If social justice is to be more than a fond hope, or distant mirage, for the poor, the disadvantaged and marginalized citizens of Nunavut, the legal profession as a whole must learn to speak up for those who have no voice

R. v Joamie, 2013 NUCJ 19:

[41] In this proceeding the Court has heard from Nunavut's Chief Medical Officer that the Nunavut Territory lacks the diagnostic services necessary to make a FASD diagnosis. If the Territory lacks the means to provide the diagnostic services required, the Court has the ability to order out of territory forensic assessments to be performed where necessary. The Court will not hesitate to do so where this is required for sentencing purposes.

[42] The Department of Health's failure to provide these diagnostic services within the Territory results in more delay in the provision of this service and greater cost to the taxpayer. In the end result, the expense associated with the out of territory diagnosis is simply transferred from the Department of Health to the Department of Justice. The government of Nunavut and its taxpayers end up footing the bill regardless of which Department is ultimately mandated to cover the expenses associated with the diagnosis.

[43] The Court has heard from the Territorial Manager of Community Wellness that the focus of the Department of Health is entirely upon prevention of FASD and community awareness. There are no programs or services of any kind at the community level to assist those citizens now suffering from FASD. There are no structured living facilities in the Territory to assist those severely damaged citizens who are in need of remedial treatment and support. The Territorial position for an FASD Coordinator was eliminated in 2011.

[44] For the first decade of its existence, the Nunavut Territory has experienced an accelerating rate of violent crime and suicide. Much of this dysfunction has been driven by alcohol abuse. There is no residential treatment facility in Nunavut to address the treatment needs of the alcoholic. There is no detoxification center available in Nunavut to dry out the alcoholic. There is no ability to diagnose, let alone treat, those citizens who are damaged by alcohol abuse during pregnancy.

[45] Month after month, year after year, police drunk tanks grow busier. The special needs assistants and teachers in Nunavut's schools struggle to deal with damaged children and the behavioral disorders associated with this. The Baffin Correctional Center's 18 bed Katak Unit is fast becoming a warehouse for the mentally ill, for those suffering from FASD, and for those who are otherwise vulnerable and needing protection. This will continue to be the case unless or until specialized services or programs are created at the community level to provide the structured and supervised living arrangements that these citizens need to thrive.

[46] As inmate population continues to climb, government is faced with the dismal prospect of having to spend more and more public funds to create larger and more numerous Correctional Centers. For want of any other remedial programs and services at the community level, Nunavut's gaols have become this Territory's option of last resort.

[47] In a Territory that lacks remedial resources, the prospect of defence counsel being able to structure an appropriate sentencing plan is daunting. In Nunavut, more can be accomplished for the life of a severely marginalized and disadvantaged citizen by work done in the area of remedial sentencing, than by an emphasis upon issues of liability. If services and programs do not exist that are needed to address the fundamental needs of citizens in Nunavut's communities, it falls upon defense counsel to take up the challenge.

[48] The remedial services necessary to overcome the disadvantages posed by poverty, disability, lack of education, and social dysfunction are of equal, if not greater importance to citizens accused of crime, their families and the larger community of which they are a part, than the determination of guilt or innocence. All are affected by the absence of essential remedial services necessary to address social dysfunction and crime.

[49] Advocacy in a criminal court room does not end with the determination of liability for a crime. Where remedial services are lacking, it is the criminal advocate's responsibility in Nunavut, as in the rest of the Commonwealth, to fearlessly and tirelessly advocate for the public programs and services needed to address the basic needs of the disadvantaged, marginalized and under-represented citizens that are daily swept up into the criminal justice system.

[50] It falls upon defense counsel, not the Court, to find a sentencing alternative to custody for citizens of diminished responsibility. It falls upon defense counsel, not the Court, to identify the resources needed to address the offender's special needs.

[51] It can take much time and a lot of extra effort to create sentencing alternatives where none exist. For this reason, this Court will rarely oppose an adjournment where needed to create a remedial sentencing plan for a special needs offender.

[52] It falls to the legal profession to lobby government for the funds and resources necessary to make such sentencing alternatives viable in Nunavut. When it comes to remedial services and programs, there is no room for complacency; there is no place for resignation or acceptance in a Territory struggling with substance abuse of epidemic proportions.

