Inuit Women and the Nunavut Justice System

Appendix 2: Overview of Issues and Concerns of Inuit Women (continued)

Pauktuutit, Memorandum from Pauktuutit Justice Project Coordinator to General Counsel of Aboriginal Justice Directorate, David Arnot, Comments on the Justice Memorandum, November 7,1995

(a) Community-based Justice

#16 - recognition of power imbalances and the difficulties women have making their voices heard within the political institutions in the community-

This paragraph stops short of addressing the issue of what happens to those women who cannot speak in their community. In the case of Inuit women, it is through the Justice Project that community women have been able to seek not only the assistance and support of Pauktuutit but voice their concerns in way that they are less vulnerable than they would have been had they said nothing or risked speaking out in their own communities. For women, Pauktuutit is seen as the organization that can represent their interests without the women feeling threatened. This is important to acknowledge because if we define "community" as the local geographic unit, the end result means women may be further discriminated against and unable to speak out. Pauktuutit clearly does not fit within this definition of “community” if defined by geography, yet many women recognize this organization to be their "community voice"- the community of women.

#17 - use of phrase "recognized elders"

The use of this phrase or similar phrases (“respected elders”) should be more thoroughly addressed-these are terms used frequently and have lost their significance. There is a need to clarify what these terms are intended to mean. For example, does it refer to elders that groups in the community identify as persons who are respected; or persons that the outsiders consider or see as "respected" or "recognized" elders?

#18- this notion of a "consensus " approach and community-based solutions-

Must make sure “consensus” does not become the mechanism used to decriminalize violence against women. The adoption of restorative models that involve community members has been reflected in civil law matters (ie. family law mediation). There is a need to address the relationship between the use of these alternatives in matters falling within the criminal justice system with related civil dispute issues.

The models of restorative justice are broader and may be able to adapt and address issues that are not only criminal matters - for example the use of family counselling groups to resolve custody disputes may be appropriate in a specific matters, not involving violence, rather than the spousal assault cases we see these alternatives being used for.

There is a need to work closely with provincial and territorial authorities to assist communities in developing alternatives that can reach out beyond the criminal justice system and can be utilized for civil matters, when these initiatives are found to not be appropriate to address the criminal matters.

The issue of what "consent" means arises when we discuss the use of the consensus approach. The issues of power imbalances between the individuals involved, inequalities and forced consent must all be considered and what measures can be taken to ensure "consensus" does not simply mean sanctioning the transfer of power from the judges and others of the existing system to with local powerful (economic, political) leaders.

#20 - "The demands for the return of the traditional systems of justice must be balanced against the needs of women and children not to be forced into reconciliation nor should they be required to surrender access to the mainstream justice initiatives.." (also #17)

The reference to the "return to traditional systems" begs the question, who is requesting this and when they are, what are they really requesting? This phrase suggests that there are "systems" or "practices" within aboriginal cultures that are well known, shared and that can deal with matters presently dealt with through the criminal justice system.

What does it matter that an alternative initiative or system is identified as "aboriginal"? If it is the code for sanctioning greater inequalities and practices that put women and other victims at greater risks this has to be specifically addressed. A practice that is identified as part of an "aboriginal" system and part of "self government" ( paragraph #21) may allow for certain flexibility that is not allowed for in policies and laws subject to the Charter.

We would certainly advocate that all alternatives are subject to the Charter, however, we know from our experiences in the Constitution negotiations and Aboriginal Justice Reform inquiries, that law makers, politicians and others that are not Aboriginal become very "hands off" about the "details" of many systems and practices in so far as it deals with matters of the victims. They can and do discuss the "rights" of the accused and the requirement to respect these rights, regardless of the system or practice being used. Self government rights do not collectively sanction internal inequalities based on gender or any other of the enumerated or non-enumerated grounds of the Charter. However, there appears to be a certain degree of complacency with or discomfort among these individuals in questioning and scrutinizing whether these alternatives are appropriate in addressing the "needs" or "interests" of victims. I do not mean culturally-appropriate, but rather or not they are appropriate in promoting equality among its members and not undermining the individual rights of those who are not as powerful or privileged as leaders in the communities. When identified as "aboriginal" those representing the larger "public" do not make certain demands or requiring certain standards to ensure women and others are not further victimized by the alternative system because it is "aboriginal". This clearly is not acceptable.

The reference to "systems" also implies not only that these systems exist but that there is a certain degree of homogeneity among Aboriginal peoples and within each indigenous people grouping, which is in fact not the case. Within Inuit communities in Canada., the practices and language of Inuit in each region varies. Accordingly, the variation between regions and communities will also result in different systems among Inuit, depending what region you locate yourself. Having said this, the predictability and professed universalism of the existing system may be more appealing because it is well known and experienced by many.

