Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 52 - Evidence
OTTAWA, Thursday, February 4, 1999
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-57, to amend the Nunavut Act with respect to the Nunavut Court of Justice and to amend other acts in consequence, met this day at 10:46 a.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, I see a quorum. We are meeting today to consider Bill C-57, to amend the Nunavut Act with respect to the Nunavut Court of Justice and to amend other acts in consequence.
Appearing before us today we have the Honourable Anne McLellan, Minister of Justice and Attorney General for Canada; Mr. Andy Watt, Coordinator of Northern Issues; and Mr. Howard Bebbington, Counsel, Criminal Law Policy Section. Other representatives from the ministry are also in the room. I have a list of their names and, if we need them at the table, we will call them forward.
Minister, please proceed.
[Translation]
The Honourable Anne McLellan, P.C., M.P., Minister of Justice and Attorney General of Canada: Madam Chairman, I would like to begin by thanking you for allowing me to speak to you this morning, as you begin consideration of Bill C-57, An Act to amend the Nunavut Act with respect to the Nunavut Court of Justice and to amend other acts in consequence.
[English]
I hope to convey to you today the enthusiasm which surrounds this bill. I believe Bill C-57 is truly a "good news" bill. If passed, it will establish a new and innovative court structure for the new territory of Nunavut through amendment to the Nunavut Act, the Criminal Code, the Judges Act and other federal statutes. This new and innovative court structure has been specifically requested by the leaders of the new territory because they believe it will meet their needs and respond better than the traditional court structure to the unique geography and circumstances of Nunavut.
Honourable senators, I believe it is fundamental for the committee to understand that Bill C-57 and, indeed, the entire single-level trial court initiative is not an Ottawa-led initiative. Interest in the single-level trial court has existed for some time in the Eastern and Western Arctic.
Following a conference in Iqaluit in November 1997, organized by the Interim Commissioner of Nunavut and attended by Northern officials, members of the northern legal community and a large number of Northern JPs and court workers, I was asked by the Interim Commissioner, the Government of the Northwest Territories and Nunavut Tunngavik Inc., the corporate representative of the Inuit, to introduce legislation in Parliament to implement a single-level trial court for Nunavut. Bill C-57 is the government's response to that request.
Honourable senators, the draft legislation before you today was developed in close cooperation and partnership with the people of the North. A working group was formed to oversee the development of the federal and territorial legislation necessary to implement the single-level trial court. That working group was comprised of officials from the Government of the Northwest Territories, the Interim Commissioner's office and Nunavut Tunngavik Inc., in addition to officials from my department and the Department of Indian Affairs and Northern Development.
Bill C-57 was developed as a result of a true partnership between the people of the North and the federal government.
[Translation]
I told you that Bill C-57 will create a new and different court structure for Nunavut. I am using the term new here in two senses. First, as a new territory that will come into being April 1, 1999, Nunavut will need its own court system separate from that of the Northwest Territories.
Second, the court system outlined in Bill C-57 is also new because it will be different from the court structure found in other Canadian provinces and territories.
[English]
In other jurisdictions, there are, as we all know, two levels of trial court. They are the provincial or territorial court, the so-called "inferior court," although I must tell you I do not like that language, although I think it is language with which we are familiar; and the superior court of the province or territory. For Nunavut, Bill C-57 proposes to combine these two levels into one trial court to be known as the Nunavut Court of Justice. The reason for this change is as follows.
Justice services are delivered in the Eastern Arctic by flying court parties, including judges, lawyers, clerks, et cetera, in and out of the remote communities of the region. It makes little sense to fly two separate court parties, neither of which can hear all matters, in and out of these communities. Instead, Bill C-57 proposes to implement for Nunavut a single-level trial court that will be able to deal with all matters on the court docket, whether serious or minor, whether civil, family or criminal in nature. By implementing this change, we hope to introduce a court system for Nunavut that will be simpler and more efficient; that will reduce the number and, hence, the cost of court circuits; and, hopefully, reduce the delay for parties awaiting court appearances.
We also hope the single-level trial court structure will bring the court closer to the communities, with the judges of the court getting to know the communities better and the communities getting to know their judges.
Furthermore, we hope that this simpler court structure will provide sufficient flexibility to allow the people of Nunavut to further adapt their justice system to meet their needs after the territory comes into being on April 1, 1999.
[Translation]
We also hope that the single-level trial court will bring the court closer to the communities, with the judges of the court getting to know the communities better and the communities getting to know their judges.
Furthermore, we hope that this simpler court structure will provide sufficient flexibility to allow the people of Nunavut to further adapt their justice system to meet their needs after the territory comes into being on April 1, 1999.
[English]
It is important to note that, in developing Bill C-57, the government made a clear choice to preserve the substantive and procedural rights of parties before the courts to the fullest extent possible in a single-level trial court system. Bill C-57 is about court structure; it is not a piece of legislation designed to remove or accord new rights. Nevertheless, when you implement a new court structure by establishing a single-level trial court to operate in a legal system that is premised on a two-level trial court structure, there will inevitably be an impact on procedural rights.
This is so because, in a two-level trial court system, the superior court, in addition to its role as a trial court, also reviews and hears appeals from some of the decisions of the provincial and territorial court. This is, of course, something with which we are all familiar in the court systems of our provinces. When those two trial court levels are combined into one, it becomes problematic for the single-level trial court to hear reviews and appeals from its own decisions. Hence, either those rights of review and appeal are lost, or the legislation must provide for the reviews and appeals to go somewhere else.
In the process leading to the development of Bill C-57, a commitment was made that the people of Nunavut were not to have fewer rights than people in other parts of the country simply because they asked for a court structure with fewer levels of trial court. This commitment can be seen throughout the bill before us today.
Allow me to highlight two specific examples of this principle at work in the bill. They are summary conviction appeals and statutory review.
