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 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.