There are certain safeguards in place in the existing system along with infrastructural supports where victims have some protection. So, if these are not available in the alternatives, then it would seem likely that women ultimately will choose what offers them the most protection. Yet, when the community - the accused and victims- are given the choice between the outside system and their "own", the pressure to choose their own system will be great. Those choosing the existing system gets interpreted as not supporting "their own" system. This further alienates the women and places unbearably, yet intangible, pressure making it difficult for them to choose the existing system.

In the context of Inuit culture, there is nothing so exact, complete as a "traditional system" or "traditional practices" you can immediately identify and implement. The traditional practices such as a shaming song, parties individually fighting one another, banishment, -are not being called upon by women to replace the existing system.

There seems to be a practice adopted by those who write about aboriginal justice reform wherein they refer to "community-based initiatives" and "traditional practices" as if they are synonymous. People may be calling for 'community participation' but that does not necessarily mean a return to an actual "traditional practice". Traditional values and a return to these, may be what some are calling for - but that is not always the case.

There is a need for clarity and distinction between conventional community-based initiatives and traditional practices. These are seen to be one in the same by many observers. There is an assumption that because the members of the community are aboriginal therefore the alternative being proposed must be a “traditional practice”, or at least, “aboriginal”. I sense this is also a theme in this federal document-that I would suggest be confronted and dealt with.

It would be useful to examine the system or practice being advocated in the community (regardless of whether it is a traditional practice or a community-based initiative involving community people. designed by and implemented by local people), in terms of the issues raised above around creating further obstacles and barriers to victims.

The criminal justice system as it operates in the community is identified and the alternatives (traditional or community-based) are presented here as two separate systems operating mutually exclusive of one another- the distinction being used (artificially) being non-traditional and traditional. Many of the alternatives being initiated and used in Inuit communities are initiatives such as diversion, mediation, sentencing circles and are part and parcel and very much dependent upon the existing criminal justice system as it exists to day. They are far from separate and apart from each other. In fact the amendments of Bill C-41 regarding alternative measures attempt to incorporate these alternatives into the system.

The right to choose between the systems or practices means that one of the group of rights, those of the accused, no doubt will be focused upon. Ultimately the "rights" of the accused vis-a-vis the "needs" or "interests" of victims, are perceived as paramount- so, where choice is an issue between what initiative is used, it is clear that the right of the accused, as defined by the existing system will be presented as be paramount to the "interests" of the victim. The right to choose, unless standards sanctioned by laws were in place that provided guidelines to be followed when making the choice, ultimately means the choice of the accused will prevail. The amendments to Bill C-41 regarding Alternative Measures and their use are vague in setting out guideline or standards- this is left to programs to be designed.

This begs the questions, how do you ensure the victim has a say in this determination or choice of what route to follow and that the victim is able to fully participate without coercion, harm or fear of reprisals? These questions must be asked and their response should help determine the standards and guidelines applying to the use of these alternatives and the election or choice of specific alternatives.

#21 - "consensus"(see also #18 - "consensus" #16 - "consensus-based")

need to ensure that the assumption that "community" and "victim" are one in the same, share the same values, interests and outcomes- is challenged

#21 - advocacy support and confidential protections

The issue of lack of support and protections are indirectly addressed in this comment to ensure aboriginal women and men requiring the same level of services available to other victims and offenders in Canada. This reference, which implies that women and men now have the same level of services and that these should not be diminished, minimizes one of the major criticisms raised by Pauktuutit with respect to these community-based initiatives. Pauktuutit is very clear that unless services are in place to provide support to both offenders and victims and do not rely on these services being provided without additional resources - to train and pay those involved- alternatives are not welcome.

It is important to identify the success of the implementation of these alternatives is conditional upon the necessary infrastructure being implemented or already in place- such as victims service workers, male batterer counselling program, in addition to the social worker and addiction's counsellors in the communities. This point again relates to the earlier one on credibility and accessibility of alternatives.

The issue of credibility of an alternative will arise if it is poorly funded and not accountable; these issues must be addressed so that the choice between the existing system and alternative does not come down to which is better funded and able to support, assist and protect the woman. If this is the basis of the decision, the alternative will never be seen to be credible in the eyes of the woman, young girls and children who are the victims in these cases.

The women working with Pauktuutit on the Justice Project have been very clear in stating that one of the reasons the existing system is not working is because they don't have the advocacy services available in other parts of Canada, and other services available to victims and offenders found elsewhere.

