Circuit Court in Kinngait, Nunavut

Sarah NixonBy Sarah Nixon

The views expressed in this blog are my own.

Kinngait is a community of about 1400 people just off the coast of Baffin Island in Nunavut, Canada. The region has been inhabited by Inuit for thousands of years. Its Inuktitut name means “where the mountains are” (or the hills, depending who you ask). Today, it’s known by many for the beautiful serpentine and soapstone carvings that artists have been making there for many generations.

A souvenir – Dancing Bear carving by Davidee Shaa

During my internship with Nunavut Legal Aid, I was lucky to be given the opportunity to travel on circuit court to Kinngait. Circuit court is a process used to administer law in Nunavut to communities that do not have their own courthouses, resident lawyers, judges, and other courtworkers. To facilitate the application of Canadian law, then, a ‘court party’ comprised of defence lawyers, Crown prosecutors, courtworkers, a judge, a translator, a transcriptionist and a sheriff travel together to these communities periodically throughout the year to hold court. The frequency of ‘circuits’ depends on the particular community’s size and rate of criminalization. In the case of Kinngait, court is held for one week about five times per year.

However, due to COVID-19 pandemic restrictions, the circuit I attended in August 2021 was the first in-person circuit held in Kinngait in nearly five months. This is the first reason why this particular circuit was one of the busiest that had ever been held. The second reason is that Kinngait has been, for some time now, the most heavily criminalized community in Nunavut based on the proportion of its residents subject to criminal charges. The underlying causes for this reality are not clear to anyone, so far as I could tell during my time there. However, longstanding animosity between many of the local people and the Royal Canadian Mounted Police members stationed in the community may play a role in the rate of criminal charges being laid.

During circuit, the court party uses local buildings built for other purposes for client meetings and the court process itself. In Kinngait, we used the local Sewing Centre – a space for primarily women to gather and sew together – for client meetings on the weekend prior to the upcoming week of court. Using this space for our purposes meant that many client meetings were conducted in the furnace room to gain the necessary privacy required to discuss clients’ legal matters. Needless to say, sitting in on these meetings was somewhat of a surreal experience, with a noisy, hot furnace churning away between my supervising lawyer and her clients as they discussed their matters.

From Monday to Friday, we set up in the local community centre to hold court. The centre had recently been painted by a group of young people from the community with the help of an artist from the south. The setting was inherently less formal than courthouses I had visited in Montreal, Ottawa and Iqaluit. At the same time, the consequences of the court process were just as severe, with many witnesses, accused, and community members being retraumatized by the criminal process, and many individuals being sent into custody or receiving conditional sentence orders (the rough equivalent of house arrest).

Exterior of the Community Centre

 

The ceiling of the ‘courtroom’

Another notable difference about court in Kinngait was that two Elders from the community sat to the right of the judge throughout the week. The Elders, both women, were asked to speak to individuals at the sentencing stage of proceedings, after there had been a finding of guilt and before the judge decided on the appropriate sentence. Publicly before whomever was in the ‘courtroom’, the Elders took turns standing to speak in Inuktitut to the person who was about to be sentenced.

Both women spoke with a great deal of emotion and force, and their words often brought the person they were addressing to tears. With live translation, I was able to understand that the messages they conveyed were distinctly different from the sentencing regime the judge was bound to follow. In particular, I noticed that the Elders focused on the root causes of the wrongdoing the person had committed, often connecting the incident before the court to some sort of pain that person had experienced in the past that was causing them to behave wrongly.

The Elders repeatedly referred to the risks and drawbacks of drinking alcohol as well, and counselled the listener to try to replace this coping mechanism with time spent on the land. They repeatedly emphasized the calming and uplifting effects this could have on one’s mind and spirit. The Elders also, generally, stressed a forward-looking perspective on the listener’s life, counselling them to obey any conditions the court ordered, to focus on being a good example for their children or other family and community members, and to pursue their own self-betterment and healing.

