A statue of Lady Justice blindfolded and holding scales.Wesley VanDinter/Getty Images
At last a Canadian judge has shouted from the rooftops that sentences for child sexual abuse are often too lenient. And, more radically, that the mercy shown abusive men in the north has rebounded on vulnerable women and children.
In a ruling in late June, Paul Bychok of the Nunavut Court of Justice sent a message – several, rather – that should reverberate far beyond the territory in which he presides.
The case before him involved a repeat offender in Iqaluit who committed sexual offences and a physical assault against his 20-year-old daughter and 17-year-old stepdaughter. The man’s defence lawyer wanted him kept in the territory. That would have meant a sentence of under two years, since two years or more would mean federal prison in the south. It seems a presumption has developed that that is the way things are done in the north.
Certain presumptions are hard to dislodge. Two years ago, a different man in Nunavut, this one with a dozen spousal assault convictions, was released after serving a 75-day sentence and, after quickly being charged with doing it again, was released by the RCMP on a promise to stay away from his intimate partner. A month later, he was charged yet again; and again, the RCMP released him on the same promise.
When he was charged a third time, and the Mounties finally brought him to court, the federal Crown consented to his release on bail – at which point a Justice of the Peace said no. That the police and Crown were so accepting is shocking after all the consciousness-raising we thought had been done by the 2016-19 National Inquiry into Missing and Murdered Indigenous Women and Girls.
Perhaps the tenacity of these presumptions explains Justice Bychok’s frustration. The veteran judge, who has spent 21 years in Nunavut, did something judges rarely do. He sentenced the 56-year-old man, known as T.T., to a sentence even longer than that urged by the prosecutor.
The prosecutor had said if you added up what T.T. deserved for each of his three offences, the prison term would be seven to nine years. But then, taking into account the “totality principle” – that an overall sentence should not be too harsh – the appropriate term would be five to six years.
Justice Bychok disagreed. He said the total sentence had to reflect T.T.’s serious moral culpability. If it didn’t, the court would bring “well-deserved mockery” on itself. He sentenced T.T. to eight years in prison.
How did he justify such a long sentence in the Gladue era? Gladue is the name of a 1999 Supreme Court ruling, interpreting a 1996 federal law requiring special consideration in sentencing for Indigenous offenders. But Justice Bychok pointed to another sentencing law, this one passed in 2019 – on the recommendation of the missing-women’s inquiry – that in abuse cases involving Indigenous women and girls as victims, deterrence should be the judge’s primary consideration.
This new sentencing law, and a similar one for child victims of sexual assault, is sometimes ignored. In May, a different judge, this one in B.C., sentenced a man to house arrest for the possession and distribution of child pornography. In this space, we called it a “yes, but” decision – made despite the federal sentencing law and Supreme Court precedent.
In the Nunavut case, Justice Bychok delivered his own “yes, but” ruling.
Yes, but… what about the victims? What about the justice system’s reputation among the people of Nunavut?
He spoke of the “immense courage” of victims in remote communities in coming forward to testify, often in front of the family of the accused. He highlighted the “staggering prevalence of gendered domestic and sexual violence in Nunavut.” The Supreme Court says judges can give stronger sentences based on local conditions.
“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,” he wrote. And, bravely: “Colonialism’s legacy has affected Inuit women and girls every bit as much as Inuit men.” In other words, the vulnerable need the courts’ protection. Sadly, the merciful approach has left them open to repeated abuse.
Finding a truly just sentence is rarely easy, and sentencing in the difficult circumstances of the North has its own challenges. But judges in Nunavut and beyond should heed the messages that Justice Bychok has sent them.