The Nunavut Court of Justice - Formative Evaluation

5. The Administration of Justice


5. The Administration of Justice

5.1. Introduction

Section 5 addresses the role of the Nunavut Court of Justice (NCJ) in administering justice throughout the territory. The "administration of justice" is a broadly defined term referring to questions of access to justice (e.g., frequency of Court hearings) and the manner in which the Court fulfills its mandate (e.g., meeting community needs in a culturally sensitive manner).[9] These issues are distinct from, though related to, the questions pertaining to the management and operational matters of the Court office addressed in Section 6.

Issues such as delays and processing times in criminal cases are largely the responsibility of the NCJ and are important to the overall effectiveness of the justice system. Other issues, such as the number and qualifications of courtworkers, are not the direct responsibility of the NCJ. Such matters are, however, important to the work of the Court and the overall functioning of the justice system and are therefore included in this section. This section is based primarily on key informant interviews and discussions with community residents, including members of Community Justice Committees, as well as on information derived from the review of criminal and family case files.

5.2. Achievement of Intended Results

5.2.1. Reduction of Delays and Case Processing Times in Criminal Cases

The question of delays in the processing of criminal cases has been a concern since the inception of the NCJ. The creation of the new Court was intended, among other things, to result in fewer delays and improved case processing times. To some extent, it appears on the basis of discussion with key informants that there has been an assumption that delays are a problem simply because (a) delays occur in every jurisdiction in Canada, and (b) the NCJ faces unique challenges not usually seen by other Courts (such as bad weather) that would naturally cause delays. However, it became clear through key informant interviews that, while there are delays in Nunavut, they are not seen as especially problematic by the majority of individuals working in the justice system. The typical view of justice system personnel is that the delays are reasonable in comparison to other jurisdictions, and that delays will inevitably occur because of uncontrollable factors such as bad weather.

5.2.2. Circuits and Repeated Adjournments

Some community informants see delays – defined as infrequent circuits and repeated adjournments – as problematic. First, residents sometimes see offenders who are continuing to live in the community while awaiting a Court date as posing a potential threat to the community (although many offenders are remanded to Iqaluit for this reason). Residents sometimes also believe that the offender is getting easy treatment by being allowed to stay in his/her community after committing an offence.

More from the community perspective, perhaps, is the stress that delays place on victims, witnesses, the accused and their families. This may be particularly true in spousal abuse cases in that the couple may have reconciled by the time their case is heard. Re-visiting the incident in the stressful context of Court can be a negative experience for all participants. Remands to custody can also affect the family of the accused in that the accused is often held far from home and unable to provide economically and in other ways for the family.

The review of adult criminal case files undertaken for the evaluation indicates that case processing times have declined since 2001. In 2005, personal violence summary conviction cases required an average of 15.3 weeks from the date of an information being sworn (more or less the same as the offence and charge date) to disposition by the Court. In 2001, the equivalent timing was an average 17.7 weeks. The same cases in 2005 took an average of 7.6 weeks from the time of setting the date for trial until disposition. In 2001, the same process took 10.3 weeks. Jury trials take longer but are also improving in terms of timing. Jury trials (indictable offences) now typically take just over one year from the time of a trial date being set, while completion of jury trials commenced in 2001 often took closer to two years. Table 3 indicates the changes in processing times since 2001.

Table 3: Average Times for Summary Conviction Trials and Jury Trials (weeks)[10]

Type of Trial and Times Measured (average weeks) - Summary conviction personal violence trials:
  2001 2002 2003 2004 2005
1. time of setting trial date to disposition 10.3 10.0 9.2 8.3 7.6
2. time information sworn to disposition 17.7 17.5 17.0 16.1 15.3

Type of Trial and Times Measured (average weeks) - Indictable jury trials:
  2001 2002 2003 2004 2005
1. time of setting trial date to disposition 88.6 79.2 71.4 65.9 57.4
2. time information sworn to disposition 102.5 93.6 84.2 76.2 67.7

Adjournments, particularly on circuit, affect the length of time for trials. Table 4 indicates the number of matters addressed and the number of matters adjourned on two circuits for each community. On this basis, an average 63.7 percent of matters were adjourned.

Table 4: Matters Addressed and Adjourned on Two Circuits[11]
Community Circuit Concluded Number Matters Number Adjourned Circuit Concluded Number Matters Number Adjourned
Arctic Bay Jun '05 35 39 Feb '06 71 71d
Qikiqtarjuaq Oct '05 54 37 Mar '06 46 35
Cape Dorset Sep '05 130 91 Mar '06 130 47
Clyde River Sep '05 100 100a Apr '06 102 65
Grise Fiordb Mar '05 29 19 N/A    
Hall Beach Oct '05 95 75 Feb '06 95 62
Igloolik Oct '05 120 112 Feb '06 120 101
Kimmirut Oct '05 37 22 May '06 43 22
Pangnirtung Aug '05 253 172 Jan '06 40 13
Pond Inlet Sep '05 140 92 Jan '06 135 70
Resolute Bay Jun '05 39 32 Oct '05 73 41
Sanikiluaq Jun '05 86 41 Nov '05 30 15
Arviat Aug '05 99 84 Dec '05 94 39
Baker Lake Aug '05 93 93a Dec '05 127 70
Chesterfield Inletc N/A 29 25 Nov '05 36 21
Coral Harbour Sep '05 78 38 N/A    
Rankin Inlet Aug '05 193 114 Jan '06 220 114
Repulse Bay Aug '05 54 40 Dec '05 54 43
Whale Covec Jun '04 1 1 N/A    
Cambridge Bay Oct '05 74 52 Jan '06 98 43
Gjoa Haven Sep '05 157 134 Jan '06 143 77
Kugluktuk Aug '05 182 81 Dec '05 227 120
Kugaaruk May '05 60 19 N/A    
Taloyoak Sep '05 190 177 Jan '06 204 55
Moyenne   97 70.4   104.4 56.2

There are many reasons for the need to adjourn a matter. The review of criminal case files[12] indicates the most common reasons for adjournments of trials on Court circuits between 2001 and 2005 in the list shown below. This list generally reflects the frequency of reasons for adjournments, beginning with the most frequent. However, the relative frequency of reasons varies by community. In some communities, for example, witnesses tend to stay away from Court more frequently than in other communities. Similarly, weather is a more significant factor in some communities than in others. (Weather also varies as a factor according to the time of year.)

Common reasons for adjournments (each of the reasons listed below is expanded later in the report):

Other reasons for delays were provided by key informants (not ranked):

The last three factors listed above represent particularly serious challenges for the NCJ and the Nunavut Department of Justice.

There was a high level of unanimity among all lawyers interviewed (Crown prosecutors and defence counsel) that, on the whole, delay is not a major issue facing the Court. Most lawyers pointed to timelines consistent with, or better than, southern Courts. Most counsel were quite satisfied that the majority of cases saw substantive progress by the second Court date. Several lawyers remarked that even a serious homicide case would normally be concluded within two years.

Although almost no lawyers viewed delay as a serious issue in itself, most acknowledged that there are often time lapses between steps in proceedings owing to time between circuits, particularly in smaller communities. Even where the parties are operating with a high level of efficiency, if the Court only visits once every six months, as is the case in the smallest communities, significant time lapses occur. Even in mid-size communities, only three to four circuit stops a year are common and it is not unusual to have one of those trips further postponed due to weather-related problems. This time lapse may be a source of real hardship for affected individuals and their families. Some justice system informants pointed out that an extended period of uncertainty may have a particularly serious effect on family relationships, especially where the charges relate to domestic violence. As previously mentioned, community respondents also identified this as a concern.

