Inuit Women and the Nunavut Justice System

2. Unified Court Structure

2. Unified Court Structure

2.1 The Courts

2.1.1 Court of Justice

The Bill C-57 amendments did away with the two-tier trial court system, modified the appellate court operations and, implicitly, encouraged an expanded role for justices of the peace.

The Nunavut Court of Justice, as a superior court, is responsible for all criminal, civil and family law matters. It is also the youth court for Nunavut and it is responsible for applications for prerogative writs against decisions of justices of the peace and other subordinate decision-makers.

It is composed of three superior court judges resident in Iqaluit. Two of three judges have been appointed.[11] In addition, twenty-one deputy judges have been appointed to the Nunavut Court for a transitional period. The deputy judges are intended to "help ensure a smooth transition for the justice system of the new territory."[12] They have all of the powers of a superior court judge in the Nunavut Court of Justice.

2.1.2 Appeal Courts

The Nunavut Court of Appeal assumes the responsibilities for Nunavut which were previously held by the NWT Court of Appeal. Unlike its predecessor, the Nunavut Court of Appeal hears summary conviction appeals. A judge of this court will hear the first appeal of a summary conviction, and a panel of three members of the Court of Appeal will hear any further appeal. As in the previous system, the Nunavut Court of Appeal is responsible for all appeals of indictable offences.

With the demise of a lower court, Bill C-57 also did away with prerogative writs for judges. As is noted in a federal government document discussing this change, historically, prerogative writs were available to review the decisions of lower-court personnel.[13] In their place, Bill C-57 set out a statutory review process to review the decisions by the judges in matters such as warrants, subpoenas, preliminary inquiries and orders relating to public access to court proceedings. A single judge of the Court of Appeal will hear the review, and the second level of appeal will be a three-judge panel of the same court.

The Nunavut Court of Appeal is composed of superior court justices from the three territories and a number of judges from other courts across Canada. At present there are no Inuit on this court and none of the judges reside in Nunavut.

2.2 Bill C-57 Amendments: The Strengths

The Nunavut Court of Justice, as a single-level trial court, is expected to improve accessibility and reduce delays and to reduce judges' travel and the number of court circuits.[14]

Bill C-57 amendments supported the recommendations proposed in the Nunavut Implementation Commission (NIC) report called Footprints II. The unified court structure is expected to achieve the intentions noted above because, unlike the previous two-tier system, this circuit court will be able to hear all judicial matters to be addressed. “In a single visit to a community, the judges will be able to deal with both minor and major criminal offences, as well as divorce matters and disputes over money and property.”[15]

2.3 The Remaining Challenges

While the unified court may address the issues associated with the delays caused by the two-tier trial system[16], there are other outstanding challenges of the court structure. These include a number of accessibility issues resulting from linguistic, cultural, gender, racial, economic, and social barriers and a lack of adequate services to support the delivery of justice. These challenges disadvantage all Inuit but, in particular, they have a detrimental impact on Inuit women.

2.3.1 Cultural Sensitivity of the Court Structure

Perhaps the most persistent issue regarding the Nunavut court structure is that it remains rooted in the Euro-Canadian justice system. The results of an analysis of the justice system that takes account of the perspective of all of its diverse constituents can be complex and the solutions far from straightforward. For example, the 1986 reforms to the Jury Act of the NWT allow Inuit who speak only Inuktitut and reside close to the community (i.e. in out-post camps) to participate in jury trials. These changes have been commended for their cultural appropriateness.[17] In fact in the Report of the Aboriginal Justice Inquiry of Manitoba, Justices A.C. Hamilton and C.M. Sinclair noted that they were "impressed by the Northwest Territories' method of limiting the area from which a jury is drawn."[18] The Justices noted a number of advantages to this approach with the most important being that it involves the community in the trial of one of its members:

This solution is attractive to us, since it seeks to return to the community involved in a direct sense of involvement in, and control and understanding of, the justice system. …In aboriginal areas, those people would be able to understand the nuances that might apply to the relationship between victim and accused, or local factors that might escape the attention of non-Aboriginal people.[19]

This reform speaks directly to recent legal arguments made elsewhere in Canada that an Aboriginal offender's rights are denied where Aboriginal people are not available or selected for jury duty. [20]

At the same time, this reform and the legal arguments obscure the fact that within Inuit culture it is not acceptable to “judge” one another or to “pass judgment”.[21] This cultural value is in direct opposition to the role of the jury. Furthermore, not only does the jury process require Inuit to “judge” another individual, as a result of the judgement the jurors are indirectly responsible for the sentence meted out for the accused. This conflict between Inuit values and the judicial process, when coupled with the reality that Inuit communities are small, remote and closely knit, have particularly negative consequences in crimes involving violence against women.

In a number of communities, where accused have elected to be tried by jury for sexual assault crimes, the jury appears unwilling to convict. This has become a particular problem in the community of Pond Inlet. Between 1983 and 1995, not one sexual assault conviction occurred in the many jury trials that took place in Pond Inlet. [22] Many have speculated about the reasons for the lack of convictions. The two most common reasons noted by Inuit are the unwillingness of Inuit to “judge” one another, and the unwillingness of jurors to be responsible for having an individual removed from the community to serve a prison term.[23]

While no formal inquiries or studies into the jury trial process have been undertaken, the reasons cited above are worth noting and considering.

This failure of juries to convict has been the focus of serious discussions at many of the annual meetings of Pauktuutit. For example, at its 1994 annual meeting, delegates passed a resolution calling upon the justice system not to locate jury trials in the same community as the alleged sexual assault took place.[24] This resolution was a response to the failure of juries to convict in Pond Inlet and other communities, such as Rankin Inlet and Pangnirtung.

