Nunavut judge pushes back against Supreme Court’s Gladue doctrine

Contrary to what some judges in other parts of the country have found, Justice Paul Bychok of Nunavut ruled last November that the Supreme Court of Canada’s famous Gladue decision does not apply to bail hearings.

“As I have stated, extending the spirit of Gladue to pre-trial bail is not supported by statutory law or properly grounded judicial precedent,” Bychok said.

He issued the ruling on Nov. 29, 2018, after Chris Jaypoody, 38, of Clyde River, who then faced a second-degree murder charge, had applied for bail.

Bail hearings are usually covered by a temporary publication ban.

That means that while a case is before the court, it’s illegal for media to report things that are said at the bail hearing, including the judge’s reasons for making a bail decision.

In Jaypoody’s case, that ban was lifted this past June 27, when a different judge, Justice Susan Cooper, sentenced Jaypoody to four years in prison on a manslaughter conviction.

On the same day, with the ban no longer in place, the Nunavut court released the full text of Bychok’s 25-page bail decision.

In it, Bychok agreed that Jaypoody is neither a flight risk nor at risk of re-offending.

Judge says no to Crown, defence

But he denied Jaypoody’s bid for bail, on the grounds that releasing him would damage public confidence in the administration of justice, especially within Clyde River.

In doing so, he rejected submissions from Crown and defence lawyers, who agreed Jaypoody ought to be released while awaiting trial and posed no threat to public safety.

Ilan Neuman, Jaypoody’s defence lawyer, proposed Jaypoody be released into the supervision of Jaypoody’s 56-year-old mother and his 70-year-old stepfather, who would act as sureties. Under that plan, Jaypoody would live with them at their home.

The lawyer representing the Crown that day, Moray Welch, did not oppose Jaypoody’s pre-trial release, and suggested a curfew from 9 p.m. to 7 a.m. every day, and that each surety post $1,000.

And, according to Bychok, the Crown lawyer said releasing Jaypoody into the community would not shock the people of Clyde River, because of “the scale of what transpires in this territory on a regular basis.”

But Bychok shot back, calling that a “startling assertion,” saying domestic and family violence in Nunavut should not be normalized because of its frequency.

“The staggering frequency of domestic and family violence—what Crown Counsel called ‘regular’—does not make domestic and family violence, indeed homicides, in our homes somehow unremarkable,” he said.

“I do not share the prosecution’s perspective on domestic and family-related homicides in Nunavut. In my respectful view, news of any pre-trial release for Mr. Jaypoody would seriously undermine reasonable public confidence that the justice system takes domestic and family violence seriously.

Gladue does not apply to bail, judge says

And in a section of his judgment that goes on for at least five pages, Bychok also rejected a submission from defence lawyer Neuman asserting that judges should consider Gladue principles at bail hearings.

In the Gladue decision, which dates to 1999, the Supreme Court of Canada said that in sentencing Indigenous offenders, courts must take their special circumstances into account.

Bychok said that when the Supreme Court did this, they did not create “new law.” They simply interpreted an existing law on sentencing principles for Indigenous people that Parliament had added to the Criminal Code in 1996.

But Parliament, at that time, chose not to apply those principles to bail hearings, Bychok said.

Judges can’t override Parliament

“In my view, there is no jurisdiction—or authority—for judges to override Parliament’s will in this area. Stated differently, there is no legal foundation on which judges may assume and find that Gladue sentencing considerations apply to pre-trial bail law,” Bychok said.

Even though some judges have tried to extend the reach of the Gladue decision by injecting “new judge-made considerations into the statutory pre-trial bail framework,” Bychok said he won’t do that.

So Neuman’s request for “a new set of judge-made pre-trial bail considerations in Nunavut” won’t fly, Bychok said.

“I cannot do so. In my respectful view, this is a task for Parliament and not the judiciary,” Bychok said.

In an interview, Neuman said he respects Bychok’s decision, but he also said other judges have expressed different opinions.

“I am not criticizing Justice Bychok, but there have been other views as to how to approach it,” Neuman said.

For example, a guidebook published by the Legal Services Society of British Columbia, which contains material contributed by lawyer Jonathan Rudin of Aboriginal Legal Services of Toronto, advises people to get a Gladue report to help them get a favourable bail decision.

Bill C-75 changes bail rules

Meanwhile, Bychok’s position on Gladue and bail hearings may soon become irrelevant.

That’s because of Bill C-75, a set of changes to the Criminal Code that received royal assent this past June 21.

One of those changes effectively requires that judges take Gladue principles into account when making bail decisions.

A summary of the new provisions, which will come into force this fall, says that in bail decisions, judges must pay attention to the circumstances of Indigenous accused persons.

And judges must also pay special attention to those who “belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this Part.”

At the same time, Bill C-75 contains a provision that could work against accused persons in Nunavut, given Nunavut’s high rates of family violence: a “reverse onus” requirement for those accused of intimate partner violence.

A “reverse onus” means it’s up to the accused person to show cause for why they should be released on bail. With lesser offences, it’s the Crown that must show cause.

Another amendment in Bill C-75 that could raise Nunavut’s incarceration rates is a provision that increases sentences for those convicted of repeat offences involving intimate partner violence.

Nunavut has the highest per capita rate of violent crime in Canada.

Meanwhile, Bychok is not the only person who has resisted the expansion of Gladue principles in the courts.

In the past, activists within Indigenous women’s groups, such as Pauktuutit, have alleged the Gladue decision produces lenient sentences for Indigenous men convicted of assaulting or abusing Indigenous women.

And the recent report of the National Inquiry on Missing and Murdered Indigenous Women and Girls contains potentially conflicting messages for policy-makers.

In one recommendation, they call upon federal, provincial and territorial governments to recognize the production of Gladue reports as “a right.”

But in another recommendation, they call upon federal, provincial and territorial governments to thoroughly evaluate the impacts of Gladue principles “as it relates to violence against Indigenous women, girls, and 2SLGBTQQIA people.”

In Nunavut, 55 per cent of incarcerated people are remanded prisoners who can’t get bail.

So it remains to be seen whether all these recent changes will reduce or increase Nunavut’s high incarceration rates.

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