Nunavut Justice Issues: An Annotated Bibliography

4.  Annotated Bibliography (continued)

LaPrairie, Carol.  The New Justice: Some Implications for Aboriginal Communities . Ottawa: Department of Justice, 1997.

The nature of community relationships and the important issues of community dynamics and mobilization are explored and grounded in this paper, with a particular emphasis on Aboriginal communities.

General Overview

LaPrairie documents the rise of the new justice (restorative justice, informal justice) and finds that it is grounded in a challenge, by communities, to the state monopoly on the discussion, definition, administration and control over justice.  In the new justice the community is the focus. In this article, LaPrairie examines and describes the critical issues of community in community-based justice initiatives within Aboriginal communities.  Based on that analysis she lists the principles that should be incorporated into the development and implementation of local justice initiatives so that these critical community issues are adequately addressed.

Themes/Assumptions

Findings

Community involvement can take place at one or both of two levels: Involvement can take place through the greater participation of community members in the adjudication process (such as Sentencing Circles, local Justices of the Peace, sentencing panels or Elder panels) or in the alternative approaches to formal judicial processing (i.e., mediation and diversion).

Defining the community: It is critical that the community be defined so that it can adequately fulfill the obligations and responsibilities that it has, and the obligations and responsibilities that arise from justice that is based in the community.  There are a number of forms such a definition can take (i.e., as a community of care or as a concept of community that is grounded in geography).  Whichever form is chosen, it must be clearly articulated.

Community representation: It is critical that the individuals who participate in local, community-based justice initiatives represent the community that it both intends to serve and relies upon (i.e., the victim, the offender and the larger circle of those involved).  If it is not represented, the community will not support it and as a result the goals of the initiative will be undermined.

Community involvement and participation: It is critical that there is adequate community involvement and participation in community-based initiatives.  The community must be involved in determining case selection (so the needs of those involved are indeed met) and in determining how their resources (financial and human), often limited, will be used.  Power dynamics in communities might decrease the level of community involvement and efforts must be made to address this and ensure full participation. 

Accountability:  It is critical that there is accountability in community-justice initiatives.  This is a paramount issue if members are to see the community-based structures as legitimate and credible. 

Presence of these issues in the evaluation literature: Through her examination of the evaluations of community-based justice initiatives that have been done (Hollow Water, Sentencing circles, community justice committees), the author finds that although the data is elusive at present, there are problems that arise.  These problems are grounded in the community issues she outlined.  Specifically, she addresses the level of community satisfaction and the offender-focus (which often takes place at the expense of addressing victim needs).

Conclusions

Need for greater clarity: The problems that have been experienced to date indicate that there exists a need for greater clarity in the development and implementation of local justice services.

Principles to incorporate in developing community-based justice initiatives: The author holds that community justice is very important, but if it is intended to meet the symbolic and real needs of the community, the offender and the victim(s), the community has to play a realistic, credible and effective role in addressing the harm and its effects, reintegrating individuals back into the community, and strengthening the community.  The following principles (to guide the development of local justice initiatives) are presented as ways to ensure that these goals are met: 

Mourot, Lynne and Betty Bird.  “Intensive Supervision as an Alternative to Custody for Young Offenders”, in Preventing and Responding to Northern Crime Burnaby: Northern Justice Society, Simon Fraser University, 1990.

Intensive supervision is an alternative measure, one that is grounded in the resources of the community. It arises from the needs of the community to address the actions of the young offender. It is an example, one among many that are discussed here, of a community-based alternative that some First Nations are using.  This presentation and the following discussion highlights lessons learned, the Northern environment, and the issues surrounding community mobilization and power dynamics.

General Overview

Through dialogue led by Lynne Mourot (Regional Young Offender Manager, North East Region, Saskatchewan; Social Services, Prince Albert, Saskatchewan) and Betty Bird (Intensive supervisor in Little Red River Reserve, Saskatchewan) the use of intensive supervision is described, the roles of the agents are discussed, and the challenges it faces are articulated.  Intensive Supervision is an alternative measure for young offenders (as outlined in the Young Offenders Act).  It is used in conjunction with probationto maintain a young offender in his or her own home instead of at a custody facility.

