Of Allegations Concerning Inuit Sled Dogs

By David Nugent

DavidLast month two legal interns and I hired an outfitter to take us dog sledding. After getting into our winter gear, our outfitter drove us through Iqaluit and parked his van by the frozen shore of Frobisher Bay. Walking out onto the ice the outfitter told us about his dogs; how he feeds them a mix of dog food and seal meat and keeps them chained to the ice all winter. These dogs like the cold, he says. Even Iqaluit, situated in the south of Baffin Island, is a little warm for their liking. In the summertime the dogs move inland and keep to the shade. They don’t run in the summer. It’s too hot and there’s always a risk of overheating. These dogs are made for cold places.

As we approach the team the dogs begin to howl and whine. We unhook the dogs from their chains, the outfitter helps the dogs into their harnesses, and then we sit down on the sled behind the team. All of a sudden the dogs begin to pull and our sled, the outfitter, the two other legal interns and I surge forward across the rough sea-ice. Past Iqaluit. Past the neighbouring community of Apex. Out onto the smooth ice of the bay.

The outfitter explains that these are Canadian Inuit Dogs, or Inuit sled dogs, an Arctic working dog that is one of the oldest purebred breeds in Canada. Unlike the dogs in Alaska, these dogs were bred for strength, not speed. These dogs used to pull heavy loads across the snow and ice. Now most of the heavy lifting is done by snowmobiles, four-wheelers and pickup trucks. Still, these dogs are an important part of Nunavut’s history and Inuit culture.

The Inuit sled dog experienced a dramatic decline in the 20th century. Some Inuit elders and others in the community have alleged that the RCMP and other government officials killed large numbers of dogs as part of a widespread conspiracy to deprive the Inuit people of their culture. Specifically, some have alleged that the systemic killing of dogs made it impossible for the Inuit to live on the land, thus forcing them into fixed settlements and a culture of dependence (Final Report: RCMP Review of Allegations Concerning Inuit Sled Dogs at p. 5).  In response to these allegations the RCMP conducted an inquiry and in 2006 published its Final Report: RCMP Review of Allegations Concerning Inuit Sled Dogs. The Report attributed the dramatic decline in dogs to the introduction of snowmobiles in the 1960’s, canine disease and the destruction of some dogs by the RCMP in the 1950‘s-1960‘s for health and safety reasons. The Report found no conspiracy to destroy the dogs or the Inuit way of life.

There are clearly two different versions of events (as documented in the 2010 NFB film Qimmit: A Clash of Two Truths).  Or, more specifically, two versions of how and why certain events happened. Both parties agree that the RCMP killed dogs. Where the parties differ is in regards to how many dogs were killed and why the RCMP killed them.

As a legal intern at Maliiganik Tukisiiniakvik Legal Services I often encounter conflicting narratives, and I’m learning that piecing together what happened and why it happened is an important part of my work. Many mornings begin with a notice from the Crown’s office that an accused is being held at the RCMP detachment awaiting a “show cause” or judicial interim release hearing that afternoon. Our office receives disclosure in the form of the Prosecutor’s Information Sheet (PIS) that includes witness statements and RCMP allegations of what happened. I’ll review the PIS with the supervising lawyer and we’ll arrive at a preliminary understanding of what allegedly happened. However, when I meet the accused at the RCMP detachment to discuss their upcoming show cause hearing, I am sometimes confronted with another version of events. Certain allegations are denied. More often I am told why certain events did or did not happen. Sometimes issues of self-defence or provocation are raised. Other times the accused himself has been the victim of violence in the past. This information will be critical in understanding the case and crafting an effective defence (should the matter ever go to trial). Context is also important at the sentencing stage of the process, particularly in light of the sentencing principles articulated in Gladue and Ipeelee and  s.718.2(e) of the Criminal Code.  And while my work as a student never involves the actual trial or sentencing stages of the process, these principles and considerations are still relevant in the context of show cause hearings. As one lawyer explained to me, if it’s unlikely that the accused would face jail time even in the event that they were convicted, a strong argument can be made that the accused should not be detained prior to their trial.

The accused and I also discuss aspects of their life. Are they working? Are they supporting children? Where and with whom are they living? Are they hunters? What is their history? These are important elements of the story that are rarely found in the PIS. This context also has an impact on the outcome of the bail hearing, the coherence of the release plan we will propose, and ultimately whether or not the accused will be released pending their trial. Several defence lawyers have told me that listening is an important skill to develop.  One lawyer told me that listening and telling her client’s story in court is one of the most important things that she does. Maliiganik’s clients’ voices are often unheard.

