Territories need full-time appeal court judges that live here, lawyer says

A criminal defence lawyer says he wants to see northern judges making more decisions at appeal courts in the North.

"I'm not here to criticize the current state of affairs, I'm also not calling for action. But I am calling, I think, for us to think about this topic," said criminal defence lawyer Ryan Clements, who lived in the North but now lives in Vancouver. He still practises in the North.

"In my view, it's worth considering that the highest court in the territory ought to be composed of judges that work and live in the North, that is — non-residents like me might not be the best people to be making the important decisions that that court makes." 

Clements suggests there should be three full-time resident court of appeal judges in the North, one from each territory, according to his article published on CanLII Connects last month and as first reported by Cabin Radio.

From an economic point of view, I know that what I'm suggesting will have a cost impact.- Ryan Clements, criminal defence lawyer

Currently, if a case goes to the N.W.T.'s court of appeal, it's likely the judges who hear it live and work outside the territory, according to Clements. A three-justice panel is required for quorum in most appeal court cases, Clements said. He explained that for the territory, the practice is to have all three judges be from Alberta's court of appeal, or have two from Alberta and one northern judge.

"So in other words, northern judges are not on the panels at all, or a minority," he said.

Potential disparities, 'unjustified differences'

Clements said one of the impacts of not having resident judges is that territories tend to look to other southern jurisdictions for more legal weight.

He said the differing approaches to sentencing in the North — for example Yukon looking to B.C.'s and the N.W.T. looking to Alberta's sentencing laws — may result in "unjustified differences" for individuals, "simply depending which side of the border a person is prosecuted."

"For instance a Gwich'in offender from Fort McPherson in Northwest Territories could well receive a higher sentence than an identical offender in the nearby Yukon. And similarly an Inuit offender in Ulukhaktok may receive a higher sentence than an identical offender in Cambridge Bay, Nunavut," said Clements.

"This potential disparity — which I do think, from experience, plays itself out in the real world to a certain extent — could be remedied by a northern appellate court that would set guidance for the territories at large."

Clements said it's problematic that northern courts treat southern sentencing decisions as "more persuasive," rather than looking at each other's sentencing decisions, because the territories are more similar demographically, socially and culturally than the South.

Workload heavier than other jurisdictions

Clements said things are the way they are largely because of political history of the regions. He said for this change to happen, it would require a "significant amount of federal and territorial co-operation."

He did point out that P.E.I.'s population is similar to the combined population of all three territories, but it has three resident judges for its court of appeal. 

But northern appeal courts are busier than P.E.I.'s court in terms of caseloads, said Clements. 

"From an economic point of view, I know that what I'm suggesting will have a cost impact. But I think there's a workload justification there if you compare it to places like P.E.I."