“Northern justice” in Canada is virtually an oxymoron. The legal systems that serve remote communities in Canada’s north are frequently dysfunctional and don’t begin to meet the basic standards of justice the public demands. The justice system in Thompson, Manitoba epitomizes the problems with delivering justice to northern, Indigenous communities.
Continue reading below for my thoughts regarding some of the major causes of northern dysfunction in the Canadian justice system.
Extreme violence and widespread crime is a daily reality for many northern, Indigenous residents. There are numerous and complex causes of this violence. Regardless of the causes, however, there’s no denying that rates many types of crime are extraordinarily high in remote, northern communities.
Even a brief stint as a justice system participant in northern Canada will reveal the nature of much of the crime: alcohol-fueled violence, usually aimed at an acquaintance or family member, and often with the aid of a knife.
Thompson, Manitoba and its surrounding communities are particularly prone to this kind of violence. Maclean’s Magazine declared that, for the third year in a row, “Canada’s worst violent crime problem is in Thompson, Man.“
The endemic violence ensures that the courts remain swamped with serious files that can’t simply be diverted for alternative measures or easily disposed of for non-custodial sentences.
The accused in these cases also often have significant criminal records. Indeed, in many cases, the criminal records of accused include dozens of violent offenses. This creates obvious problems for defense lawyers and Crowns who may wish to see as many accused as possible released pending trial but find it difficult to justify consent releases for repeat violent offenders.
Babes To The Slaughter
It’s no secret that justice system participants in northern Canada are often less experienced than their southern counterparts. Lawyers and police in particular often choose, or are posted, to northern locations early in their careers to “get experience.”
The actual reason for putting such inexperienced people in remote and northern locations is that, on balance, very few people want to live there. Most professionals, especially lawyers, prefer to practice in the large cities down south. They know full well that life is easier down south. There are more resources, more supports, more colleagues, more everything.
As a result, justice departments, the RCMP, and Legal Aid offices are forced to rely on very junior personnel.
In my experience, these junior personnel are extremely idealistic and hard-working. We also make painful mistakes on a regular basis. An example might illustrate my point.
The first conviction I ever secured as a prosecutor for a major sexual assault was in a remote Indigenous community called South Indian Lake. During defense counsel’s cross-examination of the complainant, he asked her questions about her prior sexual activity with the accused. No application to determine the admissibility of this evidence had previously been made. I did not object (I wasn’t even aware of how the rule worked since I’d been a Crown for just a few months). The judge did not intervene.
The complainant was obviously upset by the questioning. After the judge convicted the accused and court adjourned the young woman approached me. She had a variety of concerns, particularly about retribution from the accused’s family (which is common in these tiny, isolated communities). Because I was unfamiliar with the community dynamics in South Indian Lake I referred her to the RCMP.
The accused was eventually sentenced to eighteen months in custody for the rape. I didn’t get a Victim Impact Statement or reach out to the young lady to discuss the sentence. I didn’t submit the case to the appeals unit to consider an appeal of the extremely low sentence. I didn’t follow up with her to make sure she was safe.
I think about that case often. I do think I did the best I could at the time. After all, I put in a good case and got a conviction. But that was simply not good enough. How must this young woman have felt to be interrogated about her prior sexual activity in open court and to have her concerns about her safety brushed off by the white Crown?
While it would be easy to blame these errors on a lack of resources, I think a more proximate cause was my total lack of experience in prosecutions generally, and sex assault prosecutions specifically. There is no good reason whatsoever to put a brand new Crown on a rape case in an isolated community by himself. The complainant and the accused deserved better.
There is very little media coverage of justice issues in the north generally, or northern Manitoba specifically. Reporters overwhelmingly cover southern cases in and around big cities.