Underlying Themes

Findings

Intensive Supervision as a community-based initiative/alternative: It is a model that emphasizes the community by using community homes and the resources that the community has to offer.  It is based on the community’s need to be involved in effectively addressing the behaviour.  It is a program that is run by project coordinators and supervisors within the community.

Intensive supervisors: Intensive supervisors, respected members of the community, live in the community and have cultural knowledge.  They apply to become intensive supervisors and they are paid for their services.  They are given training and they are teamed with a youth that the organization feels they are compatible with.  For example, if a youth gets into trouble with the law, the project coordinator will go to the court and inform the judge that there is someone available in the community to supervise the youth, spend time with him or her and ensure that the conditions of probation are met.  A contract is drawn up, agreed to and signed, by the youth, the supervisor, the youth court, parents, the lawyer and the youth services supervisor.  In the contract the schedule is specified: the number of hours per week for so many months.  The intensive time spent with the youth is intended to decrease as time goes on.

Criteria for recruitment of supervisors: Elders and community members choose a natural helper, someone who cares about the youths in the community.  The individual cannot be a member of the youth’s immediate family, they cannot live in the same house and they must not have a criminal record.  The supervisor must represent a figure of authority for the youth.

Responsibilities/roles of the intensive supervisor: The intensive supervisor has a variety of responsibilities and roles.  They ensure that the conditions of probation are followed (i.e. alcohol treatment, school attendance, getting home at particular times/curfews).  It is important that the supervisor understand the needs of the youth, so that they can work with the youth in a way that will prevent the youth from being put into a position that will make failure imminent.  For example, if the youth is 17 years old and not successful in school, it may be a bad idea for the supervisor to push school attendance. If they did, the youth may be ‘set up’ for failure.  Consequently the intensive supervisor must know the youth, their strengths and weaknesses and have familiarity with the youth’s environment.  The supervisor is also responsible for attending to and knowing the youth’s progress and behaviour at school or in the community generally.  Finally, the intensive supervisor acts as an advocate for the youth,standing up for their interests when necessary and providing care, guidance and support.  The supervisor works with the whole family, these activities are not done in isolation with the youth.

Challenges that face the program: (1) Addressing low levels of involvement in the community. The resource persons held that the answer to this real limitation is to give the community active roles and responsibilities in organizing and ensuring their representation.  Doing so may inspire members to become more involved.  (2) Participants held that some parents have treated this program as a babysitter service.  This is a real problem.  Referring to the intensive supervisors as babysitters of their children limits the parental involvement and belittles the important role that intensive supervisors play.

Conclusions

Nungak, Zebedee. “Fundamental Values, Norms, and Concepts of Justice” in Aboriginal Peoples and the Justice System.  Ottawa: Royal Commission on Aboriginal Peoples, 1993.

Although this was written with the interests of the Inuit communities of Northern Quebec at the fore, a number of issues that it addresses are relevant for justice dialogue in Nunavut.  In this article, Iqaluit was deemed an example for Nunavik even though the programs Nungak speaks highly of have a number of problems that will be replicated if the program is adopted as it is.  This article addresses the Northern environment and the relationship with the formal criminal justice system.

General Overview

This article was submitted by the author and presented to the Royal Commission on Aboriginal People’s Round Table Discussion Aboriginal Peoples and the Justice System.  Nungak was the Chair of the Inuit Justice Task Force and is now vice-president of Makivik Corporation.  Much of this discussion revolves around Nunavik and the Inuit experiences in Northern Quebec.  Nungak speaks to the need for fundamental reform in the way the justice system operates in Inuit communities. He holds that the lack of Inuit control is the fundamental flaw of the justice system.  In his four appendices Nungak explores justice issues affecting residents of the Arctic.  First, he briefly outlines the limitations of the justice system that is available to the residents of Nunavik and presents three alternative dispute resolution models.  Second, he examines the unique justice needs of the Nunavik communities.  Third, he looks to other jurisdictions, specifically Iqaluit, to examine how the justice needs of those Northern residents and Inuit are met.  Fourth, he discusses the cross-cultural/training program in Quebec and raises important issues regarding Inuit peoples and the criminal justice system. Through his consultations with Nunavik communities and research into other Arctic communities and their handling of justice issues Nungak came to a number of conclusions regarding justice issues in the Arctic environment and Nunavik in particular.

