Nunavut judge slams Crown for devaluing Inuit victims of crime
“This prosecution failed to demonstrate an understanding of the social harm inflicted on communities and victims by intimate partner violence”
Judge Paul Bychok says a recent joint sentencing submission in the case of a Nunavut man who attacked an Inuk woman resulted in a penalty that is far too lenient. But because of case law, there’s nothing he can do about it. (File photo)
Warning: Descriptions of violence in this story may upset some readers.
Nunavut judge Paul Bychok has accused Crown prosecutors—and the Nunavut justice system—of devaluing the lives of Inuit women who suffer intimate partner violence.
He did it in a blistering written judgment released Wednesday, Nov. 11, saying the Nunavut court endorses too many lenient plea-bargained sentences that fail to recognize the severity of intimate partner violence against vulnerable Inuit women in Nunavut.
Cases of alcohol-fueled violence against Inuit women and girls dominate court dockets in the territory and many victims are caught in a spiralling cycle of violence, he said in the sentencing of a Nunavut man for assault.
Because of recent rulings by the Nunavut Court of Appeal, he said Nunavut judges can’t reject such joint sentences, except in rare circumstances—a constraint he doesn’t like.
“A judge’s inability to impose a just and principled sentence constitutes a breakdown in the justice system,” Bychok said.
He said this reinforces the perception—described by Pauktuutit Inuit Women of Canada and in the final report of the National Inquiry into Missing and Murdered Indigenous Women and Girls—“that there is little justice to be found for Inuit women in the criminal justice system.”
Bychok made these remarks in response to a joint plea-bargain defence and Crown lawyers submitted in the case of James Logan Aklok, a 39-year-old Nunavut man who twice assaulted his intimate partner in August.
Judge can’t reject plea deal
In that situation, Bychok said case law forces him to agree to a joint sentencing submission that brings the administration of justice into disrepute—and there’s nothing he can do about it.
But he told lawyers he would express his concerns in a written decision, which he released Nov. 10.
Aklok, who’s originally from Kugluktuk, first assaulted the woman in Iqaluit on the evening of Aug. 2, after she told him she was going out to give some money to her mother.
Bychok’s judgment said Aklok, who was intoxicated, punched, slapped and head-butted his partner. At one point, he put her on the floor and banged her head, pulled her hair, kicked her in the back, and banged her head some more.
After that, he was arrested, charged with common assault and released on bail with an order not to contact the victim.
Nineteen days later, on Aug. 21, he attacked the woman again. This time, he choked her until she fled the house and hid behind a nearby truck, where she phoned the police. When police arrived, they noticed a red mark near her left eye and swelling around her mouth and lip.
Police then charged Aklok with committing an assault causing bodily harm by choking, strangling or suffocating his intimate partner.
Choking charge downgraded
When Aklok appeared for a sentencing hearing on Sept. 25, Crown prosecutor Gary Wool proposed a global sentence of 45 days in jail and nine months of probation in exchange for Aklok’s guilty pleas.
In that agreement, the Crown replaced the choking charge from the Aug. 21 incident with the charge of common assault, to which Aklok pleaded guilty. The defence lawyer, Sally Paddock, agreed, making it a joint submission.
But Bychok said that sentence was “unduly lenient” and that the two lawyers provided little justification for it.
“The joint submission did nothing to help dispel the perception that our justice system devalues the lives of Inuit victims of crime. I am certain this omission would alarm and dismay all informed and reasonable Nunavummiut,” he said.
To support that conclusion, Bychok quoted from a Pauktuutit report that said women in Nunavut are victimized by violent crime at a rate 13 times higher than women in Canada as a whole.
The same report also said Nunavut women suffer from the highest rate of police-reported family violence in Canada.
“The lived reality is a nightmare”
“These are cold clinical facts; the lived reality is a nightmare. Sentencing ought to reflect that reality,” Bychok said.
And he also quoted from the final report of the national MMIWG inquiry.
“There is a lack of transparency regarding plea negotiations and the exercise of prosecutorial discretion generally, which further contributes to Indigenous peoples’ distrust of the justice system and a sense that Indigenous victims of crime are devalued,” the MMIWG report said in the section Bychok quoted.
Bychok also said a recent change to the Criminal Code requires judges to emphasize denunciation and deterrence in sentencing offenders who commit crimes of violence against Indigenous women.
The Crown, however, paid little attention to that, Bychok said. For example, the judge said the Crown minimized the true nature of Aklok’s violence by deleting references to “choking, strangling, or suffocating” from the charging document, or information sheet.
And the Crown lawyer did not list the choking incident as an aggravating factor in sentencing, Bychok said.
He also listed other aggravating factors the Crown did not mention, such as a previous conviction for abusing an intimate partner, and that the current victim was a “vulnerable female Inuk.”
“Institutional indifference”
All this helped create a “perception of institutional indifference” to the experience of the victim, Bychok said.