The RCMP Review of Allegations Concerning Inuit Sled Dogs also underlines the importance of listening, hearing and reflecting people’s history and lived experience.  More telling than the conflicting narratives was the Report’s methodology that relied heavily upon RCMP officers’ accounts of events, as well as official RCMP and government records. The Report noted that the review team was unable to review many Inuit elder statements that were held by the Makivik Corporation and the Qikiqtani Inuit Association. Instead, the team reviewed elder statements in the fifty-four minute “Echo of the Last Howl” documentary. This section of the Report suggests that RCMP officials were unable to coordinate their efforts and investigation with Inuit groups.

The Report might also reveal an underlying distrust that sometimes exists between certain members of the community and the RCMP (or perhaps the law more generally). When working with Maliiganik clients and their families I sometimes have to make it clear that I am working for the accused (and in their interest) and not for the Crown. This is especially true when I am calling remote communities to represent a person with whom I’ve never met. How do you engender trust over the phone? How do you let the accused know that you’re listening and that you have their best interests in mind? How do you even know what is in the accused’s best interest when you have never met them in person and you have a cursory understanding of their personal history and the events that brought them into custody?

The RCMP Report suggests that officers were acting in the best interests of communities when they destroyed Inuit sled dogs in the 1950’s and 1960’s. These dogs were loose, sick or starving and they posed a health and safety risk to the community. That is why the RCMP destroyed dogs according to the Report. But that is not necessarily how the RCMP’s actions were perceived by members of the community at the time, and it is not how this history is remembered now. In order to act in a person’s best interest, their history and perspective must be understood and acted upon in some way. I am continually learning and re-learning this lesson at Maliiganik Tukisiiniakvik Legal Services.

Back on the ice with the dogs, our guide and the other two legal interns. We decide to stop and rest the dogs. Our guide produces a large Tupperware container of cubed cheese, cured meats, chocolate covered goodies and hot chocolate. As we sip our hot chocolate and admire the light on the land and the snow-covered bay two hunters zip by on their skidoos. They wave and disappear over a snowy ridge. It’s a good time for seal hunting, our outfitter explains. I ask him to take our picture. One of the dogs, sensing an opportunity and the momentary lapse in his master’s attention, lunges for a piece of cured meat and wolfs it down.

Sled Dogs

Kafkaesque

2012-Chris-DurrantBy Chris Durrant

I’ve never read The Trail by Kafka. I tried once in middle school, but stopped, because I found it confusing and unpleasant, which I’ve subsequently learned was kind of the point. Still, I felt sure today in using the word Kafkaesque to describe what was going on, if not from my point of view, then certainly for my client.

This morning I received notice that there was a bail hearing to be run today. I began getting ready by interviewing the client, creating a release plan and making sure sureties and witnesses would arrive at court. This process usually lasts through lunch (today I ate some yogurt covered raisins, a can of V8 and a pecan tart while on the phone) but I was ready to go at the court at 1:30. Usually the Justice of Peace court deals exclusively with bail hearings in the afternoon, but today there was a trial. I sat patiently through the trial, watching with interest as lawyers cross-examined witnesses. Now while it is great for me to get to watch a defense lawyer get an RCMP officer to admit it is hard to get an actual sense of the sobriety of a citizen they don’t know, I feel bad for my client, who had been moved from a small cell in the RCMP detachment to a small cell in the court house, and who didn’t know when she’d get to appear before the court or even what time it was, besides from when I slipped out of the courtroom to tell her I thought it would only be half an hour longer.

Unfortunately, once the trial was finished, the Crown lawyer and myself were informed by the clerk that there were no bail hearings on the docket. As both of us had received disclosure in morning, we were quite surprised. My client was brought into the courtroom, where I had to explain to her that it appeared while the paperwork for her bail hearing had been sent to the Crown and myself, it had not been sent to the Court. While the Crown and I were happy to lend the court our copies of the information, that was not an option because documents proved to the Court have to be sworn to, and neither of our disclosures were signed. While the Crown was very helpfully trying to arrange for the RCMP to send the documents up to the court, the Justice of the Peace decided that as there were no matters on the docket before her (and that it was around four o’clock) she would close court.

