A criminal defence lawyer is calling for a northern court of appeal to have three full-time resident judges – one from each territory.
Ryan Clements made the argument in an article for CanLII Connects – a site where legal professionals share analysis and commentary on Canadian court decisions.
Clements is now based in British Columbia, but still practises in the Northwest Territories and Nunavut.
“After all, even PEI has three resident appellate judges,” he wrote.
Currently, most judges that sit on the Nunavut Court of Appeal are from the Alberta Court of Appeal. The Northwest Territories Court of Appeal also relies on judges from the Alberta court, while the Yukon Court of Appeal uses judges from the British Columbia appeal court.
The northern appeal courts can also draw on lower supreme court judges from the territories.
Clements argues that means the NWT court considers sentencing decisions from Alberta to be more persuasive than other courts – even though NWT, Nunavut, and Yukon cases are more likely to have demographic, social, and cultural similarities.
“It’s an uncomfortable thing,” he said. “It’s troubling. Period.”
In his article, Clements referred to two decisions from the Nunavut appeal court – consisting of two judges from Alberta and one from the NWT – that reversed Nunavut judges’ findings that mandatory minimum sentences for firearms charges violated the charter.
Clements questioned why the appeal court intervened and found a lengthier prison sentence was “the appropriate response to risky and dysfunctional behaviour that does not cause injury, however serious, in isolated Indigenous communities of Canada’s far north.”
He suggested more deference should be given to resident northern judges.
Clements told Cabin Radio court decisions in Alberta are distinct from other provinces like BC, Ontario, and Nova Scotia. While variation in sentencing among different jurisdictions in Canada is encouraged in the law, he said, it becomes an issue if there are different sentences for similar offenders in the territories.
“It would be troubling that a Gwich’in offender in Fort McPherson, NWT, is treated more harshly than a comparable Gwich’in offender nearby in the Yukon. Or an Inuit offender from Ulukhaktok, NWT, more harshly than a comparable offender from the same remote island (Victoria Island) but in Cambridge Bay, NU,” he wrote.
Clements noted the Yukon and Nunavut courts have resisted using “starting points” in sentencing – setting a standard start range for sentences for specific crimes – while the NWT has adopted the method which is used by Alberta courts. Clements said starting points tend to lead to higher sentences for similar crimes.
There are some advantages to northern appeal courts relying on provincial appeal judges, however, Clements said. For Yukon offenders, it’s advantageous to have judges from the British Columbia appeal court, he said, which has historically been more lenient than the Alberta court.
Clements said it’s also sometimes “refreshing” to have an outside judge review a decision.
“It brings a fresh perspective in some cases,” he said.
In his article, Clements proposed that a northern court of appeal be created for all three territories, with one permanent, full-time resident judge from each. The court could also draw on judges from territorial supreme courts, he said, and then from provincial appeal courts.
Clements noted that all provincial appeal courts have permanent resident judges – including Prince Edward Island, which has a similar population to northern Canada. According to the province, it has an estimated population of 156,947, while the three territories have a combined estimated population of 129,620.
A spokesperson for the federal Department of Justice said the creation of such a new court would require the cooperation of federal and territorial governments. The federal government is responsible for the appointment and payment of superior court judges while the territories are responsible for establishing their own courts.