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The protection of Indigenous women from violence needs new prominence in cases when judges apply the unique sentencing considerations developed for Indigenous offenders, Quebec’s highest court says.

The Quebec Court of Appeal, in a 2-1 ruling, threw out a sentence of two years less a day in a horrific case of spousal sexual assault that occurred two years ago in a northern Inuit community on Hudson Bay. Instead, it ordered 44 months in federal penitentiary, which it said it viewed as a better way to protect the victim and would act as a deterrent to any further violence by the offender or others.

The ruling appears to be the first time a Canadian appeal court has cited changes to federal sentencing law that took effect last September that make deterrence the primary consideration in cases involving vulnerable Indigenous women and girls as victims. Those changes were a response to concerns expressed last year by the national inquiry into Missing and Murdered Indigenous Women and Girls, and by the Supreme Court in a similar case of violence last year known as Barton, in which it warned against stereotyping Indigenous female victims.

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Indigenous offenders are often the subject of special reports written for the judge at sentencing that explain how a history of colonialism and suffering has shaped their lives and should be taken into consideration in determining the penalty. Several such reports were done on the offender in this case. (He can’t be named, to protect the identity of the victim.) But the majority in the Quebec appeal court ruling, released on Sept. 25, said the victim also deserves consideration for a difficult past.

“She too, as an lnuk woman and victim, suffered from policies of community dislocation, sedentarization, forced relocation, suicides or shootings in the community," Justice Simon Ruel wrote, joined by Justice Suzanne Gagné. “Historic, social and socio-economic realities clearly had inter-generational impacts in compromising her physical, mental, emotional, and spiritual health and her personal integrity as an Indigenous woman.”

Federal sentencing law since 1996 sets out special consideration at sentencing for Indigenous offenders, including an emphasis on alternatives to custody. The Supreme Court, interpreting the 1996 changes in a 1999 case called Gladue, stressed that judges need to take into account the effect of residential schools and other historical factors, and think in new ways about sentencing.

But last year, the national inquiry into Missing and Murdered Indigenous Women and Girls called on governments to consider how the Gladue principles affect sentencing equity in violent crimes against Indigenous women. Federal sentencing changes followed that emphasized deterrence and denunciation in such cases.

The case before the Quebec Court of Appeal involved a man described as peaceful and a good father when sober, but violent when drunk. He had a criminal record for assaults against his common-law wife, a child of his and other relatives. On April 9, 2018, he attacked his spouse, causing vaginal lacerations of 10 to 15 centimetres with his fist. She lost a litre of blood and had to be airlifted to Montreal for treatment. She was unconscious for a long time, the appeal court said.

The Gladue reports delving into his past showed that, while his childhood home had no violence or substance abuse, he suffered a variety of losses, including his father leaving permanently when he was 11, and suicides and shootings in the community. A grandmother was a survivor of residential schools. A government-led slaughter of Husky dogs forced Inuit into a sedentary lifestyle. He suffered a traumatic brain injury at 26 in a drunk-driving accident, and his mother and spouse say he became aggressive afterward.

Justice Peggy Warolin of the Court of Quebec in Abitibi sentenced him to two years less a day, plus three years probation, much less than even the defence proposed – 44 months; the Crown had asked for six years. Justice Warolin said his “moral blameworthiness” was reduced because of his suffering related to being Indigenous; his drunkenness was a mitigating factor, she said, and support from his mother and community would help him rehabilitate. The Crown appealed.

The appeal court majority said the drunkenness was an aggravating factor, not mitigating, because he drank knowing he becomes violent. It stressed the need to protect the victim, who was too terrified to attend the sentencing hearing, by keeping him apart from her longer. And while federal prisons are disproportionately full of Indigenous people – more than 30 per cent, although they make up just 5 per cent of the overall population – the majority highlighted that Indigenous women are disproportionately victimized by violence.

“In cases of sexual violence against Indigenous women, the Gladue factors affecting the offender have to be weighed against the necessity to give appropriate consideration to the historical and systemic circumstances of Indigenous women victims of sexual violence in the domestic context.”

Dissenting, Justice France Thibault cited studies showing that the courts have done a poor job of applying the Gladue principles. She also cited University of Toronto law professor Kent Roach, who has written that ignoring those principles risks “piling suffering on suffering.” She said Justice Warolin had taken the victim into account.

Prof. Roach told The Globe and Mail that while Parliament has stressed deterrence and denunciation, “it is not clear that such punitive purposes work in these circumstances.” He said the case may end up at the Supreme Court.

Jean Teillet, a Métis lawyer and author, said the brain injury and addiction are health problems that need an answer rooted in health measures. Christa Big Canoe, former lead commission counsel to the MMIWG inquiry, said the Gladue principles were supposed to include concern for victims and communities, but “there’s been blinders on for the victims.”

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