There are notable exceptions, however. For example, I’d be remiss if I didn’t specifically mention Katie May‘s reporting on justice in Thompson. She earned a Fetislov Journalism Award for her work on this issue, which can be found here:
During my five and one-half years in Thompson courts I didn’t see a single reporter in any courtroom I ever entered. In total, I received one call from a reporter during those years. It did not concern systemic issues in the north. This absence of coverage contributed to the lack of accountability that many First Nations people and governments might argue characterizes the justice system in the north.
It’s not that there are a lack of juicy stories or cases in Thompson. The crime is shocking, the human drama is interesting, and the sources are plentiful. It just seemed, to me at least, that reporters were much more concerned about broken windows in Winnipeg than massive injustice in Thompson.
I was encouraged by the media coverage of R. v. Balfour and Young 2019 MBQB 167. Not only was the work of Rohit Gupta and Boris Bytensky impressive, but the fact that it was actually covered by the Globe and Mail, the Winnipeg Free Press, and other press outlets was a sight for sore eyes.
1000 Miles From Anywhere
Geographical distance creates massive problems for the justice system.
The jail nearest to Thompson, Manitoba is located in The Pas, a 386.8 kilometer drive. Some of the communities that Thompson serves are over 300 kilometers away by plane.Tweet
To make matters worse, the roads in this part of the province are hazardous even at the best of times. Air travel is dependent on a couple of small carriers whose operators do their best but, despite their best efforts, flying can be a frightening experience.
It is simply impossible to move lawyers, judges, police, prisoners, and others across these vast distances with any degree of efficiency or predictability. “Weather-outs,” in which court sittings are cancelled because the plane can’t fly through inclement weather, are extremely common. Winter storms and spring and fall thaws and freezes prevent sheriffs from bringing prisoners to and from Thompson on a regular basis.
No-Tech and Low-Tech
Despite the transport difficulties prevalent in northern Manitoba, very little has been done to allow for virtual or video appearances of accused, witnesses, or complainants. While it’s true that the Thompson Provincial Court now provides for the video appearance of prisoners from various institutions around the province, there is no such capability for the 15 communities that Thompson serves.
So, for example, if a person from Shamattawa is to appear in Provincial Court, they must physically be flown 358 kilometers to Thompson.Tweet
When I was there, we had no ability to host virtual courts. This meant that, when a court party was unable to fly into a community on a designated court day, court would hold what it referred to as “telephone remands.” This consisted of calling a police officer present at the court location to “run through the docket” and provide people with their next court date.
Those accused who did not respond to the police officer shouting their name into a crowded band hall or community centre often had warrants issued for their arrest.
I have serious doubts about the legality and regularity of the warrants the court issued in these circumstances. After all, court was not sitting where it had promised to sit. How could a proper warrant issue from a court that was never constituted?
Of course, it goes without saying that resources were at a minimum in Thompson. Every piece of the justice system was stretched beyond its breaking point. But, in my view at least, this is the least of Thompson’s problems.
I’ll suggest two things that might be controversial to some. First, I view the lack of financial resources as a symptom, and not a cause, of the north’s justice dysfunction. Second, I also suggest that, even if the north were flooded with additional resources tomorrow, the problems would remain.
I argue that a lack of resources is a symptom of justice system dysfunction rather than a cause because the justice system in the north has done nothing to demonstrate its value to the public at large. We cannot expect the public to throw money at us when we’re doing a bad job managing the resources we do have and making no effort to explain the importance of our role.
Finally, an influx of resources would likely do little to solve the underlying causes of northern justice problems. Issues like resistance to technological change and large geographical distances are not amenable to financial fixes. We might end up with more judges, police, Crowns, clerks, and defence counsel, but we’d quickly fill up the newly available dockets with still more cases and we’d be right back where we started.
What’s needed is a fundamental reordering of how we do justice in the north, and that’s a topic I hope to tackle very soon.Tweet
Hopefully, I’ve provided at least some food for thought for those curious about Canadian justice in the north. I may be completely wrong about everything I’ve written above, of course, so if that’s the case feel free to respond in any fashion you choose.
The problems facing northern justice are profound and will likely to take decades to fix. But that’s no reason not to start today.Tweet