Nunavut judge tosses JP-imposed sentence on assault conviction
Gladue decision must be respected, judge says
Justice Susan Charlesworth recently altered a sentencing decision made by a Rankin Inlet justice of the peace on the grounds that the JP did not take the Gladue decision into account. (File photo)
Even community-based justices of the peace must consider the Supreme Court of Canada’s Gladue decision when sentencing Indigenous offenders, a Nunavut judge has ruled.
“It is often blithely said that all Nunavut courts are ‘Gladue courts,’ but it is often true and must always be kept in mind when the accused is Indigenous,” Justice Susan Charlesworth said in a judgment released earlier this week.
Charlesworth, who was appointed to the Nunavut bench in June 2018, made that remark in the case of a Rankin Inlet woman, Verna Kowtak, 35, who in 2017 had pleaded guilty to assault.
The Supreme Court of Canada’s Gladue decision, issued in 1999, states that Canadian judges must take the unique circumstances of Indigenous offenders into account when crafting sentences.
JP hostile to Gladue decision
But in sentencing Kowtak, a Rankin Inlet justice of the peace, who is not named in the judgment, said he doesn’t like the idea of applying the Gladue decision in cases of domestic violence.
In the family squabble on Feb. 15, 2017, that gave rise to the charge, Kowtak had, while intoxicated, been arguing with her spousal partner.
After her 15-year-old daughter told Kowtak ‘to stop being rude to her dad,’ Kowtak swung at her daughter with a closed fist, punching her multiple times, Charlesworth’s judgment said.
On Sept. 11, 2017, Kowtak pleaded guilty to assault and received a suspended sentence and nine months’ probation, and was ordered to pay a $100 victim crime surcharge.
At the same time, the JP who imposed that sentence rejected a defence request that Kowtak receive a conditional discharge, based on Gladue considerations, that would have left her with no criminal record.
Errors in law
Defence lawyer Will McNair later filed an appeal on the grounds that the JP made errors in law and in principle.
The first ground of appeal was that the JP failed to consider the Gladue decision.
Charlesworth quoted the JP as saying that the Gladue decision “really troubles me” and that it should not apply to family violence.
“The fact that somebody has been abused does not give them the right to be an abuser under any circumstances,” the JP is quoted as saying.
So the JP rejected factors like the overcrowded conditions that Kowtak lived in, with 11 people sharing a two-bedroom house, and the fact that she had been a victim of domestic abuse herself.
But that’s not how the JP should have applied the law, Charlesworth said.
“The fact that he decided he would not consider them [Gladue factors] because this was a case of family violence was an error in law,” Charlesworth said.
Second, the JP had engaged in “impermissible speculation” when he suggested that just because the accused had no criminal record, it didn’t necessarily mean she hadn’t committed previous assaults.
Charlesworth said that’s illogical and is not a reasonable inference to draw from the facts available to the JP.
“There was no evidence properly before the justice of the peace which would permit the suggestion that the appellant had committed an assault before,” she said.
Last, the JP relied only on the Crown’s submission to come up with a sentence, but did not consider the defence lawyer’s submission.
“Any official deciding on an appropriate sentence must hear and consider both positions before arriving at a decision on sentence,” Charlesworth said.
So Charlesworth allowed the appeal and threw out the suspended sentence, replacing it with a conditional discharge, in which the terms of Kowtak’s probation, if followed, become the conditions under which a discharge would be granted.
Charlesworth also threw out the $100 victim fine surcharge, based on a recent Supreme Court of Canada decision that found such fines are unconstitutional.