This raises a general point/issue that I think is missing and perhaps a separate paragraph under the Aboriginal Women section is required. Any alternative, be it traditional or a community-based conventional initiative, must have the necessary infrastructure in place to sustain this alternative, including trained and skilled community service providers who are paid for their services. If an alternative is reliant upon a significant volunteer component, it will be unreliable and can vary considerably in level of services, it also means that existing, over-utilized community resources will be further taxed. In the new Corrections legislation dealing with early release, there is an express provision dealing with the need to establish within aboriginal communities, half way houses (s. 81). This provisions is followed by a very explicit provision expressing the federal government's obligation to fund these initiatives. This type of statutory commitment is needed for alternatives we are discussing as well I think.

The reference to "traditional systems" or "practices" implies there is something already in place, waiting to be implemented by people who are skilled and trained to do so. We know this is not the case with respect to Inuit communities. This terminology, furthermore, makes it difficult to argue and substantiate the need for funding to promote activities at a community level that provide opportunities for members of the community to design community-based initiatives and implement them and to provide training for community members to deliver these services. We must address the need to have infrastructure and services in place prior to implementing a community-based program or initiative.

Furthermore, the requirement for funding of infrastructure and resources associated with the initiative can also be directly connected to the requirement of funding being conditional on these programs or initiatives having certain safeguards and protections in place for victims that are supported by organizations representing women before they are eligible for funding.

# 21 - negotiation of protection of women's rights in self-government arrangements
#23 - Inuit youth in pre-trial incarceration and suicide

The levels of Inuit male youth committing suicide while awaiting trial was the subject of a research study done by an Inuk man in Iqaluit. His findings were very disturbing and revealed a very high number of youth who commit suicide awaiting trial.

#25- the nature and scope of youth crime has to be addressed

In Inuit communities a significant number of offences of youth involve serious violent offences by male youth against women and young girls. This needs to be addressed in terms of appropriate response to these offenders and identification of their needs as well as the needs of their victims.

#25 - child abuse

There is reference to child abuse in this paragraph. Studies have shown there is a correlation between child sexual abuse, child abuse, children witnessing abuse and youth crime. There is a need to address this correlation. In the context of violence against Inuit women, of the 80 to 90% of women being abused, most of this abuse is taking place in homes where Inuit children are exposed or aware of such violence. This exposure to violence impacts upon youth and their own criminal activity as youth or later as adults. This should be addressed.

#2? (paragraph not noted)

There is reference to "women may have needs and demands different than males". As accused or victims, we know that the needs and demands are different, who so tentative?

There is reference to "other social ills may differ by gender". There is very clear factual evidence demonstrating the impacts of poverty being very different for women than men, for example, again why written so tentatively. There is a need to identify the connection of gender inequality to violence and other social ills- you quote and rely on the Canadian Panel on Violence Against women for statistics, they also point this link out clearly, and make recommendations on the need to address this link - why not here?

Evaluation of these Alternatives

measures of success of projects and alternatives must not simply look at recidivism rates, rates of reported crimes. These measures further victimize women by relying only on quantitative statistics women have challenged as not reflective of what is the true picture of the community. For example, many crimes are not reported for fear or safety reasons. Some women may not report crimes if they know the response will be use of a diversion program and not go to court.

Measures used in evaluation must address the barriers and systemic inequalities facing women in the communities not promote them.

Department of Justice (Canada), Record of Proceedings: Aboriginal Women and Justice - Consultations - Inuit Women, - November , 1993

(a) Court Structure

Individuals in the justice system must be sensitive, they must unlearn racism and they must be culturally aware without romanticizing Aboriginal life and culture. (p. 3)

Training of justice workers should be evaluated. (p. 3)

Cross-cultural training for lawyers, judges and other justice representatives should be mandatory. In order for the justice system to be culturally sensitive, the personnel must be educated about the Inuit communities, the culture and traditions, and the laws which highlight women's issues and needs. (p. 9)

A victim must deal and resolve their own pain before they can help others. A victim support program is needed. (p. 14)

The women must be given means with which they can protect themselves. i.e., access to services such as police protection and information about support, legal rights, etc.(p. 14)

A need for independent victim advocates to provide support and information to victims. A victims advocated would also ensure that sensitivity to all the needs of the victim is given by all justice workers.(p. 14)

Women need help facing their fears in order to speak out against their abusers. The Inuit women feel the need for support from an women's advocate. An advocate would counsel and support them when searching for solutions to problems of violence. The Inuit women feel that the advocate should be someone outside of social services and accountable only to the victim. Court support is also necessary. (p. 13)

