R. v. A.(M.), 2020 NUCJ 4

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)

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. 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.

[ 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) [ 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 neediestpeople 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 Inquiryinto Missing and Murdered Indigenous Women and Girls, the work of Pauktuutit, the Qulliq status of women, the Native Women’sAssociation of Canada, the work of the Truth and Reconciliation Commission of Canada, and the Final Report of the Royal Commissionon Aboriginal Peoples, as I am directed to by the Supreme Court decisions in R v Ipeelee, 2012 SCC 13 and R v Gladue, (SCC), [1999] 1 SCR 688. [19] In the Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, the Inquiry canvassed someof 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 ornot reaching out to the criminal justice system – even in cases where there had been severe acts of violence against them… JennishaWilson described how prior negative experiences with police make Indigenous women reluctant to report violence or trafficking: “Thereis a significant reluctance for Indigenous women, specifically Inuit, to engage with police because of prior experiences of being seen as acriminal, being blamed, being seen as not a victim, causing it on themselves.” (National Inquiry into Missing and Murdered IndigenousWomen and Girls, Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered IndigenousWomen 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 officersthroughout 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 workof the Qikiqtani Truth Commission. We are in an era of “reconciliation”, where Governments and their agencies talk of improvingrelations between Indigenous and non-Indigenous people.

All who administer justice in Nunavut must be aware that our uniforms cloakus in that history, whether they are suits in a court room, or yellow stripes on police uniforms. Our actions can work towardsreconciliation, or against it.

To advance the work of reconciliation, we must consider the complex and ongoing relationship between lawenforcement, courts, and Indigenous peoples in this country and in this territory. [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 decidedto 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 tothe 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 herbail conditions by drinking? [25] A recent report from Pauktuutit titled Addressing Gendered Violence against Inuit Women: A review of police policies andpractices in Inuit Nunangat is a helpful resource for information on the issues these cases raise. In the

section of the report reviewing theexperiences 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 womenspoke about the troublesome ways that police treated them when they reported gendered violence. These experiences have left thewomen 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. [ 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