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COVID-19’s Impact on the Administration of Justice in Canada’s Arctic

By | Article
December 17, 2020
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Flags of the Northwest Territories and Canada

Outside government buildings in Yellowknife, Northwest Territories. Photo: Emily Tsui

With the onset of the coronavirus (COVID-19) pandemic, the world has found itself in a global health emergency, which has caused a dramatic loss of human life worldwide and brought normal life around the world to a halt for the better part of a year. The Arctic Institute’s COVID-19 Series offers an interesting compilation of best practices, challenges and diverse approaches to the pandemic applied by various Arctic states, regions, and communities. We hope that this series will contribute to our understanding of how the region has coped with this unprecedented crisis as well as provide food for thought about possibilities and potential of development of regional cooperation.

The Arctic Institute COVID19 Series 2020-2021

Governments across the world responded to COVID-19 by introducing measures limiting social interactions. In April 2020, the Global Access to Justice Project surveyed 51 countries on changes relating to the administration of justice.1) The survey found that common measures, such as temporarily suspending court hearings, embracing technology, and reducing outside visits to correctional facilities, disproportionately negatively impact vulnerable groups.2)

In the Arctic, long-standing challenges to the administration of justice are amplified by COVID-19. Geography, inadequate infrastructure, the continuing legacy of colonialism, and cultural differences, have always made access to the judicial system different from southern, non-Arctic jurisdictions. However, COVID-19 has not only exacerbated the challenges created by the Arctic’s unique context, but also presented new problems in overcoming inequality in the administration of justice. Using Canada as a case study, this article explores the difficulties in the administration of justice in the pre-COVID-19 and current COVID-19 world.

Background: The Arctic Context

Before turning to the discussion of the impact of COVID-19 policy changes, it is important to note that the Arctic has several unique features that shape the administration of justice in the Canadian North. Of course, each of Canada’s three jurisdictions, Yukon, the Northwest Territories (NWT), and Nunavut, have unique histories, legal systems, and other circumstances which affect how the judicial system operates and the state of access to justice programs. Nonetheless, there are some common long-standing challenges among these jurisdictions that might be helpful for policymakers dealing with Arctic issues at large to consider.

First, the vastness of the Arctic and infrastructure deficits make it difficult for both the individual to access the justice system and the court system to reach remote communities. In the North American Arctic, the necessity of travel to bridge this gap is heightened due to unreliable broadband connection.3) A history of southern neglect of the North, systemic exclusion of Northern peoples in Canadian political life, and low population density4) has meant that governments have not adequately invested in better broadband access, permanent local courts, and transportation infrastructure. In Yukon, Northwest Territories, and Nunavut, remote communities are normally serviced through a circuit court model where judges, court staff and lawyers fly in to hold hearings as needed.5) The use of circuit courts have long had gaps in addressing the needs of the community, such as community needs to participate meaningfully in the justice system. While circuit courts physically bring the judicial system closer to communities, community members can feel frustration due to delays between circuit court visits. Community members may also question the legitimacy of the judicial system due to the fleeting nature of the interactions.6) Judges and lawyers from the southern provinces are also frequently flown into territories to address personnel shortages.7)

Second, colonialism has left an unmistakable mark on the administration of justice in the Canadian Arctic. The arrival of the southerners in the region, and the subsequent imposition of the Anglo-Canadian political and legal systems in the North, marginalized Indigenous persons and uprooted community-based systems of justice.8) Its continuing impact today is seen in lower levels of trust in the justice system among Indigenous persons,9) and the higher rates of incarceration of Indigenous persons in correctional facilities. From 2013 to 2014, Indigenous adults in Yukon, NWT, and Nunavut comprised 75.6 percent, 89 percent and 98 percent respectively of all admissions to remand, territorial sentenced custody, probation and conditional sentences.10) In contrast, individuals identifying as Indigenous in Yukon, NWT, and Nunavut make up 23.3 percent, 50.7 percent, and 85.9 percent of the territorial population respectively.11) Furthermore, for example, the history of residential schools and abuse of powers by police in Yukon have made women reluctant to report domestic violence over fears of losing their children to the authorities.12) This context means that disruptions to the justice system disproportionately affect Indigenous peoples.