R. v. Kowtak, 2019 NUCJ 03 by on Scribd
I as a Inuk and living in the Nunavik territory of Quebec do disagree with the GLADUE decisions that the Canadian Courts are using to help the Indigenous people of Canada to get a lighter / lenient sentence because of how the Inuit were treated years and years ago of the Traumatic experiences that they went through generations ago or while they were younger. I know of 2 people (male/female) who brutally stabbed 2 different people to death and neither of them are in prison for murder. They are both in 2 different half way houses because they used (lawyers) the GLADUE. My 19 year old son Robert Adams was brutally murdered on March 19, 2018 and I will be explaining to the Crown and Defense Lawyers that this Ruling is a fallacy. We as Inuit must take the responsibility for our ACTIONS when we break the laws of Canada. We are no different (humans) than the rest of Canada. Why is the Justice System so soft on giving murderers, rapists and violent people no prison sentences while the rest of Canada throws the book at the criminals. The Justice System is supposed to be there to protect the general public from these violent people. This is just so sad on so many levels. Using your Heritage as an EXCUSE not to do JAIL / PRISON time.
Gladue factors – is such a joke in this day and age, but that’s fine lets blame everything on the past… Like always if your caught breaking the law just say you were abused in the past or black out drunk at the time, you can get away with anything…
In the age where in-home violence is on the rise lets give another slap-on-the-wrist. lol good job…
Wait is it because its a woman that committed the violence, If it was the husband the rage of the public would have been over the top.
These cases are so “funny” to read about.
*Disclaimer* I am no way condoning this type of violence.
Gladue Principles: re-victimizing the victims of violence since 1999.
Unreal.
So lets get this straight, now the daughter has an excuse to beat her family when she grows up – it’s even legally recorded now. “My mom did it and it was okay then because her parents did it to her”. Good job legal system. How are you supposed to end the cycle when there is a past excuse to justify the current and future problems. Seriously this does absolutely nothing to curb the violence. I go home every night after work to a house full of kids and because my parents smacked me around a few times I’m justified in punching them? You have anger issues get counselling.
These are stupid times!
This Gladue system is such a farce. Quit allowing violent offenders off on this joke of a loop hole.
Just becauSe it happened many many years ago doesn’t mean you can let off recent offences like these serious ones
I doubt this Mother thought of gladue decisions when she was punching her daughter. Shame on her!!!
The only error in law made by the JP was not to “consider” Gladue sufficiently when rejecting it.
Gladue is of itself bad law, all too typical of the Supreme Court of Canada, for two reasons. First, it increases the vulnerability of potential victims—they have rights too. Second, it treats First Peoples as second class citizens, like children not be held responsible for their actions like other adult Canadians.
Gladue isn’t a ‘law’, it’s a principle, and the logical flaws which follow from it are almost as bad as those commonly invoked by Occam’s razor.
Race-based law needs to go. The ironic thing is that it’s the race-based victims that suffer the most under it, but nobody of any race deserves to be hit or killed by an out-of-control aboriginal person, just like they don’t deserve it from a non-aboriginal who would suffer the full penalty for what he or she did. Heritage is no excuse. All people deserve safety, and all criminals deserve the same penalties.
Good old Gladue! The SC decision that allows abusive parents to beat the crap out of their 15 year old daughters and get away with it!
Whether Gladue Principles have some merit in certain cases is an interesting thing to consider.Perhaps they do. Whether they have merit in ALL CASES is quite another. Justice Charlesworth, it seems, would have us move toward making GP the default position for all cases to do with an indigenous person; the kind of moral absolutism embodied in statements like “all Nunavut courts are Gladue courts” is not terribly surprising, though it should be alarming. This is not how GP were designed or intended.
Paradoxically, when GP principles are applied universally, and without proper and thoughtful reflection, they come to represent a certain bigotry all of their own, one of low expectations on those to whom they are universally applied.
I pray that you will not experience the trauma and you will get to understand the true meaning of assimilation. But you won’t because the way you write means you are ignorant.
I agree Tommy! People need to understand that if you give you kids a good ass whoppin that it’s nothing compared to the pains of assimilation. Beat your kids, do whatever you need to do to exorcise your demons, no worries! All will be forgiven by the great white social justice advocate!