With respect to summary conviction appeals, Bill C-57 preserves the current breadth and scope of summary conviction appeal rights for all summary conviction cases in the new Nunavut system. The bill specifies that summary conviction appeals from the Nunavut Court of Justice are to be heard by a single judge of the Court of Appeal, with a second level of appeal to a three-person panel of the Court of Appeal.
Turning to the statutory review scheme, senators will understand that the usual forms of review available for decisions of the provincial and territorial courts through the prerogative writs will not be available for decisions of the Nunavut Court of Justice as it will be a superior court.
To compensate for this, the provisions of the bill will create a new statutory form of review for certain important decisions in the criminal justice process. Just as in the case with summary conviction appeals, the review will be conducted by a single judge of the Court of Appeal and an appeal will lie from the review decision to a three-person panel of the Court of Appeal.
Madam Chairman, senators, you may be interested, and you probably are, in the judges of the Nunavut Court of Justice when created. As members of this committee will know, I am committed to finding candidates who are qualified, experienced and dedicated to the North to be appointed to the Nunavut bench. I am also on record with my commitment to consult the people of the North to ensure that the judges appointed understand, and are sensitive to, the unique demands, culture and conditions of Nunavut.
You may be aware that the first member of the Nunavut court has already been appointed. On January 11, 1999, Madam Justice Beverly Browne was appointed a judge of the Supreme Court of Nunavut effective April 1, 1999. Justice Browne has sat as a judge of the Northwest Territories Territorial Court in Iqaluit since 1990. Madam Justice Browne's commitment to the North is clear and well known.
The North has been fortunate to have a judiciary committed to working with communities in innovative ways to deal with the unique challenges and problems in the justice system in the North. I know these efforts will continue with the judges of the Nunavut Court of Justice.
The legislation before you today, if passed, will create the basic structure of the Nunavut Court of Justice. However, it is the judges and other participants in the system who will have to breathe life into that structure and make it work. It is the commitment and excellence of the people in the justice system that will determine its ultimate success or failure.
I understand that, in the next few weeks, the committee will be hearing from witnesses from the Interim Commissioner's office and Nunavut Tunngavik Inc. I would encourage you to ask those witnesses about the partnership we established together for the policy development processes that led to Bill C-57. More important, however, I encourage you to ask them about their plans for the future of the administration of justice in Nunavut. Ask them about their hopes and dreams for implementing a justice system that will better reflect their culture, their values and their heritage.
I also understand, Madam Chairman, that you will be hearing from the Manitoba Keewatinowi or, perhaps more easily pronounced for some of us, the Manitoba Dene. Honourable senators may find their presentation sympathetic. Nevertheless, with respect to the issues raised by them, I can tell you that Bill C-57 neither advances nor diminishes the claim they make with respect to land within the Nunavut area. Bill C-57 -- and I think it is important for us all to understand this -- is about the court structure in Nunavut. It has nothing to do with land boundaries or land claims. It has nothing to do with asserted aboriginal or treaty rights over the land and resources of Nunavut. Bill C-57 is neutral with respect to the claims made by the Dene of Manitoba, in that Bill C-57 neither diminishes nor advances their claims.
It is the position of the federal government that any rights that the Dene may successfully assert over the Nunavut area were explicitly preserved by Article 40 of the Nunavut Land Claims Agreement. As the Manitoba Dene will tell you themselves, their claims are currently before the Federal Court of Canada. I submit to you that that is the appropriate forum for dealing with this matter.
Madam Chairman, I would also like to make a few brief remarks this morning about the timing of the bill. I know that everyone here is aware of the fact that the new territory of Nunavut is set to come into existence on April 1 of this year, less than two months from today. You may also have been made aware of the need to pass this legislation in time so that the Nunavut Court of Justice, with its new court structure, will come into being on the creation of the new territory of Nunavut on April 1, 1999.
However, you may not be aware that the need to pass Bill C-57 as soon as possible is even more pressing when one considers that not only must it be passed before April 1, 1999, it must also be passed sufficiently in advance of April 1 to allow the people of Nunavut the time to prepare the infrastructure necessary to support the new court. It is for this reason, Madam Chairman, that I urge this committee to give full but expeditious consideration to Bill C-57.
[Translation]
Madam Chairman, I believe that my officials will be appearing before you on Wednesday, February 17, to answer any questions you may have about the bill or questions that may come out of the testimony you will be hearing. I have also asked my officials to be available to you for the duration of your hearings on Bill C-57. I will end my remarks here. I will be pleased to answer senators' questions.
[English]
Thank you, Madam Chairman. It was a pleasure for me to be here this morning, and I look forward to engaging in discussion and answering your questions.
The Chairman: I can promise you discussion and questions.
Ms McLellan: It is always a pleasure to come here and enjoy the vigorous debate.
[Translation]
Senator Beaudoin: I would like to begin, Madam Minister, by wishing you a very warm welcome. We are very pleased to see you here at our committee and we like this type of legislation because it affects the fundamental structures of Canada, the provinces and territories.
[English]
My question is related to section 96 of the Constitution of 1867. My first impression is that it does not apply in this case, in the sense that Ottawa, the Parliament of Canada, has full jurisdiction over territories. It is clear-cut in the Constitution Act of 1867 and the statutes that follow.
I have no difficulty with having a court system that is unique, or is only one level. I agree entirely with that. Of course, if we were concerned with a province -- a territory is not a province -- we would have to deal with the question of the appointment of judges under section 96. However, I understand that you believe that this section of the Constitution does not come into the picture, and that since you have full power, you can design the judicial system as best as you can, and that whether it has two levels or not is just a political question. It is not a constitutional problem at all. I am sure that, prima facie, you agree with that.
Ms McLellan: Yes.
Senator Beaudoin: Why is this different from the other territories?