“This prosecution failed to demonstrate an understanding of the social harm inflicted on communities and victims by intimate partner violence, the real harm experienced by Mr. Aklok’s victim, or the role victims have in addressing it,” Bychok said.
But because of the way that the Nunavut Court of Appeal has interpreted a Supreme Court of Canada decision called R. v. Anthony-Cook, Bychok said his hands are tied.
In 2019 and 2020, the Nunavut Court of Appeal used that precedent to throw out sentences that Bychok had imposed after rejecting joint submissions he said were too lenient.
“Inuit women, and all Nunavummiut, deserve a justice system that meaningfully addresses gendered violence. It is troubling that our courts have not been given the tools, including fuller judicial sentencing discretion, to do so,” Bychok said.
And for that reason, he said it’s time for Parliament to reopen debate on that issue.
How can anyone really expect Justice Bychok or any Nunavut Court of Justice judge to behave impartially when they get political like this? When it came from Justices of the Peace, who often have no law degree or very little legal experience, I could overlook it. But not when it comes from one of the most senior judges in Nunavut.
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I do not know what Justice Bychok learned in law school about the role of judges, but I learned that you apply the law, not grandstand about how you don’t like it. That is the role of elected politicians, not life-time appointed judges. My take on this decision is that Justice Bychok is essentially complaining about how he has been successfully appealed time and again for unduly inserting himself to “correct” plea bargains and sentencing recommendations of both defence lawyers and prosecutors who appear before him. We need not even bother discussing his ludicrous interpretations of how the Charter applies different in Nunavut when the Court of Appeal overturns it with one-liner decisions.
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If you read this decision and cannot help but be struck by a sense that Justice Bychok seems to wish he had never left the prosecution service, so that he could bring back “the gold old days” and make directives limiting the scope of plea bargains. It is interesting that the “system” is deemed to be problem, when Bychok has himself been a longtime judge and high level prosecutor in Nunavut. Perhaps some blame falls to him on a professional level? I think prosecutors and police do the best they can here faced with limited resources and cultural stigma against cooperation with law enforcement. Of course they make plea deals – the Court would be overwhelmed if they didn’t.
So the minute a judge starts being conservative they get called an activist…? Canada is full of liberal activist judges… it’s obvious that this time you as an activist don’t agree with Bychok, and you’re speaking up to defend guilty violent males? In the USA judges are elected because of their activism and politics… it’s a good thing. The public in Nunavut is sick and tired of these abusers and household terrorists living in our communities. A judge applies the law… AND acts in the public’s interest (activism).
A politically appointed judge who virtually cannot be removed from his position and who is pushing a law reform change agenda in a published legal decision is anything but conservative. He is essentially calling the criminal law bar or specific lawyers inadequate and unable to properly handle join recommendations when he should know better than he doesn’t know the whole story or all the evidence, which he doesn’t get to know short of a trial. He is not positioned to call the plea deal bad. If judges like Bychok had carte blanche over plea deals, then no one would ever plead guilty, since it only makes sense if you know the likely outcome of the joint recommendation for sentence (let’s face it, almost no one in territory is paying for their legal advice anyway, so there is no financial incentive to plead guilty). If no one pleads guilty, the system is done for, and everyone will get off on unreasonable delay breaches.
Good on Bychok for pointing out that the federal prosecutors don’t do their jobs. We always get ridiculous results because we get overzealous defence lawyers who are oblivious to common sense and federal prosecutors that fall apart at the slightest resistance.
Maybe a guy that kills a guest in his home shouldn’t get only 600 days in jail. Maybe a mother that beats up her kid shouldn’t only get 6 months. Maybe legal aid shouldn’t be wasting government funding trying to appeal charges that they admitted to at trial. But what do I know.
The laws are broken. The system is broken. Criminals are treated like royalty, while the victims are repeatedly abused.
Lawyers help criminals hide behind the words of so-called justice. Justice is broken, too.
you take issue with Bychok and not the plea deal that devalues the women’s life.
She was assaulted twice in the same month, the man was released on bail and not to have contact with the victim, from the article I don’t see any charges laid for breaking bail agreement.
How many Inuit women have been killed by their partners which had red alerts written all over such as repeated beatings and lenient sentences handed out?
Get your head out of the sand, women deserve better!
As sad and devastating as it is to see a man beat the crap out of his spouse in public, never intervene and call the police ASAP. Too many people I know have gone with their instincts and tried to stop the man, only for the woman to attack the person intervening. It’s incredibly sad but that’s what happens 9 times out of 10. Watch what happens when the RCMP arrive on scene, the woman usually starts attacking the officers. It’s mind boggling, but goes to show just how deep into a violence cycle some of these couples are in.
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And that’s why joint sentences are so common here and are leanient towards the abuser. Despite the brutal beatings, the victim still claims to love or tolerate the man.
