Inuit Women and the Nunavut Justice System
The NSDC recognizing the current status of JPs in the eyes of the community is not sufficient to absorb an expanded role, has suggested measures that would increase community support for JPs. It recommended, for example, a change in title for JPs to “Community Judge” in order to reflect the importance of the JP in the community.
Such a change is more than cosmetic. If JPs are to take on such expanded roles as presiding over domestic violence and sexual assault matters, which was a key NSDC recommendation, then it is critical that JPs first have credibility and the respect of the community.
It is worth noting that while the NSDC proposes JPs begin to hear cases involving violence against women; it also calls for JPs to have more freedom to expand their sentencing options. Such recommendations when viewed collectively, as the NSDC intended, suggest that the NSDC is attempting to use methods other than incarceration as appropriate dispositions for serious crimes. The court structure, legally, does not recognize JPs as having an authority greater than a lower court.
The challenge of this approach for the NSDC and Inuit generally, is the reliance upon adequate services and resources being available in the communities from which JPs can rely upon when creating alternative dispositions. At present, there is an extreme shortage of services for victims of violence. At the same time, the services to assist those who are convicted of sexual assault or other forms of violence against women are not available in the communities. This specific challenge will only be overcome if JPs and their communities are adequately equipped to provide alternatives to incarceration that Inuit women and other members of the community identify as: accountable, effective in dealing with the underlying factors leading to the crime, and do not jeopardize women’s safety.
The NSDC assessed that before JPs take on greater responsibilities such as preliminary inquiries, child welfare matters and small claims actions, they would benefit from the development of a justice of the peace support network and from regular legal training on the substantive components of criminal law. The Nunavut government’s commitment to and recognition of the need for ongoing training of JPs is essential to the success of this program. In light of the JPs expanding role, their lack of training impacts on the quality of the justice system in Nunavut.
For example, the majority of preliminary inquiries conducted in the North are for sex offences. Margo Nightingale notes, in inquiries for these types of offences there are significant risks of both jeopardy of an accused and of psychological harm to a complainant and the potential for violations of his or her rights to privacy. She explains this point by way of the following example,
…it is not uncommon for defence counsel to seek information about prior sexual conduct between the complainant and the accused (or others) which is subject to restrictions under s. 276 of the Criminal Code, or to elicit personal records in the hands of third parties which is subject to restrictions under s. 278.1-278.8. Given that there are still many debates among counsel about the application of these provisions there is real concern that a J.P. may not adequately understand the Criminal Code in these areas to act as arbiter.
To conduct a preliminary inquiry of this sort requires a skillful application of the sections of the Criminal Code that address disclosure of personal records, for example, as well as the ability to properly respond to objections from the Crown which seek to protect a complainant from inappropriate questions.
In the past, concerns were raised that JPs did not possess sufficient knowledge about the Criminal Code and of evidentiary issues to be able to competently fulfill their duties. This lack of knowledge and understanding greatly affected the JPs’ credibility within the communities and the understanding of the role of the JPs among community members.
Uniform training in respect of substantive law matters is even more important in view of recent case law. A recent Court of Appeal decision involving a charge under the GNWT Liquor Act suggests that trials conducted by JPs may be held to a lower standard of legal and evidentiary requirements. The implications of this decision for training are significant since the decision suggests that trials conducted by JPs may result in lower standards of legal protection for the accused than trials conducted by judges.
As noted above, this type of decision reinforces the attitudes and perceptions that the subject matter dealt with by JPs is of lesser significance and therefore the consequences of such criminal activity is also not as serious.
One remaining challenge in relation to JP preparedness is the matter of training with respect to awareness of issues of sexism and gender bias. As noted below, there is an attempt to ensure that a more representative group of JPs serves a community. None the less, there remains a challenge on how to reconcile gender bias issues and the conflicts arising in relation to attitudes and behaviours rooted in religious, cultural, or traditional values that devalue and discriminate against Inuit women. Inuit delegates to a national Aboriginal women and justice consultation raised the following concerns on this point:
With the recent court decisions and lack of guidance in Bill C-57 the door has been left wide open for JPs to operate with more autonomy and less understanding of the law. At the same time, the serious concerns raised by Inuit women regarding attitudes, values and beliefs in the communities about violence against women and children relate directly to those in the community who act as JPs. These concerns regarding JPs preparedness need to given the attention and response they deserve.
Other challenges remaining for the JP program are those related to making the JP court system more reflective of Inuit traditional practices. The inclusion of more Inuit, especially unilingual Inuit, is seen as a positive step. None the less, the NSDC notes that the lack of extensive training, in both English and Inuktitut for all JPs, leaves them ill-equipped to fulfill their responsibilities and more dependent upon the RCMP and others to tell them what to do. Recognizing the importance of maintaining the impartiality of the decision-maker in the eyes of the community, the NSDC warned,
“if JPs are not well trained, they may be open to influence by the RCMP. JPs who lack the necessary legal training tend to rely only on the RCMP for advice, and in fact sometimes just do what the police ask them to do, rather than be independent as they should be.”
Another challenge the program confronts is achieving a JP program that is also independent of the pressures brought to bear on individual JPs living in their small, inter-related community by other community members (e.g. relatives, powerful families, etc). The NSDC recommends that the JP court consider using a group of JPs and possibly others to decide a matter in order to overcome the cultural conflict faced by Inuit “judging” another Inuk. This approach of sharing responsibility also may serve to alleviate the other challenges facing community members. As discussed earlier in relation to jury trials, there are conflicts arising when community members are left to judge or participate in matters dealing with sexual assault and other crimes of violence against women. The NSDC recommends JP selection focus on identifying longer term residents, with a mix of ages and gender, and a minimum of four for each community to ensure JPs are more representative of community values and therefore encourage more respect for their decisions, to avoid conflict of interest issues that presently arise, and allow JPs to team up and sit as a larger group for support.
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