Nunavut judge gave too much weight to Inuit traditional values: prosecutors

“He took his own interpretation of IQ principles and used them in a manner to elevate them”

Federal prosecutors contend that Justice Paul Bychok erred when he struck down a young Kimmirut man’s mandatory minimum sentence for a firearm offence, by giving too much weight to Inuit traditional values, including forgiveness by the victim and rehabilitation. (File photo)

By Thomas Rohner
Special to Nunatsiaq News

Federal prosecutors don’t understand how Inuit Qaujimajatuqangit principles relate to sentencing a criminal offender, according to an Indigenous legal expert who’s weighed in on a case that comes before the Nunavut Court of Appeal later this month.

Crown prosecutors filed an appeal of Justice Paul Bychok’s 2018 decision to strike down the four-year mandatory minimum sentence for a firearm offence by a young Kimmirut man, Simeonie Itturiligaq. Instead, Bychok sentenced Itturiligaq to just less than two years.

Prosecutors argue that Bychok gave too much weight to IQ principles, including forgiveness by the victim and rehabilitation, according to documents at the Nunavut Court of Justice in Iqaluit.

“He purported to interpret and explain these concepts [of IQ] without any evidence before him as to their meaning. Then he took his own interpretation of IQ principles and used them in a manner to elevate them over principles in the Criminal Code of Canada,” prosecutors said.

But that argument from the Crown is an error in law, wrote Jonathan Rudin from the Aboriginal Legal Services Clinic in Toronto, an intervener in the case.

“Not only is there no need to rely on expert evidence to determine the principles of IQ, but to do so would be an error of law … It is unthinkable to have a federally appointed judge judicially determine the principles behind IQ,” Rudin said in his submission.

IQ principles are already well-known in Nunavut and used throughout the Government of Nunavut. Nunavut judges are required by the Supreme Court of Canada to consider such Indigenous principles when sentencing an Inuit offender, Rudin said.

“The [Crown prosecutor] misapprehends the relevance of IQ to the sentencing process,” Rudin said.

Itturiligaq pleaded guilty in May 2018 to firing one shot through the roof of a house in Kimmirut that he knew had people in it. He was upset that his girlfriend was spending time at her friend’s house, rather than at home with their daughter, according to the facts on the court record.

His girlfriend came out of the house, and Itturiligaq hit her with the butt of the gun on her leg before the couple went home.

Bychok ruled that the four-year mandatory minimum for such an offence passed by the Harper government in 2009 amounte to cruel and unusual punishment under Canada’s Charter of Rights and Freedoms.

In part, that is because Itturligaq was only 24 years old at the time, with no criminal record, and the four-year minimum meant he would be thousands of kilometres away from his home in a southern federal penitentiary.

Sentences of less than two years are served in a Nunavut facility.

Bychok compared the federal prison system to the cultural isolation Inuit experienced through residential schools, forced resettlement and tuberculosis sanitaria. “Many Nunavummiut cannot understand why we continue to let our offenders be sent south,” he said in his decision.

But this was another mistaken conclusion Bychok reached without evidence at trial, prosecutors say.

“Residential schools attempted to break the link between children and their culture. In contrast, corrections policy and programming focuses on the benefits of cultural specific programming,” they argued.

Itturligaq’s lawyer, Maija Martin, said Bychok’s comparison to historical injustices suffered by Inuit was appropriate, especially since her client was raised traditionally with Inuktitut as his first language. And there is plenty of evidence to make that comparison, she added.

Martin quoted from some conclusions reached by the Truth and Reconciliation Commission to make her point: “Prison today is for many Aboriginal people what residential schools used to be: an isolating experience that removes Aboriginal people from their families and communities. They are violent places and often result in greater criminal involvement … Many damaged people emerged from residential schools; there is no reason to believe that the same is not true for today’s prisons.”

Crown prosecutors filed an application with the Court of Appeal to enter new evidence in this case: an affidavit from a warden of Beaver Creek Penitentiary in Ontario on the culturally sensitive programming and conditions the federal prison offers to Nunavut prisoners.

