Inuit Women and the Nunavut Justice System

Appendix 2: Overview of Issues and Concerns of Inuit Women (continued)

Margo Nightingale, "Just Us" and Aboriginal Women, 1994

(a) Court Structure

(i) Cultural-bias

"recognition of culture in the courts has led to the portrayal of Inuit culture as one in which it is acceptable to physically and sexually assault women; it is acceptable to sexually abuse children…Pauktuutit has rejected these as myths about Inuit culture and has expended a great deal of effort trying to eliminate these and end their application within the justice system (p.17);

…cultural misunderstanding and the acceptance of offenders' misrepresentations of cultural defences are often only heightened by the inadequate training of those within the justice system on the dynamics of family violence and sexual abuse. (p. 17)

(ii) Jury Trials in Sexual Assaults

Another emerging issues is the appropriateness of jury trials against Aboriginal offenders. Recently legal arguments challenging the jury selection process have been made, arguing that an Aboriginal offender's rights are denied where Aboriginal people are not available or selected for jury duty. Controversy over the effectiveness of the jury system in Pond Inlet which relies primarily upon Inuk [[sic] jurors was raised in April 1993. It was noted that since 1983, no offender choosing a jury trial was convicted of sexual assault.(p. 18)

…In 1992, one offender came close to a conviction in the case of R. v. Tongak where the jury presented a note to the judge stating that they believed the victim, but though there was consent and "if he ever does this again he'll be in trouble."(p. 18)

A counsellor had been working wit the victims in this case and in the community more generally prior to this trial. The worker is no longer in Pond Inlet and her efforts at providing support and education, which likely had a significant role in ensuring a conviction, are now absent.(p. 18)

(b) Justices of the Peace

Many also fear that the continued reliance upon individuals with no training in the dynamics of family violence and sexual abuse may be incapable of providing workable solutions which will eliminate the violence and reform the offender. (p.23)

(c) Community -Based Justice

Many also fear that a "traditional" responses to address the virtual epidemic of physical and sexual violence is likely to fail and will allow for recidivism. Commenting on the inclusion of violent offenders in a diversion program in Iqaluit, one resident said: "Violence against women should not be in this program because such violence is a very big offence against women. The offender might do the same crime over and over again in the future." (p.23)

Training

Many also fear that the continued reliance upon individuals with no training in the dynamics of family violence and sexual abuse may be incapable of providing workable solutions which will eliminate the violence and reform the offender. (p.23)

Elders or Community Group - counselling

Women are also concerned that continue focus upon the offender does not ensure that panel members can or will address victims' needs or that their safety and well-being will be provided. There is also a fear that emphasis on sporadic, unstructured family counselling, rather than individual or group counselling specific to abusers and victims will not change the violent or abusive behaviour. (p. 24)

People who have returned to a practice of traditional ways have raised concerns about the potential to place elders in inappropriate positions by, for example, requiring them to judge others where their traditional role was always non-judgmental. (p.25)

…Elder involvement in these projects is too often exploitative as they are expected to devote themselves to these projects often with sufficient or any payment for their services or time. (p.25)

Some question the utility of elder involvement in project where the respect for Elders in the community is eroded… (p. 25)

Some Aboriginal people also suggest that Elders can be targets of financial, physical, sexual or emotional abuse from their family or community, something which contradicts traditional values. (p. 25)

There has also been the identification of a problem inherent in conflicting values between some Elders and younger women, particularly regarding wife abuse and sexual offences. Some Inuit elders for example, believe the wife abuse is "not a serious crime or is the result of a woman's lack of obedience to her husband or non-acceptance of her traditional role. (p.26)

Several women have also said that some "elders use traditional healing methods as opportunities to physically or sexually abuse women and children and then when someone discloses abuse involving an Elder, the victim/survivor is most likely to be shunned and harassed. Aboriginal women have been reluctant to identify these problems fearing this will diminish respect of their true Elders and healers, yet they feel that the abuse of their positions of trust must be stopped. (p. 26)

Diversion

Other problems arise when diversion projects operate without sufficient community awareness and support. Allegations made that he project was not community-based, did not reflect the communities values and re-victimized women. Many of the elders involved in the project came from outside of the community and were all from the same extended family. (p. 24)

Margo Nightingale, GNWT Department of Justice, Nunavut Single-Level Trial Court (SLTC) , December, 1998

(a) Justices of the Peace

The legislated jurisdiction of JPs will remain unchanged under the SLTC structure. However, there have been suggestions that the roles of JPs could expand. For example, JPs could become responsible for the conduct of preliminary inquiries and for conducting trials in Youth Court. It should be pointed out that the jurisdiction to conduct preliminary inquiries is already vested in JPs under Section 2 of the Criminal Code, however JPs in NWT have not used it. (page 1)

The government’s stated goal is to increase the role of Inuit in the justice system. As such, designating lawyers as JPs – none of whom are Inuk – would not be consistent with this goal. Nor is it practical to think that lawyers would take the salary decrease to become JPs. (page 4)

Individuals who appear as representatives of the Crown and the accused are not usually lawyers, but RCMP officers and court workers. They are not competent to conduct complicated court proceedings. Without receiving intensive training in criminal law, evidence and advocacy, neither would be able to competently represent their interests in a preliminary inquiry. (page 5)

Margo Nightingale, “Judicial Attitudes and Differential Treatment: Native Women in Sexual Assault Cases,” Ottawa Law Review, Vol. 23 : 1, 1991, 71

(a) Court Structure

"Another indication that judges misunderstand the nature of sexual assault is by placing blame for the assault on the victim. … A more prevalent form of victim-blaming often results where the complainant was intoxicated at the time of the assault." (p.87)

The cases involving "passed out" victims then only constitute approximately one-seventh of the sexual assault cases studied. These numbers clearly contradict the comments of Judge Bourassa that the "majority of rapes in the Northwest Territories occur when the women is drunk and passed out." Regardless of whether or not the numbers refute his assertion, it is unacceptable to suggest that because a woman is asleep or passed out, the violation experiences is less serious or non-existent. (pp. 88-89)

Establishing sentencing guidelines may be helpful to eliminate disparities in sentences. However, guidelines are only truly beneficial when judges are able to understand the nature of the offence to which they apply. For guidelines to be applied appropriately, it is also necessary that judges adopt the rationale without the influence of personal attitudes or biases. (p. 89)

Amid Native requests for self-determination and for the recognition of Native justice systems, two judicial decisions attempting to give Inuit communities more control have been subject to a great deal of controversy. Judicial sensitivity to Native values, community interests and community treatment programs is essential and has a number of advantages. Such an approach affords great respect to Native peoples and their values. Reference to community standards is also preferable to subordinating a community's views regarding a federally based sentencing policy "particularly where the application of that policy will have the effect of undermining the Native community’s cohesion and ability to resolve its own problems." (Jackson, ) However, identifying an community’s values, interests or relevant cultural differences is problematic. The tow Northwest Territories cases R. v. Nagitarvikand R. v. Curley, Nagmalik and Issigaitok, outline some of the difficulties that arise.

While the trial decision shows a greater awareness of cultural diversity, neither it nor the appeal decision is acceptable as both fail to address, or consider the effect of the assault on the victim. (pp. 92-93)

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