Justice Flown In : Values Clash in Canada’s Arctic Courts

Justice in this frozen village far above the Arctic Circle arrives in a World War II-vintage airplane and is dispensed in an aluminum-sided hotel run by a woman called Mom.

Here in Canada’s Northwest Territories, where 45,000 people are scattered over an area larger than India, where the temperature in winter may reach a daytime high of 45 below, the judicial process is carried out against heavy odds.

Judges often wear mukluks and parkas over their judicial robes. They arrive in DC-3s that date back to the early 1940s, or by snowmobile, or groping blindly on foot through a blizzard because the only vehicle is being used to haul documents.

Court Flown In

The prosecutor, defense lawyer, clerk and court reporter all arrive the same way, often bringing witnesses with them.

This legal flying circus goes on year round, with six judges, seven prosecuting attorneys (known here as crown attorneys) and 15 defense lawyers constantly moving around an area that covers 1.3 million square miles.

They hold court in 62 communities, and it costs the government millions of dollars a year. For the one-day trip from Yellowknife to Cambridge Bay, the cost of the plane alone is about $6,400. Defense lawyers are paid $60 an hour, more than twice the rate in the rest of the country, and only 5% of the 4,000 to 5,000 people hailed into court every year pay the court costs.

Snowbound Courts

Planes carrying judges have crashed and court personnel have suffered frostbite. Everyone involved has been snowbound for days in cramped and icy hovels.

And, yet, said Justice T. David Marshall, one of two federal judges serving the territories, “It is the best and most interesting court in Canada.”

Court officials and lawyers are almost invariably white and English-speaking, the accused nearly always Indian or Inuit, as Eskimos are known in Canada, and frequently speak only their native language.

Collision of Values

This is justice in North America’s last frontier, a meeting of the Stone Age and the Space Age, a collision of value systems that are often mutually incomprehensible.

Yet the people involved in this process work hard and with compassion. They try to make certain that justice is as just as possible. Consider the trial and sentencing of George Ohokak, a 38-year-old teacher’s aide charged with sexually assaulting three 11-year-old girls.

No Roads in Area

The proceedings took place in Cambridge Bay, a village about 200 miles above the Arctic Circle on the north shore of the Northwest Passage. There are no roads here. For the 450 Inuits and the handful of American and Canadian technicians who man the Distant Early Warning radar post, the only contacts with the outside world are the occasional airplane and the dish antenna that brings in television from as far away as Seattle.

The trial took place in a second-floor meeting room of a small hotel owned by an Inuit cooperative and managed by a woman known only as Mom, who bakes butter rolls that have acquired an extensive reputation.

“This is as good as it gets,” said court clerk Emily Overbo, a seven-year veteran on the Arctic judicial circuit. “It’s warm, we have a room to change, and the food is good.”

Convicted by Jury

Ohokak was convicted last May by a 12-man jury. Sentencing was delayed until mid-December, to allow time for a pre-sentencing report. In May and again in December, Justice Marshall and an entourage of six were flown in from the territorial capital of Yellowknife about 500 miles to the southwest, using a 45-year-old DC-3 that had served in the U.S. and Turkish air forces and then as an executive aircraft.

The 42-year-old judge is an extraordinary man. Not only is he a lawyer (graduate study at Britain’s Oxford University), but he is also a medical doctor and once ran a Northwest Territories clinic. He still makes weekly rounds at a Yellowknife hospital. He whiled away part of the time on the eight-hour round-trip to Cambridge Bay at the controls of the aging aircraft.

His sentencing of Ohokak was a measure of the clash of cultures, and also of the ruling white Establishment’s effort to soften the effects of the collision.

Mitigating Circumstances

Ohokak faced up to 30 years in prison, although the pre-sentencing report was favorable and the prosecutor indicated he would accept a much less severe punishment. Marshall sentenced him to six months in jail and three years on probation. He cited as mitigating circumstances the accused’s otherwise clean record, his good name in the community, his effort to improve himself, his cooperation with the investigating authorities and the absence of violence in what he had done.

“The problem for us,” Marshall said, “is to apply southern (normal Canadian) law and morality and values to a culture that still may have differing values and standards.”

Testimony from Inuit elders had indicated that the “molestation of young girls is not acceptable,” but the judge said he also had to take into consideration the impact a longer jail term would have on Ohokak, the shock of prison on a man accustomed to traditional community life, and the difficulty of returning to society afterward.

Cultural Differences

Marshall explained to a reporter that cultural differences cannot be used as a defense in court because “there has to be just one law for Canada.” But he said the court can compensate for cultural differences, and added, “You have to exercise judgment.”

He said this approach has been used since the first government judge was appointed in 1955.

“Still, it may be right that the system isn’t entirely fair and we probably need a different system,” he said, pointing as an example to Greenland, which has a separate, modified judicial system for its native population.

