Learning From Those on the Ice: The Impact of Bill C-75 on Nunavummiut.

• Author: Richards, Cassandra

CONTENTS Learning From Those on the Ice: The Impact of Bill C-75 on Nunavummiut Cassandra Richards I. Introduction 159 II. Understanding Bail: Now, Tomorrow, and in Nunavut 161 A. Administering Criminal Justice in Nunavut 161 B. Overview of the Current Bail System 163 C. The Future of Bail: Overview of Bill C-75 166 D. Clause 225: Introducing a Reverse Onus in Situations of Intimate Partner Violence 167 III. Learning from Those on the Ice: The Impact of Bill C-75 on Nunavummiut 174 A. Research Methodology 174 B. Overview of Findings 174 C. General Concerns 175 1. Constitutional Scrutiny 175 2. The Role of the Justice of the Peace 177 3. The Perspective of the Accused 178 4. Obtaining Bail & Release Conditions 178 5. Remand Increase 182 6. Guilty Pleas 184 D. The Perspective of Complainants & Society 185 IV. Addressing Intimate Partner Violence Through Empowerment: Pilimmaksarniq 186 A. Pilimmaksarniq: Empowerment the Inuit Way 187 B. Addressing Systemic Drivers of Disempowerment in Nunavut Communities 188 C. Empowering Nunavummiut Women Within the Criminal Justice System 190 V. Conclusion 193 Learning From Those on the Ice: The Impact of Bill C-75 on Nunavummiut

Cassandra Richards (*)

1. INTRODUCTION

   On March 29, 2018, the Liberal Government introduced Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts (the Bill). (1) The Bill received Royal Assent on June 21, 2019. The sweeping legislation proposed various amendments throughout the Criminal Code, including provisions targeted at addressing intimate partner violence (IPV). One such amendment has sparked criticism: the introduction of a reverse onus at bail for an accused charged with a violent offence against an intimate partner, if the accused has a prior conviction for a similar offence. (2) This amendment departs from the general approach to bail by encouraging a presumption of detention, likely separating the accused from the complainant and society.

   Indeed, the self-proclaimed feminist government's attempts to address IPV are laudable given the devastating nature of this phenomenon. Urgent action is especially necessary in Nunavut, the jurisdiction with the highest incidence of IPV. (3) The Qimavvik Women's Shelter (Qimavvik), an emergency shelter for women and children fleeing IPV in Iqaluit, epitomizes these statistics. Continuously over capacity and underfunded, the shelter attempts to mitigate the enormous shortcomings of social services available throughout Nunavut. (4) Those who work at Qimavvik and individuals who use its services are yearning for an end to violence. Will the introduction of the reverse onus create an environment conducive to diminishing IPV in Nunavut? What will this look like on the ground for shelters like Qimavvik and its clients?

   Through qualitative interviews undertaken with seven Nunavut lawyers, this research considers the impact of Bill C-75--specifically the reverse onus in cases of IPV--on Nunavummiut. (5) The following argues that the introduction of the reverse onus will not only disproportionately and detrimentally affect Nunavummiut accused, it will simultaneously fail to keep complainants and society safer.

   This paper is organized into three parts. Part one provides an overview of the administration of criminal justice in Nunavut with a particular focus on the bail system. A synopsis of Bill C-75 is provided, focusing on the introduction of the reverse onus in cases of repeated IPV. Part two examines the findings of this research derived from qualitative interviews with lawyers in Nunavut. Lawyers' perceptions of the impact of the introduction of the reverse onus on Nunavummiut are considered from the points of view of the general administration of justice, accused persons, as well as complainants and society. This paper's key finding is the disjuncture between Bill C-75's amendments and the realities of administering justice in Nunavut. Part three briefly considers alternate avenues to addressing IPV in Nunavut through pilimmaksarniq, (6) both outside and within the criminal justice system. This paper urges its readers to think critically about the criminal justice system. Can Bill C-75 truly effect change for Nunavummiut?

2. UNDERSTANDING BAIL: NOW, TOMORROW, AND IN NUNAVUT

   1. Administering Criminal Justice in Nunavut

      Nunavut is no longer a colony of Canada. However, the colonial legacy seeped into many aspects of life in Nunavut can be tragic and debilitating, particularly in the criminal justice system. This system was deliberately imposed as a means to control Inuit populations within Canada's colonial regime. (7) While the current system has sought to rid itself of its colonial legacy, the colonial framework remains largely intact. Inuit justice is constricted within the structures of the dominant white, southern discourse: "... the use of interpreters, local justices of the peace, diversion programs, provisions for unilingual Inuktitut-speaking jurors, and elders' panels sitting with judges--are just 'crumbs' thrown at aboriginal communities." (8) Ultimately, the Canadian colonial legacy cannot be divorced from attempts to understand and reshape criminal justice in Nunavut.