The use of juries in sexual assault trials has contributed to a shared view among many Inuit women that the justice system is not effective in dealing with and preventing violations to their personal security. At the national consultation on justice and Aboriginal women, Inuit women participants noted that "[j]uries do not work in Northern communities," and reinforced the Pauktuutit resolution, in their statement that there be no "[n]o jury trials in communities where the crime is committed (it should be noted that this recommendation was made to sexual assault cases involving women and children)."[25]

Those committed to reforming the Nunavut justice system appear committed to recognizing incarceration has a role as the appropriate disposition for some “serious” crimes.[26] However, what constitutes a “serious” crime and who defines it is cause for concern. There is a palpable tension between the commitment to having offenders dealt with in their communities and the need to condemn violence against women. As such, it is unlikely the Nunavut administration of justice, in the foreseeable future, will be able to dispel the impression Inuit women have that a judicial response to violence against them is weighted in favour of an accused.

2.3.2 Cultural Sensitivity of the Judiciary

All of the judges serving on the two courts in Nunavut are non-Inuit and most live outside of Nunavut. The life experiences of the majority of deputy judges of the Court of Justice and the appellate court judges are far removed from those of the people living in the communities of Nunavut.[27] Accordingly, their familiarity with Inuit and with Inuit culture and values is based primarily on what is learned through reading, cultural orientation workshops, and their interactions through court work and visits to the communities. Those reforming the Nunavut court structure were not oblivious to these problems. The expanded role of the JPs and use of justice committees in the communities are attempts to bridge these linguistic and cultural gaps.[28]

In the meantime, Inuit women remain the unfortunate victims of a judiciary that struggles with the biases that plague an Euro-Canadian justice system that is male dominated. Similar to all other courts in Canada, the courts in Nunavut will no doubt continue to have their share of gender bias[29] As the next few paragraphs attest, previous courts serving Inuit living in Nunavut have demonstrated their capacity for: (1) sexual stereotyping about the proper roles and true nature of women and men; (2) cultural misinterpretation and misunderstanding about the roles between the sexes and the relative worth of women and men; (3) acceptance of myths and misconceptions about social and economic realities encountered by both sexes; and (4) behaviours that impose greater burdens on Inuit women than men.

Inuit women who have come into contact with the justice system because they have suffered violence have spoken about their feeling of having no control. They have also noted that they have felt afraid, humiliated and blamed for the violence and that they were not taken seriously. [30] In proceedings before the court, the treatment of Inuit women is, in part, attributable to an inadequate understanding on the part of justice personnel of the dynamics of abuse as well as misconceptions about Inuit culture. This attitude has been displayed most flagrantly in judgments from the bench which have created a separate category where Inuit women are unconscious due to sleep or intoxication.[31] In these cases, judges have held that women who were intoxicated when assaulted did not suffer as serious an assault as they would have had they been sober.[32]

There have been instances where the court has displayed an incorrect understanding that sexual assault against women and sexual abuse of children are acceptable in Inuit society.[33] For example, a case in which the sentence was mitigated because, as the judge pronounced, there is no prima facie age restriction on sexual intercourse in Inuit culture, that menstruation signals the age at which sexual relations can commence. This case is often cited by Inuit women as an example of the court accepting a myth about Inuit culture and using it to mitigate sentence.[34]

In other cases, incorrect cultural assumptions on the part of judges have resulted in reluctance to sentence an Inuk offender convicted of a sexual assault to a federal penitentiary. The reasoning turns on the judges’ perceptions of culture. These include cases in which short sentences were given to avoid sending offenders to federal institutions and cases in which lenient sentences were given to someone convicted of a sexual assault who was seen by the judge to come from a good family, who is an accomplished hunter, and not a violent person. Other factors that have been used by the court to mitigate sentences include having traditional skills; being a family man with no record; not being well educated; being under the influence of alcohol; and being a ‘respected’ community member.[35]

More fundamentally, the cultural insensitivity displayed by the judiciary in past cases demonstrated the fallibility of the judicial selection process. In her report, Katherine Peterson reported that there was an inadequate screening of judicial candidates of cultural attitudes and stereotypes with respect to women.[36] The same selection process remains for Nunavut, therefore so do the problems identified by Peterson. Other problems she noted were the lack of lay representation on the committee that makes judicial appointments to the court; the inability to have extra-judicial conduct reviewable as a ground of discipline; and the slow and inflexible judicial discipline process.

Inuit women have spoken out against the judiciary and their sentences. Primarily, they have criticized judges for their lenient sentencing of sexual assault and domestic assault cases. In particular, the women have decried these sentences because, in their view, they demonstrate that violence against Inuit women is not taken seriously. In the existing justice system, the longer the period of incarceration the more serious the crime. In commenting on the appropriateness of sentences in these cases, however, Inuit women face the risk of being isolated within their own families and communities when they advocate for longer sentences. [37]

Critiques of sentencing are made within the context of the existing punitive system of justice if meaningful rehabilitation is not seriously considered or provided simply because of the significant absence of resources and support services for both perpetrators and survivors. Accordingly, Inuit women have felt they have no other option than to call for longer sentences to ensure violence against women is taken seriously. This position places them on a “side” whereby they are seen by other community members as advocating or promoting the existing system (including corrections)—a system that systematically discriminates on the basis of race and culture and does little to address the underlying factors of criminal activity experienced by the accused.


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