In contrast, the judge sought to design proportionate punishments for the crime committed and the circumstances of the person before the court. The contrast and integration of these two methods of responding to wrongdoing was fascinating to say the least, and seemed to expand the boundaries of the malleable criminal process. It certainly left me wondering which method was more impactful upon those before the court, and about what further integration might look like – for instance, if Elders were consulted at the stage of findings of guilt or innocence, or if they were given full ownership over the crafting of sentences. This is one of many things that my week on circuit in Kinngait will have me wondering about for a long time to come.

Battered Woman Syndrome and Plea Bargains: Gaps in Defending Vulnerable Women

Kassandra NeranjanCo-Authored by Noa Mendelsohn Aviv (Canadian Civil Liberties Association Equality Director) and Kassandra Neranjan; Originally Published: https://ccla.org/blog-ccla-2/

Helen Naslund, a 56 year old grandmother, was sentenced to 18 years in jail for manslaughter after killing her abusive husband while he was sleeping, and then hiding his body. This exceedingly long sentence is 16 years longer than the average sentence imposed for manslaughter by a woman of a male partner,  according to a 2002 report. Helen’s sentence was decided within a criminal justice system that imposes  mandatory sentences (and deters self-defence claims). And it seems to take minimal account of the trauma, threats, and very real dangers faced by women who live with intimate partner violence (also known as “battered women’s syndrome”).

These are the facts of Helen’s case, accepted by both her lawyer and the government lawyer who prosecuted her: Helen’s husband, Miles, had for over 27 years, been physically violent with her, and made comments to her that made her fear for her safety while he was heavily intoxicated and wielding firearms. Helen was depressed for years and made a number of suicide attempts, but did not feel she could leave the marriage due to the “history of abuse, concern for her children, depression, and learned helplessness.” On the weekend before she shot him, Miles became angry with Helen over a broken tractor, ordered her around while “handling his firearm,” and hurled wrenches at her. On the day she shot him, he threatened to make her “pay dearly,” and his threatening behaviour increased throughout that day. That night, Helen killed Miles while he slept. In the morning, she hid his body in a pond where it remained for six years while she misled police as to his whereabouts.

These too are facts: in Canada, on average every 6 days, a woman is killed by her intimate partner. Women with disabilities, Indigenous women, and queer women are subjected to increased rates of intimate partner violence.

Courts have for decades recognized battered women’s syndrome (BWS) as a subset of post-traumatic stress disorder. Some courts have explained women’s experience of the cycle of violence in terms of their fear, shame, terror and victimization that led them to pull the trigger. Courts have also recognized non-stereotypical, rational explanations as to why a woman might stay in an abusive relationship – to protect her children from abuse, limited social and financial support, and the lack of a guarantee that the violence would end if she left – and how her use of deadly force against her abuser, even outside the heat of a conflict, may have been reasonable to preserve her own life.

BWS has been used to support a claim of self-defense for women who have killed their abusers in “quiet” moments, such as when the abusive spouse was sleeping or not actively going after her. Yet to claim this defense in court, one has to go to trial and risk conviction. If convicted, currently, there is a mandatory penalty: life in jail without parole for 25 or 10 years for first or second degree murder, respectively.

Helen Naslund was charged with first degree murder. Faced with this terrifying risk, she pled guilty to manslaughter. Other women who have done the same then raised BWS as a factor that should lessen their sentence. However in Helen’s case, the plea bargain required her to also agree to the 18 year sentence. The prosecutor sought to justify this harsh penalty by delineating certain “aggravating factors” – factors that bear a painful resemblance to Helen’s own experience over 27 years of  abuse. First, he argued, “…this offence involved an intimate partner and position of trust. Second, it involved the use of a firearm. The reasonable foreseeability of harm with a firearm involved is obviously greater. Number three, this occurred in the victim’s own home, a place where he’s entitled to feel safe.” The irony – and injustice – of these arguments was apparently lost on the prosecution.