Effective services targeted to women and victims must be staffed by women in all areas of justice - from advocates to Crown offices. (p. 14)

There is a need to eliminate myths about women, violence and Inuit culture (i.e. the myth that Inuit culture allows sexual assault). (p. 14)

Juries do not work in Northern communities.(p. 2)

No jury trials in communities where the crime is committed (it should be noted that this recommendation was made to sexual assault cases involving women and children) (p. 14)

In order for victims to serve as jurors, it is important that they have undergone healing. This is essential to perform their duties objectively. (p. 16)

The jury system does not adequately meet the needs of the Aboriginal people in the North. For example, community members are usually reluctant to serve as jurors - an offender could be a relative. (p. 18)

(b) Community-based Justice and JPs

Note to Readers: The issues raised in these excerpts speak are relevant to both community-based justice initiatives and JPs working in the communities. It is difficult to separate excerpts specifically directed at JPs from those specific to community-based justice, as the women often saw JPs as part of community-based justice.

Justice committee selection is inappropriate. (p. 2)

The aim of the justice systems is to ensure the safety of all community members and to help create a healthy community Services should be suited to the community and not the reverse.(p. 16)

Diversion programs have been implemented before community healing and development. One must be careful not to put the "cart before the horse."(p. 16)

Diversion must begin at the regional leave only when comprehensive development training has been undertaken and completed. (p. 16)

There must be a balance between community diversion and the needs of the victim. Victims must be included in the process if they select to do so. (p. 16)

A major dilemma for victims of abuse is that the community often supports the accused. There is no understanding of "zero tolerance" of violence in the North. In order for victims to serve as jurors, it is important that they have undergone healing. This is essential to perform their duties objectively. (p. 16)

Inuit women…must work towards a balance between two worlds. It is essential that Inuit women participate in the planning of priorities and development of a process by which specific needs can be identified and addressed. It is crucial that women be in the forefront of change and play a role in solutions for today's world. Acceptance and support of these solutions can only be accomplished through active participation in the process. (p. 2)

With regards to a role in the justice system, Inuit women stressed the importance of equality between men and women. They must be given equal access to the same opportunities. (p. 2)

A justice system must reflect and support equality between men and women. As an integral foundation of this Aboriginal justice system, the fundamental principle of equality between men and women as defined by the respective traditions and cultures of the Inuit, Métis and First Nation, must exist (p. 2)

Traditions and culture are often confused. They are not the same thing. Traditions can be "bad habits" where culture allows one to be the best s/he can be. There is a need for a balance between the past and present to be achieved. Aboriginal peoples must stop romanticizing the past and address the realities of the present. (p. 7)

A vision should include a broader perspective and go beyond the role of the Elders. It was noted that the Christian influence can be responsible for many "bad habits", especially for the non-acceptance of certain community members such as gay community members. (p. 8)

With regards to abuse, one must explode the myths and promote understanding about the dynamics of why men abuse. Common myths include:

  1. Myths about culture and Christianity - Elders are holy and leaders are above the law;
  2. Elders, leaders and Christians who abuse are under stress;
  3. Women ask for abuse;
  4. Inuit culture allows assault against women and children;
  5. Inuit culture allows men to control women;
  6. Children can be sexually assaulted when they reach puberty ; and
  7. All Inuit people are drunks.

Excuses used to support myths and which dismiss the offender from being responsible for the crime are as follows:

  1. if you learned to abuse in your upbringing;
  2. if you are "nagged" by the woman you assault;
  3. if you have a stressful job;
  4. if you are an Elder, leader or "good" Christian;
  5. if you are or planning to undergo treatment
  6. if you plead guilty;
  7. if the woman you assault was under the influence of alcohol or alcohol involved in some way;
  8. if you support your family (for government employees, it is assumed the wife will become homeless; and
  9. if you are " born again."(p. 8)

The message must be conveyed that violence is not part of Inuit culture. A positive approach must be taken in the development of role models for the community. Children must be taught their rights to protection and personal safety. Pauktuutit is a good role model and should initiate steps to generate public interest. (p. 9)

A justice system must be defined as one which is culturally relevant yet does not romanticize the past. It must deal with the realities of today. (p. 9)

Changes to the justice system are happening too fast and without the involvement of Inuit women.(p. 2)

Legal Aid

Legal Aid should be accessible to all women who are in need. Access to the justice system must be made possible through legal aid so that all women including isolated communities have access to family law and other aspects of the justice system.(p. 16)

There is a need to support the family before a child is removed from the home. (p. 20)

Disabled Women

Disabled women are more vulnerable to abuse (p. 2)