I’m not sure where you are getting your information but I don’t think this is the case. I used to work for the justice system, am an Inuk woman, a survivor of domestic violence and have spoken with, counseled and helped many other Inuit women in these horrible situations. Not one of them, nor have I, attacked the police or someone that was there to help.
By stating what you have you are just adding to already broken system of victim blaming and the misconception that we all (victims) “just go back anyway, so why should we help” mentality that so many people hold.
Open your eyes and mind to the fact that there are little to no mental health supports in Nunavut and lots and lots of inter-generational trauma that needs to be dealt with.
Even asking for help is very hard for women. We stay strong throughout all of what we endure and having to deal with the slap on the wrist for the abuser is like a blow to the head.
Please start taking us women seriously. We don’t complain much and it takes a whole lot to get outside help like calling the cops.
Inuk boys and girls! Please respect each other as how you would want to be treated.
Women will never win on Court for anti family values.
It’s orthodoxy to say that alcohol is the problem. Not so. As an addicted Ojibwa with a terribly troubled life told me, she takes what she calls medication to dull the pain. It’s self-medicating for depression.
The foundational problem is that educated and skilled people in or preparing for rewarding employment are seldom addicts who get into trouble, especially if their background includes hobbies and other interests.
The scourge of misery and crime in Indigenous communities is largely attributable to education, and also housing conditions, that fail abysmally to prepare next generations for participation in the high-tech economy.
In the meantime, the least bad option is to put people into the hell-hole jails that do nothing to prepare inmates for a better life for themselves and a safer one for everyone else.
The problem isn’t unemployment. The fundamental problem is the trauma that has not been dealt with in our communities. I’m one of those indigenous people employed in a rewarding career, with hobbies and an urban home, and it certainly did not solve all of the immense psychological issues that I’m dealing with due to intergenerational trauma. We need mental health support. We need reconciliation with our country. We need systemic racism to end or at least even be acknowledged by anyone other than ourselves. I think the high unemployment rate and addiction is a symptom of the problem and not the problem itself.
This was a very rude judgment. He’s right that violence against women in Nunavut is a extremely concerning, and the sentence is light. But the point of a written judgment is supposed to be to create precedent or at least add something to Nunavut’s body of case law. It’s not supposed to be a way for a judge to whine about the court of appeal and insult the lawyers who appeared before him. This judgment adds nothing of value to the law. It’s judicial activism at best, if not outright bullying. If you want to vent frustrations about the ineffectiveness of the justice system, write a letter to the editor.
Well put your Honour. You are absolutely right that Parliament has put you and the legal profession into a corner with their left-wing laws. It will continue, as long as no one brings it to their attention. You and your judgment will help that as I am sure that MLAs can exert some pressure as well if they choose. I would not depend on our current Liberal government or our current MP to be any help of course.
Please continue to use your position within the Nunavut Court of Justice to express your views in your decisions regardless what some people think you should do. Sometimes the Court of Appeals gets it wrong as well.
Thank you again for your support to the women in our commuities.
This decision is quite frankly bizarre. We have known since the mid 80’s about the overrepresentation of Indigenous offenders in Canadian prisons. In the NWT and then Nunavut, violent crime rates have been around 10 times higher than the Canadian average for decades and despite more police, more lawyers and more judges, crime rates have remained pretty much the same. In other words, the court system has failed to protect the people of Nunavut because doing the same while you know it doesn’t work is akin to being crazy!
Here we have a case of domestic violence, a crime that has been prevalent in NU for decades, and it looks like for Justice Bychok what counts is the number of days, months or years the offender is sent to jail. I’m far from being certain that it’s what Pauktuutit mean when complaining about the fate of Inuit women victims of crimes. What we know is that jail terms are not dissuasive, do not decrease violence, quite the contrary. We know that people who are sent to jail are far more likely to reoffend than other types of sanctions. At best they provide a “time out” for the victims but the offender will get out of jail one day and we know that in cases of domestic violence the risks for the victim are increased.
We must find a way to reduce crime rates and domestic violence, to protect potential victims before it’s too late. Some jurisdictions have tried the domestic violence treatment option instead of jail time and it has proved it works better, the reoffending rates being much lower. Jail time adds violence to the sentencing process and often leave the rest of the family being dependent on the rest of the community.
In terms of plea negotiations, this is often done to avoid having the victims testify against a husband, a boyfriend. Most of the time, victims are terrified at the perspective of testifying against a family member in front of their families and their community. Instead of trying to heal the wounds, the system pits the parties against each other and in the context of domestic violence, when trials take place months after the fact, it can be extremely upsetting for victims to have to testify and be cross-examined, which can often reopen the wounds.
We know it’s the court system that is the problem, particularly for Indigenous people, but we still continue to do the same, with more resources achieving the same results. This is what colonialism is about.