That application will be argued before a panel of judges in Iqaluit on Sept. 17.

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(7) Comments:

  1. Posted by No Moniker on

    This is a multifaceted and complex issue. Still, I find it odd that a social justice advocate from Toronto, Jonathan Rudin, has weighed in as an expert on the application of IQ principles, while denouncing federal prosecutors of the same.

    Either way, I think it’s good that this issue has come to the fore. It seems IQ is most often used symbolically, applied as kind of moral currency to the preamble of policy and procedure alike. At the same time, as the article states “IQ principles are already well-known in Nunavut and used throughout the Government of Nunavut,” we need to confront the fact that they are also are poorly understood and ask if they are ever truly applied.

  2. Posted by American White Guy on

    He goes to a local penitentiary for two years, if he gets out, he may get better. If he is sent south to a federal prison, away from his family, he definately will come back angry, isolated, and potentially more dangerous. This shouldn’t even be up for discussion. Give him his two years, especially since the victim agrees. Crown Prosecutors trying to make a name for themselves…should use their zeal to teach disadvantaged people instead of incarcerating them. Honestly, I expected better from Canada. Stop the prisons!

    • Posted by iRoll on

      Yes well, we used to expect a lot more from America. Those days are long gone.

  3. Posted by NU Woman on

    “Itturiligaq pleaded guilty in May 2018 to firing one shot through the roof of a house in Kimmirut that he knew had people in it. He was upset that his girlfriend was spending time at her friend’s house, rather than at home with their daughter, according to the facts on the court record.”
    Does this not run along the lines of “attempted murder?”
    Does this not show this scary guy is controlling and possessive to the EXTREME point of shooting into a house he knew had people in it?

    “His girlfriend came out of the house, and Itturiligaq hit her with the butt of the gun on her leg before the couple went home”
    This is screaming domestic violence. This is screaming spousal assault.
    Just because this is his “first” and has no record, does not mean he is not an abuser and wont happen again. He will come out of jail and blame his girlfriend for HIS ACTIONS and hurt her for it.

  4. Posted by Cultural relativism? on

    I’d like to know when IQ principles became considered principles of jurisprudence? I understand that Gladue Principles have achieved this status, but why IQ?
    At this point I agree with the federal prosecutors on this issue (though I don’t necessarily agree with mandatory sentencing either). They claim the judge “purported to interpret and explain… [IQ] without any evidence before him as to their meaning. Then he took his own interpretation of IQ principles and used them in a manner to elevate them over principles in the Criminal Code of Canada.” This statement seems absolutely true. There needs to be a much clearer definition and understanding of IQ as it applies to the law. As it stands these are very general concepts which leaves them open to a very broad range of interpretations which may not always be in the public interest.

    • Posted by Made in Nunavut on

      It would be interesting to hear what someone from the law program thinks about this.

    • Posted by Tulugak on

      Gladue principles direct judges to take into account the special circumstances of Indigenous offenders. The response to this decision has been mitigated and some jurisdictions have what are called Gladue reports that give the court a picture of the offender and his or her community, culture and language. Thus, according to Gladue principles, IQ is necessarily part of the issues that must be considered by the judge when sentencing an Inuk offender. In Nunavut it would be rather curious for a resident judge not to be aware of IQ principles – you would expect that from a judge from the south. It’s like trying to prove the obvious and the prosecutors are misguided in their appeal in my opinion.

      It is quite extraordinary that in a time when we know that Indigenous offenders are overrepresented in Canadian prisons and that this issue is very hard to tackle, the prosecutors try to return 30 years ago and dismiss IQ as a valid element that the judge must take into account. It reminds me of the NWT Court of Appeal decision in R. v. J.N. in the 1980’s where the court found that the Inuit were no different than other Canadians while the trial judge had considered the opinion of the Inumarit when sentencing J.N. for a sexual assault.

      The attitude of the prosecutors in this matter reflect the colonial approach of the court system in Nunavut and this is very unfortunate.

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