Ms McLellan: Because the people of Nunavut decided that they wanted a system that they felt more represented their needs, dare I say their culture and their heritage. It is fair to say that discussions of a single-level trial court have been going on for a long time in the Northwest Territories as they presently exist, as Senator Andreychuk knows very well, and as well in the Yukon.
I think people, especially those in the Western Arctic and in the Yukon, will be watching the experience of the people of Nunavut very carefully to see whether they should move ahead with the discussions they have already had about the possibility of a single-level trial court. Certainly, if they want to pursue those discussions more vigorously, we would be very happy to be part of them.
The magic of Nunavut is that this system came from them. It is not a case of us in Ottawa imposing our vision of what justice should look like in the North. In fact, it was brought to my attention that the Interim Commissioner was asked some time ago, "Well, what is different about Nunavut? What makes Nunavut a special kind of project in this country and for the people of the Eastern Arctic?" The first thing he mentioned was the justice system and the fact that it is different from that found in other parts of the country. It is a system that reflects the needs and values of the people of Nunavut. It is a single-level trial court system.
Obviously it will also be a justice system that will be enhanced over time to reflect challenges such as geography and the concerns of local communities. It will acknowledge the fact that strategies in terms of dealing with, for example, young offenders or domestic violence, problems that are pressing in the Eastern Arctic and in the North generally, will have to be approached somewhat differently and will have to reflect the unique challenges and culture and traditions of the people of the Eastern Arctic.
What makes this different, what makes this so important, is that this is a justice system and court structure that was developed by the people of the region. It is something they want, and it is something they see as reflecting their values.
Senator Beaudoin: Therefore, it could vary to a certain extent from one territory to another.
Ms McLellan: It might.
Senator Beaudoin: It might, but there is nothing wrong with that.
Ms McLellan: There is nothing wrong with that at all.
Senator Beaudoin: It also could be that this first experience will be duplicated one day.
Ms McLellan: It may. All of us, and particularly those in the Western Arctic and the Yukon, will watch this project very carefully. South of 60, we in our provinces and at the federal level will also watch to see how it works. I do not expect that in the provinces south of 60 there will be any movement in the near future to a single-court trial system.
Talking about regional or territorial or provincial differences some provinces now have unified family courts, and other provinces do not. They choose other mechanisms by which to resolve family issues. That is perfectly all right. That is up to the provinces. Certainly, as you know, senator, constitutionally that is up to the provinces to decide. Experimentation within the broad constitutional framework is to be encouraged.
Senator Beaudoin: However, at the provincial level, there is still the question of section 96.
Ms McLellan: Absolutely, yes.
Senator Beaudoin: We do not have that here.
Ms McLellan: You are quite right about that.
Senator Joyal: My first question is quite simple. Could you tell us the size of population we are talking so that people who read our proceedings know what we are talking about generally?
Ms McLellan: It is a small territory. We are dealing with approximately 25,000 people in total. They are spread out, as you are probably aware, in disparate communities, and travel takes time and is costly. The various communities in which this small number of people live are spread throughout the entire territory.
The Chairman: I should perhaps add as well that 80 to 85 per cent are Inuit.
Senator Joyal: Not all of us are completely familiar with all of the characteristics of the new territory, so to help us understand the reality supporting the system that we are trying to put into place now, my second question is related to the RCAP report. The degree to which the system of justice could be more tailor-made to the needs of the aboriginal population in Canada is something that we will need to address in the future when we talk about self-government. We have here a new territory that exercises the responsibilities of self-government, and how the RCAP recommendations address the issue of a justice system that is more adapted to that reality is something that needs to be addressed. In other words, is what we are doing just experimental, or is this a first step towards an improvement of the justice system for the aboriginal people as they are moving to self-government? My question is very broad, but I think it is important to understand what we are doing here.
Ms McLellan: It is a very good question. This is very much a first step. Other steps have already been taken in the North, but we are focusing here today on Nunavut and the creation of a new territory. This is very much a first step for them and for the people of the Eastern Arctic.
You are right to ask the broader question about the justice system. This bill deals with one small part of the justice system, an important but technical part, which is the creation of a court system. However, as you have pointed out, the RCAP report speaks to the profound importance of developing justice systems, because there will be a great variety of justice systems or parts of existing systems that are much more responsive to the needs of aboriginal peoples.
We must remember that the needs of those who live in the Eastern Arctic are quite different from the needs of, for example, the Tsuu Tina reserve in Southern Alberta which is, in large part, within the boundaries of the city of Calgary. I mention the Tsuu Tina because the Province of Alberta and the federal government are working on a proposed project concerning how we can take the existing system of justice and make it work for aboriginal peoples.
That is what we are about here as well, working with the people, the grassroots. Those projects will continue and must continue all over this country, and they will reflect the breadth and diversity of opportunity and challenge that is reflected in the breadth and diversity of our aboriginal peoples wherever they live. My colleague Jane Stewart, if she were here, would reiterate more strongly than I how seriously we take the recommendations in the RCAP report, and certainly, personally, I take very seriously the importance of establishing aboriginal justice initiatives that are responsive to the grassroots, and in Nunavut we have that.
It is very important to keep in mind that the whole process was driven by the people who live there. As Senator Beaudoin has pointed out, it is a little easier for us to act quickly because we do not have a provincial jurisdiction with whom we must also consult and work.
You may be aware that my predecessor, Allan Rock, announced an aboriginal justice initiative which included an initial phase of some five years. This involves us working in partnership with the provinces and the territories and the aboriginal peoples, to put in place new ways of delivering justice, part of which may be a court system. However, it goes much beyond that. The province which has pursued that most vigorously with us to date is Saskatchewan.
Senator Joyal: You insisted vigorously that this proposal is adapted to the reality of the North. However, I have a concern as to how judges will be appointed. As I understand it, one judge has already been appointed. How can we ensure that the judges who are appointed have an appropriate understanding of the sociology of aboriginal people who live in the North? I am sure you are familiar with the breakdown of the statistics which reflect the numbers of people in prisons in Canada. That is a reality we must deal with, and we must ensure that the system is responsive to that reality. How can you ensure that the judges who are appointed will have had the proper training in the sociological reality of aboriginal life in Canada?
