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) -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 (continued)

(a) Court Structure (continued)

Sexist Judicial Attitudes

In the case referred to earlier where a thirteen year-old girl was sexually assaulted, the judge referred to the victim as "slow". It appears that this mental disability was considered a mitigating circumstance. As a result of the assaults the girl became pregnant. This is not considered a harm or injury rather it appears to be irrelevant. The judge states:

"…She did not object to the intercourse, but I must temper that with the fact that she may not have completely understood what was going on…In any event, I note that she was not injured or hurt in any way."

At the appeal level, the judges did not seem to do much better in this case. In fact, the appeal court demonstrated even greater lack of regard to the harm suffered by the victim. It states:

"No affection was involved here. It was a simple matter of sex."

We are not lawyers or judges but one thing we do know is that sexual assault is NOT a simple matter of sex.

In another series of a cases, the judges have established a special category of sexual assault when determining the sentence. These involve cases where the Inuit women victims are unconscious due to sleep or intoxication. In these cases, the judges accept the unconsciousness of the victim as a mitigating factor, if no physical injuries are sustained. They conclude no harm or injury was done to the victims as they were not conscious at the time of the assault. The violence and power in this type of crime seems to go unnoticed by the judges, unless there are visible physical injuries.

In a case where a 36 year old man attacked a sleeping 22-year old woman, the judge denounced the offence but in a way that was degrading to Inuit women:

“You might think of that the next time you've had a few drinks and you see a woman lying around, asleep. First of all, you have no right to force yourself on any woman, asleep or any other way…They're not there just to keep you happy….[no man] can simply go along helping himself to whatever he thinks is available."

This unfortunate use of "whatever" to describe Inuit women, in our view is offensive and degrading. (pp. 85:21-22)

Community Resources

Inadequate supervision within the community is largely a problem of a lack of resources and proper facilities. There are very few parole or probation workers in the communities and so very often offenders are repeatedly breaking their conditions of probation or parole but there is nothing that can be done. …

While there is considerable compassion and concern for the offender, at the same time, there is considerable concern for the safety of other in the community if there are no proper safeguards in place. (p. 85:22)

Conditional Sentences

The final area of concern with Bill C-41 which we wish to raise with you today is the introduction of a new sentence called "conditional sentence" in Section 742. Section 742.1 outlines when the conditional sentence can be imposed by a judge. If we rely on the past practice of judges in sexual assault and spousal assault cases in the North, it is likely they would consider these cases are eligible because the safety of the community would not be endangered. (p. 85:22)

Based on past practice, the judges are more likely to consider the safety of the community to be endangered if a conditional sentence is not imposed. In other words, they will more likely to accept that the community and the offender's family cannot afford to lose the good hunter, the good provider, the family man, the heavy equipment operator, the respected community member or a repented member. These interests of the community will outweigh the harm that the victim may suffer should a conditional sentence be imposed. (p. 85:22)

If conditional sentences are allowed, then we must ensure we have the necessary resources to adequately deal with offenders in our communities.(p. 85:22)

We addressed the need to have express reference to funding guarantees for alternative measures. This point also applies to conditional sentences. We recommend the Bill expressly identify funding responsibility for compulsory and optional conditions listed in Section 742.3. Again, it is important to reiterate that in our communities we do not have the same resources urban centres in the south have. We do not have trained Inuit psychologist, sexual assault counsellors. We have only one independent, Inuit-women victims advocacy and support program in all of the North. We do not have any culturally-appropriate counselling and treatment programs or facilities for offenders who sexual assault or abuse. We do have alcohol programs but this is not sufficient. Based on our experience, we have painfully learned that alcoholism is a contributing factor not the cause of violence. (p. 85:23)

Pauktuutit could support conditional sentences for male abusers if and only if there are programs for abusers and services for victims of abuse run by specially-trained, permanent members of the community. We have stressed the development of programs that will be responsible and accountable to the community, including the women and children who are the victims of the specific abusers within the program.(p. 85:23)

