The Nunavut Court of Justice - Formative Evaluation

8. Conclusions

8. Conclusions

8.1. Resources

Working relations among the various components of the system are effective. However, a shortage of defence counsel for criminal matters (private bar and legal aid) negatively affects the entire criminal justice process. Defence counsel carry unreasonably high caseloads (typically over 100 cases at any given time) and this often affects their ability to dedicate adequate preparation time to individual cases, including consultations with clients. There is a shortage of criminal lawyers. In particularly, Inuit lawyers will contribute positively – the Akitsiraq Law School graduates are expected to meet this need, at least in part.

Although the recent addition of family lawyers to the legal aid staff is a positive step, there continues to be an absence of lawyers doing other civil work in Nunavut. Civil cases are currently handled by lawyers primarily from Ottawa and Yellowknife. As Nunavut continues to develop and more businesses locate in the territory, the presence of resident civil lawyers will be increasingly important.

While the JP Program is working well in some communities to help facilitate the NCJ circuit courts (e.g., Iqaluit, Rankin Inlet, Cambridge Bay), a shortage of experienced JPs in other communities inhibits the full and effective operation of the Court. More could be done in JP Court if there were more JPs and if they were trained and certified at higher levels. A more active JP Program would help to reduce the time required to process cases through the Court.

Fewer than 50 percent of communities are served by a courtworker, and only three communities have a full-time courtworker. There is a common belief among all key informants, shared by community members, that a strong Courtworker Program would substantially increase the efficiency and effectiveness of all aspects of the criminal justice system. This responsibility rests primarily with the Nunavut Legal Services Society, under whose mandate the Courtworker Program operates. More locally based courtworkers are required to work with accused and defence counsel, and to prepare for the arrival of circuit Court. The view of respondents – practitioners and community members – is that additional courtworkers would improve case processing times and would make the court process less onerous for the accused and others involved in the case.

The workload for judges, which includes a substantial amount of challenging travel, is onerous. There continues to be a gap in terms of the number and frequency of circuits, even with the help of deputy judges. The clear preference of justice system personnel and community respondents is to have at least one more resident judge to focus on circuit work. There are good reasons for the hiring of a fourth judge, including the fact that it would result in better service for communities.

Court meets on a regular basis in Iqaluit. In most communities, Court sittings are less frequent and normally take place every two months, except in the smaller communities (e.g., Resolute Bay) where Court might only sit every six months. Court sits for a maximum of three days in any community, and often for only one or two days in smaller communities. As a result, dockets are lengthy and can rarely be dealt with in one sitting.

There is a clear need for more PLEI throughout Nunavut, particularly regarding family and civil matters. Individuals in the public should be more aware of their rights, legal options, and ways to initiate a legal action. This will be increasingly important as the population of Nunavut grows, and as business transactions increase. There also continues to be a fundamental lack of understanding of the criminal justice system by community residents, a fact which practitioners and community members agree should be addressed. While the judges engage in extra-curricular educational activities (e.g., in the high school), there continues to be a lack of understanding of the justice system and court operations (particularly regarding civil matters) by many Nunavummiut. This is primarily the responsibility of the Nunavut Legal Aid Society.

Although not the responsibility of the NCJ, there is a lack of Community Correction Officers (Probation Officers) for a variety of reasons (see below), including support for the Court by providing pre-sentence reports when requested by judges.

Community-based alternatives are lacking throughout Nunavut. This limits the options available to the Court in sentencing. Some respondents believe that the lack of community-based alternatives ultimately detract from the stature of the Court because its sentencing orders (e.g., probation, conditional sentences) are not monitored and not followed. In communities without the services of a resident Community Correction Officer (Probation Officer), the local social worker is often asked to take responsibility for the Court-ordered conditions; however, this is not within the mandate or training of social workers and presents them with potential professional conflicts (i.e., serving both offender and victim) and untenable workloads.

The YCJA has not been well implemented in Nunavut due to the absence of community-based programming needed for youth. The NCJ is obliged to release young offenders to their communities in the knowledge that the programs to assist in their care and improvement do not exist. Community Justice Committees attempt to handle youth cases but do not have the resources to counsel youth or monitor them in restitutional activities.

As well as additional human resources required in existing programs, entirely new programming is needed. This would involve substantial investments in hiring and training of new staff by various Government of Nunavut departments (e.g., Health and Social Services, and Justice) and the federal government. Substance abuse and anger management treatment programs are required immediately. Similarly, counselling and support programs for young offenders and mentally ill offenders are needed. Without these kinds of programs, the NCJ will remain limited in its ability to use community-based alternatives in a meaningful way. As well, most respondents believe that crime and family problems will continue to rise in Nunavut as long as effective community-based programming, including crime prevention programs for youth, is not in place.

Adjournments can be a source of stress for individuals and families, particularly in domestic violence cases in communities. In these cases, couples often reconcile long before the Court arrives to hear the case. If the case is adjourned, it is not heard for an additional two months. This can be stressful for the individuals concerned. One solution to delays is to increase the number of local JPs trained to Level 3 so that JP Court can be held frequently to deal with relatively straightforward cases. More frequent JP Court would free up the NCJ docket and more likely enable judges to get through entire dockets in one sitting. JP Court has recently been scheduled for the day before NCJ sitting in certain communities, a fact which appears to be freeing up the NCJ and reducing processing time.

