Inuit Women and the Nunavut Justice System

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

Pauktuutit, Inuit Women and the Administration of Justice, Pauktuutit, Phase II: Project Reports -Progress Report #2 (January 1, 1995 - March 31, 1995)

(a) Court Structure

Transfer of Prosecutorial Function to GNWT

We met separately in Yellowknife with Deputy Minister of GNWT and with federal Director of Public Prosecutions for the NWT Region to discuss the GNWT proposal to have the prosecutorial function transferred from the federal level to the territorial level. The concerns raised by Pauktuutit were outlined in a letter sent to Minister of Justice Allen Rock.

Inuit Batterer's Counselling Program

While in Rankin Inlet in December 1994 conducting our Victims Advocacy /Victims Services Workshop…, the Justice Project coordinator was approached by the Sappujjijit Friendship Centre in Rankin Inlet to provide information regarding male battering treatment counselling. Pursuant to earlier discussions with the Solicitor General[105], Pauktuutit and Sappujjijit put together a proposal for a 3-year pilot project for a male abuser counselling program with the Sappujjijit Friendship Centre as the agency delivering the program

The proposal was completed and submitted to the Aboriginal Offenders in March. A copy of the proposal is attached to this report and identified as "Appendix #2".

In addition to this pilot project, the justice project prepared a presentation for the National Symposium on Aboriginal Offenders held in Prince Albert in February. A copy of the presentation given by Martha Flaherty is attached to this report and identified as "Appendix #3".

(b) Community-Based Justice

Community Justice

The Justice Project continues to receive calls from women in the NWT raising concerns or sharing personal experiences with community justice matters. Often the calls are from women who are victims of abuse and are seeking assistance and support, as they have very little in their community, to address the abuse and deal with the criminal justice system. Attached to this report and identified as "Appendix #5" is a copy of letter sent to a GNWT community justice specialist which further illustrates the problem. To date we have not received a response to this letter.

One specific community justice matter involving the Pangnirtung's Men's Group was the subject of discussion in the presentation made by Pauktuutit before the Standing Committee on Justice and Legal Affairs regarding Bill C-41. It appears there is very little commitment on the part of the GNWT to set standards or guidelines to ensure community justice initiatives in Nunavut do not further victimize or harm Inuit women who are victims of violence. For further details please refer to the copy of Pauktuutit's Bill C-41 presentation to the Standing Committee which is attached to this report and identified as "Appendix #6".

Pauktuutit, Inuit Women and the Administration of Justice, Phase II: Project Reports -Progress Report #2 (January 1, 1995 - March 31, 1995) -Appendix #5 -Letter from Justice Project Coordinator to Baffin Community Justice Specialist, February 16, 1995

(a) Community-Based Justice

…writing to you about some information we received since our workshop in Rankin Inlet regarding the community justice committee's activities in Sanikiluaq.

As you are aware, Pauktuutit's Justice Project has focused on the need to ensure community-based justice reforms be accountable and acceptable to all members of the community. Flowing from this, we have been advocating for the use of negotiated guidelines and standards that would be used to guide communities in the way in which the establish their committees, who can participate and what types of matters they can undertake.

We have increasingly become more concerned with the operations of the committee in Sanikiluaq. I was informed that you have the responsibility for community-based justice in Sanikiluaq and therefore have directed this matter to you as we understood from Kristina's presentation in Rankin Inlet, the concerns we are raising would be matters you are addressing as the community justice specialist.

We would very much like to know what is being done to rectify the problems with this committee- its membership; the type of cases it is involved with; the lack of training provided, the lack of any procedures regarding referrals to the committee.

We would like to know how this committee was established -was it under your program. We understand that this committee came to be established by Judge Brown. We would like to know if the Department plans to establish some type of procedural guidelines as to how these committees get established; who can participate; and what their mandate is? How is this body sanctioned to be dealing with justice issues through a diversion program? We would like any information that you can provide on these issues.

