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)

"Community-based" means women's participation

A truly "community-based" approach, therefore, must be one that reflects all segments of the community in particular, the women and children who are the victims of abuse.

We welcome the proposal that all not just one or more of the conditions must be met. Yet, even so, from our perspective there is something missing in all of this. That is the needs of the victims. (p. 85:11)

There is no certainty the programs authorized in (a) will be programs negotiated with the communities. Accordingly, when this provision is read in the context of Inuit, we recommend that there be specific recognition in the Bill regarding that of the right of aboriginal peoples to define our own alternative measures through self government negotiations. In saying this, we are speaking only for Inuit women, when we say, that these are matters better suited for self-government negotiations, once we have secured full and effective participation for Inuit women in this process. (p.85:12)

Lack of Resources

The other major problem we have identified that has the potential to undermine the effectiveness of any alternative measure is a lack of resources, both technical and financial. Recent reforms in the NWT provide a case in point. These initiatives have focused on the rehabilitation of offenders (mainly through alternative sentencing reforms), and the provision of assistance to victims (through the establishment of Victim Impact Statements) In both cases, the communities are being given responsibility to deliver these new programs without any support structures in place, specially-trained, local personnel or additional financial resources at their disposal. This approach could easily have the effect of setting communities up for failure because their existing resources are already seriously over-extended. While the intent behind this specific amendment is positive, it can nonetheless do a disservice to the remote, northern communities that don't have the resources to implement them successfully. (p.85:12)

We are concerned that these measures will become part of an authorized program and police, Crown attorneys and judges will encourage their use without securing the adequate resources to deliver an effective and accountable service. In addition to our earlier recommendation for this specific paragraph, we recommend an express statement identifying funding responsibility for such measures. (85:12)

Offender-focused community-based justice

We are now learning the consequences of reforms that have been community-based in name only. Alternative measures that focus on the needs of offenders, for example, and neglect the needs of victims and others in the community cannot be said to be reflective of the community as a whole: restoring harmony within the community means dealing with all those involved in, or affected by, the crime, equally. A truly "community-based" approach, therefore, must be one that reflects all segments of the community in particular, the women and children who are the victims of abuse. (p. 85:11)

Our concerns with Paragraphs 717 (1)(b) to (g) are related to the issues we discussed regarding the focus of these amendments being on the offender, to the exclusion of the victim. (85:13)

While neither English nor French, is our first language, we fully understand the consequences of using words like "needs" or "besoins" for the accused and "interests" or "interet" of the society of the victim in paragraph (b). There is a priority implied in these words, that the accused needs come first and second interests of society and the victim. Especially when paragraph (b) is read alongside the remaining conditions. What if the victim does not want to participate in the alternative measure because of fear, reprisals from the accused, the accused's family or the community? This does not seem to matter, or if it does, it is one of last and least considerations given. (p. 85:13)

The needs of the victim must also be recognized, this can be done without violating the Charter rights of the accused. (p. 85:13)

Based on our experiences, we recommend, as a minimum, not only must the "needs" of the person alleged to have committed the offence be considered when determining whether or not an alternative measure is appropriate but also the "needs of the victim", followed by the interests of society. (p. 85:15)

Definition of "Community"

It is the underlying assumption that the interests of victim and society are one in the same. When we consider Inuit society and narrow this done to particular Inuit communities, often the interests of the victim may be in conflict with that of the "community". Firstly, what interest does the "community" at large have in sexual assault case that directly impacts on a specific victim and family. In small Inuit communities, there are many people who are related by marriage, powerful families, and male-leaders in charge. These family and kinship lines along with the power structures impact severely upon a victim if her abuser is someone related to a powerful family or a leader. Not unlike the South, in our communities women and children are silenced and not believed when they speak about their abuse. If and when they do speak out these women are then blamed in some way for the assaults they have sustained. (p. 85:13)

We must recognize that the term "community" must be all inclusive. For Inuit women, this also means not using "community" to prevent organizations such as Pauktuutit from participating. For many women, Pauktuutit is the only safe and non-threatening forum in which these issues can be discussed. We know from experience many women are often afraid to speak out in their communities about their specific concerns on these issues.(p: 85:15)

Victims/Complainant Consent

Please notice that we are not making a recommendation that the section regarding alternative measures include a condition that states the victim/complainant must be fully informed and consent to the alternative measure. We have specifically avoided this recommendation, although it is one we see appearing judicial decisions as conditions for conducting a sentencing circle. To place the onus once again upon the victim, isolates her and may result in her being further victimized should her wishes differ from those of the accused. Such a condition, ignores the reality facing women and children who are victims of abuse, it ignores the power imbalance that exists between the abuser and victim and, in many instances in our communities, the power imbalance between the victim and her community.(p: 85:15)]

We must recognize that the term "community" must be all inclusive. For Inuit women, this also means not using "community" to prevent organizations such as Pauktuutit from participating. For many women, Pauktuutit is the only safe and non-threatening forum in which these issues can be discussed. We know from experience many women are often afraid to speak out in their communities about their specific concerns on these issues.(p: 85:15)

In making this a condition, the judges are assuming that all members of the community have equal access to information and equal opportunities to speak out. This is not the case. The barriers preventing women from fully participating in these decisions must be addressed if all members of the community are to participate in a meaningful way. (p: 85:15)

Limitation of Jurisdiction

Alternative measures for cases involving sexual assaults, child abuse and spousal assaults cannot be allowed. We know based on our experiences that where women inform the police of abuses or sexual assaults they have suffered and charges are laid against another community member, depending on who that member is, the community may or may not support the victim. In many cases where women have had charges laid against men for sexual abuses they sustained as children, these women are being isolated and ridiculed for bringing these cases forward by their communities. In specific incidents we have documented, women have not only not been given support, they have been threatened and intimidated for participating in the court process as witnesses. (p. 85:13)

