Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut

Citation: R. v. A.(M.), 2020 NUCJ 04

Date: 20200205
Docket: 08-18-895
Registry: Iqaluit

Crown: Her Majesty the Queen

-and-

Accused: A(M)

________________________________________________________________________

Before: Justice of the Peace Joseph Murdoch-Flowers

Counsel (Crown): N. Sitmann, Student-at-Law

Counsel (Accused): C. Christie

Location Heard: Iqaluit, Nunavut

Date Heard: December 19, 2019
Matters: Criminal Code, s. 145(5.1)

REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication)

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DISCLAIMER PAGE

Anonymized Judgment Disclaimer:

This judgment has been anonymized to comply with

legislative requirements or at the discretion of the
authoring Justice to protect vulnerable parties.
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I. BACKGROUND

[1] On November 20, 2018, A(M), an Inuk woman, was placed on

bail conditions which included a condition not to drink. In this
decision, I will refer to A(M) as “A”.

[2] A month later, A called the police for assistance because, as her
defence lawyer told the court, she was facing violence in her
home. Police arrived, found A was intoxicated, and arrested her
for breaching her bail condition.

[3] A entered a guilty plea to the charge. The charge followed along
with other court files that were later dealt with in other ways.

[4] Finally, on December 19, 2019, I found A guilty of failing to

comply with her no-alcohol condition, after she admitted to the
brief facts above. I sentenced her to an absolute discharge for
this offence, and gave my reasons at that time.

[5] In my reasons, I said that I found this case troubling, especially

because A’s case is nearly identical to another case, R v K(M),
court file 08-18-879, which I dealt with (by co-incidence) exactly
one year prior, on December 19, 2018. I will refer to the woman
in that case as “K”.

[6] Like A, K was an Inuk woman who had also pleaded guilty to
breaching her bail for drinking when she was not supposed to.
Like A, K called the police because she was being assaulted by
her boyfriend, while A called the police because she was being
assaulted by her step-father.

[7] K’s situation was even more troubling than A’s, because K, a
victim of assault, was severely beaten and then held in custody
to appear before me in such condition while A was free on bail
when she came to court in the present matter.

[8] These women, both victims of violence, called the police for help
and ended up charged themselves.
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[9] When I passed sentence on A, my main concern was to allow A

to have her case finished, and accordingly, I decided to make an
immediate decision on sentence rather than put the case over so
that I could make a more fulsome articulation of my reasons for
judgment.

[10] The purpose of this judgment is to provide more fulsome reasons

as I believe both K’s and A’s cases, deserve such judicial
scrutiny. At the same time, and albeit that in my view nothing
“new” comes in these reasons, the appeal period for this case
will commence not on December 19, 2019, but rather on the date
of this judgment.

II. FACTS

[11] On December 28, 2018 A, an Inuk woman, was on bail

conditions not to drink alcohol. That night, she called the RCMP
because of a dispute in her home. Defence indicated that she
called the police because her step father was physically
mistreating her. When the RCMP arrived, they observed that A
was extremely intoxicated, contrary to her conditions. The RCMP
arrested her and charged her for breaching her bail condition not
to drink.

A. 08-18-879: The case of K

[12] This case echoes a case which I decided on December 19,

2018. In that case, K was on bail conditions not to drink. She was
intoxicated with her boyfriend, who was assaulting her. Her sister
called the RCMP for assistance. The RCMP arrived and charged
her with breaching her bail conditions.

[13] I found her guilty of the offence, but in doing so, I told K:

“I'm concerned that if I find you guilty of [breaching your no alcohol

condition], it's going to maybe make you think twice about calling the
RCMP again in the future… you should never think twice about
calling the RCMP. And you should expect and have every confidence
that if you're in trouble, they're there to help you.” (Transcript, at 18)
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[14] I also observed K’s physical condition in the courtroom:

“…you're sitting here with your face black and blue, beaten. And I'm
sorry that I have to say that, but I see that. And I have to say that,
because this is being recorded and I want whoever hears this in the
future to be able to see in their minds what I see from this seat.”
(Transcript, at 27)

[15] I absolutely discharged the woman in the earlier case, too.

[16] Back to A’s case.

III. A(M)’S BACKGROUND

[17] A has had a difficult life, like so many of the people who appear
in criminal courts in Nunavut. Her childhood home was violent.
She was abused. She was placed in too many foster care
placements to count, within Nunavut and outside of the territory,
which defence noted is often described as “the new residential
school”. Her life has been tragically touched by suicide in her
family. She has difficult relationships within her family. It comes
as no surprise that she turned to intoxicating substances to cope.
Her defence lawyer says that she is a chronic alcoholic. She has
limited education. When she can, she contributes by working for
local agencies serving the neediest people in our community.
She has done counselling and wishes to take more in order to
address the difficulties in her life.