Pauktuutit, Inuit Women and the Administration of Justice, Pauktuutit, Phase II: Project Reports -Progress Report #2 (January 1, 1995 - March 31, 1995) -Appendix #6 - Minutes of Proceedings and Evidence from the Standing Committee on Justice and Legal Affairs Respecting: Bill C -41, Tuesday February 28, 1995, Witnesses: Inuit Women's Association of Canada

(a) Court Structure

Perhaps with the exception of Iqaluit, where there is a Judge permanently based, a courtroom, a legal aid service, an Inuit-women run victims advocacy group, and permanently based police force, the services are nominally better than Labrador and Nunavik. (p. 85:10)

There are Justices of the Peace being used in the Baffin communities quite regularly to deal with summary conviction matters, traffic matters and municipal by-law infractions. There are police in most communities in the Baffin, Kitikmeot region. In the Keewatin, there are police based in four of the seven communities.(p. 85:10)

There are no legal aid services permanently based in the Kitikmeot and one legal aid lawyer based in the Keewatin region. For these two regions and the Baffin communities, other than Iqaluit, the fly-in court, with judge, Crown and defence counsel, court worker and interpreter is the only thing available.(p. 85:10)

Purpose and Principles of Sentencing

We stand behind the right of Inuit women to receive maximum benefit and protection of the law. For this reason, we have called for appropriate sentences for offenders convicted of violent crimes against women and children. Within the existing system, however, this would mean longer jail terms in distant institutions - institutions that are geographically and culturally distant. Pauktuutit recognizes the hardship and ineffectiveness of this approach if it means offenders are isolated from their own culture for long periods of time AND are without access to counselling that will help them address the underlying reasons for their violent behaviour. (p. 85:17)

Bill C-41 states that the fundamental purpose of sentencing is to contribute, along with crime prevention, to a respect for the law and to maintain a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives listed in Section 718. Without sounding, like a broken record, we remind you that in many Inuit communities women and children are not safe from abuse and assault. To suggest the purpose of sentencing is to maintain the safe society we live in, ignores the reality. (p. 85:18)

Judicial Attitudes - Sexism/Racism

These provisions still leave judges with considerable discretion in determining the appropriate sentence. The problem with this is that it assumes judges are sufficiently informed and aware to exercise their discretion in way that is neither racist nor sexist. We do not have this same confidence. (p. 85:18)

Sections 718. 1 and 718.2 list the principles to guide the judges when determining sentences and clearly direct judges to ensure the sentence is equal to the seriousness of the offence and degree of responsibility of the offender. While we feel that there are other aggravating factors that should have been listed, we strongly recommend that the aggravating circumstances listed in section 718.1 (a) should not be removed. This list, as incomplete as it is, is still necessary. We do not support suggestions being made to amend paragraph (a) in such a way as to delete reference to the specific circumstances listed such as race, religion, sex, age, mental or physical disability and sexual orientation. We are not confident that the judges we have presently serving our communities at the trial and lower level appeal courts fully comprehend the nature and impact of sexual assault and spousal assault crimes upon Inuit women. This list goes some way to addressing the current gender and racial bias in the courts. (p. 85:18)

Sentencing - Cultural Factors

Reviewing some of the sentencing decisions of trial and lower level appeal judges for violent crimes against women in one Inuit region, illustrates the extent to which Inuit culture is often misunderstood and misapplied. It is not uncommon in these decisions to see the judge's reluctance to sentence an Inuk offender convicted for sexual assault of an Inuk women to a federal penitentiary. The reasons are often expressed in terms of culture. (p. 85:19)

In a 1987 case the trial judge gave a sentence of two years less a day to an accused convicted of having non-consensual sexual intercourse with a sleeping victim. The judge stated:

"Our courts have been conscious for many years of the undesirability of sending Inuit or other aboriginal offenders of the NWT to penitentiaries in southern Canada… The infection of those communities by the culture of the penitentiary population is something which should be avoided, if at all possible."(p.85:19)