Most lawyers and justice officials regard time between circuits as an inevitable consequence of geography, small populations, and the high cost of bringing the Court to more remote corners of the territory. Apart from time between circuits, locating witnesses and bringing them in for trial is a constant challenge, given the mobility of the population within Nunavut. Frequent RCMP rotations can also be a problem as the arresting officer must often fly to the site of a trial. The use of deputy judges may also add to the length of time before disposition. However, most key informants pointed to the increase in number of circuits (46 in 2001[14] to 50 in 2005[15]) and time spent in communities since the inception of the NCJ as indications that the Court is addressing the issue of delays.

Defence counsel naturally have a different perception than Crown prosecutors about some factors which may contribute to delay. From a defence perspective, adjournments before a guilty plea may be strategic – allowing a client to get a job, to get assistance from social services if they are free pending trial, or to receive an ultimately shorter sentence due to time served if they are remanded. (Although credit for remand time can vary, in Nunavut it is usually calculated at sentencing according to the ratio of 1.5 to 1.)[16] Defence lawyers see refusing to allow show-cause hearings in communities – requiring accused persons and often witnesses to be transported to Iqaluit – as an important breach of clients' rights in the face of considerable jeopardy. Crown prosecutors are more likely to perceive that adjournments result from a lack of preparation or necessary flexibility on the part of defence. A number of new practices have increased the efficiency of the Court in communities – notably, having the defence counsel and the Crown prosecutor spend at least a day in a community before the Court arrives. (This tends to be hardest to achieve in the smallest communities where the Court sits in two or three communities on a single circuit). Lawyers from both defence and prosecution noted an improvement in timeliness in the past year resulting from a new practice of defence counsel (legal aid) consistently being assigned to the same circuits, thus creating a stronger incentive to quick settlement.

On the family law side, outside of emergencies, matters may take longer to get to the stage of an interim order than would be typical in the south. Even once a file has been assigned to a legal aid lawyer (and there continues to be a legal aid backlog in family files), it may take some time to receive instructions – particularly where lawyers and clients do not have a language in common. The most significant cause of delay is the difficulty in finding opposing counsel given the small size of the family bar. Family lawyers noted that their clients or potential clients appear extremely patient with delay in receiving family law services. Some informants suggested that perhaps because this is a new area of service, community expectations about timeliness are lower.

In summary, while delays in criminal matters continue, it appears that the Court has had success in addressing the issue to the satisfaction of lawyers and other justice system personnel. Some community residents continue to have concerns about time lapses between circuits, especially in domestic violence cases.

5.2.3. Decrease in Number and Length of Remands

Remanded offenders are individuals who are held in correctional facilities awaiting appearance in Court. They are not released into the community to await their Court appearance because they are considered to be at risk to abscond or to harm others. A second category of remand – sentenced remand – refers to offenders who have been sentenced to a period of incarceration but have outstanding charges that must be dealt with by the Court. Remanded offenders are incarcerated either at the Baffin Correctional Centre (BCC) in Iqaluit or, if they are from the Kitikmeot Region, at the Yellowknife Correctional Centre (YCC).

In 2005-06, in any given month there were approximately 70 Nunavut inmates at BCC and 20 at YCC. In both institutions, slightly over 50 percent of those inmates were remanded. Judges commented that the lack of facilities and staff in the communities to hold or monitor problem offenders essentially forces them to remand individual accused in the interest of protecting the public.

There are implications arising from the remand process. First, as BCC and YCC are the only institutions available for remanded offenders from Nunavut, offenders who are remanded in a community must be flown to Iqaluit or Yellowknife. The associated travel costs are considerable. Second, remanded inmates place pressure on the institutions, particularly BCC. The institution was designed to hold 43 territorially sentenced men; however, with a typical population of approximately 70, of whom approximately half are remanded and mixed with the general inmate population, Nunavut Corrections officials advise that the stresses on the staff and the facility are serious.

5.2.4. Use of Alternatives to Incarceration

Alternatives to incarceration are seen by key informants and community respondents as important for several reasons. First, a sentence served in one's own community may provide less stress on the offender and his/her family than a jail term. Second, it may also provide the opportunity for the offender to reconcile with the victim and the community. Third, if the offender provides for his family through wage employment or hunting, these forms of support are not necessarily withdrawn when the offender is able to return to his/her community. Fourth, community-based, non-jail sentences are seen as more culturally appropriate than incarceration. Many community residents indicated that the family and the community have a responsibility to work with the offender, a responsibility inherent in Inuit culture. Fifth, the BCC and the YCC are overcrowded and lack rehabilitative programming. Both institutions are acknowledged by key informants and community respondents as undesirable for the long-term improvement of offenders.

It should be noted that the preference for alternatives to incarceration is not universal. Key informants and community respondents recognize the need to incarcerate certain offenders, depending on the nature and seriousness of the crime, the tendency of the offender to repeat his/her offending, and the ability of the family and the community to handle the offender with positive results. In some cases, incarceration is seen as the only route, particularly when victim and community safety are in question.

Lawyers were unanimous in the view that the NCJ does its best to explore alternatives to incarceration, including conditional sentences, in light of the resources available in the communities. Lawyers are routinely requested to provide information about alternatives if they have not already done so in their submissions; however, the absence of such information is sometimes a reason for adjournment.

A major concern related to alternatives was expressed unanimously by key informants, including judges, Crown prosecutors, defence counsel and JPs, as well as by Community Justice Committees and community residents. The concern is that there are serious shortages of community resources and programming, specifically probation officers, social workers, mental health and addictions services, youth programs, and consistently strong Community Justice Committees. All of these are seen as essential alternatives to incarceration. As one informant noted, the credibility of the Court depends on ensuring that there is effective follow-up to Court orders when the Court leaves town; if volunteer hours are not served, if counseling is not provided, or if conditions of house arrest are not enforced, then there may be a community perception that an offender has "gotten away with something". Similarly, without programs such as anger management and substance abuse counseling, the Court is often the only resort for handling an offender. In preventative terms, the shortage of programs for youth, such as supervised land programs, is viewed by community residents as contributing to youth crime.

The gaps in community-based programming for offenders are primarily a problem of resource shortages. Nunavut Department of Justice officials recognize the need for programs to assist offenders, as well as victims; however, the funds are generally not available on a sustainable basis to hire and train program workers in the communities.

The lack of community-based programs places the NCJ in a difficult position. Judges make every effort to ensure that the programs that do exist are accessed fully as part of a probation order. Similarly, as noted above, judges encourage defence counsel to seek out appropriate alternatives and to develop a plan for their clients. However, this is difficult for two reasons. First, most defence lawyers are extremely busy and have little time to seek out community programs and liaise with program staff. Second, the programs that exist are almost exclusively in the larger centres such as Iqaluit, Rankin Inlet and Cambridge Bay. Key informants and community respondents advise that the smaller communities essentially have no programming for adults or youth.

A few lawyers noted that there are other challenges facing the Court in considering alternatives. Several informants pointed to substantial numbers of offenders who have experienced serious trauma themselves, or who have major disabilities such as Fetal Alcohol Spectrum Disorder which complicate the assessment of criminal responsibility and appropriate punishment. Judges are aware of the sensitive nature of these cases and say (confirmed by key informant lawyers) that they try to find workable solutions in sentencing in these cases.

There were mixed views on the question of the effectiveness of alternatives to incarceration. A few key informants commented that there is a strong community perception of "no jail equals no punishment". Other informants pointed out offenders in smaller communities experience a higher degree of scrutiny as RCMP, in particular, will check up on a regular basis; further, being required to serve a condition of house arrest is particularly severe given overcrowded living conditions. While studies of the relative effectiveness of community-based alternatives as opposed to incarceration have been undertaken elsewhere in Canada, key informants were not aware of them.