Third, cultural differences remain. While interpreters may be able to bridge differences in language, they cannot resolve deeper cultural differences present in a diverse North. Across Canada, Elders are an important source of support and healing for Indigenous communities, and therefore play a role in the justice system which has no equivalent in non-Indigenous communities.13) In Yukon, Indigenous women highlighted the importance of healing in the role of a legal advocate.14) A Department of Justice report noted that “many Inuit are reluctant to plead not guilty if they did commit the crime and are susceptible to subtle pressures from authority figures.”15) These differences mean that southern notions of justice do not always match community expectations and needs. Administering justice in the North must be sensitive and adaptable in consideration of these differences.

Fourth, the availability of legal and social support resources is limited compared to the south. For one, the absence of a law school in any of the three territories means that individuals must fly hundreds or thousands of kilometers to obtain legal education. There are also few social services to support those who might be interacting in the justice system. In the NWT, Karen Wilford, the Executive Director of the NWT Legal Aid Commission, remarks that legal aid staff are expected to fill every access to justice gap as individuals have nowhere else to turn.16) Unlike southern Canada, the number of social services available to support individuals is significantly lower. For example, there are no facility-based treatment options for addictions in the NWT or Nunavut.17) In short, lawyers in Canada’s Arctic jurisdictions are expected to do more with less.

COVID-19’s Impact

Across Canada’s Arctic, policymakers have implemented measures that are similar to current global policies to maintain social distancing out of caution, despite very few or no cases of COVID-19.18) While Yukon, NWT, and Nunavut have taken different COVID-19 related approaches, some of the common policies include the introduction of travel restrictions, closure of courts and the adoption of technological alternatives, alteration of conditions in correctional facilities, and changes to sentencing. While the impact of COVID-19 on the administration of justice and legal aid cannot fully be understood at this early stage, there are some clearly known effects of the last seven months which are extremely concerning. The following discusses some of these changes in Yukon, the NWT, and Nunavut.

Travel Restrictions

The territories responded quickly to COVID-19 by closing their borders to southern Canadians.19) Exceptions to requirements on border closures existed for those who provide critical or essential services, which either expressly20) or could include21) lawyers and legal services providers. However, the scope of this exception is limited and ill-defined.22) In the NWT and Nunavut, prior authorization is required.23) In Yukon and the NWT, travel to rural and remote communities remains restricted.24) Airlines have reduced the number of flights in response to falling demand.25) Even if exemptions are possible, communities and courts have clearly expressed a strong preference for people to not visit their communities over concerns of the capacity of their healthcare systems to adequately deal with an outbreak of COVID-19.26)

The effect of these travel restrictions is profound. Through the territories’ use of southern lawyers in its legal aid system, southern judges in adjudicating appellate cases, and the circuit court system, the disruption of normal travel patterns means it has become significantly harder to maintain a manageable caseload and bring the judicial system directly to remote communities. For legal aid providers with limited resources, travel restrictions and requirements for prior authorization create an additional administrative burden that distracts from providing legal assistance to those who need it the most. Without the ability to travel to visit clients in the North as required, the development of a strong lawyer-client relationship that is the backbone of the judicial system is likely disrupted.27)

Closure of Courts and Adoption of Technological Solutions

During the pandemic, scheduled sittings at the courthouses and travelling circuit courts have been postponed.28) To continue their work, courts have increased their use of teleconferencing, videoconferencing, and email.29) Jury trials have mostly been postponed or restricted to few locations that can accommodate adequate social distancing measures.30) For example, in the NWT, jury trials can only be conducted in one designated building in Yellowknife, Inuvik, and Hay River,31) inevitably creating delays in the court hearing schedule. While the success of stopping COVID-19 from spreading in the Arctic has allowed for some in-person activities to resume, courts are still processing the backlog of cases and continuing much of their work remotely.

