Summary of the Inuit Women and the Nunavut Justice System Workshop

3.  REMAINING CHALLENGES OF THE NUNAVUT JUSTICE SYSTEM

Assuming governance of the justice system relates to more than simply locating the dispensers of justice within the community; it is desirable for reforms to be based on traditional knowledge of the Inuit.  Much remains to be accomplished before this can be realized. The report identifies challenges that remain to be addressed in the three areas— the unified court structure, JPs and the community-based justice.  Rather than review the challenges in the workshop, the facilitators presented five themes common among the challenges and the impact of the interrelationship of these themes.

The five themes are:

  1. Accountability;
  2. Representativeness;
  3. Cultural Sensitivity;
  4. Gender Sensitivity; and
  5. Community Preparedness.

a) Accountability

This theme refers to impact the remaining challenges have on the accountability of the judiciary, JPs and community justice committees to the community they serve.

Issues:

  • Issues for the court structure
  • Already recognized that the court structure has mechanisms built into it to ensure accountability such as an appeals system, a level or standard to which judges must perform, record of the decisions and a complaints/redress process
  • These existing mechanisms must be well understood by the public
  • Record of the decisions of the judges must be readily accessible
  • Issues for JPs
  • JPs decisions may be reviewable but conduct review is not so clear, what is the complaints/redress mechanism
  • Lack of training (knowledge and skills, both legal and related to dynamics of family violence);
  • No uniformity in the training, knowledge-base of those performing role of JP; no standards in place;
  • Roles: clarity, re: community perceptions of the role and JPs’ authority;
  • As a result of the R.v.Camsell decision (N.W.T.C.A.) JPs held to a lower level of legal, evidentiary standards for certain cases than legally-trained judges– this impacts on issues of accountability – credibility issues of JPs for the community
  • Community pressure on JPs who are also members of the community - being accountable to one’s community for Inuit may mean respecting cultural practices and norms such as not “judging” one another – the role of JP is contrary to  this
  • Issues for community justice committees:
  • Same issues that were identified for JPs apply for committees
  • In seeking diverse community membership with wide range of experience limits ability to standardize selection or membership criteria
  • Training not readily accessible (knowledge and skills, both legal and related to dynamics of family violence);
  • Roles: clarity, re: community perceptions, authority;
  • Appeals mechanism (complaints, redress);
  • Community pressure on committee members.

b) Representativeness

This theme addresses the issue of ensuring representativeness of Inuit women in the design and implementation of the administration of justice.  Currently, all of the judges serving on the two courts of Nunavut are non-Inuit and most live outside of Nunavut.

Issues:

  • The current system is two-tiered system wherein the judiciary are non-Inuit and JPs and CJCs are Inuit or community-based due to the requirements to hold position as judge.  This has the potential to limit Inuit influence where the decision makers are non-Inuit, and underscores the need for consultation with the community prior to sentence as well as judicial selection criteria that seek to ensure that candidates are knowledgeable about traditional values.  There is also a need to examine alternative programs, like the one in Labrador that allowed for the appointment of Judge James Igloliorte, the first provincially appointed Inuk judge in Newfoundland and Labrador. First appointed as a magistrate in 1980, Judge Igloliorte obtained his law degree in 1985. He is the first and only Inuk judge in Canada
  • Definition of “community:” issue of who defines community and how to ensure representation of parts of the community without a strong voice, including women and youth.
  • Women’s participation does not necessarily ensure that a woman’s “voice” will become part of the decision making process.
  • NSDC recommendation that women deal with women’s matters.
  • JP training should be open to Inuit who speak only Inuktitut.

c) Cultural Sensitivity

This theme addresses the aspect of cultural sensitivity that remains throughout all of the challenges identified.

Issues of the Court structure:

  • The existing court structure and administration of justice is rooted in Euro-Canadian culture, the system is punitive in nature and both of these fundamental aspects of the system are contrary to Inuit culture
  • Since the judiciary itself is non-Inuit and most of the deputy judges and appellate judges are not northerners, it is difficult for them to interpret the culture or making it more culturally appropriate
  • There tensions between making the system more culturally appropriate and respecting Inuit traditional values associated with “not passing judgement.”
  • Most obvious issues of cultural sensitivity noted by Inuit women deal with judges’ cultural misunderstandings at sentencing stages (mitigating factors that are based on cultural
  • misunderstandings—i.e. non-Inuit interpretations of Inuit culture and traditions (most evident in sexual assault cases).