5.2.5. Probation and Parole

Probation is a common aspect of sentencing with respect to territorially sentenced offenders (i.e., cases in which the potential jail sentence is up to two years less a day). In less serious and non-repeat cases, it is usually not combined with a period of incarceration, although the combined sentence of incarceration plus probation also occurs. Conditional sentences, which are also applied, involve release with conditions but with an automatic reversion to serving the full term of incarceration if conditions are breached. Parole refers to federally sentenced offenders (over two years incarceration) after the prison term is served.

Table 5 refers to the numbers of adult and youth probation cases, conditional sentence cases and parolees in the eight highest ranking communities as of October 2005.[17]

Table 5: Probation and Parole Cases and Conditional Sentences in Eight Communities, October 2005
  Adult
Probation
Youth
Probation
Conditional
Sentence
Parole Total
Iqaluit 146 18 27 0 191
Cambridge Bay 55 8 24 1 88
Rankin Inlet 25 4 10 2 41
Arviat 29 8 3 0 40
Baker Lake 25 7 8 0 40
Kugluktuk 30 12 15 1 58
Pond Inlet 27 6 5 0 38
Pangnirtung 35 11 6 0 52

The Community Correction (Probation) Service was active in the eight communities listed in Table 5 in October 2005. In total, the program had 12 employees (Community Correction Officers), of whom two were management/administrative positions in Iqaluit. In addition to supervising the probation, parole and conditional sentence cases in their own communities, the Community Correction Officers are responsible for monitoring cases in the smaller communities.[18] This is done through working by telephone with RCMP and social workers in the smaller communities, as well as through occasional visits. However, in view of the workload of all three parties – the Community Correction Officers, the RCMP and the social workers – this is not entirely effective. Travel by Community Correction Officers to other communities on a regular basis is prohibitively expensive. Nunavut Justice is currently attempting to add new positions in Kugluktuk, Igloolik and Rankin Inlet, although key informants say it is unlikely these additions will fully meet the need.

A recent increase in the workload of Community Correction Officers has been a greater number of requests from the Court for pre-sentence reports (PSRs). Preparation of PSRs requires a skill set usually acquired through training. Some key informants noted that the quality of the PSRs being provided generally does not meet the needs of the Court. In fact, the failure to provide PSRs which have been ordered by judges has led to adjournment on several occasions.

In many cases, responsibility for probation falls to social workers who are already heavily burdened and who may not have proper training in the enforcement role. Many counsel felt the use of social workers leads to conflict between the social workers' duties, to inadequate reports for the Court (especially written reports such as PSRs), and to burnout. While this problem is serious, in many communities there is no social worker for months at a time and the RCMP is tasked with probation duties. While the RCMP is intended to have this responsibility on a temporary basis, the time between departure of a social worker and the arrival of a replacement will often stretch to months. It is impossible to expect offenders will receive counseling or other services in this context.

Funding, recruitment and training are challenges facing the Community Correction (Probation) Service. The implications of those challenges are serious, as they have resulted in what many informants in the justice system consider to be an inadequate probation service. The absence of high quality PSRs makes the judges' task of sentencing more difficult. Perhaps more important, the probation orders and conditional sentences that should provide appropriate alternatives to incarceration are seen as largely ineffective due to a lack of supervision in most communities.

Concern for the lack of services goes far beyond the issue of probation and parole. Lack of available residential alcohol treatment programs in the territory, and otherwise limited substance abuse programs, limited mental health services, lack of programming for youth, and limited programs for offenders and victims in the context of domestic violence all narrow the practical power of the Court to respond to the circumstances of the offender in a way that is meaningful for them, for the community and for victims. Moreover, there are real concerns that where terms of probation orders are not well understood and not enforced, there may be a negative impact on the respect for the administration of justice in the territory. Again, as Nunavut officials and other key informants point out, these problems are largely due to a lack of adequate resources.

5.2.6. Use of Preliminary Inquiries

At the time of the creation of the NCJ, there was some concern that the use of preliminary inquiries might create the perception of conflict because the judges were members of a single-level trial Court. None of the lawyers or judges interviewed expressed any concern with the operation of preliminary inquiries in the single-level structure. One lawyer noted that there have been situations where the same judge will sit on both the preliminary inquiry and the trial, but that counsel had always consented in these situations and there had been no problem. From the judicial perspective, the lawyers generally do the required work ahead of time, and preliminary inquiries are used responsibly.

There were numerous comments – for and against – the Criminal Code amendments permitting preliminary inquiries to proceed with less use of witnesses. Most defence counsel viewed these changes as limiting their ability to test the Crown's case, and potentially avoid having a matter set down for trial; the Crown and the judiciary on the whole view the changes as facilitative.

5.2.7. Increased Access to Civil and Family Justice

Key informants were unanimous in acknowledging a substantial expansion in the access to family justice in Nunavut since 1999. They were equally unanimous in citing the continuing lack of access to civil justice (other than family) for most people in the territory. Civil matters seek to resolve non-criminal disputes in areas such as contracts, property ownership, family law, and personal and property damages.

The expansion of family law services represents a considerable investment of resources and energy by the Court and the Nunavut Legal Aid Society – there has been an increase from one half-time staff lawyer practising family law to 3.5 full-time positions. Most individuals in Nunavut are eligible for legal aid for family law, including those who receive services on a contribution basis. Legal aid coverage is particularly important given the high cost of legal representation in light of geography and the absence of a Nunavut-based private bar handling family or civil matters. The increase in services has meant a substantial decrease in the backlog of legal aid applications; it has also meant a considerable increase in the number of cases in the system. Several informants noted that the rise in services has led directly to a sharp increase in demand – demonstrated, for example, in the number of legal aid applications for family law services which rose from 297 in 2003/04 to 667 in 2004/05.[19] Thus, while the number of family law lawyers has increased, each lawyer continues to carry between 120 and 170 files.[20] As one informant said, 'if you build it, they will come' – as more people in communities see friends or relatives who have had positive outcomes from family law proceedings they are encouraged to seek assistance on their own behalf. Community residents confirmed this view and noted there is a sense of relief in the communities that access to family law services has improved.

The increase in family law services in the territory has had a marked impact on Court dockets and the need for Court attention. While noting the strong expressions of support by judges for the development of family law services, most family lawyers expressed the view that family law cases are not a priority for the Court, which is perceived as being geared towards its high-volume, less paper-intensive criminal law responsibilities. Most commented on a perception that family matters will be the first sacrificed if there is time pressure on a circuit. A number of structural factors reinforce that perception – notably, the Nunavut Department of Justice funds travel for witnesses and accused persons in criminal proceedings but there is no provision for similar funding on the civil or family side. This is considered a particular problem in the context of child welfare proceedings (including custody) where the Department of Social Services does not fund travel.

All family lawyers expressed considerable frustration about participating in hearings by telephone, particularly if the Court is in smaller communities which may not have a teleconference capacity (resulting in situations where clients are not able to be present – even by phone – while their matter is discussed.) The lack of teleconference capacity, together with generally poor quality telephone connections in many of the communities, is a source of frustration for all concerned – judges, lawyers and clients – in civil and family cases. When the telephone system is working properly, however, it is being used effectively, especially for Civil Chambers matters. The NCJ has been experimenting with the use of videoconferencing technology through the telehealth system, for example, for monthly Iqaluit dockets on matters not requiring the presence of the accused, and for some Civil Chambers matters. However, access to the telehealth system is limited due to health related needs. The Court is therefore hoping to be able to install a videoconferencing system in the new Courthouse. (While teleconferencing and videoconferencing are potentially useful in civil and family cases, they are of more limited use in substantive criminal cases where the judge and the accused are in different communities. On the other hand, there is real potential for the use of these technologies in show cause hearings.)