Cancelling or delaying hearings directly impacts people. In Nunavut, the postponement of court dates forced three men to live in tents for weeks in Iqaluit in March, when the average daily temperature was minus 20 degrees Celsius, as no financial support was offered to the men for accommodation.32) In the NWT, the courts postponed Bill’s33) trial, who was released on the conditions of living away from his home community and to refrain from alcohol consumption.34) However, Bill struggled with alcohol addiction, and after the postponement of the hearing without the support of his community, he relapsed. Consequently, he breached his release conditions, adding additional charges to his record and making it harder for him to rebuild his life.

The reliance on technological solutions exacerbates the inequality of access to justice. Not everyone has phones or funds for minutes. Broadband access is limited in rural and remote communities. Where broadband is available, it is expensive, and not every community has the adequate equipment or local expertise to troubleshoot technical problems. Furthermore, due to COVID-19 related closures of public facilities, individuals, such as KM and LM in the NWT, have been unable to go to their public library to access the internet.35) The lack of email access deprived KM and LM of updates to their case relating to their tenancy agreement, and without these updates, they missed the opportunity to respond to evidence from their landlords.36) Finally, the impact turning to technology has a direct impact on the fairness of a trial. Wilford observed that when technology does not work well, there is a disproportionate negative impact on the accused.37)

Trial in a reasonable time is a constitutional right in Canada and is necessary to maintain overall public confidence in the administration of justice.38) At this point in time, it is unclear how these closures will impact these rights, but it is likely that courts will have to address these concerns soon once time limits approach.

Changes to Correctional Facilities

Due to concerns about the capacity of correctional facilities to adequately enact social distancing measures, Northern correctional facilities have introduced measures that have made life for prisoners harder. Early in the pandemic, visits to prisoners were suspended,39) though some have resumed.40) During the lockdown in Nunavut, all programs, including elder counselling, were cancelled. Inexplicably, the provision of country food to prisoners was suspended, money transfers were cancelled, and outdoor time reduced for Nunavut’s prisoners.41)

Chief Justice Sharkey of the Nunavut Court of Justice in R v Pangon concisely summarized the effects of these changes on the individual: “It follows that unpredictable and repeated lockdowns because of COVID-19 not only deprive inmates of normal congregation, recreation, and therapy – they can also create additional stresses akin to the experience of individual segregation.”42) These changes generate anxiety among prisoners and ultimately strain their physical and mental well-being, as their access to traditional support networks, such as elder counselling and family visits, were suspended. The suspension of mail in Nunavut means that prisoners could not send support cheques to their family, which places families in a precarious situation.43) The nature of these restrictions erodes trust in the administration of justice in the North.

Changes to Sentencing

Courts have granted early release and allowed remand time to count for more. In R v Pangon, Sharkey C.J. explained: “Bluntly, remand time (including enhanced credit) during COVID-19 should now count for more than it did in the past within the very limited context of measuring, in a specific case, whether any jail moving forward is necessary.”44) However, Sharkey C.J. and the NWT Minister of Justice Caroline Wawzonek have emphasized that COVID-19 has not resulted in an automatic reduction of all jail sentences, but instead courts have made the early release process more available and have committed to processing these applications faster.45)

These changes are welcome considering the reality of correctional facility conditions in the North and the impact of COVID-19 on economic and personal relations. However, as NWT Supreme Court Justice Andrew Mahar rightly notes, these measures can undermine the public’s confidence in the justice system, as the public is likely to question the necessity of incarceration when courts decide that the individual does not pose an actual threat to the community.46) Striking the right balance requires a careful case by case approach that assesses the infrastructure capacities of the system and the ability of the community to adapt to changes.

