The Nunavut Court of Justice - Formative Evaluation

Executive Summary

1. Introduction

The territory of Nunavut was created effective April 1, 1999. Federal and territorial legislation authorized the Nunavut Court of Justice (NCJ), a unified Court system, to provide an efficient and accessible Court structure capable of responding to the unique needs of the territory, while at the same time maintaining substantive and procedural rights equivalent to those enjoyed elsewhere in Canada. Nunavut is the only Canadian jurisdiction with a unified Court.

There are two major objectives for the evaluation:

2. Methodology

The evaluation involved four methodological approaches:

The study was limited in the number of communities visited (four of twenty-six). Although criminal and family files were reviewed, civil files for the period 2001 to 2005 were not.

3. Nunavut Overview

Nunavut is characterized by a fast growing, young population. Its proportion of young people 0 to 14 years is almost twice that for Canada as a whole. The territory has a significantly higher rate of violent personal crime, particularly domestic abuse and sexual assault. Property crime, especially break and enter, are also proportionately high compared to the rest of Canada. With a high school drop-out rate of 75 percent and almost no youth-oriented programming throughout the territory, practitioners are concerned that the incidence of criminal behavior will increase significantly in the near future. In turn, this would place greater demands on the NCJ.

4. The Administration of Justice

Key informants and community members said the NCJ is doing a good job of delivering justice, especially in view of the challenges it faces. Nunavummiut have some concerns, as might be expected, but overall they are pleased with the Court and its improvements over time.

Case processing times have declined since 2001. Adjournments, particularly in the communities, continue for a number of reasons; however, practitioners almost unanimously believe that delay is not a major issue facing the Court. Delays in case processing are generally seen as reasonable compared to other jurisdictions, and inevitable in light of uncontrollable conditions such as weather. Some community members, however, are more concerned about case processing times, particularly in spousal assault cases. Delays are seen to be stressful for the accused, victims, witnesses and their families.

Remands are common in Nunavut, as they are in other jurisdictions. In Nunavut, however, there are significant cost implications because remanded offenders must be flown to the Baffin Correctional Centre in Iqaluit or to the Yellowknife Correctional Centre. As well, the stress on the overcrowded facility in Iqaluit is severe.

There is a serious shortage of community-based courtworkers. While there are barriers to the hiring of additional courtworkers, practitioners and community members believe that they would improve the effectiveness of the criminal justice system by working with the accused and defence counsel, and by doing preparatory work prior to the arrival of the NCJ. As well, courtworkers are seen to hold potential for facilitating family law cases, an area in which they are currently not involved. Courtworkers are the responsibility of the Nunavut Legal Aid Society.

Similarly, more JPs are needed, especially more trained and experienced at Level 3 (conduct trials of summary conviction offences) and Level 4 (as Level 3 and sit as Youth Court Judges). In four communities where Level 3 or Level 4 JPs are in place, JP Court is being held the day prior to the arrival of the NCJ. The preparation of the docket for the judge has increased the effectiveness of case processing in those communities. The NCJ is responsible for hiring, training and managing JPs. A lack of resources appears to be the primary reason for the shortage.

The lack of community-based programming, including mental health and addiction services, youth programs and probation services seriously affects the ability of judges to turn to alternatives to incarceration. The lack of adequate probation services, in particular, negatively affects the effectiveness and possibly the credibility of the Court. With regard to the non-custodial provisions of the Youth Criminal Justice Act (YCJA), the absence of community programs and the weakness of probation services present serious difficulties for the Court. The federal and territorial governments are responsible for funding and implementing these programs and services, not the NCJ; however, resource shortages are a serious problem in Nunavut.

Access to family law services has improved significantly in recent years thanks to additional family law lawyers in the legal aid system, and to the efforts of the judges to make hearings and mediation more accessible. The number of family law applications is increasing rapidly. Civil matters, however, remain underdeveloped, especially as there are no civil matters lawyers residing in Nunavut. Civil matters seek to resolve non-criminal disputes in areas such as contracts, property ownership, family law, and personal and property damages. While the judges hold civil chambers in every community, the poor quality of Nunavut's telephone service often presents difficulties regarding the parties who are not present. Informants believe that needs associated with civil matters will increase as business grows and as people become more aware of the possibilities in civil matters.

Judges regularly engage in pre-trial and pre-circuit conferencing in criminal and civil cases. Judges also assist in family mediation, although the requirement has not been great as counsel are effective in reaching agreement in all but the most complex cases. The family mediation project, Inuusirmut Aqqusiuqtiit, initiated by Justice Canada and the Nunavut Department of Justice in Iqaluit and Cape Dorset, is believed by practitioners to be working well. The process of accessing ex parte and emergency relief orders is seen as highly effective in Nunavut.

Deputy judges are an essential aspect of the NCJ due to the heavy circuit schedule. While the use of deputy judges is considered to work well overall, there are concerns regarding the inexperience in the North and in Aboriginal communities of some visiting judges, the unfamiliarity of the judges for lawyers and community members, and the significant amount of time invested in the preparation of deputy judges, particularly by the senior judge and Court staff. Shortcomings in the use of deputy judges are seen as a valid reason for increasing the number of resident judges by at least one.

There are too few defence lawyers practising in Nunavut, whether as staff of the Nunavut Legal Aid Society or as members of the private bar. Practitioners are concerned about the implications of the shortage as it affects the service provided to the public. It can also lead to burnout and turnover among defence counsel, and has occasionally contributed to Court delays due to lack of preparation by counsel. While the recent increases in the number of legal aid lawyers practising family law has had a positive impact in that area, there remain no resident lawyers practising other forms of civil matters.

