A criminal defense attorney demands that an appeals court in the north have three full-time judges – one from each area.
Ryan Clements made the argument in an article for CanLII Connects – a website where lawyers share analysis and commentary on Canadian court decisions.
Clements is based in British Columbia but still practices in the Northwest Territories and Nunavut.
"After all, PEI even has three resident appellate judges," he wrote.
Currently, most of the judges sitting on the Nunavut Court of Appeal are from the Alberta Court of Appeal. The Northwest Territories Court of Appeal also uses judges from the Alberta Court of Justice, while the Yukon Court of Appeals uses judges from the British Columbia Court of Appeal.
The northern appellate courts may also rely on judges from the lower supreme courts from the areas.
Clements argues that the NWT court finds Alberta verdicts more convincing than other courts – although NWT, Nunavut, and Yukon cases tend to have demographic, social, and cultural similarities.
"It's an uncomfortable thing," he said. "It's worrying. Period."
In his article, Clements referred to two decisions by the Nunavut Court of Appeals – comprised of two judges from Alberta and one from the NWT – which reversed the Nunavut judges' finding that mandatory minimum penalties for firearms fees were in violation of the Charter.
In Cedric Ookowt and Simeonie Itturiligaq's cases, the perpetrators were young Inuit men and traditional hunters with no criminal record, and no one was injured in either incident.
Clements questioned why the appeals court intervened, finding that a longer sentence is "the appropriate response to risky and dysfunctional behavior that does not cause serious harm in isolated indigenous communities in the far north of Canada."
He suggested paying more respect to the resident judges in the north.
Clements said Cabin Radio's court rulings in Alberta are different from other provinces such as BC, Ontario and Nova Scotia. While differences in conviction between jurisdictions are required by law in Canada, it becomes a problem when areas have different penalties for similar offenders.
"It would be worrying if a Gwich'in offender in Fort McPherson, NWT, were treated tougher than a comparable Gwich'in offender near the Yukon. Or an Inuit offender from Ulukhaktok, NWT, tougher as a comparable offender from the same remote island (Victoria Island) but in Cambridge Bay, NU, ”he wrote.
Clements noted that the Yukon and Nunavut courts have refused to use "starting points" in sentencing – setting a standard starting area for sentences for specific crimes – while the NWT has adopted the method used by Alberta courts. Clements said starting points tend to lead to higher penalties for similar crimes.
Clements said that appeals courts in the north that rely on provincial judges have some advantages. It is advantageous for Yukon offenders to have judges in the British Columbia Court of Appeal, which has historically been milder than the Alberta Court.
He said it was also "refreshing" sometimes to have an outside judge review a decision.
"It brings a new perspective in some cases," he said.
In his article, Clements suggested setting up an appeals court in the north for each of the three areas, each with a full-time permanent judge. The court could also rely on judges from the Supreme Territorial Courts and then from the provincial courts of appeal.
Clements noted that all of the provincial appeals courts have permanent judges – including Prince Edward Island, which has a population similar to northern Canada. According to the province, it has an estimated population of 156,947 while the three areas have an estimated total population of 129,620.