Ms McLellan: It will be very important that the judges who are appointed are of the North and of the Eastern Arctic. In fact, Madam Justice Browne does have that background. Her appointment was strongly advocated for by the people, the interim commissioner and others of the Eastern Arctic. She is an example of the kind of person we must appoint.
The Eastern Arctic will have its own judicial selection advisory committee, just as the provinces do in this country. Quebec has two of those committees, for example, Ontario has three, other provinces one. We are, at this point, finalizing the membership on that committee to be highly reflective of the local community of the Eastern Arctic. We are very sensitive to the fact that we must appoint people to the trial court who understand the reality of the Eastern Arctic and are, as one would say, "of the North."
Madam Justice Browne is certainly that kind of person, and hence her appointment was strongly requested by those who live in the region. It was with great pride that the Prime Minister and I were able to make that appointment. It has, from the outset, provided a level of confidence in terms of our listening to the people of the Eastern Arctic and being responsive to their advice in terms of the kinds of people they would like to see appointed.
Judicial training, which is obviously a broad issue, is ongoing in this country at all levels and in a wide variety of areas throughout the NJI and under the jurisdiction of the Chief Justice of Canada. Clearly everyone would acknowledge that it will be important to be supportive of the new trial court in the Eastern Arctic. It will also be important that the NJI and others be supportive of their new colleagues upon appointment and understand that perhaps certain extra steps will need to be taken to ensure that judicial education is of the kind that will meet a wide variety of needs, including the important one you have identified which is to understand the sociology, the psychology, the reality of life in the Eastern Arctic.
Senator Joyal: Especially at the appeal level.
Ms McLellan: Yes, indeed.
Senator Gill: I am pleased that the people of Nunavut have made some decisions respecting their system of justice. Twenty years ago I remember discussing the issue of trying to find ways of giving more responsibility to our territories so that the Inuit and the Indian people would, together, find a way to be more active in this country.
Last night, John Amagoalik appeared before the aboriginal committee. I asked him if he sees some differences between the territorial government and the Nunavut government. His answer was that he sees no differences.
However, they have asked for special treatment in that they requested one level of court. Why did you decide to give that to Nunavut? Was it asked for by others?
I am asking that because, as you know, in Quebec we have la cour itinérante in Arctic Quebec, and all over Quebec. I know that the people wanted something different from that, but I know that the provincial government has some input.
Ms McLellan: Indeed.
Senator Gill: I am glad to see flexibility by this government because, of course, living conditions vary so much across the country that we must have solutions which are adapted to the needs of an area. If we do not take that approach then we sometimes apply a solution which creates problems.
Could those who would like to have something special from justice find a way of convincing you to do something special for them?
Ms McLellan: Actually, senator, I do not think it would necessarily be a case of convincing me. It would, however, be a case, in the situation you have identified coming from the Province of Quebec, or any other province, of convincing the province and convincing the practising bar in the territory. Obviously, for example, a provincial attorney general would probably not come forward with a proposal for a single-level trial court without consulting with the bench and the bar in his or her respective province as well as a wide array of other interested parties.
The reality is that Nunavut is the first territory or province in this country to request a single-level trial court. It simply has not been asked for in most other circumstances. Other than for the Western Arctic and the Yukon, it would require the provincial government to decide that that is how they would like their provincial judicial system to be structured and then they would work with us to try to deliver that.
In fact, we must be careful because there might even be some constitutional impediments to us wanting to move ahead, even if a provincial government decided that is the way it would like to go. There is some supreme court jurisprudence on the whole question of the interpretation of section 96.
We are taking what you describe as a special initiative here because the people asked for it and we were able to do it while respecting the rights of the people of Nunavut so that they have no fewer rights than those who live anywhere else in this country, and we have the constitutional jurisdiction to do it.
Senator Gill: Let us suppose that the Inuit or Innu in Arctic Quebec asked you for this kind of special justice system. I am not a lawyer, but I know that the justice regime is different in Quebec.
Ms McLellan: The civil law as distinct from the common law.
Senator Gill: Is this an argument to prevent that?
Ms McLellan: There are a number of impediments to what you suggest. The constitutional impediment would be the transcendent one. However, in addition, aboriginal people in the province of Quebec would have to work with the provincial government as well as the federal government, as we are with the Tsuu Tina in Alberta, to see how one can create at least parts of a justice system that reflect the unique needs of the aboriginal people. I think in most cases they find their ultimate home within the structure with which we are familiar. For example, the Tsuu Tina chief and the band would like the existing, traditional provincial court structure -- provincial court, superior court trial division, court of appeal -- to continue to operate, but within the provincial court they would like to ensure that an aboriginal person is appointed as a provincial court judge. That person would have a certain set of support staff, help and advisors who understood and reflected the unique needs of the Tsuu Tina reserve.
Their project, if we were to proceed with it, would operate within the existing court structure. If we were to step outside that, which in the first place would probably be difficult to do, we could only do so with the full cooperation and impetus of the province.
Senator Moore: Is it the intent that the appointed aboriginal judge will be the only one to hear cases involving aboriginal people?
Ms McLellan: Probably not the only one; but that aboriginal judge would provide a sense of leadership in the provincial court in that region in terms of aboriginal issues and helping his or her colleagues understand the breadth of aboriginal issues. However, the details of this have not been worked out. As I say, it is simply under discussion at this point as a possible pilot project. I do not want to say more about the details of that.
Senator Gill: You have jurisdiction over the territories and Nunavut, and in general you have jurisdiction over the Indian people and the Inuit in this country.