Issues for JPs and Community-based Justice

  • Points raised with respect to the court-structure apply to these two components as well for those involved in community-based justice committees or act as JPs and are not Inuit or long-term residents
  • While community-based justice committees and programs are rooted in the community it does not necessarily mean it is cultural appropriate – or reflective of Inuit culture
  • Localizing the administration of justice to the community-level makes may make it more sensitive than the existing court structure, but have to be mindful in making something more “cultural sensitive” may cause other problems so this must be done in an open and visible way for all members of the community to participate (including women)

d) Gender Sensitivity

This theme focused on gender and the impact of cultural sensitivity reforms on gender.  Gender bias among members of the judiciary has been extensively documented

Issues:

  • Intersection of culture and gender;
  • Judicial bias related to intersection of culture and gender, and perceptions of culture resulting in sexual stereotyping about proper roles for women; these stereotypes have influenced judicial sentencing practices.
  • Role of elders and views on violence against women;
  • community justice committees are seen to be more supportive of the accused, than the victim and the Committees are viewed as a tactic which the defense bar uses.
  • Need for training in dynamics of male violence against women and children, particularly with respect to sexual assault, child sexual abuse and wife battering (judiciary, JPs and justice committees)
  • Perception in the community that JPs take over less serious crime, therefore a problem of violence against women offences falling to the JPs.
  • The feeling is that the courts does not effectively deter sexual assault, and doesn’t accurately convey the message that the community values women and that violence against women won’t be tolerated.

e) Community Preparedness

This theme deals with the willingness of the community to take on the responsibilities of administering justice at the local level through committees and other alternatives.  It also deals with the issues such as communities’ capacities to take on these responsibilities in the short and long term; and the financial and human resources and training opportunities available or accessible to assist in this work.

Issues:

  • Judicial selection must adequately screen for cultural stereotypes.  Judges need to take better account of Inuit values;
  • Capacity issues, such as the existence and level of services, coordination of services and availability of resources plus the need to examine community values, views on violence against women, the Charter and human rights issues (knowledge + skill development + awareness of dynamics of male violence against women and children);
  • Incorporating the above into training for JPs  to ensure training on substantive law matters;
  • Need to ensure that participation by the victim is voluntary;
  • Health and well being of committee members is needed before they can do their work
  • Standards required for dispensing community justice;
  • Monitoring and evaluation (need for mechanism for ongoing monitoring and formal evaluation process); and
  • Need for public education to support the role of JPs and justice committees (public education to include the role and mandate of JPs and committees as well as awareness of laws regarding crimes of violence against women and children).

Inter-relationships of the Five Themes

The facilitators ended their discussion on the themes by discussing the significance of taking into account the interrelationship of the themes when attempting to respond to the challenges identified.

The increased role of JPs and community justice committees in the administration of justice is seen as making the system more culturally appropriate. Given the issues raised above, there is a need to understand that not taking account of the inter-relationship of these issues can result in progress in one area creating problems in another.

Three examples were reviewed to highlight the interrelationships.  The first example dealt with the judiciary’s attempts to be more sensitive to Inuit culture and to turn to elders for advice. These attempts to make the court system more “culturally sensitive” may have a negative impact on women and child victims of family violence were the elders involved blame women for the violence they sustain.

Similarly, the increased role for community justice committees must be analyzed in the context of the resources available in the community, training opportunities, levels of public awareness and attitudes towards violence against women and children, and the issues raised under the representativeness section. Evaluation and monitoring will be important tools for tracking progress; yet, they must be designed so as not to focus on discrete components of the system without also taking account of the interrelationships discussed here.

Finally, reforms enabled Inuit who speak only Inuktitut to participate in jury trials.  This reform is seen as culturally appropriate.  However, it also clashes with the traditional Inuit reluctance to judge one another.  As a consequence, only rarely have sexual assault trials resulted in convictions in the last two decades. The dissatisfaction among Inuit women with this unwillingness to convict has culminated in a Pauktuutit resolution that there be no jury trials in communities in cases of sexual assault.  This response is understandable but potentially contravene an offender’s right to have Inuit available for jury duty.

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