If this whole process sounds confusing, it is. I can only imagine how hellish it must be when you are hoping to get out on bail. After the JP left, the court room was a tangle of lawyers, law students, law clerks and an RCMP officer talking about whether there was anything to be done. I tried to explain to my client what was going on, while at the same time hoping to have some matter to discuss with anyone in the courtroom, because explaining to someone that they’ll have to spend the night in prison because of a paperwork mix-up is something you really want to do as little as possible. On top of that, we needed to sort through whether she would be allowed to spend the night in the women’s correctional facility, or whether she would have to go back to the RCMP detachment for the night. The difference between the two is large. The women’s facility, while still a prison, is at least a place designed for people to stay for an extended period of time. The RCMP detachment cells are small concrete affairs, where prisoners are given a microwave Hungary-man dinner at lunch and supper (why breakfast is not provided is an alarming question at best) and mattresses and toilet paper are given out to the prisoners based on some criteria I have yet to figure out (assuming its not arbitrary). Obliviously my client did not want to go back to the RCMP detachment. To be able to go to the women’s facility however, their needs to be a signed remand warrant, which is usually signed when someone looses their bail hearing. As we didn’t have a bail hearing, there was no remand warrant. Eventually someone with the authority to sign a remand warrant was found, but even with that document, it was no guaranteed that my client would get to go to the women’s facility, because they generally don’t do one-day intakes. The RCMP however, said they would ask. I will find out tomorrow morning where my client spent to night when we appear before the court in the morning.

Now with the help of practiced lawyers, both the Crown and defense lawyers from my office, I understood what was going on today, and felt I was able to advocate as best as possible for my client. However, for my client, she told me she didn’t really understand the reasons for what was happening, and I wouldn’t blame her if she can’t tell whether I’m doing a good job or not. I try to be empathic, and explain as simply as I can what’s happening. However, I can’t imagine what it is like to be told she can’t have her hearing because there was a problem with paperwork, the Justice of the Peace went home, and the she might have to spend the night alone in a concrete room because it’s only one night. If not Kafkaesque, I’m sure the words arbitrary and unfeeling apply well to the process.

The irony here is that someone can be denied bail if their release would cast doubt on the administration of justice. I’m certain my client now has her doubts about the administration of justice, but nothing about what happened to her today will work in her favour tomorrow.

 

Also confusing and troubling, the possibly unprecedented return of ice to Frobisher Bay in August. This prevents the sea-lift from unloading its goods, and has temporarily ruined clam season, which is a free source of food (which can be frozen and kept year long)

On Bail and Cultural Questions

2012-Chris-DurrantBy Chris Durrant

There is one topic that my fellow intern and I never fail to get tired of talking about. Weekday evenings or on the weekend, we inevitably will speculate on whether there will be any bail hearings waiting for us when work starts the next day. This speculation is usually tied into an ongoing theory about the weather told to us by one of the administrators of Maliiganik Legal Services: people are far less likely to get in trouble when the weather is nice. The reasoning is that people are more likely to be out of the house and onto the land, meaning people aren’t cooped up and are busy with hunting or fishing. Additionally, they don’t want to risk getting taken into police custody, which would lead to missing out on the nice weather: considering the brevity of Iqaluit’s summer, this makes a lot of sense.

We talk about bail so much, because we really like running the hearings. We certainly feel bad that we hope for bail hearings, because it means at minimum someone has spent a night in an extremely questionable RCMP detachment cell, not mention that some sort of crime might have been committed. However, we enjoy it because for summary or hybrid charges, we are allowed to go before a Justice of the Peace and argue that our clients should be released on bail, while Crown lawyers (some with decades of experience) make arguments that they should be detained.

The process up here doesn’t rely on jurisprudence as much as it does in the south, as far as I understand. There are a few points of the law the lawyers, interns and Justice of the Peace (who are almost without any prior legal training) all are familiar with, and our arguments are generally confined to the fundamental questions which come from those points of law. The likelihood of the accused showing up to court, and the likelihood of the accused committing another crime while out of bail are the two major concerns. The smaller ambit of issues is what makes me feel confident that I can provide my clients with the defense they deserve.

This is important, because not only does the client’s liberty for the two to four months leading up to trial hang in the balance, but a number of statistical analysis have shown that being denied bail makes you significantly more likely to be proven guilty, likely because being remanded to prison limits people’s access to their lawyers, as well as making them look guilty because they will enter the court from the cells and in prison clothing. On top of this, people who have been remanded are more likely to plead out, because they simply want to get their time in prison done as soon as possible.

So, despite my eagerness to get to defend clients in bail court, the high stakes involved make it a serious situation, stressful for the counsel, and even more stressful for the client.

