The Nunavut Court of Justice: an example of challenges and alternatives for communities and for the administration of justice.

• Author: Clark, Scott

The Nunavut Court of Justice, a superior court and the only unified criminal court in Canada, was established in 1999, coincident with the creation of Nunavut. One of the court's three main objectives has been to provide an efficient and accessible court structure capable of responding to the unique needs of Nunavut. The achievement of that goal is an ongoing process in light of challenges inherent in providing justice in Nunavut. The article considers delays and lengthy case processing times as one example reflecting the difficulties facing the court. The author argues that improvements have been made since 1999 but that ongoing problems with the implementation of organizational improvements in the areas of legal aid services, the Inuit court worker program, and the justice of the peace program mean that the court's original objectives are not being completely met. Reasons for the gaps are examined, including perennial funding shortages for Nunavut's justice programs. The Nunavut Court is also seen as representative of broader challenges for the mainstream justice system in engaging with Inuit communities and culture. Fundamental problems resulting from the historical and ongoing marginalization of Inuit in Nunavut contribute to problems with the administration of justice. The author argues for increased movement toward true community-based justice alternatives, hot to the exclusion of the mainstream system but in an effective intersection with it.

Keywords : community alternatives, community justice, Inuit, Nunavut, single-level criminal court

La Cour de justice du Nunavut, une cour superieure et le seul tribunal unifiee du Canada, a ete creee en 1999 avec la creation du Nunavut. Un des trois principaux objectifs de cette cour est d'offrir une structure accessible, efficace et capable de repondre aux besoins particuliers du Nunavut. Pour atteindre cet objectif, un processus qui tient compte des defis propres au systeme de justice du Nunavut est necessaire. Parmi les exemples de difficultes, on note les retards et les longues periodes d'attente pour le traitement des cas. Selon l'auteur, des ameliorations ont ete apportees depuis 1999, mais des problemes persistants nuisent a la mise en place des ameliorations dans le domaine des services de l'aide juridique, le Programme d'assistance parajudiciaire aux Inuit et le programme visant les juges de paix, et par consequent a l'atteinte complete des objectifs originaux de la cour. Les raisons de cet ecart sont examinees, notamment le manque de financement a long terme des programmes de justice du Nunavut. La Cour du Nunavut est aussi vue comme representant les difficultes du systeme de justice traditionnel a s'engager envers les communautes et la culture inuites. Des problemes fondamentaux provenant de la marginalisation, passee et presente, des Inuits du Nunavut contribuent aux differents problemes lies a l'administration de la justice. Selon la suggestion de l'auteur, on devrait accroitre le mouvement en faveur de vraies options de justice communautaire, non pas en excluant le systeme traditionnel, mais plutot en trouvant un point d'intersection entre les deux.

Mots cles : options communautaires; justice communautaire; Inuit; Nunavut; tribunal unifie

Introduction

This article addresses challenges and possible responses regarding the administration of justice in Nunavut. The focus is on the Nunavut Court of Justice and three closely related components of the justice system that are essential for the court to operate as envisioned and to achieve its original goals. The essential components are legal aid, justices of the peace, and Inuit court workers. The paper first addresses the creation of the Nunavut Court of Justice and its original objectives and intended impacts. Inherent challenges in administering justice in the far North are examined, including a fast-growing population, high crime rates, and other contextual factors. Delays and lengthy case processing times are presented as two indicators symptomatic of problems facing the court. I argue that the development of the three essential components noted above was intended to address these problems, but progress is stalled, preventing the court from fully reaching its goals. A number of factors are examined as possible explanations for the dilemma. The paper concludes with a preliminary discussion of a movement toward community-based approaches that might help resolve the challenges inherent in the administration of justice in Nunavut. (1)

The Creation of Nunavut and the Nunavut Court of Justice

Nunavut was established on 1 April 1999 at the time of the division of the Northwest Territories into two distinct territorial jurisdictions. As part of the formal government-building process, the Nunavut Act created the Nunavut Court of Justice (NCJ) as a unified court system in order to provide an efficient and accessible court structure capable of responding to the unique needs of the territory, while at the same time maintaining substantive and procedural rights equivalent to those enjoyed elsewhere in Canada. Nunavut is the only Canadian jurisdiction with a unified or single-level criminal court.