Practitioners and community respondents alike indicated that Nunavummiut generally remain unaware of legal processes and their right in the system. This applies especially with respect to family and civil matters. In view of the substantial workloads facing all practitioners in the system, no real efforts have been made to establish Public Legal Education and Information (PLEI) programs. PLEI is the responsibility primarily of the Nunavut Legal Aid Society. One exception to the lack has been the NCJ itself, in that, for example, the judges have been active in a high school outreach program and in employing youth panels in many communities. Communities want more legal education and believe that a greater presence of lawyers, JPs or courtworkers in communities would help to address the need.

Community Justice Committees are an important part of the justice system in Nunavut. However, for several reasons their capacity varies from community to community. Similarly, the extent to which they receive referrals varies, particularly pre-charge referrals from the Royal Canadian Mounted Police (RCMP). Crown prosecutors are more consistent in their post-charge referrals. Most legal system practitioners, as well as community residents and members of the Community Justice Committees, believe the Committees hold real potential to handle more diversions and, in many cases, more serious cases. It is also thought the Committees should be engaging in more family mediation. While a small number of Committees are presently engaging in these kinds of activities, most others require developmental support before they can move to a higher level of operation. In particular, many Committees continue to need support in the form of office space, training (mostly in mediation) for Committee members, and administrative coordinators who are trained and paid at reasonable levels.

The NCJ, particularly the resident judges, is seen by practitioners and community residents as sensitive to Inuit culture and to the social realities in Nunavut communities. The Court demonstrates this awareness in several ways, including elders' panels, a high proportion of Inuit staff in the Court office, effective interpretation service, and a general consideration of the community and family context of individual accused and victims.

5. Court Office Management and Operations

The operational structure of the NCJ comprises the Court Services Division, part of the Nunavut Department of Justice, and the NCJ administration, responsible to the Chief Justice. The former is largely responsible for the ongoing operations of the Court, while the latter primarily meets the needs of the judges.

There are three resident judges in Nunavut. There was unanimous agreement by key informants and community respondents that it is essential a fourth judge (at least) be appointed immediately. Several factors contribute to this view, including the substantial and steadily increasing caseloads in all areas of the law, the demands of circuit court, the stresses associated with travel in the North, and the developmental responsibilities of Nunavut judges.

Staff workloads at the Court are also substantial. While some areas in Court Services are currently staffed to acceptable levels, others are not; for example, the Sheriff's Office. Additional training for the Sheriff and the two Deputy Sheriffs is also urgently needed. The staff member responsible for travel arrangements of the Court should be staffed by an additional person in order to ensure continuity and effectiveness.

Lawyers are generally satisfied with the level of service provided by Court Services, although some have occasionally experienced frustration with the flow of information in a timely manner. Overall, however, lawyers are pleased with the service provided and those who have been in Iqaluit for a long period of time are impressed by the improvements made by staff and management.

Interpretation services are an important aspect of Court in Nunavut. While interpretation in the Court is considered to have improved to the point where it is now very effective, some counsel continue to have concerns about the quality of interpretation, particularly in the Western Arctic where dialect can present a problem for interpreters traveling with the Court. The annual eight week Legal Interpreting course sponsored by the NCJ is attempting to address such issues. Community members are generally satisfied with the interpretation services provided by the Court.

With respect to the Court's information management systems, there has been vast improvement since 1999. Practitioners would like to see the development of a system with common reference numbers between the Court, the RCMP, Crown and legal aid systems. As well, lawyers would like to be able to e-file capability that would allow counsel to send documents electronically to the Court while it is on circuit. This would be especially useful when counsel are appearing by telephone. Judges are developing standard language and forms for various types of orders. One judge, for example, is currently using a standard form for conditional sentence orders.

The computerization of case files is ongoing. Currently criminal files are computerized from January 2001 and civil files, including family, from January 2003. Manual files prior to the current year are presently stored in a substandard facility with questionable security.

The new court house in Iqaluit is a dedicated facility that should improve working conditions, public access and security. Facilities in the communities remain very poor, although most practitioners and community members recognize that these facilities are the best that the communities have to offer. Of real concern is the substandard quality of telephone service from most communities. Problems with telephones lead to frustrations for judges, counsel and clients when cases involve participation by parties in different communities.

6. Overall Views of the Nunavut Court of Justice

Both practitioners and community residents, including members of Community Justice Committees, see the NCJ as having improved greatly in service delivery since 1999 and as an effective institution that is doing well under very challenging circumstances. While improvements can be made – for example, more circuits, decreasing case processing times, and increasing the responsibility of Community Justice Committees – most respondents are satisfied with current standards in the administration of justice.

Respondents were unanimously concerned about the lack of community-based programming, including probation services. This is understood not to be the responsibility of the NCJ; however, practitioners and community members see it as affecting the administration of justice.

7. Achievement of Overall Objectives

The general objectives for the new Court as viewed by the federal and territorial Departments of Justice and the Nunavut judiciary are the following:

It was generally agreed among key informants and community members that both the single-level Court and the two-level Court (prior to April 1999) do an effective job of providing rights equivalent to those enjoyed elsewhere in Canada. With respect to the second and, particularly, the third objectives, the information compiled for this evaluation suggests that the NCJ has made improvements in the administration of justice in communities across the territory. With few exceptions throughout the evaluation process, key informants and community members said the NCJ is doing a good job of delivering justice, especially in view of the challenges it faces. Nunavummiut have some concerns, as might be expected, but overall they are pleased with the Court and its improvements over time.