Inuit Women and the Nunavut Justice System

6. CONCLUSIONS: A BLUEPRING FOR A MORE RESPONSIVE SYSTEM

6. Conclusions: A Blueprint for a More Responsive System

The success of any justice system will be determined in part by the ability of administrators to manage a system which is efficient, timely and fiscally responsible. Certainly, the federal government fashioned these criteria into the core objectives of the legislative reforms for the court of Nunavut. In its news release announcing the legislative framework for the new court structure, the Department of Justice stated that the reforms were intended to simplify the structure, improve accessibility and reduce delays, judges’ travel and the number of court circuits.[96]

It is equally true, however, that a system will also be judged by the extent to which it is reflective of the community which it serves. A justice system that does not reflect the realities of the public it serves will be perceived by that public as not being credible.[97] To this end, components of the justice system in Nunavut - whether a vestige of the court system of the Northwest Territories prior to April 1, 1999 or an innovation borne of Bill C-57 – must also be representative of the men, women and children who are the residents of Nunavut. Member of Parliament Nancy Karetak-Lindell framed the expectations of the population of Nunavut in the following way:

Establishing the Nunavut court of justice reflects the long-standing desire of the people and leaders of Nunavut to create a new institution which is more suited to our unique traditions, culture and needs. The court reforms reflect the desire of the Nunavut people to have an accessible and integrated justice system. [98]

The need for such a representative and responsive system is evident. The systemic racial-cultural discrimination faced by Aboriginal peoples in the existing justice system has been well-documented and was most recently affirmed by the Supreme Court of Canada in its decision in R. v. Gladue.[99] In Gladue, the Court reaffirms its view that there is widespread bias against Aboriginal people within Canada, and "[t]here is evidence that this widespread racism has translated into systemic discrimination in the criminal justice system". It goes on to state that "statements regarding the extent and severity of this problem are disturbingly common" and quotes Bridging the Cultural Divide, supra, at p. 309, the Royal Commission on Aboriginal Peoples report, where it listed as its first "Major Findings and Conclusions" the following striking yet representative statement:

"The Canadian criminal justice system has failed the Aboriginal peoples of Canada -- First Nations, Inuit and Métis people, on-reserve and off-reserve, urban and rural -- in all territorial and governmental jurisdictions. The principal reason for this crushing failure is the fundamentally different world views of Aboriginal and non-Aboriginal people with respect to such elemental issues as the substantive content of justice and the process of achieving justice."

Prior to April 1, 1999, the justice reforms undertaken at the initiative of government or justice system players (e.g. judges, police) and funded through the federal and territorial government remained within the context of the existing justice system. This system requires the confrontation of the accused within an adversarial system, a finding of guilt, and sentencing consequences that may take a convicted individual out of the community for a period of incarceration. While more recent restorative justice practices emphasizing reconciliation and healing have been introduced as alternatives to the Euro-Canadian system, these alternatives have still been implemented through the existing system. For example, the community-based reforms often had at the center of decision-making and operations those individuals working within the existing system at the community level, such as RCMP officers, the community justice specialist, and to a lesser extent, judges and Crowns. Therefore, while the reform was located in the community, it was questionable to what extent it was community-based. It is further questionable whether the notion of a "community-based" reform was in fact Inuit-based since the principles and values under which these reforms operated are interpreted within the context of the existing non-Aboriginal justice system.

The NSDC conference recommendations offer a significant departure from the existing system of justice. The recommendations in the NSDC report promote a community-based justice system that does not simply relocate the responsibility of dispensing justice, as understood within the existing system, from justice officials outside of the community to those based in the community. Rather, it promotes establishing pivotal roles for JPs and community justice committees and equipping these alternative dispensers of justice with greater independence from officials within the existing justice system. These expanded roles further suggest a broadening view of justice that embraces Inuit values and culture. The unified court structure similarly helps to bridge the distance between justice in the existing system and justice in Inuit culture where it also encourages the expanded role for the JPs and justice committees.

The strengths of the Nunavut administration of justice and of the proposed recommendations of the NSDC are not without their challenges as this report notes. However, these challenges are not insurmountable.

Notably, while these challenges emphasize shortcomings or gaps relating to different aspects of the three components of administration of justice—unified court, JPs and community justice committees; there are certain themes that flow through these challenges that are worth considering when developing responses. They are:

  • Accountability - is the response accountable to the community?
  • Cultural Sensitivity - is the response sensitive to Inuit culture?
  • Gender Sensitivity - is the response sensitive to its impact on Inuit women?
  • Representativeness - does the response represent Inuit women?
  • Community Preparedness - is the community prepared and able to implement the response?