Various legal authorities enabled the Nunavut Court of Justice (Department of Justice, Canada 2007: 7). At the federal level, the Act to amend the Nunavut Act with respect to the Nunavut Court of Justice shifted authority from the courts of the Northwest Territories to that of Nunavut and addressed certain operational responsibilities of the new court. (2) In addition, the Criminal Code of Canada was amended to include the powers and functions of the Nunavut court. At the territorial level, the Nunavut Judicial System Implementation Act, which included a new Judicature Act and a new Justices of the Peace Act, laid out the court's structure and specified certain rules of law and procedure for cases heard in Nunavut.

In terms of structure, Nunavut's single-level criminal court differs from courts in the provinces and the other territories primarily in that the normally distinct functions of the superior court and the provincial or territorial court are combined in a single superior court. Justices of the Nunavut court are, therefore, federally appointed. Nunavut's court of appeal comprises a panel of judges drawn from the Nunavut court and the courts of appeal of other jurisdictions who meet as required. (3)

Goals and intended impacts of the court

Key informants in the territorial and federal Departments of Justice who were involved in setting up the new court, as well as members of the Nunavut judiciary, agree that the overall goals of the Nunavut court in 1999 were the following: (a) to provide substantive and procedural rights equivalent to those enjoyed elsewhere in Canada; (b) to provide court-based justice services in a fair and inclusive manner; and (c) to provide an efficient and accessible court structure capable of responding to the unique needs of Nunavut.

The major intended impacts of the new court were seen as follows: to reduce delays and case processing times throughout Nunavut; to provide an effective justice of the peace function in all communities; to engage the communities in the court process through the use of elders' panels and youth panels at sentencing; to increase understanding of the justice system and court operations by Nunavummiut; (4) to establish culturally appropriate court processes, including effective court interpretation services in all communities; to apply a range of culturally appropriate and community-oriented sentencing alternatives; and to increase access to civil and family law throughout Nunavut (Department of Justice, Canada 2007). It was further envisioned that a single-level criminal court would have the effect of reducing confusion in the circuit communities regarding the nature of the court. Two court parties flying into a community at different times and doing apparently similar but different things was a source of frustration for community residents. It was believed that a single-level court could improve both understanding and cost-effectiveness. Increasing cost-effectiveness by moving from two separate court circuits to one was an intended impact that has largely been realized.

This article will focus on the third goal listed: the provision of an efficient and accessible court structure capable of responding to the unique needs of Nunavut. Three factors that affect the achievement of that goal are examined: the availability of legal aid lawyers; the presence of adequately trained, community-based Inuit court workers; and the presence of adequately trained and qualified, community-based justices of the peace. All three factors were intended, from the beginning, to be essential in effectively meeting the justice needs of Nunavut. While these factors are not the direct responsibility of the Nunavut Court of Justice, as explained below, they affect its operations and the achievement of its goals.

In order to understand the context for the analysis, the following sections will provide overviews of the main characteristics of Nunavut's population and police-reported crime rates, as well as other contextual challenges. In all three areas, the Nunavut court and the wider justice system clearly face substantial challenges.

Overview of Nunavut's population

Eighty-five per cent of Nunavut residents are Inuit. The total 2006 population was 29,475 (Nunavut Bureau of Statistics 2007). This represents a 10.2% increase since 2001, compared to a 5.4% increase for the same period for Canada as a whole. (Statistics Canada's projection for 1 July 2010 was 33,220 [Nunavut Bureau of Statistics 2010]) Nunavut's 2006 population in the 0-14 year age category was 33.9% of its total. In comparison, the 2006 population 0-14 years for Canada was 17.7%. Nunavut's median age in 2006 was 23.1; Canada's was 39.5 (Nunavut Bureau of Statistics 2007). Personnel working in Nunavut's justice...