The Court received a great deal of credit for its involvement in a unique family mediation program – Inuusirmut Aqqusiuqtiit (Pathfinders) in Iqaluit and Cape Dorset (a pilot in Kugluktuk closed in 2005). Several lawyers and community residents commented on considerable successes realized through the program. This project was initiated by Justice Canada and the Nunavut Department of Justice, and was initially funded with federal government pilot funds[21] though the Nunavut Department of Justice. It was initially managed within the family maintenance program in the Court Services Division. Now that federal funding has ceased, the program's institutional home is being moved out of the NCJ to the Community Justice Division in Nunavut Justice. There are concerns about the program's viability without the hands-on support it has been receiving from the Court, particularly the judiciary. Other initiatives supported by the Court include the development of a parenting after separation program, also considered by key informants and community respondents to be effective.

Family lawyers were universally positive about the benefits of the unified Court structure for streamlining their practice and allowing a strong focus on substantive issues. As well, counsel were positive about the flexibility of the judiciary and Court staff in making every effort to allow issues to proceed on their merits in light of the challenges of northern practice. Most cited this flexibility as one of the greatest strengths of the Court.

On the civil side, there has been less development since 1999. However, it should be noted that the Court now holds Civil Chambers in every community. Respondents in foreclosure actions and in child support guideline and custody access applications, and parties in small claims trial can now attend Court in their own communities. The quality of inter-community telephone service continues to present difficulties for these activities in Chambers as not all parties can attend in person. However, key respondents believe these technical challenges will be overcome.

The Court has supported the development of new made-in-Nunavut Small Claims Rules but the Rules have not yet (as of March 2006) been brought into force. Therefore, it is not possible to assess their impact. Legal aid clinics report high numbers of potential clients with diverse civil legal needs, ranging from concerns about medical malpractice, to slips and falls, to wrongful dismissals, to estate issues. A key informant working in the Kivalliq region, for example, said that over the past few years there have been almost as many requests for information and advice in the area of civil matters as family law in the region.

A civil legal aid pilot project in Iqaluit is perceived to have had only a limited impact in its first two years of operation. There are no private civil lawyers located in Nunavut to handle either litigation-driven matters with a direct impact on the Court, or to carry on a solicitor's practice. Civil lawyers working for Nunavut clients are almost all based in Yellowknife or Ottawa. There are no public alternative dispute resolution mechanisms in the territory which would be particularly useful in communities where disputants are uncomfortable with the formality or adversarialism of the court process. Without small claims rules, the lack of access to civil justice is particularly acute for potential litigants who do not have legal representation. According to most key informants working in the justice system, the situation of unrepresented would-be litigants is extremely challenging in Nunavut, given low levels of education and relatively low levels of knowledge about rights in civil matters.

5.2.8. Increases in Pre-trials, Conferencing and Mediation

Judges engage in settlement conferences, mediations, and very frequently in pre-trial and pre-circuit meetings in both the criminal and civil areas. Some key informant lawyers said case-management (whereby a case is overseen by a judge until its completion) is not the established approach to family and civil matters and that matters are still frequently adjourned sine die.[22] On the other hand, the Court will appoint a judge to case manage any file requested by counsel. From the perspective of the judiciary, there are only a few files currently under case management because there have been few requests.

Mediation involving judges in family cases is not frequently practiced in the territory. Key informant members of the family bar all commented that they work hard to settle their cases without the assistance of the Court. The judiciary shares this view, with the additional point that judges are willing to provide assistance when requested. There appears to be a very high level of collegiality in this bar and a strong commitment to promoting settlement where fair and reasonable, an observation also supported by the judiciary. There have been a few complex cases where judicial conferencing has been successfully employed. Lawyers involved expressed satisfaction with this process but cautioned about the difficulties of conferencing where parties and lawyers are not in the same place. Another concern expressed was the resource and time implications of early judicial involvement in family and civil matters given the heavy travel duties of the Court.

The exception to the lack of formal mediation programming is the family mediation project Inuusirmut Aqqusiuqtiit (Pathfinders) in Iqaluit and Cape Dorset.[23] Beyond Inuusirmut Aqqusiuqtiit, there are no mediation services in the territory to address other civil matters or family matters involving complex property issues. The few lawyers who are members of the private bar do not offer a mediation practice. Informants expressed divergent views on whether the Court should be actively promoting expanded mediation services in the territory.

5.2.9. Increases in Access to Ex Parte and Emergency Relief Hearings

Ex parte and emergency relief hearings refer to instances when a Court order is urgently required (e.g., a restraining order) but a judge is unavailable at that particular local. All lawyers were extremely pleased with the service provided by the Court in the context of emergency access. They praised both the judiciary and the Court staff for their successful efforts to ensure urgent matters are expeditiously addressed. The Court's scheduling, which calls for a judge to be available in Iqaluit at all times, helps facilitate this access as do the provisions of the Nunavut Act which allow judges of the Nunavut Court of Justice to make orders when they are physically outside the territory. Lawyers outside Iqaluit were equally pleased with the access they were able to achieve in having matters heard by telephone.

5.2.10. Cultural Sensitivity

Most key informants, including lawyers and JPs, together with community respondents, were positive in their assessment of the cultural sensitivity of the individuals associated with the Court, particularly the resident judges. That said, several expressed the view that the Court is and will remain a somewhat foreign institution in communities and that there are fundamental questions about the ability of the Court to transform itself to improve cultural 'fit' without compromising its identity as a Court.

Community respondents and practitioners identified a number of practices of the Court as strong evidence of cultural sensitivity. These ranged from the symbolic – the use of sealskin sashes – to substantive issues of law and personnel. The development of an effective interpretation service was also frequently identified as a demonstration of the Court's cultural sensitivity.

Most frequently, the use of elders' panels in sentencing was considered an important way for Court decision making to reflect community norms. Elders' panels which advise on sentencing are active in every community except Iqaluit. Most informants were very positive about the use of elders by the Court, though a few raised questions including whether elders were perceived to be biased in some cases where relatives might be involved, or whether giving elders a judge-like status but not necessarily abiding by their advice was perceived as respectful (e.g., in a situation where the law requires incarceration and elders are advising against it).

The sensitivity of resident judges to cultural and community dynamics and their ability to address these issues in sentencing were noted by both key informants and community respondents. The willingness of the Court to consider and adopt customary law was frequently mentioned in the context of civil and family litigation.

The large number of bilingual Inuit staff working with the Court was cited as a strength, although it was mentioned that until there are more Inuit lawyers and even judges, Inuit representation will be limited. (The success of the Akitsiraq Law School is addressing that need, as the first graduates are now engaged in their articles. Most, if not all, intend to practice in Nunavut.) The Court was also praised for its support, encouragement of and demonstrated respect for other Inuit participants in the process, including courtworkers and Crown Witness Coordinators.

Most lawyers and community respondents believe the Court is sensitive to the Aboriginal identity of those appearing before it. As one lawyer informant noted, the Court has internalized the need to take this factor into account to such an extent that the formal recital of that consideration is usually not needed. The vast majority of counsel – both defence and Crown - stated the Court is very aware of the life history of individuals, their ties to community and culture, and the rapid cultural changes which are affecting Inuit in Nunavut. One defence lawyer noted that the Court has almost always gone further to take Aboriginal identity into account than could ever be expected should an appellate review take place.

