Inuit Women and the Nunavut Justice System
In the absence of legislative changes, the Nunavut JP program is operating under the same terms as the previous GNWT program in the initial stages. Accordingly, the JPs jurisdiction is set out in the Criminal Code, however the extent to which JPs exercise their full jurisdiction depends on other factors. Following their appointments, the Chief Justice of the Court of Justice is responsible for directing JPs and assigning duties.
Depending on the level and the assigned duties, JPs are authorized to conduct trials of any by-law offence, territorial offence, or federal summary offence (but not trials involving a young offender). They can impose jail sentences of up to 18 months. They are also authorized to conduct judicial interim release hearings for both adults and young offenders, issue or cancel search warrants under all federal and territorial statutes, conduct remand courts for criminal matters and bail applications, peace bond hearings and perform other judicial functions. JPs are empowered to conduct some preliminary inquiries and hear guilty pleas, however, prior to April 1, 1999, no JP had conducted a preliminary inquiry in Nunavut (or elsewhere in the NWT).
With the creation of a unified court system, it is anticipated that JPs will be in a position to take on more of the minor cases leaving the superior court to deal with the more serious cases. Although Bill C-57 did not expressly deal with JPs when she introduced Bill C-57, Justice Minister Ann McLellan described the Nunavut JPs as
“the key to the ability to deliver a high quality justice system.”
Historically, JPs in Nunavut have not exercised all the powers available to them under the Criminal Code. In a Nunatsiaq News article about the JP program, the duties performed by Nunavut JPs are summarized into three areas of experience—
" signing documents, hearing guilty pleas and conducting trials"—which is considered by the Nunavut Government’s Deputy Minister of Justice to be the "lower end of the scale" compared to powers exercised by JPs in other parts of Canada.
The absence of continuing education left many JPs uncomfortable with exercising duties that extended beyond swearing information, and arrest warrants. In terms of cases, it is estimated that prior to April 1, 1999, JPs heard from 30% to 60% of all cases that came to court with the circuit courts hearing the indictable offence cases.
The Nunavut Justice of the Peace program has a coordinator whose primary responsibility, as identified by the Deputy Minister, is recruiting and training JPs. Deputy Minister Nora Saunders briefly described this position as follows,
We see that this JP administrator will have a role in talking ahead of time to people who are considering [becoming a JP], perhaps by traveling to different communities and different regions and by talking with local officials about the kind of person needed, so that they have a sense of what that person’s expected to do.
Prior to April 1, 1999, there were 82 individuals ( 26 women and 56 men) working as justices of the peace in 27 Nunavut communities. The number of Inuit participating as JPs in the communities today was not available at the time this report was prepared. While most of the JPs have full time-employment other than as a JP, having JPs paid a salary remains an outstanding issue. The Nunavut government is committed to ensuring JPs are paid for their services.
The NSDC presented an alternative to paying JPs a salary directly. It proposed establishing a protocol that would compensate employers of the JPs for the employee’s absence from work while performing jury duty.
The expanded role envisioned by the federal Minister of Justice is one shared by the Nunavut Department of Justice and reflective of the recommendations from the NSDC Justice Conference. None the less, both the Nunavut Deputy Minister and Assistant Deputy Minister of Justice have given assurances that an expanded role for JPs depends entirely upon the training made available and the willingness of JPs to take on these added responsibilities.
At the NSDC justice conference, recommendations regarding JPs and their role in the Nunavut justice system were based on the following principles:
- Wherever possible, conflict should be resolved through consultation with those involved.
- If the conflict only involved a few people, these people should be the ones involved in the resolution of the conflict. It is not necessary to bring out the big guns every time.
- If the “lesser group” cannot resolve the problem, then access to larger or more influential individuals or groups is important.
- Every opportunity should be made to encourage a person to accept responsibility for what he or she did. This is somewhat contrary to the present system whereby people only accept responsibility if they are proven to be guilty, although there is some opportunity for people to plead “guilty”.
The NSDC report notes that traditionally it is believed that hiding one’s guilt creates sickness in the individual and if hidden for a longer period of time, this sickness spreads to others around the individual, and those individuals also become sick or dysfunctional. Eventually the whole community could be infected with this sickness. It is not until the story is told and the person discloses his or her wrongdoing that those who are unhealthy can become healthy again. It is therefore important to deal with issues as soon as possible. Furthermore, where there was a breach of rules a consultation process would have to take place. Where it was a minor offence, the consultation would be within a family. If the breach resulted in a major offence, the consultation would be within the community. It remains to be determined what factors are considering in making the distinction between major and minor offences (e.g. scale of impact of the offence on community members).
From these principles the NSDC recommends an expanded role for JPs and encourages JPs to
“involve others in helping to make decisions as to sentencing.” Wherever possible, families of both the accused and the victim should be involved. The victims should be involved as often as possible, recognizing that at times the victim might not feel comfortable in being involved and that it is important to protect and respect his or her rights. However, the traditional approach to dealing with problems generally involved everyone, including the victim.
The NSDC recommendations regarding JPs are as follows:
- Increase community support for justices of the peace so that people are encouraged to take on the duties and responsibilities and so that people will feel more confident having matters dealt with in JP Court.
- Increase the Justice of the Peace Training Program in order to meet the responsibilities JPs are provided with under the Criminal Code. This should include providing more legal training programs to train JPs in laws and regulations that they must deal with, including the criminal law, family law, procedures of the court, young offenders law, and some civil law; and developing a justice of the peace support network.
- Change the way JP court operates to reflect the Inuit traditional practices of having groups not individuals make decisions.
- The Court’s physical set up should be much less formal to facilitate consultation and lessen the adversarial approach.
- Screen all cases by the Justice of the Peace and the Community Justice Committee for referrals to the Community Justice Committee, Justice of the Peace court or higher court.
- Establish a protocol to deal with the employer of the JPs to allow time to be free for sittings and training. The idea of the protocol is to establish an arrangement whereby employers are compensated for the employee’s absence from work.
- Expand the sentencing options available to the Justices of the Peace, including Community Correctional Centres and Outpost Camps.
What is positive about the NSDC approach is the attempt to have Inuit culture and traditions form an integral part of the JP court structure and program, including JP selection, training and mandate. The NSDC recommendations reflect the work being done to ensure that while Inuit traditions and culture are respected and incorporated, the concerns of Inuit women regarding this inclusion are not overlooked. For example, in making the recommendation for all charges to go through an initial screening involving local JPs with the justice committees, the NSDC notes that concern was expressed about preserving the privacy of complainants in domestic assaults and sexual assault cases and ensuring that no pressure is brought to bear on these complainants. In response, the report states that
“it was felt that these types of cases should only be screened by the JPs and the justice committee if the complainant agrees to the process.”
Likewise, the NSDC acknowledges that there was some discussion about actually having the JPs sit with “hand-picked” panels in certain instances such as sentencing hearings. These hand-picked panels would provide for the benefit of persons involved or involve those individuals who are considered most suited to deal with the particular matters. As the NSDC report states,
[t]raditionally, women would deal with matters which were considered “women’s issues” and men with the “men’s issues” and it may be that there are instances when it is appropriate to select a panel based on gender.
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