Our land: our laws. Court in Nunavut.
As a result of decades of negotiations between the Canadian government and the Inuit people of the Nunavut region of the former Northwest Territories, a settlement was reached respecting the land claims of the Inuit. This settlement included the creation of the new territory of Nunavut which was carved out of the eastern portion and central arctic portions of the former Northwest Territories. The new territory was created effective April 1, 1999. The western portion remained the Northwest Territories. The new Nunavut territory is essentially the ancestral homeland of the Inuit people. Nunavut means our land in the Inuktitut language.
The creation of the new Nunavut territory was accompanied by the creation of the new territorial government. The new region and government balances the traditional culture and beliefs of the Inuit people within the basic Canadian institutions of democracy and federalism. In other words, the new Nunavut Territory can be seen as a response to address both aboriginal self-government while continuing the territorial government under the direct jurisdiction of the federal government of Canada. This in itself is a unique marriage.
The laws of the Northwest Territories in force at April 1, 1999 continued to remain in effect in the new territory until new legislation was passed in Nunavut. The Department of Justice of the newly created government of Nunavut has many responsibilities including ensuring that the laws of Nunavut are consistent with the constitution of Canada and the Nunavut Act, which created the region of the territory of Nunavut. The Department of Justice is also responsible for administering the Nunavut Court of Justice.
Structure of the Courts
The new Nunavut Territory is unique in many ways including the Inuit culture and the nature of the life in the territory. The Nunavut Territory covers a huge expanse of land and the population is spread out. It was natural that a unique court system would be developed to address the unique characteristics of life in the Nunavut Territory.
The Nunavut Court of Justice (Trial Court)
The large expanse of the Nunavut territory led to the creation of a unique single-level trial court. The "Nunavut Court of Justice" was created effective April 1, 1999 and was empowered with all of the powers, duties, and functions of the previous Northwest Territories trial courts by An Act to Amend the Nunavut Act with respect to the Nunavut Court of Justice and to amend other Acts in Consequence, 1999.
Prior to the creation of this new unified trial court, there were two trial level courts in the Northwest Territories: a Territorial Court and a Northwest Territories Supreme Court which had a broader jurisdiction than the Territorial Court. This division in the trial courts is similar to the provinces: for example, the Province of Alberta has the division between the Provincial Court and the Court of Queen's Bench of Alberta that has a broader jurisdiction to hear matters.
The Nunavut Court of Justice is empowered to hear any trial level matter.
The territorial Court of Appeal remained a separate court. There are also Youth Courts for the Nunavut Territory. The Nunavut Judicial System Implementation Act, Statutes of the Northwest Territories, 1998, among other things, established the composition, power, and officers of the Nunavut Court of Justice and the Court of Appeal.
Circuit Court Feature of the Nunavut Court of Justice
Another feature of the Nunavut Court of Justice is that it has a circuit court to better service the people of Nunavut by traveling, where possible, to the people's own communities. The Nunavut Court of Justice generally sits two to three times a week. There is at least one sitting of the Nunavut Court of Justice in Iqaluit and at least one traveling circuit court.
According to the Nunavut Court of Justice website, the traveling circuit court travels to the larger communities that have RCMP detachments, and covers about 85 % of the communities in Nunavut. The frequency of travel to any one community is determined by the number of charges from that community. The travel to each community can therefore vary substantially, and the Nunavut Court of Justice may attend in a particular community from every six weeks to two years.
The traveling circuit court sits in the available accommodations such as community halls or school gyms. Its personnel consists of at least a judge, a clerk, a court reporter, a crown prosecutor, and at least one defence lawyer.
A further unique feature is that elders and Justices of the Peace are able to sit with the judge in the Courtroom and to speak with the accused between sentencing submissions and the passing of sentence.
Judges of the Nunavut Court of Justice
Two judges were appointed to the new Nunavut Territory: Madame Justice B.A. Browne as Senior Judge, and Mr. Justice R.G. Kilpatrick.
Madame Justice Browne graduated in law from the University of Alberta in 1975, and was admitted to the Bar of Alberta and the Northwest Territories in 1976. She was appointed to the Northwest Territories Court in Iqaluit in 1990 before being appointed to the Nunavut Court of Justice.
Mr. Justice Kilpatrick graduated in law from the University of British Columbia in 1980, and was admitted to the Bar of British Columbia and the Yukon Territory in 1981, and called to the Bar of the Northwest Territories in 1992. He was Administrative Crown Counsel with the Ministry of the Attorney General in Smithers prior to being appointed to the bench of the Nunavut Court of Justice.
Show Cause Hearings and Remands
An example of the attempts by the judiciary to adopt procedures and policies which address the unique culture and life in Nunavut is "The Nunavut Court of Justice Practice Direction #1". This Practice Direction addresses the naming of judges and procedures on show cause hearings and remands. Justice Browne and Justice Kilpatrick jointly issued this Practice Direction, stating that it was inappropriate to address the Judges of the Nunavut Court of Justice with the titles of "My Lord" and "My Lady". The Justices recommended the usage of "Your Honour", "Judge" and "Justice" instead.
Of more significance are the unique procedures set out in this Practice Direction for show cause hearings and remands. Specifically, upon arrest by the RCMP and the RCMP's determination that the accused should be detained in custody, the underlining principles are that an accused should have the opportunity to obtain counsel as soon as possible and, where possible, a show cause hearing should take place in the community within which the charge arose.
A general summary of these procedures is that the RCMP will first contact Crown counsel to determine the appropriateness of a show cause hearing, and then the accused will be able to contact counsel. Where it is not possible to have a show cause hearing in the community, the RCMP shall complete a prescribed "Checklist for Show Cause Hearing" and fax it to the Clerk of the Court in Iqaluit, and the Clerk will try to arrange a show cause hearing by telephone. If this is not possible, then the accused will be transported to Iqaluit, and remanded to the first available Tuesday of the sitting of the Nunavut Court of Justice.
Program or Services Related to the Nunavut Court of Justice
The Department of Justice's website summarizes its responsibilities to include administering the Nunavut Court of Justice, and many related programs and services. For instance, the Court Services Division provides support services respecting the Nunavut Court of Justice to everyone, including the judges and the lawyers, and the RCMP and the public.
Also, the Legal Services Board was established to ensure that all people in Nunavut who are eligible for legal services receive them. Its head office is in Gjoa Haven, and it became a stand-alone Board on July 1, 2000. In addition, the Community Justice Program was established to develop community justice and victim services. Nunavut Corrections is focused on healing and rehabilitation. It provides on-the-land camp operations and open custody facilities.
The region established its own Law Society of Nunavut. The recent issue of Polar Barristers by the Law Society of Nunavut notes that the membership statistics as at July 31, 2001 include 197 members, 15% of whom are from the region of Nunavut and 35% of whom are from the Northwest Territories.
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|Date:||Dec 1, 2001|
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