Legal Aid During COVID-19

Legal aid providers are first responders in addressing COVID-19 related changes for their clients. Navigating these constantly changing measures is difficult and time consuming for both individuals and their lawyers. Globally, most legal aid mechanisms are operating without additional funding,47) exacerbating the strain on existing legal aid providers and the clients that they serve. The result of COVID-19 on access to justice is stark: about half of countries reported that the capacity of the legal aid system could not maintain normal levels of access to justice because of the pandemic.48)

In the North during the COVID-19 pandemic, different challenges exist. For one, southern lawyers cannot be called in to assist due to travel restrictions. Legal aid serves the vulnerable and marginalized, and providers cannot automatically assume that their clients will have access to a phone or internet to meaningfully participate in their cases. Indeed, it is doubtful that each client’s unique circumstances, especially in cases where cultural differences and colonialism are relevant, can be adequately communicated over the phone. Legal aid providers have had to innovate, on their existing limited resources, to identify new forms of outreach.49)

The difficulties posed by the lack of supportive social services are compounded by bureaucratic delays. In the NWT, John50) needs treatment for his addiction, but his legal aid lawyers are having a difficult time assisting him in processing his application to travel to southern facilities due to COVID-19 related delays. While his application is pending, John, who experiences significant mental health issues, has difficulty staying out of trouble, and has consequently been housed in jail. Staff are engaged in multiple roles in John’s case, as lawyers and social workers, compounded by challenges of government offices operating in limited capacities.

Responding to the Impact of COVID-19

COVID-19 acutely brought to light the need to undertake short-term action and long-term reform to the administration of justice in the Arctic that considers the region’s unique geographical, historical, and cultural context. There is without a doubt that infrastructure upgrades and retaining skilled legal personnel in the North are crucial to the success of any policy reform. At the same time, it is important to remember that technology is not the solution to everything, as it is still yet to be seen whether it is capable of developing a robust lawyer-client relationship and minimize prejudicial effects on the accused.

In the short-term, COVID-19 impacts those in the justice system, and disproportionately, the disadvantaged and marginalized. Financial support must be increased to assist individuals who cannot shoulder the costs of limited travel, delayed court dates, and broadband access. For any alterations to the conditions in correctional facilities, it is important that facilities workers demonstrate a compassionate response that is sensitive to local community needs. During sentencing, judges have been right to consider COVID-19 as a factor and should continue to do so. Legal aid providers must also be supported as the first responders to these changes through additional financial and administrative resources.

In the long-term, alternative models of administering justice that prioritize community needs are worth considering. One option might be to inch towards the fundamentally local Greenlandic system of administering justice, given the similarities in geography, history, and demographics. For example, courts of first instance are administered by two locally elected lay assessors and one appointed lay judge located in each of the eighteen judicial districts, allowing for better use of the local language, Indigenous substantive law, and granting the community more agency in administering justice.51) Of course, major differences exist between jurisdictions that bar Canadian territories from simply adopting the Greenlandic model, such as the use of civil law in Greenland and common law Canada, which affect the role of the judge in a case.52)

Reform along the lines of granting greater authority to communities is not only a prudent response to COVID-19 policies, that make it harder for communities to access the judicial system, but to achieve meaningful reconciliation.53) Domestically, the federal, territorial, Indigenous, and local levels of governments can work together to identify and implement changes, and the federal government must take a generous approach in funding these changes. International efforts can support domestic efforts by assessing best practices and knowledge sharing. At the Arctic Council, this work can be done at the Sustainable Development Working Group (SDWG), as the reduction and elimination of inequalities falls within its Strategic Framework.54) Yet an 83-page document presented to the Senior Arctic Officials of the Arctic Council in June 2020 on the impact of COVID-19 to the region completely failed to mention the administration of justice and access to justice.55) Moving forward, states can work together at the Arctic Council, and the SDWG could take a role, on mitigating the impact of COVID-19 on the administration of justice.

Undoubtedly, these bills add up. But given how crucial meaningful access to rights is to ensuring well-being in this pandemic, no expenses can be spared. During this time of immense spending by the federal government,56) it is important to ensure that attention and funds are also directed towards mitigating the impact of COVID-19 on the administration of justice in Canada’s North over the short and long term. As Wilford astutely observed, “If reconciliation is the goal, it cannot be achieved over the phone.”57)

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