Judicial Reasoning Across Legal Orders: Lessons from Nunavut.

• Author: Couturier, Don

Introduction I. Nunavut Courts and Judicial Consideration of Inuit Qaujimajatuqangit A. R v Itturiiigaq: The Nunavut Court of justice Applies IQ in Sentencing B. Justice Bychok Tests Ipeelee i Limits on Legal Pluralism II. Theoretical and Normative Debates on Judicial Reasoning Across Legal Orders A. Commensurability: Are Canadian and Indigenous Laws Cognizable to One Another? B. Normatively: Should Courts Work with Indigenous Legal Traditions at All? III. Dealing with Incommensurability: Ippak Adopts a Distinctions-Based Approach IV. Ethical Space and Harmonization as a Relational Analytical Framework Conclusion Introduction

Much scholarship calls on Canadian courts to recognize Indigenous laws in their decisions, but examples of courts doing so regularly and effectively remain elusive. (1) In criminal law, Indigenous perspectives entered the general judicial imagination twenty years ago, with R v Gladue obliging judges to consider an offender's unique systemic or background factors and "aboriginal heritage" (2) when sentencing an Indigenous offender under section 718.2(e) of the Criminal Code. (3) And yet, commentators have long noted the failure of Gladue to mitigate the mass incarceration of Indigenous peoples. (4) In 2012, R v Ipeelee not only clarified that sentencing judges must take into account Canada's history of colonialism and residential schools, but it also pushed further by emphasizing the need for judges to explore alternatives to incarceration due to the failure of the criminal justice system to respond to the needs of Indigenous peoples. (5) This latter feature of Ipeelee forms the foundation of this article. Justice LeBel went on to encourage judges to consider alternatives in light of the "fundamentally different world views" of Indigenous peoples, arguably establishing a role for Indigenous legal orders at the second stage of Gladue! (6) But judicial reluctance persists. In a 2018 article, Marie-Andree Denis-Boileau and Marie-Eve Sylvestre reviewed 635 Gladue decisions and found that incarceration was imposed in 87.7% of those sentencing decisions. (7) Only thirty decisions applied restorative justice principles, (8) despite their explicit endorsement in Gladue. (9) Referencing Indigenous laws also remains exceedingly rare. In part, this reluctance stems from a lack of guidance on whether and how judges ought to approach such a delicate task. Despite sparse precedent, examples have recently emerged, most notably and consistently in Nunavut. These cases offer useful lessons for courts. By evaluating two judgments invoking Inuit maligait (customary law), this article seeks to add clarity to Indigenous-Canadian pluralism in criminal law. Although Ipeelee addresses sentencing specifically, when courts show deference to Indigenous laws, as this article will show, Canadian law and procedure must respond holistically.

Due to its increasing references to Inuit Qaujimajatuqangit (IQ), or Inuit world view, much can be gleaned from the Nunavut Court of Justice, both promising and cautionary, about judicial pluralism. The first case I review is R v Itturiligaq, in which Bychok J relies on IQ principles to find unconstitutional a four-year mandatory minimum sentence. (10) Itturiligaq shows that drawing on Indigenous laws in sentencing may bring judicial outcomes closer in line with community perspectives, but only to a point. In this case, the principles of judicial discretion and restraint allowed greater emphasis on reintegration and the effects of community separation, consistent with Inuit societal values. Yet, deterrence and denunciation could not be ignored, suggesting that Canadian sentencing law, in its current form, precludes the full realization of IQ principles. Several cautionary lessons about interpreting Indigenous laws also emerge from Bychok J s approach. The second case I examine, R v Ippak, offers a more compelling picture of judicial pluralism." An appellate decision of the Nunavut Court of Appeal, Ippak saw Berger JA engage with Inuit maligait in concurring reasons to exclude evidence, quash a conviction, and acquit the accused. Unpacking Berger JA's approach in Ippak provides substantive guidance to judges for identifying and dealing with incommensurabilities between Canadian and Indigenous laws. Justice Berger adopts an ethic more deferential to Inuit maligait in criminal procedure. Both decisions indicate that integrating Indigenous laws, particularly in Canadian Charter of Rights and Freedoms analysis, (12) improves judicial outcomes from an inter-societal perspective, but that its limits must be acknowledged in doing so.