Accountability - Community Power Imbalances - Religion

In one community there was a request made to the judge by a group that had assumed responsibility for working with offenders who return to the community, to have a sexual assault case diverted out of the court to them. Members of this group had worked with the accused and felt he should not have to go through the court system. The specific case involves an assault alleged to have taken place 24 years ago. The complainant in the case, now an adult was 13 years old at the time of the alleged assault. The community's response to this particular incident and more specifically, this group's response to the judge for the reason's for having the matter diverted, raised a number of concerns and issues for Pauktuutit while at the same time demonstrating how alternative measures can be result in greater injustices than the current system for the victims. In the letter sent to the judge, the group presents its reasons for having the matter diverted to them. We would like to read a portion of this letter:

" [Our group] during our last meeting agreed to help the accused after his last court appearance.

[The accused] attended the last [group] meeting to ask for our help. He has recognized the function of the [group] and asked for our help regarding him being charged with a sexual offence which happened years ago.

[He] was charged for an incident that happened many years ago and from what [he] has said, [he] has already let this pass when he confessed his sins in church. We [the group] are proposing, instead of going through court, we [the group] can handle this through counselling [the accused]. [The accused] also commented that at the time, [the victim] had told him that she was having boyfriends now.

We [the group] know of [the victim], when she was young, she used to go out with everybody, even older men, she is divorced from her husband… and now married to [someone else]. And for a Christian to go back to the past and persecute someone is not fair, to just get back at what happened many years ago. Especially at a person who has confessed his sins to let go of the past.

We [the group] all agreed that we should help out the accused. [The accused] was also very concerned about his wife and children and what this would do to his family." (p. 85:14)

Accountability - Lack of guidelines

There are no guidelines set down in a law for the use of sentencing circles, only the criteria being set down by judges in their decisions. Yukon Territorial Court Judge Barry Stuart is recognized as the person who introduced this alternative measure to Canada. It was first used in case in which he presided over in the Yukon, In that case, R. v. Moses, he described sentencing circles as a means of "empowering community members to resolve their own issues, restoring people's sense of collective responsibility and improving the capacity of communities to heal individuals and families and ultimately to prevent crime".

The experiences to date with the use of these circles in Inuit communities and other aboriginal communities when dealing with sexual abuse and spousal assault have not been positive for the victims. It would seem that alternative measures must adhere to the safeguards already provided in the existing system. For example, within judicial proceeding the principles of judicial independence and impartiality are basic tenets. This too should be he case for alternative measures. In other words, this would mean that community political leaders cannot be given decision-making roles in alternative measures. To date this has not been the case.

Issues of Fundamental Justice

Alternative measures, like the judicial proceedings they replace, would be required to adhere to the principles of fundamental justice and other basic tenets of the system. For example, the need for judicial impartiality in resolving these matters is a strongly held founding principle of the system. When it comes to alternative measures, this would also have to apply in our view. In other words, political leaders cannot be given decision-making roles in any alternative measure because of this principle. (p: 85:16)

Likewise alternative measures, like judicial proceedings, must be designed, in our view to seek out the truth NOT hide it. If this cannot be achieved, it would seem the specific alternative measure could not be used. We believe this view of ours is shared by the highest court in Canada. (p. 85:16)

We are not lawyers, so we cannot discuss the Supreme Court rulings in such cases as R v. Seaboyer, [1991], R. v. B (K.G) [1993] and R. v. L. (D.O) [1993] from the legal perspective, but we do want to raise some points from these cases as they relate to alternative measures. In these cases, the court addressed the principles of fundamental justice from the rights of the accused. In the most recent of the three cases, the R. v. L. case, Madame Justice McLaughlin that when explains that when looking at this constitutional issue before the court, it has to be looked at in context. She says that it is necessary to look at the broader political, social and historical context to be truly meaningful. The context in which Judge McLauglin looks at the section 7 and 11(d) rights of the accused is the context of child sexual abuse in Canadian society. She reminds us the same Court agreed that a particular right or freedom may have a different value depending on the context. She acknowledges the parallel between the historical discrediting of children and women who report sexual assaults. She goes on to state that,

" the innate power imbalance between the numerous young women and girls who are victims of sexual abuse at the hands of almost exclusively male perpetrators cannot be underestimated when 'truth' is being sought before a male-defined criminal justice system."

The rights of the accused should then be assessed in terms of the context of the specific case. It seems this balancing of rights exercise done by the Supreme Court has not been adequately reflected in Section 717. (2). (pp. 85:16-17)

In this same case, Madame Justice L'Hereux-Dubé informs us that

"the goal of the court process is truth seeking and to that end, the evidence of all those involved in judicial proceedings must be given in a way that is most favourable to eliciting truth. …If the criminal justice system is to effectively perform its role in deterring and punishing child sexual abuse, it is vital that the law provide a workable, decent and dignified means for the victim to tell her story to the court."

When we take these remarks of the Supreme Court of Canada in these decisions and the experiences of Inuit women into consideration with respect to the alternative measures proposed in Bill C-41, it is not only recommended but necessary that there be an explicit statement under section 717.2, which prohibits the use of alternative measures to deal with a person alleged to have committed either an indictable offence or summary conviction offence of sexual assault, child sexual assault or spousal abuse. (p. 85:17)

Accountability - Lack of Evaluations of Existing Community-based initiatives

There have been no formally evaluations done on the circles, yet we have learned that in these circles, when they are dealing with sexual assault or spousal assault, seldom can victims speak freely. Pauktuutit, through its Justice Project has begun to conduct its own evaluation of the use of sentencing circles for sexual assaults and spousal abuse cases.(p: 85:15)