The prosecutor did also set out other “aggravating factors” with respect to how Helen had disposed of Miles’ body, and her efforts to deceive police about what she had done, however none of these justified the lengthy sentence imposed.

BWS is a legally recognized doctrine that should be available to women who, after years of abuse, are highly attuned to escalating violence and threats, and may in a critical moment act to preserve their own life, even if outside a heated exchange. Statistics about the number of women killed by their intimate partners crystallize the very real threat faced by women like Helen.

The prosecutor had the authority all along to lower the charges against Helen to manslaughter, or to strike a different, more humane bargain that recognized the dangers she had faced.

And the sentencing judge had the power, in extraordinary circumstances like these, to override the plea bargain’s terms and reduce the sentence. Instead, he offered her a word of sympathy stating: “Although I have empathy for … you, this requires a stern sentence…Deterrence is the main principle of sentencing that has to be looked at, deterrence and denunciation …”. Then he sentenced her to 18 years in prison.

Battered women’s syndrome allows us to question the goals of the criminal justice system when faced with the violence women are subjected to in society. Ultimately, courts and government should be spending more time on deterring this violence; on building a society in which women are deemed equal and can exist without threats to their security.

Helen’s case is one damning example of the dangers of mandatory minimum sentences.

Perhaps what needs to be denounced is not solely Helen’s act, but the systems of policing, social security, and gender norms that allowed her subjugation to violence for 27 years going unquestioned.

Perhaps what needs to be denounced is a justice system that could allow for a plea bargain that imprisons a survivor of abuse to 18 years.

Perhaps what needs to be denounced is a justice system that appears inadequate to represent the complex lived experiences of people before the law.

Cyber-Violence Against Women & The Perpetrator’s Right to be Forgotten?

Maia Stevenson

Last February, I published a post on the Canadian Civil Liberties Association (CCLA)’s student-run blog, “Rights Watch”. The post covered and translated an original story from Radio-Canada about a young man who had pled guilty to the criminal offence of sharing an intimate image of others without their consent. The man received an absolute discharge, meaning that practically, the only legal consequence he suffered was a criminal record for one year.

Many of us, if not all, have been confronted with the variety of violence experienced by women and girls on the Internet. In my second week interning at the CCLA I had the opportunity to attend RightsCon, an international conference on human rights in the digital age. As I learned in more detail at a panel called “Global Perspectives on Technology Facilitated Violence Against Women and Girls”, cyber- or online-violence against women and girls is increasing across all continents, seemingly regardless of culture or development-status and it includes everything from persistent text messages, to threats from strangers on social media platforms, to the non-consensual distribution of intimate images and videos.

Intimate photo- or video-communication over the Internet is a recent but explosive trend, especially among young adults and teenagers, a population that is arguably the least equipped to deal with the psychological and social trauma associated with so-called “revenge porn” or blackmail that weaponizes privately shared intimate images. Stories like those of Canadians Amanda Todd and Rehtaeh Parsons abound: women and girls humiliated into depression by the non-consensual sharing or their intimate images, the “revenge porn” or “cyberbullying” of angry exes, casual flings, or online predators.[1]

While law-enforcement struggle to keep up with the “wild west” that is anonymous crime on the Internet, images involving girls and young women under 18-years of age are at least legally considered child pornography and hence illegal to create, possess, or distribute. However, until relatively recently it did not constitute a crime to non-consensually share an intimate image of a woman over 18 years of age.

A 2013 survey of adults (18-54) found that 1 in 10 ex-partners have threatened to expose intimate photos of their ex online, with 60% of the threats being carried out. Provincial and federal governments have responded to this gap in Canadian criminal and civil law and to increasing awareness of cyber-violence against women and girls with attempts to shine a light on this dark part of the Internet.