Underlying Themes/Assumptions

Findings and Conclusions

The shortcomings of the present justice system and its administration are numerous. Among the problems are the advers nature, the external site for control, the long delays, the cost, the reliance on specially trained professionals to decipher and interpret a complicated system, and the implications of being administered by those who are ignorant of Inuit culture and society and language.  These are all serious issues that must be addressed when considering justice in the North.

Northern environment: The author points out that the issues of geography must be considered when planning justice forms and initiatives whether at the community level or the governmental level.  Living in a remote Arctic environment means special needs arise. The distant and foreign detention centres, the lack of available legal services in the community, the lack of addiction healing facilities and family crisis services are all examples of the failure of the existing system to meet Northern justice needs.

Need for Inuit administration of justice: Nungak calls for a criminal justice system administered by Inuit peoples.  There is a need for Inuit police, courts and detention facilities, operating on principles that reflect Inuit language, culture, and their environment.

Iqaluit justice system as an example for Nunavik: The correctional services, local court system (Justices of the Peace) and legal aid services of Iqaluit are seen by the author as an example of how the court and legal system in Nunavik can function and meet the needs of the community.  The detention centres are staffed almost completely by Inuit, and the programs that are used instill community-based and land-based skills that focus on teamwork and responsibility.  The Justices of the Peace (JP) local court system represents a successful example of addressing community justice issues.  Their success is due to the fact that “local matters are dealt with in a local basis and with local understanding”.  He goes on to say that “in the North there is a need for locally based problem solving rather than externally based problem solving, simply because things and problems are better understood on a local basis” (98-99).  JPs are able to effectively deal with those issues while at the same time they are able to include the community in a meaningful way.  The JP program in the Northwest Territories gives JPs all the power of a Provincial Court Judge.  As a result, they are able to address and hear all but indictable offences.  These JPs are also given the authority to include the community in addressing conflict and criminal behaviour.  Further, the Task Force found that in the smaller communities, the JPs are all Inuit.  The Legal Aid Clinic in Iqaluit - Malihanik Tukisiiniakvik - was also seen as a positive step in addressing Northern justice issues and was deemed particularly important for Nunavik.  Nothing like these structures existed in Nunavik.[3]

Variety of issues when discussing justice and justice delivery: Tensions exist regarding criminal justice issues in Nunavik.  These tensions were articulated at a Quebec training course on cross-cultural information and understanding.  They revolve around the role of traditional

Inuit social control systems in modern Inuit society and the benefits and limitations of indigenizing the existing criminal justice system.  While hard and fast answers are not available, the issues that are presented require serious attention so that a further understanding of the needs of particular communities can be discerned.

Obonsawin-Irwin Consulting Inc.  Future Aboriginal Community Needs: An Addendum to the Sandy Lake and Attawapiskat First Nations Justice Pilot Project Evaluation Reports, July, 1992.

This piece highlights lessons learned and the dynamics of community mobilization and power dynamics.

General Overview

This addendum is part of the Sandy Lake Pilot Justice Project Evaluation.  In this addendum, a number of issues are addressed and conclusions are drawn regarding the development needs for future Aboriginal community justice projects.  It was felt that such a focus required a separate annotation to ensure that the important ‘lessons learned’ from Sandy Lake are shared with communities who are undertaking the development of their own justice projects.  In this addendum a number of findings, based on questionnaires, are shared; findings regarding what is needed in the community to accommodate a project such as the Sandy Lake Justice Project, the degree and type of training and community development work that is necessary before community justice projects can successfully be implemented, and the community resources needed.  Based on these findings, the researchers draw a number of conclusions.