Sheldon Tate, the defense attorney in the Ohokak case, elaborated on the problems of imposing one value system on another. The sentence was fair, he told a reporter, because “often for boys raised in the Arctic jail is a disaster.”

‘They Can’t Go Back’

“It ruins them in their community,” he went on. “They can’t go back. While in prison they can’t get their normal food and no one speaks their language. . . . They lose their jobs and they can’t or don’t want to go back to the traditional ways.”

The native people often do not understand what is happening in court, Tate said, and added:

“They call us ‘ kabloona ,’ which means ‘other.’ We come in maybe once a year and take someone away. They often don’t even know what counsel means, so when the police ask them if they want counsel, they say no, because they think counsel is the hamlet council and they don’t want them to know, so they end up waiving their rights.”

Difficult Proceedings

Tate said that most native people are raised to believe “that a question deserves an answer, so they tell the police everything . . . but these people are often innocent criminals. They have a good sense of right and wrong within their community, but they can’t always make the connection between their acts and a sense of guilt (for breaking the white man’s laws), particularly when a trial is held months after” the alleged offense.

This is even true of victims, the 30-year-old Yellowknife lawyer said. “Lots of times,” he said, “a woman doesn’t understand why her husband has to be taken away, even though he beat her. There’s no out-and-out resentment, but it is clear they wonder why a kabloona should come in and change their lives.”

The prosecutor, James Sutton, acknowledged that judges have to take individual circumstances into account, “but that is also true in the south, and it is inaccurate to say the north is all that different.”

New Access to South

Things are changing, Sutton said, pointing to the increasing contact native villages have with the world. “They have satellite dishes and get television from Buffalo, Chicago, Seattle and Edmonton,” he said. “It’s not the norm, but many travel, and the outside influences are there.”

Breaking and entering is the most common crime, he said. “They know better,” he added. “The victims feel just as angry (as anyone in the south) and don’t buy the argument that everything is common property. That may be true in the (hunting) camps, but not in their homes.”

Sutton challenged Tate’s assertion that women accept the tradition of wife beating. He cited a trial in which an elder testified that, by tradition, his people accept wife beating, but a woman stood up in the back of the courtroom and shouted that this was nonsense.

Few Natives Speak English

According to people who have been on hand for many of these trials, most of the natives present sit quietly, often unable to comprehend what is going on. This was the case at Ohokak’s sentencing. Five relatives attended, but only a sister could speak English. The accused’s mother, a weathered old woman in a summer dress, looked on with obvious wonder and fright.

“She only knows her boy is being taken away,” Tate said, “and she doesn’t know why.”

The trials seem to do little to create understanding, though they obviously contribute to a sense of respect, if not fear, for authority.

In court, Marshall was seated at a table, in front of Canadian and territorial flags he had brought along and nailed to the wall. A large square of blue cloth hung from the front of the table, lending a touch of formality. He wore flowing black robes with a scarlet collar and red-edged sleeves.

Robes and Pouches

Attorneys for the prosecution and the defense were robed in black, complete with white, wing-collared shirts, cravats and pouches slung from their shoulders. The pouches are a remnant of the English past, when attorneys were not allowed to touch money and clients paid by putting the money into the pouches.

Sitting in front of the judge and in full view of everyone was the everyday symbol of government authority and power, a Royal Canadian Mounted Policeman in full dress uniform: red coat, holstered revolver, yellow-striped black riding breeches and boots with spurs.

“It is all quite intimidating, even if they don’t understand what’s going on,” an observer remarked, “so there isn’t really any resistance.”

Even territorial officials agree that the system is not altogether fair.

“It’s only partially working,” said Michael A. Ballantyne, the minister of justice. “We’ve essentially imposed our southern law on them, without warning and no preparation.

“The judges do a hell of a job, but it means the native people don’t get as full attention as those of us in Yellowknife.”

New Law Considered

Ballantyne is supporting a bill that would rescind a law that requires all jury members to speak English, so that a defendant “will truly be tried by a jury of his peers.”

He said efforts are being made to encourage the training of more native attorneys and the eventual appointment of native judges and court officials. At present, there are only three native lawyers in the Northwest Territories, and four natives in law school; 50 of the 150 justices of the peace are nonwhite. The population is more than 60% native.

“It is my personal feeling,” said Ballantyne, who is not a lawyer, “that the present system may have constitutional problems, because it deprives the accused of full knowledge of the proceedings and because, as of now, language requirements exclude too many people.

“It may take 15 or 20 years to repair all this, but what I want to see is a trial with native judges, lawyers and police and a white accused.”

Still, with all its faults and apparent inequities, justice in this sparse and harsh land may be about as good as circumstances allow.

Tate, the defense attorney and an advocate of civil liberties, said the process “is one of the best legal aid systems in the world.” It provides free legal services in an area where only the very rich could afford a legal defense, he said, and the government spends huge amounts to make sure that justice goes to the people since the people cannot afford to go to the cities.

“We resolve the problems the best way we know,” he said. “It is practical law, but it is real law.”