A territorial court judge last week weighed the ‘national travesty’ of all-time high Indigenous incarceration with strengthening the rights of female victims.
Canada’s federal correctional investigator recently used the phrase “national travesty” to describe the number of Indigenous people behind bars in Canada.
Judge Donovan Molloy on Friday noted both that study and a separate report, from the National Inquiry into Missing and Murdered Indigenous Women and Girls, that highlighted “the risk of Indigenous women being relegated as lesser victims.”
Molloy was sentencing an NWT man (who can’t be named or otherwise identified as it could identify the victim) convicted of sexually assaulting a “very close friend” after she fell asleep following a night of drinking in August 2018.
The judge said the man’s fondling of the woman, having entered her bedroom as she slept, represented “the shattering of her sense of trust” – noting the woman considered the man her “God-brother.”
The Crown called for a 12-month jail term followed by a two-year period of supervised probation. The defence asked the court to consider a conditional sentence, also known as house arrest, to be served in the community. Failing that, the defence suggested a period of imprisonment in the four-month range.
The man had no prior criminal record and had held gainful employment in the past. He was raised in a traditional lifestyle and is close to his parents and grandparents, the court heard, who all attended residential schools.
He was exposed to “significant alcohol abuse and violence” as a child and started drinking alcohol when he was 14. He told the author of his pre-sentence report he was sorry for what he had done, adding he wanted to apologize in person to the woman should he be permitted.
The woman’s victim impact statement, said the judge, “speaks to profound detrimental impacts on her personally and her relationships. The ramifications of [the man] violating her sexual integrity required her to seek professional help from counsellors, interventions that appear to be ongoing.”
‘Real and meaningful alternatives’
At this point, Molloy considered the over-representation of Indigenous people behind bars – alongside separate calls from the national inquiry for “federal, provincial, and territorial governments to thoroughly evaluate the impacts of Gladue principles … on sentencing equity as it relates to violence against Indigenous women, girls, and 2SLGBTQQIA people.”
The longstanding Gladue principle, named for Cree woman Jamie Tanis Gladue, instructs judges to consider systemic or background factors that may have played a part in bringing an Indigenous offender before the courts – and the types of sentencing procedures and sanctions that may be appropriate in the circumstances.
The Criminal Code also now explicitly recognizes Indigenous women as part of a vulnerable population for the purposes of sentencing, the judge noted.
In his written decision, Molloy asserted each case must be decided on its own merits and the evidence presented to the court.
“While larger societal issues are valid considerations, we cannot litigate those issues on the backs of our citizens, especially our Indigenous population,” he said.
“The issues contributing to the over-incarceration of Indigenous persons are beyond the capacity of the justice system to resolve. The justice system can only be part of the solution, and it must have at its disposal real and meaningful alternatives to the tools currently available.”
In sentencing the man to 12 months’ house arrest with “onerous” conditions, Molloy noted he has spent a month in jail waiting to be sentenced.
The man must remain in his house at all times except for medical emergencies; to attend church once a week; to complete 200 hours’ community service; and one afternoon a week to attend to personal matters and errands.
He will have to attend counselling or other programming as directed. He can participate in communal activities on the land, for one period of up to 30 days, in the immediate presence of at least one community Elder and at least 20 km outside the boundaries of the community where the offence took place.
He must abstain from possessing or consuming alcohol or drugs, except for prescription medications. He can have no contact or communication with the woman.
Following his sentence, the man will be on probation for 18 months, during which he also can’t contact or communicate with the woman.