Nunavut man convicted of murder says judge violated charter, language rights

An Inuk man says his charter and language rights were violated by a Nunavut judge during his 2016 homicide trial, according to documents filed with the Nunavut Court of Appeal. 

Peter Kingwatsiak is appealing both the verdict and sentence of Justice Bonnie Tulloch, who convicted him of first-degree murder and imposed a life sentence without parole for 25 years. He says the judge's findings showed cultural and linguistic ignorance, which biased her findings in the trial.

Issues around interpreting different dialects of Inuktitut plagued the trial and the way Tulloch handled those issues was fundamentally unfair, Kingwatsiak told CBC News from the Beaver Creek Institution, a federal prison in Ontario. 

"The interpretation they had at my trial didn't really reflect the way I express myself, the way I explain myself right," said Kingwatsiak, appearing via video feed from a board room at the prison. 

"English isn't my first language, so why can't I try to find some words for myself about what I want to say?" he asked. 

Instead of being on trial for the homicide of his step-brother, Kingwatsiak, who was 18 years old when he admitted to the killing, says he was on trial for his language and his religion. 

"They were definitely mocking at me, especially because I was on trial speaking with my own language," Kingwatsiak said. 

Judge used 'unfounded stereotypes': Linguistic scholars

Under the heading of "Legal Rights" in Canada's Charter of Rights and Freedoms, Canadians have the right to an interpreter in court proceedings if they need one. 

Nunavummiut have that same right laid out in the Official Languages Act, which says witnesses at the Nunavut Court of Justice are guaranteed the right to an interpreter.

But the quality of interpretation between English and Inuktitut during Kingwatsiak's trial were "sufficiently flawed," said Kingwatsiak's lawyer Alison Crowe in court documents, denying Kingwatsiak of this right.

Crowe filed a report by linguistic scholars that analyzed the trial transcript for misunderstandings because of the difference in Inuktitut dialects between Kingwatsiak and the court interpreters. 

The scholars concluded "that there were serious inaccuracies in the interpretation … [Tulloch]  responded to the problem in ways that aggravated rather than alleviated the issues … [and she] employed faulty reasoning and unfounded stereotypes in finding against [Kingwatsiak's] credibility," Crowe summarized in court documents. 

The inaccuracies in dialect and difficulties in interpretation were acknowledged by the interpreters themselves and Inuit in the courtroom, Crowe argued.

Those inaccuracies revolved around crucial factors like Kingwatsiak's motive, whether he planned the killing and whether he regretted it, Crowe wrote. 

"Questions asked and answers given were on occasion so inaccurately interpreted that the versions bore almost no relationship to each other," said Crowe. 

Judge says Kingwatsiak used interpreters to his advantage

Kingwatsiak, who speaks halting English, interrupted the interpreters throughout his testimony with corrections, requests for clarification and questions. He often paused before answering questions from prosecutor Barry McLaren. 

Tulloch found Kingwatsiak to be a non-credible witness in large part because she said he manipulated the interpretation service, was evasive and took long pauses before answering questions. 

"He deliberately slowed down the proceedings so that he could carefully consider what his answer to the question should be, rather than answering in a forthright and non-evasive manner," Tulloch said in her decision. 

The linguistic analysts said Tulloch's inference about delayed responses is, "at the very least, culturally insensitive." 

"Silence does not necessarily mean an attempt to be less than forthright," the report said. 

Crown prosecutor Philippe Plourde filed a motion to cross-examine the linguistic specialists, calling their authority on Inuktitut into question. 

Neither "has been qualified as an expert in any court … has any legal training. Neither author appears to have conducted original research in Nunavut," Plourde wrote, noting the main contributing expert lives in Paris, France. 

Kingwatsiak also mocked for Islamic faith: Court document

Crowe says McLaren also mocked Kingwatsiak's religion. 

During cross-examination in 2016, McLaren asked Kingwatsiak, who had converted to Islam after his arrest, about his feelings for a girl at the time of the killing.

"Does your new religion make you look back and say, 'how could a young man put all that love in a girl when really, he should love Allah?'" asked McLaren, who appeared frustrated at points during cross-examination, asking ironic and rhetorical questions..

Crowe said Tulloch "allowed the Crown to make light of [Kingwatsiak's] Islam faith and did nothing to curb the Crown's inappropriate expressions of frustration during his cross-examination." 

Aluki Kotierk, the incumbent in the ongoing presidential race for Nunavut Tunngavik Inc. — an Inuit organization responsible for overseeing the implementation of the Nunavut Land Claims Agreement — reviewed Kingwatsiak's court documents. 

She told CBC News that the non-Inuktitut speakers in the courtroom — the lawyers and judges — seemed to think Kingwatsiak used his preference for Inuktitut as a weapon rather than a right.  

Inuktitut not recognized by Canada

Those language rights are often not met for Inuit in Nunavut, many of whom are forced to compensate by unofficially interpreting themselves, Kotierk said. 

The federal government isn't helping that, she added. 

"Nunavut as a territory is unique to other jurisdictions — the public majority's first language is a language that is not recognized nationally by Canada," said Kotierk. 

When asked if the cultural and language barriers in the courtroom between an accused, lawyers and judges results in miscarriages of justice Kotierk said, "definitely." 

"It's not an Inuit justice system, so definitely there's been misgivings in the system and it doesn't incorporate Inuit ways of understanding and being," she said. 

There are fundamental aspects of Canada's criminal justice system that are at odds with Inuit worldviews, she said. 

Canada's criminal justice system at odds with Inuit values

For example, Canada's courts pursue a high standard of truth through concepts like "the whole truth and nothing but the truth" and "beyond a reasonable doubt." But once that truth is obtained, forgiveness and healing, which is very important to Inuit, often don't happen, Kotierk said.

"If there's something that we've done wrong, we have to address it. And then there's a process of forgiveness, of accepting that this has occurred," said Kotierk. 

Instead, Kotierk said she hears regularly from communities that the justice system takes so long it re-traumatizes people. 

"It drags it out so long that people are unable to kind of heal from it and move forward. So it sometimes makes people question, is this really there to help us?" she said. 

Kingwatsiak's appeal was scheduled to be heard in February 2021. But the appeal has been suspended until the court rules on the Crown's motion to cross-examine the linguistic experts. 

Kingwatsiak's appeal file will be addressed by the court again in March 2021.