This report has demonstrated that emphasis on one of these themes to the exclusion or lack of importance of another can cause more harm than good. The examples of the judiciary’s attempt to make the judicial process more cultural sensitive noted in Section 2.3.2 of this report are one case in point. Another example, also focused on the same theme of cultural sensitivity was the expanded role of JPs. . It is noted by those advocating this reform that in order to be successful, JPs would require more training on legal procedures and substantive elements to perform their expanded role.

The report noted the impact on Inuit women when judicial reforms like these have been made to address the need for cultural sensitivity to the exclusion of gender sensitivity, representativeness of women in the design and delivery of these reforms and the community’s preparedness and role in the accountability chain. A fundamental lesson learned is that there is need in any reform to give due regard to the need for developing a process of community involvement that is accountable and community-based, representative and sensitive to gender as well as culture.

With this in mind, possible responses to the challenges identified include the following:

  • Training and education of justice personnel;
  • Public Education – The educators and the message;
  • Increasing Public Confidence and Judicial Accountability to the Community;
  • Support Services for All Community Members; and
  • Monitoring and Evaluation.

6.1 Training and Education

Without question, decision-makers must recognize the need for similar education for all justice personnel, including JPs, community justice committee members, and courtworkers in the communities. This will ensure that all justice personnel have a thorough understanding of the criminal justice system rules, procedures and practices as well as the Inuit traditions and practices. Funding for this type of continuing education/training must be on even terms for all justice personnel.

The training must not only be comprehensive in its application but also in its scope. Training and a thorough understanding of the dynamics of abuse, in particular sexual violence against women and girls, for all justice personnel must also be included in this continuing education/training component. It is critical that these individuals and groups have grounding in the reality of abuse before they exercise their considerably wide discretion regarding the appropriate method for addressing a case involving violence against a woman or child.

Providing training on these matters to all those working on justice issues in the community also provides an opportunity to begin to explore and, hopefully, learn to deal with the conflicts arising when values, traditions or practices based on different cultures, race, religions, gender, and age clash. Within a learning environment, the various players can explore these sensitive issues and conflicts in a supportive way rather than confronting them in an actual case and further victimizing those involved. Continuing education and training in these areas must be incorporated as integral parts of the larger education and training program for all justice personnel.

6.2 Public Education

6.2.1 The Educators

Training for community justice committee members and JPs could also include training about broader legal concepts that would enable them to function as resource people in the community about such matters as the unified court, and other general legal concepts. This use of the committee members and JPs as public educators would help to address the more chronic lack of Inuit understanding of the judicial system, particularly around such broad concepts as criminal procedure, the administration of justice, substantive and procedural law, the history of the justice system and the roles of justice personnel. The lack of understanding among Inuit about such ‘foreign’ concepts is well documented and has been damaging to their support for the justice system.[100]

Members of community-based justice committees have the potential to more easily convey information about this component of the justice process to the community, thereby increasing public confidence in the initiative. As well, an increased awareness of the work of JPs and the committees will also equip community members enhance the community’s confidence in the individuals performing these roles.

6.2.2 The Message

In addition to increasing community awareness about the roles and responsibilities of JPs and community justice committee members, there is a need to increase the level of community support for their work and decisions. If community members in their capacity as justice personnel are making decisions involving violence against women, more community education is required about these crimes. The federal government could support the increased decision-making roles of these community members by undertaking a comprehensive public education campaign. For example, public service announcements could be developed for radio and television (in Inuktitut and English) with simple messages, such as violence is a crime; sexual assault is a crime; child abuse is a crime, etc., from respected elders and other community members. With this campaign, JPs and community justice committee members (and the judiciary) dealing with such crimes will be better understood by the community at large.

6.3 Increasing Public Confidence and Judicial Accountability

The efforts to enhance the public’s knowledge of the system and its players is important step to enhancing it’s confidence in both. In particular, an increased awareness of the work of the courts, JPs and committees will also equip community members to evaluate the performances of these players. Also, it is anticipated that with an increase in people’s knowledge of the roles of these various justice players, more community members will be encouraged to participate as JPs or committee members. Ultimately, confidence in JPs, committees and the judicial process, in particular the confidence of Inuit women, rests with the individuals selected or appointed to perform these roles

The need continues for an improved mechanism to screen candidates for all judicial positions – community justice committees, JPs and the courts—regarding their awareness of gender, racial and cultural bias. Engaging Inuit women and men in the selection and appointment processes and the development of a more transparent system of discipline of justice personnel is essential.