We are not confident this can be done and therefore can conclude this proposal will not make Inuit communities safer unless significant resources are available and there are trained Inuit available to provide the many services required. (p. 85:23)

(b) Community-Based Justice

Existing community-based justice initiatives

In evaluating and assessing the amendments presented in Bill C-41, our basic assumption is that the safety of women and children in the communities cannot be compromised or jeopardized in any way. We recognize that the existing system is failing Inuit, yet at the same time, the new alternatives being proposed in Bill C- 41 must be seriously examined to ensure that they do not compound the damage and suffering already caused by the existing system. (p. 85:23)

Since 1991, the Government of the Northwest Territories -the GNWT- has taken a number of steps in introducing community-based justice alternatives. These have included the promotion of a community-based justice system, consisting of local justice committees supported by a community justice specialist within each region; the promotion of alternative measures to the existing criminal justice system such as adult diversion programs along the lines of diversion programs for Young Offenders; and the promotion of sentencing alternatives, such as sentencing circles, reparative sanctions and restitution in the form having to go hunting and providing country foods to victims and community service. (p. 85-8)

The experience to date, however, provides certain lessons about how they should - and should not - be implemented if they are going to be successful at meeting the needs of all members of the community. (p. 85:8)

Culturally inappropriate community -based justice models

Like many other community justice initiatives, Pauktuutit is concerned that the alternative measures provisions of Bill C-41 will sanction and result in the implementation of aboriginal models that do not relate to Inuit, or will focus on the needs of the offender to the exclusion of all others - namely women in the community. (p. 85-8)

Community-based systems are also said to offer Inuit and other Aboriginal communities the chance to deal with accused and offenders in ways that are more consistent with our own traditional cultural values. The expectation is that this will lead to less emphasis being placed on "retribution" or "mere punishment" and more on "restorative justice" that is directed at restoring harmony between the offender, the victim and his/her community. The underlying intent is to empower a community to deal with its own problems in a way that meets broader social goals, not just narrow legal ones. (p. 85:8)

Women's Safety

In Bill C-41, it states Alternative Measures may be used to deal with an accused person ONLY IF it is not inconsistent with the protection of society and the listed conditions are met. Before we discuss the specific conditions, we would like to remind you that in many communities there are no police, no probation officers, no specialized or trained workers who can counsel either offenders or victims. In these communities, there are many who live in fear and cannot and will not report crimes in fear of the reprisals they will suffer. Some of you may reply, then it is unlikely such alternatives would be legally sanctioned. We remind you some of these measures are presently operating in Inuit communities and the situations within which we live is accepted by governments as adequate and safe.(p. 85:10)

The efforts to reform the justice system in the North so far have been initiated primarily by reform-minded people working within the justice system and who do not live in the community. The obvious problem in these alternative measures is that the reforms are from the outside, they are not really community-based. This is not to suggest that everything must by an original creation by the community in order to be useful or successful. We will look anywhere for solutions to our problems, but it is us Inuit that must make the decision about what will work for us. We strongly believe the measures most likely to succeed will be ones that have grown out of the community's own efforts to deal with their problems. A home-grown approach will better reflect a community's sense of its own needs and priorities, in light of the resources it feels it has at its disposal. (pp 85:11-12)

In preparing for this presentation, one woman told us that one of the reasons she left her community in the North was because she was not sure she would be able to protect her daughters and keep them safe from harm in her home community. The tragic consequence for this women and others is that in order to find a safe community, they must leave their homes and search out larger urban settings, where they have access to services and supports necessary to survive as a woman. This means that their children are raised outside of their culture and when they become adults, may have a very difficult time fitting back into Inuit society. (p. 85:18)

With this basic assumption, in general there was considerable concern many of the options would not promote the safety of women and children who are or could be victims of abuse or assault in the communities. This concern prompted this very important question from one of the working group members: what do we have to give up to get what is the government offering us in this Bill? If these amendments are being offered at the risk of the safety of women and children. This is too high a price to pay to "improve" the existing justice system. (p. 85:23)