5.3. Adequacy of Resource Levels

5.3.1. Courtworkers

The Courtworker Program falls within the mandate of the Nunavut Legal Aid Society and is funded through a cost-shared agreement between the federal Department of Justice and the Nunavut Department of Justice. The Nunavut Legal Services Study, completed in 2002, describes the ideal role of courtworkers in the following way:

Courtworkers are, or should be, a vital link between Nunavut's Inuit communities and the still-transient court system. As a permanent, indigenous presence in communities with knowledge of the legal system, and skills at operating in it, courtworkers play a key role in the representation of accused persons before the court. Often, that role is facilitative: courtworkers connect clients with fly-in lawyers, do background work for submissions, interpret language and cultural context, or may rally community resources for the development of a feasible release plan. Effective lawyer-courtworker teamwork makes defense representation more efficient and more effective. Courtworkers also directly participate in the court system. With support and training, they have effectively represented accused persons in show-cause hearings and trials and run public legal information events, as well as providing invaluable information and assistance to people facing charges.[24]

It is important to note, however, that the above description is idealized, according to key informants for this study. The program continues to be plagued by problems in recruiting and training. As the authors of the Nunavut Legal Services Study (2002) also said:

The courtworker system is supposed to be an essential strength of Legal Services in the territory. In fact, despite the good work of numerous courtworkers, the system appears to be in poor shape. The majority of communities do not have a courtworker; the numbers have gone down dramatically in the last few years. Several observers also commented that courtworkers are being offered steadily lower levels of responsibility. Today, unlike five years ago, it is quite rare for courtworkers to act for clients in trials, or to appear at all in the Nunavut Court of Justice. The capacity of different courtworkers varies, from community to community, depending on training, experience, confidence and support.[25]

While resident courtworkers presently work in 12 communities, the remaining 14 communities do not benefit from the service. Table 6 shows the current number of courtworkers throughout Nunavut, their assigned communities, full or part time status, and residential status.

Table 6: Current Courtworker Assignments by Community[26]
  Number of Courtworkers Full or Part Time Resident in Community
Baker Lake 1 part yes
Cambridge Bay 1 full yes
Cape Dorset 1 part yes
Hall Beach 1 part yes
Iqaluit 1 full yes
Kimmirut 1 part yes
Kugluktuk 1 part yes
Pangnirtung 1 part yes
Pond Inlet 1 part yes
Rankin Inlet 1 full yes
Resolute Bay 1 part yes
Taloyoak 1 part yes

Key informants, including judges and lawyers, agree that there is considerable improvement in the level and ease of preparation before Court in communities where a courtworker is present. When the system is working effectively, courtworkers prepare and represent accused in Justice of the Peace Court, and work with defence counsel and the accused to prepare for NCJ hearings. They can also help to ensure that witnesses appear when scheduled. An obvious strength of courtworkers is their inherent ability to speak Inuktitut or Innuinaqtun, as well as English. However, the lack of trained courtworkers means that JP Court is often not held because of the absence of representation for the accused. It also means that in many communities counsel must take time to prepare for cases that could otherwise be done locally by a courtworker.

The authors of the Nunavut Legal Service Study found that courtworkers face a number of barriers, including "lack of infrastructure and resources (such as offices, telephones and fax machines), an unfair and inadequate compensation system … and a lack of recognition for their work."[27] The report went on to say that "Courtworkers have the potential to meet a number of unmet needs in the justice system in Nunavut, including areas such as family law, youth justice, PLEI, community and alternative justice, and JP Courts."[28] While the Nunavut Legal Aid Society is currently working on improving training for courtworkers, other challenges – infrastructure, resources and compensation (which affects recruitment) – remain. In part, this is a resource management issue which involves not only the Nunavut Legal Aid Society, but also the federal and territorial Departments of Justice in terms of ensuring adequate funding and the achievement of program objectives.

In summary, courtworkers have demonstrated the potential to have a positive impact on Court preparations through their ability to work with the accused and lawyers. Fluency in Inuktitut or Innuinaqtun and English is a valuable asset. However, only 12 of Nunavut's 26 communities are served by courtworkers. The program continues to face barriers with respect to training, compensation and recognition of the contributions of courtworkers.

5.3.2. Justices of the Peace

Currently there are 100 active JPs located throughout Nunavut, compared to 54 in 2001.[29] Most are Inuit or long-term northern residents. JPs do most of the show-cause hearings, some sentencing matters and some scheduling. They also conduct civil marriage ceremonies, attend swearing-in functions in the community, and sign formal documents. The Senior Judge is responsible for the JP Program and is assisted by a Senior Justice of the Peace and a Program Administrator. Resident judges are involved in training JPs, and provide ongoing support over the telephone and on circuit.

From the inception of the NCJ, the role of JPs has been considered an important aspect of the administration of justice in the territory. This is because, as a unified Court at the superior level, the NCJ does not have an equivalent to the pre-1999 Territorial Court. Ideally, JPs would therefore handle many of the summary conviction matters that would previously have been taken by the Territorial Court. However, as indicated below, key informants working in the justice system are concerned that, while the JP Program continues to improve, it is still not meeting expectations.

Key informants in the justice system and community residents acknowledged ongoing efforts by the Court at recruitment and training of JPs, but felt there should be greater effort in this regard. For instance, in some communities there continues to be only one active JP. Several respondents commented on the importance of having at least a few JPs available in each community for two reasons: first, in the event of conflict of interest (not infrequent in small communities); and, second, in the event of the unavailability of a JP. This point was reiterated by JP respondents and the Administrator of the JP Program, who said that ideally there would be three JPs in every community, and that ultimately, every JP would be trained to the highest levels of qualification (Levels 3 and 4).[30] This informant noted that many JPs have other jobs, hunt, travel, or have conflicts of interest in their communities, thus increasing the chances of a JP not being available when needed. It was also pointed out that it would be practical to have two JPs sitting together for certain difficult show-cause and sentencing hearings in order to support each other. This would also provide training and mentoring opportunities for newer JPs.

Lawyer informants were satisfied that the JPs were people who generally bring useful experience and community knowledge to their role. However, they expressed reservations about JPs' understanding of the law in their more complex (Levels 3 and 4) functions; for example, one informant questioned whether a majority of JPs understand the reverse onus rules in show-cause hearings. Lawyers commented that JPs responded differently when it appeared they were having trouble with the law governing particular decisions – some would recuse themselves; others insisted on proceeding. While lawyers were not advocating an expanded role for JPs, they did point to the need for more and better trained JPs in order to avoid the kinds of problems just described.

The challenge of JP recruitment and training depends in large part on the availability of financial resources. The JP Program has faced this issue since the inception of the NCJ. Some training is currently being carried out at all four levels by the JP Administrator with assistance from the judges (e.g., regarding show-cause, sentencing and search warrants). Sessions have recently taken place both in Iqaluit and in the regions. In 2005, special training regarding the Youth Criminal Justice Act (YCJA) was funded by Justice Canada; however, according to the Program Administrator, more is needed. Additional funding would assist the development of the JP Program by covering the travel expenses of JPs in communities to travel to Iqaluit to sit with the more experienced Iqaluit JPs for one week.