These reforms will help to encourage, rather than deter, women turning to the justice system. They will also help to convey the message that women are valued in the community and that violence against women will not be tolerated. They will help dispel the impression Inuit women have that a judicial response to sexual assault is weighted in favour of an accused at the expense of the rights of the victim.

6.4 Support Services for All Community Members

Adequate support and services for JPs and justice committees also includes supports and services for women and children who are victims, especially those who decide to participate in JP court or community justice initiatives. [101] For these reasons, all victims who have the choice of participating in community-based initiatives, at a minimum, require support to make an independent decision regarding their involvement. Anything less than a fully supported right to decide, has the potential to make the community based initiative as coercive as, and therefore no better for them than, the Euro-Canadian justice system can be.

6.5 Monitoring and Evaluation

Many of the challenges identified in this report highlight the need for some mechanism to assess beforehand and monitor and evaluate the impacts of the system and its alternatives. Moreover, since the potential for JP courts and community-based justice committees to further victimize women is no less than that of the existing system, it is equally important that mechanisms be in place to respond to complaints about the committees or JPs and their determinations.

The prerogative writ remains in place for JPs, however there seems to be little, if any, discussion regarding how to deal with complaints involving community justice committees or how participants can seek redress.

There is a need to establish a system of evaluation and monitoring of the impact of these reforms. The burden should not remain with Inuit women to continually speak out after the justice system has harmed them. As discussed, to speak out is a risky proposition in the communities.

Evaluation and monitoring of the administration of justice, including such matters as the use of jury trials, community-based justice committees, JP decisions, are effective means of keeping officials and the public informed on how the system is operating.

It is worth noting that under the federal Aboriginal Justice Strategy, the federal government will provide financial support of up to 50% (and in some instances 70% in any one year) of the costs of a justice program arrangement agreed to by the territorial government and the Aboriginal community. However, there are criteria that the communities must meet before the federal department will enter the agreement to implement the programs. The criteria include the following:

  • the Charter and the Criminal Code will apply to the program;
  • the community supports the initiatives, established through reports of consultations with the communities
  • the community demonstrates that support through financial assistance or in-kind community support;
  • the initiative also has the support of the territorial government;
  • women in the community play a significant role in all stages of the development, negotiation and implementation of the arrangements;
  • the program meets the community’s needs;
  • the goals of the justice program can be met in a timely fashion, and at reasonable cost;
  • interrelated services such as police, health, education, substance abuse, welfare, child protections, and other services must be in place and that these services must be coordinated with the justice programs; and
  • programs have accountability mechanisms to ensure open decision making, that decisions are free from inappropriate influence, and conflict of interest guidelines are in place.[102]

While these criteria are admirable, there do not appear to be any criteria that apply once the program is in place in order to monitor or evaluate whether the ongoing operation of the program continues to adhere to the criteria identified above.

As noted in this report, Inuit women have raised concerns about the existing justice system and some of the alternatives being used in their communities. In spite of these concerns, the system and alternatives continue to operate. Failing to respond to these concerns challenges the intent of the system and alternatives and their potential effectiveness. Ongoing evaluation and monitoring are also useful means to examine the impacts and better understand how the concerns being raised can be adequately addressed. They may offer useful means of redress to those who have complaints about the system or its alternatives.

Seldom are written judgements available in the areas of concern to Inuit women, such as criminal trials for sexual assault. The expense incurred in having the transcripts of proceedings created makes this an unrealistic option for women in the communities to undertake.[103] Nonetheless, there is a need to monitor what is happening in the courts (judges and JPs) and within community justice committees. How this work will be undertaken and by whom requires further discussion with all parties affected, including Inuit women in the communities.

At a minimum, monitoring and evaluation of government-funded programs are integral components of funding agreements. How the monitoring and evaluations are done and by whom are issues that go beyond the scope of this paper. Evaluation and monitoring of the system, like the system itself, must be accountable to and fully representative of all community members, especially those marginalized and often silenced. If evaluation and monitoring are to be used, a shared understanding of their purpose is required.

6.6 The next step…

Reconstructing a model of a criminal justice system that meets the needs and reflects the culture, traditions, values, ideas, and ways of all community members is a monumental task. This work is developmental in nature and accordingly, is a major challenge not only to government and its funding agencies but also government agendas to move forward on certain issues and demonstrate “success” and the “effectiveness” of these government-funded initiatives. At the same time, it is also a major challenge to the communities designing and implementing justice alternatives and living with this work-in-progress and its impacts. Determining what is meant by “effectiveness” and “success” requires discussion and shared understanding by all members of the community.


Date modified: