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Hear No Evil

Deaf since childhood, Bobby Suwarak grew up in isolation, able to understand no known language. Now charged with a crime, he has presented Nunavut’s court system with a problem. But the form of charades he uses to communicate is being used by deaf Inuit across the territory, leading one researcher to call for the court to recognize it too


BY Sara Minogue
Photography by Craig Vincent

“When you are in court, are you sometimes confused?” Tim Kavanagh leans over the defense table in the bright Iqaluit courtroom as he asks the question. A lawyer with hair the colour of orange Pez, Kavanagh is questioning David Kautaq, the short, trim man sitting stiffly in the witness chair.

“Yes,” Kautaq says.

Kautaq has a neat side part and curly black hair tamed with wax and, despite his confession, he looks composed. That’s because Kautaq is not the one on trial.

Bobby Suwarak, seated at the defense table, is the one who has been charged with sexual assault, breaking and entering, and breaking and entering to commit sexual assault. Dressed in the blue sweatsuit that is standard issue at Baffin Correctional Centre (BCC) where he has spent the past nine months, Suwarak appears to pay close attention to the proceedings. But it’s impossible to tell how much he understands.

Suwarak has been deaf since about the age of five. He grew up in Baker Lake, Nunavut, a town of 1,500 people whose claim to fame is that it is the geographical centre of Canada—making it quite literally the middle of nowhere. As a child, he tried going to elementary school, but he left after a week, frustrated at being unable to communicate with his teacher. He once learned the American Sign Language (ASL) alphabet by looking at pictures in a book, but he can’t read or write well enough to use it.

For most of his life, Suwarak has gotten by using a homemade sign language that allows him to communicate easily with his family and others in Baker Lake. It’s not clear how well he can read lips or whether he gets along better in Inuktitut or English. At home, surrounded by people he knows, his disability doesn’t stop him from participating in small-town life. Suwarak works odd jobs, plays cards, goes fishing and watches movies like everyone else. However, the makeshift form of communication Suwarak has used for so long is less effective in the Nunavut Court of Justice. Suwarak has presented the court with an obstacle—a defendant that nobody in court can understand.

Nobody, that is, with the possible exception of David Kautaq, Suwarak’s childhood friend. Kautaq learned the homemade language as a child from Suwarak’s father and brothers, and has served as Suwarak’s semi-official court interpreter on at least two previous occasions. Most recently, in October 2001, he helped Suwarak plead guilty to sexual assault, which resulted in a sentence of two years less a day.

Now, Suwarak has been accused of breaking into a woman’s home and sexually assaulting her. He was on probation at the time, having been charged with breaking into yet another Baker Lake home. Three successive lawyers appointed by Maliiganik Tukisiiniakvik, a legal aid clinic in Nunavut, refused to represent him, saying Suwarak could not receive a fair trail because of his inability to comprehend the proceedings. After stepping down as duty counsel, however, Kavanagh, the third lawyer, continued to fight on Suwarak’s behalf.

A good-natured man with a healthy sense of the absurd, Kavanagh was until recently based in Rankin Inlet, a short plane ride away from Baker Lake. He first met Suwarak in 2001, when Suwarak was in court on different charges. He had doubts from the beginning about Kautaq’s precision as an interpreter, and stepped down from that case after spending 10 minutes with the pair, unconvinced that their sign language could convey such concepts as “trial by jury” or “indictable offense.”

By the fall of 2004, however, Kavanagh had already seen Suwarak jailed in spite of his serious communication handicap. This time, Kavanagh made a request to be appointed amicus curiae, translated as “a friend of the courts,” so that he could provide relevant information to the judge without claiming to act as a representative for the accused. In January, he launched a charter application, arguing that Suwarak cannot get a fair trial without access to an official, unbiased interpreter. Right now, of course, there’s no such thing, and Kavanagh is asking the judge for a stay of proceedings.

Kavanagh’s constitutional challenge has only just started to wend its way through the courts. Today, however, Jonathan Solski, the crown prosecutor, has agreed to stay the two charges of breaking and entering. Solski will not drop the sexual assault charge, but he is willing to allow Suwarak out of jail, where he has been held since April 2004. Suwarak has no history of violence, and the victim of the sexual assault has since moved to another community—which means Suwarak is not likely a danger to the public. The judge is prepared to let Suwarak out of jail on five conditions, provided that Kautaq can explain the conditions.

In the courtroom, Kavanagh is walking a fine line with his questions. They are designed to show the judge that Kautaq can explain the conditions of release to Suwarak. At the same time, this is all on the record, and Kavanagh is at the beginning of a case that hinges on the fact that Kautaq is not qualified to act as an interpreter in court.

“There are some things I can’t interpret because there are some things that can’t be said in Bobby’s language,” Kautaq says at last. “I am very close to my limit.”

On that note, Kavanagh moves on to the logistics of the sign language Kautaq uses to communicate with his friend. Yes, Kautaq says, he can describe the judge’s conditions of release, if not the exact words. He can explain to Suwarak that he needs to stay in his house. He can tell him not to fight. He can tell him not to go near the victim. The only catch here is that Suwarak reads lips to understand familiar names, but two other women in Baker Lake have the same name as the complainant. Kautaq demonstrates how a gesture can be added to distinguish one individual from another, using two strokes of the chin to identify a man with a goatee.

Later that morning, Kautaq and Suwarak return to the courthouse after collecting Suwarak’s personal effects from BCC. Suwarak is now in civilian clothes and ready to go over his conditions of release in front of the court clerk. Standing at the counter in the clerk’s office, Kautaq whispers and gestures to his friend. Kautaq describes the language as “like charades,” combining English and Inuktitut. At the desk, it looks like conventional sign language, if slightly exaggerated. Kautaq interprets the clerk’s instructions and Suwarak nods his understanding several times. Then they come to the final condition, which says Suwarak must complete a course in sign language or communication.

“We don’t have anything like that in Baker Lake,” Kautaq mutters to the court clerk, as he pauses to consider how to explain this to Suwarak. In fact, none of Nunavut’s 25 communities have such a program, which leaves more than 150 deaf people in the territory in exactly Suwarak’s situation. Nunavut has the highest rate of violent crime in the country. Life expectancy is several years behind the rest of Canada. Just one in four Grade 1 students will make it to Grade 12. All that is to say that Canada’s newest territory is in no position to cater to its weakest citizens. This despite the fact that deaf defendants and witnesses with no recognized sign language are not new to the Nunavut court system. Suwarak himself had his first run-in with the law in 1996, and has served time on two separate occasions.

For his most recent sentence, staff at Nunavut’s department of justice went out of their way to make sure Suwarak was well looked after in prison. They also took steps to improve his communication skills. They hired Kautaq, who was working in a convenience store in Baker Lake, to work as a corrections officer in Iqaluit. Kautaq served as Suwarak’s interpreter and also helped him during one-on-one lessons in math and reading at the drop-in literacy program at Nunavut Arctic College. Kautaq didn’t mind the upheaval and was a dedicated teacher, but literacy was slow in coming for Suwarak, as it is for many deaf people with limited access to language in its oral form. Instead, Suwarak chose to focus on math skills. He made great strides and even won the most improved student award. But by the end of the program, according to Dan Page, a literacy instructor at the time, Suwarak had the literacy skills of an eight-year-old. After his sentence was up, he and Kautaq returned to Baker Lake, giving up the possibility of further literacy instruction—or, in the event of trouble down the line, a fair trial in court.

For now, as soon as the weather co-operates, Suwarak and Kautaq will head home again, and remain there while they wait to see whether the court will press on with the charges.

*

Dr. Jamie MacDougall is a psychologist with Montreal’s McGill University who specializes in deafness. He first met Suwarak in 1999 when he was called to offer expert testimony on Suwarak’s ability to communicate during trial. While on the stand in this latest case, he said the same thing he said in 1999—that there is no way to know whether Suwarak’s level of communication is sufficient for trial.

MacDougall would not be so cavalier as to describe Suwarak’s sign language as a game of charades. Assessing communication skills is an art and MacDougall has honed it over several years. He prefers to meet his subjects in both formal and informal settings, including at their homes. He brings along his wife, who helps put the subjects at ease and helps make the atmosphere friendly and social, rather than clinical. The MacDougalls tried to create a relaxed atmosphere during their 1999 visit to Baker Lake, but communication still felt stiff. So they decided to join Suwarak on a caribou-hunting trip.

They set off on snowmobiles with a guide from town. Nearing sunset, however, the hunting party strayed off course while following a herd of caribou. MacDougall got his first glimpse of communication with Suwarak when he signed—and MacDougall understood—“We are lost.” The guide drove up a hill to get a better view—and then disappeared. So the MacDougalls faced a chilly night on the snow-covered tundra with Suwarak. They had already become uncomfortably familiar with Suwarak’s term for wolf. It was in these dark hours before the local search and rescue team arrived that MacDougall says he and Suwarak finally began to communicate.

“Deafness did not seem to be a factor,” MacDougall later wrote in a report for Justice Canada. “My overall impression was of communications with a deaf man from another country who had a foreign sign language.” Suwarak’s case piqued MacDougall’s interest. Surely Suwarak wasn’t the only one to encounter this problem in Nunavut. MacDougall knew there must be others. So how did they communicate?

During research for his report the following year, MacDougall encountered three more deaf people in remote Arctic communities. He found that all were able to communicate with friends and family by using ASL, a homemade language similar to the one Suwarak used or a combination of the two. MacDougall also noted that there appeared to be little or no stigma attached to using sign language—it was simply accepted, in a way that it traditionally has not been in the South.

In fact, the notion of sign language didn’t appear to be new or confusing to the Inuit MacDougall met. Several people remembered hearing elders talk about a sign language that was used between Inuit who spoke different dialects. This in itself is not strange. According to MacDougall, virtually every society in the world has its own forms of sign language, and there have been several documented cases of aboriginal groups in North and South America, Australia and elsewhere that have used sign language to communicate across dialects. However, these physical languages were developed by hearing people for hearing people and they were often widely known because the people who used them travelled great distances and met new people along the way.

But in Nunavut, MacDougall made an interesting discovery about how languages spread between isolated communities. He played a videotape of sign language discussions among clients in Rankin Inlet, in central Nunavut, and Pangnirtung, in eastern Nunavut, to one of Suwarak’s interpreters in Baker Lake. About a third of the signs—including those used to denote time, numbers, days of the week and past, present and future—bore surprising similarities to each other, though they all differed from ASL. Another third were similar with variations. The Baker Lake interpreter could understand all of them.

MacDougall called his discovery Inuit Sign Language, and he remains the only person to have studied it. In his Justice Canada report, he recommended further study and documentation of ISL, and he urged the Government of Nunavut to create a court interpreter training program in ISL with the goal of producing impartial legal interpreters for deaf Inuit. But that never happened.

A reasonable person might ask: Does it even matter? In 2000, MacDougall estimated that there were 155 deaf people in Nunavut, of whom approximately 30 percent—perhaps 47 people—are untrained in ASL. A simpler, and cheaper, solution would be to train these people to use ASL. But how? By sending them to cities in southern Canada? Many Inuit still associate the South with medical emergencies and residential schools. Furthermore, ASL is based on the English language, and the dominant language in Nunavut is Inuktitut. In many small communities, 90 percent of people speak Inuktitut as a first language, and many speak limited English. Learning ASL would not only require deaf Inuit to first learn English, using it would effectively cut them off from their communities.

To MacDougall, there’s no question that ISL requires further study. “It has to be recognized,” he says, adding that Suwarak is fighting a battle that many advocates for the deaf thought they had already won. Not so long ago, deaf people accused of crimes were viewed by the courts as dumb or insane, and declared mentally unfit to stand trial. Chillingly, deaf victims were often excluded from the court system entirely. Since learning of Suwarak’s case in February, the Canadian Association of the Deaf has pledged to “provide information and assistance to help promote the visibility of ISL and to build interpreter training programs for wider use in the ISL region.”

Using another historical example, MacDougall likens the recognition of ISL by the courts to the ongoing process of recognizing Inuktitut. It was less than 30 years ago that the first trial occurred entirely in Inuktitut. Today, defendants and complainants often choose to access the courts using their mother tongue (though many northern lawyers wonder how much some unilingual Inuit understand in court).

But that’s a different argument. The bottom line is that the Canadian Charter of Rights and Freedoms guarantees all citizens a right to a fair trial, regardless of physical disability. In Suwarak’s case Nunavut’s department of justice is looking for a solution, though nobody was willing to talk about it for this story, despite the fact that the minister of justice is the premier and also a lawyer.

In a similar case in Nova Scotia 11 years ago, a provincial court judge dropped charges of sexual interference against a deaf defendant, 59-year-old Everette Roy, who could not read, speak or sign. The judge himself called the decision “the a-bomb of judicial remedies” but few people believed it was any more than a freak occurrence. Three psychiatric assessments deemed Roy more or less intelligent, and certainly not insane. But his communication skills were limited to what he and his sister, with whom he shared a home, had worked out around the house.

In Suwarak’s case, Solski, the crown prosecutor, has no intention of dropping the remaining charge of sexual assault, pointing out that “it’s in everybody’s interest” to see Suwarak’s case proceed to trial. Some might argue it’s in Suwarak’s interest too, as he has the right to see the matter come to a close. And while this might seem like a good case for Nunavut’s growing alternative justice system, sexual assault is an indictable offense and, if jail time is involved, the case needs to be heard in court.

In the Frobisher Inn the morning after his release, Suwarak plays with Kautaq’s 16-month-old son, Sulomonie, as the two wait to hear whether stormy weather will cancel their flight back home. He appears to have no trouble at all communicating with the child, or with Kautaq’s three-year-old daughter. It’s -33 outside, and all Suwarak has to wear is a T-shirt and the light spring jacket he had on when he went to jail last spring. I’ve brought him a sweater. I look him in the eye, wondering if it’s possible to communicate something. In return, I get a thumbs up, a nod, and a smile. A thank you in ISL?

*


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