More training and experience for community JPs would eventually enable more of them to handle summary conviction matters. In turn, this would help to clear some of the summary conviction dockets currently being handled by NCJ judges. In Rankin Inlet, Cambridge Bay, Arviat and Gjoa Haven, experienced local JPs have been able to hold JP Court in preparation for the NCJ for the last year. In Rankin Inlet, for example, two JPs handle the first day of the criminal docket on the Monday of the week the NCJ arrives. The JPs do sentencing on less serious matters and prepare the docket for the judge, who will start on the Tuesday. The Crown prosecutor flies into Rankin Inlet for the weekend prior to the Court week and works with the JPs on Monday. Defence counsel is usually already present in Rankin Inlet and, if not, will also fly in for the weekend to talk with clients. Together the JPs and the Crown prosecutor ensure that the necessary information is in place and clear the docket in preparation for the judge to begin work on preliminary inquiries and trials on Tuesday. This system is viewed positively by judges and lawyers, both Crown and defence. It is limited, however, by the availability of only two qualified JPs in Rankin Inlet (conflict of interest and other factors affecting availability is a frequent problem). While the process appears to work effectively, the JPs face the additional problem of a lack of administrative support. They could use the assistance of a clerk to help them maintain the records for Court on an ongoing basis, to prepare documents for the NCJ, and to handle administrative matters in follow-up to the Court circuit. Again, while funding is the primary preventative issue, recruitment and training are also important concerns.

Senior JPs in the communities who are qualified at Level 3 or Level 4 (e.g., in Rankin Inlet) often handle Level 3 work, such as show-causes, for other communities by telephone. While this is generally effective, it can present difficulties in three ways. First, Level 3 or Level 4 JPs are not always available when needed. Second, many senior JPs have lived in the communities for many years and frequently find themselves in conflict of interest situations, even when handling show-causes in other communities. Third, the majority of Level 3 and Level 4 JPs are presently non-Inuktitut speakers for whom interpretation services are generally inadequate. As well, it is unclear who is responsible for setting up interpretation services for JPs, especially on telephone cases with other communities. These issues would be solved largely by increased numbers of community-based, Inuktitut-speaking JPs trained at least at Level 3.

In summary, JPs play an essential role in the administration of justice in Nunavut by handling a range of responsibilities on behalf of the Court. In Cambridge Bay, Rankin Inlet, Gjoa Haven and Arviat, experienced JPs are able to hold JP Court the day before the arrival of the NCJ, thereby clearing many matters that would otherwise have to be addressed by the judges. While progress has been made, more JPs are still needed to meet the demands in the communities. JPs also continue to require further training and qualification at higher levels (especially Level 3).

5.3.3. Use of Deputy Judges

Deputy judges, either active or retired, travel to Nunavut from other jurisdictions in order to handle some of the circuit caseloads. In 2005, 16 deputy judges sat in Nunavut and came from various provinces, most notably Ontario and Alberta. The Court Services Division estimates that approximately 23 percent of the Court's sitting weeks are handled by deputy judges. This would be substantially higher if Nunavut judges were assigned "judgement writing weeks" similar to judges in most other jurisdictions (typically eight weeks per year).

While deputy judges are essential for the operation of the NCJ, they can represent a considerable demand on the time of the senior judge and Court staff. Many of the deputy judges working in Nunavut have been doing so for a considerable time and are familiar with the travel demands, the communities, the cultural uniqueness and the logistical challenges in Nunavut. However, others are less familiar with these factors and require intensive briefing. The senior judge has taken on this role, in part because she is responsible for the scheduling of circuits. The senior judge has prepared a manual for use by visiting judges, although it is a relatively brief introduction to presiding in Nunavut.

One of the senior judge's primary concerns is to ensure consistency in the judicial process, a difficult goal in view of the variation in knowledge and style of non-resident judges and the relatively small body of recorded caselaw from the territory. When it was established, the single-level Court aimed to make Court more familiar to the communities by ensuring consistency in the judges traveling on circuit. Success in this regard has been somewhat diminished due to the need for deputy judges. One key informant noted that the presence of deputy judges can lead to different Court dynamics in the communities because the people are unfamiliar with them. Similarly, it was noted that it is sometimes difficult for Nunavut lawyers to work with unfamiliar deputy judges because the lawyers are unsure how to prepare and what to expect in terms of judicial approach.

Every lawyer respondent also expressed the view that communities are better served by Nunavut's resident judges. Factors commonly mentioned included resident judges' stronger understanding of Inuit culture, community expectations, and the background of individuals appearing before the Court (e.g., experiences of trauma, serious disabilities and so forth.). Many of the criminal lawyers expressed the view that deputy judges were more likely to impose custodial sentences, and that the lawyers' decreased ability to assess how a judge would sentence had an effect on the advice counsel would give to clients. In turn, lawyers said this could lead to more reluctance to enter a plea, a greater likelihood of requesting a pre-sentence report, or other measures which could slow down the justice system.

The above points being noted, the resident Nunavut judges and the vast majority of counsel were very positive regarding the overall contribution made by deputy judges.

In summary, deputy judges continue to be an essential part of the NCJ insofar as they handle a substantial number of circuits. At the same time, there are costs to the justice system. This issue speaks to the question of the need for additional resident judges in Nunavut (discussed below).

5.3.4. Availability of Lawyers

There was unanimity among all key informants and community respondents that there are too few defence lawyers practising in Nunavut. There is continuing concern about the limited number of private lawyers and the lack of development of a private bar. In 2005-06, there were 10 resident private lawyers and 33 public sector lawyers in Nunavut.[31] While this is an improvement over previous years, there is a further concern that some counsel are overextended because they handle too many circuits and carry too many files. In turn, this is seen as leading to limited case preparation, Court delays, and ultimately to burnout. In the absence of a substantial private bar, the view was expressed by key informants and community respondents that this speaks to the need for the funding of more legal aid staff positions.

Key informants generally believe there are enough Crown prosecutors, particularly when the Justice Canada office is fully staffed with 13 to 15 lawyers. However, there is some consensus in the legal community that there should be a resident Crown prosecutor outside Iqaluit in Rankin Inlet and/or Cambridge Bay. This might facilitate greater contact between the Crown Prosecution Service and local JPs, Community Justice Committees and legal aid lawyers resident in the Kivalliq and Kitikmeot regions.

Most key informants felt there was room for at least one more family law position to handle the steadily increasing demand for family law services. Counsel manage heavy caseloads (averaging around 100 cases) with limited support staff (more important in the paper-intensive practice of family law) and with all the logistical obstacles typical of practice in the North.

Several lawyers and judges raised the issue of the absence of resident counsel who have a solicitor's practice as an access-to-justice problem.

Several respondents – both Crown prosecutors and defence counsel – mentioned that any assessment of the workload of counsel must take into account not only the actual numbers of cases being handled by individual lawyers, but the generally serious, even traumatic, nature of a high proportion of the offences and the circumstances surrounding them as factors that make the job more difficult and emotionally taxing.

While most informants suggested that the shortage of counsel was not serious enough to put the system into crisis, interviewees raised a number of implications of the shortage. First, there are concerns about burnout, possibly leading to high levels of turnover which would have resource implications and represent a recurring loss of expertise. Second, some key informants advised that the combination of heavy caseloads and the stress associated with the nature of offences and the demands of travel may lead to delays in case processing. Judges have found it necessary to adjourn trials fairly often because defence counsel is not properly prepared. Respondents also acknowledged that preparation by counsel depends in large part on the willingness of the accused to participate in the process, a factor which is largely beyond the control of counsel but which may speak to the need for more defence lawyers and more courtworkers. Third, some respondents noted that heavy caseloads also mean that lawyers are fully consumed with particular cases and are rarely in a position to invest the energy and time to push the boundaries of the law – from challenging child protection legislation to expanding the jurisprudence on sentencing for Aboriginal peoples, for example.