Ms McLellan: Yes, that is true, but the interface between jurisdictions throughout the justice system is the issue in question here and is one that presents another set of constitutional dilemmas.
Senator Pearson: My question relates to the resources that go along with the bill. Part of the idea is to simplify the system and therefore make it cheaper than it would have been otherwise. Is it the intention that the moneys you save can be reinvested in the system?
Ms McLellan: I will let Mr. Watt respond to that more fully, but I do not think we will actually save money. Keep in mind that we are creating a new court system for 25,000 people. The cost of administering the court lies with the territory. That is their responsibility. That is absolutely clear, and they assume that responsibility. We pay the judges. In a single-level court, we will pay for the superior court judges, as we do in any part of the country.
There is a host of other issues surrounding the justice system that do not relate to the creation of the court. However, the territories have jurisdiction over the justice system in terms of the training of JPs in what they do, and ensuring that they have the skills and abilities that we want JPs to have. Court workers and support services fall within the jurisdiction of the territories and it is their responsibility to pay for that.
Mr. Watt will tell you about our resources. While they are not bountiful, they are somewhat substantial to help the new territory in many of the things it would like to do to ensure it has the kind of justice system we all want.
Mr. Andy Watt, Coordinator, Northern Issues, Department of Justice: I do not know that I can add much, other than referring to our resources as minimal.
Ms McLellan: Yes, that is probably more accurate.
Mr. Watt: As the minister said, the territory is responsible for most of the justice system expenditures. We are taking on extra expenditures, in essence, by doing away with the requirement that they appoint territorial court judges. We also pay for the travel of the judges of the new court. They will save money that way, we hope, although it is hard to estimate. The new court structure will also save money by reducing the number of circuits, thus making it more efficient.
We have been working closely with the Nunavut Department of Justice to be involved in their planning for the justice system. I can assure you that they intend to take the money they save and plough it back into the kinds of things you are concerned about in the justice system. You can ask them that when they appear before the committee.
Senator Pearson: Will there be an additional pool of money to get the thing started and ensure that it is done right the first time. I understand most of this money comes from the federal government anyway, but it comes through a different route.
Mr. Watt: We have budgeted within the department for some discretionary grant funding and contribution funding over the next four or five years, and we intend to cooperate with the Nunavut Department of Justice, and organizations such as their social development council, in addressing these very issues, including JP training, for instance.
Ms McLellan: It is important to keep in mind that, because the territory will not be appointing territorial judges, they will save that money. We are assuming that cost. Because they are superior court judges in this single-level court, we are paying for them.
The territory, in one sense, has savings. We do not. I am reluctant to use that language, because they are creating a new justice system. This is only one part of it, and the total cost of that system is something else again.
Senator Pearson: I think Senator Andreychuk and I are together on this. We feel the major challenge is having enough resources to do it right the first time and not have to mend it later.
Senator Grafstein: Madam Minister, this is a fascinating bill, and I want to congratulate you and your department for this important and innovative experiment. I use the word "experiment" because I am trying to encapsulate the thought you have given us today that this is quite a dramatic change in many ways.
This is not new to you, but would you be open to a sunset clause in the bill stating that sometime between the fifth and seventh years after proclamation there would be an independent review of this project? That would certainly alleviate most of my concerns. As you have indicated, this is obviously based on the desires of the majority of the population, or at least the elites within the population, who understand these matters -- and there is a difference, because whether the population will be satisfied is a sociological question to which I do not have the answer. I hope we can start by saying that, because this is an experiment, we will not leave it in the dust bins of the Department of Justice -- I say that gently, not critically -- and that we will force this to the top of the line for review. I would make it a little longer than five years, though. Once you get started it will take at least two years for the system to get on its feet, and it will need at least five years of running before review. Would you be open to that type of amendment?
Ms McLellan: The concept of evaluation and review is one that the territorial government has adopted. We will do whatever we can to assist them in their ongoing review.
From the moment this court is constructed, they will be watching and we will be working with them in that effort, to ensure that, if there are bottle-necks in the system, if things are not going the way we had anticipated, they will be dealt with.
Senator Grafstein: I am not suggesting you would not do that. However, having been at the Senate for over a decade, I know that the constant complaint we hear from aboriginal groups relates to the lack of change and the slow response time. I heard this from Senator Adams the first day I got here and, more recently, from others.
This would be a safeguard and an important one. In no way, shape or form would it interfere with the department and the territories' ongoing desire to renovate as they go along. I am speaking about a wholesome review. I raise that as an issue you may wish to address.
Ms McLellan: Are you suggesting a sunset clause in the context of a court system?
Senator Grafstein: I will define it more narrowly as a clause that requires an independent review of the legislation within a period of time.
Ms McLellan: We would not want the system to stop as at a certain day.
Senator Grafstein: No, I just leave that for you, you might want to come back to that.
I was a member of the bar of the Northwest Territories for over a decade, therefore, I have some experience in this area. I was working on some regulatory matters up there and the judge insisted that I become a member of the bar. Essentially what they really required were lawyers who would do pro bono work for people who were under-represented. I was sworn in as a member of the bar of the Northwest Territories in Judge Morrow's chambers at 11:30 one Saturday morning. His purpose was to enlist me to do some pro bono work, which I did, although not very well because it was on the run. However, it was interesting.
To return to Senator Pearson's point, this is a renovated justice system for a widespread group, 25,000 people. The first step you took was to reduce the number of judges from five to three, and that upset me somewhat. I will ask you to respond to that.
What are the pro bono requirements of members of the bar in that area? While we renovate and reduce some of the procedural protections for the accused under the Criminal Code up there, are we at the same time increasing their representation? I am not up to date on the legal representation which people are afforded there.
Before we go forward and allow for a reduction in the number of judges, which I do not necessarily agree with, subject to hearing from you, I would like to know: What is the status of the bar? That is an important aspect of the judicial system.
