Judges need more leeway to impose harsher sentences in cases of gender-based violence and Parliament should re-examine the issue, says a seasoned Nunavut judge and former Crown prosecutor.
Justice Paul Bychok expressed his frustration in a decision released earlier this month after he was forced to impose a “lenient” sentence on a Kugluktuk man convicted of twice assaulting his girlfriend. Based on precedent, Bychok had to follow the recommended sentence agreed upon by the Crown prosecutor and the defence lawyer, which entailed 45 days in jail and nine months of probation.
“In my view, the joint submission I imposed was unduly lenient, and counsel failed to justify their leniency,” Bychok wrote in his Oct. 2 decision. “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.”
The judge was overruled by the appeal court on two previous occasions – once earlier this year and once in 2018 – when he didn’t adhere to a joint sentencing recommendation from the Crown and defence lawyers.
He wants Canada’s federal politicians to revisit sentencing guidelines.
“A judge’s inability to impose a just and principled sentence constitutes a breakdown in the justice system,” Bychok stated. “Reasonable and informed Nunavummiut would conclude, as I have, that the justice system broke down in (this) case. That breakdown ought to have permitted me to decline to implement the joint submission.”
The court case involving the 39-year-old Kugluktuk man revealed that he first attacked his girlfriend on Aug. 2 after she told him that she was going out to give some money to her mother. He punched her, head-butted her, banged her head against the floor, pulled her hair, slapped her and kicked her twice, the victim told the RCMP.
Although the offender was released on bail with an order not to contact the victim, he was arrested again 19 days later after the woman told police he had choked her. The police noticed swelling around her mouth, a red mark near her left eye and that she was “crying, visibly shaken and scared.”
The offender faced charges of common assault and choking his intimate partner and another charge for violating his no-contact bail condition.
Following plea negotiations, Crown prosecutor Gary Wool had the court delete the choking charge and the offender pleaded guilty to common assault and the bail breach.
Bychok’s decision stated that the more serious choking charge was “clearly supported” by the facts.
“I would at least have expected the Crown to allege the choking to be an aggravating factor to the common assault,” the judge wrote. “This failure by the Crown to allege the admitted choking as an aggravating factor minimized the extent of the violence, its impact on the victim, and (the offender’s) responsibility for his criminal actions.”
Bychok cited statistics and statements from Pauktuutit Inuit Women of Canada and the Murdered and Missing Indigenous Women and Girls final report that underline the crisis of gender-based violence in Nunavut. He also noted that there’s a risk that lenient sentences can reinforce the perception that “there is little justice to be found for Inuit women in the criminal justice system.”
“In my view, the overall joint submission in (the offender’s) case minimized the nature and severity of his violent offences and served to minimize his responsibility as well as the impact of the crimes on his victim,” stated Bychok, who added that he feels the sentence brings “the administration of justice into disrepute.”
The Kugluktuk offender has 13 offences on his criminal record from 2000-2012, including three convictions for assault and one for sexual assault, with the lengthiest sentence for any of those being three months in jail.
“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,” the judge wrote. “There is a need and a role for Parliament to reopen debate on this vitally important aspect of our criminal justice system.”
Bychok concluded that Nunavut judges may need to take a more prominent role in helping lawyers determine recommended sentences.
“An independent judiciary is the last line of defence for everyone in our free and democratic society. As Parliament has entrusted judges with the ultimate responsibility for the sentences they impose, judges must be vigilant to ensure that justice is done. In Nunavut, at least, that vigilance may require judges to engage with counsel to ensure that all relevant circumstances and principles have been considered and appropriately applied in joint submissions.”