5.3.5. Facilities

All informants and community respondents saw that the move in 2006 to the new Courthouse in Iqaluit to result in a considerable improvement in working conditions, public access and security.

On the other hand, key informants and community respondents unanimously acknowledged shortcomings in community facilities. In the smaller communities, Court is typically held in the community hall. The issue most commonly raised by informants working in the justice system was the lack of facilities for meeting with clients – several people commented that lawyer-client interviews were frequently conducted in bathrooms or across the room from opposing counsel. There were concerns raised about victim safety in some cases, and about protection for child witnesses (the Court does not always travel with a screen).

The response of counsel and judiciary to these shortcomings varied – the majority of respondents were largely resigned to the conditions, mostly on the basis that the conditions they faced were the best communities had to offer. A few were concerned that the level of facilities represented a problem for the perception of the administration of justice or for witnesses or others affected by the operations of the Court.

Lawyers outside Iqaluit, and the judiciary, want to see a second, more modest permanent Courthouse in the Kitikmeot or Kivalliq regions. It was felt that the permanent presence of a Courthouse would considerably enhance service in those regions. Such a decision is the responsibility of the Government of Nunavut.

The most common recurring concern was the telephone connections with communities, as noted earlier in this report. Lawyer informants are concerned about situations where poor phone quality makes it impossible to proceed, or required them to proceed relying on the integrity of opposing counsel because they could barely hear what is going on; or situations where clients rights are being affected but cannot attend by phone because of a lack of conferencing capacity. This issue is considerably more serious in Nunavut than it would be elsewhere because of the vast distances and the relatively low levels of telecommunications capacity in the smaller communities, i.e., the demand is greater and the capacity is lower than in other jurisdictions. According to one informant, relying on anything digitally based outside Iqaluit is a high-risk proposition. The Court has experimented with bringing phones (both analogue and digital) with them on circuit, which proved to be a considerable staff burden. One suggestion was permanent Court phones in every community, similar to the fax machines that were put into communities several years ago. However, while that option might address the need for a dedicated telephone, it would not solve the problem of the generally poor telecommunications capacity in the communities.

5.4. Unintended Impacts

5.4.1. The Youth Criminal Justice Act

Relatively few informants working in the justice system had strong views on the impact of the Youth Criminal Justice Act (YCJA), though most noted a decrease in the number of custodial sentences. In 2006, approximately half the number of offenders are serving institutional sentences relative to three years ago (8 vs. 15) with greater use of custodial homes and other community alternatives. The new provisions – e.g., the use of deferred custody – are perceived by key informants as increasing options for the judiciary. Crown prosecutors noted a marked increase in the number of youth being diverted by police before charges are laid, and said they were more likely to urge police to divert as part of their charge review process.

That said, several informants registered serious concern about the prospects for youth at high risk in Nunavut – either because of the high school drop-out rate of 75 percent, conditions such as Fetal Alcohol Spectrum Disorder, or lack of recreational or employment opportunities. In this context, there is concern that the YCJA and the Court will not be able to effectively address the needs of this population nor work preventatively. The Court has identified a need for greater coordination of service and planning for young offenders, including identification of designated individuals within Crown, defence and social service agencies. There have not been resources to develop this type of coordination to date.

There are 11 individuals designated as Youth Court judges in Nunavut. Of these, three are NCJ judges and eight are experienced JPs (Level 4). As noted above, there has been some training of JPs regarding the YCJA, although not enough to increase the eligibility of JPs as Youth Court judges. One key informant involved with the JP Program advised that in view of the relatively small number of JPs able to handle youth cases, the impact of the YCJA on JP Court has been minimal. Youth cases tend to be heard in the NCJ when they are of a serious nature. In most other cases they are diverted to Community Justice Committees either by the police (pre-charge) or Crown prosecutors (post-charge).[32]

The Court has taken the initiative to involve youth panels in the criminal justice system in a number of communities. Thus far, youth panels have been established and are active in Iqaluit, Rankin Inlet, Arviat, Cambridge Bay and Kugluktuk. Selected youth have an opportunity to speak to offenders and the Court about offences and sentencing after the sentencing submissions have been made and the panel has had the opportunity to deliberate in private. The cases concerned are generally youth matters, are not of a seriously violent nature, and do not involve sexual assault. This initiative is seen to reinforce the purposes of sentencing for offenders and to educate young people about the court process.

5.5. Barriers/Challenges or Gaps to be Addressed

5.5.1. Community Understanding of the Legal System in Nunavut

Most key informants felt that Nunavummiut had relatively limited understanding of the Court system and their rights in it. Several cited low levels of knowledge about fundamental issues such as the role of Crown and defence in an adversarial system; judges' responsibility to apply the law, particularly case law; or differences between family and criminal law in the context of domestic violence.

Some respondents commented, however, that many Nunavummiut have a much stronger understanding of the criminal justice system than the general public in the south. They pointed to the presence of the Court in communities, and high levels of attendance when the Court is sitting. They also pointed out that large numbers of Nunavummiut have had direct experience with the Court system, as accused persons or as victims or close family and friends of people who are before the Courts. In their view, many if not most Nunavummiut have a strong grasp on Court procedures. A few respondents noted there is a considerable generational difference – younger people tend to be more aware of their rights and the working of the system.

There was considerable concern that people have extremely low levels of knowledge about their rights in the context of family law and that most people in communities had little idea about civil remedies that may be available to them. On the other hand, it was noted by some key informants that this situation may be changing as more family law lawyers begin practising in Nunavut and as the message spreads in the communities.

A small number of key informants commented on the general lack of public understanding of the Court as opposed to government, government agencies and/or Inuit organizations with responsibilities under the land claim. It was suggested that there is not a strong understanding in the general population about the distinction between the judicial and executive functions. Accordingly, many people may see the Court as just another part of the government rather than viewing it as a fully independent check on governmental authority. In this regard, it is the ongoing responsibility of the senior judge to monitor (from the perspective of the Court) the relationship between the Court and the government to ensure judicial independence is respected. This is seen as important for maintaining the credibility of the Court in the eyes of Nunavummiut.

Community respondents generally acknowledged the lack of understanding of the functioning of the justice system, particularly with regard to family law and civil matters, by Nunavummiut. Community respondents frequently expressed the view that the full-time presence of a lawyer, a JP or a courtworker would help in this regard, particularly if that person was willing to engage in educating community members about the law.

5.5.2. Public Legal Education and Information

Most informants agreed that there is relatively little visible PLEI work underway in the territory. However, there were very low levels of consensus about the need for more PLEI among lawyers. Community residents see a real need for PLEI and many suggested lawyers or courtworkers should spend time in the communities for this purpose.

Under Nunavut's Legal Services Act and federal-territorial funding agreements, the Nunavut Legal Aid Society has primary responsibility for delivery of PLEI in the territory. Several key informants in the justice system discussed the possibility that well-informed Community Justice Committees could have an important PLEI role; most believe, however, that current Committee members do not have sufficient training or knowledge to play this role in communities today. The view of Community Justice Committees, on the other hand, is less clear on this point. Members of well-established Community Justice Committees indicated that, as a committee, they would be able to engage in PLEI. However, the same Committee members also said that in most cases they do not have the time to dedicate to this kind of activity in addition to the work they already do in handling diverted cases.

Slightly more than half the key informants indicated there is a serious shortfall in PLEI and that considerably more efforts are required to ensure that people have timely access to information about their rights, their choice of language, with respect to criminal, civil and family law. Several people noted the importance of doing more than providing a statement about legal rights and responsibilities, but rather that there is a real need for information and services that allows people to implement those rights. A toll-free family law information line operated by the Nunavut Legal Aid Society was cited as a useful example by both key informants and community respondents. Several community members expressed a desire that lawyers on circuit take time to hold question-and-answer legal information meetings while they are in communities.