Ms McLellan: As to the number of judges, the decision was made in consultation with the territorial government and with the local lawyers, not only in the Eastern Arctic, but throughout the Northwest Territories.
As you might imagine, there are few lawyers in the Eastern Arctic, per se. However, there are a growing number of lawyers from the Western Arctic and also from Quebec, Ontario, Manitoba and Alberta, who practice law and are members of that bar. It is now not uncommon in the Province of Alberta to have a large number of people as members of the Northwest Territories bar, and who would be members of the Eastern Arctic bar. It is an important part of their practice.
My next-door neighbour spends six months a year in Yellowknife doing municipal law. These people are as much of the North in many respects as those who have full-time residency there.
The situation has probably changed somewhat in the sense that there are more lawyers who are indigenous to the territories and more lawyers from other provinces who have a commitment, knowledge and understanding of the North and see that as an important part of their legal work and commitment to the law.
The number of three judges was selected in conjunction with the territorial government, the bar, the existing judiciary and it was also based on consultations with and the experience of other judges and other courts, including court of appeal judges and deputy judges who are appointed from courts south of 60 who already serve in the North.
We will monitor this situation. Based on all the evidence we have received, three judges will be sufficient. However, if in partnership with the territorial government a decision is made that that is not the case, then we will rectify that. Our best advice at this point is that three judges will be sufficient.
Senator Grafstein: I understand that 15 per cent of the population of Nunavut is non-aboriginal. Were they consulted separately and independently from the aboriginal groups to satisfy themselves that they would be content with this renovated justice system?
Ms McLellan: They were consulted. As to whether it was a separate process, perhaps my colleagues could respond to that.
Mr. Watt: I would not say there was a separate process. We put out a discussion paper on the court structure system in the fall of 1997. It was widely distributed, north and south. We sent it to all the members of Northwest Territories Law Society and various other places. The interim commissioner's conference involved both Inuit and non-Inuit people. My sense is that non-Inuit people had every chance to participate in the consultations.
Mr. Howard Bebbington, Counsel, Criminal Law Policy Section, Department of Justice: We met with the bars, both Nunavut and Iqaluit. Our discussions were not targeted at aboriginal people and at non-aboriginal people, but we met with the bars in both places and had extensive discussions about the process.
Senator Grafstein: There are a number of substantively different procedures with respect to criminal procedures under the new code. Are you satisfied that the accused in Nunavut will retain equivalent rights under the new system as under the old?
Ms McLellan: Absolutely.
Senator Grafstein: Why do you say that so quickly?
Ms McLellan: That was one of our key concerns. When the people of Nunavut came forward with their request for a single-level trial court, one of the first concerns within the Department of Justice was to ensure that this could be done while ensuring that the people of Nunavut have the same protections and rights as those who live in other parts of the country.
Let us assure you, it was not easy to develop a system that we believe provides the same degree of protection that anyone would have, regardless of where they live in this country. The mechanisms are somewhat different, however we are confident that the level of protection of rights, especially as they relate to the criminal justice system, is identical to that of anywhere else.
As I have already indicated, prerogative writs exist for superior to review inferior courts. With a single-level trial court, you only have a superior court so, obviously, you must change the processes.
So what do you do? You try to ensure that there is statutory review, but acknowledging the fact that you do not have an inferior court. Therefore, you do have to move away from the traditional and be creative and innovative. I have no doubt that the rights of the accused in relation to that review will be every bit as strong as under the existing prerogative writ process. Having said that, it does not mean that what you see will be identical, or use the language that we are all used to in our world south of 60.
Senator Andreychuk: I have been involved in this process for about 30 years, and flattening the courts and making them more responsive to the needs of the community is a goal that many people in the North and in the justice system have pursued for many years. One needs only get to that plane with all the court reporters and travel to understand that justice does not work up there. Therefore, I commend you for this and I am a convert to this system.
However, every time we tried to do it before, whether as lawyers or as judges putting proposals forward, we always ran into the problem that Senator Grafstein has pointed out, that somehow we would be facing either a Charter challenge or a constitutional challenge.
You feel comfortable that you are not violating the rights, because all you have done is to flatten the court system; is that right?
Ms McLellan: Yes.
Senator Andreychuk: Were we too ambitious before, and touched other sections of the Criminal Code?
Ms McLellan: You do need to be careful to ensure that you are not taking away the rights of the accused, be it in the context of an appeal or any possible statutory review rights. As I indicated in my response to Senator Grafstein, that was our key concern in many respects as a Department of Justice, and therefore we have spent a great deal of time working on that. We do believe that we have a system that completely protects the rights of the people of the Eastern Arctic, those who might be accused, and also is Charter-proof, if you like. I suppose that is a negative way of saying that it is in keeping not only with the language but with the spirit of the Charter.
Perhaps Mr. Bebbington could say a few words about the detail that went into constructing this system to ensure that we protected those rights.
Mr. Bebbington: I would only add that we did spend a considerable amount of time on that. Because the system is different, it obviously cannot be identical, but we have tried to establish equivalent rights. I cannot give you a guarantee; only time will tell; but we will be watching it. In addition to our in-house expertise, which includes our Charter people who had a careful look at this scheme, we consulted with the bar in Iqaluit, in Yellowknife and throughout the country, with academics, judges, and other individuals involved in the system. We feel that we have had a chance, with the benefit of their advice and their comments, to reflect adequately on our scheme.
I might also say we retained a professor from Queen's University, a noted defence lawyer and expert in the prerogative writs in the criminal and correctional systems, to help us develop our statutory review scheme. It is not identical to what exists elsewhere -- it cannot be, but we have gone to great lengths to preserve equivalent rights and equivalent access to justice. For us, that was an important commitment, and we believe that the bill before you will do that.
