Access to Justice for Deaf Persons in Nunavut: Focus on Signed Languages

1. BACKGROUND

Section 15(1) of the Charter (Equality before and under the law and equal protection and benefit of law) states:

Every individual is equal before and under the law and has the right to equal protection and benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability (emphasis added).

Section 14 (interpreter) states specifically:

a party or witness in any proceedings who does not understand or speak the language in which the proceedings are being conducted or who is deaf has the right to the assistance of an interpreter (emphasis added).

Sections 14 and 15(1) taken together guarantee the right of full access to the Canadian justice system for all deaf persons through the provision of appropriate sign language interpretation.

A recent decision of the Supreme Court (Eldridge v. British Columbia, 1997) adds further weight to the necessity of providing sign language interpretation to ensure full access to all public services. In Eldridge the Supreme court handed down a unanimous decision which mandates sign language interpretation as a free service under the Canada Health Act (Medicare). This decision has been interpreted to apply to all publicly funded services so that deaf Canadians can now expect increased access to a wide range of services (MacDougall, 1999). Taken together, access to health and to justice comprise important aspects of full citizenship for all deaf persons.

In most regions of Canada sign language interpretation using American Sign Language, ASL (for the English speaking community), and Langue des signes québécoise, LSQ (for the French speaking community), is routinely provided by the courts to deaf persons who require it. However the situation is more complex in the north. In a recent court case, R. v. Suwarak; 1999, in Baker Lake, Nunavut Territory (NT), the issue of providing sign language interpretation consistent with sections 14 and 15(1) of the Charter was raised. In this case, the deaf Inuk who appeared before the court did not know ASL nor LSQ. In addition, he had limited ability to speak, read or write. Consequently, no professional interpreter could be provided. However, the deaf man did appear to have knowledge of a signing system which he apparently used with facility to communicate with people in his community.

The issue of access to a trial in cases where a person has no recognized language but who is otherwise mentally competent, has already been confronted in Nova Scotia in R. v. Roy (MacDougall, 1994; MacDougall and Paterson, 1994). In that case, which also involved a deaf man who did not have a recognized language, no satisfactory resolution of the situation could be reached and the charges were stayed by the trial court judge. The Criminal Code apparently makes no provision for a person who has no recognized language, but who is otherwise mentally competent.

The Nunavut case, i.e. Suwarak, while similar in many respects to the Roy case in terms of the sign language interpretation issues for the justice system, does involve an important difference due the cultural and linguistic setting. In Roy, there was limited linguistic and cultural support for whatever sign language system ( most likely "home sign") Roy may have developed, but in the Nunavut case there exists the possibility that the sign language system used by Suwarak may be a more developed indigenous signing system supported by the cultural-linguistic environment. In fact, in the Nunavut case, the court did proceed using a friend of the accused who knew the signing system of the accused. While this apparently allowed the court to proceed in the limited context of a guilty plea, the overall situation, especially in terms of any future proceedings involving this or any other deaf person in Nunavut, remains unclear.

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