The NCJ has been directly involved in a number of outstanding initiatives promoting public legal education among youth. The Court has played a lead role in the development of youth panels in several communities, as noted above. The panels allow young people to participate in youth matters and to provide input on sentencing. The Judges have also coordinated a high-school level law course in Iqaluit over the past several years.

It should also be noted that the chief judge has been a key supporter in the development and success of the Akitsiraq Law School Program training Inuit lawyers. While other bodies, including Nunavut Justice and Justice Canada, were also active supporters of the program, the leadership of the Court was essential to the success of this initiative.

5.5.3. Community Justice Committees

Community Justice Committees play an important role in the Nunavut justice system.[33] Committees operate in every community, although there is variation in the capacity of the Committees to handle cases. Cases are diverted on either a pre-charge basis by the RCMP or a post-charge basis by Crown prosecutors. Relatively minor property offences by youth are most frequently referred, although some Committees also handle more serious offences committed by adults. In addition to capacity issues, there appears to be variation in the frequency and type of pre-charge diversions according to the individual views of local RCMP members.[34] Crown prosecutors appear to be more consistent in their approach to diverting cases and generally follow the guidelines set out in their Prosecutors' Handbook (although there is some frustration – see below). Regardless of these variations, it was almost unanimously agreed by key informants working in the justice system that Community Justice Committees are an essential part of the justice system in Nunavut. Community respondents and members of Community Justice Committees agree with this view.

Key informants see the Court as supportive of community justice initiatives and Community Justice Committees. Few lawyers, however, were satisfied that the Committees were as effectively involved as they might be in cases and issues where they could potentially make a useful contribution. Most key informants noted variation between communities. Several noted that Committees were very weak in some communities – having trouble getting committee members to attend meetings, trouble recruiting and retaining members, and/or a serious unwillingness to get involved in a wide array of cases. Low salaries and a lack of support and training for the Committees' Coordinators were identified as factors that may make it more difficult to help Committees run well. The roots of these problems were perceived to lie in limited funding and support from the Government of Nunavut as well as burn-out among committed community members. In some communities, lawyers see active Committees playing a wide range of roles and are seeking more responsibility.

Lawyers had relatively little to say about the appropriate role for the Community Justice Committees. Most informants talked about the Committees' handling of referrals, and about their potential to provide input on sentencing and to play a role in supervising community sentences (e.g., monitoring offenders' apologies to victims, and setting up and supervising community service work). One respondent noted that – over time – the Community Justice Committees should be key actors in getting communities involved in the justice process and building a sense of community responsibility for addressing problems that lead to Court involvement. Another noted that Committees have the ability to facilitate a more meaningful way of resolving issues affecting communities, citing a recent wave of youth vandalism as an issue requiring more community involvement. A few key informants talked of the Community Justice Committees as a cultural bridge between a largely foreign Court and the communities in which they work. Two informants speculated about the potential of Community Justice Committees getting involved in civil and/or family dispute resolution, another about their potential PLEI role.

The judiciary expressed the view that Community Justice Committees should receive more referrals from police and Crown, assuming they received the support to develop the required capacity. It was also noted that Committees have the potential to actively and effectively engage in family and civil mediation, especially since the Committees' approach to mediation may be more appropriate to Inuit culture than standard southern approaches. Community Justice Committee members on the whole agree with these views, although they stress that they would want some training in mediation techniques. They also note the ongoing problem facing many Committees in terms of the lack of effective administrative support.[35]

The key liaison role for the Committees lies with the Crown, not the Court. It is currently Crown practice to try to meet with the Committees on every circuit to discuss possible post-charge diversions and follow-up on previous diversions. Crown prosecutors generally believe they are restricted by federal guidelines in the types of offences that can be referred to committees, even where there is capacity and will to take on more challenging cases on the part of Committees. With one exception, defence counsel have not had significant involvement with community justice and restorative work.

Opinions of key informants varied on whether the judges should be doing more to meet directly with Community Justice Committees. Some informants stated that routine meetings outside the Court would be a useful step in helping with capacity building for the Committees. The same respondents said that regular judicial-Committee communications would assist judges in understanding the strengths and weaknesses of individual committees. A question was submitted about the appropriateness or usefulness of regular meetings in that they could raise unrealistic expectations, given that judges have limited ability to promote a restorative process and diversion. The point in this regard is that community-based justice is a community responsibility, not a responsibility of the Court.

5.5.4. Interpretation Services

There are few jurisdictions in Canada where interpretation is so prevalent and none where an Aboriginal language has such a presence within the Court system. The Court routinely hears testimony in Inuktitut and Innuinaqtun. Frequently, there are unilingual Inuktitut-speaking jurors and the entire proceedings will be interpreted. The Court makes use of consecutive interpretation which allows – should it be necessary – comparison between English and Inuktitut versions. The Court sponsors an annual eight-week Legal Interpreting course (originally offered through Nunavut Arctic College but now held in-house) to train interpreters from across the territory. Although there have been one or two cases where a hearing has been unable to proceed because there is no interpreter, key informants and community respondents say that the Court has generally excelled at ensuring the presence of a trained interpreter whenever needed. Experienced northern counsel and judges routinely take steps to facilitate the process of interpretation, including providing interpreters with copies of jury charges or submissions in advance.

Some English-speaking counsel continued to express reservations about the consistent quality of interpretation. These informants are concerned that some complex legal concepts may not be properly translated in some instances or that testimony may not be fully and accurately interpreted. They expressed particular concern about interpretation quality in the western Arctic where differences in dialect may present challenges for interpreters traveling with the Court. A few counsel said they would advise their clients or witnesses to use English based on what they had observed with interpreters to date, even if they were less proficient in the language, to avoid possible interpretation pitfalls and uncertainty.

There was some concern that there does not appear to be a way to address interpretation problems as they occur. However, the first group of bilingual (Inuktitut-English) lawyers is now entering the profession and may be in a position to challenge difficulties with interpretation. Community respondents are generally pleased with the interpretation service provided by the Court.

A few counsel particularly mentioned the helpfulness of Court interpreters in facilitating client communication outside of the formality of Court proceedings.

5.6. Summary: The Administration of Justice

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 acceptable 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 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 this overcrowded facility 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 justice system by working with the accused and defence counsel, and by doing preparatory work prior to the arrival of the NCJ. Similarly, more JPs are needed, especially more trained and experienced at least at Level 3. In communities where this level of JP exists, 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 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 YCJA, the absence of community programs and the weakness of probation services present serious difficulties for the Court.

Access to family law services has improved 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. While the judges hold Civil Chambers in every community, the poor quality of Nunavut's telephone service often presents difficulties for the parties who are not present. Key informants believe that civil matter needs will increase as business grows and as people become more aware of the possibilities in civil matters.

Judges engage in settlement conferences, mediations, and very frequently, in pre-trial and pre-circuit meetings in both the criminal and civil areas. There has been relatively little case management involving judges as there have been few requests from counsel. Mediation in family cases has involved judges when needed; however, the family law lawyers in Nunavut are effective at reaching agreement on their own and rarely require judicial assistance except occasionally in very complex cases. The Court-initiated family mediation project, Inuusirmut Aqqusiuqtiit, 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 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 could also lead to burnout and turnover among defence counsel, as 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 rights in the justice 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 PLEI programs. One exception 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 either 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 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 situations, 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.