Senator Andreychuk: I would put more emphasis on the fact that it is a justice system within Canada. Any one of us could come before the courts in Nunavut; therefore, the system must be responsive to the people who need it; but the concern always was that, when a Canadian stood before the courts in the North, justice would be served in a similar way, if not an identical way. You are sure that that is happening?
Ms McLellan: As Mr. Bebbington says, until there is a challenge and the Supreme Court of Canada actually tells us that that which we have created sustains Charter scrutiny, we cannot guarantee that 100 per cent, but we believe, based on our efforts and the efforts of all the experts and others with whom we have consulted, that we in fact have met that standard. The risk is minimal, in our opinion.
Senator Andreychuk: And worth taking for the benefits we gain?
Ms McLellan: Yes.
Senator Andreychuk: I would underscore what Senator Pearson said. I do not think this is the real issue in the North with regard to the justice system. The real issue is that there be the support services in the preventive end, even in the incarceration side, because the separation of families, and the ripple effect of how the justice system has been delivered there, have been issues that I have dealt with for a long time.
I have a lot of questions, but that sums up where I am going on them. Why did you pick Alberta? When Yellowknife was the centre and that was where the action was, if I can put it that way, I can understand why the Alberta Court of appeal was chosen. However, now that Iqaluit is to be the centre, if you look at it geographically, why would you not choose a province that is directly south of it? Is it because you believe there is an expertise already built up in Alberta and an understanding of the psychological and sociological issues?
Ms McLellan: That is a good question and it raises a number of issues. First, keep in mind that there are discussions ongoing in the North -- including the Yukon and the existing Northwest Territories -- about whether they would, at some point in the future, like to create a court of appeal that would cover the entire north: Yukon, Western and Eastern Arctic. That is an ongoing discussion. They are not ready yet to make any kind of request of me and the government in that regard, but that work has been ongoing for some time; in fact, at the conference in November of 1997, there was specific discussion around whether that kind of initiative should move forward. I do not think anyone in Nunavut suggests that they can have a stand-alone court of appeal, because there are simply not enough people to accommodate that. That is why they are looking at pooling their resources and perhaps creating a new court of appeal for the entire territorial area.
We would be open to considering that. They are not ready yet, but until that time, for the purposes of this legislation, we continue the existing mechanism, which is that the Alberta Court of Appeal of Alberta is the court of appeal, although I understand that can be supplemented by other judges from other provinces. In part, I suppose it is because the judges of the Alberta Court of Appeal have developed a level of knowledge of and, I dare say, love of and respect for the North. Mr. Justice Moreau, while not on the court of appeal, is probably the finest example of someone who has devoted much of his life to the North.
The question you raise is a good one, and if the North does not move to its own court of appeal system fairly soon, or when they so wish, I think we do have to consider whether it would not make more sense to have the Manitoba Court of Appeal or that of Ontario -- or perhaps Quebec's, although with the civilian tradition, that might be more complicated as it relates to private law matters -- or some combination thereof become the court of appeal.
We are open, as this moves forward, to recognizing the fact that new arrangements will probably be made in the longer term in relation to the court of appeal. At present, everyone is happy to have the Alberta Court of Appeal, supplemented by other appeal judges if necessary, carry on as it has throughout the territory, and do so for a very long time.
Senator Moore: Minister, for the record, what is the geographic area and how big is it in miles? What is the land mass we are talking about?
Senator Adams: From Pelly Lake to Rankin Inlet is about 750 miles, and right now Nunavut is about 2 million square miles.
Ms McLellan: Is that right? I am sure you know.
Mr. Watt: I think it is two-thirds the size of the Northwest Territories and 20 per cent of Canada.
Ms McLellan: Yes. I think that is the number people often use to help Canadians south of 60 understand the vastness of it. It is 20 per cent of the entire Canadian land mass, and you have 25,000 people living in 20 per cent of the land mass. That speaks to the geographic and physical challenges that have to be faced.
Senator Moore: That is why I wanted to get that on the record.
I want to ask you about the justices of the peace. Given that breadth of territory and the fact that there are to be only three judges, it looks like there will be a reliance upon the justices of the peace for this system to work. Who appoints the justices of the peace? Will it be the attorney general of the territory?
Ms McLellan: Yes.
Senator Moore: They will pay them?
Ms McLellan: Yes.
Senator Moore: How many will there be?
Ms McLellan: I do not know whether we know that.
Senator Moore: Will there be so many per population group? How will we ensure that there are justices of the peace available for communities regardless of their size?
Ms McLellan: That is a good question for you to ask the representatives of the interim commissioner when they appear before you, because it is their responsibility to appoint the JPs and to ensure that they are trained, although we will, of course, be working very closely with them on the latter.
Senator Moore: So the training and support is the responsibility of the territory?
Ms McLellan: Yes, but we will be working very closely with them, because we have identified that as a key issue. The training of JPs has been raised as an issue in the North already under the existing justice system. Do they have sufficient training? Are there sufficient numbers? If they do not have the training, how do we ensure that they get it?
We are not expanding the jurisdiction of JPs under the existing code. That may be a possibility in the future after the territorial government and the people have made an assessment of how things are working or not, as the case may be.
Senator Moore: It seems to me that they are an integral part of this system.
Ms McLellan: They will be, as they are in the North generally now.
Mr. Watt: There is a very clear recognition that there is an opportunity, and in fact a strong desire, for the JPs in the communities in Nunavut to take on more responsibility. There is also a recognition up there that in order to do that they will need training and support.
Judge Browne, who, in April, will become a judge of the supreme court or the court of justice in Nunavut, is already working on a plan for that with Nora Sanders, whose representative you will hear from next week.
I do not have the numbers for the JPs in Nunavut or the N.W.T. The figure 81 sticks in my mind. I know there are JPs in almost every community, if not every one.
Under the system in N.W.T. there are five levels of JP. According to their capability and training, they are only allowed to do certain things within each level. At the top level, they can do summary conviction trials, theoretically. At the bottom level they only do initial process matters, and the level rises in between.
