Nunavut Legal Services Study
Respondents identified a number of impacts of geography on legal service provision in Nunavut:
- The distance between communities affects staff counsel's ability to go to the communities in advance of the court in order to prepare with clients. Where there is more than one community on the circuit court's agenda, such preparation is only possible in the first community on the circuit, because after that the counsel must travel with the court party in a chartered airplane. The distances involved in travel in Nunavut, combined with low passenger volumes, have a huge impact on the cost of providing legal aid services.
- Severe Arctic weather often causes delays and cancellations of flights, affecting the court's ability to visit the community and to complete the docket once it arrives.
- Infrequent flights between communities outside of regional centres, and limited frequency of flights to smaller communities, affects the cost of travel and also the staff counsel's ability to arrive in the community early enough to prepare with clients. It also affects the perceived independence of legal aid service providers, who must sometimes travel on the same chartered aircraft as the rest of the court.
- The heavy workload and tight schedule resulting from these geographic challenges affects the counsel's ability to conduct legal research, or to interview clients and witnesses, which may end up being done hastily and without proper facilities.
- Due to the small population of Nunavut and its 28 widely scattered communities, there is only one correctional centre, in Iqaluit. Community police lockups are small and unsuitable for longer-term incarceration. Therefore, if individuals are not granted bail, they are removed from their community and flown to Iqaluit until the time of the trial, when they are flown back into the community. If they are then found guilty and sentenced to jail time, they are then flown back to Iqaluit to serve that time. The amount of travel involved incurs costs for the system, but also has a negative effect on the clients as they are removed from their community and likely will not be visited by friends or family while they are in Iqaluit.
- It has also been observed that it can become demoralizing for accused persons to be remanded in custody before their first appearance, often having to travel great distances from their home communities in the process. This, in itself, can result in accused persons giving up, and submitting to whatever is required to end the ordeal as quickly as possible, in the hope of returning home.
- The lack of process servers and sheriffs in the average Nunavut community results in special challenges in getting documents served in a timely and appropriate manner.
- The high cost of travel results in physical and emotional disconnects between clients and their representatives. For example, civil clients often have their entire case dealt with without ever meeting their lawyer, criminal clients in show cause hearings are usually interviewed over the telephone (except in the regional centres), and lawyers must often make representations over the telephone. They say there is a distinct disadvantage in not being able to observe facial expressions and body language of participants in a teleconference., The local participants (usually RCMP and the local JP) do not have that disadvantage.
Geographical challenges in Nunavut also lead to infrastructure problems, such as poor telephone lines and limited Internet access for research and communication purposes. In an editorial in Nunatsiaq News recently, the editor observed that:
… only residents of Iqaluit, Rankin Inlet, Baker Lake and the five communities of the Kitikmeot enjoy access to dial-up Internet access. In the 10 communities outside Iqaluit with decentralized Nunavut government functions, government employees put up with a primitive form of satellite access that's so slow it's sometimes unusable. For private users in most of those communities, there's nothing, except for expensive long-distance modem calls to southern Internet service providers. In the year 2002, this is unacceptable.
A number of respondents said that the justice system in Nunavut is making efforts to be more culturally sensitive. Examples given included the use of diversion, including Family Group Conferencing, alternative sentencing methods, the involvement of elders in the court system, and the recent Family Mediation Project - Inuusirmut Aqqusiuqtiit. Several respondents also indicated that they felt the NLSB is handling cultural issues very well, with the guidance of regional clinic Boards.
However, some respondents also identified ways in which culture and cultural differences have a negative impact on legal service provision and the ability to represent clients effectively. The problem areas include:
- Language issues
- Cultural disconnects and pressures
- Literacy and education
A high proportion of Inuit do not have English as their first language. Although translation is generally provided, there are often difficulties in translating and understanding the concept at hand, as well as the actual words being used to represent that concept. For example, one experienced defence lawyer said that he rarely encounters clients who really understand the significance of having a trial. A word or concept that is taken for granted in the English language has no easy equivalent in Inuktitut. The language barrier is increased in situations where the lawyer is working with the client over the telephone and/or when a Courtworker is not available to explain both words and meaning to the client in Inuktitut. The need for translation adds time and cost pressures to the system. In some situations, there is an additional problem of limited human resources - there is only one translator, who may become tired and make mistakes.
Of the clients interviewed, eleven (of fourteen) indicated that Inuktitut was their first language. Four of the eleven indicated that they were bilingual and had no preference of working language between Inuktitut and English. The remaining seven indicated that they preferred to work in Inuktitut. The four respondents who were bilingual indicated that they could understand the proceedings, along with three others, one of whom emphasized that the reason they understood was because the Courtworker took the time to explain to them. The remaining three clients surveyed with Inuktitut as a first language indicated that they did not understand what was happening because of language difficulties.
Cultural disconnects and pressures
"There is still an underlying traditional approach to family breakdown that goes counter to what the law says … the idea of child support, the mother's right to take a child, … is unheard of in the older generation…"
There are a number of ways in which the Inuit culture differs from southern Canadian culture in such a way as to cause difficulties in using the justice system:
- Some common defence tactics are difficult for Inuit to accept on a cultural level. For example, one lawyer respondent advised a client not to admit to a crime, as there was not a great deal of evidence against him. The client was reportedly insulted that the lawyer suggested that he not take responsibility for his actions.
- Many Inuit are susceptible to even subtle pressure from authority figures, and are often anxious to quickly resolve conflicts with the law, even if it means giving up their rights. Many Inuit are known to have a benign approach to confrontation.
- Many respondents reported that even their own families often pressure Inuit women not to take action against their husbands, even in situations of extreme violence.
- Other respondents reported their concerns that certain legislation, such as the no-fault character of the federal Divorce Act, is based on premises that are inimical to the Inuit cultural value of confession and accepting responsibility.
Literacy and education
Although not precisely a cultural issue, some respondents also raised concerns that illiteracy or low levels of literacy in both English and Inuktitut make it more difficult to provide effective services to clients. Literacy is clearly tied to education level and, as shown in Section 2.1, Nunavut's population generally does not have a high level of educational attainment.
The following table summarizes the key points relating to Section 3.0.
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