This type of case demonstrates how there are too many areas in which misunderstandings can occur when people from different cultures and circumstances, who know nothing about the people who they are judging or their lives. … In one case a man pleaded guilty to having committed sexual assault on an young woman. In this case, we are told by the judge that the woman told the young man that she did want to have sexual intercourse and yet he went ahead despite her crying and telling him no, pushing him away. The accused told her that "he had sold his soul to the devil and that she would die if he did not complete intercourse". The judge also informs us that he accepts this as a death threat and that the accused was drunk at the time of the attack. In this case, the accused was given a suspended sentence for two years. He was required, in addition to keeping the peace and being on good behaviour, to report to a senior probation officer in his home community and during the first year of his probation he would abstain from alcohol, and perform 200 hours of community work. In coming to this decision, the judge stated:

"…we can understand why this kind of offence is a serious crime under our law, the Parliament of Canada speaking for all of us has made a law under which the Court may send a person to jail for up to 10 years for this offence. When a person goes to jail for more than two years, they can be sent to a penitentiary in Southern Canada which is a place where murderers and sexual perverts go. It is not a good place for an Inuit or a young man but if it is necessary to teach people sexual assault is a serious crime, the Court will send even young men to the penitentiary."

… In another case, a father was convicted of indecently assaulting his daughter with violence over a period of years. While condemning this act of incest, the judge noted the accused had no previous criminal record and stated:

"I have nothing before me to indicate that he is anything but a good hunter and a competent provider for his family."

The accused received a 6 month sentence.

A man was convicted of sexually assaulting two adult women in their homes during the course of one night. The accused was intoxicated when he committed these crimes and stated that he did not recall the assaults. The accused was 35 years old and no criminal record. The judge gave the man a suspended sentence for one year with conditions of 300 hours of community [work] and abstaining from alcohol. In pronouncing his sentence, the judge said:

"I'm satisfied [the accused] enjoyed a good reputation in his home community…He comes from a good family and learned from his father that traditional Inuit way of life, as a result of which he is accomplished hunter. He has a grade nine education in the formal sense; however having him speak in Court he appears to me to be more intelligent and articulate than most people with a grade nine education. Character references favourable to [the accused] were provided to the court [by two prominent non-Inuit business leaders] in the community…I'm satisfied that what [the accused] did was completely out of character for him. He is not a violent person. …

More often than not, offences such as those committed by [the accused] result in a [jail term] when the cases come before this court, but in my view jail is not the only possible answer or solution."

In another trial case, the judge said;

"For the people of [this specific Inuit region] there is no prima facie age restriction when it comes to sexual intercourse. The acculturation process of children does not include the terms 'statutory rape', 'jail bate' and other terms suggesting prohibition. Rather, the morality or values of the people here are that when a girl begins to menstruate she is considered ready to engage in sexual relations. That is the way life was and continues in the small settlements… It is clear on the material before me that each of the accused was raised with this attitude and value. I note each one did not consider their actions "wrong" until confronted by the police and the Criminal Code."

This case involved three men who sexual assaulted a 13 year old girl. In the eyes of the judge, these men were simply doing what their culture permitted. Each accused was sentenced to one week imprisonment based on the cultural defence discussed above. While culture was not accepted by the judge as a defence, it was used to mitigate the sentence. The case was appealed and each accused was sentenced to four months. The appeal court did not correct or comment on the trial court's misinterpretation of Inuit values. In effect, both levels of court condoned this misinterpretation.

Based on these specific cases and others, it appears that mitigating factors when the offender is an Inuk include:

  • having traditional skills;
  • being a family man with no criminal record;
  • not being well educated;
  • under the influence of alcohol; and
  • being a "so-called" respected community member.

The bottom line is that if your an Inuk and convicted of sexual assaulting an Inuk women in the NWT you will not serve more than two years less a day. (pp. 85: 19-21)

Sentencing must be meaningful and appropriate. While we recognize penitentiaries do little to rehabilitate offenders and may often do little more than encourage them to recommit their offences, the response of the judiciary has been inappropriate weighted in favour of the accused and at the expense of the rights of the victims. (p. 85:22)

[105] At the last Aboriginal Women's Justice Consultation, we approached the Solicitor General representative about the possibility of applying for funds for a male abusers' counselling program pursuant to program funding under s.81 Corrections and Conditional Release Act

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