an Aboriginal person living in a big city. I had time to reflect and find strength from being with survivors and allies. Attending the TRC was truly an internal and external reconciliation with Canada’s residential school legacy.

On June 22nd, there will another opportunity to build relationships, reconcile, and celebrate who we are as Aboriginal people in Canada. Over 300 school children, Aboriginal people, and community members will be doing just that at the Walk for Reconciliation at Saskatoon’s Victoria Park at 10am. This walk is to commemorate the one year that has passed since the TRC’s closing and for people to “rock your roots”. Let’s continue that good energy that was felt at the TRC’s closing and be proud of our distinct heritage, be it Mayan from Oaxaca, Dene, or Cree!

About the Author: Christina Gray is legally trained and works in Publications at the University of Saskatchewan’s College of Law, Native Law Centre of Canada. A first people of the Ts’msyen of Lax Kw’alaams, Dene from Lutsel K’e, and Red River Metis.