[53] 

VII. THE ROLE OF DEFENCE COUNSEL IN THE SENTENCING PROCESS AND PUBLIC INTEREST ADVOCACY

R. v Joamie, 2013 NUCJ 19:

[41] In this proceeding the Court has heard from Nunavut's Chief Medical Officer that the Nunavut Territory lacks the diagnostic services necessary to make a FASD diagnosis. If the Territory lacks the means to provide the diagnostic services required, the Court has the ability to order out of territory forensic assessments to be performed where necessary. The Court will not hesitate to do so where this is required for sentencing purposes.

[42] The Department of Health's failure to provide these diagnostic services within the Territory results in more delay in the provision of this service and greater cost to the taxpayer. In the end result, the expense associated with the out of territory diagnosis is simply transferred from the Department of Health to the Department of Justice. The government of Nunavut and its taxpayers end up footing the bill regardless of which Department is ultimately mandated to cover the expenses associated with the diagnosis.

[43] The Court has heard from the Territorial Manager of Community Wellness that the focus of the Department of Health is entirely upon prevention of FASD and community awareness. There are no programs or services of any kind at the community level to assist those citizens now suffering from FASD. There are no structured living facilities in the Territory to assist those severely damaged citizens who are in need of remedial treatment and support. The Territorial position for an FASD Coordinator was eliminated in 2011.

[44] For the first decade of its existence, the Nunavut Territory has experienced an accelerating rate of violent crime and suicide. Much of this dysfunction has been driven by alcohol abuse. There is no residential treatment facility in Nunavut to address the treatment needs of the alcoholic. There is no detoxification center available in Nunavut to dry out the alcoholic. There is no ability to diagnose, let alone treat, those citizens who are damaged by alcohol abuse during pregnancy.

[45] Month after month, year after year, police drunk tanks grow busier. The special needs assistants and teachers in Nunavut's schools struggle to deal with damaged children and the behavioral disorders associated with this. The Baffin Correctional Center's 18 bed Katak Unit is fast becoming a warehouse for the mentally ill, for those suffering from FASD, and for those who are otherwise vulnerable and needing protection. This will continue to be the case unless or until specialized services or programs are created at the community level to provide the structured and supervised living arrangements that these citizens need to thrive.

[46] As inmate population continues to climb, government is faced with the dismal prospect of having to spend more and more public funds to create larger and more numerous Correctional Centers. For want of any other remedial programs and services at the community level, Nunavut's gaols have become this Territory's option of last resort.

[47] In a Territory that lacks remedial resources, the prospect of defence counsel being able to structure an appropriate sentencing plan is daunting. In Nunavut, more can be accomplished for the life of a severely marginalized and disadvantaged citizen by work done in the area of remedial sentencing, than by an emphasis upon issues of liability. If services and programs do not exist that are needed to address the fundamental needs of citizens in Nunavut's communities, it falls upon defense counsel to take up the challenge.

[48] The remedial services necessary to overcome the disadvantages posed by poverty, disability, lack of education, and social dysfunction are of equal, if not greater importance to citizens accused of crime, their families and the larger community of which they are a part, than the determination of guilt or innocence. All are affected by the absence of essential remedial services necessary to address social dysfunction and crime.

[49] Advocacy in a criminal court room does not end with the determination of liability for a crime. Where remedial services are lacking, it is the criminal advocate's responsibility in Nunavut, as in the rest of the Commonwealth, to fearlessly and tirelessly advocate for the public programs and services needed to address the basic needs of the disadvantaged, marginalized and under-represented citizens that are daily swept up into the criminal justice system.

[50] It falls upon defense counsel, not the Court, to find a sentencing alternative to custody for citizens of diminished responsibility. It falls upon defense counsel, not the Court, to identify the resources needed to address the offender's special needs.

[51] It can take much time and a lot of extra effort to create sentencing alternatives where none exist. For this reason, this Court will rarely oppose an adjournment where needed to create a remedial sentencing plan for a special needs offender.

[52] It falls to the legal profession to lobby government for the funds and resources necessary to make such sentencing alternatives viable in Nunavut. When it comes to remedial services and programs, there is no room for complacency; there is no place for resignation or acceptance in a Territory struggling with substance abuse of epidemic proportions.

[53] The truest measure of social justice is how society addresses the basic needs of its poorest and disadvantaged citizens. If social justice is to be more than a fond hope, or distant mirage, for the poor, the disadvantaged and marginalized citizens of Nunavut, the legal profession as a whole must learn to speak up for those who have no voice.