      Considering the colonial legacy in Nunavut leads to an understanding of who disproportionately interacts with the criminal justice system. Nunavut has the highest violent crime rate (9) and the highest rate of incarceration in Canada. (10) Almost 100% of individuals interacting with the criminal justice system in Nunavut are Aboriginal. (11) The majority of cases unfolding in Nunavut's criminal courts involve a male accused. (12)

      In 2016, Census data indicates that the population of Nunavut was 35 580, of which 84% of the inhabitants were Inuit. (13) Nunavummiut span across 25 communities, covering approximately 20% of Canada's land mass. (14) The Nunavut Court of Justice, located in Iqaluit, is the only courthouse in Nunavut. Therefore, Nunavummiut living outside of Iqaluit are served by circuit courts. (15) While the number of circuits continues to increase, the frequency of court sittings in communities is highly dependent on population, geographical location, and unpredictable weather. The circuit court schedule and its inherent delays cause emotional distress for complainants, accused, and communities. While processing times have improved, a traveling court simply cannot accommodate the immediacy of resolution needed by those receiving justice in small communities. (16) In R v Anugaa, Justice Bychok illustrated the unique geographical challenges in administering justice in Nunavut:

      Distances between our communities are immense: Kugluktuk is 3,392 kilometres from Iqaluit. Arctic Bay is 1,229 kilometres from Iqaluit. To get to five of our communities, the Court must stay overnight in Yellowknife. To get to Sanikiluaq, we must travel via Montreal. Flight times alone to western Kitikmeot can consume up to seven hours. Not surprisingly, the Court's travel budget alone for 2016-17 was $2,486,000. (17) Nunavut's vast geographical landscape is not the only challenge to administering justice. All judicial proceedings are conducted in English. For many Nunavummiut, particularly residents outside of Iqaluit, Inuktitut or Innuinaqtun is their first language. While Inuit court workers and interpreters assist with translation, this is often insufficient. The colonial language imposition (18) causes difficulty in understanding legal proceedings and often impedes an individual's sentiment regarding meaningful justice. Conducting proceedings in English contributes to many Nunavummiut feeling detached from the justice system.

      Language impositions are only the tip of the iceberg when examining the transplantation of foreign justice in Nunavut. Aupilaarjuk et al insist that traditional Inuit law--based on piqujait, (19) maligait, (20) and tirigusuusiit (21)--is often appropriated, translated, and imposed into contemporary Canadian law, yet "derive[s] from completely different cultural perspectives." (22) Hence, the perception of many Nunavummiut engaged in the criminal justice system is negative and adverse, sometimes even hostile. Consequently, the system, (23) fundamentally rooted in its inherent colonial nature and perceived continuing failures, faces significant legitimacy issues in the eyes of those it serves. (24)

      This major issue was echoed by all interviewees: "[i]t's a southern-based system which isn't taking into account the unique circumstances of Nunavut." (25) Another lawyer insisted that "[t]here is a major disconnect between accused, victims, witnesses, and the administration of justice because it is largely unfamiliar [and] fails to incorporate Inuit conceptions of justice." (26) As will be further discussed, the Canadian system's failure to place Inuit conceptions of justice at the forefront of legal changes, and the lack of consideration for the unique circumstances of administering justice in Nunavut, have devastating impacts. This pattern has equally persisted within amendments in Bill C-75, questioning its ability to truly effect change for Nunavummiut.

   2. Overview of the Current Bail System

      The bail system is a crucial crossroads in criminal procedure for all parties affected by alleged crimes. Upon arrest, actors in the criminal justice system engage in an "exercise of broad discretion" to determine whether the accused should be released prior to trial. (27) Police have a variety of options to release an accused after arrest, via an appearance notice, summons, or undertaking. If, however, police believe that the accused should be detained, an accused must be brought before a Justice or Justice of the Peace (JP) within 24 hours for a bail hearing. (28) At a bail hearing, an accused may be detained on one or more of the three grounds established by the Criminal Code. (29)

      The bail system seeks to balance the protection of society...