Indigenous Women in Canada Failed by the Justice System

"[There is a] reluctance on the part of trial judges to sentence accused persons to penitentiary time, because it means they have to leave the North. Denunciation and deterrence are not adequately served by a presumption that those who commit sexual offences against children and adolescents [in Nunavut] are immune from penitentiary sentences."

"It is simply wrong to say ... that Mr. so-and-so 'is an Inuk, therefore he's entitled to a conditional sentence'. That bald assertion reduces [Gladue] to the very ethnic discount warned against by several courts of appeal."

"[Gladue] was never intended -- and should not be applied as -- engaging an automatic 'heritage-based discount'."

"Far too many reported cases across the country appear to give mere lip service to ... the hurt done to victims of domestic and sexual violence."

"Colonialism's legacy has affected Inuit women and girls every bit as much as Inuit men."

Judge Paul Bychok, Nunavut Court of Justice (retired) 

Anne Crawford, who's practiced law in Nunavut for more than three decades, says she hears from women who do not feel they are protected by the law. (Jordan Konek/CBC)

 

R v Gladue mandated that courts take into account systemic factors stemming from the legacy of colonialism, residential schools and intergenerational trauma in sentencing. In 1999 the Supreme Court of Canada ruled that instituting Gladue at the time of sentencing a malefactor of Indigenous descent be undertaken to address the issue of Indigenous overrepresentation in the Canadian prison system. That has had the effect, over the years, of minimizing punishment for crimes committed by people of Indigenous background.

 

The Investigative Journalism Bureau at the University of Toronto has released a study, validating what has become common knowledge in sentencing of aboriginal offenders in Canada. The takeaway featured the fact that Indigenous women are murdered at a significantly higher rate than are non-Indigenous women, at a factor of six times greater. Experts in the law place the responsibility for the situation of male offenders -- who represent by far the majority in the killing of females in their community -- on the Canadian justice system for its failure to secure full justice for Indigenous women.

 

Between 2018 and 2025, of 1329 suspicious deaths of women in Canada, 25 percent (340) were Indigenous, according to the research. 46 percent were convicted of manslaughter rather than first- or second-degree murder, of the75 cases that reached trial. The victim and the accused were known to each other in 97 percent of these cases, raising the unavoidable impression that crime and punishment in Canada have been corrupted in the case of Indigenous offenders, due to the 'Gladue principle'.

 

It stands out as the simple accounting of Indigenous offenders, inclusive of those standing trial for domestic and sexual violence against their Indigenous partners, are gifted with lighter sentences than would accrue to non-aboriginal criminal offenders. Before his retirement, Judge Paul Bychok presided over R v T.T. in the Nunavut Court of Justice. An Indigenous heavy equipment operator with a 'good life' had been charged with assault, sexual assault and voyeurism against his daughters.

 

Tara  Qunngaataq Tootoo Fotheringham, president of the Amautiit Nunavut Inuit Women's Association, says there is a false dichotomy at play that Canadians must choose between protecting Indigenous women and girls from violence at the expense of the over-incarceration of Indigenous men. (Jaison Empson/CBC)

 

Before that charge leading to trial, the man, known as T.T. to protect his daughters, had racked up nine convictions for violent crimes that included two for sexual assault, six for assault and one for sexual interference of a minor. In view of this man's propensity for violence and sexual assault, Judge Bychok bypassed Gladue, resisting the sentence proposed by the prosecutor (five to six years) and the 'merciful' sentence proposed by T.T.'s defence lawyer, of two to five years, arguing against transfer to a federal penitentiary in another province. 

 

In Judge Bychok's opinion "Nunavut's hundreds of victims of domestic and sexual violence are living a nightmare". It takes "tremendous courage" for victims living in remote communities to bring themselves to testify, all the more so, often in the presence of the family of the accused. The Gladue principle has had the effect of entrenching two-tier justice against Canadian women of Indigenous heritage. 

 

The  Nunavut Court of Justice in Iqaluit. Photo by William Koblensky Varela/NNSL