The methodology that guided their findings included: Questionnaires distributed to community leaders and justice personnel in both Sandy Lake and Attawapiskat.  37 returned questionnaires (from both communities) form the basis for these findings.

Findings

The developmental needs of future Aboriginal justice projects: The respondents identified a number of areas that require attention when developing future community-based Aboriginal justice projects.  They responded that community involvement must be ensured in the development stage and in the discussion on alternative and dispositions.  They held that there is a need for conducting legal education sessions in the community for the community members and more training required for the Elders on the Elders' Council.  They point out that Criminal Code cases cannot be diverted until a better understanding of court procedures and court systems are developed.  It must be ensured that community resources and facilities are available to facilitate a wide range of sentencing options.  For example, institutional resources for implementing a community service order, availability of probation services, substance abuse counselling and treatment programs, and wilderness camps and adequate lock-up facilities for intermittent sentences.  The respondents supported the establishment of a Community Justice Committee.  Such a Committee is important prior to developing a justice project to ensure community involvement and provide adequate resources for the project. The respondents also suggested that the community conduct a needs assessment and develop a plan of action prior to establishing a justice project.

Questions such as what the community leadership wants to achieve, previous community involvement in the justice system, court statistics and police occurrence reports and community perspectives on justice needs and how to address them would be incorporated.  Finally, the respondents suggested that the justice project develop separately from the political process. 

Administrative needs: Suggestions were requested for improving the administration of the justice project.  The respondents replied that proper record-keeping and follow-up to the courts was needed.  It was also noted that improvement of the courtroom and administration/counselling office facilities was needed.

Training needs: The respondents identified a number of training needs.  Many held that training is required in understanding criminal and family law, in understanding the justice process and court procedure and that cross-cultural training was also required.  Further, the respondents noted that an understanding of resources and how to use them needs to be developed so that the resources available for dispositions are utilized.  It was also indicated that substance abuse training is required: the high number of alcohol-related cases requires an understanding of the root causes of substance abuse so that the court can adequately address and develop methods to deal with substance abuse.  Training in how to deal with more serious cases was also indicated as well as administrative and office skills for staff.

Degree of community control and Ontario justice system control: A variety of responses were indicated when asked to comment on how much control the community should have and how much should stay with the government's justice system.  Some said the community should have complete control, while others said it should be an even distribution.  Some said it should not change from how it is at the time of the survey.  Although there was variety in the degree of control, a number of concerns regarding community control were shared: Ensuring equality in the system, ensuring the protection of individual and societal rights, protecting the community from serious offences and offenders, and ensuring that the political influence of the Band Council is not exerted on the justice process in the community.

Conclusions and Recommendations for Further Project Development

Community Development: The researchers hold that a project development process should be established.  Such a process would consist of three phases: a needs assessment phase, a project development phase, and a pre-implementation phase. 

Adequate training: The researchers conclude that adequate training must be provided to all involved in the project.  The training should reflect a balance between understanding and participating in the formal court procedures, while maintaining a level of creativity in recommending dispositions and sentencing.  The researchers hold that all the staff has different training needs and these must be met.

Community resources required: While recognizing the unique nature of First Nation communities, the researchers conclude that a number of community resources are required for a community-based justice project to be successful.  A community justice committee facilitates community involvement and agency coordination from implementation and operation of a justice project.  For community service orders to be effective there has to be community-based volunteers and employers to provide supervision. Adequate lock-up facilities are essential in isolated communities where the residents intend to utilize intermittent sentences.  Without it, the Elder is limited in his or her disposition options.  Inter-agency cooperation is also a community resource required to accommodate a justice project in the community.  A number of agencies can and should be used to assist in the sentencing and counselling process.  For example, substance abuse counsellors, probation officers, group homes, child and family service workers, mental health workers, educational counsellors and schools are all vital agencies.  Adequate space is required for court and office facilities.  The court environment should represent the need to adequately participate.  Office space must meet the need for privacy.

[3] Many of the voices in this collection do not share this positive view of the services offered.  Their analysis of justice delivery in Iqaluit would be quite different.