IV. REASONS FOR SENTENCING

[18] I sentenced her to an absolute discharge for this offence. In

doing so, I took into consideration the Report of the National
Inquiry into Missing and Murdered Indigenous Women and Girls,
the work of Pauktuutit, the Qulliq status of women, the Native
Women’s Association of Canada, the work of the Truth and
Reconciliation Commission of Canada, and the Final Report of
the Royal Commission on Aboriginal Peoples, as I am directed to
by the Supreme Court decisions in R v Ipeelee, 2012 SCC 13
and R v Gladue, [1999] 1 SCR 688.
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[19] In the Final Report of the National Inquiry into Missing and
Murdered Indigenous Women and Girls, the Inquiry canvassed
some of the reasons why Indigenous Women and Girls might be
reluctant to report violence to the police. The Commissioners
wrote:

During the Truth-Gathering Process, families and survivors talked

frankly about their reasons for not reporting violence to the police or
not reaching out to the criminal justice system – even in cases where
there had been severe acts of violence against them… Jennisha Wilson
described how prior negative experiences with police make Indigenous
women reluctant to report violence or trafficking: “There is a
significant reluctance for Indigenous women, specifically Inuit, to
engage with police because of prior experiences of being seen as a
criminal, being blamed, being seen as not a victim, causing it on
themselves.” (National Inquiry into Missing and Murdered Indigenous
Women and Girls, Reclaiming Power and Place: The Final Report of
the National Inquiry into Missing and Murdered Indigenous Women
and Girls, (Ottawa: Government of Canada, 2018) at 628-629.)

[20] It must be noted and emphasized that the RCMP did indeed
respond to A’s call, as well as K’s call in the earlier case I
referred to. The RCMP face such calls every day in Nunavut. It is
physically, emotionally, mentally, and spiritually exhausting work.
RCMP officers throughout the territory serve and protect our
citizens with integrity, honour, dignity, and compassion.
[21] The RCMP and Inuit in Nunavut have a complex history that has
led to distrust towards police from some Inuit. For more, see
work of the Qikiqtani Truth Commission. We are in an era of
“reconciliation”, where Governments and their agencies talk of
improving relations between Indigenous and non-Indigenous
people. All who administer justice in Nunavut must be aware that
our uniforms cloak us in that history, whether they are suits in a
court room, or yellow stripes on police uniforms. Our actions can
work towards reconciliation, or against it. To advance the work of
reconciliation, we must consider the complex and ongoing
relationship between law enforcement, courts, and Indigenous
peoples in this country and in this territory.
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[22] In A’s case, like in K’s case, it is troubling that in addition to their
response to the violence against the women, the RCMP decided
to charge the women for breaching their bail conditions to
abstain from alcohol.

[23] The police and the Crown must guard against what I would
characterize as “institutional indifference”. They must be
sensitive to the big picture, and they must not allow legal papers
to get in the way of decency and common sense.
[24] In both cases, the big picture is simple – a woman is calling for
help against domestic violence. Why charge her for violating her
bail conditions by drinking?

[25] A recent report from Pauktuutit titled Addressing Gendered

Violence against Inuit Women: A review of police policies and
practices in Inuit Nunangat is a helpful resource for information
on the issues these cases raise. In the section of the report
reviewing the experiences of Inuit women in Nunavut, Pauktuutit
wrote:

“Several women spoke about their reluctance to call on police because

of negative experiences they have had in the past. Other women spoke
about the troublesome ways that police treated them when they
reported gendered violence. These experiences have left the women
feeling wary and distrustful of police.”

[26] By charging and prosecuting cases like A’s and K’s, the
message that police and Crown deliver is “call us at your peril.”
Such a no-tolerance approach serves only to dissuade victims,
particularly A and K in these cases, from ever calling the RCMP
for help.

[27] Such decision making by the police and Crown is a failure to

properly exercise the discretion which the law grants them to
charge or not to charge. More importantly, it is a disservice to
some of the most vulnerable people in our society – namely Inuit
women who suffer from domestic violence.

[28] The police and Crown must cease this practice.

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[29] It is in A’s interest to be discharged absolutely for the charge of

breaching her no alcohol condition, and I find it is not contrary to
the public interest to absolutely discharge her. This decision is
informed by the above observations and in consideration of the
comments in the reports I’ve referred to.

[30] Inuit women should never feel like they must hesitate to call the
police for assistance in Nunavut.

Dated at the City of Iqaluit this 5th day of February, 2020

__________________________________
Justice of the Peace Murdoch-Flowers
Nunavut Court of Justice