Inuit and the Bail Hearing Experience

I’ve run roughly ten bail hearing so far, and assisted Maliiganik lawyers with others. So far all of my clients have been Inuit. This is interesting for me because one of the things I want to get out of my internship is to get as much understanding as I can about Aboriginal people’s experiences with the Canadian justice system. In one way I am getting a great experience, because I see first hand what their experiences are like. On the other hand, I lack a comparator group to interact with, and see how they approach the bail hearing. Therefore I don’t really ascribe any cultural connection to the way my clients approach things. When I ask a client at the end of discussion about release plan options if they have any questions about the process or anything else, and they say “I want to get out” I just take it as a natural reaction to how unpleasant being in jail is.

This weekend I’ve been fortunate enough to have the time to read some of Rupert Ross’ book Dancing with a Ghost. Ross worked for years as a lawyer in northwestern Ontario. His book is an attempt to examine the Cree and Ojibway worldviews and to show how this effects their interaction with the justice system. Ross is careful to give a disclaimer that he has likely come up short in some of his descriptions, and that his descriptions shouldn’t been taken as applying to all of Canada’s aboriginal populations. I’m certainly conscious of that, but reading nonetheless has made me question some of my assumptions about my client’s behaviour. I wonder now whether the almost obligatory “I want to get out” response to my asking if there are any questions comes from a strong desire to get out, or whether I’m missing something.

One trait that Ross points out in his book is that there exists an ethic of non-interference, which means parents let their children make their own choices. I’m not sure whether this is also practiced by the Inuit, but if it is, I’ve heard Crown attorneys make arguments in court that (very likely unintentionally) exploit this cultural factor. I had a client who was having a bail hearing because he had missed three court dates. To convince the justice of the peace that my client would show up to court, his father was willing to act as a surety (someone who promises the court to make sure the accused attends court and follows his bail conditions).

The Crown raised the point however, that the father had let his adult son miss his previous court appearances while living in his house, why should the court be convinced that he would now make a difference. I responded that he had never made a commitment to do so to the court before, and so this was a fundamentally different situation. The justice of the peace accepted my reasoning, and my client was released. The justice of the peace that day was an Inuit woman however. Would the Crown’s argument been accepted if the JP was a settler that day?

In addition to how it would have affected the outcome of the bail hearing, the fact that the bail system makes demands on friends and families of accused individuals to make demands on them and tell them what to do is certainly at odds with the ethic of non-interference. It must be a sharp reminder to anyone immersed in that cultural ethos that the Canadian legal system is not their own.

Reading Ross’ book certainly means I will be asking more questions to the Inuit lawyers and staff at Maliiganik, and hopefully I will be able to better understand my clients, and even make cultural arguments in their defense. Given how hard it is the pin down what cultural characteristics are, and if ones that existed in the past persist, I understand it is a difficult task however.

Would you commit a crime in this weather?

“You’re going to see the worst of up here. Don’t forget there is a lot more going on.”

2012-Chris-DurrantBy Chris Durrant

It was one of my first nights in Iqaluit, and I was waiting at a bar to meet up with my fellow intern. People up here are friendly (I love how often children say hello to me as I walk by on the street) and so it was not long until I was talking to someone, and telling them what had brought me to Iqaluit. And as I quoted above, my interlocutor hit on one of the downsides of the legal profession: it deals mainly in pathologies. Consequently, for my first blog post, I don’t want to touch on the social problems and legal challenges I’m being exposed to working at Maliiganik Tukisiiniakvik Legal Services. Instead, I’m going to present my top eleven list of awesome things that I’ve done  or have happened since I arrived a month ago.

11. Walking through a Victoria Day snowstorm.

10. Getting invited out by one of my co-workers for one of her favorite weekend activities: Building a fire out on the land, and making tea.

9. Finding what I think is part of a polar bear jaw, and subsequently being informed I would be haunted for taking it off the land.

8. Jogging in the morning through the tundra on ‘The Road to Nowhere’

7. Moving into the official residence of the Commissioner of Nunavut (i.e. the territorial equivalent of the Lieutenant-Governor). (I’m housesitting).

6. Climbing to the top of a small tower to look at a nest of raven chicks, while their parents dive-bombed me.

5. Watching a co-worker cut up an arctic char in the office for the Wednesday potluck, and getting to chew on a piece.

4. Having a beer and a musk-ox burger at the Storehouse pub on Friday with co-workers.

3. Walking through a June the 9th snowstorm.

2. Walking across the frozen bay and hearing the groans, creaks, cracks and bubbling as the tide went out underneath the ice.

And number one: Representing a client in a bail hearing!

Yes, something with law content claims the top spot. While working for the provider of the territories’ legal aid services is putting me in contact with some sad situations, it is also an amazing opportunity in an amazing workplace. I’ll tell you all about it next post.

Warm wishes from the 63rd parallel,

Chris

 

 

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