In 2015, Canada enacted its contested Bill C-13, the Protecting Canadians From Online Crime Act, which, among other things, criminalized the non-consensual sharing of intimate images. While to many it makes sense to criminalize harmful and invasive online behavior, others question whether criminalization will achieve the desired long-term cultural effects. How do we transform the “widely-held (if often implicit) attitude that people, particularly young women, who engage in sexual conduct have somehow degraded or diminished themselves and are therefore suitable subjects for mockery or humiliation”?[2]

In any case, criminalizing a behavior certainly sends a message. Under the criminal offence created in 2015, s.162.1 of the Criminal Code, every person who knowingly or recklessly publishes, distributes, transmits, sells, or makes available an intimate image of a person without their consent, is guilty of an indictable offence and liable to imprisonment for up to five years.

The young man who was the focus of my February blog post had been found guilty of this offence, but he was not convicted. What followed publishing my blog post was also an interesting learning experience: I was contacted online by someone purporting to be a “family friend” of the accused and I was asked by this “friend” to remove the blog post. A quick Twitter search indicated that this person was a “designer of data privacy technologies”, a “data destruction expert”, and an “oyster-shucking champ”. I learned that this “friend” had also contacted a student reporter/opinion writer at the McGill Daily and asked her to take an article about the young man’s offences offline. Furthermore, since the Radio-Canada article, search engine results of this young man’s name mysteriously generate numerous “filler” websites that associate his name with vague and abstract mentions of community work, human rights, family, and peanut butter products.

The “right to be forgotten” or “data privacy”, were not rights I instinctually wanted to associate with the people who surreptitiously filmed their sexual encounters and shared the footage with their friends. I felt strongly that it was the subjects, not perpetrators, of this invasion of privacy who were the ones in need of “data destruction” services. In an ironic ending to my story, it was the man that had invaded the privacy of the young women he had filmed who was feeling the consequences of a lack of control over his online reputation.

Furthermore, while I believed in the accused or the offender’s right to move on from the stigma of crime, it seemed unfair that those who could afford to hire private “data destruction experts” would be able to move on with their lives more easily than those who could not. The Internet is a continually growing player in our professional and social reputations; being able to hide a past mistake from the online world is a huge benefit. But of course, this certainly isn’t the only privilege experienced by the accused with means.

I suppose this was all a more personal way for me to learn about what I knew theoretically to be true: that the story of “digital rights” and “online privacy” is not and will not be dominated solely by cyber-social-justice-warriors and the kinds of privacy advocates that want Facebook to stop listening to your conversations. And this probably isn’t a bad thing. Just like it isn’t a bad thing that police must properly obtain warrants to invade the privacy of child-predators and drug-traffickers by searching their Internet activity or text conversations.  Privacy will and should continue to feature on both sides of every debate, on the side of the child-predator, the consumer, the political dissenter, and those who themselves invade the privacy of others.

 

 

[1] Of course, as a study from Dalhousie University discusses, “cyberbullying”, including “revenge porn”, is rarely the only factor involved in suicides like Amanda Todd’s. However, this doesn’t deter from the reality that in-person bullying, mood disorders, and depression can be instigated and/or worsened by online bullying.

[2] Michael Plaxton, “Women deserve more than a revenge porn law”, The Globe and Mail (22 November 2013), online: <https://www.theglobeandmail.com/opinion/canadian-women-deserve-more-than-a-revenge-porn-law/article15560839/>.

First weeks at OEF: the ambiguity and appeal of terrorism

By: Léa Carresse

The film “Carlos”, making terrorism look good since 2010 (or 1970, depending on how you see it)

Researching 1968 onward in West Germany for my undergraduate degree brought to my attention the ambiguity of the terms “terrorism”, “terrorist” and “terrorist activity”. I never really thought about it before, my knowledge restricted to 9/11. In the 2018 Western world, it almost goes without saying what, unfortunately, the stereotypical terrorist profile looks like: Muslim, brown, probably of North African or Middle Eastern descent, predominantly young and male, often single, former petty criminal, targeting civilians. Cause: “religious extremism”.