In light of these lessons, this paper offers several suggestions for greater plurality. First, judges, I argue, ought to establish "ethical space" with Indigenous laws--a concept developed by Cree scholar Willie Ermine"--by exploring apparent overlaps and conflicts with Canadian law. Second, a process of harmonization then flows: where laws coexist in mutual non-interference, concurrent application reinforces both legal systems. Where laws prove incommensurable, deference to Indigenous processes should direct. Forging new diversion pathways toward local customs, as the Federal Court has done in recent times to resolve governance disputes according to Indigenous practices, can facilitate this process of deference. To reduce the risk of distorting Indigenous laws, laws deliberately rendered cognizable to non-Indigenous audiences could be put to judges through counsels' submissions and other research materials. This would increase judicial ability to appreciate latent nuances and minimize interpretive missteps. External to this analogical reasoning process, institutional and legislative developments can increase sites of internormativity. (14) For example, community justice committees re-centre Indigenous justice by entrenching local diversion pathways. (15) Legislative reforms to the sentencing objectives that apply to section 718.2(e), namely introducing a focus on restorative justice and judicial restraint in place of deterrence and denunciation, can reduce normative conflicts like we see in Itturiligaq. (16) Such reforms would reduce opportunities for western subjugation of Indigenous legal norms by increasing spaces for dialogue and deference in which both epistemologies meaningfully coexist.

My claim expands on the work of Denis-Boileau and Sylvestre, who argue that the second step of the Gladue-Ipeelee framework "represents an open door to legal pluralism and to the possibility of rethinking sentencing". (17) I develop this idea further by conceptualizing judicial pluralism between Indigenous and Canadian criminal law more broadly. Since adherence to Indigenous legal principles will often transcend discrete legal tests in Canadian law, my analysis implicates sentencing but inevitably captures other areas of criminal law as well. To justify this proposal, I first attempt to address the live normative debates in this area, including the threshold issue of whether courts ought to engage with Indigenous laws and under what circumstances. Part I introduces the Nunavut context and analyzes Itturiligaq in light of Ipeelee, concluding that its reasoning instills both optimism and caution. Part II investigates, with reference to Itturiligaq, questions of whether Indigenous legal orders are commensurate with Canadian law and whether judges ought to engage with them. Part III discusses the limits of such analogical reasoning and uses Ippak to illustrate an ethical framework for internormative dialogue in which Indigenous laws receive greater deference. Part IV synthesizes the lessons drawn from these inquiries and considers institutional and legislative reforms that ideally should accompany greater internormative judicial reasoning.

1. Nunavut Courts and Judicial Consideration of Inuit Qaujimajatuqangit

   I begin with a few necessary clarifications. First, this article does not provide an independent definition of IQ. Joe Karetak, Frank Tester, and Shirley Tagalik describe IQ as a holistic set of values and practices used within Inuit society that refers to how to be in the world. (18) According to Karetak, Tester, and Tagalik, Inuit communities traditionally employed a range of legal rules, processes, and consequences to regulate behaviour deemed undesirable. (19) Beyond these parameters, as a non-Inuit and non-Indigenous person I cannot fully know or explain IQ. I instead rely on texts authored by Inuit knowledge-holders communicating IQ to western audiences. (20) With a growing canon, (21) Inuit legal concepts form a robust legal system with workable principles, including principles comparable to those found in criminal law. Moreover, IQ is neither monolithic nor static. Since Inuit are properly positioned to contest and determine its contours, including the extent to which traditional laws remain relevant, providing an independent definition would interfere with this process of debate and clarification. I reference IQin the spirit of my argument, cautiously, as one seeking to uphold its philosophical and epistemological assumptions without fully grasping them.

   Second, I review Nunavut courts (22) and their relationship to IQ quite deliberately. Distinguishing Indigenous peoples' courts, or specialized Indigenous-led courts applying Indigenous legal principles, (23) I instead discuss Canadian courts applying Canadian law to Indigenous peoples. Though beyond the scope of this paper, my argument desires the eventual transition to Indigenous jurisdiction over criminal matters, with Canadian courts relating to Indigenous peoples' courts as parallel justice systems. Presently, the Nunavut Court of Justice awkwardly balances institutional design intended to better represent IQ with the clear imposition of colonial law foreign to Inuit. (24) The harmful effects of colonization and western justice on Inuit arc well-documented. (25) Amongst Gladue courts...