"No Stops. Justice Awaits!"

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(The title of this post is a quotation made by the Justice overseeing a jury trial in one of the local First Nations communities while on-route)

I thought it was about time I updated you all about my comings and goings during the past week! This posting will take on a more serious tone as I have had an opportunity to witness court proceedings and travel to one of the local First Nations Communities.

Before I start, for the sake of privacy and confidentiality, I will not be using any person or place names in this blog without permission. I don’t want people to draw unfair conclusions based simply on my observations and opinions.

Last week I sat in the Territorial Court during Criminal procedures. The one thing that I noticed immediately is that every accused person brought from downstairs was aboriginal. When the eighth person was brought up I found myself wishing and hoping that the person would not be aboriginal. Unfortunately, my wishes went unheeded. This concerned me a bit as the picture of the courtroom was as follows- European (white) lawyers and judges all acting on behalf of, against etc for this aboriginal person. It was a cultural conundrum and didn’t sit well. However, what are we to do when crimes are committed? Let them go unpunished? Put the prosecution of crimes into the hands of the cultural community in which the offender resides? How could this possibly be maintained?

Further, that day I was completing some research regarding S.486 motions in sexual assault trials. For those unfamiliar, a S.486 motion asks the Justice to consider excluding the public from the courtroom during the complainant’s testimony. Other things that can be requested under this motion are for there to be a publication ban so that the complainant remains unknown to the public, a screen to be put up separating the complainant from the accused during his/her testimony, for the testimony to be given from a separate room and seen on a T.V. screen in the courtroom, or for there to be a support person present during testimony.

My research ended up being a rather depressing endeavor. I was looking specifically at discussions regarding excluding the public from hearing a complainant’s testimony in small aboriginal communities. A difficult task! I looked at many, many sexual assault trials that took place in the Northwest Territories and found that most had almost the exact same fact scenario, with a few minor variations: Everybody involved starts drinking copious amounts of alcohol early in the day. Around early evening, the complainant involved is too intoxicated to get him/herself home and ends up going to bed at the residence where he/she is situated. He/she groggily wakes up to a sexual assault in progress. The accused is usually a person who has been drinking with the group all day or a drunken resident of the house in which the complainant passed out in.

This type of case truly seems like an endemic problem, as many of the Justices in their decisions were commenting on how they see cases like this far too often and that something needs to be done. It should also be noted that the accuseds in these scenarios almost always choose to be tried by a judge and jury. Jury trials are rare occurrences in Ontario; however, I have been told that accused tends to believe that they are less likely to be convicted by members of their own community.

Bringing justice to the community (having trials in small aboriginal communities rather than requiring them to take place in Yellowknife) is something that was started in The Northwest Territories about 50 years ago. The Judge that started it believed that justice was not adequate unless you were truly being tried by your peers. Therefore, Judges and Justices of the Territorial and Supreme Courts of Yellowknife are constantly on the road overseeing trials in many of the small communities scattered about the territory.

Yesterday, I had the opportunity to travel to one such community in the hopes of observing a jury trial. Unfortunately, the court was unable to find a jury because each member of the community summoned was either related to the accused, the complainant or the chief witness. There was even a S.642 summons that required the Sherriff going out into the community and rounding up people off the street to serve on the jury! I don’t think this ever happens in Ontario. However, being unable to find a jury is not uncommon as I was told that juries are only found about 50%!o(MISSING)f the time.

During the lunch break I took the opportunity to have a look around. As I was a visitor on the community’s land, I felt I had an obligation to learn about the people who lived there. After a bit of wandering from building to building, I found a lovely lawyer who told me all about the community and some of their upcoming events.

Here is some of the information I was able to gather:

-The Tlicho Government entered into a self-governing agreement with the Provincial and Federal governments in 2005. It was the first comprehensive land claim and self-government agreement negotiated in the NWT. This involves regulating the use, management and protection of lands and renewable and non-renewable resources, land use planning, managing and harvesting the fish and wildlife on lands, and creating new offices entities and institutions.

-The people specialize in making birch bark baskets, beautiful drums, and moccasin slippers.

-Although there are challenges, many members of the communities are fighting for the health and well-being of their people.

I leave you this this quote from the Tlicho government:

"All the world has laws. There are many thousands of different animals on this earth and they all have their own laws. Look at the different kinds of trees; they all have their own laws. When we walk in the bush we think of all of them. This is how we learn the way of all life, and the things we don't know, we get to know. This is why God put things on this world and why we are entreating to each other.!" ...translated from Tåîchô oral record. Jimmy B. Rabesca (1990) in Strong Like Two People page 33-35.

The website can be found at: http://www.tlicho.ca/tlichogovernment

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