The personal safety of judges and Court staff continues to be a concern in Iqaluit, even with the move to the new Courthouse. The Sheriff's Office is responsible for the general security of the Courthouse, as well as for courtroom security in Iqaluit and in the communities (during jury trials), a function for which the Sheriff's Office staff is not adequately trained. Personal safety of the Court staff and adequate training for employees in the Sheriff's Office is a concern.

Fiscal resources are required to provide improved storage facilities for archived files. While this is currently the responsibility of the Nunavut Department of Community and Government Services, the need is clear.

Interpretation services have improved greatly in the last few years. However, the NCJ must constantly be ready to recruit and train new interpreters as needed.

8.2. Effectiveness of Management Systems and Information Management Strategy

Supervisory staff members are responsible for monitoring the work of Court office staff, as well as for training and mentoring staff. The pressure for constant monitoring, training and mentoring has lessened in the last one to two years as staff members gain more expertise and as staff retention increases. However, these activities continue to be a major time requirement for supervisory staff due to staff turnover, a fact which is challenging in view of the Court office workload.

Court staff, together with a programmer, continues to develop the computerized file management systems. The computerized system for criminal files was started in 2001, although records have been kept accurately and reliably since 2002. The computerized family and civil systems have been operating since 2003 (effectively since 2004). Prior to those years, all files were kept manually. The computerized system appears to be working well, although it is not as flexible for users as desired. Work is continuing on the system.

Court staff members are being trained in the use of the computerized systems. However, challenges exist in terms of the ongoing training required as the systems continue to be developed. This is due to the heavy workload in the Court office and the shortage of training time for management and staff.

Security of information has been increased since the inception of the computerized case file system. However, files prior to the current year are stored in the Government of Nunavut records storage facility and appear to be less than ideally secure. Security of information/court records is a concern.

8.3. Impacts of the NCJ – Intended and Unintended

Delays and case processing times have been reduced and the NCJ is continuing its efforts to further improve the situation. Several strategies were identified in this report (e.g., holding JP Court the day prior to the arrival of the NCJ). However, there remain a number of steps to be taken, most of which require increased levels of fiscal and human resources. In particular, at least one more resident judge, more qualified JPs, more trained courtworkers and more legal aid lawyers are needed.

The JP program improves yearly with respect to the numbers of JPs in the communities and their level of training. However, there continues to be a serious shortage. At least three JPs would ideally be located in every community, and all three would be qualified at least at Level 3. This would ensure (a) that a non-conflicted JP was always available in every community, and (b) that JP Court could be held to help manage the dockets currently facing the NCJ judges.

Community members are involved in implementing the justice system insofar as Community Justice Committees are active in most communities. As well, in most communities judges use the services of elders who assist with advice in sentencing and who speak to the offender. Similarly, judges use youth panels to advise in sentencing in certain kinds of cases (i.e., mostly youth cases; no sexual assault or serious assault cases).

Post-charge diversions are being handled effectively by Community Justice Committees in most communities, although further training is needed in others. In certain communities that already have a high level of capacity to handle referrals, increases in post-charge diversions are warranted. Most Committees require further support from Government with respect to facilities, training for mediation, and adequately paid and trained administrative coordinators.

There is consensus that the NCJ provides services in a culturally relevant manner in the communities. Examples of the way in which the Court achieves this include good quality interpretation, elders' panels, youth panels, and post-charge diversions to Community Justice Committees. The qualification on this point is provided by some respondents who believe that the Canadian justice system continues to be unfamiliar to and incompatible with Inuit culture.

Respondents agree that the principles underlying Gladue are applied consistently in Nunavut. While judges may not be explicit in their questioning or their addresses to the accused or juries, there is no doubt that the Aboriginal background of the accused is taken into account.

The application of a range of culturally appropriate and community-oriented sentencing alternatives continues to be a challenge for the Court. The principles of restorative justice are adhered to by the NCJ to the extent possible in light of scarce community-based resources. Community Justice Committees are generally active and receive post-charge diversions from the Court through the Crown prosecutors. However, community justice is limited by the lack of community-based mediation, counselling and treatment programs, as well as by a lack of alternatives to incarceration due to the shortage of community-based Community Corrections Officers.

Deputy judges make significant contributions to the administration of justice in Nunavut. However, it appears that deputy judges require a substantial time investment by Court staff and the senior judge. Consensus among respondents suggests that at least one more resident judge would ease these demands and would generally lead to a more effective delivery of justice.

The NCJ is meeting its goal of increasing access to justice, including civil and family law, throughout Nunavut.

8.4. Efficiency and Accessibility of the NCJ Compared to the Two-Level Court

To address this question, it is informative to return to the general objectives for the new Court as viewed by the federal and territorial Departments of Justice and the Nunavut judiciary (page 8, above).

It was generally agreed among key informants and community members that both types of Court 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 Nunavut Court of Justice 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.