I am fairly confident that there are JPs in every community in Nunavut and there certainly will be after April 1.
Senator Adams: Thank you for coming, Madam Minister. I congratulate you on this bill. We need it.
It was indicated earlier that 15 per cent of the people who live in Nunavut are non-aboriginal. We Inuk do not concern ourselves so much with percentage of blood. If you are Inuk, you are Inuk; it does not matter what colour you are. When there is a marriage between an Inuk and a white person, the white person automatically becomes Inuk.
How will the system work in the future for people such as this? I refer specifically to the case of marriage breakdown. For example, a friend of mine who used to live in Eskimo Point moved to Alberta. After his move, he wanted to go back to the North and take his family with him, although he had separated from his wife. Sometimes situations like that arise.
For example, under Bill C-57, if it passes, if I live in Ottawa and my wife and I separate, and I want to take my kids back to the North, which court will have jurisdiction over that? Will it be the court here in Ottawa or the one in Nunavut?
Ms McLellan: I presume that you would begin any action where she and the children are. If that is the Eastern Arctic, the single-level trial court would deal with the family law matters, whatever they are, that you want to bring before the court. If it is divorce, the federal Divorce Act applies. The custody and access provisions of the Divorce Act apply as they do across the country. They would be applied to your situation by this new court in the Eastern Arctic, with the rights of appeal as I outlined a few minutes ago.
This legislation deals with the creation of a court. That single-level trial court has the same jurisdiction over all aspects of family law, criminal law and other civil matters as any superior trial court would have in a province, for example, or in the Western Arctic.
Senator Adams: What would happen if somebody moved to Southern Canada or outside Canada? It does not matter, does it?
Ms McLellan: No. We do not want to get into a discussion this morning about reciprocal enforcement of various kinds of orders in family law, because that is a tough issue wherever you live in this country. However, let me assure you that it will not be any different in the Eastern Arctic.
Senator Adams: I wish to congratulate you on the appointment of Judge Browne. I know her very well and she is a good choice.
You mentioned the Manitoba Dene. You referred to section 40. Is that a section of the Nunavut Act?
Mr. Bebbington: The minister was referring to section 40 of the land claims agreement which will preserve the rights of the Dene of Manitoba to the extent that they exist. I believe you will be hearing from the Manitoba Dene next week. They have concerns about the Nunavut area. It is their view that the creation of Nunavut is of concern to them. The minister pointed out that section 40 of the land claims agreement preserves their rights to the extent that they exist. The creation of Nunavut will not prejudice those rights. Most important, our bill does not touch on any of those areas of rights. It deals only with the court structure that will exist within the territory of Nunavut, the legislation for which was passed in 1993.
Senator Adams: The Justice Committee of the House of Commons heard that those treaties were signed in 1910. I am concerned about the hunting areas.
Mr. Bebbington: I believe that they are concerned about their ability to hunt and harvest within that area. It is our position that section 40 will preserve those rights to the extent that they exist. As you may know, they have brought an action before the Federal Court of Canada to determine some of these issues.
The Chairman: My question is a follow up to that asked by Senator Adams. I am not speaking so much of the land claims of the Denesuline of Manitoba, but their rights as Canadians. You have said that the rights of the accused are protected. However, in the transcript of the House of Commons Justice Committee which dealt with this bill, one of the witnesses said:
The distinction is that Supreme Court decisions like Sparrow, Horseman and Badger, all of which provide considerable limitations for the regulatory powers of provincial and territorial governments, would no longer apply in Nunavut.
My question to you is: Is that true? If Dene Manitobans are charged with something south of 60 and charged with the same thing north of 60, are their rights the same?
Ms McLellan: Yes, absolutely. Senator Grafstein asked the same question.
I understand and respect the claims that the Manitoba Dene assert. However, they have those claims before the Federal Court. Certainly, it is not clear that the claims they assert exist. That is why we are before the court. In fact, any rights that might be found to exist are protected.
This measure does not deal with substantive rights. It deals with the court system. In fact, it does not touch upon any substantive claim that the Manitoba Dene, or any other group as far as that goes, would make.
Mr. Bebbington: If an individual is charged in Nunavut with an offence, and that individual believes he has an inherent right which mitigates or is a response to that charge, then he is able to plead that in the court in Nunavut. Nothing has changed with respect to that.
To the extent that that right is a substantial one and would be a defence to a charge -- possibly under territorial law the charge would concern certain types of hunting or fishing -- then an accused will still be able to assert that defence in that context.
We have changed only the structure of the court that will hear that case. In the case of Nunavut, it will be a superior court judge of the single-level trial court who will hear and adjudicate that claim.
The Chairman: Is their concern that Supreme Court of Canada decisions, such as Sparrow, will not apply to them? I am probably pre-empting some of their questions. They will be appearing before us and I know these questions will be raised.
Mr. Bebbington: It is a concern we have heard before. Some people have expressed the concern that, because it is a new structural system, it is a completely new system of law. That is not the case. The federal laws that apply will continue to apply in Nunavut as they do anywhere else in the country. Territorial law, of course, will be the domain of the territorial government, and it may vary as territorial law may vary. The common law they refer to, in particular, the Supreme Court of Canada cases, will apply in Nunavut just as they do anywhere else.
The Chairman: I am sure your answer will be conveyed to them.
If there are no further questions, I thank you very much.
Ms McLellan: I believe this is an exciting opportunity, obviously first and foremost for the people of the Eastern Arctic. However, I think it is also an exciting opportunity for all of us, and for all Canadians, to be part of not only the creation of a new territory but the creation of a new court system. This is not something that happens every day, as we know. We have worked hard with the local people to get it right. I think, and I hope that you will agree, that this is a cause for some considerable celebration. I know that Senator Adams has invited you all to join him on April 1 to enjoy the formal celebration.
The committee adjourned.