What southerners can learn from the North about justice

October 16, 2022

This year I had the privilege and responsibility of working with the Northwest Territories Legal Aid Commission to assist with access to justice in small northern communities.

Being invited into these communities to help accused people in court is a privilege. Although my experience is still new in this area, I have met wonderful people, seen some of Canada’s most magnificent wilderness, and changed my view of the legal system.

It is a responsibility because I am acutely aware that I’m a white male parachuted into a mostly Indigenous community to assist in dispensing colonial justice. It’s something that, quite frankly, makes me a bit uncomfortable.

Even though there are just a handful of RCMP officers in these small communities, I suspect they have some of the highest officer-to-civilian ratios in all of Canada. And in my short time working on circuit, I have witnessed and heard about problems with this type of policing model.

Inescapably, the accused are primarily Indigenous, and the justice system participants are mostly white. Yet, I know I and the judges, court staff and other lawyers take our responsibility very seriously and are conscientious and thoughtful about the parts we play in an imperfect justice system.

Work on circuit is fast-paced, and with 40 hours of trial time set for a single court day, there is little room for mistakes. The thought of an Indigenous accused being removed from their community because I missed an issue or short-changed trial preparation keeps me up at night.

Although my experience on circuit is limited – I barely have 40,000 km under my belt – I think there are some valuable lessons the South can learn from the North.

Prosecutions on northern circuits, by necessity, are measured and restrained. Court time is at a premium, and compared to what I see in Ottawa, the Crown counsel in the North better use their discretion to divert charges, creatively resolve matters, and narrow issues. Last month, one of my clients and the man he was accused of assaulting literally hugged it out at centre ice.

Prosecutors in the south would do well to take a lesson from their northern colleagues and better use their discretion to achieve justice.

When court comes to town only once a month (sometimes even less frequently), procedures must be efficient. Too many cases in southern courts are adjourned – disclosure is not ready, the Crown has not elected, legal aid has not been issued, or parties must jump through bureaucratic hoops before setting a trial.

To be sure, there are unacceptable delays in the North too, but the files I have seen move lightning fast. Legal aid and community workers are in court to take applications and assist accused people, elections are made on the spot, and trial dates are scheduled quickly. In Ottawa, I would kill for a trial within 45 days of a first appearance. In the North, I don’t need to.

But all of this would not be possible without collaboration and flexibility. Maybe it is because of the white-knuckle bush fights defence and Crown counsel take together, or because there is only one place to eat in town and shared feelings of almost drowning in work – but I have never seen as much collegiality as I have in the North.

I met with Crown counsel late into the night to ensure we were ready to hit the ground running the next day. Last month, I inherited a file set for trial and saw a Charter issue that the lawyer before me didn’t. I told the Crown, and on less than a day’s notice, we narrowed the Charter issue and ensured the matter could proceed. Things like that rarely happen in the South.

And none of this would be possible without the cooperation of the judiciary and court staff, who sit long hours with hardly a break. On circuit, there are no judge’s chambers. On breaks, the judges sit in the community hall that doubles as a courtroom and bear witness to the controlled chaos. True, I have heard some horror stories, but I have only seen compassion and intelligence under pressure.

I know that there are a million things I am missing. And I know some injustices are lurking outside of my limited view. Policing in small communities is fraught with racism and abuse. Bursting dockets, even managed by experienced counsel, are a recipe for mistakes. But there are many lessons we in the South can learn from how court is conducted in the North.

Last month I ran a trial for an in-custody accused. He was Indigenous and incarcerated 500 km from his home community. He had no doubt experienced all the racism the justice system offered. But when police brought him to court, they took off his handcuffs, and he sat in the community hall turned courtroom alongside his community. When it was time for his trial, he sat beside me at the folding counsel table with dignity. And at a break, he was able to hug his family.

This situation would never happen in Ottawa.

I will wait until I have a couple hundred thousand more kilometres under my belt before I try to tell the North how it can do things better, but I have already seen enough to know that the South can learn some valuable lessons from Northern justice.