Forty years ago, in West Germany, your terrorist profile was the following: Christian, white, “urdeutsch” (the Nazi term for “ethnically pure” German), predominantly young and female, often married with middle-class or wealthy backgrounds, well-educated, attempting to exclusively target West German State officials, businessmen and the US military. Cause: “radical left-wing ideology”. The plasticity of the terrorist profile, of terrorist activity and of the terms used, is brought further to light in my work at OEF.

As an intern in the Stable Seas project, my work so far has concentrated on maritime security in sub-Saharan Africa and, because the project is expanding, to North Africa, in the countries of Mauritania, Algeria, Tunisia, Morocco and Libya, among others. The areas of maritime security that I focussed on include researching those of illicit trade (including arms, drugs and wildlife trafficking, but also that of cigarettes, oil, cosmetics, foodstuffs and more…), piracy and armed robbery and Yemeni terrorism as embodied by the Houthi rebels, AQAP and ISIS.

Through my time at OEF thus far, I discovered that concepts of criminality, instability, terrorism and general conflict are even messier than I previously imagined. There is no international or common legal definition of terrorism, though some domestic criminal codes, such as the 1995 Australian Criminal Code, and international treaties or organisations will attempt to include examples of terrorist activities as an effort to define terrorism. These include hostage-taking and hijacking. But how then would that be different from piracy and armed robbery at sea, for example, where those very same methods are employed? An answer would be that a terrorist’s goal is primarily political, while criminal activity at sea, particularly in underdeveloped regions with limited or no economic opportunity, is centered on financial gain. That answer doesn’t take us very far, however. How do you define political? How far can “religious extremism”  be termed as “political”? And what about the existence of a crime-terror nexus, where terrorist groups will financially invest in and benefit from certain organised crime groups? An example is the trafficking of Libyan antiquities by ISIS to the Italian mafia, or the Italian mafia adopting “terror” tactics to protest against the anti-mafia drive in Italy of the 1990s.[1] These are all questions that I am faced with at OEF.

As a final observation, a “fun” link that I discovered here between the contemporary terrorist group ISIS and that of the West German terrorists, RAF, is the “marketing strategy” that served both groups well. Ironically, though both anti-capitalist, the groups still engage(d) with branding to attract recruits and attention to their cause.

The film The Baader-Meinhof Complex (2008) on the RAF illustrates this perfectly: Sexually liberated women with heavily made-up eyes and mini-skirts brandishing guns, “exotic” training camps in Yemen, their youthful faces splashed on the front news pages of tabloids, adopting particular styles of talking and writing to facilitate in-group dynamics. Their aesthetic proved so successful that it was appropriated by the fashion industry, which rebranded it as “Prada-Meinhof”, a play on the group’s other name, “Baader-Meinhof”.

Johanna Wokalek as Gudrun Ensslin in The Baader Meinhof Complex (2008), formerly one of Germany’s most feared terrorists.

Similarly, ISIS develop their own brand:  Their “poster girls”, “tastefully accessorized” (as an ISIS blog notes) with AK47s and their fellow gangster Jihadis in Nikes against graying American counterterrorist bureaucrats in suits; Twitter hashtags such as #accomplishmentsofISIS; the mass dissemination of “atrocity porn” with rehearsed beheadings shot in a Hollywoodesque style; filmed “testimonials” of fighters in paradisiac settings on how they found their true selves in ISIS; and even video games.[2] Those are all part of the evolving dimension of terrorism infiltrating the cyberspace, the progress of which we have yet to fully track and understand.

ISIS “poster girls” today. Sources: ISIS Twitter and US Homeland Security website.

[1] Tamara Makarenko and Michael Mesquita, “Categorising the crime-terror nexus in the European Union” (2014) in Global Crime.

[2] Simon Cottee, “The Challenge of Jihadi Cool” (2015) in The Atlantic.

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